The Texas Co.

National Labor Relations Board - Board Decisions

Jul 18, 1942

42 N.L.R.B. 593 (N.L.R.B. 1942)

In the Matter of THE TEXAS COMPANY, MARINE DIVISION and NATIONAL
MARITIME UNION5 PORT ARTHUR BRANCH
Case No C-1276 -Decided July 18,1942
Jurisdiction : petroleum products production and distribution industry
Prevention under Act of discrimination by maritime employer against
seamen who have engaged in normal and lawful union acti,,ity and reinstate-
ment of a maritime employee discriminately discharged, held not incompati-
ble with marine safety legislation
Unfan Labor Practices.
Intel fel once, Restl aint, and Coeicion anti-union statements by supervisory em-
ployees, tbieatening to dischaige union members, questioning employee about
membership in union
Discrimination dischaige of employee because of his union activities found dis-
cnminatoiy
Remedial Order : reinstatement and back pay, including reasonable value of
boaid and maintenance, awarded
Practice and Procedure : sections of the Board's oiiginal Decision dealing with
the dismissed allegations of the complaint which were not the basis of any
part of the Boaid's Older which was before the Court on the petition for
review, and not within the scope of the Court's remand, not reconsidered
lfr E. P. Davis and Mr Alba Burnham Martin for the Board.
Mr. A E Van Dusen, of New Yolk City, Mr. James H. Pipkin, of
Houston, Tex , and Mr. J. W. Williams, of Port Arthur, Tex., for the
i espondent.
Mandell c Combs, by Mr Herman Wright, Mr. W. A. Combs,
Mr. Arthur J. Mandell, and Air Otto Mullinax, of Houston, Tex., and
Mr Max Lustig, of New York City, for the Union. -
Mr. Robert R Hendricks and Mr. Edward J. Creswell, of counsel to.
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by National Maritime Union of
America,' Poit Arthur Branch, heiein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Sixteenth Region (Fort Worth, Texas), issued its
' Incorrectly designated in the complaint and other formal papers as "National Maritime
Union " -
42 N L R B, No 123
472814-42-vol 42-38 593
594 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
complaint dated September 3, 1938, against The Texas Company,
Marine Division, New Yolk City and Houston, Texas, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, heiein called the Act.
Copies of the complaint, accompanied by notice of hearing, were duly
served upon the iespondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent discliai ged and thereafter refused to
reinstate 10 of its employees 2 for the ieason that they, and each of
them, joined and/or assisted the Union and engaged in concerted
activities with other employees of the respondent for the purposes
of collective bargaining and other mutual aid and protection, thereby
discriminating in regard to the hire and tenure of employment of these
employees and discouraging membeiship in the Union; that, since on
or about August 1, 1937, the iespondent, through its officers, agents,
and employees, has made various statements to its employees discoui-
aging affiliation in, or activity on behalf of, the Union, that, through
its officers, agents, and employees, the respondent has denied passes to
representatives of the Union to board the respondent's vessels in.
order to meet, with members of the Union; and that, by the afore-
mentioned and other acts, the iespondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. -
On September 12, 1938, the respondent filed its answer and its
amended answer to the complaint, in which it denied having engaged
in any unfair labor practices, but admitted that certain of the em-
ployees named in the complaint had been discharged and refused
ieinstatement.3 In its amended answer the respondent also admitted
that it had denied passes to representatives of the Union to board itss
vessels, but averred that such denial had not been discriminatory
2 The complaint listed the employees allegedly dischar ged , the, dates of the alleged dis-
charges, and the ships from which they took place, as follows F W Zinkiewycz, April
18, 1938, S S Rhode Island , D G MacClennan , April 17, 1938, S S Rhode Island, c
Backless , April 18 , 1938, S S Nevada , J Gordon Rosen , April 19, 1938, S S Nevada,
F W Zinkiewycz , July 14, 1938, S S Washington, ; C Buckless , July 14 , 1938, S S Wash-
ington , J Goidon Rosen , July 14 , 1938, S S Washington , James P Blasingame , Septem-
ber 19 , 1937, S S California , Arthur Spencer , September 19,-1937 , S S California, J
Gordon Rosen, September 19, 1937, S S California , A P Lortie , July 30, 1938, S S
Roanoke, John Helton , July 30 , 1938 , S S Roanoke , C T Adams , July 30, 1938, S S
Roanoke, R M Lyons , July 17, 1938 , S S Roanoke
2 The respondent admitted in its amended answer that it had, on the dates given, dis-
charged the following employees from the following named ships C Buekless , April 18,
1938, S S Nevada , J Gordon Rosen, April 19, 1938, S S Nevada , F W Zinkiewycz, July
14, 1938, S S Rhode Island , J Gordon Rosen , .July 14, 1938 , S S Washvngton, C T
Adams, July 30, 1938, S S Roanole , A P Lortie , July 30, 1938 , S S Roanoke, John
Helton, July 30 , 1938 , S S Roanoke , C Backless, July 14 , 1938 , S S Washington
THE TEXAS COMPANY, MARINE DIVISION 595
Pursuant to notice, a healing was held at Port Aithui, Texas, from
September 12 through September 22, 1938, before Howard Myers, the
Trial Examiner duly designated by the Boaid The hearing was
continued at Port Arthur, Texas, on November 28 and 29, 1938, before
Chailes E Persons, another Trial Examiner duly desigated by the
Boar d The Boai d, the respondent, and the Union were i epi esented
by counsel and participated in the hearing Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties.
At the beginning of the hearing, counsel for the Boaid moved to
amend the complaint to include an allegation that the respondent
discharged and refused to reinstate 2 men 4 not previously named
therein for the reason, among others, that they had joined and/or
assisted the Union The Trial Examiner granted the motion without
objection With the consent of all the parties, the respondent's answer
was deemed amended to include a denial of the allegation that these
2 men were discharged in violation of the Act During the course of
the hearing, counsel for the Board moved to dismiss the allegations
in the amended complaint as to certain discharges of 7 of the 12 em-
ployees named 5 The Tirial Examiner granted the motion, which was
not opposed Also during the course of the hearing the respondent
made various motions to dismiss the amended complaint in its entirety;
to dismiss that portion of the amended complaint which alleged that
Rufus H Andrews and F W Zi nkiewycz were discharged by the
i espondent on July 8 and July 14, 1938, respectively, because they had
joined and/or assisted the Union; and to strike certain testimony.
Decision on these motions was reserved by the Trial Examiner at the
hearing: In his Intermediate Report, the Trial Examiner 6 denied the
motions to dismiss the amended complaint in its entirety and the mo-
tions to strike cei tarn testimony, but granted the motions to dismiss
the amended complaint as to Rufus H. Andrews and F W. Zm-
kiewycz At the close of the hearing, counsel for the Board proved to
conform the complaint to the proof. This motion was granted by the
Trial Examiner. During the course of the hearing, the-Trial Exam-
iners made rulings on other motions and on objections to the admission
of evidence The Board has ieviewed the^rulmgs of the Trial Exam-
4 The names of these employees , the dotes of the alleged discharges , and the ships from
yr h,ch they took place an a Rufus H Andrews , July 8, 1938, S 8 Australia , Jack Wilson,
March 17, 1938, S S Washington
5 These seven discharges involved the following employees who were alleged to have been
discharged on the following dates from the following ch,ps F W Zinknewycz , April 18,
1938 , S S Rhode Island, D G MacClennan , April 17 , 1938 , S S Rhode Island , Arthur
Speneor September 19, 1937 S S California , John Helton , July 30, 1938, S S Roanoke;
U T Ad ins , July 30 , 1938 , S S Roanoke R M Lyons, July 17, 1938, S S Roanoke, Jack
Wilson, March 17, 1938, S S Washington -
°,The Inteimediate Report was submitted by Trial Examiner Howard Myers
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iners and finds that no prejudicial errors were committed The iulings
are hereby affirmed.
On May 8,1939, Trial Examiner Myers filed an Intermediate Repoi t,
copies of which were duly served on the paities, finding that the ie--
spondent had engaged in and was engaging in unfair laboi practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act. He recommended that the respond-
ent cease and desist from its unfair labor practices; that it reinstate
with back pay 4 of the 12 employees originally named in the amended
complaint, and`that it take certain affirmative action to remedy the
situation brought about by the unfair labor piactices He dismissed
the allegations of the complaint, as above stated, with respect to Rufus
H Andrews and F. W Zinkiewycz. The respondent filed a Statement
of Exceptions to the Intermediate Repoit and to the record on July
14, 1939, and a brief in support of the Statement of Exceptions on
July 17,1939.
Pursuant to notice duly served upon the respondent and upon the
Union, a hearing for the purpose of oral argument was held on Oc-
tober 24, 1939, befoie the Board in Washington, D C. The respond-
ent and the Union were represented by counsel and participated in
the argument.
On January 24, 1940, the Board issued a Decision and Order in the
case? The Board found in its Decision that the respondent, by wain-
ing its employees against union organization and by other acts, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8 (1) thereof ;
and that the respondent, by discharging Clarence Buckless on April
18, 1938, and J. Gordon Rosen on April 19 and July 14, 1938, and
thereafter refusing to reinstate them, because 'of then union affilia-
tion and activities, engaged in unfair labor piactices within the mean-
ing of Section 8 (3) and (1) of the Act. The Board ordered the re-
spondent to reinstate Rosen with back pay, and awarded back pay
to Buckless whom the respondent had already reinstated. -
On May 7, 1940, the respondent filed a petition for review of the
Board's Decision and Order in the United States Circuit Court of
Appeals for the Ninth Circuit, and on June 24,1940, the Board filed an -
answer requesting enforcement of its Oider. Upon biiefs filed by
the respondent and the Board, and after oral argument in which the
respondent and the Board participated by counsel, the Court, on May
23, 1941, entered its opinion and a decree denying enforcement of the
Board's Order as to Buckless and remanding the remaining portions
7 Matter of The Texas Company , Marine Division and National Maritime Union, Port
Arthur Blanch, 19 N L R B 835
THE TEXAS COMPANY, MARINE DIVISION 597
of the Order to the Board for reconsideration in the light of certain
maritime safety statutes to which the Court adverted in its opinion
On June 28, 1941, the Board vacated and set aside its Decision and
Order of Januaiy 24, 1940, with the exception of paragraph 2 (a)$
thereof. Pursuant to notice duly served upon the respondent and
the Union, a hearing for the purpose of reargument was held before
the Board in Washington, D C., on July 17, 1941. The respondent
and the Union were represented by counsel and participated in the
argument, and the respondent then filed a brief which the Board has
considered.
Upon the entire record, and pursuant to the remand of the United
States Circuit Court of Appeals for the Ninth Circuit, the Board
makes the following :
FINDINGS OF FACT
I THE BUSINESS OF TIIE RESPONDENT _
The respondent, The Texas Company, a wholly owned subsidiary
of The Texas Corporation, is a Delaware corporation, with its prin-
cipal business and executive offices located at New York City and
Houston, Texas It is engaged chiefly in the production, distribution,
and sale of petroleum and petroleum products. The respondent op-
erates refineries in Texas at Galena Park, Port Arthur, and Port
Neches In addition, at Port Neches, it operates a factory for the
manufacture of roofing materials, barrels, and various other products.
Chief products of the Galena Park refinery are gasoline and fuel
oils. The crude oil used in their manufacture comes principally from
producing wells in Texas and New Mexico through pipe lines operated
by the Texas New Mexico Pipe Line Company. This company is a
common carrier with tariffs prescribed by the Interstate Commerce
Commission A majority of its stock is owned by The Texas Corpo-
ration The average daily throughput of the Galena Park refinery
is approximately 20,000 barrels of crude oil. Of the finished prod-
nets, approximately 75 percent is shipped out of Galena Park on board
seagoing tankers to points outside the Stafe of Texas.
The principal products manufactured at the respondent's Port
Neches works are roofing, asphalt, steel barrels, wood barrels, and
drums. The principal raw materials used are crude oil, felt, sheet
steel, wood staves, slate, paper, and nails. The daily average through-
put of crude oil is approximately 25,000 barrels. Most of the crude oil
is obtained from Texas and Louisiana, but substantial quantities arrive
8In this paragraph back pay was awarded Buckless As noted above, enforcement of
the Board s Ordei as to Buckless was denied by the Circuit Court of Appeals
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by tanker and barge from Mexico All of the felt, slate, sheet steel,
and papei is procured fi om outside the State of Texas
The unfinished crude distillates from both the Galena Park and
Port Neches refineries are pumped to the respondent's Port Aithur
refinery wheie the iefinuig piocess is completed In refined form, a
substantial percentage of the ciude-oil distillates pumped to Port
Arthur eventually reaches a destination outside the State of Texas.
Products of the respondent are, in part, distiibuted through 2,100
wholesale outlets and over 40,000 retailers located in most of the States
of the United States. Gross receipts of the respondent for the fiscal
year ending December 31, 1937, were in excess of $280,000,000 In the
respondent's franchise-tax return to the Secretary of State of Texas,
covering the year 1937, over 86 percent of its business was reported as
interstate in character and approximately 13 peicent was reported as
intrastate
The respondent owns, maintains, and operates through its Marine
Division approximately 28 oceangoing vessels having an average ca-
pacity of 11,000 tons. These vessels are used by the respondent in
transporting its petroleum products between various ports in the Gulf
of Mexico and other ports of the United States, and to and from Eu-
rope, South America, and other points.
H THE ORGANIZATION INVOLVED
National Maritime Union of America, Port Arthur Bi anch, is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership all unlicensed seamen employed by the
respondent.
III THE UNFAIR LABOR PRACTICES
The Board, in its original Decision, dismissed the complaint insofar
as it alleged that the respondent had iefused to issue passes to union
representatives, in violation of Section 8 (1) of the Act, and that the
respondent had discriminated in regard to the hire and tenure of
employment of Rosen and Blasingame by discharging them from the
S. S. California during September 1937, of Loitie, Zinkiewycz, and
Andrews, by discharging them from the S. S. Roanoke, S. S. Australia,
and S S. Washington during July 1938, and of Buckless, by discharging
him from the S. S. Washington on July 14,1938, in violation of Section
8 (3) and (1) of the Acts Since those sections of the Board's original
Decision dealing with the dismissed allegations of the complaint were
not the basis of any part of the Board's Order which was before the
Court on the petition for review, they are not within the scope of the
Court's remand and will not, therefore, be reconsidered
9 19 N L R B 835
THE TEXAS COMPANY, MARINE DIVISION 599
A Interference, restraint, and coercion
Both J Gordon Rosen and James P Blasingame were hired by
the respondent on or about June 30, 1937, at Port Arthur , Texas, and
were assigned to the S S California as able-bodied seaman and
quarteimastei , respectively.
When Rosen went on board, he reported for duty to Eail Baldwin,
then acting first mate of the S S California According to Rosen's
account of the ensuing conversation , Baldwin stated to him, "Just a
minute, theie is one thing I want to tell you we don 't allow on this ship,
and that is getting diunk , missing watches, and we don't allow any
agitation with the ciew on this union business ." Blasingame gave
a similar account of his first conversation with Baldwin He testified
that, when he boarded the S S California , Baldwin warned him
against thiee things "diunkenness ," "missing watches ," and-"union
agitating "
Soon after Rosen and Blasingame went to work on the S. S Cali-
fornia, its regular first mate, Dave Rosen, returned to the ship from a
leave of absence , and Eail Baldwin was shifted back to his regular
positron as second mate As such, Baldwin was in charge of the 12
to 4 watch during which Blasingame , as quartermaster , steered the
ship.
In the course of their duties , Blasingame and Baldwin were fie-
quently on the bridge together and engaged in various conversations.
Concerning these conveisations, Blasingame testified that Baldwin
told him how the ship had been iun without union men aboard and
how he ( Baldwin ) had to get rid of a man "because he was agitating
union all the time " On one occasion , accoiding to Blasingame, a
newly hired seaman came aboaid wearing a union button Baldwin,
upon seeing it. remarked , "There is a roan who won 't ride this ship
long" At another time, Blasingame testified , Baldwin asked him if a
ceitain new seaman was a "iank and file 710 Blasingame replied that
he did not know, and Baldwin said , "Well, if he is he won 't be on this
ship vei y long "
Blasingame also testified that Baldwin asked him about his own
union affiliation as well as that of various other crew members,
including J Gordon Rosen. Blasingame avoided giving a direct
answer to the question as to his own membership in the Union, he
testified , and told Baldwin that he knew nothing about the member-
ship of the others.
On the termination of this voyage, both Blasingame and J . Gordon
Rosen left the ship When J. Gordon Rosen was being paid off,
to During the first stages of its oiganization , and for some time thereafter , the Union
was commonly iefei red to as the "rank and file"
-600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baldwin commented on Rosen's termination of employment as fol-
lows "Well, you know we don't want any agitating back there "
Baldwin testified that, when J. Gordon Rosen and Blasingame first
boarded the S S California, he simply told them to go to their
quarters He denied warning them against "union agitation " Al-
though he admitted having had, as second mate, various conversa-
tions with Blasingame, he flatly denied each and every anti-union
statement attiibuted to him by the latter. Trial Examiner Myers,
before whom Baldwin testified, did not credit Baldwin's denials, nor
do we. We find that Baldwin made the statements attributed to him
by J. Gordon Rosen and Blasingame, substantially as recited above.
An acting first mate on the S S. California when J Gordon Rosen
and Blasingame were hired and when he warned them against "union
agitation," Baldwin was second in authority only to the captain
As second mate at the time of his various conversations with Blasin-
game on the bridge of the S. S Calif orliia, Baldwin was the third
ranking officer on the ship. During the absence of his superior officer
or officers, Baldwin was in complete charge of the ship. He was at all
times in charge of the deck crew during one watch of 8 hours each
day. The respondent is clearly accountable for the anti-union
statements made by him 11
We find that the iespondent, by warning its employees against
union organization, by threatening the discharge of union members,
and by questioning an employee concerning the identity of union
members, interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
B. The shipping articles
As stated above, the amended complaint charges the respondent
with having discharged and iefused to reinstate various employees,
in violation of Section 8 (3) of the Act.
It is undisputed that each seaman involved in the alleged discharges,
which are discussed below, signed shipping articles required by law,12
and that each received his discharge certificate 13 at the port at which
be had originally embarked. The respondent contends that there is
and can be no issue of unlawful discharge in this proceeding, because
the shipping articles constituted contracts of employment under which
the employment relationship was terminated, as a matter of law, at
the end of the paiticular voyages concerned
11 Cf Vaigtnta Ferry Corporation v National Labor Relations Board , 101 F - (2d) 103
(C C A 4), enf'g as mod Matter of Virginia Ferry Corporation, 8 N L R B 730
12 46 U S C A, Sec 564, 46 U S C A, See 574
"In the event that a seaman quits a particular vessel of is dismissed for any reason,
the law requires that he be given a discharge certificate 46 U S C A , Sec 643
THE TEXAS COMPANY, MARINE DIVISION 601
- We do not concur in this view. It is clear from the record that
the termination of a voyage does not, as a matter of fact, terminate
the employment relationship between the respondent and the mem-
bers of the crew With the exception of those seamen who either quit
or are dismissed, the crew continues in the performance of its duties
Regular watches are maintained and the seamen remain subject to the
orders of their ship's officers. Oidinarily the same crew goes on the
succeeding voyage
Despite the fact that seamen may have concurrently signed shipping
articles for a voyage, the respondent may dismiss them on different
days upon or after the end of the voyage, thus indicating that it is
the dismissal by the respondent's officers rather than the completion
of the voyage which terminates the employment relationship Fur-
thermore, the respondent's working rules provide that "all unlicensed
personnel with one year of continuous service shall be given an annual
yacation of one week with pay," and that "those in continuous service
for two years or more shall be given an annual vacation of two weeks
with pay." Since shipping articles signed by the respondent's sea-
men are never for-voyages lasting as long as a year, these provisions of
the working rules would be meaningless if, as the respondent contends,
the employment relationship ended upon the completion of each
voyage.
On the basis of all the evidence, we find that, notwithstanding the
termination of a particular voyage, the employee relationship of each
member of the crew on the respondent's ships here involved continued
until he quit or until lie was dismissed for lawful cause 14
C The discharge of J Gordon Rosen from the S S "Nevada"
On January 10, 1938, J Gordon Rosen was again hired by the re-
spondent and was assigned to the S S Nevada as an able-bodied
seaman When Rosen boarded the S S Nevada he found that the
entire crew, with the exception of one man, was composed of members
of the Union
Rosen at once became active in 'affairs of the Union He presided
over meetings held in the crew's quarters each week and acted as a
delegate to discuss various controversial grievances with the ship's
officers He drafted a letter, copies of which the crew sent through
14 South Atlantic Steamship Company of Delaware v National Labor Relations Board,
116 F (2d) 480 (C C A 5), enf'g as mod Mattel of South Atlantic Steamship Company
of Delaioane, 12 N L R B 1367, ceit denied, 313 U S 582, National Labor Relations
Board v TVato+man Steamship Corporation, 309 U S 206, rev'g 10; F (2d) 157 (C C A
5), mod Matter of TVate,man Steamship Corporation, 7 N L R B 237 See Southern
Steamship Company v National Labor Relations Board, 62 S Ct 886, rev'g and rem'd'g
120 F (2d) 505 (C C A 3), enf g as mod Matter of Southern Steamship Company, 23
N L R B 2b
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the malls and hiring halls to crews of the respondent's other ships,
urging them to join the Union. It is clear that Rosen was outstand-
ing as an active union leader on board the S. S Nevada, and that the
.hip's officers were aware of his activity.
On April 18, 1938, when the S S Nevada docked at Port Arthur,
Buckless was discharged by Captain Swanson . Rosen , as crew dele-
gate , immediately protested Buckless' discharge to Fnst Mate Tran-
berg and was, in turn, discharged on the following day Tranbeig,
in answer to Rosen's request for an explanation of his discharge,
stated , "Well, it might be for the reason that your work is not
satisfactory "
The respondent contends that Rosen's employment was terminated
because he was lazy and inattentive to duty. 'r'ranbeig testified that
Rosen seemed to "intentionally lag behind in his work," and that on
various occasions he left his post when he was supposed to be on watch
and went aft to play cards, write, or smoke Captain Swanson tes-
tified that Rosen appeared to be "purely lazy" and that Tianbeig
had often complained about his work Rosen denied that he had been
derelict in the performance of any of his duties It is clear, and we
find, that he did not use tobacco The respondent's charge of neglect
of duty on the part of Rosen is also refuted by Rosen's long record
at sea,16 and his previous admittedly satisfactory service with the
respondent as quartermaster on the S S Nevada in 1935, and as
temporary boatswain on the S S California in 193716
We believe that the reasonable resolution of this conflicting testi-
mony, as well as the respondent's reason for discharging Rosen, is
revealed by the testimony of Leo Heiman and George Hart Herman,
who was not a member of the Union, was hired as a seaman on the
S. S Nevada on April 19, 1938, some horn s' after Buckless' dismissal
but before Rosen's discharge. Rosen and other union members voiced
strenuous objection to Herman's employment, because of his non-
union status 1-ieiman reported this to Tranbeig, who questioned
him as to the identity of the objectors. Herman testified that, when
lie refused to divulge this information, Tranbeig remarked:
"At the time of the hearing , Rosen had had 10 years ' experience as a seaman
19 As discussed below , less than a ,month and a half after Rosen had received his dis-
charge papers from the S S Nevada, he was reluied by the respondent on the S S Wach-
angton In its brief and at the oral argument , the respondent urged that the fact that
Rosen was refined demonstrates that he had not been discharged from the S S Netada
because of his activity in the Union We do not believe that this argument resolves any
of the nseues It might equally well be urged that the respondent would not have rehired
Rosen, as it did, if he ens in fact negligent and lazy The record indicates that, Insofar
as the hiring of unlicensed seamen is concerned , each of the respondent ' s ships was operated
largely as a separate unit , obtaining its employees from any of various uncoordinated
agencies A man might therefore be discharged from one of the respondent 's ships and
thereafter be rehired on another , the rehunng having little or no bearing upon the merits
of, or the reasons for, the previous discharge
THE TEXAS COMPANY, MARINE DIVISION 603
I know who you had the conversation with It was Baldy 17
Baldy is a good man but he let the Union go to his head We
had _a boatswain on here; he done the saine thmg Every time
a [new] man comes on board he asked him if he had a union
book.
Nine days later, Tianberg told Herman, according to the latter's
,testimony, that
he [Tranberg] fired Baldy on account of union activities but
that is not the reason he gave him . . . the only reason he
[Tianbdig] told me was that I told him I didn't belong to the
NM.U ...
Quartermaster Hait of the S S Nevada corroborated the first of
these two conversations, which he had overheard, and testified that,
prior to Rosen's discharge, when Tranberg was investigating the
crew's opposition to Herman's employment, he directed Hart to
tell those people I don't want none of that kind of stuff on here.
I am not going to have it I thought I got rid of that when I got
rid of that fellow yesterday.
Hart testified that Tranberg's allusion to "that fellow" was to Boat-
swain Buckless, who had been discharged- on the previous day. It
is apparent from Tranberg's remark that further punitive measures
were contemplated at that time Tranberg denied the statements
attributed to him by Herman, but did not testify as to his conversation
with Hart. On the entire record, we credit the testimony of Herman
and Hait, and we find that the iespondent discharged J Gordon
Rosen from the S S Nevada because of his union membership and
activities, thereby discriminating in regard to his hire and tenure
of employment, discouraging membership in the Union, and inter-
fering with, resti airing, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
D The discharge of J Gordon Rosen from the S. S. "Washington"
J Gordon Rosen was unemployed fi om the time he left the S S.
Nevada until June 1, 1938, when be was relined by the respondent as
an able-bodied seaman on the S S Washington . As in the case of his
pi evious employment with the respondent , Rosen became outstand-
ingly actin e in the affairs of the Union soon after his arrival on the
ship. He piesided over meetings and was elected a delegate . In that
capacity, from tinie to time, he presented various grievances of the
crew to Captain Beigi7ian of the S S Washington Bergman told
Rosen that the respondent "didn't recognize any union ," but discussed
"Rosen Ras commonly called "Baldy"
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the various grievances with him On July 11, 1938, Rosen drafted
and signed an open letter from the crew of the S S. Washington to
the crews of all other ships owned by the respondent, urging them
to organize and severely criticizing the respondent because it allegedly
refused to improve the working conditions of its employees. Rosen
also sent a telegram to J P Roney, general manager of the respond-
ent's marine department, complaining that the captain of the S. S
Washington refused to recognize the delegates of the Union. It is
clear that the officers of the S S Washington had knowledge of
Rosen's activity on behalf of the Union.
On July 14, 1938, at Port Arthur, the first mate, C B Johannesen,
told Rosen that he was "fired" because of "unsatisfactory seamanship "
This occurred a few hours after Rosen, as delegate of the Union, had
taken up an overtime dispute with C L Hand, the port captain, who
refused to recognize him as union delegate. Rosen protested his dis-
charge to First Mate Johannesen, who thereupon withdrew his original
reason for Rosen's discharge and admitted that he had nothing against
Rosen's seamanship. Johannesen then told Rosen that his slowness
at work was the reason for his discharge.
Captain Bergman and Mate Johannesen testified that Rosen on
various occasions was negligent and lazy. On the other hand, there is
substantial evidence to the contrary Furthermore, several of the
instances of laziness attributed to Rosen by Mate Johannesen oc-
curred, according to the latter's own testimony, during the first voyage
of the S. S Washington, after which{Rosen was shipped on the second
voyage. We are not convinced that this was done, as the respondent
contends, merely to give Rosen "another chance " In view of Rosen's
long experience as a seaman and his previous satisfactory record
with the respondent, we find, as did the Trial Examiner, that neither
Bergman's nor Johannessen's testimony as to Rosen's negligence and
laziness is entitled to credence. The notation made by Captain Berg-
man in the crew list, that Rosen was discharged for "incompetency," is,
in our opinion, no more persuasive than the testimony given by Berg-
man at the hearing
On the basis of the entire record, we find, as did the Trial Examiner,
that the respondent discharged Rosen from the S S. Washington on
July 14, 1938, and thereafter refused to reinstate him, because of his
union membership and activities, thereby discriminating in regard to
his hire and tenure of employment, 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
E. Marine safety legislation ,
Pursuant to the decree of the Circuit Court of Appeals, we have care-
fully reconsidered our findings as to the respondent's unfair labor prac-
THE TEXAS COMPANY, MARINE DIVISION 605
tices in the light of the Court's opinion and of the traditional need for
safety and discipline aboard ship. We appreciate the importance of
the legislation to which the Court refers in its opinion 18 and recognize
our task of accommodating the "scheme" of of the Act to "other and
equally important Congressional objectives " We take note that the
amendments to the Merchant Marine Act of 1936 (49 Stat. 1985)
enacted by Congress in 1938 (52 Stat 965, 46 U. S C A, Secs 1251-
1262) added to that Act a title on maritime labor relations declaring
a policy of encouraging collective bargaining among maritime em-
ployees and affirming the applicability of the National Labor Rela-
tions Act to them 19 Seamen who have engaged in conduct condemned
as illegal by other legislation have indeed been denied reinstatement
under the Act '20 but our own decisions and those of the courts have fre-
quently and consistently recognized the general applicability of the Act
to maritime employees 21
Protection by law of the right to organize and bargain collec-
tively has also been extended by Congress to employees engaged in
other hazardous occupations. Railroad employees and employees of
common carriers by air, although employed in industries covered by
extensive safety legislation, have, for example, expressly been given
guarantees in the Railway Labor Act substantially similar to those
is This legislation, biiefiy summarized, is as follows
18 U S C A , Sec )84, At title 293 provides a fine and imprisonment for a member
of a crew unlawfully and by force, fraud, of intimidation, to usurp the command of a
vessel from its master
46 U S C A , Sec 701, Articles Fifth and Sixth provide for the punishment of a
ciew member for continued wilful disobedience of neglect of duty at sea, and for
assaulting a master, mate of other officer
46 U S C A , Sec t39 provides that inspectors shall investigate all acts of mss.-
conduct committed by any licensed officer, whose license shall be suspended if the
inspectors aye satisfied after a hearing that the officer Iis incompetent or has been
guilty of misbehavioi, negligence, or unskilfulness, or has endangered life wilfully
46 U S C A , Sees 226, 228, 229 provide that licenses of captains, mates, and engi-
neers shall he suspended on satisfactory proof of tntcmpeiate habits
46 U S C A , Sec 222 requires that a s essel shall only be operated with a full
complement of officers and crew, and provides that a captain is liable to fine or penalty
for failing to explain to the local inspectors the season for any deficiency in com-
plement
This affirmation of the applicability of the Act is contained in Section 1002 of the
Merchant Marine Act, which was added in June 1938 by 52 Stat 965, 46 U S C A, Sec
1252 The 1938 amendments oiiginally were to expire in 3 years, on June 23, 1941, but
the life of some of the sections added by these amendments, including Section 1002, was
extended until June 23 1942 by Public L No 124, 77th Cong, 1st Sess
Southern Steamship Company v National Labor Relations Board, 62 S Ct 886, rev'g
and rem'd'g 120 F (2d) 505 (C C A 3), enf'g as mod Matter of Southern Steamslibo
Company, 23 N L R B 26
2 See, e g, National Labor Relations Board v Waterman Steamship Corporation, 309
TJ S 206, rev'g 103 F (2d) 157 (C C A 5), mod Matter of Waterman Steamship Cor-
poration, 7 N L R B 237, Black Diamond Steamship Corpomation v National Labor
Relations Board, 94 F (2d) 875 (C C A 2), enf'g Matter of Black Diamond Steamship
Corpoiatzon, 3 N L R B 84, cert denied, 304 U S 579, South Atlantic Steamship Com-
pany of Delaware v National Labor Relations Board, 116 F (2d) 480 (C C A 5), enf'g
as mod Matter of South Atlantic Steamship Company of Delaware, 12 N L R B 1367,
cert denied, 313 U S 582
€O6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contained in the National Labor Relations Act. Similarly, although
the hazardous nature of the mining industry has long been recognized
in safety legislation, the applicability of the National Labor Relations
Act to mining employees is well-established .22
Certainly it cannot with reason be said that ship's officers must
be permitted to engage in anti-union conduct and statements if safety
and discipline aboard ship are to be preserved Any such holding
would in effect mean that normal union activities create otherwise
nonexistent dangers and interfere with discipline and good order.
Experience provides no basis for any such proposition. On the con-
trary, Congress has found in the Act that "Experience has proved
that protection by law of the right of employees to organize and bar-
gain collectively safeguards commerce from injuiy . . ." (Section 1)
Upon reconsideration, therefore, we are of the opinion and we find
that considerations of marine safety and discipline give no reason
for disturbing our findings in Section III A, above, as to the respond-
ent's interference with, restraint, and coercion of its employees in the
exercise of the rights guaranteed in Section 7 of the Act
Nor do we believe that prevention under the Act of discrimination
by maritime employers against seamen who have engaged in con-
certed activities is in any sense incompatible with the marine safety
legislation to which the Court refers in its opinion 23 To say that
"the fact that Rosen was a labor leader heightened the wrong" of
the activity in which he engaged is to justify the discharge of active
union members for conduct which in others might be regarded as not
improper. Similarly, to presume that a seaman who leads his fellows:
in union activity _"well may have been absent from his station and
inattentive to his duties" is to make union activity prima facie evi-
dence of carelessness or incompetence. Either would make possible
the discharge of seamen who are active union members or officers
almost without reference to the pi opriety or impropriety of their
activities according to normal standards and without regard for the-
proscriptions contained in the Act
In any event, the record shows that Rosen's union activities neither
endangered discipline nor interfered, with his work, and we find that
the respondent in discharging hun was not moved by any such
considerations. Rosen's union activities on board the S. S Nevada
and the S. S Washington consisted of presiding over weekly union
as See, e g, Matter of Crowe Coal Company and United Mine Workers of America, Dis-
trict No 14, 9 N L R B 1149, enf'd in National Labor Relatwns Board v Crowe Coal
Company, 104 F (2d) 633 (C C A 8), cert denied , 308 U S 584 , Matter of Nevada
Consolidated Copper Corporation and International Union of Mine, Mill and Smelter Work-
ers, 26 N L R B 1182, set aside in National Labor Relations Board v Nevada Consolidated
Copper Corporation, 122 F ( 2d) 587 (C C A 10), rev'd 62 S Ct 960 ,
21 Section 1002 of the Merchant Marine Act of 1936, as amended , expressly provided
that "enforcement of any of the navigation laws of the United States or any other laws
relating to seamen" shall not be affected 52 Stat 965, 46 U S C A, Sec 1252
THE TEXAS COMPANY, MARINE DIVISION 607
meetings held in the crew's quarters, acting as delegate to discuss
grievances with the ship's officers, drafting letters urging the crews of
the respondent's other ships to join the Union and criticizing the
respondent for its alleged refusal to improve working conditions, and
protesting to the. iespondent's general manager the refusal of the
captain of the S S Washington to recognize the delegates of the
Union There is nothing in the record to indicate that these activities
endangered the safety of the respondent's ships on which Rosen
worked or of the cargoes they cairied, or that his union activities
were deti imental to discipline on board those ships, within the mean-
ing of the legislation to which our attention has been directed.
Hence theie is no basis for concluding that any of these Congressional
enactments were violated by Rosen and it does not appear that he
was prosecuted for any criminal offense in that respect. There is,
therefore, no basis for believing that Rosen's reinstatement with back
pay involves any such threat to discipline or safety or any such con-
flict with maiine safety legislation as to require us to deny this nor-
mally applicable remedy. Upon reconsideiation, we find no reason
to alter our conclusion that Rosen was discriminatorily discharged
and that his reinstatement with back pay will effectuate the purposes
of the Act 24
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A, C, and
D above, occurring in connection with its operations described in Sec-
tion 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.
THE REMEDY
We have found that the respondent, by its anti-union statements
and in other ways, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the
Act. We shall order the respondent to cease and desist from such
practices.
We have found that the respondent discriminatorily discharged
J. Gordon Rosen from the S S. Nevada on April 19, 1938, and from
the S S. Washington on July 14, 1938. We shall therefore order
the respondent to offer Rosen immediate and full reinstatement to
his foinier or a substantially equivalent position without prejudice
21 We have not vacated our original order with respect to Buckless , and we therefore
do not reconsider his case, although the same considerations apply to his union activities as
to those of Rosen
608 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
to his seniority or other rights and privileges, which we find is neces-
sary to effectuate the purposes and policies of the Act even though
he may have obtained substantially equivalent employment else-
where 25 We shall fuither order the respondent to make Rosen whole
for any loss of pay suffeicd by him by reason of his discharges by pay-
ment to him of a sum equal to the amount which he normally would
have earned as wages from April 19; 1938, the date of his discharge
from the S. S Nevada, to June 1, 1938, when he was rehired on the
S S Washington, and from July 14, 1938, the date of his discliaige
from the S S. ,Washington, to the date of the offer of reinstatement,
less his net earnings 26 during such periods
Since J Goidon Rosen, while in the employ of the iespoiident,
received maintenance on board ship in addition to his wages, we shall
order that the reasonable value of such maintenance during the
periods for which we shall award back pay be included in the total
amount to be paid him by the respondenit
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Boaid makes the following:
CONCLUSIONS OF LAW
1. National Maiitmne Union of America, Poit Aithur Branch, is
a labor organization, within the nieanuig' of Section 2 - (5) -of the
Act.
- 2. By discriminating in repaid to the hire aiid tenuie of employ-
ment of J. Gordon Rosen, thereby' discouraging membership in -
National- Maritime Union of America, Port Al thur Bi anch, the re-
spondent has engaged in and is engaging in unfair laboi practices,
within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coeicing•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.
25 See Phelps Dodqe Corporation v National Labor Relations Boaid, 113 U S 177,
nfod 'f'g and rem 'd g 113 F (2d) 202 (C C A 2), enf'g as mod Matter of Phelps Dodge
Coi poration, 19 N L R B 55547 , National Labor Relations Board v Blanton Co, 121 F
(2d) 504 (C C A 8), enf'g as mod Matter of Blanton Co, 16 N L R B 951, as amended
by 18 N L R B 143, Matter of Ford Motor Company and International Union, United -
Automobile Workers of America, Local Union No 2119, 31 N ,L R B 994 -
20By "net earnings " is meant earnings less expenses, such as for lianspoitation, room,
and board , incurred by an employee in connection with seeking « ork and working else-
where than for the respondent , which,would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
sea, Lumber and Sawn? ill Workers Union, Local 2590, 8 N , L R B 440 Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v National Labor Rela-
tionsBoat d,311U S 7, - - 11 -
THE TEXAS COMPANY, MARINE DIVISION 6G9
4 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 Boald hereby orders that the respond-
ent, The Texas Company, Marine Division, New York City and
Houston, Texas , and its officer s, agents, successors , and assigns , shall :
1 Cease and desist from
(a) Discouraging membership in National Maritime Union of
America, Port Arthur Branch , or any other labor organization of its
employees , by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to their
hie and tenure of employment , or any terms or conditions of their
employment , because of membership or activity in any such labor
organization,
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to
form , loin, or assist labor oiganizations , to bargain collectively
through representatives of then own choosing, and to engage in con-
ceited activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed by Section 7 of the Act.
2 Take the following affirmative action, which the Board finds
will effectuate the policies of the Act.
(a) Offer to J Gordon Rosen immediate and full reinstatement to
the position held by him on July 14, 1938, of to a substantially equiva-
lent position , without prejudice to his seniority or other rights and
privileges;
(b) Make whole J Gordon Rosen for any loss of pay he may have
suffered by reason of the respondent 's discrimination in regard to his
line and tenure of employment by payment to him of a sum of money
equal to the amount which he normally would have earned as wages,-
including the reasonable value of his maintenance on board ship,-
from April 19, 1938, to June 1, 1938, and from July 14, 1938, to the
date of the respondent's offer of reinstatement, less his net earnings
during such periods;
(c) Immediately post notices to its employees in conspicuous places
on its clocks and vessels, and maintain such notices for a period of at
least sixty ( 60) consecutive days from the date of 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) and (b) of this
Order; ( 2) that the respondent will take the affirmative action set
472814-42 -von 42-39 1
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in paragraphs 2 (a) and (b) of this Order; and (3) that the
respondent's employees are free to become or remain membeis of
National Maritime Union of America, Port Arthur Branch, and that
the respondent will not discriminate against any employee because
of his membership in or-activity'in behalf of said organization;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Oi dei what steps the
respondent has taken to comply-therewith. _
MR GERARD D. REILLY took no part in the consideration of the
above Decision and Order.