Waterman Steamship Corp.

National Labor Relations Board - Board Decisions

May 18, 1938

7 N.L.R.B. 237 (N.L.R.B. 1938)

In the Matter Of WATERMAN STEAMSHIP CORPORATION and NATIONAL.
MARITIME UNION OF AMERICA, ENGINE DIVISION, MOBILE BRANCH,
MOBILE, ALABAMA
Case No. C-375.-Decided May 18,1938
Water Transportation Industry-Interference, Restraint , and Coercion: re-
fusal to issue passes -to representatives of one union while granting them to
representatives of another union-Discrimination : discharges : to discourage
membership in union ; for exercise of rights incident to union membership ;
lay-offs : to discourage membership in union ; refusal to reinstate-Employee
Status: history of, in industry-Remedial Orders: grant of passes , in equal
numbers and under same conditions , to rival organizations--Reinstatement
Ordered: discharged employees ; employees discriminatorily laid off and refused
reinstatement-Back Pay: awarded ; to include reasonable value of maintenance
on shipboard from time ships sailed after discharge or lay-off.
Mr. Joseph A. Hoskins and Mr. Berdon M. Bell, for the Board.
Stevens, McCorvey, McLeod, Goode d Turner, by Mr. Gessner T.
McCorvey and Mr. C. A. L. Johnstone, Jr., of Mobile, Ala., for
respondent.
Mr. William L. Standard, of New York City, by Mr. Max Lustig,
for the N. M. U.
Mr. Alex Howard, of Mobile, Ala., for the S. R. C.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the National
Maritime Union of America, herein called the N. M. U., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Fifteenth Region (New Orleans, Louisiana) issued
its complaint dated October 9, 1937, and an amended complaint
dated October 20, 1937, against Waterman Steamship Corporation,
Mobile, Alabama, herein called the respondent. The complaint,
amended complaint, and notices of hearing thereon were duly served
upon the respondent and the N. M. U. The complaint, as amended,
alleged that the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of See-
237
238 NATIONAL LABOR RELATIONS BOARD
Lion 8 (1) and (3), and Section 2 (6) and (7), of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices the complaint, as amended,
alleged in substance that the respondent had discharged 47 employees
and refused to reinstate them because of their membership and
activities in the N. M. U. and that the respondent had at all times
refused to grant to the duly authorized representatives of the N. M. U.
passes, permitting such representatives to board ships of the respond-
ent for the purpose of soliciting membership for the N. M. U., while
said ships were docked at Mobile, Alabama, and at other ports.
On October 26, 1937, the respondent filed an answer to the amended
complaint, stating in substance that the, crews of the Bienville and
the Fairland were employed to make a particular voyage; that when
the Bienville arrived in Mobile all the members of the crew were
laid off as it laid up for repairs; that when the Fairland arrived in
Mobile it went on drydock and the members of the crew were dis-
charged; that the contract of employment terminated, as is usual
and customary in such cases, when the said vessels were laid up
for repairs or went on drydock; that the respondent has in no
manner refused to reinstate the said employees, except in conforming
with the terms of its preferential shop contract with the Interna-
tional Seamen's Union of America ; that C. J. O'Connor voluntarily
left the vessel of his own accord at the termination of the voyage;
that John R. Roberts and Joseph R. McCoy were not employed
by the respondent; that the respondent refused and still refuses
to grant passes to duly authorized representatives of the N. M. U.
permitting such representatives to board its ships; that the respondent
insists on its right to determine who shall and who shall not enter
on its privately owned property so long as no laws are violated;
and that under its contract with the International Seamen's Union of
America the respondent permits authorized representatives of that
union to board its ships subject to regulations prescribed by the
respondent. Thereafter the respondent filed an amendment to its
answer correcting minor typographical errors.
Pursuant to notice, a hearing was held in Mobile, Alabama, on
November 1, 2, 3, 4, and 5, 1937, before William Seagle, the Trial
Examiner duly designated by the Board. The Board, the respondent,
the N. M. U., and the Seaman's Reorganization Committee of the
American Federation of Labor, herein called the S. R. C., were
represented by counsel and participated in the hearing. The S. R. C.
was permitted to intervene on issues raised by the existence of the
contract between the respondent and the International Seamen's
DECISIONS AND ORDERS 239-
Union of America, herein called the I. S. U. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
During the course of the hearing the complaint was dismissed as-
to John R. Roberts, Joseph R. McCoy, and Reese Bryars, and was
amended to state that C. J. O'Connor was discharged for joining-
and assisting a labor organization known as the Marine Engineers
Beneficial Association, herein called the Al. E. B. A. The respondent's
answer was amended to 'meet the allegations of the complaint, as
amended.
At the close of the hearing counsel for the Board moved that the
pleadings be conformed to the proof. All parties made the same
motion which was granted as to all the parties. Counsel for the
respondent moved that the complaint be dismissed on the grounds
that the evidence failed to show any violation of the Act by the
respondent. The motion was denied. Counsel for the intervenor
moved that the "matter" be dismissed as beyond the jurisdiction
of the Board to impair the obligations of an existing contract under
which the intervenor's rights had been fairly and legally established-
The motion was denied.
Thereafter the Trial Examiner filed his Intermediate Report dated
January 17, 1938, in which he found that the respondent had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3), and Section 2 (6) and (7) of the Act. Both
the respondent and the intervenor filed exceptions to the Intermediate
Report.
On March 8, 1938, oral argument was had before the Board in
Washington, District of Columbia, and a brief was submitted in
support of respondent's exceptions to the Intermediate Report. The
Board, the respondent, the S. R. C., and the N. M. U. were repre-
sented by counsel and participated in the oral hearing.
Counsel for the respondent submitted at the hearing and again
at the oral argument before the Board 'affidavits, signed by 13 mem-
bers of the crews of the Bienville and the Fairland, stating the af-
fiants' reasons for leaving the I. S. U. At the hearing the Trial
Examiner ruled that the affidavits were inadmissible, since the sea-
men's reasons for leaving the I. S. U. were not in issue in the case.
The Board has reviewed the rulings made by the Trial Examiner
on motions and objections to the admission of evidence and finds that
no prejudicial errors were committed. The rulings are hereby af-
firmed. The Board has considered the exceptions to the Trial Ex-
aminer's ruling and Intermediate Report and find's them without,
merit.
240 NATIONAL LABOR, RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Waterman Steamship Corporation, is a corpora-
tion organized on June 10, 1919, under the laws of the State of
Alabama. It has its principal office and place of business in Mobile,
Alabama, and is engaged in the transportation of passengers and
freight by steamship between foreign countries and the United
States.
H. THE UNIONS
National Maritime Union of America, Engine Division, Mobile
Branch, Mobile, Alabama, is a labor organization affiliated with the
Committee for Industrial Organization, admitting to membership the
unlicensed personnel of the respondent's ships.
International Seamen's Union of America is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership all seamen in deck, engine, and steward's departments who
are not required by the United States Bureau of Marine Inspection
and Navigation to hold licenses.
Seamen's Reorganization Committee of the American Federation
of Labor is the successor to the International Seamen's Union of
America. It is a labor organization, admitting to membership the
same classes of persons who are eligible to membership in the I. S. U.
The Marine Engineers Beneficial Association is a labor organiza-
tion affiliated with the Committee for Industrial Organization, ad-
mitting to membership the licensed personnel of the respondent's
ships.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to issue passes
The respondent admits that it has refused to issue passes to author-
ized representatives of the N. M. U. to enable them to board its ships
and states that it will continue to do so. The respondent, however,
issues passes to I. S. U. representatives under the terms of a contract
between the I. S. U. and various steamship companies, including the
respondent. Article II, Section 3, of the contract states that "author-
ized representatives of the Union shall have the right to go on board
ships covered by this agreement, subject to regulations prescribed
by the Owners, for the purpose of consulting with seamen employed
thereon." Article II, Section 4, provides in substance that the I. S. U.
shall take out insurance to protect the steamship owner against any
claim for loss of life or injury occurring to a union representative
DECISIONS AND ORDERS 241
while on board the ships and shall furnish satisfactory evidence of
such insurance.
On July 12 and 13, 1937, respectively, the respondent notified the
I. S. U. delegate at Mobile, Alabama, and the. masters of its vessels
that, in view of the fact that the Board was holding an election to
determine whether the I. S. U. or the N. M. U. should represent the
unlicensed personnel of its ships, representatives of neither union
would be permitted on the ships for the purpose of soliciting mem-
bership. The I. S. U. delegate replied that passes issued to I. S. U.
delegates had not been used for the purpose of soliciting member-
ship and I. S. U. delegates continued to visit the respondent's ships.
The evidence does not show that the respondent ever made any at-
tempt to ascertain whether or not the I. S. U. was observing its
instructions against solicitation.
On August 16, 1937, in an Amendment 1 to the Decision and Sup-
plemental Decision in the Matter of American France Line, et al., 2
the Board ordered that no preference should be shown to either of
the unions involved by granting passes to representatives of one
union while denying them to the other or by allowing representatives
of either union to board vessels without passes. Thereafter, on
September 24 or 25, 1937, an agent for the N. M. U. requested passes
to go on board the respondent's ships from Nicholson, the respond-
ent's executive vice president. Nicholson refused to accede to the
request, basing his refusal on the contract with the I. S. U. and the
fact that it would cause trouble on the respondent's ships. The
N. M. U. protested this action to the Board's Regional Director for
the Fifteenth Region, who requested the respondent to issue passes
to N. M. U. agents and delegates in accordance with the Board's
order. The respondent refused and still refuses to issue passes to the
N. M. U. and states that even if the N. M. U. took out insurance on
its representatives it would not issue them passes.
The respondent contends that, inasmuch as it has refused to permit
representatives of either union to solicit memberships on board its
ships, it has treated both unions alike. The facts do not support the
respondent's assertion that similar treatment has been accorded both
unions. As we have indicated, the I. S. U. representatives had access
to the respondent's ships, while this privilege was denied to the
N. M. U. The respondent's issuance of passes to the I. S. U. while
denying them to the N. M. U. is obviously a discrimination in favor
of the I. S. U. as against the N. M. U., which has the necessary effect
of impeding its employees in the free choice of representatives.
We find that the respondent, by issuing passes to representatives
of the I. S. U. :and refusing to grant such passes to representatives
13 N. L. R. B. 74.
2 3 N. L. ,R. B. 64.
242 NATIONAL LABOR RELATIONS BOARD
of the N. M. U. for the same purpose and under the same conditions,
has interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
B. The discharges
The Bienville and the Fairland were freight boats , which also
carried passengers . The Bienville , with a crew of approximately 40,
sailed between Mobile, Alabama , and various European ports, while
the Fairland , with a crew of approximately 30, sailed between Mo-
bile and West Indian ports . The unlicensed personnel of the Bien-
ville unanimously decided in the course of a foreign voyage, which
began in May of 1937 , to change from the I . S. U. to the N. M. U.
and were signed up in the N . M. U. by an N. M. U. organizer at
Tampa, Florida , on July 2, 1937 . The crew then sent the organizer
to the Fairlanul , which had just arrived in Tampa. All but three
members of the unlicensed personnel of the Fairland joined the
N.M.U.
The Fairland arrived in Mobile on July 5, and the Bienville ar-
rived shortly before midnight of the same day . The scheduled stops
of the Bienville at Panama City , Pensacola , and Gulfport were
canceled by the respondent . The crew of the Fairland signed off
the articles on July 5, 1937 , and the crew of the Bienville did so on
July 6, 1937 . When the crews signed off the articles , or shortly there-
after, the steam on the Bienville and the Fairland was killed and the
entire crews were laid off.3
The Bienville was laid up for repairs from July 5 to August 1,,
1937, while the Fairland was put in drydock for 30 hours, during
which time it was inspected and its tail shaft was drawn in accord-
ance with insurance and Bureau of Marine Inspection and Naviga-
tion regulations , respectively. It was then laid up in the shipyard
for about 7 day for repairs . The respondent thereafter refused
employment to those members of the crews who had joined and
remained members of the N. M. U.
On July 8, 1937 , some of the crews of the Bienville and the Fair-
land were put to work in the shore gang, comprising part of a gang
of about 125 men, who were repairing the Bienville . The respond-
ent's witnesses testified that since their shops were open shops they
were able to employ the members of the crews there without violat-
ing the I. S. U. contract . In this respect it is significant to note that
on July 7, 1937 , the day before these men were recalled to work-
on the shore gang, the Board's Regional Director for the Fifteenth
3 There is conflicting testimony in the record as to whether the three members of the-
Fairlend crew, who did not join the N . M. U., were laid off or quit of their own accord..
In either case the sweeping character of the lay-off is not affected.
DECISIONS AND ORDERS 243
Region sent a telegram to Nicholson , requesting him to reinstate all
men to their former status and without discrimination pending the
election . To this telegram Nicholson admits that he probably re-
plied that under the terms of the I. S. U. contract he could not
work N. M. U. men. Although a majority of the men started work-
ing in the shore gang on July 8, Nicholson denied that they were
given such employment as a result of the telegram . However, In-
grain, the respondent's assistant port engineer, admitted that word
was sent specially to the Bienville and Fairland crews that work was
available for them in the shore gang. After working on the Bien-
ville repairs for 3 or 4 days, 10 members of the crews of the Bien-
ville and the Fairland were laid off. There is credible testimony
that there was still work with the shore gang that these men could
have done, but they were not retained. Two members of the crews,
who were laid off from the shore gang, stated that Ingram told them
that they would have to take off their N. M. U. buttons if they
wanted to work for the respondent. Ingram's explanation is that he
merely told them that they could not sail on the respondent's ships
because of the contract with the I. S. U., but such an explanation
obviously has no relation to their lay-off from the shore gang, since
the latter work was admittedly not subject to the I. S. U. contract.
In defense to the alleged discriminatory discharge and refusal
to reinstate the crews of the Bienville and the Fairland, the respond-
ent contends that the discharges were not discriminatory, since the
employment of the crews terminated normally at the conclusion of
their respective voyages, and that the contract between the respondent
and the I. S. U. prevented the reemployment of the crews when the
ships sailed. An analysis of this contention reveals that it is with-
out merit.
The respondent asserts that the whole contract between itself
and its crews is embodied in the shipping articles under which
the crews sail and that the crews are completely discharged and
the employer-employee relationship terminated at the end of each
particular voyage. This assertion is inconsistent with the terms
of the respondent's contract with the I. S. U., Article II, Section 1
of which "provides :
It is understood and agreed that, as vacancies occur, members
of the International Seamen's Union of America, who are citi-
zens of the United States, shall be given preference of employ-
ment, if they can satisfactorily qualify to fill the respective
positions ; provided , however, that this Section shall not be
construed to require the discharge of any employee who may
not desire to join the Union, or to apply to prompt reshipment,
or absence due to illness or accident.
244 NATIONAL LABOR RELATIONS BOARD
The quoted provision, which is the clause relevant to the issues.
raised here, clearly contemplates a continued employer-employee re-
lationship and protects employees against discrimination by the re-
spondent because of non-membership in the I. S. U. The respond-
ent's assertion is also inconsistent with actual maritime practice as
disclosed in the testimony of numerous witnesses, including the
respondent's own witnesses, who testified, in effect, that the mere
expiration of the shipping articles does not terminate the seamen's
employment. Thus Norville, captain of the Fairland, testified that
unless a man resigns or is discharged, he is given an opportunity to
sign on again and that this is the general custom in the industry and
on the respondent's ships. Nicholson testified that, if a crew is sat-
isfactory to the officers on the-vessel and desires to ship again, it
is reshipped. Reed, the respondent's port captain, testified that even
after the crew signs off the men stand their watches unless they
voluntarily quit or are discharged for cause, which indicates the
continuity of the employment.
It is clear from the record that the termination of a voyage does
not terminate the employment of the crew in the absence of other
circumstances. The respondent urges that there were such other
circumstances, namely, the necessary extensive lay-ups of both ships.
While it is apparently true that repairs may have required that
both ships be laid up, our consideration of the record convinces us
that the dates and duration of the particular lay-ups were arranged
for the purpose of making it possible to discharge the crews because
they had joined the N. M. U.
In the first place, the reasons and dates advanced by the respond-
ent's officials for laying up the Bienville are self-contradictory.
Nicholson testified that the respondent purchased steel in May 1937,
for repairing the ship and made plans to repair it when it returned
from Europe on July 5. He further testified that he knew in May
that the ship was to be repaired in July and that the repairs would
take 3 weeks. When confronted with a stipulation, submitted by
the respondent on June 22, 1937,'in the American France Line hear-
ing,4 which scheduled the Bienville to be in Mobile only from July
11 to July 15, 1937, Nicholson admitted that the steel might have been
ordered for the Azalea City, a sister ship of the Bierville. In an
attempted explanation of this discrepancy between his testimony
and the stipulation, he stated that due to a mix-up in schedule, or
because it was more economical, the Bienville might have been sub-
stituted for the Azalea City. Ingram testified that to the best of
his knowledge it was decided to make the repairs, which had pre-
viously been contemplated, while the Bienville was on its return
43 N. L. R B. 64.
DECISIONS AND ORDERS 245
voyage from Europe some time in June. Reed, on the other hand,
testified that as early as April 1937, the Bienville was scheduled
to be laid up for repairs from July 7 to July 30. His information
was based upon a sailing schedule entitled "Sailing Schedule April
thru August 1937." Reed did not remember the other schedule set
out in the afore-mentioned stipulation of June 22 and stated that if
there had been a change in the April schedule he was sure that he
would have been so advised. Thus three different responsible offi-
cials of the respondent, when called upon to explain the course of
action which the respondent had followed, assigned conflicting dates
for the lay-up,of the Bienville.
Comparable contradictions and vagueness are disclosed by the
record in the explanations offered for the lay-tip of the Fairland.
Insurance regulations required that the Fairland be drydocked every
9 months, while regulations of the Bureau of Marine Inspection and
Navigation requiied that the, tail shaft be drawn every 3 years for
inspection. The respondent introduced in evidence a schedule en-
titled "Inspection-Drydocking-Surveys" showing that the Fairland,
in accordance with these regulations, was due to have its tail shaft
drawn on July 10, 1937, and to be drydocked for inspection on July
28, 1937. Reed testified that if the Fairland had gone on another
trip after it docked at Mobile on July 5, 1937, it would not have
returned in time to comply with the regulations. However, as we
have indicated above, the Fairlandd was in drydock from July 5 for
only 30 hours, during which period the tail shaft was drawn and the
insurance inspection, apparently scheduled for July 28, was coin-
pleted. In explanation of the 7-day lay-up for repairs following
the 30-hour drydocking, Nicholson testified that the Fairland ar-
rived in Mobile during the July 4 holidays and that the steam was
"killed" and the crew laid off due to scarcity of business. Nicholson
further testified that 3 or 4 months before the ship left Mobile on
the voyage in question it was decided to clean and paint it. Ingram,
on the other hand, stated that he did not have any plans to tie up
the ship previous to the time it sailed in June and that he was
not positive as to whether the plans were formulated before or after
the ship left Tampa on July 2 for Mobile. Although no schedule
was introduced, Nicholson stated that the ship was behind schedule
and that it was decided to eliminate one trip in order to put it back
on schedule. Reed admitted that it was very unusual to set a ship
back a trip to straighten its schedule.
In conjunction with the divergent and conflicting explanations of
the dates and duration of the lay-ups, it is significant to note that
the respondent stated that both vessels were seaworthy at the time
repairs were made on them.
'246 NATIONAL LABOR RELATIONS BOARD
The respondent denied that it knew of the change in the labor affil-
iation of the crews of the Bienville and the Fairland until after the
•crews were discharged. We cannot credit this denial because the
respondent had at least constructive knowledge and we believe actual
knowledge of the change when it occurred in Tampa. The captains
of the respective vessels certainly knew of the occurrence immedi-
ately, while the boats were in Tampa. Norville, captain of the
Fairland, denied that he had informed the respondent's higher of-
ficials of the occurrence before his boat reached Mobile. The cap-
tain of the Bienville did not testify. However, the cancellation of
the scheduled stops of the Bienville between Tampa and Mobile,
which was never explained by the respondent, indicates that the
respondent knew immediately or shortly thereafter that the crews
of the two ships had joined the N. M. U. in Tampa. The evidence
-establishes that, if not informed by its own officers, the respondent
probably knew of the shift as soon as the ships reached Mobile
through information received from I. S. U. officials. Ross, business
agent of the I. S. U., testified that the I. S. U. agent in Tampa noti-
fied him by telephone that the crew of the Bienville had changed
to the N. M. U. and that, when the ship arrived in Mobile, he sent
a delegate down to it and at -that time made representations to the
respondent about the change. Ross was unable to remember whether
or not the agent at Tampa had notified him of the Fairland's crew
joining the N. M. U.
Moreover, the fact that the ships were laid up for repairs would
-not of itself involve discharging the crews. There is abundant testi-
mony in the record that crews have remained on ships for several
weeks while the ships were undergoing repairs. Lowry, who had
worked in a shipyard off and on for 11 years, testified that he had
seen approximately 600 ships in drydock and that the only ships
he had seen come into drydock without crews are those which had
come out of the laid-up fleet or had been laid up for an indefinite
length of time and that they generally took on a crew while in dry-
dock. The respondent's witnesses testified to the same effect. Thus
Nicholson admitted that the respondent had kept a good part of
the crew on when a ship was in for 7 days, and that it was not cus-
tomary to lay off the entire crew. Norville testified that he had
never heard of another case where the entire crew had been laid off.
Although Nicholson stated that it was impossible to house the crew
on the Bienville while it was being repaired, due to the type of re-
pairs and the lack of steam, this condition would not have necessi-
tated the discharge of the crew. When there is no work for mem-
bers of a crew they customarily stand by the ship, that is, wait until
it is ready to sail again and then sail on it.
DECISIONS AND ORDERS 247
Nicholson claimed that -the major part of the repairs on the Bien-
ville ' could not be made by the crew, but admitted that the crew
could have done some of the work. Indeed, as a matter of fact, some
members of the Bienville and Fairland crews did work on the ship
as members of the shore gang. It will be recalled that the re-
spondent's first act was to discharge both crews immediately and
that work on the shore gang was obtained for them only after the
intervention of the Board's Regional Director. Nicholson stated
that a large number of men were put to work on the ship and the
number cut gradually from day to day. As has been already noted,
however, the members of the N. M. U. were laid off after only 3 or
4 days' work and while there was still work that they could have
done. Although Ingram stated that the work on the Fairland could
not be done by the crew, he admitted that there is always work on a
ship that can be done by members of the crew.
The above facts indicate that, even though the drydocking or
repairs occurred in the normal course 'of operation of the ships, ad-
vantage was taken of the situation to discharge the crews. When
the ships sailed again, the respondent used its contract with the
I. S. U. as a pretext for refusing to reship the crews.
Nicholson defined the term "prompt reshipment" in the I. S. U.
contract as meaning signing on - a crew within 24 to 36 hours after
they are paid off. He testified that he was very familiar with the
term and that it was commonly used in maritime circles, but on
cross-examination admitted that he was giving his own private inter-
pretation of it and that this contract was the only one in which he
had ever seen the term used. The testimony of numerous other wit-
nesses reveals a similar confusion as to the- meaning of the term.
Ships are in the port of Mobile loading and unloading on an average
of from 2 to 4 days and in some cases for as many as 6 days. At
times the crew does not sign on again until the ship is ready to sail.
In the light of these facts it is apparent that the respondent seized
on Nicholson's interpretation of the term as a justification for its
unprecedented conduct in discharging the crews of the two ships
and refusing to reship them.
The circumstances surrounding the discharge of Edmund J. Pelle-
tier confirm our opinion that the respondent decided to discharge
the entire crews to discourage membership in the N. M. U. Pelletier
first sailed for the respondent in 1934. He was chief steward and
chief cook on the- Bienville on the voyage, in which the shift to the
N. M. U. occurred and he joined the N. M. U. in Tampa with the
rest of the crew. When the ship docked in Mobile on July 5, Fagan,
the port steward, went aboard and asked Pelletier if he and his crew
had joined the N. M. U. Pelletier answered in the affirmative. In
the afternoon Fagan sent a new steward to the ship and later came
106791-38-vol vn--17
248 1r1'1`1ONAL LABOR RELATION'S BOARD
aboard himself and discharged Pelletier. Fagan testified that when
the ship was ready to sail on the last voyage before Pelletier was
discharged, Pelletier had asked for another mess boy, although he
had previously assured Fagan that everything was satisfactory in
the steward's department. Fagan also testified that, when he dis-
charged Pelletier, he told him that he would have known that he
lacked a mess boy, if he had had any discipline in his department.
Fagan also claimed that Pelletier seemed unable to retain his men
on another ship of the respondent's on which he was steward.
Pelletier's version of his discharge differs sharply from that of
Fagan. He testified that on the morning of May 5, 1937, he asked
Fagan for another mess boy in the presence of two I. S. U. delegates
and that Fagan and one of the delegates asked one of the members
of the steward's department to do the extra work. When the man
offered to do so, Fagan asked Pelletier if that was satisfactory, to
which Pelletier replied that it was "up to" the I. S. U. delegates.
When the ship was ready to leave Mobile, the crew refused to sail
until Ingram, who was present, promised to have another mess boy
put aboard at Tampa, which was done. Pelletier stated that after
his conversation with Fagan and the I. S. U. delegates, he never
made another request for a mess boy.
As further proof of the incompetency of Pelletier, the respondent
introduced in evidence a letter from the captain of the Bienville to
Reed, port captain of the respondent, stating, in effect, that Pelletier
was incompetent. The letter, however, also stated that, if much
service were given to passengers, the overtime in the steward's de-
partment would be substantial. In his testimony Reed interpreted
this letter to mean that the steward's department had just enough
personnel to give a minimum amount of service. Furthermore,
Fagan admitted that there is always a dissatisfaction in the steward's
departments of ships and that he had received complaints about other
ships on practically every trip. This is virtually the same condition
that Pelletier faced. Fagan, however, did not discharge stewards
on other ships because of such complaints.
Although the respondent contends that Pelletier was incompetent,
he had received a promotion and an increase in pay, which went into
effect at the time of his last voyage on the Bienville.
After his discharge, the respondent refused to pay Pelletier his
overtime, contending that it was too high. 'Pelletier sued for it and
obtained a judgment. In October 1937, he offered to drop his over-
time suit if the respondent would reemploy him. He was told that
he would have to be reinstated in the I. S. U. first. He has since
rejoined the I. S. U. and at the time of the hearing was awaiting
his turn to be called to work.
DECISIONS AND ORDERS 249
The discharge of Pelletier illustrates the discriminatory nature of
all the discharges. The reason advanced for laying off the rest of
the crews would not suffice in his case, inasmuch as it was neces-
sary to keep a steward on the Bienville to act as a watchman, even
though it was laid up for repairs. The very day that Pelletier was
discharged, he was replaced by another steward. * Since the respond-
ent could not with good grace contend that he was laid off because
the ship was being laid up for repairs; a reason for discharging him
had to be sought. The reason given by the respondent cannot be
credited in view of the facts set out above.
Some members of the Bienville and Fairland crews have renounced
the N. M. U., rejoined the I. S. U., and have been given employment
by the respondent. B. H. Ingram and W. Reynolds of the Bienville
crew were employed on ships of the respondent at the time of the
hearing, as were W. Gold, H. Bowen, F. Bodden, E. X. Rhone,
and B. Baptiste, of the Fairland crew. J. E. Gilroy and M. E.
Jones of the Bienville crew, and H. Hall of the Fairland crew, have
secured employment elsewhere.
To summarize, the haste with which the Bienville was hurried
from Tampa to Mobile immediately after the crew's shift from the
I. S. U. to the N. M. U., the almost simultaneous discharge of the
crews and laying up of both ships after their arrival at Mobile, the
failure to retain the crews on other work in accordance with custom,
the reluctant and brief assignment of a few members of the crews
to the shore gang, and, finally, the interpretation of the, at best,
ambiguous I. S. U. contract against the interest of the employees in
question, evidence the respondent's obvious desire to get rid of
the employees who had become members of the N. M. U.
Under all the circumstances we find that, by laying off and re-
fusing to reinstate the employees whose names are listed in appen-
dix A, being members of the crew of the Bienville, and the
employees whose names are listed in appendix B, being members
of the crew of the Fairland, the respondent has discriminated against
them with respect to hire and tenure of employment, has discouraged
membership in the N. M. U., and has thereby interfered with, re-
strained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
C. J. O'Connor was second-assistant engineer on the Azalea City,
and had sailed for the respondent since 1929. During his last
voyage on the Azalea City, the engineers were required to work a
substantial amount of overtime. O'Connor worked this overtime
under protest and had also protested while the ship was at sea for
the, other engineers at their request. The engineers regarded the
overtime as a violation of the terms of the contract between the re-
spondent and the M. E. B. A., of which they were members. The
250 NATIONAL LABOR RELATIONS BOARD
chief engineer of the ship told O'Connor that he would straighten
out the overtime when the ship reached Mobile.
When the ship arrived in Gulfport, Ingram, the respondent's as-
sistant port engineer, boarded the ship, and without request from
O'Connor, told O'Connor to take a vacation when the ship docked at
Mobile, and that he would straighten out his overtime and transfer
him to a coastal ship as O'Connor had previously requested. O'Con-
nor was not entitled to a vacation, but did not know this and left
the ship at Mobile. Ingram testified that at the time he thought that
O'Connor was entitled to a vacation. Although Ingram discovered
within a few days that O'Connor was not entitled to a vacation,
he made no effort to apprise him of that fact. Ingram'stated that
when a man is on a. vacation he notifies the' respondent when he is
ready to resume work, and that O'Connor had not done this. -How-
ever, the evidence discloses that the respondent was well aware of the
fact that O'Connor was ready to resume work. O'Connor testified
that he had met Ingram on the street one day after he had left the
ship and had asked him if he thought that the respondent would give
him employment. Ingrain did not consider this request formal
enough, and indeed, testified that he thought that O'Connor was joking
when he made the request. Moreover, it was customary for the re-
spondent to notify an engineer when his services were wanted, and
in the past O'Connor had been so notified on numerous occasions.
However, O'Connor was never notified or recalled after leaving the
Azalea City, although there were vacancies in the engineering depart-
ments of the respondent's ships.
The respondent alleges that O'Connor was not discharged but
voluntarily left the vessel of his own accord at the termination of
the voyage. The record clearly shows that O'Connor left the vessel
on an approved vacation and was ready to resume work, which fact
was known to the respondent. It is clear that the respondent resented
O'Connor's activity in making the collective protest and did not
recall him for that reason. The contract between the 'respondent and
the M. E. B. A. offered no bar to the type of protest which O'Connor
made while the ship was at sea. Although the contract provided a
method for adjudication of disputes,s there is no indication that the
provision was intended to preclude a collective protest, especially
when the procedure for the amicable adjustment of grievances pro-
vided in the contract was not immediately available while the men
were at sea. In fact, the respondent does not contend that there was
any impropriety in O'Connor's action. Moreover, the respondent does
6 Board Exhibit No 11, Sec 2: "All disputes * * * shall be determined by a
Licensed Personnel Board consisting of, two persons appointed by the Party of the First
Part and two persons appointed by the Party of the Second Part."
DECISIONS AND ORDERS 251
not claim that O'Connor's services were either ,unsatisfactory -or
unnecessary.
We find that the respondent discharged and refused to reinstate
O'Connor because of his participation in the collective action de-
scribed above . We further find that by this act the respondent discour-
aged membership in the M. E. B . A., by discrimination against a union
member for his active exercise of the rights incident to'such member-
ship, and thereby interfered with, restrained , and coerced its employees
in the exercises of their rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in 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
with foreign countries , and tend to lead to labor disputes burdening
and-obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent , by refusing to grant passes
to the authorized representatives of the N. M. U., for the same pur-
pose and under the same conditions as it grants passes to representa-
tives of the I. S. U., has interfered with, restrained, and coerced its
employees . In order to remedy this unlawful conduct we shall -order
the respondent to issue passes in equal numbers to representatives of
both the N . M. U. and the I. S. U., or its successor , under the same
conditions.-
The employees who were discriminatorily laid off are entitled to
reinstatement with back pay. We shall order their reinstatement to
their former positions with the back pay they would normally have
earned, less any amounts earned by any of them respectively in the
meantime. In determining the amount of back pay to be awarded to
each employee, we shall order that the reasonable value of his
maintenance on shipboard , from the time that the ship he was em-
ployed on sailed again after his discharge or lay-off, be added to the
amount of his monetary compensation from the respondent.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. National Maritime Union of America , Engine Division , Mobile
Branch, Mobile , Alabama; Seamen 's Reorganization Committee of
the American Federation of Labor; International Seamen 's Union
of America ; and Marine Engineers Beneficial Association are labor
organizations within the meaning of Section 2 (5), of the Act.
252 'NATIONAL LABOR RELATIONS BOARD
2. The respondent by interfering with, restraining, and coercing
its employees in their exercise of the, rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1), of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of the employees listed in appendices A and, B, and C. J.
O'Connor, and thereby discouraging membership in National Mari-
time Union of America and Marine Engineers Beneficial Association,
respectively, the respondent has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Waterman Steamship Corporation, Mobile, Alabama,
and its officers, agents, successors, and assigns shall:
1. Cease and desist :
(a) From refusing to issue passes to authorized representatives of
the National Maritime Union of America in equal numbers and
under the same conditions as it grants passes to representatives of the
International Seamen's Union of America or its successor;
(b) From discouraging membership in National Maritime Union
of America, Marine Engineers Beneficial Association, or any other
labor organization of its employees, by laying off, discharging, or
refusing to reinstate any of its employees, or in any manner dis-
criminating in regard to their hire or tenure of employment or any
terms or conditions of their employment;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
'other mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Grant passes to authorized representatives of the National
Maritime Union of America in equal numbers' and under the same
conditions as it grants passes to representatives of the International
Seamen's Union of America or its successor;
DECISIONS AND OIIDEIts 253
(b) Offer to the persons listed in appendices A and B and to
C. J. O'Connor immediate and full reinstatement to their former
positions, without prejudice to their seniority and other rights
and privileges ;
(c) Make whole the persons listed in appendices A and B and
C. J. O'Connor for any loss of pay they have suffered by the re-
spondent's discriminatory acts, by payment to each of them of a
stun of money equal to that which each would normally have earned
as wages-including therein the reasonable value of his maintenance
on shipboard from the time that the ship he was employed on sailed
again after his discharge or lay-off-during the period from the date
of such discrimination against each of them to the date of the offer
of reinstatement; less any amount each has earned during that period;
(cl) Post immediately notices to its employees in, conspicuous
places on its docks and on its vessels, and maintain such notices for
a period of at least thirty (30) consecutive days from the date of
posting, stating that the respondent will cease and desist in the
manner aforesaid;
(e) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.
APPENDIX A
Basil Brown 1
M. J. Burgess
James Gilroy 1
Kenneth E. Graham 1
J. P. Hamilton'
Wesley Howard
B. H. Ingram
James M. Jeffries 1
Marlyn E. Jones 1
A. C. King
Herman Lee 1
Archie McWiggen 2
J. B. Morrow 1
Edmund J. Pelletier 1
W. Reynolds
William Rodner 1 "
R. F. Schuettner 1
C. W. (Jerry) Turner
Earl Wilkerson 1
C. W. Wilson
Dudley Beuk 1
Herman Zilberman 1
R. Reynolds
F. Gordy 1
Lopez 1
Lewis Jones 3
1 Spelled in the shipping articles as B II. Prows, J. E Gilroy, Kenneth Graham, J B.
Iiamilston, J M Jefferies, M E Jones, II E Lee, Jos B Monow, E J Pelletier, Wm.
Rodin, Richard Schuettner, E. Wilkerson, D. H Benk, H Zilberman, Pied Goidy, Pedio
G. Lopez
2 Listed in complaint as Bosun on the Btievville; name does not appear in shipping
articles, but name of A McGregor, Bosun, does appear there. Evidently the same
individual
3 Name does not appear on shipping articles ; listed in complaint as member of crew of
F,auland, but appeals on Respondent Exhibit No 21 as member of clew of Bienville;
since motion to conform the pleadings to the proof was granted as to all parties we have
included Lewis Jones in the crew of the Bienville.
254 NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Columbus Anderson
Andrew Benron 4
Fulbert A. Bodden 4
Howard Bowen 4
Eric Butcher
Robert Crawford 4
James Dobbs 4
W. Gold 4
Herbert Hallo
Raymond S. Kettewell4
Otto K. Ortleb
Charles Perkins
Edward X. Rhone 4
Jesse J. Scott
C. E. Smith 4
James C. Stewart
Bennett Bapiste 4
A Spelled in the shipping articles as Andrew Benion, F Bodden , H. Bowen, R . Crawford,
M. James Dobbs , W. R. Gold, H. Hall , R. S. Kettlewell , E. X. Rhone, Claude Smith,
Bennette Baptiste.