Newport News Shipbuilding and Dry Dock Co.

In the Matter of NEWPORT NEWS SHIPBUILDING AND -DRY DOCK COM- PANY AND NORTH CAROLINA SHIPBUILDING COMPANY and INDUSTRIAL UNION, OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. C-2500.Decided March 20,1943 Jurisdiction : shipbuilding industry. Unfair Labor Practices Company-Dontiznated Unions: first organization : fostered and promoted by a supervisory employee for the purpose of combating the organizational threat of an affiliated union, and ceasing its existence when that organization abandoned its activity-second organization : formed at the opening of charg- ing union's campaign ; formation and president thereof accurately forecast by management representative ; assisted by supervisory employees who so- licited employees to join the organization and disparaged the charging union and solicited resignations from it; permitted to maintain literature and appli- cation blanks at strategic spots frequented by employees and to solicit and collect dues on company time and property; rendered financial assistance by advertisements in the organization's paper. Discrimination: discharge of several employees for union membership and ac- tivity ; refusal to employ two applicants for employment because of union membership. Remedial Orders : employer ordered not to grant recognition to illegally assisted and dominated organization and to completely disestablish it;-discriminatorily discharged employees awarded reinstatement and back pay except-one em- ployee who was not ordered reinstated because of excessive absences shortly before his discharge ; employer ordered to offer employment to two applicants discriminatorily refused employment with back pay for the period of the discrimination. Practice and Procedure : complaint dismissed as to one of respondents when its inclusion in the Board's order was not necessary to effectuate the policies of the Act. DECISION AND ORDER On January 15, 1943 the Trial Examiner issued his Intermediate Report in the above-entitled proceedings finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom, and that they take certain affirmative action as set forth in the copy of the _ Intermediate Report, annexed hereto. , Thereafter, the respondents and the intervenor filed exceptions to the Intermediate Report and 48 N. L. R. B., No. 44. 312 NEWPORT NEWS SHIPBUILDING AND DRY DIoCK +Co. 313 briefs in support of the exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Pursuant to notice a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on February 18, 1943. Counsel for the respondents,, the intervenor and the Union partici- pated in the oral argument. The Board has considered the Intermediate Report, the, re- spondents' exceptions and brief, the intervenor's exceptions and brief, and the' entire record in the case and hereby adopts the findings, conclusions and recommendations of the Trial Examiner with the exceptions and qualifications noted below : 1. The Trial Examiner found that Newport News Shipbuilding and Dry Dock Company was an "employer" within the meaning of Sec- tion 2 (2) of the Act, and recommended that an Order be,directed against it as well as against the North Carolina Shipbuilding Com- pany. While we are of the opinion, and find, that the record sup- ports the findings of fact of the Trial Examiner with respect to the business operations and corporate relationships of the respondents, we do not find it necessary, in order to effectuate the policies of the Act, to direct our Order against` Newport News Shipbuilding and Dry Dock Company. Consequently we shall dismiss the complaint as to Newport News Shipbuilding and Dry Dock Company, without determining whether it is an employer within the meaning of the Act. 2. The Trial Examiner found that on July 31, 1942, North Carolina Shipbuilding Company discharged Joseph F. Blake because of his membership in and activities on behalf of Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., and recommended that he be made whole for any loss of pay he may have suffered. The Trial Examiner recommended further that he be offered reinstate- ment to his former or a substantially equivalent position upon timely application after his discharge from the armed services. We agree with the Trial Examiner's findings and recommendations except with respect to reinstatement. The record shows that Blake had two absences in April, 1942, three in May, at least eight in June, and four in July. We believe that in view of his record of absences, the ma- jority of which occurred shortly before his discharge, the policies of the Act will not be effectuated by ordering reinstatement in his case. Accordingly, our order will not provide for Blake's reinstatement. 3. The respondent, North Carolina Shipbuilding Company, in its brief, requests permission to file affidavits to support its contention that,, contrary to the Trial Examiner's findings, Hendricks was not a supervisory employee at the time he engaged in pro-Association and anti-union conduct. The respondent has made no showing that such 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence was unavailable at the time of the hearing, nor has it ad- vanced any reasonable explanation for its failure to adduce such evidence at that time. The request is hereby denied. ORDER. ,Upon the entire record in the case, and pursuant to Section 10' (c) of the National Labor Relations Act, the` National Labor Relations Board hereby orders that the respondent, North Carolina Shipbuild- ing Company of'Wilmington, North Carolina, and its officers, agents, successors, and assigns shall : 1.' Cease and desist from : (a) Discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., or any other labor or-_ ganization of its'employeesor in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) Dominating or, interfering with the administration of Cape Fear Shipbuilders Association, Inc., or with the formation or admin-' istration ' of any other labor organization of its employees and from contributing financial or other support to said Cape Fear Ship- builders Association, Inc., or any other labor organization of its employees; ' (c) In any other manner, interfering with, restraining or coercing ,its employees in the exercise of the right to self-organization, to join or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutal aid and.pro- tection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the 'Board finds will effectuate the policies of the Act : (a) In the event the respondent, North Carolina Shipbuilding Com- pany, has not yet recognized Cape Fear Shipbuilders Association, Inc., as the representative of its employees for the purpose of dealing with it* respecting grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, refuse to recognize the Association as such representative •,' if, however, such recognition has been accorded, withdraw all recognition from the Association as such representative; and in either event, completely disestablish Cape Fear Shipbuilders Association, Inc., as such representative; (b) Offer to Harry B. White; Mack B: Reynolds, Howard L. McGirt, William J. Parker, James E. Scott, and Solomon Hazel immediate and full reinstatement to,their former or substantially equivalent` positions at North Carolina Shipbuilding Company, Wilmington, North Caro- NEWPORT NEWS SHIPBUILDING AND DRY DIOCK CO. 315 lina, without prejudice to their seniority and "other rights and privileges'; (c) Make whole Harry B. White, Mack B. Reynolds, Howard L. McGirt, William L. Parker, James E. Scott, and Solomon Hazel, for any loss 'of pay they may have suffered as a result of the resp'ondent's discrimination .against them, by payment to each of them of a sum of money equal to that which each normally would have received as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during that period; - (d) Make whole Joseph F. Blake for any loss of pay which he may have suffered as a result of the respondent's discrimination against him by payment to him of a sum of money equal to the amount which -he normally would have received as wages from the date of the discrimina- tion against him to the date of his enlistment in the armed, forces of the United States, less his net earnings during such period; (e) Offer. immediate employment to Porter L. Fuller and C. R. Frazier in the same or substantially equivalent positions in which they would have been employed on September 14, 1942, at North Carolina 'Shipbuilding Company, Wilmington, North Carolina, had the re- spondent not discriminated against them; . (f)' Make whole Porter L. Fuller and C. R. Frazier for any loss of pay they may have suffered as a result of the respondent's discrimina- tion against them by payment to each of them' of a sum of money equal to the amount which each normally would have received as wages during the period from the date of the discrimination against him to the date of the respondent's offer of employment to each, less his net earnings during such period; (g) Immediately post in 'conspicuous places throughout its ship- yard at Wilmington, North Carolina, and maintain for a period of at least sixty (60) consecutive days from the date 'of posting, notices to its'employees stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c), of this Order; (2) that the respondent will take the affirmative action set out in paragraphs 2 (a), (b), (c), (d), (e), and (f), of this Order; and (3) that the employees of the respondent are free to become or remain members of Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., and that the respond- ent will not discriminate against any employee because of his mem- Fbership in or activity on behalf of this or any other labor organization. (h) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply, herewith. 316 that the Newport News Shipbuilding and Dry Dock Company of Newport News, Virginia, is responsible for the unfair labor prac- tices committed by North Carolina Shipbuilding Company be, and it is hereby, dismissed. - MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Jacob Blum and Mr. Albert P. Wheatley, for the Board. Skinner and Ferguson, by Mr. Fred H. Skinner, of Newport News, Va., for Newport News Shipbuilding and Dry Dock Company. Mr. Harriss Newman, of Wilmington, N. C., for the North Carolina Ship- building Company. Mr. J. Goodman, Jr., and Mr. Michael E. Shapiro, of Wilmington, N. C:, for the Union.. Stevens and Burgwin, by Mr. John A, Stevens and Mr. K. 0. Burgwin, of Wilmington, N. C., for the Association. STATEMENT OF THE' CASE Upon a third amended charge duly filed on September 29, 1942, by Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its 'Acting Regional Director for the Fifth Region (Baltimore, Maryland), issued' its complaint dated October 2, 1942, against Newport News Shipbuilding and Dry Dock Company, herein called Newport, and North Carolina Shipbuilding Company, herein called North Carolina, and herein jointly called the respond- ents, alleging that the respondents, and each of'them, had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2) and (3), and Section 2 (6) and (7) of the National Labor Relations- Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with notice of hearing thereon were duly served upon the respondents, the Union, and Cape Fear Shipbuilders Association, Inc., herein. called the -Asso- ciation ' The complaint, as amended at the hearing,2 alleged in substance, that North Carolina is a wholly owned subsidiary of Newport which controls and directs its operations and labor policies, and with respect to .the unfair labor practices, that the respondents, and each of them, at the yard of North Carolina, Wil- mington, North Carolina: (1) on various dates discharged and thereafter refused to reinstate seven employees' because of their membership in and activities on 'Peninsular Shipbuilders Association was sought to be served by registered mail at the yard of North Carolina, Wilmington, North Carolina. North Carolina's mail clerk received the envelope and gave receipt therefor. The envelope was later returnd "un- claimed" and unopened to the Regional Office by counsel for North Carolina. 2 On October 24, 1942; during the hearing, the Union filed a supplement to its third amended charge with the Baltimore Regional Office, and on October 28, counsel for the Board moved to supplement the complaint by adding thereto the allegations respecting the refusals to hire Fuller and Frazier. Counsel for the respondents and the Association waived notice and the motion was allowed without objection. 8 White, July 11 ; Reynolds, July 25 ; Blake, July 31 ; McGirt, August 19 ; Parker, August, 25 ; and Scott and Hazel on September 7, 1942. DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTAFR ORDERED that the complaint insofar as it alleges NEWPORT NEWS SHIPBUILDING- AND DRY DOCK- CO. 317 behalf of the Union ; (2) on and after September 14, 1942, refused to hire two applicants for employment ° because they were members of Textile Workers Union of America, C. I. 0.; (3) about August 1, 1941, dominated and interfered with the formation, and thereafter to January 1, 1942, with the administration of Peninsular Shipbuilders Association, herein called the P.'S. A., and contrib- uted financial and other support to it; (4) about July 1, 1942, dominated and interfered with the formation, and thereafter to the date of the complaint, with the administration of the Association and contributed financial and other support to it; (5) beginning August '1, 1941, urged, persuaded, and warned their employees to join and assist the P. S. A. and the Association and threat- ened them with loss of employment if they refused to do so; (6) beginning July 1, 192. (a) urged, persuaded, and warned their employees to join the P. S. A. and the Association and against becoming or remaining members of any national labor organization, especially the Union, (b) threatened them with discharge if they became or remained members of the Union, (c) made dis- paraging remarks to them respecting the Union, its members, and representa- tives, (d) questioned them ; respecting their, activities on behalf of the Union, (e) promised them better jobs and other rewards if they withdrew from the Union and joined the P. S. A. and the Association, (f) advised them that those active on behalf of the Union had been discharged, and (g) closely scrutinized the work and behavior of those- active on behalf of the Union for the purpose of discharging or otherwise discriminating against them; and (7) by such acts and conduct interfered with, restrained, and coerced, their employees in the exercise of rights guaranteed in Section 7 of the Act. - On October 14, 1942, Newport and North Carolina filed their separate answers admitting the allegations of the complaint with respect to their busi- nesses, denying that Newport controls and directs the operations and labor policies of North Carolina, and denying the commission of any unfair labor practices .5 On October 15, 1942, the Association filed its answer denying that it was dominated, interfered with, or supported by the respondents, or either of them.° ' Pursuant to notice, -a hearing was held at Wilmington, North Carolina, from October 15, through November 3, 1942, before the undersigned, Josef L. Hektoen, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, Newport, North Carolina, the Union, and the Association were repre- sented by counsel or representatives, and participated in the hearing. Full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, the undersigned denied the written motion to dismiss, or alternatively to strike, the allegations of the complaint as to it, filed October 14 by counsel for Newport. At the close of the hearing, counsel for the Board argued orally on the record before the undersigned. Although informed of their right to do so, counsel filed no briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : * Porter L Fuller and C R Frazier 5 On October 28, 1942, counsel for the respondents, counsel for the Board having waived written denials, denied on the record the commission of any unfair labor practices with respect to Fuller and Frazier 0 On October 26, 1942, the undersigned ruled that the Association's answer was in the nature of a written motion to intervene and without objection granted such motion as of October 15 . Counsel for the Association participated throughout the entire hearing. 318 DECISIONS OF NATIONAL 'LABOR,- R'E'LATIONS BOARD j 1 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS , The respondent, Newport News Shipbuilding and Dry Dock Company, is a Virginia corporation having its principal place of business at Newport News, Virginia, where it is engaged in the designing, construction, repair, and overhaul- ing of ocean-going and other power-driven vessels. It admits that it is engaged in commerce, within the meaning of the Act, and has been found by the United States Supreme Court to be so engaged.7 The respondent, North Carolina Shipbuilding Company, is a North Carolina corporation having its principal place of business at Wilmington, North Carolina, where it is engaged in the construction of ocean-going and other cargo vessels which, upon completion, and after test runs, are delivered to the United States Maritime Commission by which they are used in interstate and foreign commerce. The principal raw materials, equipment, and supplies used by North Carolina are steel, engines, cranes, lumber, coal, and furniture, all of which are pur- chased and owned by the Maritime Commission, and more than 90 percent of ,vhich are bought and shipped to North Carolina at Wilmington from points outside the' State of North Carolina. During the first ten months of 1942, such materials, supplies, and equipment so bought and shipped had a total value iii excess of $1,000,000 North Carolina admits that it is engaged in commerce, within the meaning of the Act. It. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and Shipbuilding Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations. It admits shipyard workers, including the employees of North Carolina, to membership. Cape Fear Shipbuilders Association, Inc.,' is an unaffiliated labor organization. It admits only employees of North Carolina to membership Peninsular Shipbuilders Association is a labor organization, unaffiliated with either the American Federation of Labor or the Congress of Industrial Organiza- tions, of the employees as Newport. North Carolina Shipbuilders Association was an unaffiliated labor organiza- tion of the employees at North Carolina. III. THE UNFAIR LABOR PRACTICES A. Interference , restraint, and coercion ; domination and interference. 1. The North Carolina Shipbuilders During the summer and fall of 1941, a union affiliated with the American Federation ' of Labor sought to organize employees of North Carolina at the Wilmington yard and to that end distributed pamphlets at the gates. On July 21 , 1941, Wilbur Dosher was hired 0 at the yard through Richard Burnett 10 Dosher testified that Burnett inquired as to his union affiliation and 7 N. L R B. v. Newport News Shipbuilding & Dry Dock Company, 308 U. S. 241. 8 The Association was also sometimes known as Cape Fear Shipbuilding Association and Cape Fear Shipbuilders Association. Variations from the name given above are shown by the record to have been inadvertent. e He did not begin work until July 28, 1941,,however. '*'Burnett and Dosher were old friends. Burnett became employment manager of North Carolina on October 5, 1942. He was an interviewer in the employment office of the North Carolina at the time of his conversation with Dosher. NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. 319' was informed by him that he was an A,. F. of L. member. Burnett denied having made the inquiry and stated that Dosher volunteered the' information. The undersigned found Dosher to be an unusually convincing and completely credible witness, whereas Burnett was a much less impressive one. He therefore accepts Dosher's version of the conversation. On the afternoon of the day he was hired, Dosher, according to his uncontradicted testimony, visited Bruce Cameron," a director of North Carolina, told him of his employment, and was asked by Cameron to make every effort to keep the A.. F. of L. out of the yard.' The record reveals that during 1941, a labor organization described by acting quarterman ' C. B. Langston 13 to employees Dosher and Sam Smythe as "the same thing as the union they had in Newport News,"" and known as the North Carolina Shipbuilders Association, herein called the Shipbuilders, had a brief existence at Wilmington. During August 1941, Langston obtained the member- ships of Dosher and Smythe in the Shipbuilders and about a month later, that of Howard McGirt.1° Each of these employees paid $1 for dues to Langston, who, according to their undenied testimony which the undersigned credits, told them that the purpose of the organization was to "keep the A. F. of L and the C. I. 0. out" of the yard and to "avoid strikes." The record discloses that early in the fall of 1941 a former employee of Newport absconded with the records and funds of the Shipbuilders. When Langston informed Dosher of this fact, the latter vigorously protested the loss of his dues payment. 'As the result of Dosher's protests, Langston consulted Personnel Director J. C. Johnson of North Caro- lina,'-' and acting on that official's order, as he admitted to Dosher, returned the latter's $1 The A. F. of L. ceased its organizational activities late in 1941. Those of the Shipbuilders were abandoned at about 'the same time and that organization, so far as is revealed by the record, went out of existence." 2. The Association a. The Union begins its organizational- drive Late in June or early in July 1942, the Union began an intensive organiza- tional drive in the Wilmington yard and on 'July 6 wrote North Carolina to 11 Cameron did not testify 18 Dosher thereafter discussed unions with other employees in the yard and testified that his father, who was postmaster of Wilmington, told him that Burnett had telephoned and requested him to do what he could to suppiess his son's union activities. Burnett admit- ted the telephone conversation, denied that he mentioned unions, and stated that he merely asked Dosher's father to ask his son to talk less in the yard because the witness believed that "with his background as a mechanic, . . . [Dosher] had a good opportunity to ad- vance." In view of the fact that neither the Board nor North Carolina called Dosher, Sr. as a witness , the undersigned makes no finding based upon this evidence. is The supervisory hierarchy at North Carolina is composed of foremen, assistant fore- men, quartermen , and leading men. All are admittedly spokesmen for the management.. 14 Although he was assistant foreman of the pipe shop at North Carolina at the time of the hearing, Langston was not called as a witness . He is sometimes referred to in the record as Langford 15 Langston is found to have had reference to Peninsular Shipbuilders Association. New- port and the P. S. A. were operating under a collective bargaining agreement at the time of the hearing. 1° McGirt's discharge is discussed infra. 17 Johnson was also assistant personnel director of Newport. He was not called as a witness. , "Inasmuch as'the P. S. A is not shown to have existed under that name at North Carolina, the undersigned will recommend, that the allegations of the complaint with respect to it be-dismissed 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that effect. The latter immediately embarked upon an energetic campaign in opposition to the Union's efforts. About July 8, 1942, Dosher, who became'a leading man in April 1942, received a telegram and letter from the Union asking him to become an organizer and informing him of the time and place of an organizational meeting. Dosher asked K. D. Fernstrom, then general manager of the yard, "what would be the posi- tion of the company" if he joined the Union. He received no answer and on July 10 telephoned Burnett, told him that he was about to "see for myself what the C. I. 0 could offer," and was informed by Burnett that he could do what he wished. Dosher testified, and Burnett denied, that the latter also asked him to attend union meetings and make oral reports to him as to who attended them. The undersigned credits Dosher's testimony and finds that the conversation took place as testified by him. Within an hour thereafter, Burnett called at Dosher's home in a company automobile 1U and obtained from Dosher possession of the communications to him from the Union. Burnett testified that he did so in order to prevent Dosher, who "was noted to have a big mouth," from showing them in the yard. Dosher attended the union meeting that evening, joined the Union, became a special 'organizer,' and thereafter procured the memberships therein of six employees. Shortly thereafter, Burnett drove him home from the yard in his car. Dosher asked Burnett the reason for employee Harry B White's z1 recent discharge. Burnett replied that White was too old, adding, according to Dosher, that he. (Dosher) could also be discharged, and nodded his head in affirmation to Dosher's question as to whether it could have been caused by White's union activities Burnett denied that he gave this warning. For the reasons stated above, the undersigned discredits his denial and finds that the incident occurred as testified by Dosher. Burnett also told Dosher that because the latter was a supervisory employee, lie was acting in violation of the Act in soliciting for the Union, adding that the Union had caused bloody strikes and starvation in the North and that if the Union came into the yard, it would be shut down after the war emergency ceased. Dosher testified, and Burnett denied, that he thereupon showed Burnett the six union applications obtained by him. The undersigned credits Dosher's testimony and finds that he did so. Dosher then told Burnett that lie would return the applications and money paid him .and turn in his organizer's card to the Union.22 He testified without contradic- tion, and the undersigned finds, that Burnett asked him what he would think of an independent union headed by employee Walter Blair." Dosher did not reply. b. The association is formed The Association had its genesis simultaneously with the receipt by North Caro- lina of the Union's letter of July 6, 1942, by which that organization announced 19 This incident occurred during Burnett's working hours. Dosher was on the third shift at the time and left the yard at 7 a. m "-0 The evidence indicates that special organizers were issued cards identifying them as such by the Union and that they were empowered to solicit and receive applications for membership and dues payments from employees of the yard. 21 White's discharge is discussed infra. n The evidence indicates that he did so, and although he retained his membership in it, ceased activities on behalf of the Union. G. W. Croom, called as a witness by the Asso- ciation, testified that Dosher solicited his membership in the Union about October 15, 1942. Croom's incredible testimony on cross-examination and his demeanor on the witness stand, however, caused the undersigned to discredit his testimony respecting Dosher's alleged activities in October. 22 As is more fully discussed infra, shortly thereafter on July 23, such an organization came into being. - Blair became its president. NEWPORT NEWS SHIPBUILDING AND DRIY 'DOCK CO. 321 its activity,-when employees Walter Blair, C. W. Page, M. H. Kelly, W. R. Ely, and J G. Allen 2" met at Page's trailer. They determined to form an independent union of North Carolina employees in order to keep the Union out of the yard. To that end they thereafter about July 15, conducted a meeting of some 50 or 60 like-minded employees at a local hall. In accordance with Burnett's prophetic question to Dosher, Blair, a former mayor of Wilmington was named' chairman. A committee charged with securing the incorporation of the Association was also named, and one dollar membership fees were collected from those who desired to join the organization 25 Counsel were thereafter retained, membership applications were printed, and, according to Page ","several hundred" paid members were obtained from among the employees by about July 20. The Association received its charter as a membership corporation under North Carolina laws on July 23. Its stated purposes were to negotiate and contract with ^ North Carolina on behalf 'of its members respecting grievances, wages, rates of ,pay, hours of employment, conditions of work, "and any and all other matters of mutual interest to its members, the employees of said Company, and the Management" On the evening of July 23, the Association conducted a mass-meeting announced by leaflets distributed at the yard gates by Page and others. Blair presided and read the articles of incorporation. He then introduced one Peterson, whom he identified as the former president and the then business manager of the P" S. A. at Newport, as well as president of the East Coast Alliance, an organization of independent shipyard employee organizations." Peterson urged that the Associa- tion join the Alliance, explained the structure of the latter, and told of the forma- tion of the P. S A. at Newport. Quarterman Hendricks " of North Carolina, who attended the meeting, stated that the Union must, at all costs, be kept out' of the yard. The Association opened a bank account on July 20 with an initial deposit of $150. It paid out, through Page, about $200 in expenses for printing, counsel fees, rent, costs, including $25 to Blair for "special work in Brunswick County" 21, and $50 for Peterson's expenses incident to his Wilmington trip.20 Page testified, that based upon his records and considering that every member thereof paid a dollar, the Association membership was about 700 as of July 25 and that at the time of the hearing, although its balance on hand was about $3,300, and paid expenses about $1,200, the Association had not 4500, but some 7000 members, the excess being accounted for by the written or oral pledges of employees to join it. c. Activities of the Association On July 29, the Association conducted its first recorded meeting. Its constitu- tion and by-laws, prepared in advance, were adopted. On the same day it had a a" Allen was a former-Newport employee. 06 Though the record is not explicit on the point, the Association evidently received its name at this meeting 20 Page was secretary of the Association. The findings respecting its formation and activities are in large part based upon his testimony. n It had been determined by the Association -proponents at the trailer meeting that Peterson be called to Wilmington to "tell us how to get started " Employee Ottie Carroll, a former Newport employee, testified, and the undersigned finds, that Peterson, who did not testify, while a quarternian at Newport, asked Carroll at work to join the P. S. A. At the time of the July 23 meeting, Peterson was devoting his full time to the P. S. A. and the Alliance Also spelled Henrick in the record 20 Brunswick County lies across the Cape Fear River from the Wilmington area. 30 Page explained that he merely "figured just about what his expenses was." 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD second,meeting at which officers were elected and certain committees named. Blair was elected president, and Page, secretary: On August •1, another meeting was held. Page testified that the Association membership was about 2000 at that time and that those at the meeting resolved that the Association notify North Carolina in writing of its existence and mem- bership. Such a letter was thereafter written by Page but the Association re- ceived no reply. He first testified that he could not remember whether he had made a copy thereof and that he did not possess one. Some minutes thereafter, counsel for the Association having meanwhile objected to further questions respecting the letter, produced a document which Page immediately identified as a copy thereof. Page explained that he knew, from sources not disclosed, that North Carolina had received a similar letter from the Union. The letter, dated August 6, stated that it was being sent pursuant to resolution of August 4. The evidence reveals that the Association had no meeting on August 4. Page testified that although the August 1 minutes had been prepared when he wrote the letter, `.`that's an error in my dictation to the stenographer." Although the Association rented a hall from July 17 through August 16 for weekly Tuesday meetings, Page testified that it had no regular meeting date, and held no meetings between August 1 and 18. At a meeting on the latter date, it was voted that a secretary be hired. Page thereafter hired a secretary at a salary of'$20 per week. Page, who produced the Association's minute book at the hearing, could not explain the presence of minutes for a second meeting on August 18, nor their approval on August 25.3' The second minutes indicate that the Association rented a lot about 1000 feet from the south gate of the yard. It thereafter moved a real estate shack easily visible from the yard and bearing the name of the Association prominently, displayed on the roof, onto the lot for use as an office.` Page testified that he personally made all disbursements for the Association because the treasurer, Pritgen,33 "asked me." He further testified that he secured the approval of the Association therefor "at a regular meeting or meet (sic) at my trailer." The Association minutes disclosed approval of no disbursements, however, and only two authorizations : for renting of the lot and office, and for the hire of a secretary. No minutes for meetings after September 29 were in existence when Page testified 84 The evidence indicates that,"regular" meetings of the Association were sparsely attended. On September 22, 19 members were present, and on September 29, only 25. On September 22, 1942, the Association began the free distribution of the "Cape Fear Shipbuilder", a weekly newspaper, to its members. Arrangements were made therefor by Blair with the "Wilmington Post", a local newspaper, which, in consideration of $200 weekly revenue from advertising to be procured by members thereof, undertook to print and distribute 3000 to 4000 copies of the paper to its members without expense to the Association. The first issue con- tained a prominent advertisement of Director Cameron's Wilmington firm. F. E. White, clerk in the fitter's office was appointed managing editor. His sole duties were to collect gossip and personal items concerning the employees in the yard which he then sent to the managing editor of the "Post." In procuring his, ma- 31 He testified that he was not present at all meetings , and that when he was not, no minutes were kept. 32 The Association leased the lot and shack at a rental of $20 monthly. 1! Pritgen was bonded, the premium paid being $112.50 ; he signed all checks of the Association. u He stated, "I may have some minutes somewhere, some notations." 'NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. 323 ,terial, White had the assistance of many supervisors of North Carolina who took an active part in its collection and expressed interest in its publication to White. The Association paper carries the syndicated material of Drew Pearson and Walter Winchell, as well as many columns of news articles, the source of none of which was known to Wliite.3' The North Carolina Shipbuilding Athletic Association advertised in the "Cape Fear Shipbuilder." 3Q It was sponsored by the Progressive Club, a social organ- ization of supervisory employees below the rank of foreman.37 Foreman L. E. Keith, formerly of Newport, became manager of the Athletic Association ball team and played on it, as did one of his quartermen. That Association also sponsors weekly boxing matches, as well as basketball, and baseball teams in all of which activities supervisors of North Carolina participate. Keith testified that the supervisors "should help out .. .-because it keeps good feeling [be- tween the employees and themselves] going." The record is silent respecting any activities by the Association disclosing that it at any time sought to accomplish the purposes stated in its charter., So far as it disclosed by the record North Carolina has not recognized the Association as the exclusive bargaining agent of any of its employees. d. Continuing opposition to the Union ; aid to the Association , North Carolina's campaign against the Union and in favor of the Association continued at all times after the formal organization of the latter and was being waged during the,hearing. I Employee Eugene Hill testified without contradiction, and the undersigned finds, that "about the time when the C. It O. was organizing," "Doe" Lee, "head rigger," n detained Hill and the other leaders of his department after lunch, told them to endeavor to cause the employees under them to "follow the company idea, the Cape Fear union," and made statements hostile to the Union. The meeting lasted 15 or 20 minutes and although it occurred during working hours, no reprimand from any source was forthcoming." ' Employee Dosher testified without denial, and the undersigned finds, that about July 20, as he was going off work in the morning, J. E. Pulley, assistant foreman who was coming on, hailed him, "Hello, Communist. How is the Com- munist Industrial Organization getting along?" and added that he did not "want any C. I. O. bastards on his shift." Employee Edward H. Carroll, formerly of Newport, testified without denial, and the undersigned finds, that during July, quarterman W. J. Kincaid, also formerly of Newport, told him that the Association and the P. S. A. were "the same thing," was informed by Carroll that the latter was not interested, was a member of the Union, and "When I'm a member of anything I'm hard." Kin- caid told him "Well, I'll see how hard you are whenever I get you over on "A copy of the "North Carolina Shipbuilder," organ of North Carolina , exhibited at the hearing, carried an editorial by Harry H. Curl. The October 22, 1942 , issue of the "Cape Fear Shipbuilder" carried material similarly placed entitled "Curl's Column" as well as an article on the war by Harry Curl. 3o According to the first issue of the "Cape Fear Shipbuilder," the paper was "warmly welcomed" by the Athletic Association. III A similar 'organization , the May Club, composed of foremen , also functions at North Carolina. Both were modelled after their counterparts at Newport. I Is The evidence establishes, and the undersigned finds, that Lee acted in a supervisory capacity. 89 Hill testified that Quarterman McClellan could hear their conversation from his office. The evidence indicates that McClellan was aware of their presence but not of the substance of their conversation. The undersigned so finds. 521247-43-vol. 48-22 324 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD my boat." Employee 0. J: Carroll, also formerly of Newport, similarly testified, and the undersigned finds, that about September 1, Kincaid asked him if he had joined' the Association, received a vehement answer in the negative, told him that the *Association and the P. S. A. were "just alike," and upon Carroll's stating that he was not interested, said, "If Richardson 4° would hear you make that statement he would fire you so quick it would make your head swim." During the latter part of July, "Pop" Spire," leading man, told employee McGirt, according to the latter's undenied and credible testimony, that if he consulted. Blair, the dollar he had paid to Langston for the North Carolina Ship- builders Association would be good for membership in the Association, and told employee Smythe that be was himself joining the Association and that Smythe, who had also given a dollar to Langston, could get it back from Blair. Employee Eddie Underwood testified that on July 23, quarterman Sidney Hewett asked him to join the Association "to keep the C. I. 0. out" of the yard, and that he had best do so if he knew what was good for him. Hewett denied the conversation. Employee James Beatty testified that on the same day, 'Hewett addressed the members of his gang, told them to bring a dollar each the next morning for "the company union"' in order to keep the C. I. 0. out of the yard, and warned them that if the Union came in the employees would lose their jobs. Hewett did not specifically deny the statements attributed to him by Beatty but testified that he had never asked any employee to join the Association. In view of all the circumstances revealed by the record, the fact that Hewett's statements were stated to have been made on the day of the Association's formal organization and mass-meeting, and because he found both 'Underwood and Beatty to be credible witnesses, the undersigned is convinced and finds that the events transpired substantially as testified by them. On July 25, a group of about 15 employees gathered, at lunch time 43 in and about a material shack in the yard.44 They talked about unions generally. At 11: 05 a. in., upon the suggestion of employee B. M. Rich, employee Boyd Lott .called employee Sammy Sampson on the company telephone 48 and asked him to interrupt his lunch in order to give those present information respecting the 'Association. Sampson promptly appeared at the shack, explained the details of the Association, and according to the undenied testimony of employee Need- ham Jackson, which is accepted as true by the undersigned, stated that the Association "wasn't anything except to keep the C. I. 0. out." Sampson there- after designated Fitzgerald, to whom' he gave a number of blanks, to take Association membership applications from those present. Fitzgerald, who him- self joined the Association at this time, thereafter procured applications from most or all of those present. Jackson testified that quartermaii W. L. Carter was present • during the incident, and that in response to a question from an employee he told those 40 D M. Richardson was then "personnel manager" at North Carolina. 41 Spire had charge of six employees engaged in assembling pipe for testing. He is found to have represented the management to the employees. He is sometimes referred to in the record as Spears 4Y Hewett is found to have had reference to the Association. 43 The lunch period was from 11 to 11 : 20 a. in. 44 The shack was in charge of J J. Fitzgerald, who had a helper and a "chaser" under him. Supervisory employees gathered there, ate lunch in or about it, and were "around there all day." 45 Sampson was a material clerk and it was "talked over the yard" that he was an Asso- ciation proponent. 4e Fitzgerald explained that this was the only occasion upon which it had been used for non-company business. NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. 325 gathered at the shack "that if they joined the Union they were liable to be fired" and in substantiation of this statement, called their attention to the case of an employee who had been discharged that morning." Carter denied being at the shack at the time in question ; Fitzgerald testified to the same effect ; Lott, who had asked Carter about unions earlier the same day and been told that he could do as he wished, first testified that he did not "think" Carter was present, but became certain that he was not on cross-examination ; Rich "didn't see him." In the light of all of the circumstances revealed in the record, including Jack- son's testimony to the effect that Carter stated at the meeting that he could not express his personal opinion respecting unions, a position consistent with the remarks attributed to him by Jackson, and quoted above, the undersigned is persuaded and finds that Carter was in fact present at the meeting and spoke substantially as testified by Jackson. Employee Walter Jackson, testified that during the latter part of July, quarterman W. E. George, told him while he was at work on a ship, that if he did not join the Association he would lose his job since in the event that the Union succeeded in organizing the yard, a strike would ensue. Jackson told George that he would think it over and joined the Association on the following day.48 George did not specifically deny Jackson's testimony, but stated that he had not talked to those under him respecting the Union nor urged them to join the Association. The undersigned found Jackson to be, a credible witness and in the absence of a direct denial of his testimony, and in the light of all of the circumstances revealed by the record, finds that the events transpired substantially as testified by him. Employee William Withers testified without contradiction, and the undersigned finds, that about July 27, quarterman Thorpe 49 told him that he would get increased pay more quickly by joining the Association than through the Union which, he stated, would in any event not come into the yard until 2 or 3 years later. Two or three weeks thereafter, Thorpe told Withers that North Carolina would cease operations rather than have the Union in its yard. - During the latter part of July, quarterman George Judge,5° according to the undenied testimony of employees H. A. Saunders, Leon Parker, and David Pringle, which the undersigned accepts as true, called his shipwright gang together in the yard, told them to join the Association in order to keep the Union out, made disparaging remarks respecting'the Union, and told them that if they joined the Union they would be drafted and lose their jobs or work. Pringle gave Judge a dollar and later received an Association membership card from him while working. Judge warned Saunders, who had no money at the time, "If you don't join you will have to go out the gates." Saunders- gave Judge a dollar on the next pay day and received a membership card which was delivered to him in the shipwright's office. Parker, who did not pay at the time, was several days later called off the ship on which he was working and instructed by Judge to produce his dollar. He "went out and got him a dollar" and received his membership card. Leading man Ernest Williams, a union member, testified without denial, and the undersigned finds, that during the summer of 1942, leading man James Murphy demanded and received from him several union membership cards of employees 4' Mack B Reynolds, a union member, was discharged on July 25. Carter is found to have had reference to his discharge, winch is discussed infra. 48 He later joined the Union and was a member thereof at the time of the hearing. 49 Thorpe was not called as a witness. 69 Judge was not called as a witness. 326, DECISIONS- OF NATIONAL LABOIR RELATIONS BOARD whose applications-Williams had obtained.51 Williams explained that Murphy, who was not called as a witness, thereafter issued such employees memberships in the Association without further cost, their payments to the Union being credited to them by the Association for membership therein. Employee Benjamin Canty testified that quarterman M. E. Price approached him in the yard ashe and another employee were talking about the Union and told Canty not to permit anyone to "fool" him into the Union, that it caused strikes, and that if it came into the yard, North Carolina would suspend operations within 2 years and the employees would lose their jobs, whereas he, Price, could return to work at Newport where he had formerly worked in a supervisory capacity. Price denied the statements attributed to him by Canty, stated that the latter "had "had something else in mind", that he had unbraided him for allegedly claiming as his own piece work performed by others, and that in that connection he told Canty that if North Carolina could not build ships as cheaply as yards elsewhere, it would cease operations and the employees would lose their jobs. He further testified that although Canty allegedly claimed the work of others two or three times a week, he had spoken to him on only one occasion in August 1942, that Canty had not been discharged therefor, and that but for his transfer to another department, Canty would have been working for him at the time of the hearing. The undersigned found Canty a thoroughly credible witness. He found Price, on the other hand, to be a confused and unreliable witness who obviously manufactured his unbelievable story for, the purpose of denying Canty's testimony. The, undersigned finds that Price spoke to Canty substantially as testified by the latter. The evidence shows that the Association habitually kept supplies of ap- plication forms and announcements strategically disposed on the counters in the main, or south-side, tool-room,62 the store-rooms, and the pipe shop, all places of necessity frequented by the employees. Open solicitation for the Association during working hours frequently occurred in these places. Employee Smythe testified without denial, and the undersigned finds, that during working hours employee Ernest Wright delivered an, Association mem- bership card to a fellow employee to whom Foreman L T. Hancock was talking at the time and that Hancock mada no objection. Employee Osborn Burton, who was a member of the Union at the time, testi- fied that prior to the time he ceased work for North Carolina on August 23, 1942, leading man Ernest Sims during working hours, called him off his job to talk to Tom Lee,53 a clerk and tool-checker. Lee took Burton down "by the river" and gave him a strong anti-union talk and urged him to join the Associa- tion,b4 stating that "we" were endeavoring to keep the Union out of the yard,' that Burton would not need to pay a fee- to join the Association, and that he would speak to Foreman D- N. Hyatt about a raise for him if he joined it. Bur- ton, despite Lee's requests that he do so, reiterated on the succeeding 2 days, did not join the Association and told Lee that he would remain in the Union. On August 25, Foreman Hyatt transferred Burton from his job as driller to the "trash' gang." Burton protested his transfer to Hyatt and D N. Cabe, a super- 51 Williams could give no explanation as to why he readily complied with Murphy's' request. - 52 Blair, president of the Association, was clerk in the tool-room. 11 Lee also distributed United States war bonds weekly to the employees who'had sub-, scribed for them, and took their receipts therefor. 5' The conversation lasted about 20 or 30 minutes. Burton lost no pay in consequence of his absence, nor was he reprimanded by Sims. NEWPORT NEWS SHIPBUILDING AND DR-1 DOCK CO. , 327 visor, in the drilling depafrtment, on the ground that he was qualified to do work requiring greater skill. Cabe referred him to his assistant from whom Burton got no satisfaction. In consequence of the transfer, he resigned and was work- ing at a shipyard in Philadelphia at the time of the hearing. Sims denied that he told Burton to see Lee, and the latter, although he admitted having asked Burton to join the Association, denied that he had consulted Sims about him and that he told Burton that he would speak to' Hyatt about him. Sims admit- ted on cross-examination, however, that he had asked various employees to see Lee concerning their tools and that they had consulted with him' for as long as 15 minutes. Hyatt gave a confused and implausible account of why Burton was transferred from his job as driller."' Cabe, who was called as a witness by North Carolina; did not testify respecting Burton. Under all the circumstances revealed by the record, particularly the chro- nology of events leading to his transfer, the unsatisfactory explanation of the reasons therefor, and the impressive testimony of Burton, the undersigned is convinced and finds that the events transpired as testified by him'.' On October 23, 1942,66 about 4 :30 a. in, while employee William Wright, a stu- dent in, the welding school of the yard, was at work, Cooper, his instructor and superior, told Wright to get his gloves and shield,, and come with him 67 Cooper took him into the office of the welding school, introduced Wright to a Mr. Ellis who Was seated behind a desk in the office, and thereupon withdrew. Ellis, with whom Wright was not otherwise acquainted, told him that North Carolina had "taken notice" of his wearing a union button in the yard and of the fact that he had previously testified in the instant hearing; that since Wright was a "young fellow," the company desired to give him an opportunity to "get straightened out" ; informed him that if the Union became established in the yard, Negro instructors would be installed over white employees, that North Carolina had organized the Association in order to keep the Union out of its yard, and finally, that he, Ellis, had personally, "straightened out" some 50 welders who had formerly been union members and had caused them to join the Association. Wright declined to change his union affiliation, the 20 minute interview came to an end and Wright returned to work. Ellis was not further, identified by any witness. On the last day of the hearing, counsel for North Carolina introduced into evidence a letter to him from General Manager Halsey in which the latter stated that after being informed of Wright's testimony, related above, he had found, upon investigation, that the activities of Instructor Cooper-and of•Ellis, whom he described as "an hourly employee in the Welding Department . . . and .. . in no sense a supervisor or instructor," were "highly improper," and that he had disciplined them by suspension without pay for 1 week. The evidence reveals that in his capacity as instructor, Cooper represented the management to the employees under his supervision. His action in remov- ing 'yright from his work and closeting him with Ellis was obviously an overt undertaking by Cooper in furtherance of North Carolina's campaign to destroy the Union. Under all of the circumstances revealed in the record, the singularly "He also testified that drilling is a skilled job, that Burton was a better than average driller, that the department was normally behind schedule at the time of Burton 's trans- fer to an unskilled job separating bolts and salvaging material , and that there was always drilling to be done. 56 During the,heaiing. , 57 The findings respecting this incident are based on Wright 's'uncontradicted and entirely credible testimony. Neither Cooper nor Ellis was called as a witness. 328 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD, 'malevolent remarks made by Ellis to Wright must also be considered to be a part of the company's anti-union course of conduct, the responsibility for which must clearly be borne by it The undersigned finds that by the'activities of Cooper and Ellis, North Carolina interfered with, restrained,, and coerced- its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Concluding findings The Shipbuilders was fostered and promoted by Langston, a supervisory em- ployee of North Carolina; as an organization similar to the P. S. A. at Newport, for the purpose of combating the A. F. of L's organizational threat at Wilming- ton. Although the record indicates that it had but a brief career, the Ship- builders was clearly and completely dominated by North Carolina and the undersigned so finds. The Association sprang to life simultaneously 'with the opening of the Union's campaign in the yard. From its inception it had the aggressive aid and assist- ance of supervisory employees of North Carolina, and as related above, its formal organization and the fact that Blair would be its head, were accurately forecast to Dosher by Burnett. Throughout its formative period and at all times thereafter, numerous supervisors solicited employees to join it, disparaged the Union and solicited resignations from it, the underlying motive in the entire campaign being to "keep the C I. 0. out." The Association was permitted openly to maintain literature and application blanks at strategic spots in places fre- quented by employees in connection with their work, and open solicitation and collection dues for the Association on company time and property were permit- ted, encouraged,' and engaged in by supervisors. The presence of quarterman Hendricks at its organizational meeting and his statement that the Union was to be kept out of the yard at all costs, epitomize North Carolina's relation to the Association from its birth and throughout its life. The Association received financial support from North Carolina by the advertisements in its newspaper of Director Cameron's firm and of the Athletic Association oe The domination of the Association by the respondent is patent. The evidence thereof requires no further comment. The undersigned, upon the entire record, finds that North Carolina has dom- inated and interfered with the formation and administration of the Shipbuild- ers and the Association and contributed financial and other support to them. The undersigned further finds that by these acts and by urging, persuading, and warning its employees to join the Shipbuilders and the Association, threat- ening them with loss of employment if they did not (1o so and warning them against becoming or remaining members of the Union, threatening them with discharge if they did so, making disparaging remarks respecting the Union, questioning them respecting their activities on behalf of the Union or member- ship therein and in the A. F. of L.,, and advising them that those active on be- half of the Union had been discharged, North Carolina has interfered' with, restrained and coerced its employees in the exercise of the rights'guaranteed in Section 7'of the Act. 68 Halsey and numerous other supervisors testified that the supervisory force had been instructed to maintain complete neutrality as between the Union and the Association. Although the actions of the supervisors named above, may have been in violation of its orders, they nevertheless constituted unfair labor practices by North Carolina Solvay Process Company v N. L. R. B., 112 F. (2d) 83 (C. C. A. 5), cert. den. 313 U. S. 596. NEWPORT NEWS SIHPBTTILDING AND DRY DOCK CO.. 329 B. The discriminatory discharge Harry B. White b9 was employed as a shipfitter in November 1941, at $1.12 per hour. He became an instructor over some six employees early in 1942. In March 1942, he became all inspector of frames at a furnace with an increase in pay to $60 per week. After about 3 months, White was out of the yard for about 2 weeks with foot trouble. On his return he was made a leading man over some 10 or 12 employees building masts. He remained on this job for about 6 weeks, and at the time of his discharge on July 11, 1942, he was "making forms" with two employees. At that time he was receiving a supervisor's pay but, according to Assistant Foreman J. G. Miller, "wasn't doing any supervising." The record-reveals that while North Carolina occasionally utilized White as an instructor and minor supervisor so as to give unskilled employees the benefit of his long experience, he did not, in fact, serve in a fully supervisory capacity, and was not regarded as a supervisor by the employees. The undersigned so finds. On July 8, White joined the Union and became a special organizer at a union meeting,held the same day. White, who had, been a retired member of the C. I. 0., addressed the meeting and urged that the men "run it [the Union] themselves." On July 9, White informed Foreman Miller of his action of the previous night and stated that he "would have no active part in the Union." Miller told him that unions were "no good." On July 10, Foreman Maynard told White that his union activity "had been talked over in the office." B0 On July 11 White was talking to an employee at work while awaiting delivery of a, part necessary to their job. General Manager Halsey appeared and asked White what he was talking about, stating that he "wanted this talking in the yard" stopped. White explained that he had been talking about "shipbuilding" and said that he had "organized" his work so as to facilitate its speedier com- pletion. Halsey immediately asked White what kind of an "organization" he had reference to. About an hour later White was discharged by Foreman Fred A. Kean because he was "unsatisfactory as a supervisor." The respondent contended'at the hearing that White was a slow and inefficient employee. The record, however, reveals that he received several promotions and that his pay was increased during the term of his employment. The undersigned therefore finds this contention to be without merit. The chronology of events and the statement of Burnett to Dosher, related above, that White had been discharged for union activity, in conjunction with the failure of the respondent's contention as to White's alleged inefficiency, lead inexorably to the conclusion that White was discharged, riot" for the reason given him, but because of his union membership and activity.. The undersigned so finds. - Mack B. Reynolds began his, employment with North Carolina as a machinist on December 28, 1941, at 96 cents per hour and at the time of his discharge on July 25, 1942, was earning $1.12 per hour. During February or March 1942, Foreman R. J. Gregory told Reynolds that he would like it if he would speed up his work a bit. During the spring, the employees with whom Reynolds "White was 69 years of age at the time of the hearing and when employed by North Carolina had had 56 years experience in shipyards. He was employed, despite his age, at the insistence of Foreman Claude Maynard, who testified that he told the, employment office, at the time, "If he knows anything about shipfitting and he can walk let me have him because I need him." '" Neither Miller nor Maynard denied the statements attributed to them by White. 330 -DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD worked began -discussing their 'pay and expressed dissatisfaction with their current rate. Reynolds "recommended the C. I. O. to them." On July 24, he joined the Union and became a special organizer, following which he solicited employees to join the Union on his own time. On July 25, Quarterman Falls told Reynolds that there was "quite a bit of dissatisfaction" in the department, that many employees had asked for increases in -pay, that this movement had been traced back to him, and that Reynolds would therefore be discharged .'l ,On July 27, Reynolds was discharged "for unsatisfactory work." Several witnesses called by North Carolina testified that Reynolds' work was slow and that he spent more time than that required by -less experienced em ployees on the same job. Gregory testified that Falls complained to him of Reynolds' work and that he promptly replied, "If that is the case . . ., we will terminate him." It is undenied, however, that during May 1942,, Falls told Reynolds "... we are turning out our work faster and things are working better." Furthermore, about two weeks before his discharge, Reynolds was transferred to a task requiring greater skill than that at which he had previously tieen employed. The chronology of events, the statement by Quarterman Carter to the' em- ployees gathered at the material shack on the morning of Reynolds' discharge • ,,that the latter had been dismissed because of his union membership, and all of the circumstances revealed in the record, combine to convince the undersigned that the reason given by Falls for Reynolds' discharge was the motivating cause therefor and that his allegedly unsatisfactory work was not. Since the "dissatis- faction" for which Reynolds was found responsible was obviously the result of his legitimate union activities, it is clear that the respondent discriminated against him in violation of the provisions of the Act. The undersigned so finds. Joseph F. Blake began work for North Carolina in February 1942 as a tack welder in the shipwright department. He joined the Union on July 11, 1942, and became a special organizer. He was thereafter active in soliciting em-, ployees during his free time. During the third week of July, F. E White, clerk in the fitter's department and later managing editor of the Cape Fear Ship- builder, organ of the Association, "slipped out of the office for a bit" and went upon a ship to solicit for the association. He' addressed a dozen or more em- ployees on the evils of the Union and the advantages of the Association. During the course of his remarks, Blake appeared on the' scene, made a counter-statement in favor of the Union, and remonstrated with White for preventing the men from attending to their work. White thereafter obtained applications for mem- bership in the Association from a number of those present. Blake testified, and the undersigned finds, that two or three leading men, was present during the incident and that during the lunch hour later the same night, one of them asked him to join the Association. Later during the same shift, quarterman N. R. Jones, to whom leading man Steel had reported Blake's earlier purported agita- tion for the Union, asked Blake, ". . . what is this I hear about you agitating ' ,in favor of the C. I. O.... From now on you stay on the job and keep your nose clean." On July 30, Blake was ill and was attended by his father, a physician in Chadbourn, North Carolina. On July 31, he was discharged for "non-attendance" by Foreman J. E. McClary, who also stated in'his "termination order" that Blake's work was unsatisfactory.82 ' Fails, although in the employ, of North, Carolina at-the time of the hearing, was, not called as a witness. 12 Blake was a member of the United States Marine Corps at the time of the hearing. NEWPORT NEWS SHIPBUILDING AND DRY: DOCK CO. 331 Blake was transferred to the third shift about July 1, 1942. On July 6, he re- ceived-a third and individual increase of six cents per hour." Leading man J. C. Alexander testified that he twice on consecutive nights caught Blake asleep bn the third shift, told Blake to go about his work and reported the second occasion to Jones, who reprimanded Blake, and also to E. S. Moore, night super- intendent. Blake denied being asleep. The undersigned concludes and finds that although Moore and Alexander gave somewhat inconsistent testimony on the point, Blake was in fact found asleep by Alexander. _ On July 29, Blake was transferred by Foreman McClary to the day shift for "another trial," his performance on the third shift having allegedly been unsatisfactory.' He explained that although Blake's attendance record had included four consecu- tive unexcused absences during June, 'I didn't do anything at all about it," that Blake's three unexcused and not consecutive absences during' July were "not unusual," and that the moving cause of his discharge was his unexcused absence one July 30. On July 31, Blake, according to his testimony, exhibited to McClary a certificate from his father to the effect that his absence had been caused by illness. Representatives of North Carolina in its employment office to whom he thereafter also presented the certificate, told him, according to his 'undenied testimony, that it "made no difference whatsoever." McClary denied having seen the certificate and after first testifying that he had not talked to General Manager Halsey respecting Blake, admitted, after being shown a letter from Halsey to the Acting Regional Director of the Board, that he had in fact, spoken to ITalsey.4 The letter stated that Blake had exhibited the doctor's certificate to excuse a purported absence on a day other than that for which it was written, and otherwise contains numerous errors of fact. Since it con- clusively appears therefrom, however, that Blake's testimony respecting the pres- entation of the certificate was correct and since it further clearly appears that McClary contradicted himself with respect to his conversation with Halsey con- cerning Blake's certificate, the undersigned rejects McClary's denial that he had knowledge thereof. Under all of the circumstances revealed by the record, the extraordinary action of North Carolina in dismissing him from his employment because of absence caused by -illness, must be attributed to its anxiety to rid itself of Blake on account of his well-advertised membership in and, activities on behalf of the Union. The undersigned so finds. - , Howard McGirt was employed by North Carolina in August 1941. He joined the Union on July 24, 1942, became a special organizer on the same day, and was thereafter active in soliciting membership among the employees. He testi- fied without contradiction, and the undersigned finds, that he did so at lunch time in the presence of Foreman Lee Hancock and of Langston; his assistant'5 About mid-August 1942, McGirt told Hancock that his ex-wife was seriously ill. and -that he would have to have a day of-to care for her. Hancock refused, and according to McGirt's undenied testimony which the undersigned credits, asked him, "what was one woman to five thousand or_five million men." On August 17, his former wife'sicondition became critical and on that night or the following day, McGirt took her to a hospital. She was in "premature labor" ^e Blake began work at 50 cents per hour and was earning 86 cents per hour at the time of his discharge on July 31. 61 The letter, dated September 23, 1942, was in response to a request for North Carolina's position on Blake's discharge as Hancock , asked on cross-examination by counsel , for the Board, "Never saw him (McGirt )' soliciting members on the job ?" (emphasis supplied) answered in the negative. Langston, as related above, did not testify. - 332 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD on August 18, and was operated upon by a local physician' on August 19 " Mc- Girt did not report for work on August 18, and when he did so on August 19, he was discharged "for disobedience of orders and ... your work and attendance were unsatisfactory to your foreman." McGirt first worked under Foreman O. C. Staples in the plumbing department. He received two increases in pay and did satisfactory work. Staples and quarterman L. E Herrolson, testified that about January 1, 1942, however; McGirt began to lose interest in his work, loaf on the job, and indulge in exces- sive conversation with other employees. Herrolson admitted, however, that McGirt's actions were not such as to warrant his discharge. About February 1, McGirt was transferred to quarterman S. T. Pitchford where he remained until March 5 Pitchford criticized McGirt's work and stated that he gambled. Assistant Foreman O. W. Turner, however, testified that McGirt's work was satisfactory during this period, stating "I know the way he was doing it was O. K." On March -5, MeGirt, at his own request, was transferred to the pipe shop under Foreman Hancock. The latter testified that his reasons for discharging MeGirt were his disobeying orders by not reporting for work on August 18, and his absences 67 During the time he worked under Foreman Staples, McGirt once had 'eight consecutive absences., The result was a warning During July 1942, he had three consecutive absences, one on August 9 and an excused absence on August 16 Hancock was unable to explain his having seized upon McGirt's August 18 absence, necessitated by an emergency, to discharge him. Ile testified, "I don't like to fire anybody, everybody has to work, and I figured McGirt had to work, and I tried- to keep the boys as much as possible, and to give the boys as much a chance as I could," and that he had previously spoken to Mc- Girt "a number of times and asked him to do better." Hancock denied knowl- edge of McGirt's union membership and testified that his knowledge of both the Union and of the Association was confined to rumors. In the light of all the evidence revealed in the record, including McGirt's overt activities on behalf of the Union, the undersigned is convinced that North Carolina had knowledge of his membership therein, and so finds." The undersigned is also convinced that the extraordinary penalty meted out to McGirt for his necessitous August 18 absence, when contrasted with North Carolina's previous leniency on the occasion of his far more serious breaches of attendance, can be explained only by its desire to rid itself of him because of his union membership and activity. The undersigned so finds. William J. Parker began his employment with North Carolina in December 1941, on the clean-up gang.. During his employment he received, at least one individual increase in pay as well as one or two general raises. He joined the Union about mid-August 1942. On August 21 he informed quarterman E. E. Edwards' that he would be 66 The physician's certificate so reciting is in evidence. m Hancock further testified, and McGirt denied, that be had on occasion found McGirt under the' influence of liquor in the yard Inasmuch , however, as the record reveals that this purported condition did not influence North Carolina's decision to discharge McGirt, the undersigned makes no resolution of this conflict in the testimony. 68 McGirt testified, without contradiction, that shortly before his discharge, he told' Supervisor Spire in the tool-room that he was not interested in "signing",for membership in an organization which he had previously joined without receiving a receipt for his dues, - and that the organization about which they were talking, which the undersigned finds to have been the Association, was "bound to be the same darn thing " 66 Although Parker testified that he could not recall his name, the evidence reveals, and the undersigned finds, that Edwards was Parker's quarterman. NEWPORT-NEWS SHIPBUILDING AND DRY DOCK C'O. 333 absent from work for 2 or 3 days. He did not report for work on August 24, and on that evening, attended a union meeting at which he became a special organizer. Parker testified that the following morning, when he reported to Edwards, the latter informed him that he knew Parker had attended a union meeting at which he became a `special organizer. Parker testified that the following morning; when he reported to Edwards, the latter informed him that he knew Parker had attended the meeting of the night before, and that Parker finally admitted having done so. He further testified that he was thereupon discharged. Edwards, while he did not directly deny telling Parker that he knew he had attended the meeting, stated that he had not asked him "if he had been to a C. I. 0. meeting." Edwards and leading man W. E. George testified without specifying the-date of the occurrence, that Parker had refused to work in an "inner bottom" in the latter's gang and that his refusal to do so, although neither of them had personally terminated Parker's services, had resulted in his discharge. R. H. Harris, personnel supervisor of the erectors department, whose duties, as he described them, were to "try to look out for the personnel, keep them -happy and congenial," finding them places to live, and the like, testified, also without placing the date, that he prepared Parker's termination slip 40 at Edward's request. Parker testified that about a month before he was discharged, he had, after one experience on such work refused to work in an "inner bottom" because he could not stand it and had been, "spitting up blood," and that he had been excused.41 Although Parker was an uneducated witness whose testimony was not always easy to grasp, he impressed the undersigned as being, a sincere and conscientious one, and worthy of belief. Edwards, on the other hand, did not impress the undersigned as being a reliable witness. The record discloses that Edwards was a Progressive Club member and that he had aided it in organizing the pro- Association Athletic Association by selling membership cards therein or seasonal tickets to its events.72 He testified that during the "latter part of last year [1941]" a man whom he could not remember, but whom he believed to be an employee of North Carolina, had given him "the exact amount of money for the tickets, I had sold" and that he, Edwards, had thereafter returned their money to the buyers thereof and "returned money this week on tickets" .73 In -view of these circumstances, and from the entire record, the undersigned is convinced and finds that Edwards made the remarks attributed to him by Parker on the morning of the latter's discharge substantially as testified by Parker. In view of the absence of positive testimony by witnesses for North Carolina that Parker was discharged on August 25 for an alleged refusal to obey orders on that day, the ,undersigned is further convinced and finds that the events transpired as related by him. It is thus clear, and the undersigned finds, that Edwards and Harris merely utilized Parker's month old refusal to work in an "inner bottom," for which he had been excused at that time, in pretended justification for his dis- charge and that it was in fact motivated by his union membership and activity. SU The slip, which is in evidence and which was written and signed for Foreman L. K. Keith by Harris, is dated August 25, 1942, and states the cause of discharge as "Refusal to go on job assigned " 71 Work in the "inner bottom" is shown by the record to be confining, dirty, and ex- tremely dusty During the summer heat, the required respirators worn by employees while engaged there sometimes make them "feel like they are smothering." 71 Edwards did not consistently distinguish between them 71 Ile stated that the money was being returned because "* * * the Federal Govern- ment * * * could [not] get their taxes out of that business if they sold season tickets, and it wasn't constitutional." '334 ' DECTSION'S , OF NATIONAL LABOR RELATIONS ' BOARD James E. Scott and Solomon Hazel were crane helpers and were discharged on September 7, 1942,. allegedly for sleeping on the job in contravention of orders Scott testified that during July 1942, he asked Foreman F. X. Reissner for an increase in pay, and that the latter informed him that "you boys can't stay in this yard without belonging to the -Cape Fear Union." Scott, however, joined the Union on July 10 and became a special organizer. He thereafter solicited for the Union on his own time. On August 31, according to his testimony, leading man F. Curley, asked him if he had joined the Union. Scott said he had not and Curley thereupon told him, "you boys working here in the shop, you will have to join the Cape Fear Union if you want to stay here." Reissner testified that' he had had no "conversation with Scott in reference to the union" and stated that he had not told him "that he couldn't join the C. I. O." Curley also denied speaking to Scott respecting the Union and advo- cating the Association. Neither directly denied telling him that it was necessary that he join the Association in order to keep his job. In the light of all the circumstances revealed by the record, the undersigned, who was impressed by Scott as a witness, is persuaded and finds that the conversations occurred sub- stantially as testified by him. Despite the admonitions of Reissner and Curley, Scott did not join the Asso- ciation and on September 3, secured the membership of Hazel in the Union. The latter thereafter distributed union leaflets outside the yard gates. Early on the morning of September 6' at a time when their crane had no work to perform, its operator E. E. Benton left the cab and disposed himself about 3 feet away. Scott and Hazel, who were chilled by the damp air, got into the cab without protest from Benton. Between 5: 30 and 6: 30 a. in., leading man H. K. Sasser observed that the crane was stopped, walked over to the cab in order to ascertain why, looked in,7" and according 'to his testimony, found the two emr ployees with their eyes closed. He thereupon walked 400 yards to a telephone, called B. P. Johnson, sergeant of the plant police force on the third shift and in, charge of some 75 to 125 men,'reported to him that two employees were asleep, and when Johnson appeared at his office, accompanied him to the crane. Johnson climbed into the cab and took the employment numbers of Scott and Hazel." Sasser thereafter reported in writing to Reissner that they had, been found asleep. Scott and Hazel spoke to Reissner and denied being asleep. The latter -thereafter spoke to Johnson, and on September 7, 1942, discharged them." The following day' they protested, to Halsey, that they had not been asleep. Halsey declined to put them back to work and stated that they had violated company rules by going into the cab of the crane.78 Reissner testified that during August 1942, he instituted the practice of dis- charging employees who were caught asleep on the third shift and that he had theretofore administered less harsh discipline to such employees by giving them some time off without pay.7° _Both Scott and Hazel vigorously denied on the witness stand that they were 74 They worked on the'11 p. m. to 7 a m. shift. 75 He did not speak to Benton. 70 Neither Sasser nor Johnson spoke to Benton on this occasion which occurred some 10 or 15 minutes after Sasser's initial visit. 77 Hazel worked 3 hours on the day shift of that day. He was then told by General Man- ager Halsey to see Reissner and the latter, discharged him. 78 The evidence indicates, and the undersigned finds, that the rule, if it ever existed, was by common consent of the supervisors so frequently breached by the employees as to render it without force or validity at the time in question. 48 He could not name any other employees whom he had summarily discharged for sleeping. - NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. '' 335 asleep: The-evidence indicates that the size of the space occupied by them in the cab was about 4 feet by 3. ' Scott was about 6 feet tall and Sasser testified that he was lying down while Hazel was sitting at his side. Sleep under such conditions must be considered almost impossible of achievement. But assuming, without so finding, that Scott and Hazel were dozing, Sasser's actions in refraining from speaking to Benton, the operator who was in charge of the crane and the logical person of whom to inquire as to why it was stopped, his extraordinary action in summoning the police sergeant from a distant point in the yard in order that the latter might discover them in' the cab and take their numbers, and the severity of the penalty meted out to them for their seemingly unimportant infraction of company rules at a time just prior to the end of the shift when the crane had no work to do, combine to cast grave doubt upon North Carolina's announced motive in discharging them. This is particularly true when, as the evidence indicates, Scott, about a week or 10 days earlier had been responsible for a serious accident when he misdirected a crane onto a faulty track causing it to capsize and wreck a nearby building in the yard.. For this accident which resulted in material loss to the com pany, he merely received a reprimand at the hands of Reissner and a "couple of days" off without pay. From all of the evidence in the case, the unceasing enmity of North Carolina to the Union, the statements of Reissner and Curley to Scott, and the air'of entrapment permeating the events surrounding their 'discharges, the under- signed concludes and finds that the alleged reason for discharging Scott and Hazel was not that which motivated North 'Carolina, but, that it in fact dis- charged them as a part of its campaign against the Union and because of their membership in and activity on its behalf. C. The discriminatory refusals to employ Robert L. Fuller and C. R. Frazier applied for work at North Carolina on September 14, 1942. Both were then employees of Marshall Field and Com- pany's mills at Leaksville, North Carolina, and were members of the Textile Workers Union of America, affiliated with the Congress of Industrial Organiza- tions. They were interviewed by C. E. MacIntosh, who caused them to fill out questionnaires giving details of their histories and employers. The fact of their being employed by Field was underscored in red by MacIntosh, who, although he had authority to hire them, referred them to C. E. Enfield, his immediate supervisor. He testified that he did so in the cases of applicants respecting whom "I have doubts as to whether they should be employed . . . According to Fuller, Enfield, having gained knowledge of his employment by Field, told him that the C. I. 0 was "a trouble making organization" and added, "If we employed you down here that's what you would be, a trouble maker to us, and we don't want your kind down here." Fuller thereupon gave Enfield, as references, the names of six employees of North Carolina who knew him. Enfield promised-to call them and•write Fuller by September 21. Fuller did not hear from Enfield.' Enfield did not get .in touch with Fuller's references be- - cause "I waited for the man to come back ... to see if he was sufficiently interested in the job." `0 - 'Frazier, who was interviewed immediately following Fuller, was informed by Macln Cosh that the rate of pay he was receiving at Marshall Field was greater 10 Leaksville is more than 300 miles from Wilmington. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than the starting rate he would receive at North Carolina and that nothing was open for him, and by Enfield that his seniority at Field,was such that he could procure a transfer to war work there. Enfield denied making the remarks attributed to him by Fuller respecting the latter's being a "troublemaker" and stated that he never made an issue of an applicant's labor affiliation. He testified that between June or July 1942, when North Carolina hired other employees from Field, and,the date of the applications of Fuller and Frazier, he thought that he had heard "that Marshall Field had war contracts 81 . . . and we didn't want to take men away from war work." Both Enfield and MacIntosh also stated that Fuller and Frazier were not favorably considered for employment because they were "inside" men and had had no shipyard experience, and that Frazier, who was 47 when he applied for work as a plumber's helper, was too old for such work. The evidence shows, however, that others who likewise lacked shipyard experience had been hired, and in the case of Frazier, that others of his age had been employed by North Carolina as plumber's helpers. In view of all of the circumstances revealed in the record, the undersignea Is persuaded and finds that Fuller, who was a credible witness, did not fabricate the remarks attributed to him by Enfield but that the latter spoke to him substantially as testified by Fuller. The undersigned is further convinced and finds that Fuller and- Frazier were denied employment by North Carolina, not for the reasons advanced by it in retrospective justification therefor at the hearing, but because of their member- ship in the Textile Workers Union.82 IV. THE RELATION OF NEWPORT TO NORTH CAROLINA On January 17, 1941, Newport, at the request of the United States Maritime Commission, caused North Carolina to be incorporated as a wholly owned sub- sidiary 88 to the end that it might have the benefit of Newport's managerial ability, technical and practical experience, and advice. On January 30, 1941, the Maritime Commission and North Carolina executed a "Government-owned facili- ties contract," on March 31, a supplement thereto, on April 21, a second facilities contract, and on April 10, 1942, a third ; 84 all were executed for North Carolina by Roger Williams, its president, who was also executive vice president of Newport. - Shortly after its incorporation, Newport "selected" and "sent down to Wil- mington" a large number of "key men" to operate North Carolina. At the time of the hearing a majority of the foremen of the key departments of North Caro- lina were former supervisors of Newport. Percy -F. Halsey, former assistant superintendent of Newport's hull department, is vice president and general manager of North Carolina. J. C. Johnson, personnel director of North Caro- lina is assistant personnel director of Newport; he maintains offices at both yards. through the U S Employment Office .. ." but "I can't be positive about it." az North Carolina obviously discriminated against them because of its well-founded ap- prehension that because they were members of another C. I. O. organization they would noimally, upon being employed at North Carolina, join the Union . The undersigned so finds. xs At the time of the hearing, Newport owned all but 7 qualifying shares of the 30,000 then outstanding shares of North Carolina 11 Noith Carolina acts as independent contractor under the terms of the contracts. NEWPORT NEWS SHIPBUILDING AND DRAY DOCK. CO. ' 337 The officers and directors of Newport and North Carolina who hold positions in both corporations-are as follows: ' Name Newport North Carolina H. L. Ferguson.......... Chairman, president, and member execu- Chairman and member\executive tive committee committee Roger Williams ---------_ Executive vice president, director, and President, director, and member member executive committee executive committee J B. Woodward, Jr ----- Vice president, general manager, director, Director and member executive and member executive committee committee W. E. Blewett, Jr ------- Vice president and production manager-__ Director and member executive committee. E. F. Heard, Jr.......... Vice president and works manager -------- Director. R I. Fletcher___________ Comptroller ------------------------------ Comptroller and director. Kemper L Kellogg------ Secretary---------------------------------- Assistant secretary. W. Scott Graham_______ Treasurer--------------------------------- Treasurer. Both respondents contend that Newport does not control North Carolina's operations. It is plain, however, that the very purpose of North Carolina's being, i. e. the Maritime Commission's desire and purpose, in answer to the imperative demands upon it for the essentials of war, to utilize to the maximum Newport's unique ability to build ships, would be frustrated and unfulfilled were its operation not under Newport's aegis. *North Carolina's corporate status is simply the result of Newport's solution of problems of convenience and ex- pediency. The legal fiction that these corporations are separate entities is a patent myth. Their ownership is identical, their officials substantially so. Willlams'spendsumuch^ time in-Wilmington and advises frequently with Halsey respecting North Carolina's operations both personally and by telephone. The realities established by the record clearly demonstrate, in the opinion of the undersigned, that Newport controls North Carolina's operations. He so finds. The labor policies of North Carolina are determined by Williams and Halsey while the latter also consults with Johnson in respect thereto. As is related above, when the A. F. of L. sought to organize North Carolina in 1941, efforts were made by North Carolina to establish at Wilmington a union similar to the Peninsular Shipbuilders 'Association with which Newport has a contract. Its purpose, as stated by quaiterman Langston, was to keep both the A. F. of L. and the C. I. 0 out of the yard. When Dosher insisted upon a refund of his contribution•to the creature of the company, it was Personnel Director Johnson who ordered Langston .to return his money to Dosher. When the A F. of L. withdrew, the drive for' an inside union was permitted to become quiescent. Promptly upon the appearance of the Union in 1942, it, was revived with great vigor. Money paid the previous year was "good" in the Association which was, like the 1941 organization, advertised by the supervisory personnel as "the same thing" as the union at Newport. Supervisors of North Carolina, formerly of Newport, sponsored and promoted the Association at Wilmington and again the underlying purpose was to "keep the C. I. 0. out." Both Newport and North Carolina were inextricably enmeshed in the anti-union campaign conducted at Wilmington .and the employees there, as is abundantly revealed in, the record, were well aware of it." It is thus plain, and upon the entire record the undersigned finds, that New- port also controls the labor policies of North Carolina. It is therefore 'ah em- Thus Blake, in testifying with respect to Peterson 's address at the Association's July 23 meeting, stated, "Mr. Blair said that Mr Peterson had been president of the P. S A. In Newport News, the same firm as this company here." 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer of the employees at Wilmington , within the meaning of Section 2' (2) of the Act and is jointly responsible with North Carolina ' for • the unfair labor practices found to have been engaged in by the respondents at Wilmington. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III above occurring in connection with the operations of the respondents described in Section I above, have a close, intimate , and substantial relation to trade, traffic ,' and commerce among the several States, and tend to lead to labor disputes burdening and ,obstructing commerce and the free flow of commerce. - ' VI. THE REMEDY Since it has been found that the respondents , and each of them, have engaged in and are engaging in certain unfair labor practices , it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondents , and each of them, dominated and inter- fered with the formation and adminiltration of the Slipbuilders and the Associa- tion and contributed financial and other support to them. Since the Shipbuilders has ceased existence , it is not necessary to recommend its disestablishment. Since the effects and consequences of such practices with respect to the Associa- tion constitute a continuing obstacle to the free exercise by their employees of the rights guaranteed by the Act, it will be recommended that if the respondents have' not yet recognized the Association as the representative of their employees at North Carolina for the purpose of dealing with them respecting grievances, 'labor disputes, wages, rates of pay, hours of employment , or other conditions of employment, the respondents, and each of them, refuse to recognize it as such representative ; if, on the other hand , such recognition has been accorded, it will be recommended that the respondents, and each of them, withdraw all recog- nition from the Association as such representative ; and in either ,event, it will be recommended that the respondents , and each of them, completely disestab- lish the Association as such representative. It' has been found that the respondent discharged and thereafter failed to reinstate Harry B. White, Mack B. Reynolds , Joseph F. Blake, Howard McGirt, William J. Parker, James E. Scott, and Solomon Hazel for the reason that they joined and assisted a labor organization and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. It will therefore be recommended that the respondents , and each of them, offer to them immediate and full reinstatement to their former or' substantially equiva- lent positions at North Carolina. I h Blake voluntarily entered the United States Marine Corps after he was dt,s- charged and is accordingly not,available for immediate reinstatement. It will be recommended that the respondents , upon application by Blake within forty, (40) days after his discharge from the armed forces of the United States, offer him reinstatement to his former or substantially equivalent position without prejudice to his seniority and other ,rights and privileges. It will be further recommended that the respondents, and each of them, make them whole for any loss of pay they may have suffered by reason of the dis- crimination against them , by payment to each of them of a sum of money equal to the amount each would normally have earned as wages from the date of his NEWPORT NEWS SHIPBUILDING AD - DRIY' DOCK' CO. , 339' discharge-to the date of the offer of reinstatement, less the net earningsm of each during said' period. - It has been found that the respondents, and each of them, have discriminated in regard,to the hire of Porter L. Fuller and C. R. Frazier to discourage mem-, bership in the Union. It will therefore be recommended that the respondents, and each of them, offer immediate employment to them at North Carolina. It will be further recommended that the respondents, and each of them, make them whole for any loss of pay each may have suffered by reason of the discrim- ination against them, by payment to each of them of a sum of money equal to that which he would normally have earned from the date of the' discrimination against him to the date of the offer of employment, less' the net earnings" of each during said period." Upon the foregoing findings of fact, and upon the entire record, the undersigned makes the following : CONCLusIONs of LAW 1. Newport News Shipbuilding and Dry Dock Company, and North Carolina, Shipbuilding' Company are employers of the employees of North Carolina, within the meaning of Section 2 (2) of the Act. 2. Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., Cape Fear Shipbuilders Association, Inc., and Peninsular Shipbuilders Association are labor organizations, and North Carolina Shipbuilders Association was a labor .organization, within the meaning of Section 2 (5) of the Act. 3 By dominating and interfering with the formation and administration of North Carolina Shipbuilders Association and Cape Fear Shipbuilders Association, Inc., and contributing financial and other support to them, the respondents, and each of them, have engaged in unfair, labor practices, within the meaning of Section 8 (2) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Harry B. White, Mack B. Reynolds, Joseph F Blake, Howard MCGirt, William J. Parker, James E Scott and Solomon Hazel, and in regard to the hire of Porter L' Fuller and C R. Frazier, thereby discouraging membership in International Union of Marine and Shipbuilding Workers of America, C. I. 0, the respondents, and each of them, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing their employees in the exercise of the .fights guaranteed in section 7 of tl;e Act, the respondents, and each of them, have engaged in and are engaging in unfair, labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are -unfair labor practices affecting commerce, within the meaning' of Section 2 (6), and (7) of the Act. V 7 The respondents have not, nor has either of them, engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act, by dominating and 80 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and iworking 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- ica, Lumber and Sawmill ' 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. IT. L. R. B., 311 U S 7 ei See footnote 86, above. 8s Phelps Dodge Corp . v. N. L. R. B, 313 U S 177; N. L. R . B v. Waumbee Mills, 114 F. (2d) 226 (C. C. A. 1). 521247-43-vol 48--23 '1 340 DECISIONS` OF NATIONAL ,LABOR RELATIONS- BOARD- interfering with the, formation and administration • of Peninsular Shipbuilders Association at North Carolina. RECOMMENDATIONS' Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondents, Newport News Shipbuilding and, Dry Dock Company, Newport News, Virginia, and North Carolina Shipbuilding Company, Wilmington, North Carolina, and each of them, and their officers, agents, successors, and assigns shall: 1. Cease and- desist from : (a) In any manner dominating or interfering with the administration of Cape Fear Shipbuilders Association, Inc , or any other labor organization of their employees at North Carolina, and from contributing financial and other support thereto ; (b) Discouraging membership in International Union of Marine and Ship- building Workers of America, C. I. 0, or any other labor organization of their employees, by discharging, refusing to reinstate, or in any other manner dis- criminating in regard to the hire and tenure of employment or any term or con- dition of employment of their employees at North Carolina: „ (c) In any other manner interfering with, restraining, or coercing their em- ployees at North Carolina in the exercise of the right to self-organization, ti form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection 2: Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act: , (a) If they have not yet recognized Cape Fear Shipbuilders Association, Inc., as the representative, of their employees at North Carolina for the purpose of dealing with them respecting grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, refuse to recognize the Asso- ciation as such representative ; if, on the other hand, such recognition has been accorded, withdraw all recognition from the Association as such representative; and in either event, completely disestablish it as-such representative; (b) Offer to Harry B White, Mack B. Reynolds, Howard McGirt, William J. Parker, James E Scott, and Solomon Hazel immediate and full reinstatement to, their former or substantially equivalent positions at North Carolina without prejudice to their seniority and , other rights and privileges ; (c) Make whole said Harry B. White, -Mack B. Reynolds, Howard McGirt, Wil- liam J. Parker, James E Scott, and Solomon Hazel for any loss of pay they may have suffered by reason of the respondents' discrimination against them, by pay- ment to each of them a sum of money equal to the amount each would have earned as wages during the period from the date of such -discrimination to the date of the offer of reinstatement, less the net earnings 89 of each during said period ; td) Upon application by Joseph F. Blake within forty (40) days after his. discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (e) Make whole Joseph F. Blake for any loss of earnings he may have suffered by reason of the,respondents' discrimination against him by payment to him of sum of money equal to the amount he would normally have earned as wages during the periods: (1) between the date of his discharge by the respondents and' the date of his 'enlistment in the armed forces of the United States, and (2) between a date five (5) days after his timely90 application for reinstatement and 69 See footnote 86, above - 90 As provided in paragraph 2 (d) hereof. NEWPORT NEWS SHIPBUILDING AND DRY DOCK CO. 341 the date of the offer of reinstatement by the respondents, less his net earnings during those periods ; (f) Offer immediate employment to Porter L. Fuller and C. R. Frazier at the same or" substantially * equivalent positions at which they would have been employed` on September 14, 1942,- at North Carolina, had the respondents, and each of them, not unlawfully refused to hire them ; (g) Make whole said Porter L. Fuller and C. R. Frazier for any loss of pay they may have suffered by reason of the respondents' discrimination against them, by payment to each of them of a sum of money equal to the amount each would have earned as wages during the period from the date of such discrimination to the date of the offer of employment, less the net earnings ar of each during said period; (h) Post immediately in conspicuous places throughout their Wilmington. North Carolina yard, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which it is recommended that they cease and desists in paragraphs 1 (a), (b), and (c) hereof; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), (e), (f), and (g).hereof; and (3) that the respondents' employees at North Carolina are free to become and remain members of Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., and that the respond- ents will not discriminate against any of their employees at North Carolina because of membership in or activity on behalf of that organization ; (i) Notifv the Regional Director for the Fifth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondents have taken to comply herewith. It is further recommended that the complaint, insofar as it alleges that the respondents, or either of them, have engaged in or are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act by dominating and interfering with the formation and administration of Peninsular Shipbuilders Association at North Carolina, be disn.,issed. i It is further recommended that unless on or before ten (10) days from the date of the receipt of this Inteimediate Report, the respondents notify said Regional Director in writing that they will comply with the foregoing recommen- dations; the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of -the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham G ulding, Washington, D C, an original and four copies of a statement in writing set- ting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof As further provided in said Section 33,.should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order trans- ferring the case to the Board. JosErH L. HEII TOEN, £ Trial Examiner. Dated January 11, 1943. See footnote 86, above. 92 See footnote 86, above.