Merrill-Stevens Dry Dock & Repair Co.

In the Matter of MEmaLL-STEvENs DRY DOCK & REPAIR COMPANY and INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA, C. I. 0., LOCAL #32, CHARGING PARTY and EMPLOYEES ASSOCIATION OF MERRILL-STEVENS DRY DOCK & REPAIR CO., PARTY TO A CONTRACT' Case No. C-238. .-Decided May 11, 1943 DECISION - AND ORDER On October 21, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. No exceptions or briefs have been filed by any of the parties. The Board has considered the ruling of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report and the entire record,in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except in the following respect : - The Trial Examiner found that A. P. Hagan occupied a supervisory position, and, accordingly, that certain pro-Association activities and statements engaged in by Hagan were attributable to the respondent. We do not cohcur in this finding. Since the record fails to disclose with sufficient definiteness and detail the duties of A. P. Hagan, we are unable to determine whether he occupied such a supervisory status as to render the respondent-accountable for his activities. 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, Merrill-Stevens Dry Dock & Repair Company, Jacksonville, Florida, its officers, agents, •successors, and assigns shall : 1. Cease and desist from : 49 N. L. R. B., No. 103. 698 11 0 A BRILL-STEVENS DRY DOCK a REPAIR COMPANY - 699 • (a) Dominating or interfering with the administration of Em- ployees' Association of Merrill-Stevens Dry Dock & Repair Co., or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Em- ployees' Association of Merrill-Stevens Dry Dock & Repair Co., or to any other organization of its employees; (b) 'Recognizing Employees' Association of Merrill-Stevens Dry Dock & Repair Co. as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or any other conditions of employment; (c) Giving effect to or performing the contract of March 26, 1942, with Employees' Association of Merrill-Stevens Dry Dock & Repair Co., or to any amendment, extension, or renewal thereof, or to any other contract, agreement, understanding, or arrangement entered into with Employees' Association of Merrill-Stevens Dry Dock &, Repair Co., relating to grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; (d) Discouraging membership in Industrial Union of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employ- ment ; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 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) Withdraw all recognition from Employees' Association of Merrill-Stevens Dry Dock & Repair Co. as representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, and completely disestablish Employees' Association of Merrill-Stevens Dry Dock & Repair Co. as such representative; (b) Offer to Wilbur D. Knapp immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Make whole Wilbur D. Knapp for any loss of pay he may have suffered by reason of the respondent's discrimination against him;.by payment to him of a sum of money equal to that which he normally 'would have earned as wages from the date of the respondent's dis- crimination against him to the date of the respondent's offer of rein- statement, less his net earnings during such period; (d) Post-immediately in conspicuous places in each of the build- ings throughout its shipyard at Jacksonville, Florida, 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), (c), (d), and (e) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's em- ployees are free to become or remain members of Industrial Union of Marine & Shipbuilding Workers of America,-Local #32, affiliated with the Congress of Industrial Organizations, and that the respond- ent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Tenth Region in "writing within ten (10) days from the date of this order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Alexander E. Wilson, Jr., for the Board. Mr. John W. Donahoo, of Jacksonville, Fla., for the respondent. Mr. William A. Stanley and Mr. Clair H. Nixon, of Jacksonville, Fla., for the Association. Mr. Arthur E. O'Day, of Jacksonville, Fla., for the Union. STATEMENT OF THE CASE Upon amended charges duly filed by Industrial Union of Marine & Shipbuilding Workers of America, C. I. 0., Local #32, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated August 13, 1942, against Merrill-Stevens Dry Dock & Repair Company, Jacksonville, Florida, herein called the respondent, alleging that the respondent had engaged In and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (1), (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, amended charge, and notice of hearing thereon were duly served upon the respondent, the Union, and Employees Association of Merrill-Stevens Dry Dock & Repair Co., herein called the Association. ' With respect to the unfair labor practices the complaint alleged in substance that the respondent: (1) discharged and refused to reinstate W. D. Knapp because of his union membership,and activities ; (2) interfered with , restrained, and coerced its employees -in the exercise of the rights guaranteed in Section MERRILL-STEVENS DRY DOCK- & REPAIR COMPANY 701 7 of the Act,- by (a) vilification of the Union, its leaders, and members, (b) interrogation of employees concerning their membership in trade unions, (c) warning employees not to'become, remain, or assist others in becoming members of the Union, and (d) surveillance of the Union, its meetings, and members; (3) dominated and interfered with the formation and administration of the Association on or about September 1, 1911, and thereafter assisted it by reason of the aforesaid unfair labor practices and entered into an agreement with the said Association on March 26, 1942, at which time the Association did not repre- sent an uncoerced majority. The complaint further alleged that the agreement between the respondent and the Association was invalid. In its answer filed August 27, 1942, the respondent denied that it had engaged in or was engaging in the alleged unfair labor practices or that its activities affected commerce within the meaning of the Act. The Association, in its answer likewise filed August 27, denied that it was initiated, sponsored, or thereafter had been the recipient of the respondent's support and averred that it represented a majority of the employees and that its contract with the respondent was valid. Pursuant to notice duly served on all parties, a hearing was held on,August 27, 28, and 31 and September 2 and 3, 1942, at Jacksonville, Florida, before the undersigned Trial Examiner, duly designated by the Acting Chief Trial Examiner. The Board, the respondent, and the Association were represented by counsel and the Union by an international organizer. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine the witnesses. and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing the respondent's motion to make the complaint more definite and certain was denied. , During the course of the hearing the respondent's motion to amend its answer to deny that the Union was a labor organization within the meaning of the Act, which it had previously admitted, was granted. At the conclusion of the Board's case, the motion of counsel for the Board to conform the pleadings to the proof as to matters of form was granted without objection. Oral argument in which all parties participated was had on the record. Pursuant to leave granted at the close of the hearing the respondent and the Association filed briefs with the undersigned. Neither the Board nor the Union filed briefs. Upon the entire record thus made and from his observation of the witnesses the undersigned makes, in addition to the foregoing, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The respondent, Merrill-Stevens Dry Dock & Repair Company, is engaged at Jacksonville and Miami, Florida, in the repair of vessels, merchant ships, dredges, and in conversion work. The instant proceeding is concerned only with the re- spondent's yard at Jacksonville. In 1941 the gross receipts of the Jacksonville yard were approximately $1,741,000, approximately 75 percent of which was for work performed for the United States Government. During the same period the respondent purchased raw materials valued at $493,000, approximately $250,000 of which was shipped to it from points outside the State of Florida. From January 1 to August 1, 1942, the respondent performed work in the yard for the United States Government valued at $1,031,517.67. This was in addition to work valued 1 The facts found herein are based partially upon a stipulation entered into between the Board and the respondent._ 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at $550,895 98, performed on vessels of 'foreign governments under the Lend- Lease Agreement The, respondent normally employs about 54O production and maintenance workers. II THE ORGANIZATIONS INVOLVED I - 1 Industrial Union of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations , is a labor organization which admits to membership employees of the respondent. Employees Association of Merrill- Stevens Dry Dock & Repair Co .,2 is a labor organization which admits to membership employees of the respondent. III. THE UNFAIR LAi3OR PRACTICES A. The Association In July of 1941 some of the respondent's employees from various departments in the yard discussed the possibility of creating an inside union that would bargain collectively and present their grievances and complaints to management without the necessity of affiliation with any existing national union. These somewhat general aspirations crystallized in a conversation employee Clair H. Nixon had with employee Jack Berry, wherein the latter referred to his ex- perience as a member of the Independent Brotherhood of Shipyard Workers of Bath, Maine, Inc., hereinafter called Independent. Nixon wrote a letter to Independent in August 1941, asking for assistance in organizing an independent union and for a copy of its rules and bylaws. On August 11 Independent replied, enclosing a copy of its bylaws and an agree- ment between it and another employer. These bylaws were turned over to Edward Hemphill , a local attorney, with instructions to prepare suitable articles for an association. In late August or early September; at Nixon's suggestion, meetings were held in all of the various yard departments for the purpose of electing stewards for such an organization In the machine shop at a meet- ing of employees (luring the lunch hour Jack Smith, a leader man,' outlined the plan for the election of stewards from each department. This process was repeated elsewhere in the yard. Wilbur D. Knapp testified that the meeting in the electrical shop was held after employee Walter Burch secured permission of R. C. Smith, electrical foreman, to hold the meeting; that Burch stated the purpose of the meeting was to form an organization "to keep out the C. I. O. and the A. F. of L." ; that Smith was present and remarked this was a "very good thing" and that he would like the, employees to "get together on it"; that stewards were elected and the'ineeting lasted an hour and one-half to two hours. Burch admitted that. he called a meeting in September during the lunch hour, that it lasted 10 minutes, but that stewards were elected at another meeting held after work. Burch could not recall Smith's alleged presence at the meeting but was not questioned and did not deny that be had secured Smith's permission to hold the meeting., 1Smith, although denying attendance at any meeting held in his department , readily acknowledged that meetings were held while he was present in ,the shop and that on one occasion he broke up a meeting that had run 2 The proper name is Employees' Association of Merrill-Stevens Dry Dock & Repair Co. 2 A shipyard term generally applied to a ww orker having only a few men in the same occupation under his leadership and who is thoroughly familiar with the requirements of the occupation and able to direct the activities of others and to maintain maximum pro- duction Dictionary Of Occupational Titles, Department of Labor, United States Govern- ment Printing Office, Washington , D. C.'(1939). a MER'RILL-STEVENS DRY DOCK & REPAIR! COMPANY 703 over onto company time by 10 to 15 minutes . Smith did not deny Knapp's testimony that the organization of the Association was a "good thing" upon which he would like to see the employees "get together." The undersigned be- lieves that although Knapp's testimony as to the length of this initial meeting is exaggerated , that nevertheless it vas held on company time and that other- wise his account of the meeting was substantialy correct. In view of the failure of Smith to deny the statements attributed to him by Knapp, the undersigned finds that the meeting in the electrical shop was held with Smith's approval and thereat he expressed his favor and support of the Association.' Sometime after the initial meetings at which stewards were elected, but prior to September 12, Nixon sought the help of James C. Merrill, the respondent's president. Nixon testified without contradiction : I told Mr. Merrill we had hopes of starting some kind of an asso- ciation in the yard, and I had been asked to speak to him to see if it would be possible to have use of the mould loft for an evening , because we had no funds whatsoever. Mr. Merrill said, "How long are you going to be up there?" And I said, "Well, I don't know." "Yes, you can take it for one night," he says , "with the understanding that you can have it for one night's use." I told him what some had suggested . . . That we hoped to perfect an association there for the benefit , welfare and physical welfare of the men in the yard. Pursuant to Merrill 's permission the Association held its first meeting in the respondent's mould loft 5 on September 12, 1941 . Present were 22 stewards previously elected at the departmental meetings . The meeting started at 4:20 p. m. and lasted until 5: 30 p. in. Stewards from the night shift , who usually report for work at 4 p in were excused in order to attend. They were not paid for their time. Nixon presided and those present discussed proposed bylaws, a charter for the Association , and the need of legal advice.' Immediately following this meeting, according to Nixon's nncontradicted test i- mony, the shop stewards acting as an organizing committee solicited members and collected dues on company time and property. This was accomplished without any limitation or interference on the respondent 's part. That their work was extremely effective is attested by the fact that by October the Association had secured 241 members. On September 22 the Association 's petition for a cor- ' It appears without contradiction that immediately following these first departmental meetings the steward; elected fro,a the various departments gathered on company time and property for a short meeting The mould loft had been used on occasions in the past for gatherings of employees. Merrill testified that it was a common practice for employees to meet in the loft and it appears from his testimony that he drew no distinction between a gathering held to organ- ize an independent union and a safety meeting attended by employees and supervisors or a meeting held to organize social functions. 6 Around January 1, 1942, the Association called a meeting of all the employees in the mould loft. Nixon obtained Merrill's permission to use the loft. The purpose of the meeting was to settle the question of what disposal was to be made of moneys earned by the employees foi work performed on New Year's Day, I e, whether to' contribute it to the Red Cross, purchase War Bonds, or turn it back to the United States Government. Jack Beery, the,Association's president, presided at the meeting. The undersigned is of the opinion that although the sole question for discussion was one that affected all em- ployees, the meeting was neveitheless held under the auspices and sponsorship of the ,Association and was conducted-by its officers , It is also significant that according to Kilapp's nncontradicted testimony, Berry announced at the meeting that this was to be .the last Association meeting on company property "because it is against the law." 0 704 ' DECISIONS OF NATIONAL LABOR - RELATIONS ROAR.D e porate charter was approved by the Circuit Court of Duval County, Florida.' Under its terms the Association was to be managed by a Board of -Directors of not less than 15 members elected annually. Bylaws to be drafted thereafter were to govern the working affairs of the Association and prescribe the duties of its - directors. On October 1 at a meeting held outside the plant the Association appointed a committee to draft bylaws which were adopted at'a meeting held October S. - The record is abundantly clear that the Association was free at all times to solicit members and collect dues on company time and property. Numerous wit- nesses testified that they received Association applications and paid their dues to stewards on company time and property. Nixon, the Association's secretary- treasurer, admitted that although warned on three occasions by his foreman, Bartman, now deceased, to cease his activity, he nevertheless continued to collect dues in the plant. He likewise admitted that he was never disciplined for his Association activity performed on company time. A. A. Force, a ship-caulker, testified that he paid his dues to his leader man, A. P. Hagan,' on company time after the latter advised Force and the other caulkers that unless their dues were paid "they naturally, could not, get the sick claims."' Hagan denied this but he was not a convincing witness and the undersigned finds that Hagan did in fact collect dues from employees, whose work he supervised. Frank C. Cole, an electrician, a credible witness, testified without contradiction that he. paid his dues in the electrical shop to his steward and on one occasion this was done in the presence of Smith who observed the incident and said nothing. Knapp testi- fied : "At one time there was a remark passed in there by Mr. Smith that some- thing good, was coming up for the organization and be- advised all the fellows to be in good standing and pay up their dues if they wanted to benefit by it." This Was in March 1942. Smith testified that he could not "remember of ever having made a statement like that." The undersigned is of the opinion that the statement attributed to Smith by Knapp is consistent with his sympathetic at- titude toward the Association reflected by his presence-at meetings held in his department and his failure to stop or limit in any way the dues collections that took place in his presence. The undersigned finds Smith to have made these remarks thus indicating his support and favor of the Association. From time to time after September 12 and continuing into the spring of 1942'the Association held departmental meetings for the election of stewards and conduct of Association business. In October or November 1941 the Associa- tion members in the electrical department met there to elect a steward to fill an existing vacancy. Knapp, who joined the Association soon after it was organized, was elected steward around March 1942. In the same month he and other representatives of the Association conferred with Merrill respecting reclassifications to higher ratings of four electricians. Merrill agreed, to the proposed ratings subject to Smith's approval. About April 7, while Knapp was at work, Smith told him, that he had rejected a reclassification for Pfeiffer, a steward and one of the men involved. This precipitated an argument between Knapp and Smith wherein the former disputed Smith's right to withhold a re- classification that the Association had negotiated with Merrill. As a result, Knapp resigned the following day as steward. Pfeiffer likewise resigned and it became necessary to hold another meeting in the shop to elect successors' to Knapp and Pfeiffer. At the meeting someone proposed that Knapp be reelected. According to Knapp's testimony, Smith opposed this stating that Knapp was an "acting foreman" on the night shift and if the Association elected any steward that Smith -did not favor he would be promoted to "acting foreman" thereby 7 Hagan's supervisory status as a leader man is discussed hereinafter. MERRILL-STEVENS DRY DOCK & REPAIR COMPANY 705 making; him ineligibles Smith denied Knapp's testimony that he opposed the election of stewards or that he stated that he would promote to the position of foreman, anyone he opposed as a candidate for steward. Knapp's controversy with Smith which resulted in his resignation as a steward, • lends credence to Knapp's testimony that Smith opposed his reelection. Although the undersigned has some doubt concerning this issue, as between the two' witnesses, Knapp was on the whole the more convincing and persuasive. Accordingly, the undersigned finds Smith to have expressed these comments including his opposition 'to Knapp's reelection as steward, thereby interfering in the administration of the Association. The undersigned is satisfied from a review of all the evidence that insofar as the electrical department is concerned, numerous meetings were held both on and off company time. Smith was, if not actually in attendance at the meetings, present in the shop and fully acquainted with the fact that they took place. In fact, Smith admitted that two or three,meetings were held on company time in his department and that he warned the men that this must stop. Despite this warning two or three later meetings were held on company property. Smith testified that -he did not care what the men did on their own time on com- pany property. -President Merrill denied any knowledge of the foregoing meetings. Although it is possible that he lacked personal knowledge of the facts, it is clear beyond ,any doubt that at least two responsible foremen, Smith and Bartman, knew of the existence of extensive Association activity on company time and property. But there is yet another facet of the respondent's assistance to and support of the Association. Force testified that around November 1941 Hagan told him that if he wanted to work he would have to join the Association ; that it was unfair to the other employees for Force to be employed and not an Association member and that every employee should join the Association. According to Force, the comments were made in the presence of the other caulkers. As here- tofore found, Hagan advised the caulkers to pay their Association dues and in fact collected dues from Force. Force testified that Hagan was the "boss caulker" over a crew of six or eight caulkers, and that he gave them their instructions. On direct examination of Hagan, the respondent sought to show only that Hagan lacked the status of a supervisory employee. He admitted that he is a "kind of lead man," and "kind of look[s] out for some men . . ." On cross. examination Hagan denied telling the caulkers and painters that it was a,"good thing to join the Association." He admitted that he supervised the work of painters and talked to employees about the Association "lots of times." How- ever, he testified that he informed the employees that membership therein was "up to" them. From observation of Hagan as a witness, and a consideration of all of his testimony, the undersigned is persuaded that he made the remarks attributed to him by Force. The undersigned concludes and finds : (1) -that insofar as the caulkers were concerned Hagan stood in the position of boss caulker and leader man; (2) that he exercised supervision over their work; (3) that he made the remarks attributed to him by Force; and (4) that the re- spondent is responsible "for his conduct. , Knapp was discharged on April 27. Shortly thereafter, some dissatisfaction arose over the way Association representatives were handling grievances, includ- ing that of Knapp's discharge. Accordingly, in May at a meeting held in the electrical shop after work Hasty, the steward, posed the question whether the men were still loyal to the Association or favored representation by the C. I. O. 8 At the same meeting, according to the uncontradicted testimony of Arthur Crabbe, one of the stewards elected to succeed Knapp and Pfeiffer , a vote was taken to see , whether the employees favored the Association , the Union, or A. F. of L. craft unions. 706' DECISIONS OF NATIONAL, LABOR RELATIONS BOARD or A. F. of L. By a show of hands the men voted to remain loyal to the Asso- ciation. August Eppler testified that this was the last meeting held in the shop, Hasty announcing that it was against the law to continue to meet on company property. Association notices were regularly posted on the respondent's bulletin board. Permission to post these notices was neither requested nor required. On April 6, 1942, the Union began the distribution of leaflets in front of the plants Later, the A. F. of L. Metal Trades Council invited the respondent's employees to attend A. F. of L. meetings. Coincident with this activity the procedure was instituted of having Union or A. F. of L. notices submitted to John W. Donahoo, the respondent's counsel, for approval. ' Donahoo then forwarded the notices to R L. Richard, the respondent's director of personnel, for posting. No' such procedure was required of the Association, however, which has continued to post notices without requesting permission and without being required to submit notices for prior approval either by Donahoo or Richard." Sometime in February the Association requested the respondent to pay the employees the rates of pay established by the Navy and Maritime Commission for various work classifications in shipyards. Merrill agreed to these rates and `to incorporate any future understandings in writing. Thereafter, Charles E. Pelot, attorney, drafted an agreement which was executed on February 26. This agreement provided as follows : _1. That the `employer' recognizes the `employee' as the presentative (sic) of the 'employees% of the Merrill-Stevens Dry Dock & Repair Co.; 2. That the `employer,' upon request of the `employee' will bargain col- lectively with it as the representative of the `employees' of the Merrill- Stevens Dry Dock & Repair Co.; 3. That if understandings are reached between said `employer' and 'em- ployee' the employer will embody such understandings in a signed agreement ,if requested,to do so by the `employee'; 4. That, the `employee' by and through its executive committee will give the `employer' reasonable notice of its desire to meet with the officers and management of the `employers' for any discussion or bargaining with refer- ence to matters affecting the conditions of employment in its various phases ; No proof of majority representation was submitted by the Association. On March 26, 1942, the respondent and the Association executed a second agreement, previously prepared by Pelot." This second agreement contains no specific recognition clause and provides as follows: 1. That the `employee' has requested the `employer' that the agreement between the parties hereto, as to the scale^of wages to be paid the employees 'of the 'employer' be embodied in a signed agreement; 2. That employees shall be paid and receive the scale of wages or rate as set by the Navy or Maritime Commission under the Gulf zone standard, or any other standard that may be adopted by the Office of Production Management. Time and one half shall be paid for all labor exceeding forty (40) hours per week and double time shall be paid for all Sundays and legal holidays, unless the working hours and the rate of pay for overtime, as set forth above, ° This-and related incidents is discussed hereinafter. ' io These findings are based upon the uncontradicted testimony of Richard. ss It' appears from Association minutes that the agreement was not submitted to Asso- ciation members until April 6. i MERRILL-STEVENS DRY DOCK & REPAIR, COMPANY 707 shall be changed by the Federal Government or shall be changed by the Office of Production Management. Any grievance on the part of any employee, with reference to his or her rating or the rate of pay, after being presented by such employee to the foreman of the department in which he or she works,' if no satisfactory solution is agreed on, may be presented to the Management by the Executive Committee of the employee. The respondent and the Association contend that these agreements recognize the Association only for its members and are not exclusive bargaining contracts. Nixon testified that the March 26 agreement was written "On the same basis," as the February 26 contract, except that the former agreement "defines [the February agreements a little more fully " Irrespective of the intention of the parties expressed at the hearing, the recognition granted by the February contract was by its terms exclusive. Nixon's testimony indicates that the March agreement was written "on the same basis" as the February agreement. The wage terms of the March agreement are clearly applicable to all employees and the grievance procedure provided therein confers upon the Association authority, to prosecute the grievance of "any employee." According to Nixon, the only benefit the March agreement conferred upon the Association was recognition thereof by the respondent. It did not raise wages. In view of the recognition clause of the first agreement, Nixon's testimony that the basis remained the same in formulating the second and the terms of the latter agreement, the undersigned concludes and finds that the agreement of March 26, 1942, accorded the Association exclusive recognition. Although, because of the Ship Building Stabilization Program, the Association cannot negotiate wage increases, it has succeeded in securing higher ratings for its members, thus boosting their pay. In addition, the Association provides a weekly hospital and sick benefit payment of $10 a week, payable for 4 weeks'to any member who is injured or becomes ill, whether sustained on the job or off. It also makes loans to needy members. Funds for these purposes are obtained from monthly dues of $1. Conclusions with respect to the Association From the facts set forth above, it is clear that the Association had its inception in' the spontaneous desire'of a group of employees to obtain the benefits of collective bargaining No sooner, however, was this idea expressed, than the Association became the beneficiary of the respondent's support and assistance. At the moment when the Association's greatest need was an opportunity to explain its mission, the respondent provided that opportunity by permitting the use of its premises for meetings and discussions . Thereafter, when the Association assumed functional form as a result of another meeting on company property, the im- mediate need was to solicit members and collect dues. Again the respondent made possible the accomplishing of this purpose by permitting an active solicita- 'tion and membership campaign to take place on its time and property. At no time in the initial stages of this activity did 'the respondent stop or even limit the Association's efforts to enroll members and collect their dues. Indeed,' the respondent has never ordered that this activity be stopped. Under these circum- stances, the employees could not fail to conclude that the respondent approved the Association's conduct so freely and openly engaged in , It is reasonable to infer that approval of its conduct implied approval of the organization itself as an employee representative. 531647-43-vol 49-9 6 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor must it be overlooked that the purpose of the Association„ as expressed at one meeting-to keep out the C. I. 0. and the A. F. of L.-had the tacit appro- bation of one supervisor who otherwise interfered in the Association's adminis- tration. Another supervisor aided in the collection of dues and urged the employees under him to join the Association. In addition, the Association's con- tract of February 26, 1942, granted exclusive recognition without an affirmative showing that the Association represented a majority of employees in an appro- priate unit. This recognition coupled with the foregoing acts of support, assist- ance, and interference was the indelible stamp of the respondent's approval. This contract was superseded by the agreement of March 26, 1942, which con- itained a wage clause and set up grievance machinery for all employees. The undersigned is of the opinion that whether the two agreements granted exclusive recognition, or were restricted to members only, is not of controlling importance. In either event the recognition implicit in both agreements was an act of further support by the respondent which enhanced the prestige and authority of the Association as a labor organization. In summary, the respondent has supported and influenced the Association by permitting it: (1) to organize on company time and property; (2) to solicit members and collect dues without restraint or limitation; (3) to hold depart- mental meetings, elect stewards and discuss Association affairs on company property ; (4) to post notices without the respondent's approval ; and has further supported and influenced the Association by; (5) expressing approval of and interfering in the administration of the Association; and (6) entering into the contracts of February 26 and Marcli 26, 1942. This support and approval of the Association by the respondent is not wiped out or effaced because of any accom- plishments the Association thereafter achieved.' The respondent's favor and support have so permeated the activities of the Association as to eeffectively impede and,hamper the Association as a genuine, truly independent, bargaining agency. The respondent's influence has never been dissipated and until this is done the employees will remain without free and independent labor representa- tion, uncontamiated by employer influence. When this has been done, the em- ployees will then be free to determine for themselves the nature, kind, and type of employee representation they desire. From the foregoing it follows inescapably that the respondent dominated and interfered with the formation and administration of the Association- and con- tributed support thereto, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is further found that the contract dated March 26, 1942, with the Asso- ciation, is an agreement made with an organization not freely chosen by the employees of the respondent as their representative for the purposes of collective bargaining with the respondent, and constitutes an illegal interference with the rights guaranteed employees in Section 7 of the Act. B. The discriminatory discharge of Wilbur D. Knapp The complaint alleges that on or about April 27, 1942, the respondent dis- criminatorily discharged Knapp and thereafter refused to reinstate him. The respondent asserts that it discharged Knapp because of unsatisfactory work. n The undersigned is not unmindful of benefits that ' have accrued to employees by reason of membership in the Association , or of accomplishments in the way of improved working conditions in the yard . These are achievements which need not and ought not to be destroyed. MERRILL-STEVENS DRY DOCK & REPAIR COMPANY '709 Knapp, an electrician , commenced work for the respondent in June 1941, at an hourly wage of 88 cents. Around July 1, 1941, Knapp's hourly wage was increased to $1.07. He received his last increase about April 20, 1942, when his rate was raised to $125 per hour. Knapp was rated a first class electrician and in late February or early March, 1942, was promoted to the position-of. 'leader man and placed in charge of the night electrical crew. On March 25, 1942, Knapp signed a pledge designating the Union as his bargaining agent. Numerous employees who had occasion to work with Knapp testified on the Board's behalf as to his skill as an electrician. Their estimates vary in degrees of praise from "good", "better than the average" to "excellent". The respondent did not deny Knapp's skill. Smith testified : "As an-individual mechanic I had no more complaint about him than the other men. As far as ability, when he wanted to work, -he had the skill." Reference has been made-above to Knapp's activity as a member of the Asso- ciation, and his differences with Smith that led to his resignation as a steward in March 1942. Events of the week of April 20, preceding Knapp's discharge on April 27, are significant in understanding the respondent's conduct on the latter date. When Knapp reported to work about 4 p. in., Monday, April 21, he received at the yard entrance, from Arthur O'Day, the Union's representative, a copy of the Shipyard Worker containing a story about the Merrill yard. The essential facts concern- ing the'incident that followed are not in dispute." Knapp reported for work aboard the Volkhov, a ship then in drydock. He met William Cole, vice-president of the Association,- and asked him if he had seen a copy of the Shipyard Worker containing the Merrill story. Knapp stated to Cole, "Oh, boy, you want to read it, it is hot". Cole indicated his willingness to read' the account and Knapp handed him his copy of the paper. After reading the item, Cole and Knapp fell into an argument, Cole asserting that the Union's sole interest was to extract excessive initiation fees and dues from members without returning any benefit. Knapp replied that this was not true and that he knew better. Cole demanded proof, whereupon Knapp showed Cole the provision in the Union's constitution fixing initiation fees at not less than $2 nor more than $10. Cole thereupon accused Knapp of seeking to cause a disturbance and stated that the Association was able to handle any grievances or complaints of employees. Knapp replied that he was satisfied with his own conditions but that other men were not, and that the Association was inadequate, citing his own experience as an Association steward and stating that the Association was "all controlled by" Merrill. This ended the conversation between the men but on April 22, Cole remarked to Smith, "You should have heard Mr. Knapp's soap-box speech". That afternoon when Knapp reported for work, Smith asked him, "Listen, old man, what is this about the soap box speeches you are making down on the boat?" Knapp replied that he' had not made any speech but was "setting Mr. Cole straight on what it costs,to get into the CIO". On the next day, April 23, Knapp asked Cole whether he had said anything to Smith about the incident. Cole admitted that he had. On the night of April 22 or 23, Knapp was at work with his crew on board the Volkhov. According to his testimony, he found some fault with the work left by the day shift, ordered his crew to suspend and continue on another job and sent "'Knapp, Smith and William E. Cole, Jr., an influential member of the Association and member of its executive committee, testified about this event. Their testimony is in dispute only as to such matters as the time of the event, whether at 4 o'clock as testified by Knapp or at 6 o'clock as testified by Cole. In the account set forth below, the under- signed has relied upon the testimony of these witnesses making findings based upon what he believes to have been the actual conversations as they occurred. - 710 DECISIONS , 0'F NATIONAL LABOR RELATIONS BOARD for Smith. Knapp's testimony that he,sent. for Smith to come, to the yard was substantially corroborated by John Axline. Knapp was kept busy at other tasks. He testified without contradiction that he was not able to e:it his supper until 8 p. in., consuming 15 minutes of the allotted 30 minutes of suppertime to do this, -thereafter returning to work. Knapp testified further that he went to the electrical shop at 9, p. in. to spend the balance of his supper time listening to news broadcasts over the radio. While there Smith entered, inquired what was wrong, and both men went down to the Volkhov to inspect the job. It is Knapp's uncontradicted testimony that thereupon Smith stated to him, "I would give anything if I had another mechanic around here like you." Aside from what is uncontradicted above, Smith's version of this incident is different. He testified that he appeared voluntarily at the yard that night, and observed Knapp about 10: 15 p. in. slumped into a chair before a radio ; that it was music, not news„ that was being broadcast, and that he cautioned Knapp to return to work and not listen to the radio. He admitted that he and Knapp'did inspect some work on the Volkhov that night, that he praised Knapp's ability, and that Knapp did state that he was on supper time when seen in the electrical shop. However, Smith testified that whatever criticism Knapp offered of the inspected work was "to cover up for himself," to keep Smith's mind "off what I had in my system". As to his praise of Knapp's ability; Smith testified it was "in a different light, perhaps, than it would sound. I did it in a very sarcastic manner ; not as any cQmpliment, but as a reflection". Knapp's testimony set forth above was simple, direct, and understandable and was in part corroborated by that of Axline. Smith was profuse in explanation, and his mixed denials and admissions were further qualified. The undersigned believes and finds Knapp's version to be the one that is substantially correct and in accord with the facts. As noted above, Knapp became leader man in charge of the night electrical shift in late February or March 1942. This was a promotion because of the greater responsibility involved, the authority exercised and the work and men that were supervised. Thereafter, President Merrill decided to discontinue this shift, "Due to work falling off, and on account of the unsatisfactory conditions that were prevailing at that time in the work; production seemed to slow down." There is no satisfactory credible evidence that Merrill discussed this question with Smith before his decision to discontinue it 14 Accordingly, on April 25, 1942, Smith received the following written order from Merrill : After checking up the different electrical jobs in the yard I do not think it advisable to continue the night shift at the present time. Therefore, consolidate them with the,day gang, beginning Monday, April 27th Smith showed Knapp the order when Knapp reported for work that afternoon, and instructed him to have his crew complete their work that night and to have the full crew report in for work Monday morning, April 27. On Monday, Smith 14 Smith testified : Q. Did you talk to Mr. Jim Merrill about knocking off this night shift before be gave you these instructions? A. I don't think so. Q. Did he talk to you about the production, I mean Mr. Jim Merrill. Did he talk to you about the production of that night gang? A. He often asked about it The day gang as well. Q. Well, did he discuss with you the factthat your night gang -was not producing up to standard? A. I believe he did. Q., You don't remember? " A. Not definitely,-no. a MERRILL-STEVENS DRY DOCK & REPAIR' COMPANY 711 assigned all, other members of the night crew to new jobs in the yard. Then, Smith turned to Knapp and said: "Old man, when the night gang went that meant your job." 15 Knapp inquired if there was anything wrong with his work and Smith replied, "No, not a thing ... We are- just making some changes and' this is one of them:" Nothing was said to Knapp about criticism of his work at this time. Knapp "flew off the handle," according to Smitli, and attributed his discharge to his union activities, particularly his conversation of April 21 about the Union with Cole. Smith testified that be denied this assertion. Ac- cording to Knapp, Smith suggested a number of places where he might obtain work and stated that in two or three weeks when "things get straightened out," he would be reemployed. Immediately thereafter, Knapp met Cole in the yard and told Cole that he had been discharged because of his conversation on April 21 with Cole. Cole testified without contradiction that Knapp also said to him, that, he had been discharged for union activities. Thereupon, Cole, accompanied by William P. Hogg, the Association's president, went to see Smith and told him that Knapp had stated he was fired for union activities. • Smith called Knapp a "damn liar," and stated to Cole and Hogg that Knapp had been discharged for "inefficiency." At this moment, Knapp returned to the electrical shop and he and Smith en- gaged in an argument. Neither Knapp nor Smith testified'about this dispute, but Cole and Hogg, who were present and' overheard the conversation, both testified in effect that Smith accused Knapp of poor work and loafing, on the job. Hogg testified further without contradiction that when he and Cole first spoke to Smith the latter indicated that he would reinstate Knapp but, when the two began to argue, Smith told Knapp he would not reinstate him "under any circumstances right at that particular time.s 10 The next day, April 28, O'Day filed charges on Knapp's behalf with the Board. On April 29, Knapp returned to the plant to see Hogg and Cole and asked for the Association's help in securing his job. That afternoon both men interviewed Smith and sought Knapp's reinstatement. Their uncontradicted testimony about their conversation with Smith is substantially in accord. Cole testified that Smith: . . . first told us that he would have to think it over, and, so, on the next day we continued to ask him to reinstate him, and he said he thought he would send him word that night to come back . . . that he did need electricians badly, and . . . he did not know where in the world he was going to get the men to do the work. Cole testified further : - That night it came out in the Jacksonville Journal of the charges that he done made against the company and the association with the CIO, and that is the last I saw of Mr. Knapp. .. . Hogg testified : Smitty had agreed to send for Knapp, but not as leader man, to put him back as an electrician, ... when we saw the charges in the paper, .:. it 11 This finding is based upon the testimony of Smith and Knapp. 11 Smith notified the timekeeper of Knapp's discharge for the first time on April 27. Knapp's separation notice, prepared April 28, states that Knapp was dischaiged "be- cause his work was unsatisfactory". Knapp's personnel folder contained two small slips of white paper stating that Knapp had been discharged because his work was unsatis- factory.. Both slips appear in the undersigned's opinion to be in the handwriting-of the same person. However, none of the respondent' s witnesses could identify the handwrit- ing or explain their presence in Knapp's folder. 712 DECISIONS OF NATIONAL LABOR RELATION S , BOARD was' dropped right there '..., naturally, there was. no interest, in Knapp coming back at all. About May 1, Knapp saw Smith and asked for his job, but Smith "shook his head 'no.' " Thereafter Knapp sought work elsewhere, each time giving the respondent as his last employer. He was unable to secure work. He testified that finally he resorted to the device of faking telephone calls to Richard, the respondent's director of personnel, to find out, from him 'why he had been discharged and what was standing in the way of further employment. He testified that on June 10 he simulated a phone call from the Bay Electric Company, spoke to Richard, and was told that "Knapp" had been fired for inefficiency. Richard and his assistant, Mrs. Wray W. Wakefield both testified that about March 1, 1942, the personnel department ceased issuing personnel information in response to phone inquiries. Richard denied speaking to Knapp ; could not recall any phone call from the Bay Electric Company but admitted that he received numerous daily phone inquiries ; stated that he once told Kenneth Merrill, the respondent's vice-presi- dent, "about the numerous calls, fake calls that had been coming in" and as a result decided not to issue further information over the phone. The undersigned believes Knapp's testimony, and finds that he did speak to Richard on June 10, and was told he had been fired for inefficiency. This belief finds support in events of the following day. OIi June 11, Knapp called upon John W. Donahoo, the respondent's 'attorney, and told him that he "just had to go to work ; that there was no ifs and ands about it." Knapp was hard pressed at the time, his 10th child having been born June 9; had been unable to secure work and on June,10 had received the information concerning the reason for his discharge from Richard. He readily consented to sign a statement dictated by Donahoo, in which he acknowledged that he was mistaken about the respondent's violation of the Act and requested that the Regional Director dismiss the charges filed in his behalf.'Donahoo made no promise to Knapp but told him he "probably ... would get back to Merrill-Stevens."" On June 15, Knapp applied to the Atlantic Coast Line Railroad for 'work and on June 16, again imitated a phone call to Richard concerning "W. D. Knapp." This time, Knapp I The following is the text of the statement : STATE OF FLORIDA, County of Duval, es: I, W. D. Knapp, do hereby certify that I called at the office of John W. Donahoo, Attorney for Merrill-Stevens Dry Dock & Repair Company, with reference to a claim which I 'authorized Arthur E. O'Day to file against said company for violations of the National Labor Relations Act. I told Mr. Donahoo that I had come to the con- clusion that ,I was mistaken in believing that the company had violated the Wagner Act in my case, and I hereby make formal request to the Regional Director of the National Labor Relations Board for the Tenth Region, that my charge against Merrill-Stevens Dry Dock & Repair Company be dismissed. This action is taken voluntarily on my part, without any understanding or agree-. ment between myself and the company or their attorney. (s) W. D. KNAPP. W. D. Knapp. Sworn and subscribed to before me this 11th day of June A. D. 1942. (s) LAURELLED BRANTLEY, Notary Public. i8 Knapp admitted that he told Donahoo on June 11 he "was thoroughly disgusted with everything, with the N. L. R. B. and the CIO," that he "was going hungry," that O'Day was using this suit for the purpose of organizing "the respondent's yard", and that 'one of the purposes of filing charges was "to get a legitimate organization down there." i MERRILL-STEVENS DRY DOCK & REPAIR COMPANY • 713 was told, "Mr. Knapp Is a good electrician.... laid off due to lack of work." Knapp was hired by the 'Atlantic Coast Line Railroad, on June 17. Smith testified that he first decided to discharge Knapp sometime between the late afternoon of April 25, when he received Merrill's order to discontinue the night • shift, and 7 :30 a. in. Monday, April 27. In support of his decision Smith testified to a series of incidents concerning defective and poor workman- ship for the most part occurring after Knapp had been promoted to the position of leader man. When asked when it was that Knapp became unsatisfactory as an employee, Smith first testified : "it was noticeable after he was employed about three months." Later he testified : "When he really got in my hair and began to get unsatisfactory was right prior to his dismissal." Smith admitted that when first employed Knapp was a satisfactory worker, that he "straightened up" after exhibiting some unworkmanlike tendencies and was an efficient elec- trician when made a leader man. Smith's testimony respecting Knapp's attitude as a worker was not convincing.=° According to Smith, Knapp, after becoming a leader man, drilled and tapped holes,when he had been instructed to drill them ; used excessive materials on two occasions; refused to cooperate with R. C. Switzer, sent in to help in his work; mistakenly installed one pipe instead of two on the Volkhov; disconnected the shore electric service on the Pollux before the ship was floated ; and in general did "too much `bumming' on the job." With respect to the above incidents, the impression gained from listening to their recital was that the alleged errors were such as might ordinarily arise in the course of work where reasonable men differed as to how a certain repair job was to be done. Moreover, the errors catalogued by Smith are rendered somewhat suspect by Switzer, who called by the respondent, testified that Knapp did not resent his work with him ; and that at times Knapp would "go to kidding and joking . . . but, of course we all do that." As to the disconnection of shore service on the Pollux. Knapp denied responsibility for it and the undersigned' believes from the testimony of W. R. Monaghan, the respondent's general super- intendent, that this was due to no fault of Knapp. Indeed, Knapp restored the service on the Pollux, Knapp denied responsibility for it and the undersigned 19 This finding Is based on Knapp's testimony although Richard and Wakefield denied any knowledge of a conversation with Knapp on that dav. "A characteristic example of Smith's testimony is found in the following excerpt from the record : Q. Now, when did he [ Knapp] change from satisfactory to inefficient? A. He became more so when he was put on nights. Q. Would you say he was satisfactory at the time he was put on the night shift? A. Yes, to a certain extent. That is the reason I put him on the night shift. Q. All right, then, his inefficiency and his being unsatisfactory to you began at the time he went on the night shift, is that correct? A. Shortly after he was put on the night shift. Q. All right, up to the time he was put on the night shift, he was a satisfactory and efficient employe, is that correct? A. No, not 100 per cent, because prior to his going on the night shift, I had a• little trouble with him and bauuled him out for it Q. Then, he was inefficient before he was put on the night shift? A. He straightened himself out. I bawled him out and he gave me every assurance that he would do right by me and by the job and everybody concerned. I considered that, as you might say, his sales talk to me, and I gave him the night shift, because he did straighten himself out after that, after I bawled him out. Q. Then he became efficient? A. Then he became efficient and then I put him on the night shift, and he was efficient on that at the beginning of the job, and then he gradually went to slipping. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leader man on the day shift and assistant to Smith, who testified that Knapp had unnecessarily torn out work done by the day shift, admitted on cross-examination that it' was "probably" necessary for Knapp to do this, because of improper installation. Rice further admitted that no discharges were ever made because of the faulty work of the day shift. Smith testified further that work did not go well on the night shift under Knapp ; that he noticed it three or four nights after the shift went on and he believed the crew was too large for Knapp to handle. Smith cautioned Knapp to increase production but other than this and reducing the size of the crew did nothing to help Knapp in his work. Smith called Knapp's attention to the welding on the conduits and excessive use of materials, but he admitted that electricians frequently have more than one way of doing a specific task, and to a certain extent the method of performing work becomes a question of judgment to be exercised by the worker. Smith discharged only Knapp, whereas other members of the night crew were given new employment. He testified that Knapp was not transferred to the day shift as an electrician because after working as a leader man, Knapp would not have given satisfactory service as an electrician n The undersigned questions whether this is true in view of Smith's need for electricians and his apparent willingness - to reinstate Knapp before the charges had been given publicity. In a further effort to show lack of discrimination in Knapp's case the respondent produced a number of witnesses who testified that they observed Knapp loafing and sleeping while he should have been at work and,the respondent contended that the testimony of these employees indicated a pattern of conduct on Knapp's part which lent support to Smith's charge that Knapp was inefficient and a poor producer. For example, John Doering testified that he observed Knapp on a scaffold high above the machine shop floor, "sitting down nodding" ; ClareuceN McCumber testified that his helper- searched the yard for an hour and a lbalf one night before finding Knapp ; H. T. Dillard testified that he observed Knapp alsleep in the lounge of the Byrnar; and Erik Hansen testified he found Knapp asleep iii the captain's cabin on the Bymnar. Knapp denied that he ever slept while at work or that he "bummed any more than anyone else.", The under- signed does not-believe that a resolution of this conflict is determinative of the issue in Knapp's case for the reason that all of the above witnesses admitted that they never mentioned the observation of Knapp's alleged sleeping to Smith. The information, as disclosed at the hearing, was ascertained for the first time during the respondent's investigation of the case and long after Knapp's discharge. Hence, this conduct, assuming it did exist on Knapp's part, did not enter into or effect Smith's decision to discharge Knapp. Knapp's employment history and Smith's testimony concerning his alleged conduct as a leader man have been set forth at length in order to ascertain the true motive for the discharge. In seeking to ascertain this motive, the testimony of Smith concerning Knapp's many alleged shortcomings is not persuasive. Par- ticularly is this so for the reason that the Pollux incident was not due to any fault of Knapp or reported by Monaghan to Smith, and Switzer contradicted Smith as to the effect of his work with Knapp. Any other incident cited by 21 Smith testified : ". . . if I brought him back to the day shift it would have been in terms of a demotion, instead of promotion, and a man just does not give you any service when those things take place, because he is subject to a certain amount of criticism from the other men that work with him." MERRILL-STEVENS DRY DOCK & REPAIR COMPANY 715- Smith is no more' worthy of belief, because of his general untrustworthiness as a witness 2 The shifting nature of the respondent's defenses in justifying Knapp's dis- charge is also significant. Nothing was said to him about his alleged ineffi- ciency at the time of discharge. When Knapp and Smith thereafter fell into an argument, inefficiency was cited in denial of Knapp's assertion that his dis- charge was due to union activities. But after Knapp executed the statement prepared by Donahoo acknowledging error in filing charges and requesting with- drawal, he was thereafter praised as a workman and his layoff ascribed to lack of work. Finally at the hearing the respondent attempted to buttress previous reasons by dragging in the defense of sleeping on the job, unknown to it at the time of Knapp's discharge, but calculated to establish a pattern of conduct that would lend support to the general charge that Knapp loafed. The under- signed believes, as Switzer testified, that in slack or dull moments Knapp may have idled his time or engaged in small talk with other employees. In this con- nection, Smith when asked at the hearing if Knapp's "soap-box" speech influenced his decision to discharge Knapp, replied : "No, nothing more than it was just an- other item of lost time, you might say. It is not what he said, but what he was doing." Members of the Association, particularly Nixon, enjoyed the free rein of the entire yard for Association 'activities on and off company time. They were never interfered with or disciplined and at no-time did the respondent notify these favored few that their activities must stop. Nixon acknowledged that his activities could be characterized as loafing. He admitted that although he had been warned on at least three occasions, he was nevertheless, persisting "fre- quently" in his conduct even at the time of the hearing. The inference of dis- criminatory treatment in Knapp's case is unmistakable when comparison is made- between the disparate treatment accorded Nixon and the discharge of Knapp shortly following his advocacy of the Union. This inference is strengthened in recalling Hogg's undenied testimony that Smith stated that he planned to re- call Knapp because he needed electricians but the entire matter was dropped after it was disclosed that Knapp had filed charges and resorted to the processes of the,Act to secure reinstatement. The undersigned believes Smith had no serious fault to find with Knapp's record as a worker ; that he gave no thought to the discharge of Knapp until after he first learned of his advocacy of the Union; and that the elimination of the night shift provided the pretext for dismissing Knapp. Under these circumstances, the undersigned concludes and finds that the respondent discharged Knapp on April 27, 1942, not because the night shift was eliminated; or that Knapp appeared to be inefficient or engage in excessive loafing but because Smith, its responsible agent, was opposed to his union interest, activity and membership. By thus discharging Knapp, the respondent discriminated in regard to his hire and tenure of employment, and thereby discouraged membership in the Union and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ' "The undersigned does not credit the testimony of William A. Kelly, a labor and ma- terial checker employed by the United States Navy, at the respondent's yard. Kelly testi- fied to two incidents involving Knapp which lie reported to Smith. Kelly was so obviously wrong and confused as to time and place of these alleged events as to render his entire testimony valueless for the purpose of appraising Knapp's conduct. Smith exhibited some of the same confusion as a witness. For example, he testified that about October 1, 1941, Kelly complained to him of Knapp's .loafing on the Bymar. It is undisputed that the Bymar was not docked until December 23, 1941. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Other interference, restraint, and coercion The complaint alleges, among other matters, that on or after August 15, 1941, the respondent questioned employees concerning their union membership and kept under surveillance the meetings and activities of the Union. Around January 1, 1942, officers of the United States Navy consulted the re- spondent in respect to its personnel forms and hiring policies. As a result of their suggestions the respondent adopted new personnel information forms. 'Thereafter all employees and applicants for employment were required to answer, inter alia, "List All Organizations to which you belong, including Trade, Profes- sional, Social or Fraternal." Merrill testified that this question was suggested by the officers and : ... Their explanation in regard to this was that they understood that there were several organizations in the United States that were headed under social organization, mostly, but were organized for the purpose of disturb- ing the American Government, and if it was possible to get employes to give us the names of anyof these so-called social, fraternal, or other organizations, it might assist the Intelligence Department of the Navy, as well as different other Intelligence 'Departments of the United States in breaking up a lot of these fifth columnists, agitation that was going on at that time. That was one of the reasons we have asked this question, grid for nothing more, insisting that we get any information that,we have on that. According to Merrill's testimony, the naval officers mentioned "social, fraternal, or other organizations." There is no evidence that the inclusion of trade unions ,was suggested by the Navy Department or its officers. The undersigned is of the ,opinion that Merrill's explanation is naive if not disingenuous. There can be no doubt of the concern of Naval Intelligence to ferret out saboteurs and to provide ways and means of securing information to that end. To believe, however, that these officers suggested the question in issue here, hoping thereby to trap some unwary employee to disclose membership in a subversive organization, is hardly credible. Moreover, there is no evidence that the Navy was interested in the trade union affiliation of any of the respondent's employees and the undersigned assumes that officers of the United States Navy would not knowingly -direct any employer to violate the Act by making such an inquiry. The undersigned believes and finds that Naval Intelligence did consult the respondent about its personnel forms, but that it did not suggest the inclusion of any question concerning union affiliation; that this was done by the respondent, upon its own initiative ; and that in so doing it violated the Act 2' Richard, personnel director, testified without contradiction that sometime in the Spring of 1942, the respondent discontinued the practice of inquiring into the .affiliations of its employees and applicants for employment. The discontinuance of an unremedied unfair labor practice is no assurance; however, that it will not be resumed in the future.24 Accordingly, the undersigned finds that the re- spondent, by inquiring into the union affiliation of employees and applicants for employment interfered with, restrained, and coerced its employees in the ,exercise of the rights guaranteed in Section 7 of the Act. ttMatter of Gates Rubber Company and International Brotherhood of Electrical Work- ers; Local Union No. 68, affiliated with the American Federation of Labor, 30 N. L. R. B. 170. u See Matter of Consolidated Edison Company of New York, Inc., et al. and United 'Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R . B. 71; aff'd 305 U. S. 197. 1 MERRILL-STEVENS DRY DOCK,& REPAIR COMPANY - 717 D. Alleged interference, restraint, and coercion In connection with the allegation of the complaint that the respondent has { kept under surveillance the meetings and-activities of the Union, the• Board relies upon the testimony of S. V. Adams, Jr, a pipe fitter, employed by the respondent. Adams testified that on the evening of-July 1, 1942, he drove to a meeting of the Union held in its hall at the southwest corner of Bay and Newman -Streets. Adams parked his car in front of the union hall and shortly there- after observed a, Packard station wagon parked on Newnan Street and Vice- President Kenneth Merrill, accompanied by a lady and child, alight from the car. According to Adams' further testimony, Merrill crossed in front of him and walked north on Newnan Street in the direction of the Jacksonville business district. During the course of the meeting that followed, Adams had occasion to arise from his seat and go to a 'water cooler for a drink. He testified that as he did so he glanced out of the window of the meeting place and saw "some- one in the beach wagon. They were smoking. I could see the red tip of the cigarette, cigar, or pipe, which ever it was." At the conclusion of the meeting, Adams got into his car and proceeded home- ward. He testified that he had proceeded only a Short distance when he ob- served the Packard station wagon in back of him; that as he drove over the St. John's River bridge, the station wagon was still in back of him; and when he slowed down or' speeded up, the station wagon adjusted its speed to that of his car. Adams testified that he "realized somebody was following" him. He testified further, "I slowed down to almost a stop, and this other car, realizing- of course that I had noticed him, whipped out around me and made a quick turn * * *, and in the meantime I turned on my bright lights and observed the car that was in question, and it was the Packard beach car." When asked if lie could tell who was driving the car, he replied, "Not definitely. * * * From my best knowledge it was Mr. Merrill. It just appeared to me, the way he looked, the back of his head, and everything." Adams testified that a check ,of the license number of the station wagon was identical with, the license plates of the station wagon driven by Merrill which he observed the next day parked -on the respondent's property. On cross-examination Adams testified as follows: Q. You don't know whether that was Kenneth there or not, do you? A. Positively, no, but the outline of his head. Q. Are you willing to swear it was Kenneth Merrill driving that car? A. I would not swear who it was. Adams admitted that he has not been treated differently by the respondent as respects his working conditions since his alleged incident, except that according to his testimony, Kenneth Merrill has not greeted him when they have met in the yard. Kenneth Merrill testified he did not know Adams, that lie did not know on July 1, 1942, where the union ball was, and that be did not know his own whereabouts on that evening. He admitted that he is married and has one child, that he occasionally goes to the motion pictures in Jacksonville, and that it might have been possible. for him in that event to have parked the station wagon which he drove in the vicinity of Newnan Street on July 1. He vigor- ously denied that he trailed Adams that evening or that he loaned the station wagon to anyone else for that purpose, and that he has never asked for or re- ceived a report on the activities of the Union. Adams was a credible witness and his credibility is attested by the fact that he would not positively identify Merrill as the one who followed him in the station wagon. Kenneth Merrill likewise was a credible witness and appeared 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be the sort of man who would not engage in or lend himself to such activities as spying upon a trade union. In oral argument, counsel for the,Board stated that the above facts disclosed "as strong a case of surveillance as I have ever seen." The undersigned does not agree that the Board has by the above testi- mony of Adams established a case of surveillance for which the respondent is responsible. In the absence 'of positive identification of the individual who drove the beach wagon and in the further absence of any evidence which would indi- cate who, if not Merrill, drove the car, the undersigned is of the opinion and finds that the Board has not established a case of surveillance. Accordingly, it will be recommended hereafter that this allegation of the complaint be dismissed. On March 24, 1942, the City Council of Jacksonville passed an ordinance "to safeguard certain water-front areas of the City of Jacksonville from fire, explo- sion and acts of sabotage during the National Emergency " According to Presi- dent James Merrill, a member of the Council, this ordinance was passed largely at the request of the United States Coast Guard and was aimed to prevent loiter- ing of suspicious characters within the area restricted by the ordinance. The respondent's shipyard lies within the area restricted by the ordinance. The Union started to organize. the respondent's employees on April 6, 1942, when O'Day distributed copies of the Shipyard Worker, the official organ of the Union, to the respondent's employees. He testified without contradiction that the watchman at the plant gate ordered him to stay on the sidewalk in front of the plant and that O'Day stated that this was "alright" with him. On or about May 5, O'Day distributed some 200 to 250 copies of the Shipyard Worker to men who left the yard at the end of their shift at 4 o'clock. O'Day testified without contradiction that he returned at about 6 o'clock and, as he started to distribute further copies of the paper, he noticed two city policemen talking to the watch- man, that thereupon they asked O'Day what he was going to distribute and told him that they had orders not to permit the further distribution of literature. O'Day was told by the police department that he would not be allowed to dis- tribute any more literature on the water-front because it was in the zone restricted by the above-mentioned ordinance. Thereafter, O'Day conferred with Mayor Alsop, of Jacksonville, who, accord- ing to ODay's uncontradicted testimony, told him that every effort would be made to keep him away from the Merrill-Stevens gates. About a week later, in O'Day's presence, Alsop telephoned to Merrill but did not speak to him. O'Day admitted that subsequent to this last visit with Mayor Alsop he continued to distribute leaflets on the sidewalk opposite the respondent's plant without further molestation by the police. He admitted that the police told him the south side of Bay Street upon which the respondent's yard faced, was in the restricted zone, and that he was not bothered when he engaged in his activities on the north side. Merrill denied that he had ever asked the Police Department to prevent O'Day from distributing union literature. He admitted, however, that Alsop had spoken to him "in connection 'with the distributing of,pamphlets and peo- ple loitering along in that zone soon after the ordinance was passed."' He could not recall whether O'Day was mentioned in his telephone conversation with Alsop. Merrill testified further : [Alsop] asked me what about it and I said. "Well, I don't know any- thing about that, that is up to the Police Department and the Coast Guard; . . . and you as the man, together with the Chief of Police, who operate the Police Department of the city, know what you are supposed to do . . .." - I did not ask him to keep Mr. O'Day'from distributing any pam- phlets at any time. He asked me if those people are supposed to be MERRILL-STEVENS DRY-`DOCK & REPAIR COMPANY 719 there, and ' I says, , "They are not employees of our plant; and are not employees of any of the ships down there,_ as far as I. know," and I said, "According to my understanding of what the Coast Guard wanted, they did not want anybody inside of that area, in any of the area that they de- scribed, except those who had business in that area, and are employed, actually employed by concerns doing business in that area, and they wanted everybody else, all the people, kept moving." in the oral argument on the record that followed the presentation of testimony, the undersigned inquired of counsel for the Board if he was .to pass upon the validity of the ordinance and the acts of the Jacksonville Police Department. In reply counsel for the Board stated, ". . . what I am asking you to pass on is this, the watchman calling the police about O'Day, and stop- - ping him from passing out leaflets, when he was not on restricted property, ... that is the only thing I want.your Honor to pass on." A study of the ordinance above referred to reveals ambiguous language therein and it is not clear whether the restricted area ended at the southerly line of Bay Street or included the entire width of the street. In any event, the undersigned believes that no finding is necessary' with- respect to the validity of the above ordinance or the actions of the Police Department. There is no evidence that the police were called by the watchman and, at best, only inconclusive evidence to support a finding that polite action was instigated by the respondent. The action of the police in restricting O'Day's activities to the north side of Bay Street was a reasonable interpretation of the ambiguous language of the, ordinance, and O'Day was not interfered with when he con- fined his activities to the northerly portion of the street. The undersigned finds, that the respondent has not violated the Act by interfering with the distribu- tion of literature by the Union .2' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. . V. THE REMEDY Having found that the respondent has engaged in and is engaging in unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of 25In view of the uncontradicted testimony that this ordinance was passed by the City Council largely as the result of a request by the United States'Coast Guard, it is signifi- cant to recall a declaration of policy issued by Admiral It . It. Waesche , Commandant of the United States, Coast Guard, with respect to those very matters interdicted by the ordinance . Admiral Waesche in enunciating a policy "governing denial of access to, or removal of persons from , vessels or waterfront facilities ," directed that such action should be taken only when there are "reasonable grounds to believe that the person involved (1) Would engage in sabotage to the vessel or waterfront facility, or (2) Would engage in espionage work, or ( 3) Has subversive inclinations as demonstrated by pro-Axis state- ments or actions , or (4) Has a previous criminal record showing arson, train wrecking, sabotage, or similar activities which would show tendencies of a destructive nature". Admiral Waesche warned that persons may not be denied access nor be removed "because of any bona fide labor activity , including, slow downs , sit downs , strikes, or picketing." Circular to District Coast Guard Officers and Captains of the Port , May 12, 1942. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act and to restore as nearly as possible the status quo existing prior to the commission of the unfair labor practices. The undersigned' has found that the respondent has dominated and interfered with the formation and administration of, and has contributed support, to the Association. The effects and consequences of the respondent's domination, interference with, and support, of the Association, as well' as the continued recognition of the 5Association as a bargaining representative of its-employees, constitutes a continuing obstacle to the fiee exercise by its employees of their right -to self-organization and to bargain collectively through representatives of their own choosing. Because of the respondent's illegal conduct the Asso- ciation is incapable of serving the respondent's employees as a genuine collec- tive bargaining agency. Accordingly, the undersigned will recommend that the respondent, disestablish and withdraw all recognition" from the Association as representative of any of\its employees for the purpose of dealing with it concerning `grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment:28 The contract of March 26, 1942, between the respondent and the Association, which by its terms is still in effect, was and is part of the respondent's plan to frustrate, self-organization and to defeat collective bargaining by its employees. Moreover, it provides for recognition of the Association as the representative of the respondent's employees, although at the time the contract Was entered' into no proof was presented that the Association had been designated by an uncoerced majority of the employees covered by the contract as their representative for the purposes of collective bargaining. The undersigned will therefore recommend that the respondent cease and desist from giving effect to this or any other contract with the Association respecting grievances, labor disputes, rates of pay, wages, hours of work, or other conditions of employment. Nothing in the recommendation that follows, however, shall be, deemed to require the respondent to vary or abandon 'the wage rates or conditions of employment' which the respondent may have established in conformity with the contract as extended, renewed, modified, supplemented, or superseded 2T The undersigned has found that the respondent discriminated in regard ,to the hire and tenure of employment of Wilbur D. Knapp because of his union membership and activity. To effectuate the policies of the Act, the undersigned will recommend that the respondent offer Wilbur D. Knapp immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority and other rights and privileges. It will be further recom- mended that the respondent make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal to that amount which he would normally have earned as wages from the date of his, discharge to the date of his offer of reinstatement, less his net earnings during said period. - 26 N. L. R. B. v. Lank-Belt Co., 61 S. Ct. 358; H. J. Heinz v. N. L. R. B., 61 S. Ct. 320. 27 National Licorice Co. v. N. L. R. B., 309 U. S. 350, enf'g' as mod, Matter of National Licorice Co. and Bakery and Confectionary Workers International Union of America, Local Union 1105, (treater New Pork and Vicinity, 7 N. L. R. B. 537; N. L. R. B. v. Stack- pole Carbon Co., 105 F. (2d) 167 (C. C. A. ), enf' g as mod. 6 N. L. R. B. 171, cert. denied 308 U. S. 605 28 By "net earnings" is meant earnings less expenses such as for transportation, room, and board,' incurred by an employee-in connection with obtaining work and working 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 Croasett Lumber Company and United Brotherhood of Carpenters and Joiners' of America, 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. N. L. R. B., 311 IT. S. 7. MERRILL-STEVENS DRY DOCK & REPAIR C'O'MPANY 721 Upon the basis of the foregoing findings, of fact and upon the entire record in the case, the undersigned makes the following: i CONCLUSIONS OF LAW 1. Industrial Union' of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations, and Employees' Association of Merill=Stevens Dry Dock & Repair Co., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Employees' Association of Merrill-Stevens Dry Dock & Repair Co., and contribut- ing support to it, the respondent has engaged in and is engaging in unfair labor" practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Wilbur. D. Knapp and thereby discouraging membership in Industrial Union of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations, the respondent'has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. »1 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has -not engaged in unfair labor practices, within the mean- ing of Section 8 (1) of the Act, in that it has not kept under surveillance the meeting places, meetings, and activities of the Union, and in that it has not restricted the Union from distributing circulars. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Merrill-Stevens Dry Dock & Repair Company, Jacksonville, Florida, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Employees' Associ- ation of Merrill-Stevens Dry Dock & Repair Co., or with the formation or administration of any other labor organization of its employees, and from con- tributing financial or other support to the Association, or to any other organization of its employees; (b) Recognizing the said Association as a representative of any of its em- ployees and giving effect to or performing the contract of March 26, 1942, with the Association, or any extension or renewal thereof, or any other agreements, understandings, or arrangements entered into with the Association, respecting grievances, rates of pay, wages, hours of work, or other conditions of employment ; (c) Discouraging membership in Industrial Union of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations, or in any other labor organization of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (d) In any other manner Interfering with, restraining, or coercing Its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD own'choosing, ,and to engage in concerted' activities for the purpose' of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Completely disestablish the Employees' Association of Merrill-Stevens Dry Dock & Repair Co., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages , rates of pay, hours of work, and other conditions of employment ; (b) Withdraw all trecognition from the said Association as the representative of any of its employees for the purpose of dealing with the respondent con- cerning grievances , labor disputes, wages, rates of , pay, hours of work, and other conditions of employment; (c) Offer to Wilbur D. Knapp, immediate and full reinstatement to his former or substantially equivalent position, with out'prejudice to his seniority or other rights and privileges ; (d) Make whole Wilbur D. Knapp, for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned-as wages during the period from the date of the respondent's discrimination to the date of the respondent's offer of reinstate- ment, less his net earnings" during said period ; (e) Post immediately in conspicuous places in each of the buildings through- out the yard of its Jacksonville, Florida, shipyard, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a), (b), (c), and (d) of these Recommendations; (2) that the respondent will take the af- firmative action set forth in paragraph 2 (a), (b), (c), and (d) of these Recom- mendations; (3) that the respondent's employees are free to become or remain members of Industrial Union of Marine & Shipbuilding Workers of America, Local #32, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of member- ship or activity in that or any other labor organization; (f) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respond- ent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent has engaged in or is engaging in unfair labor practices by keeping under surveillance the meeting places, meetings, acid activities of the Union. 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 14, 1042,-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 Building, Washington, D. C.,,an original and four copies of a statement in writing setting forth such 20 See ' footnote 28, sup' a. MER'RILL-STEVENS DRY D'OC'K & 'REPAIR COMPANY 723 exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (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 permission to argue orally before the Board, request therefor must be made in writing to the Board within ten '(10) days after the date of the order transferring the case to the- Board. A'IoRTI MFR RIEMER Ti ial Examiner Dated October 21, 1942. a 5316 F7--43-vol 49-47