Young Patrol Service

In the Matter Of HILARY YOUNG, D/B/A YOUNG PATROL SERVICE and SHIP CLERKS ' ASSOCIATION, LOCAL 34, ILWU, CIO I 'Case Nos. 90-R-1768 and 20-C-100V-Decided December 9, 1947 Mr. Thomas J. Davis, Jr., for the Board. Dreher, McCarthy and Erickson, by Messrs. Erlando 0. Erickson and Frank J. McCarthy, of San Francisco, Calif., for the respondent. Gladstein, Andersen, Resner and Sawyer, by Messrs. George R. Andersen and Ewing Sibbett, of San Francisco, Calif., for the Union. Messrs. Hal C. Banks and Walter F. Lambertz, of San Francisco, Calif., for the Seafarers. DECISION AND ORDER On March 24, 1947, Trial Examiner J. J. Fitzpatrick 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 he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in and was not engaging in certain other unfair labor practices, as alleged in the complaint. He further found that the respondent had interfered with the election conducted by the Board among the respondent's employees on September 3 and 4, 1946, for the purpose of determining a collective bargaining represen- tative, and recommended that the election be set aside. Thereafter, the respondent, the Union and the Seafarers filed exceptions to the Intermediate Report. The respondent also filed a supporting brief .3 The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The i In the pleadings and in the record the name of the Respondent is sometimes misspelled Hillary , and the charging union is incorrectly refereed to as "Ship Clerks' Association, Local 34, Gatemen's and Watchmen 's Unit, ILWU, CIO " 2 These two cases were consolidated by order of the Board dated December 2, 1946. 8 The Union subsequently filed a supplemental memorandum dealing with the impact of the National Labor Relations Act, as amended , to which the respondent filed a reply. 75 N. L R. B , No. 51. 404 YOUNG PATROL SERVICE 405 rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, briefs and memoranda filed by the respective parties, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the exceptions and modifications noted below 4 1. The Trial Examiner found, as fully set forth in the copy of the Intermediate Report attached hereto, that by the conduct and state- ments of certain of his supervisory employees the respondent inter- fered with, restrained, and coerced his employees in the exercise of the rights guaranteed them in Section 7. We agree with this conclu- sion. We limit the grounds for our finding, however, to Sergeant Gleason's activities in behalf of the Seafarers, Sergeant Brown's state- ment to employee MacDougall, Brown's statement to employee Gandy and Manager Ray's statement to employee Ormsby. 2. The Trial Examiner found that Hans Plaehn was entitled to a ship assignment, and that Manager Ray's criticism of him clearly implied that he was about to be discharged. The Trial Examiner accordingly found that the respondent had discharged Plaehn and that by such discharge the respondent had discriminated as to hire and tenure of employment to discourage membership in the Union and encourage membership in the Seafarers. We do not concur in this finding. The evidence, as the Trial Examiner found, discloses no improper motive for the removal of both Plaehn and Walsh from their jobs on the 19th Avenue Pier. On July 25, 1946, both men were told not to go to work the following day but to report to the office. Walsh, on reporting, was assigned to a ship. There is no reason to doubt the respondent's contention that he was prepared to accord similar treatment to Plaehn. We do not agree with the Trial Exam- iner's conclusion that Manager Ray's criticism clearly implied that Plaehn was about to be discharged. This criticism, in our opinion, was merely an explanation of the respondent's action in removing Plaehn from his 19th Avenue Pier job. This is indicated by Plaehn's own testimony that Ray said he was "too long on that job." (Italics supplied.) Nor does it appear that Plaehn understood Ray's criti- cism as an indication that he was about to be discharged. On the contrary, it appears that Plaehn was incensed by Ray's criticism and chose to terminate his employment. As Plaehn testified, the "laziness" charge "boiled" him up and he- then threw his equipment on the counter. Moreover, when Ray declared that Plaehn was not fired but * Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and 8 (a) (3) of the Act as amended by Labor Management Relations Act, 1947. '406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had quit; Plaehn admittedly raised no issue. We do not agree that this latter statement confirms the conclusion that Plaehn was about to be discharged. We think that Plaehn's action indicated to the respondent that there was no purpose in discussing a transfer to a ship assignment, and that Plaehn's hasty action thus foreclosed any such transfer. Our conclusion that Plaehn was not discriminated against 'is supported further by the fact that the record reveals nothing in Plaehn's union activities to invite more rigorous treatment by the respondent in his case than in the case of Walsh, who was also a mem- ber of the Union. Upon the entire record in the case, we find, contrary to the Trial Examiner, that the respondent did not discharge Hans Plaehn in vio- lation of Section 8 (3) of the Act. We shall, accordingly, dismiss that allegation of the complaint. 3. The Trial Examiner found that certain activities on the part of 'the respondent illegally interfered with the free choice of bargaining representatives by the respondent's employees. The Trial Examiner accordingly recommended that the election held on September 3 and 4, 1946, be vacated and set aside. For the reasons stated below, we find it unnecessary to pass upon this recommendation. Section 9.(b) of the National Labor Relations Act, as amended, provides, among other things, that no labor organization may be cer- tified as the representative of guards if it admits employees other than guards to membership. The term guard is intended to apply to any individual "employed as a guard to enforce against employees and other persons rules to protect property of the employer or to-protect the safety of persons on the employer's p'remises." The restrictions imposed by this section thus are intended to apply to guards perform- ing monitorial duties. The guards here involved plainly perform such monitorial duties. They fall roughly into five categories : gatemen, gangplank men, hatch watchmen, ship deck patrols, and men who watch cargo on the docks. Their duties, generally speaking, are chiefly concerned with the guard- ing of property against fire and theft, and involve the application and enforcement of rules against employees and other persons. Inasmuch as both the Union and the Seafarers admit to membership employees other than guards, Section 9 (b) requires the dismissal of the petition in the representation case.,' We shall therefore order that the petition be dismissed. Upon the entire record in the case, and pursuant to Section 9 (c) and 10 (c) of the National Labor Relations Act, as amended, 6 Cf N. L. R. B. v. E. C. Atkins cf Co. (C. C. A. 7), decided September 24, 1947, 165 F. (2d) 659. YOUNG PATROL SERVICE 407, IT-IS HEREBY ORDERED that the petition for investigation and certifica- tion of representatives of employees of Hilary Young, doing business as Young Patrol Service, San Francisco, California, 'filed by Ship Clerks' Association, Local 34, ILWU, CIO, in Case No. 20-R--1768, be, and it hereby is, dismissed ; and IT IS HEREBY FURTHER ORDERED that the respondent, Hilary Young, doing business as Young Patrol Service, San Francisco, California, and his agents, successors, and assigns shall : 1. Cease and desist from interfering with, restraining, or coercing his employees in the exercise of the right to self -organization, to form labor organizations, to join or assist Ship Clerks' Association, Local 34, ILWU, CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, by soliciting members for or encouraging membership in the Seafarers' International Union of North America, A. F. L., warning his employees not to become or remain members of Ship Clerks' Association, Local 34, ILWU, CIO, or inducing and warning his employees to become members of Seafarers' International Union of North America, A. F. L. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Mail to each of his employees in the San Francisco Bay area a copy of the notice attached hereto marked "Appendix A," 6 and post a copy or copies of such Appendix A at his office in San Francisco, Cali- fornia. Copies of this notice, to=be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the re- spondent, be posted by the respondent immediately upon receipt thereof, and maintained by him for sixty (60) consecutive days in conspicuous places in his office or offices, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminatorily discharged employees in violation of Section 8 (3) of the Act, be, and it hereby is, dismissed. v 6 In the event this Order is enforced by decree of a Circuit Court of Appeals , there shall be inserted in the notice before the words "A Decision and Order ," the words "A Decree of the United States Circuit Court of Appeals Enforcing " 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : I WILL NOT in any manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist SHIP CLERKS' AssoclA- TION, Local 34, ILWU, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection by solicit- ing members for or encouraging membership in the SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL, warning my employees not to become or remain members of SHIP CLERKS' As- SOCIATION, Local 34, ILWU, CIO, and inducing and warning my employees to become members Of SEAFARERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL. All my employees are free to become or remain members of the above- named union or any other labor organization. I will not discriminate in regard to hire or tenure of employment or-any term or condition of employment against any employee because of membership in or activity on behalf-of any such labor organization. HILARY YOUNG, D/B/A YOUNG PATROL SERVICE, By ------------------------------------------ Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Thomas J. Davis, Jr., for the Board. Dreher, McCarthy and Erickson, by Messrs. Erlando 0. Erickson and Frank J. McCarthy, of San Francisco , Calif., for the respondent. Gladstein, Andersen, Resner and Sawyer, by Messrs. George R. Andersen and Ewing Sibbett. of San Francisco , Calif., for the Union. Messrs. Hal C. Banks and Walter F. Lambertz of San Francisco , Calif., for the Seafarers. STATEMENT OF TIlE CASE On May 17, 1946, Ship Clerks' Association, Local 34, ILWU, CIO, herein called the Union, filed with the Regional Director for the Twentieth Region (San Francisco, California ), of the National Labor Relations Board, herein called the YOUNG PATROL SERVICE' 409 Board, a petition for certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, alleging that a question concerning representation affecting commerce within the meaning of the Act had arisen with respect to guards and patrolmen of Hilary Young, doing business as Young Patrol Service, herein called the Respondent, employed at or on the San Francisco Bay water front. Pursuant to notice, a hearing was held on said petition at which Seafarers' International Union of North America, herein called Seafarers, intervened claiming to represent these employees of the Respondent. On August 12, 1946, the Board issued its Decision and Direction of Election ordering that an election be conducted among the Respondent's -water front guards and watchmen, excluding office employees, sergeants and others in a supervisory status, to determine whether or not these employees desired to be represented by the Union or the Seafarers. The election was held on September 3 and 4, 1946, and the Seafarers secured the largest vote.' On September 10, 1946, the Union filed objections to the conduct and results of the election. On November 13, 1946, the acting Regional Director for the Twentieth Region issued his report on the objections to the election, and recommended that the Board direct a hearing on the objections. Thereafter, both the Respondent and the Seafarers filed exceptions to certain portions of the report of the acting Regional Director, but also requested that the Board order a hearing on the objections. Meanwhile, on October 31, 1946, the Union filed a charge against the Respondent alleging violation of Section 8 (1) and (3) of the Act, and thereafter the Board ordered both cases consolidated. Pursuant to the charge filed on October 31, 1946, the Board through the acting Regional Director for the Twentieth Region, issued its complaint dated January 9,,1947, against the Respondent,. alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of the Act. The same day the Board issued notice of consolidated hearing. Copies of the complaint accompanied by notice of hearing in the consolidated cases were duly served upon the Respondent, the Union and the Seafarers, With respect to the unfair labor practices, the complaint alleged in substance that the Respondent had interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed by Section 7 of the Act as follows: (1) since about April 1, 1946: (a) persuaded,.and warned his employees not to become or remain members of the Union, (b) urged, persuaded and warned his employees to become members of the Seafarers, and (c) made discouraging,'con- demnatory, and prejudicial remarks concerning the Union; (2) about July 25, 1946, transferred James Walsh from assignment as guard on a dock to assignment as guard on a ship; discharged Hans Plaehn about July 25, 1946, and James Ormsby about November 3, 1946, and has since refused to reinstate any of them because of their membership in or activities on behalf of the Union; and (3) continued to engage in such practices after participation in a representation hearing before the Board and while an election was pending. Thereafter the Respondent filed his answer denying the commission of the unfair labor practices alleged in the complaint, and alleging that Ormsby was discharged for cause. Pursuant to notice, a hearing was held at San Francisco, California, January 20 to 23, inclusive, 1947, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Respondent and ' The election result was as follows : approximate number of eligible voters 165, void ballots 1 , votes cast for Union 56, votes cast for Seafarers 71, challenged ballots 10. 410 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD the Union were represented by counsel, the Seafarers by two officials. All par- ticipated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present testimony bearing upon the issues. At the conclusion of the Board's case, Respondent's counsel moved to dismiss the complaint because of lack of supporting evidence. The motion was denied. 2 At the conclusion of the hearing an unopposed motion was granted to conform the pleadings to the proof in formal matters. The parties waived oral argument, but since the close of the hearing counsel for the Respondent and for the Union have filed briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Hilary Young, doing business as Young Patrol Service, has his office and place of business at San Fiancisco, California, where he supplies approximately 250 civilian watchmen and guards for ships, terminals, docks and piers located on the water front in San Francisco Bay and its tributaries. The ships are engaged in trans- portation of, and the docks, piers and terminals in the loading, unloading and tem- porary storage of, water-borne cargos moving in interstate and foreign commerce. The Respondent also furnishes approximately 50 employees for similar services in the San Francisco uptown area for railway yards, manufacturing establishments, office buildings, hotels, stores and occasional public gatherings. The Respondent's annual receipts for such services are substantial' Despite its denial, the under- signed finds that the Respondent is engaged in commerce within the meaning of the Act.4 i H. THE ORGANIZATIONS INVOLVED Ship Clerks' Association, Local 34, ILWU, CIO, and Seafarers' International Union of North America (A. F of L ) are labor organizations, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Foreword Apparently none of the Respondent's employees were organized prior to the spring of 1946. The latter part of April of that year the Union started to organize Respondent's water-front guards and watchmen The campaign met with some success and on May 17, 1946, as above found, the Union claiming a majority, filed a petition for investigation and certification of representatives. This activity on the part of the Cnion apparently stimulated activity on the part of he Seafarers, and as a result, both unions were placed on the ballot of the Board-ordered election. The hearing on the petition was held on June 13, but prior to this hearing and about May 24, the Respondent and the Union entered into an agreement for a con- 2 The Respondent at this time also moved to dismiss the objections to the conduct and results of the election on the same grounds. This motion is in effect denied, as will here- after appear. I Findings as to the business of the Respondent are based on allegations in the complaint, not denied or otheiwise referred to in the answer, and the Boaid's Decision and Direction of Elections in the representation proceeding consolidated with the complaint case herein. 4The Boaid, in its Decision and Direction of Election, similarly loured the Respondent subject to its jurisdiction. See 69 N. L. R B 1376. YOUNG PATROL SERVICE 411 sent election by mail ballot between June 6 and June 13, 1946, in the agreed unit. This agreement was later canceled because of the failure of the Seafarers to agree thereto, whereupon the representation proceeding went to a hearing followed by a Decision and Direction of Election.5 The record in the consolidated cases shows without dispute that the sergeants who supervise the above watchmen and guards exercise ditties of a supervisory nature as that term has been defined by the Board. B. Interference Notwithstanding the apparent willingness on the part of the Respondent to have the question of representation decided by the orderly democratic ballot process, as indicated in the consent election agreement entered into in May above referred to, there is credible and sometimes undisputed testimony that the Respondent discouraged employees from selecting the Union as their representa- tive In the early stages of the campaign, and when the Seafarers campaign for members started the Respondent encouraged and even assisted in that campaign while continuing to discourage membership in the Union. James Ormsby, one of the early and active Union members, and whose discharge will be discussed here- after, testified credibly that in April, during the early stages of the Union organ- izing campaign, Manager Ray asked him while he was in the office one pay day how the Union was getting along, and on being told that the Union was doing "pretty good," Ray volunteered to Ormsby the information that he could not tell him whether he should join a union or not, but added, "if you do get the Union you will only get 40 hours and a dollar an hour, and you won't be any better off." e There is credible testimony, most of it undenied, on the part of a number of the employees who worked under Sergeant Gleason that in May, June, and early July 1946, Gleason, on company time, introduced Seafarers' Organizer Lambertz to the employees under him, and otherwise assisted Lambertz in securing members for that Union. In fact, Sergeant Gleason testified and admitted that until early July he not only introduced Lambertz to the employees under him on occasions but also assisted Lambertz in distributing Seafarers' applications and in securing several employees' signatures thereto Gleason further testified that, while not a member of the Seafarers, he told the men working under him that they would be better off if they joined the S'eafaiers than the Union. Gleason's further testi- mony is credited that his activities in the above respect continued until July when, in a conversation with Manager Ray, he casually mentioned that he was intro- ducing Organizer Lambertz to his men ; and. that he discontinued such practice thereafter when Ray warned him that such activities would get the Respondent into trouble.? Case 20-R-1768, 69 N L R B 1376. Ray dun not specifically deny this credited testimony of Ormsby However, Ray did deny having made a somewhat similar comment to another employee, MacDougall, and fol- lowed this denial by testif} ing that he had never made "that statement" to "any of the men at any time " Ray further testified that from the beginning of the organizing campaign in early April until the election in September, as manager, lie assumed a neutral attitude to- waid the election and the participants theiem, and repeatedly instructed all sergeants to Likewise maintain an inipaitail attitude in Union matters when talking to rank and file employees These instructions, if given, weie not called to the attention of the employees. As will heieaftcr appear, there is credible and sometimes uncontradicted testimony that some sergeants pursued a very unneutial policy of which fact Ray became aware. Under the circumstances Ray's implied denial of the above testimony is not credited 7 Gleason's testimony is further credited that the July talk with Ray was the only time that lie discussed the subject of Union activity in the plant with Manager Ray, or when the latter made any mention of the subject to him. 412 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD A number of employees testified relative to anti-Union and pro-Seafarer ac- tivity on the part of-Sergeant Brown during May and June prior to the election. Andrew MacDougall, active for the Union, testified to numerous talks with Brown about the Union on company time 'during the month of May 1946; that during these talks Brown referred to Union members as "a bunch of bums" and stated that if the Union got in the plant the Respondent would have little to do about calling the men to work ; that he as well as the Respondent favored the Sea- farers, and that MacDougall should join that union if he expected consideration from the Respondent. ' - Grover H Gandy, who joined the Union about the time he began to work for the Respondent in May 1946, testified that in June, Sergeant Brown asked him while on the job if he belonged to the Union, and observed that the employees' jobs depended upon the way they voted in the coming election, "if we went Union we wouldn't have no job" Richard G Walton, a former employee who joined the Union when he returned to work for the Respondent in June 1946, testified to several conversations with Sergeant Brown, in July and August wherein Brown told him that the Seafarers was the only union-that amounted to anything ; and that prior to voting on election day in September,' Brown told hint that the water-front guards would probably vote CIO but that the uptown guards would vote A F. of L. and swing the election. Sergeant Brown categorically denied the statements and activities attributed to him by MacDougall, Gandy and Walton. His denials are not credited as the record shows without dispute that during this period Union representatives complained to the Respondent about anti-Union and pro-Seafarer activities of the sergeants .9 In September, the day after the election had apparently been lost by the Union, James Ormsby, heretofore referred to as active for the Union, went to the Respondent's office intending to resign as watchman because he was em- barrassed by the outcome of the vote. Manager Ray told Ormsby that all he had to do was to "go along with the boys" and join the Seafarers and "everything will be all right." About the middle of September (and after objections to the conduct of the election had been filed) Manager Ray, in the presence of Sergeant Just, asked Ormsby when he was going to get his A. F. of L. button 30 By such interference with one union and favoritism towards another union on the part of Respondent's responsible supervisors, at the very time when the Board's processes were being utilized to permit the employees to make their own free choice of bargaining representatives, the Respondent, by the totality of such conduct, has interfered with, -restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act, and in violation of Section S (1) of the Act. 8 The election was held on September 3 and 4, 1946, apparently one day on the San Francisco side, and the other day on the Oakland side of the Bay. ° On two occasions in May and June, General Manager Ray admitted receiving complaints from Union Organizer Griffin relative to the activities of his sergeants. Griffin also testified credibly and without dispute that in early May she telephoned the Respondent' s office and talked with Bud Young, son of Hilary Young and who occupied apparently about the same position in management as Manager Ray, complaining about the anti-Union activities of the sergeants, and that Bud Young told her that he could not prevent the sergeants from expressing their own opinion about the Union Bud Young did not testify and there was no showing that lie was not available as a witness 10 Finding based upon ciedited and uncontradicted testimony of Ormsby. YOUNG PATROL SERVICE C. Discrimanation 413 James W. Walsih and Hans Plaehn: Walsh came to work for the Respondent in September 1945 as a guard on a ship. About October of that year, he was trans- ferred to gate watchman at Moran's Towing and Transportation Co. dock at the 19th Avenue Pier. He worked the late or "graveyard" shift (from midnight to 8 a. m.) at this dock job until July 16, 1946, when he was transferred to a job as ship guard again, which latter type of work he was still doing for the Respondent at the time of the hearing. Plaehn came to the Respondent in July 1942 and served as a guard in various capacities until the fall of 1944 At that time he planned to quit, but was offered and accepted "steady work" on the second or swing shift at the Moran dock. Plaehn also worked continuously at this job until his release on July 26, 1946. He has not since been rehired by the Respondent. Walsh joined the Union in April and Plaehn joined it in May 1946. Both were active members and did some soliciting. As found above, Sergeant Gleason in June, on company time, introduced Walsh to Seafarers' representative Lambertz, who solicited Walsh to join. Although Sergeant Gleason told Walsh at the time that the Seafarers was the "best union," the latter refused to join, stating to both that he was already a member of the CIO. About the same time of the year, an organizer for the Seafarers solicited Plaehn to join. Plaehn also refused, and said that he was a member of the Union. In view of the Respondent's assistance to Lambertz and the Seafarers during this period, as hereinabove found, it is a reasonable assumption, herein found, that in June 1946, the Respondent knew that both Walsh and Plaehn were'members of the Union and had refused to join the Seafarers. Moran Towing and Transportation Co., herein called Moran, was a valuable customer or client of the Respondent. In addition to furnishing guards for the ,dock at the 19th Avenue Pier, the Respondent also furnished guards for a number of ships that were under Moran's control. At various times, Moran complained to the Respondent about the type of service being rendered by the guards. About the 1st of July, Major Locke, who was in charge of Moran's business on the Pacific Coast with headquarters in San Francisco, telephoned Manager Ray, in criticism of the dock service Locke told Ray that too much electricity was being burned on the dock at night, tools were being lost or stolen and the day man was not answering the telephone properly. As a result of this criticism, Ray, accom- panied by Sergeant Just, investigated and caused the day guard, Marconi, to be transferred to a ship, and put a recently hired ex-service man by the name of Cowan in his place. At this time the second shift job held by Plaehn and the third shift job held by Walsh were not disturbed, nor were either of them in- formed of the complaint or in any way criticized by Ray or Just." 11 This testimony as to the complaint registered with the Respondent by Major Locke is based upon the testimony of Manager Ray as corroborated by Sergeant Just. Leslie Lub- liner , a field examiner for the Board who had been called as a witness by the Respondent on other matters, testified on cross-examination, over the objection of the Respondent that it was not within the scope of the direct examination, that he had investigated the case and had interviewed Major Locke who told him that, while he had complained of the service given to Moran by some of the Respondent's guards and watchmen, the services of the guards at the 19th Avenue Pici were satisfactory. This hearsay testimony is disregarded. The record discloses that Major Locke was available and could have been called by the Board to testify as to these events. Furthermore, the record otherwise shows that the day guard on the dock was transferred from 19th Avenue about the 1st of July and was still working as it ship's guard at the time of the hearing. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is the testimony of Manager Ray that the transfer of Walsh and the elimi- nation from the pay roll of Plaehn came about as a result of a further telephone complaint from Major Locke. According to Ray, about 4 o'clock in the afternoon of July 25, Major Locke telephoned him and appeared to be greatly incensed. He stated that he had been trying to get the 19th Avenue dock but that the guard did not answer the telephone, and insisted that the guards on both the second and third shifts be replaced as he had requested when Marconi was trans- ferred several weeks before. Ray testified that immediately after this talk with Locke, he (Ray) tried to get Plaehn, (the watchman then on duty at the Moran dock) over the telephone but was unsuccessful ; that lie then instructed Sergeant Vaughn to notify both Plaehn and Walsh to report to the office the next day and to transfer them to ship jobs. Although, as above found, Ray's testimony has not always been credited, his testimony relative to the July 25 talk with Major Locke stands uncontradicted (except as to the hearsay testimony of Field Examiner Lubliner heretofore disregarded), and is credited especially as it fits in with the events that developed thereafter. The next day when Walsh reported Ray told him that he was being taken off the gate and placed on a ship as a guard because he "loafed " and stayed in the shack too much.' At the time Walsh apparently made no objection to this criticism and the new assignment. His work as a ship guard is not as regular nor does he receive as much pay as he did on the more steady dock job. As he had been requested to do, Plaehn reported to the Respondent about 9 o'clock on the 26th of July. He asked Ray why he had been sent for and what was the matter Ray told him that he was "too long on that job," and that there were complaints that he was "too lazy, you won't get up, you won't do nothing." This comment so incensed Plaehn that he removed his badge, his identi- fication card and his cap (accoutrements of his job as watchman) and threw them on the table. Ray then said to Plaehn, "You are not fired, you are quitting," to which Plaehn replied, "Never mind about that," and demanded to know who had sent in the complaint about him. Ray replied that it was the "uptown office " Plaehn then inquired of Captain Goodwin, apparently in charge of Moran's office on Battery Street, San Francisco, about the complaints. Good- win told him that there had been no complaints of any kind registered against hint Plaehn returned to the Respondent's office and accused Ray of fabricating the claim. He went to the Moran dock for his coat and other personal property While there he saw again Captain Goodwin, as well as Captain Doucet who worked under Major Locke, and one or two other officials (but apparently not including Locke). Plaehn again inquired if any of them had sent in a com- plaint against him, and was informed that none of them had done so. None of the above credited testimony of Plaehn is seriously disputed, except that it is the contention of the Respondent that on July 26 and before Plaehn conferred with Ray, Plaehn was offered and refused a job as a ship guard. The only testi- mony in support of this contention is that of Ray who testified that Dispatcher Vaughn telephoned Plaehn early in the morning of July 26 and offered him 12 This shack or shed was located just inside the gate to the dock ordinarily used by pedestrians A person on foot showed his pass at the shack window and the guard inside the shack released the lock on the gate thereby admitting the pedestrian About 75 feet away fiom the shed was a pay telephone station by which outside communication was made to the guard on duty at the dock. There is another larger gate by which access to the dock was gained by trucks. This gate was padlocked and it was necessary for the guard to leave the shed and go to the gate itself to unlock it The record shoes that in cold, stormy weather and especially at night it was the custom for the guard on duty to spend most of his time in the shack, sometimes with the windows and door closed YOUNG PATROL SERVICE 415 a job as guard on a ship that was due in port that morning, .but that Plaehn, instead of accepting the job, came to the office and turned in his badge and identification card, thereby clearly indicating that he intended to quit his job. This hearsay testimony of Manager Ray is rejected Inspector Vaughn was not called as a witness to testify directly as to what instructions, if any, he had given Plaehn on July 26, and there was no showing that Vaughn was unavail- able as a witness. Moreover, Manager Ray's testimony as well as Plaehn's testimony, make it clear that Plaehn came to the Respondent's office the morning of July 26, because of specific instructions issued by Ray for him to do so. An analysis of Ray's testimony as to his conversation with Plaehn on July 26i and of Plaehn's testimony in that respect, establishes that up to that time, Plaehn did not know why he had been called to the office, or what the com- plaints were against him. It is therefore found that Plaehn was not offered a job as ship guard. Conclusions Summing up the facts existing in the summer of 1946, we find, (1) a question concerning representation open for decision by the employees and with Respondent in the position of assisting one of the competing unions and interfering with the efforts of the other organization; (2) Walsh and Plaehn, both experienced em- ployees with good records, known to the Respondent to be members and active for the Union and to have refused to join the Seafarers; (3) the Respondent, a service organization, anxious to placate and keep a valued but critical customer, (Moran) 'a transferring about July 1, the day shift dock guard, because of Moran's complaint of poor service, and on July 26, transferring Walsh from the second shift and removing Plaehn from the third shift of the dock allegedly because of another Moran complaint. Giving consideration not only to the assistance the Respondent rendered the Seafarers and his interference with the efforts of the Union, as above found, but also to Respondent's efforts as a service oiganization to meet the reasonable demands and need of his customers, the undersigned is of the opinion and finds that the transfer of Walsh from dock work to ship work was not discriminatory but came about because of the Moran complaint. Strengthening this conviction is the fact that at the time Walsh did not question the reason for his transfer. It will therefore be recommended that the complaint be dismissed insofar as it alleges discrimination by the Respondent in regard to the hire and tenure of employment of Walsh Assuming that Plaehn's removal from the dock job was also inevitable because of the Moran complaint, he was entitled to the same treatment as Walsh in view of his previous good record and longer period of service. On July 26 he was not offered a ship job, and Manager Ray's criticism to him that he was "too long on the job," "too lazy, you won't get up, you won't do nothing," clearly implied that he was about to be discharged. Ray confirmed this conviction when, highly incensed at such criticism, Plaehn threw his badge on the table, the manager added, "You are not fired, you are quitting." Under all the circumstances, and especially in view of the respondent's anti-Union attitude as hereinbefore found, the undersigned finds that Plaehn was in fact discharged; and that by such discharge the respondent has discriminated as to his hire and tenure of employ- ment to discourage membership in the Union and encourage membership in the Seafarers in violation of the Act. "The Respondent ceased serving Moran September 20, 1946, when that concern ceased doing business on the West Coast 416 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD James Ormsby: Ormsby was also an experienced guard. At the time of the hearing he was employed elsewhere, but he had worked as a guard for the Re- spondent from December 1941 until his discharge on November 4, 1946. He joined the Union the first of May 1946, and thereafter was very active soliciting both off and on company property. As has been previously found, Manager Ray in May attempted to discourage Ormsby's union activity by suggesting possible handicaps to the employees if the Union won the election, and in December, after the election, suggested that he join the Seafarers. On November 1, Ormsby, while talking to Sergeant Brown, was critical of the Respondent and stated that he understood from Art, the man with whom he was working, that the Respondent had an order in with an A, F. of L. hiring hall to furnish 50 guards for the Respondent as needed, 3 at a time. Brown replied that Respondent could hire men wherever he wanted to-do so." The afternoon of November 3, 1946, Sergeant Just, while on -a casual inspec- tion trip, found Ormsby with a book or magazine in his hand and warned him against reading while on duty. Later the same afternoon Sergeant Marler found Ormsby again reading and warned him that he would be looking for a job soon. As a result of the reports made by Just and Marler, Manager Ray discharged Ormsby on November 4. There is credible and undisputed testimony that in 1944 Ormsby was criticized by Manager Ray for falling asleep at work ; that in August 1946 he was trans- ferred from a Matson Building watchman's job upon complaint of the building superintendent that Ormsby read while on duty and failed to ring the hourly time-clock ; and that at least 15 or 20 times prior to November 3, 1946, sergeants had requested Ormsby not to read while working, stating that it was against the Respondent's rules. The undersigned is of the opinion that the complaint should be dismissed inso- far as it alleges the discriminatory discharge of Ormsby. While it is true that Ormsby was known as one of the most active of the Union men, it is also true that on numerous occasions he had displayed an utter disregard of proper in- structions from his supervisors. These facts and particularly his conduct on November 3, do violence to an assumption that the Respondent, being anti-Union, was looking for an excuse to fire Ormsby. Furthermore, in September, 2 months before the discharge, Manager Ray went out of his way to explain to Ormsby, in effect, that while his union had lost the election, that fact did not mean that Ormsby should quit his job. Such an attitude by management is not indicative of a desire.to eliminate an employee because of his union activities." 14 The above findings as to what transpired on November 1 is based upon the testimony of Ormsby. Brown testified that he did not recall the above conversation In this con- nection it is to be noted that November 1 was subsequent to the filing of objections to the conduct of the elections and also subsequent to the filing of the charge herein, and the question of representation was still an open one. While it was still incumbent upon the Respondent to remain neutral , he was, as Brown stated, under no obligation , contracted or otherwise , to select his employees from any particular source. The finding is made only as evidence that the Respondent knew 3 days before Ormsby's discharge , that Ormsby was aggressively active for the charging Union There is some conjectural evidence that the Respondent in the later fall of 1946 made a deal with Seafarers , which if true, would have amounted to an unneutral preference to the Seafarers in hiring This testimony, lacking corroboration, is not credited in view of its flat denial. 1b On the other hand, Manager Ray's September comments to Ormsby should not be construed as an endorsement of Ormsby 's work record up to that time Taken in their context, Ray's comments actually had nothing to do with Ormsby's work record, but amounted in effect to a suggestion of a method whereby Ormsby could get out of what Ormsby described as an embarrassing position because the Union lost the election. YOUNG PATROL SERVICE 417 fJpon the entire record in the case the undersigned therefore finds that the Respondent discharged Ormsby on November 3, 1946, and has since refused to reinstate him for reasons other than those alleged in the complaint, and that by such discharge Respondent has not violated Section 8 (3) of the Act. 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 the operations of the Respondent described in Section I, above, have a close, intimate and substantial relation to trade, traffic;' and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, it will be recommended that he cease and desist -therefrom, and take certain athrmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Hans Plaehn on July 26, 1946, instead of transferring him to-other work. It will therefore be recommended that the Respondent, upon request, restore Plaehn to his former or substantially equivalent position's which he would have held absent the dis- crimination, and make him whole for any loss of pay he may have suffered by reason of the discrimination by payment to him of a sum of money which lie normally would have earned as wages since July 26, 1946, to the date of the offer of employment, less his net earnings 17 during that period. Since it has been found that the Respondent engaged in conduct proscribed by the Act, by discouraging membership in the Union and encouraging membership in the Seafarers, it will be recommended that the Respondent cease and desist from in any manner interfering with the rights of his employees. The unlawful activities on the part of the Respondent above referred to, took place at a time when employees were being asked to indicate their free choice of a bargaining representative in an uncoerced election, and illegally interfered with this free choice. It will therefore be recommended that the election held on September 3 and 4, 1946, be vacated and set aside. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS 'OF LAW 1. Ship Clerks' Association , Local 34, ILWU, CIO, and Seafarers' Inteinational Union of North America (A. F. of L.) are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining , and coercing his 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. 16 Employment at a "substantially equivalent" position does not constitute compliance unless the "same" position no longer exists. The remedial provisions of the Act contem- plate the restoration as nearly as possible of the situation which would have existed except for the discrimination. See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N. L R. B 827. 17 Matter of Crossett Lumber Co., 8 N. L. R B. 440, 497-498. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 By discriminating in regard to the hire and tenure of employment of Hans Plaehn, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5 Respondent has not discriminated in regard to the hire and tenure of employment of James Ormsby or James Walsh, within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Hilary Young, doing business as Young Patrol Service, of San Francisco, California, his agents, successors, and assigns -,hall 1 Cease and desist from: (a) Discouraging membership in Ship Clerks' Association. Local 34, ILWU, C10, or any other labor organization, by discharging any of his employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Ship Clerks' Association,- Local 34, ILWU, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in conceited activities for the purpose of col- lective 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) Offer immediate employment to Hans Plaehn, at the same or substantially equivalent position which he would have held absent discrimination, without prejudice to his seniority or other rights and privileges, discharging, if neces- sary, any other worker hired since July 26, 1946, the date of 1'laehu's discharge, and make Plaehn whole for any loss of pay which lie may have suffered by reason of the discrimination against him in the manner provided herein in the section entitled, "The remedy" ; (h) Mail to each of his employees in the San Francisco Bay area a copy of the notice attached hereto marked "Appendix A," and post a copy or copies of such Appendix A at his office in San Francisco, California Copies of this notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent's representative, be posted as above set forth by the Respondent immediately upon receipt thereof, and maintained by him for sixty (60) consecutive days in conspicuous places in his office or offices, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered, by any other material; (c) Notify the Regional Director for the Twentieth Region in writing within ten (10) clays fro mthe receipt of this report, what steps Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) clays from the date of the receipt of this Intermediate Report, the Respondent notifies said, Regional Director in writing that he will comply with the foregoing recommenda= YOUNG PATROL SERVICE 419 tions, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of James Walsh and James Ormsby, be dismissed. It is also recommended that the Board election which was held on September 3 and 4, 1946, be vacated and set aside. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C., an original and four copies of a statement in writing setting forth such 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; and any party or counsel for the Board may, within the sauce period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the pai ty or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy thereof with the Regional Director Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 20365. As further provided in said Section 20339, 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 from the date of service of the order transferring the case to the Board. J J FITZPATRICIc, Trial Exam rner. Dated March 24, 1947. APPENDIX A NOTICE TO ALL EM PLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that: I WILL OFFER TO AAyS PLAEIi.v- immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as the result of the discrimination I WILL NOT in any mariner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form labor organizations, to join or assist SHIP CLERKS' ASSOCIATION, LocAL 34, ILWU-CIO, or any other labor organization. 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. All my employees are free to become or remain members of the above-named union or any other labor organization I will not discriminate in regard to hire or tenure of employment or any teim or condition of employment against any 766972-4S-vol 75-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee because of membership in or activity on behalf of any such labor organization. IIILARY YOUNG, D/B/A YOUNG PATROL SERVICE, By Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.