American Patrol Service

In the Matter of C. F. FELLOWS, DOING BUSINESS AS AMERICAN PATROL SERVICE and SHIP CLERKS ASSOCIATION, LOCAL 34, I. L. W. U.- C. 1. 0. Case No. 20-C-1553.-Decided December 99, 1947 1lir. Thomas J. Davis , Jr., for the Board. Mr. Harold Jackson , of San Francisco , Calif., for the respondent. Gladstein, Andersen, Resner, Sawyer, and Edises , by Messrs. Nor- man Leonard and Gerard Preston, both of San Francisco, Calif., for the Union. Messrs. Edward L. Turner and W. F. Lambertz, of San Francisco, Calif., for the Seafarers. DECISION AND ORDER On March 13, 1947, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices I 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. Thereafter, the Seafarers filed exceptions to the Intermediate Report insofar as it involved findings of violations of Section 8 (1). No exceptions were filed by the respondent. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the qualifications hereinafter set forth. Like the Trial Examiner, we find that the respondent discriminator- ily discharged six employees in violation of Section 8 (3) of the Act. 'Those Provisions of Section 8 (1) and (3) of the National Labor Relations Act which the Trial Examiner found were violated, are reenacted in Sections 8 (a) (1) and 8 (a) (3) of the Labor Management Relations Act, 1947. 75 N L. R. B , No. 79. 662 AMERICAN PATROL SERVICE 663 We also find that the respondent's conduct, detailed in the Intermedi- ate Report, was violative of Section 8 (1) of the Act in that he granted exclusive recognition to the Seafarers in the negotiation of a wage in- crease during the pendency of w question concerning representation, assisted the Seafarers in regard to the incident of Kavado's discharge, and made certain coercive statements to its employees.2 ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, C. F. Fellows,, doing business as American Patrol Service, San Francisco, California, and his agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Ship Clerks Association, Local 34, I. L. W. U.-C. I. 0., or in any other labor organization of his em- ployees, by discharging or refusing to reinstate any of his employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any terms or conditions , of their employment ; (b) Encouraging membership in Seafarers, Guards & Watchmen's Union, affiliated with Seafarers International Union, A. F. of L., by acceding to any demands for the discharge of any employees, or by negotiating with said labor organization as the exclusive representa- tive of his employees concerning conditions of employment until said labor organization is certified by the National Labor Relations Board as the exclusive representative of said employees; (c) In any other manner 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, I. L. W. U.-C. I. 0., or any other labor organization, to bargain col- lectively 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 A.ct : (a) Offer Carl B. Chilgren, Bernard Schmitz, Constantinos'Alex- opoulos, Joaquin A. Arrieta, and J. E. Kavados immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; 2 In this connection we rely only on Office manager Doll's and Sergeant Lambertz s remarks to Schmitz and Sergeant Lambertz's interrogation of Aletiopoulos. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - (b) Make whole Abbey Mendia and the other employees listed in 2 (a), above, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of the respond- ent's discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during said period, and in the case of Abbey Mendia from the date of the respondent's discrimi- nation against him to December 4, 1946, the date on which he testified at the hearing; (c) Withdraw and withhold all recognition from Seafarers, Guards & Watchmen's Union, affiliated with Seafarers International Union of North America, A. F. of L., as the exclusive representative of his employees for the purpose of collective bargaining unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees; (d) Post at his place of business at San Francisco, California, copies of the notice attached to the Intermediate Report herein marked "Appendix A."' 3 Copies of said notice, to be furnished by the Re- gional Director for the Twentieth Region, shall, after being duly signed by the respondent, be posted by the respondent immediately upon receipt thereof, and maintained by him for sixty (60) consecu- tive days thereafter, in conspicuous places, 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; (e) Mail to all the employees who were on his pay roll from May 1 through September 5, 1946, at their last known address, postage pre- paid, copies of the afore-mentioned notice; (f) Notify the Regional Director for the Twentieth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the respondent discriminated in re- gard to the hire and tenure of employment of C. E. Calkins. TATember MURDOCK took no part in the consideration of the above Decision and Order. This notice, however, shall be, and it hereby is, amended by striking front the first paragraph thereof the words "Recommendations of it Trial Examiner" and substituting in lieu the,cot the words, "A Decision and Older" In the event that this Order is entorced by decree of Circuit Court of Appeals, there shall be inset ted before the words 'A Decision and Oider,' the words, "A Decree of the United States Circuit Court of Appeals Enforcing" AMERICAN PATROL SERVICE , INTERMEDIATE REPORT 665 Mr Thomas J. Davis. Ji , for the Board 11Ir Harold Jackson, of Stan Francisco, Calif, for respondent. Gladstern, Andersen, Reanei, Sa'aile) and Edtses, by Messrs Norman Leonard and Gerard Preston,, both of San Francisco, Calif, for the C. I O. Messrs Edical d L. Tin ner and W. F. Lambertz, of San Francisco, Calif., for theA F.ofL STATEMENT OF THE CASE Upon a first amended charge duly filed on November 8, 1946, by Ship Clerks Association, Local 34, International Longshoremen Worker's Union, C I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twentieth Region (San Francisco, California), issued its complaint dated November 14, 1946, against C F Fellows, doing business as American Patrol Service; herein called respondent, alleging that respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amended charge, accompanied by notice of hearing thereon, were duly served upon respondent, the Union, and Seafarers, Guards & Watchmen's Union, affiliated with Seafarers International Union of North America, A. F. of L., herein called Seafarers With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged, in substance, that respondent: (1) discharged seven named employees on various dates z because of their membership in and activity in behalf of the Union; (2) disparaged and warned his employees not to join or remain members of the Union, urged his employees to join the Seafarers, and on or about November 25, 1946, negotiated with Seafarers to the exclusion of the Union in granting a wage increase, with knowledge that a question of representation was then pending; and (3) by the foregoing conduct engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act Pursuant to notice, a hearing was held at San Francisco, California, from De- ceniber 3 to 6, 1946, before Martin S' Bennett, the undersigned Trial-Examiner, duly designated by the Chief Trial Examiner The Board and the Union were represented by counsel, and respondent, the Union, and Seafarers by them rep- resentatives. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing upon the issues At the opening of the hearing, respondent, having pre- viously filed no answer and refusing to file a written answer, orally denied the allegations of the complaint, and counsel for the Board moved for judgment on the pleadings in reliance upon Section 203i6 of the Rules and Regulations of the Board Ruling was reserved and the motion is hereby denied Ruling was re- served upon it motion by respondent's representative to dismiss the complaint i Ameucan Patrol Service originally consisted of the partnership of Harold Jackson and C F Fellows Se\eial weeks prior to the instant hearing, according to Jackson, who rep- resented respondent herein, Jackson s interest was transferred to Fellows Jackson re- mained as general manager and in all other respects the business continued as before 2 Their manes and the dates of discharge are. C B Chilgren, 5/2/46 ; C E Calkins, 8/8/46 A F Mendia, 8/24/46. Bernard Schmitz, 5/29/46, J W. Arrieta, 8/17/46, J. E. Ka\ados, 8/5/46, C Alexopouloa, 8/6/46 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as it alleged the discharge of Bernard Schmitz to be discriminatory, and is disposed of hereinafter. After the close of the hearing, a motion by counsel for the Board for permission to file a brief was granted, and his brief has been received 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 RESPONDENT C. F Fellows, doing business as American Patrol Service,' has his office and place of business at San Francisco, California, where he is engaged in the business of supplying civilian watchmen and guards for ships, terminals, docks, piers, warehouses and other shipping installations located in San Francisco Bay and its tributaries Respondent renders this patrol service to numerous steamship companies all of which are engaged in the transportation of cargo hetvi een States of the United States and ports without the continental limits of the United States. The annual gross receipts of respondent are approximately $500,000 4 II THE ORGANIZATIONS INVOLVED Ship Clerks Association, Local 34, International Longshoremen Worker's Union, affiliated with Congress of Industrial Organizations, and Seafarers, Guards & Watchmen's Union, affiliated with Seafarers International Union of North America, A. F. of L, are labor organizations admitting to membership employees of respondent. III THE UNFAIR LABOR PRACTICES A Intel ter once, restraint, and coercion 1 Introduction The record discloses no history of union organization among respondent's em- ployees prior to the events set forth hereinafter. On or about April 2, 1046, the Union commenced an organizational campaign among the employees of respondent and a number of meetings were held. During the weeks that followed a number of employees signed cards, and a petition for certification of representatives was filed by the Union upon which a hearing was held on June 13, 19465 Seafarers had also commenced an organizational campaign among the employees of re- spondent shortly after May 26, 1946, and was represented at the hearing on June 13, 1946, subsequent to which, on August 9, 1946, the Board issued a Decision and Direction of Election. On September 3, however, charges of unfair labor prac- tices having been filed in the interim, the Board ordered the election indefinitely postponed. 2. Subsequent events Arthur Doll is office manager for respondent with authority to hire and dis- charge employees and admittedly a supervisory employee During the latter part of April or early May 1946, he summoned Guard Bernard Schmitz to the com- pany office and stated that he desired to speak to Schmitz "about this union 3 See footnote 1. , 4 The Board has previously taken jurisdiction over the operations of respondent (69 N. L. R. B. 1343). 5 Case No 20-R--1769. AMERICAN PATROL SERVICE ' 667 business " ° He said that lie knew the employees had received letters from the - C. I. 0 and suggested to Schmitz that the employees should hold off from joining any union for the time being, that the C. I 0. was attempting to put respondent out of business, and that the jobs of the guards "would be jeopardized." He tur- ther suggested that the employees make a motion in a union meeting which was to be held that they not belong to any union because there was no reason for them to belong to a union and put respondent out of business. During the latter part of May, Doll again spoke to Schmitz concerning the Union. He told him that he had spent his dollar (initiation fee in the C. I. 0.) foolishly and that he would have to join the A. F. of L. because it had been "all fixed up " Doll also spoke to another employee during May concerning the union cam- paign. While hiring C. E Calkins as a guard, on or about May 19, Doll discussed the matter of wages with Calkins and then informed him that both the C. I. 0. and the A. F. of L. were organizing watchmen on the waterfront and that "he would rather see it go' A. F of L W. F. Lambertz was a sergeant of the guards and admittedly a supervisory employee with authority to hire and discharge employees. He left respondent's employ on May 28 to accept employment with Seafarers and,thereafter conducted an organizational campaign for Seafarers among the employees of respondent. A clay or two before May 28, 1946, Lambertz told Schmitz that he would "have some dope on the new organizational drive of the A. F. of L. and that Jackson wanted all the men to join the A. F. of L." Sometime during May, Lanibeitz asked Constantinos Alexopoulos, a guard, if he had 'joined the union " Alexopoulos replied that he had joined the C. I 0. whereupon Lambertz stated that lie preferred the A. F. of L 8 Duung June, Jackson stiuck up a conversation with Guard Joaquin Arrieta, who had entered respondent's employ during the previous month, and told him that the employees had to join one or the other union. Arrieta replied that he already belonged to the Union, whereupon Jackson stated that it was a C. I. 0. union, that the C. I. 0. was infiltrated with Communists, and that Arrieta "had better join the American Federation of Labor Union." 0 It will be i ecalled that on September 3, 1946, the Board indefinitely postponed the election in which both the Union and Seafarers were to be represented on the 6 Insofar as the recoid indicates, the Union never communicated with respondent during this period. Of couise, respondent was aware of the representation petition later filed by the Union on May 17. 4 Findings herein are based upon the credible testimony of Schmitz and Calkins Doll denied that lie made any statements deiogatoly of the Union. The undersigned was unfa- voiabli impressed by Doll, who contradicted himself repeatedly on material Matteis Furtheiniore, after claiming that he had no iecolIectidn conceining any of the discharges discussed liereinaftei, his recollection was then refreshed by some cards and he then testi- fied, purportedly from memory. Later, however, he was again unable to testify concerning the discharges without inspecting the cards. Also, in attempting to portray conditions aboaid ship in a manner most favorable to respondent's version of a discharge, he gave testimony which was clearly false Again, after testifying that he regularly received reports concerning union activity among respondent's employees, he reversed his testimony and claimed that he knew nothing of this subject. His testimony here as elsewhere is rejected s Findings as to the activities of Lambertz are based upon the credible testimony of Schmitz and Alexopoulos Lanibertz admitted that he spoke to Schmitz and supported Schniiti' version of the incident in part, but denied that lie organized among respondent's eniplu ^•r 'a l n a sergeant He did not deny Alexopoulos' testimony. 79ie clear and foitliiight testimony of Aructa Jackson did not testify 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ballot On November 25, 1946, Jackson met with a negotiating committee from the A F of L --Laabertz was present in his then representative capacity for Seafarers,'but no representatives of the Union were invited At this conference, the committee requested an increase in wages and•Jackson agreed to increase wage rates to $1 per hour. It is found that by urging and warning his employees not to become members of the Union, and by urging therm to become members of Seafarers, respondent has interfered with, restrained, and coerced his emplo3ees in violation of Section 8 (1) of the Act. It is further found that by granting exclusive recognition to the Seafarers in the negotiation of a wage increase at a time when a question of representation was pending, respondent has interfered in the free choice of repre- sentatives and has further violated Section 8 (1) of the Act" B The discharges CaO Chilgi en commenced his employment with respondent in September 1944 as a guard on ships and clocks in San Francisco as well as across the Bay in Alameda In November 1945, having objected to assignments in the East Bay area," Chil- gren was promised by Jackson that lie would no longer be sent to that section. Thereafter, and until May 1, 1946, lie was not requested to go to the East Bay and he worked regularly at assignments in San Francisco His work was never criticized and he was in tact complimented by Jackson. During April 1946, when the union organizational campaign started, Chilgren was the first to join. He was extremely active in soliciting the membership of a number of respondent's employees, attended union meetings. and wore a CIO button on his clothes Sergeant Lambertz was informed by Chrlgren, in a con- versation during April, that he had joined the C I O. On May 1, Office Manager Doll telephoned Chilgren who had just returned home from an assignment on a ship in San Francisco and instructed hymn to report on the following day in Alameda. Chrlgren piotested that lie would have to arise at 4 a. in to be at work at 7 a. in and also that there was additional transportation expense He finally reminded Doll of Jackson's promise of the previous November, that his assignment on the ship in San Francisco was still open and had to be filled on the following day, and asked that the replacement for him on that job be assigned to Alameda. Doll would not agree and Chrlgren immediately telephoned back and spoke to Jackson, who was in the office with Doll Jackson reiterated what Doll had said and told Chilgren that he was discharged if he did not go and to turn in hi§ gear Clrnigren did not go The following day, Chilgren requested employment from an official of a ship- ping line on whose ship he had worked and told the latter, Sieck, of the events of the previous day. Sreck suggested that Jackson might have had a reason for assigning Chilgren to Alameda and telephoned Jackson who came over to Sieck's office and stated to Chilgren, in Sieck's presence, "I gave you credit for being a little smarter than most of the men joining the CIO . . If you joined the A F. of L I would have no objection, but joining the CIO, I do object. Why, you are affiliating yourself with a lot of damned niggers . . Before I will take any orders from the CIO, I will buy myself a fishing rod and go fishing "'2 10 Mattei of Midwest Piping and Supply/ Co . Ine, 68 N L R B 1060 Matter of Phelps Dodge Copper Products Corp . 63 N L It B 686 "Chilgien,lived in the noitheun side of San Francisco which necessitated a trip clear across the city, then a street car i ide across the 7-mile Bar Bridge, and then another ride to Alameda, i esulting in extra transpoi tation expense and a time-consuming trip 12 These findings are based upon the credible testimony of Chilgren Sreck (lid not testify. AMERICAN PATROL SERVICE 669 It is obvious that the change in Chilgren's assignment, with its concomitant hardships, was a material change in his employment of a most burdensome mature. This fact had been recognized 6 months earlier by Jackson when he granted Chilgren's request for relief from this lengthy and expensive trip, which lie had then made over 100 times without complaint. No attempt was made for e months to reassign Chilgren to Alameda until shortly after Sergeant Lambertz learned that he had joined the Union. Furthermore, although someone had to be sent to replace Chilgren in his assignment of the previous day, respondent was unwilling to keep Chilgreu there, although his employment record was exemplary. Finally, on the following (lay, Jackson, in explaining the discharge, did not even make mention of the incident of the previous (lay, but stated his objection to the Union and reviled Chilgren for joining it. In view of the above, and in view of the clear attitude of opposition to the Union by Lambertz, Doll and Jackson, as heretofore found, the undersigned is persuaded and finds that respondent was motivated by discriminatory considerations in removing Chilgren from a San Francisco assignment and assigning him to a job in Alameda, thereby discrimi- nating with regard to the conditions of his employment inducing his resignation, and thereby constructively discharging him Beruurd Schmitz commenced his employment with respondent as a guard in December 1945 or January 1946, and, insofar as the record indicates, his work recorded was exemplary but for a violation of rules allegedly occurring one day prior to Maj 29 when he was discharged by respondent. He joined the Union in April, wore a C 1 0 button at work, attended the union meetings, and also solicited the membership of the other employees. As heretofore found, Office Manager Doll told Schmitz shortly after the start of the union campaign that he knew the C. I O. was organizing among the employees of respondent, attempted to persuade Schmitz to procure the withdrawal of re- spondent's employees from the union, and told Schmitz that their jobs would be "jeopardized " A short time before Schmitz' discharge, and after the A. F. of L had entered the representation contest, Doll again spoke to him and stated his initiation fee in the C I O. was wasted and that he would have to join the A F. of 1, because it had been so arranged. On of about May 26 or 27, Schmitz was approached by Sergeant Lambertz who told hint that Jackson wanted the men to join the A F of L Finally, on the day prior to Schmitz' discharge, and just after Lambeitz left respondent's employ to work for Seafai ers, Lambeitz came on board the ship where Schmitz was assigned He then attempted to sign up Schmitz in Seaferers but Shniitz refused Shortly thereafter, Sergeant Dye came to the ship and accused Schmitz of inciting the longshoremen to "gang up" on Lambertz. When Schmitz denied this," Dye then accused him of violating a company rule by eating in the ship's mess hall Schmitz explained that the chief officer of the boat had invited him to eat there and that, in addition, the rules of respondent did not forbid such conduct. The following day, May 29, Schmitz was summoned to the company office and told by Fellonis that lie was through. Two days later, he brought in his equipment and asked Jackson why lie was flied The latter replied that his services had been satisfactory but that he had violated a rule concerning eating in the mess hall." " Thei e is no evidence of any such activity on the pact of Schnitz " This finding is based upon the testimony of Schnitz , which the undersigned credits. Respondent called no uu itnesses other than Office Alanagei Doll 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rule referred to by Jackson reads as follows : 9. Under no circumstances are guards to expect or request meals aboard ship, or to loiter in the mess hall. It is apparent that, the rule forbade guards to request meals on ship or to loiter in the mess hall, but it in no way precludes eating one's own lunch or eatoig the? e upon invitation as was the case here. In addition, the record indicates that it was customary for the guards to eat their lunches in the mess hall , and, as Schmitz testified, Doll once told him to drink coffee there if the crew did not object 15 In view of the unsuccessful attempt on the part of Doll to enlist the services of Schmitz in breaking up the organizational campaign, the unsuccessful attempts to persuade him to abandon the C. I O. for the A F of L, the clearly unsupported allegation by Dye that Schmitz was responsible for "ganging up" on an A. F. of L. organizer, and the apparent unreasonableness of respondent's position that Schnitz violated a rule at best ambiguous, the undersigned is persuaded that re- spondent availed himself of the first pretext which presented itself for eliminating Schmitz from the organization It is found that Schmitz was discharged because of his union affiliation and activities Constantanos Alexopoulos commenced his employment with respondent on April 16, 1946, and insofar as the record indicates, his employment record was spotless but for the incident relied on by respondent in effecting Alexopoulos' discharge on August 6, 1946 In fact, he was, on one occasion, complimented by Jackson on his work and was told, "You are a good man and we want to keep you." Alexopoulos strongly advocated union organization to the employees of the company, insisting that they were underpaid. Just before Sergeant Lambertz left respondent's employ to organize for Seafarers, he questioned Alexopoulos, as heretofore found, and asked him if lie had "joined the Union." Alexopoulos replied that lie had joined the C. I. O. whereupon Lambertz stated that he preferred the A F of L. About 2 evenings prior to his discharge, Alexopoulos was assigned to night guard duty upon a ship. At approximately 4 a in., lie went to the mess room for a drink of water, but discovered two seamen drinking and quarrelling there and attempted to pacify them. Just then Sergeant Kyle entered 1° and asked what Alexopoulos was doing there. The latter explained what had happened and Kyle told him to return to the deck, stating "it's all right." The next day Alexopoulos telephoned in as usual, was told to report for work, and the day passed without event. On the following day, August 6, Jackson telephoned Alexopoulos at home during the afternoon and accused him of "reading all night" in the mess room 2 nights before. Alexopoulos flatly denied this accusation, but Jackson insisted that he was discharged nevertheless IT Respondent adduced no testimony in support of the charge that Jackson levelled at Alexopoulos, although the uncontroverted testimony of the latter shows that he committed no such offense and that Sergeant Kyle knew this. And, assuming that Jackson had received such an erroneous report from Kyle or some other source, no evidence was introduced to show how or when such a report was made, although Jackson and Kyle were both available as witnesses. In view of 15 This is further supported by the credible testimony of J B Kavados that when hired as a guard, lie was instructed only not to drink or sleep on the lob as Kyle had already been around earlier that evening , accoiding to Alexopoulos, this was the first time that lie had ever dropped in on a ship more than once 17 These findings ale based upon the clear and forthright testimony of Alexopoulos Kyle did not testify, although apparently available AMERICAN PATROL SERVICE 1 671 the above, Alexopoulos' open advocacy of the C I O , the fact that his preference of the C I 0 was discovered by Lambertz, and by contrast the fact that Alexopoulos was an employee who in his short experience with respondent had already been complimented on his work and told that respondent wanted to retain him in his employ, the undersigned is persuaded and finds that Alexopoulos was discharged by respondent because of his union membership and activities. C E Calkins commenced his employment with respondent on May 19, 1946. He joined the Union, paid dues therein, and informed Lambertz when solicited by the latter in July to join Seatarers that he was already a member of the C. I. O. On August 2, Jackson offered to promote Calkins to relief sergeant and the promotion was made on :august 8 According to Calkins, while on his first day as sergeant, an admittedly super- visory position, a guard named Condron asked Calkins if he belonged to the Union and upon the latter's reply that he did, Condron stated that he also did Condron then asked what to do about his overdue dues and Calkins made a non-committal reply. Several hours later he was discharged by Jackson and Doll who told him that Condron had turned in a report that Calkins had told him to pay his union dues. It is respondent's position, as Doll alleged, that Calkins, as a supervisor, was discharged for taking sides in a labor dispute In the opinion of the undersigned, although he does not consider Doll a re- liable witness, the evidence is insufficient to support a finding that Calkins w.i. cii irged for a teason other than that advanced by respondent It is ac- cordingly recommended that this allegation of the complaint be dismissed. Joaquin i rieta commenced his employment with respondent in May 1946 as a guard and there is no evidence of any criticism of his work at any time prior to his discharge on or about August 17 As heretofore found, Jackson struck up a conversation with Arrieta some- time during the month of June concerning unions and when informed by Arrieta that he had already joined the Union, he disparaged it and advised Arrieta that he "had better join" the A. F. of L. Arrieta, however, ignored the advice and maintained his membership in the Union. In addition, during his employment, Arrieta was approached by Lambertz, then organizing for Seafarers, on three separate occasions On the first and second occasions, during June and July, respectively, Lambertz urged him to join the A. F of L Arrieta replied that he had already joined the Union and that lie could not break his word. On the last occasion, about August 10, Lambertz told him that unless lie joined the A. F of L., the men would lose then jobs 18 About 2 clays after last being approached by Lambertz, Arrieta was taken ill and notified Doll that he would be unable to report for work He reported for work on or about August 17 with a letter from his doctor certifying his illness with severe bronchitis. Doll then told him that he was through, but that he would speak to Jackson about the matter. A day or two later, Arrieta called upon Jackson who told hint that lie could not employ men who became ill Doll alleged that this last absence by Arrieta was but one of several occasions in which Arrieta had taken time off, ostensibly ill, and that upon checking tip, he had learned that Arrieta was out on a business mission. Arrieta recalled that on the first day of his illness in August, a telephone call had been received by his wife, after Arrieta had left home to go to the doctor's office Arrieta's wife speaks little English, however, and it is inconceivable, assuming she was able to understand Doll, that she would wilfully place Arrieta any place other than 11 The clear and forthright testimony of Arrieta, who favorably impressed the under- signed. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the doctor's office. In the final analysis , had any legitimate doubt remained concerning Arrieta 's whereabouts on that day , it should have been dispelled by the certificate of treatment brought to Doll by Arrieta Not only does the undersigned credit Arrieta 's testimony in full , but Doll's testimony that he on several occasions found Arrieta otherwise engaged when purportedly ill at home is rejected, as is his testimony elsewhere . Significant rather is Doll's admission that he was kept informed by the various sergeants and guards concerning the progress of the union organizational campaign."' In the opinion of the undersigned it is further significant that Jackson personally urged Arrieta to renounce the Union and warned him that he "better" join the A F. of L, which was followed by Arrieta 's continuailce of his membership in the Union . The conclusion is also inescapable that respondent 's managerial per- sonnel were acquainted with the repeated and unsuccessful attempts of Lambertz to persuade Arrieta to change his union affiliations. in view of Jackson 's demon- strated assistance to the A . F of L. later in November, thus contributing to the decision of respondent to inflict the extreme penalty of discharge upon Arrieta It is accordingly found that the reason advanced for the discharge of Arrieta is not the true reason therefor and that respondent availed himself of Arrieta's illness as a pretext for his discharge , thus discriminating with respect to the hire and tenure of his employement. Abbey Mendia 20 entered respondent's employ during the latter part of May 1946. His work was, never criticized in any respect and in fact , when dis- charged by Jackson on or about August 24 , no reason for his discharge was given He joined the Union about 2 weeks after he began work and solicited the membership therein of other employees. On the day before his discharge , Mendia was approached by Lambertz who spoke to him about the impending election Mendia, who had previously informed Lambertz that he was a member of the C 1. 0 , expressed the belief that the C. 1. 0 would win and that "Jackson was holding up the deal " The following clay , August 24 , Jackson telephoned Mendia at his home and informed him that he was discharged , giving no explanation therefor . Two days later , Mencha, who could not understand why he had been discharged , asked a C I. 0. rep- resentative , Johnson, to telephone Jackson and ascertain the reason Johnson did so in Mendia's presence and told Mendia that Jackson claimed Mendia was not dressed properly , that his clothes were old and dirty , and that- he appeared at work unshaven R1 Mendia credibly testified that he shaved every day and that he woi:e neat dark clothes to work every day, and, as noted above , be was never reprimanded for his appearance by respondent. Furthermore , respondent offered no evidence in support of the reasons admittedly given Johnson by Jackson Significant also was the attempt of Doll , in his testimony, to introduce another factor, namely that Mendia was frequently away from his post and that complaints had been received from various sergeants ' concerning him, although this was never mentioned to Mendia nor was it originally given as a cause for discharge. In view of the fact that Doll admittedly kept in close touch with the progress of union activity in the company, the fact that Mendia, known to be a C. I. 0. 1^ Later in his testimony, Doll contradicted himself on this point and contended that he way not so informed 20 Findings herein are based upon the credible and uncontroverted testimony of Mendia 2i Neither Johnson nor Jackson testified herein Inasmuch as respondent stipulated for the record that Jackson had said this to Johnson, the undersigned finds that it occurred as related above AMERICAN PATROL SERVICE 673 member. was discharged the day after he told Larnbertz that he believed the C 1 0 would win the election and that Jackson was obstructing it, and that patentl> false reasons were assigned for his discharge, the undersigned Suds that DZendia was discharged for his union activities and membership, thus dis- criminating with respect to the hire and tenure of his employment. J 1 Kavados" entered respondent's employ in October 1945 and his record was free of criticism until the day of his discharge. He joined the Union in Api il, went to all meetings, and openly wore a C. I 0 button In May, during x conversation with Jackson concerning the respective unions, he expressed his belief that the C I. 0 had the upper hand Early in the morning of September 5 a waterfront strike called by the seamen's unions of the A. F of L. went into effect, and Kavados, before reporting for work, obtained a clearance card from respondent's,oflice manager which permitted him to traverse the picket lines . • He was' also instructed not to permit anyone to board the ship without a written permit from its mate. Shortly thereafter, Kava- dos prevented two men, claiming to be A F. of L. representatives, from boarding the ship without permission from the mate. They inspected Kavados' clearance card. took his name and departed Later that morning, Kavados was relieved by another guard and instructed to repo it to the office where Jackson accused him of messing things up "with the union." and stated that the head of the A F. of I, seamen n had threatened to put respondent's men off the waterfront. if he slid not discharge Kavados. He instructed Kavados to report to the A F. of L office and apologize to then). Kavados refused, claiming that he had done no wrong, and was thereupon discharged. Respondent attempted to show at the heating that Kavados was discharged because lie i etused to obtain a clearance card ti oni the A. F -of L. strike committee This is disproved by the uncontroverted testimony of Kavados that he obtained the card at respondent's office before reporting for work in the morning, and lnithemmore, as Doll testified, Kavados was discharged because he refused to pei mit A F of L officials aboard the vessel It is thus clear that Kavados, an open advocate of the C. I 0. and wearing a C. 1 O. button, was discharged at the request of the A F of L because he followed orders in keeping all people off the ship, and because he refused to accede to Jackson's demand that he apologize to the A F of L as a condition of continui rig his employment It is therefore found that his discharge constituted preferential treatment to a labor organization dur- ing the pendency of a question concerning representation and is therefore dis- cimiumtory It is further found that the above conduct by Jackson constitutes assistance to a labor organization, thereby interfering with, restraining, and coercing the employees of respondent in the exercise of the rights guaranteed in Section 7 of the Act. I\' 1HF. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of respondent set forth in Section III, above, occurring in con- nection with the operations of respondent described in Section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and foreign commerce, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. s Findings below are based upon the credible and uncontroverted testimony of Kavados 11 This was apparently the head of Seafarers International Union , A F of L , with which Seafarers , Guards & Watchmen's Union is affiliated 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V THE REMEDY Having found that respondent has engaged in unfair labor practices, the under- signed will recommend that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act It having been found that respondent has discriminated in regard to the hire and tenure of employment of the individuals whose names appear in Appendix A attached hereto, it will be recommended that respondent offer each of them except Abbey Mendia 2' immediate and full reinstatement to their former or sub- stantially equivalent positions 22 without prejudice to their senior ity or other rights and privileges, and make each of them whole for any loss of pay they may. have suffered by reason of such discrimination by payment to each of them of a sum of money equal to that which each would normally have earned as wages from the date of the discrimination against him to the date of offer of reinstate- ment,2' less his net earnings n during that period The dates of discrimina- tion as to those named in Appendix A, all in 1946, are: Carl Chilgren, May 1; Bernard Schmitz, May 23; Constantinos Alexopoulos, August 6; Joaquin Arrieta, August 17, Abbey Mendia, August 24, and J B. Kavados, September 5. , It has further been found that respondent has assisted Seafarers by urging his employees to join it, by negotiating with Seafarers concerning a wage in- crease, to the exclusion of-the Union, and by discharging Kavados at its request. It will therefore be recommended that respondent cease and desist from recog- nizing Seafarers as such exclusive representative unless and until it shall have been certified by the Board The undersigned finds that respondent by the anti-union statements and actions of his officials and supervisors engaged in a campaign to defeat self-organization of its employees These statements and actions demonstrate a clear attitude of opposition to the Union and the purposes of the Act, and a determination generally to interfere with the rights guaranteed in Section 7 of the Act Be- cause this unlawful action appears to be bottomed upon an underlying opposition to the purposes of the Act, it will be recommended that respondent be required to cease and desist from in any manner interfering with, restraining, or coercing his employees in the exercise of such rights." A review of the record shows that the employees of respondent do not regularly report to his place of business but generally receive their respective assignments over the phone and then report to the particular vessel or dock to be guarded as the case may be. In fact, respondent's place of business is in reality merely a clearing house through which the employees are channelled out where needed 21 Mendia testified that he (lid not desire reinstatement 25 In accordance with the Board's consistent interpretation of the term, the expression, "former or substantially equivalent position," is intended to mean "former position wher- ever possible, but if such position is no longer in existence, then to a substantially equivalent position " See Matter of -The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N L R B 827. 22 In lllendia's case , it is recommended that back pay be awarded only to the date that he testified at the instant hearing 21 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 elsewhere than for the respondent, Rhich would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 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 earn- ings See Republic Steel Corporation v N. L. R B , 311 U S 7. 29 See N L R. B v Express Publishing Company, 312 U S. 426 ; May Department Stores Co v N, L R B, 326 U. S 376 AMERICAN PATROL SERVICE 675) via telephonic communication . As there is thus a likelihood that the notice here- required to be posted by respondent will not come to the attention of his inafter employees , and in order to fully offset the effect of the unfair labor practices hereinabove found, the undersigned will recommend that respondent mail to each of the employees on his pay-roll from May 1 to September 5, 1946 , the dates. between Which the unfair labor practices found herein were committed , postage prepaid, a copy of the notice herein attached and marked "Appendix A " It having been found that respondent has not discriminated in regard to the hire and tenure of C. E Calkins , it will be recommended that the complaint be dismissed as to him. 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, I. L W. U , affiliated with the Congress of Industrial Organizations, and Seafarers, Guards & Watchmen's Union, affiliated with Seafarers International Union, A. F of L, are labor organizations within the meaning of Section 2 (5) of the Act 2 By discriminating in regard to the hire and tenure of employment of Cart Chilgren, Bernard Schmitz , Constantinos Alexopoulos, Joaquin Arrieta, Abbey Mendia, and J. E. Kavados, thereby discouraging membership in a labor organi- zation, respondent has engaged in and is engaging in unfair labor practices within, the meaning of Section 8 (3) of the Act 3 By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is. engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid labor practices are unfair labor practices within the meaning: of Section 2 (6) and (7) of the Act. 5. Respondent has not discriminated with regard to the'hire and tenure of- employment of C. E. Calkins. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon, the entire record in the case, the undersigned recommends that respondent, C. F. Fellows, doing business as American Patrol Service, his agents, successors and assigns shall : I Cease and desist from : (a) Discouraging membership in Ship Clerks Association, Local 34, I. L W. U, affiliated with Congress of Industrial Organizations, or any other labor organi- zation of his employees, by discharging or refusing to reinstate any of his em- ployees, because of membership in or activity on behalf of such organization ; (b) Encouraging membership in Seafarers, Guards & Watchmen's Union, affil- iated with Seafarers International Union, A F. of L, by acceding to any demands for the discharge of any employees, or negotiating with said union as the ex- clusive representative of his employees concerning conditions of employment to the exclusion of any other labor organization, until said union is certified by the National Labor Relations Board as the exclusive representative of said employees ; - (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form, join, or assist Ship Clerks Association, Local 34, I L. W. U., affiliated with Congress of Industrial 766972-48-vol. 75-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Organizations, 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 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 to the employees named in Appendix A of this report immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges in the manner set forth in the section entitled "The remedy" ; (b) Make whole in the manner set forth in "The remedy" the persons whose names appear in Appendix A of this report for any loss they may have suffered by reason of respondent's discrimination against them ; (c) Withdraw and withhold all recognition from Seafarers, Guards & Watch- men's Union, affiliated with Seafarers International Union of North America, A. F. of L, as the exclusive representative of his employees for the purpose of collective bargaining unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees ; (d) Mail to all the employees who were on his pay-roll from May 1 through September 5, 1946, at their last known address, postage prepaid, copies of the notice attached to this Intermediate Report and marked "Appendix A"; (e) Post at his place of business at San Francisco, California, copies of the notice attached hereto and marked "Appendix A" Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondent, be posted by respondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by respondent to insure that said notices are not altered, defaced, or coveted by other material; (f) Notify the Regional Director for the Twentieth Region within ten (10) days from the date of receipt of this Intermediate Report what steps respondent has taken to comply herewith. It is further recommended that the complaint be dismissed insofar as it alleges that respondent has engaged in unfair labor practices by discriminating with regard to the hire and tenure of employment of C. E Calkins. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, respondent notifies said Regional Director that he has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring respondent to take the action aforesaid. 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 seivice 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, Wash- ington 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 proceeding ( including rulings upon' all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Imme- diately upon the filing of such statement of exceptions and/or briefs, the party AMERICAN PATROL SERVICE 677 or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy 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 203.&. 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. MARTIN S. BENNETT, Dated March 13, 1947. Ti ial Examiner. APPENDIX A NOTICE To ALI. EMPLOYEES 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, we hereby notify our employees that: WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prej- udice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Carl Chilgren Constantinos Alexopoulos Bernard Schmitz Joaquin Arrieta J. E Kavados WE WILL MAKE WHOLE the following named employee for any loss of pay suffered as a Iesult of our discrimination against him. Abbey Mendia WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights to self-organization, to form labor organizations, to join or assist SHIP CLERxs ASSOCIATION, LOCAL 34, I L W. U.-C. I 0., 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 WE WILL NOT recognize SEAFARERS' GUARDS & WATCHMEN'S UNION, affiliated with SEAFARERS INTERNATIONAL UNION, A. F. OF L., as the exclusive repre- sentative of our employees for the purpose of collective bargaining, unless and until organization shall have been certified by the National Labor Relations Board as the exclusive representative of our employees. All our employees are free to become or remain members of the above-named union or any other labor organization. We 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. C F. FELLOWS, n,/R/A AMERICAN PATROL. SERVICE, Employer. Dated------------ By --------------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material