Standard Oil Co. of California

In the Matter of STANDARD OIL COMPANY OF CALIFORNIA and SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA, AFFILIATED WITH AMER- ICAN FEDERATION OF LABOR AND SAILORS' UNION OF THE PACIFIC In the Matter of STANDARD OIL COMPANY OF CALIFORNIA and NATIONAL MARITIME UNION OF AMERICA, C. I. O. Cases Nos. 20-C-1231 and 20-C-1274, respectively.Decided June 16, 1945 DECISION AND ORDER Upon complaint issued pursuant to charges duly filed by Seafarers International Union of North America and Sailors' Union-of the Pacific, affiliated with the American Federation of Labor, herein called the S. L U. and the S. U. P., respectively, and by National Maritime Union of America, C. I. 0., herein called the N. M. U, against Standard Oil Company of Cali- fornia, San Francisco, California, herein called the respondent, a hearing was held before a Trial Examiner at San Francisco, California, between August 30 and September 2, 1944, in which the Board, the respondent, the S. I. U., the S. U. P., the N. M. U., and Standard Marine Employees' Association, herein called the Association, participated by their represen- tatives. At the close of the Board's case, the Trial Examiner denied a motion of the respondent for a continuance of the hearing to November 1, 1944. The Board has reviewed the rulings of the Trial Examiner made on motions and on objections to the admission of evidence and finds that no prejudicial error was committed, except as to his denial of the respond- ent's motion for a continuance. For the reasons and to the extent herein- after set forth, the Trial Examiner's denial of the motion for a continuance is hereby overruled. The remaining rulings of the Trial Examiner are hereby affirmed. On December 30, 1944, the Trial Examiner issued his Intermediate Report, a copy of which is attached hereto, finding that the respondent had 62 N. L. R. B., No. 65. 449 450 DECISIONS OF NATIONAL. LABOR RELATION S BOARD engaged in and was engaging in violations of Section 8 (1), (2), and (3) of the Act Exceptions to the Intermediate Report and briefs to support the exceptions were thereafter filed by the respondent and the Association. Oral argument was held before the Board at Washington, D C., on March 22, 1945. The respondent and the Association were represented and par- ticipated in the oral argument. None of the other labor organizations appeared. Upon consideration of the entire record, we hereby adopt the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 1. Prior to the hearing in this proceeding, the S I. U., the S U. P., and the N. M. U. had filed petitions for investigation and certification of repre- sentatives of certain employees involved in the instant complaint cases and, by orders of the Board dated July 7 and August 16, 1944, the complaint and representation cases had been consolidated for the purpose of hearing. However, following the close of the hearing on September 2, 1944, the Board severed the representation cases from the complaint cases and, on September 26, 1944, disposed of the representation cases separately by' directing that elections be conducted for the purpose of determining collec- tive bargaining representatives.' Relying on the doctrine of the Hope Web- bing Company case,` namely, that the Board will respect the' terms of a consent election or settlement agreement approved by its agents by refusing to, consider evidence of prior unfair labor practices when an employer has not engaged in any subsequent unfair-labor practice and has not breached the terms of such an agreement, the respondent contends that the facts of the instant proceeding are such that the Board should not consider events prior to the date of the issuance of the afore-mentioned Board's Decision and Direction of Elections of September 26, 1944, or, alternatively, prior to the hearing herein or prior to July 27, 1944, when the parties reached an accord upon the terms of a consent election agreement 8 In determining that the elections should be conducted, as stated above, the Board relied upon the expression of the parties during the hearing that they desired to proceed to an election on the basis of the proposed consent election agree- 'Matter of Standard Oil Company of Califoinia, et al , 58 N. L R. B 554 Elections were directed among three voting groups of the respondent 's personnel , namely, unlicensed personnel of deep water tankers in the steward , deck , and engineering departments , respectively The election in the deck department unit was won by the S U P ; and that in the engine department unit was rson by the S I U The election results were inconclusive in the stewart depaitment unit; a run-off election was conducted between January 26 and April 8, 1945. Challenges were filed to eight ballots. The results of the election will be determuied upon the counting of five of these ballots, the challenges to which the Board overruled 2 Matter of Hope Webbing Company, 14 N. L R B 55. S An agreement was reached by the respondent, the S. T U., the S. U P., and the Association in substance that elections by secret ballot would be conducted under the supervision of the Board's Regional Director and that the N. M U , upon acceptance of the terms of the agreement, would become a party thereto. However , the so-called consent election agreement was not executed at that time . By a letter dated July 27, 1944 , the S I U and the S U P. asked leave to withdraw the charges which they had theretofore filed, but pevmssion was not granted On July 28, 1944, the N. Al. U. filed charges , alleging violation of Section 8 (1) and (2) of the Act. STANDARD tlrl. COMPANY of CALlPORNr^\ 451 merit. The Board stated, "We construe these expressions as having the same effect as a stipulation for an election." The respondent now inter- prets this statement as meaning that the Board regarded the cases as consent election cases, making applicable the doctrine of the Hope Webbing Company case. We find the contention to be without merit. At no place in the Board's Decision is there any statement that such a "stipulation for election" would have the effect of a consent election agreement. On the contrary, the Board specifically stated in its Decision that, "Any certifica- tion resulting from such elections will, however, be without prejudice to any findings we may subsequently make in Case No. 20-C-1231 and Case No. 20-C-1274, respecting the status of the SMEA [the Association] or of John Hansen."' It is thus clear that the Board did not pass upon the legality of the Association in the representation proceeding and that the reservation in the Board's Decision removes the case from the scope of the Hope Webbing Company doctrine.' 2. The respondent further contends, contrary to the finding of the Trial Examiner," that it did not grant the Association exclusive recognition. The Association's letter of July 21, 1934, to the respondent states, "We trust that the formation of this Association meets with your approval, that the Company will recognize our organization as a medium for the promo- tion of the welfare of its members and the solution of subjects or problems of mutual interest." K. R. Kingsbury, president of the respondent, replied thereto on August 20, 1934, "I wish to acknowledge your communication of July 21st, announcing the formation of the Standard Marine Employees' Association in Richmond, Cal., and to advise you that your Association has the recognition of the Company and the Management will cooperate with you in an endeavor to realize the purpose for which the Association was formed." On the basis of this exchange of correspondence, the re- spondent argues that it granted recognition to the Association as the bar- gaining agent of its members only. The record establishes, however, that in practice the Association did not confine its collective bargaining activities to matters pertaining only to its members. Although the contracts executed 4 The principal allegations of the complaint involved herein relate to the status of the Association and the discharge of Hansen. 5 Cf. Utah Copper Co v N. L. R B, 139 F . (2d) 485 (C. C A. 10), enf'g 47 N . L R. B. 757 cert den. 322 U S 731, in which the Tenth Circuit Court of Appeals held that the functions of the Board under Section 9 (c) and Section 10 of the Act were entirely sepaiate and distinct and that "the holding of an election and the certification of a bargaining representative under section 9 do not estop or otherwise bar the Board from acting under Section 10 to prevent unfair labor practices " "The Trial Examiner found that "Thereafter, although the request for recognition plainly dis- closed that the Association represented less than 20 percent of the employees, the respondent extended recognition , and continued to extend it despite the fact that in the subsequent elections the unlicensed seamen, who comprised the great bulk of the employees , had not selected the Association as their bargaining representative " We, like the respondent, interpret this statement as a finding that the iespondent granted the Association exclusive recognition in any event we find that the respondent recognized the Association as the exclusive baigaining representative of the respondent's licensed and unlicensed marine personnel , with the exception of masters and chief engineers 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in 1942 between the Association and the respondent contain no recognition provision," the contracts themselves indicate that recognition as exclusive bargaining representative of the respondent's marine employees was im- plicitly granted the Association, since the contracts cover all licensed and unlicensed employees on the respondent's ships, without limitation e In view of these facts, we find that the respondent extended exclusive recogni- tion to the Association as representative of the respondent's licensed and unlicensed employees in August 1934, and thereafter. 3. The respondent argues that at the time it recognized the Association, the respondent knew, from the results of an election conducted by the National Longshoremen's Board, that the Association represented more than a majority of the respondent's marine personnel. The record fails to establish the precise date of this election. A notice dated "August 1934" issued by the National Longshoremen's Board states that the Board was then "conducting an election by secret ballot to determine by what person or persons or organization the licensed and unlicensed employees of each of the several steamship companies wish to be represented for the purpose of collective bargaining with their respective employers."' In its letter of July ' 21, 1934, requesting recognition, the Association claimed a total membership of 125 employees." In the letter dated August 20, 1934, grant- ing recognition to the Association, the respondent's president stated, "A similar letter to above was written you on August 8th but apparently has gone astray as I understand it was not received." Since the August 1934 notice of the National Longshoremen's Board indicates that the elections were conducted over a period of time and since the results of the elections were not certified by the National Longshoremen's Board until January 1935, we find that the elections were not terminated on August 8, 1934, when the respondent initially recognized the Association. An affidavit of Captain Charles F. Boster, a master of the respondent's tug boat, Standard No. 1, for the past 24 years, states that "During 1934, within a few months " Unlike the Trial Examiner , we accord no significance to the absence of a recognition provision in the 1942 contracts 8 Although masters and chief engineers of ocean -going vessels, who were ineligible to membership in the Association , are not specifically excluded from the terms of the contracts governing licensed personnel , we find that it was the intention of the parties to the contract that they not be included in the baigaining unit . The contracts contain no wage rates or any other specific provision covering masters or chief engineers However, the contracts contain specific provisions covering other super- visory personnel such as deck officers , mates, and assistant engineers 6 The National Longshoremen 's Board certified the results of the election to the respondent in January 1935 , as follows . (a) in the unit composed of licensed engine personnel , the Association received 70 votes, the Marine Engineer ' s Beneficial Association 24, all others 1; (b) in the unit composed of licensed deck personnel , the Association received 82 votes, National Organization of Masters, Mates & Pilots of America 14, all others 3, (c) in the unit of unlicensed seamen, no organization received a majority of the votes cast, the Association receiving 217 votes , International Seamen's Union 202, all others 20. io In the elections conducted by the National Longshoremen's Board, 633 of the licensed and unlicensed marine employees of the respondent voted Hence , there were at least 633 employees within the group for which the Association desired to bargain - STANDARD OIL COMPANY OF CALIFORNIA 453 after the organization of SMEA [the Association] it acknowledged a high enrollment of approximately 690. At the time it requested recognition of the Company, it had approximately 250 members."11 As noted above, there were at least 633 employees in the bargaining unit in August 1934. In any event, so far as appears, the respondent made no demand for proof of the Association's status as majority representative nor was any such proof given at the time recognition was requested or granted 12 We accord- ingly find that the respondent recognized the Association as the exclusive bargaining representative of its marine employees without proof that the Association actually represented a majority of such employees. We fur- ther find that the Association did not in fact represent a majority of the em- ployees at the time exclusive recogniiton was granted by the respondent. 4. The respondent contends that the Trial Examiner's refusal to require counsel for the Board to produce for inspection by the respondent written statements made by Board witnesses similar to Boster's affidavit, referred to above, in the possession of the Board's counsel, was prejudicial error. There was no showing that the documents had been given to the respective witnesses to read prior to testifying; the witnesses did not use the docu- ments while on the stand ; and beyond showing that the documents had an existence, the respondent laid no foundation for their introduction, thus indicating that the respondent's requests to inspect them were made merely for exploratory purposes. Accordingly, we find that the Trial Examiner did not abuse his discretion in denying the requests, and we find that there was no prejudicial error in these rulings.' "The respondent contends that the admission into evidence of the affidavit sworn to and signed by Roster was prejudicial error . We find the contention to be without me,it Although Boster had been subpenaed by the Board , he refused , on the advice of the Association' s counsel , to take the stand, on the ground that the 1944 and 1945 Appropriation Acts for the Board precluded Board action in this proceeding , a contention which the Trial Examiner has pioperly rejected in his Intermediate Report as being without merit Thereupon the Board ' s agent, who had interviewed Boster and had prepared the affidavit as a summarization of the urteiview , took the stand and identified the document It is clear that the respondent was not piejudiced by the intioduction of the affidavit into evidence , since the respondent did not avail itself of the opportunity of calling Boster, who was present in the hearing room , to the stand for the purpose of cross-examination and since the respondent introduced no evidence to refute the contents of the affidavit, although the respondent had ample opportunity to do both Even though the affidavit is an "out-of-court " statement, it is nevertheless reliable evidence which the Board may consider under the circumstances Mote- over, even if the contents of the affidavit , as well as certain other evidence hereinafter discussed, be disregarded , it is clear from the remaining evidence in the record , set forth in the Intermediate Report, that the respondent violated Section 8 (2) of the Act , as the Trial Examiner found 12 The respondent also points to the fact that the minutes of the second meeting of the Association, held on August 18, 1934, state that 455 members had paid dues and reveal that 394 ballots were cast in elections for officers held shortly before that date It does not appear , howevei , that the Association had achieved such membership totals at the time the respondent initially recognised the Association on August 8, 1934, and there is no showing that the respondent was aware of the contents of these minutes at the time that recognition was granted for the second time on August 20, 1934. 11 Cf Goldman v United States, 316 U S 129, N. L R B v Bank of Amc?ica, etc , 130 F (2d) 624 (C. C. A 9), enf'g 26 N L R B 198; N. L. R B. v T W Phillips Gas & Oil Co, 141 F (2d) 304 (C. C A. 3), enf'g 51 N . L. R B 376; Matter of Columbia Pioduits Corp , 48 N L R B 1452 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent further contends that the introduction into evidence of an exhibit, prepared by the respondent and introduced-by it in another Board proceeding in which the respondent was a party, showing the extent of the respondent's business in commerce, was prejudicial error. We find no merit in the contention. When the respondent refused to submit, at the Board's request, data regarding the extent of the respondent's business, a copy of the exhibit, theretofore submitted by the respondent in an earlier representation case involving the respondent's employees,' was introduced into evidence in the instant proceeding over the respondent's objection. It is well established that, particularly under these circumstances, the Board may rely upon an admission of facts made in an earlier case in determining that the operation of the respondent's business affects interstate commerce. The admission of the exhibit into evidence did not constitute prejudicial error 16 6. The respondent also contends that the introduction into evidence of a stipulation made in an earlier Board proceeding, in which the respondent was a party, as to the employment history of McDonald Burleigh was pre- judicial error We do not agree A stipulation as to the employment historv of McDonald Burleigh entered into by counsel for the respondent and by the attorney for the Board in Case No. 21-C-21678 was introduced into evidence in the instant proceeding over the respondent's objection 17 The same counsel for the respondent participated as such in both proceedings. At the time the stipulation was originally made, there was no limitation placed upon its use and there was'no reservation that it was entered into only for the purpose of the earlier proceeding. The offer and admission of the stipulation in evidence in this case was made in accordance with cus- tomary Board practice 18 The respondent was clearly not prejudiced by its introduction. It was a party to the stipulation Although the respondent had ample opportunity to introduce evidence to rebut the contents of the stipu- lation, instead, it chose to call no witnesses in this connection, and it did not introduce any evidence inconsistent with the stipulation. We find that the admission of the stipulation in evidence was not prejudicial error. In any event, it is clear that the Board may take notice, as we do. of the 14 Matter of Standard Oil Company of California, 58 N L R B 560 1, See N L R B v Botany Wai tied Mills, 133 F (2d) 876 (C C A 3) enf'g 41 N L it B218, N L. R B v The Niles Fi,c Biirk Company, 124 F (2d) 366 (C C A 6), en Vg 18 N I. R B 883, Matter of Bethlehem Steel Corporation, 30 N L R B 1006 10 Matter of Standard Oil Company of Cakfa nia, 61 N L R B 1251 17 The pertinent portion of the stipulation is as follows From December 1933 to August 1934, while in the Land and Lease Department, Mr Burleigh at times worked under R H Ivory, Manager of the Personnel Department That department handled employees' grievances, and other company personnel matters From August 1934 o February 1935 i17r Burleigh, while in the Land and Lease Department, worked at times ill the Employee Relations Dep.utnturt, which depaitmeni ii is handled iii Ali VV Ai Roheits is Cf Matter of Ncw Idea, Inc, 31 N L R II 196, enf d 133 1, (2d) 194 tC C A 6) STANIAM) OIL CODvPANY OF CALIFORNIA 4.55 evidence introduced in the earlier case with respect to Burleigh' s status as a management representative ;1D and of our finding in that case that the activities and statements of Burleigh are attributable to the respondent.`' 7. The respondent contends that the testimony as to the statement found by the Trial Examiner to have been made by First Mate Toni Hilton, namely, that if the unlicensed seamen "figured staying on with Standard Oil any length of time it was best for them to join up with the Association," was stricken by the Trial Examiner on motion of the respondent and that the Trial Examiner therefore should not have made such a finding. As to what transpired at the hearing, the transcript of the proceeding discloses the following : Q. Exactly what did Chief Officer Hilton say to the men about joining the Association, the best you can remember? A. The best I can remember, he said if they figured staying on with Standard Oil any length of time it was best for them to join up with the Association. In other words, well, he didn't exactly threaten to fire them, but it was as much as to say he would see to it that they were. Trial Examiner Schneider : Just tell us what he said. The Witness : (continuing) Well, he didn't exactly say it, but it had the same meaning. Mr. Korte : I move to strike the remark of the witness as not respon- sive, incompetent, irrelevant and immaterial. The Trial Examiner Schneider : It may be stricken. It is clear from the testimony above quoted, and we find, that the portion stricken was solely the last sentence, "In other words, well, he didn't exactly threaten to fire them, but it was as much as to say he would see to it that they were," and that the immediately preceding sentence, upon which the Trial Examiner based his finding, was not stricken from the record. As did the Trial Examiner, we find that, by the remaining undenied statement of Hilton, set forth above, and by Hilton's further undenied state- ment to the crew, as set forth in the Intermediate Report, that they should treat union men who approached them with violence, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. u, The record in Case No . 21-C-2167 establishes, as we found, that "Burleigh 'handled griev- ances and complaints for Ivory and Roberts'. . . and kept 'in close contact with the management members' of the respondent's various operations , 'assisting them in the settlement and adjudication of complaints.' Burleigh also participated in joint bargaining meetings between the Association and the respondent , as the minutes thereof disclose , as a management representative " 61 N L R B 1251. 20 Cf N L R B v Moltrup Steel Products, 121 F (2d) 612 (C C A 3), enf'g 19 N. L R. B 471; Matter of Milan Shirt Manufacturing Company, 22 N L R B. 1143, enf'd 125 F (2d) 376 (C. C. A. 6). 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & On the last day of the hearing, September 2, 1944, when the attorney' for the Board rested, the respondent moved for a continuance to November 1, 1944, to afford it an opportunity to introduce the testimony of 11 named persons, who were allegedly on the high seas.`1 At the hearing counsel for the respondent stated that these persons would "rebut the testimony given about them" and answer the "words . . . put into the mouths of these witnesses by the witnesses produced by the Board."' The Trial Examiner denied the motion for continuance. The respondent excepts to such denial and to the resultant closing of the hearing without introduction-of any evidence by the respondent upon its failure to proceed with the hearing. In making his findings the Trial Examiner has relied upon testimony of Board witnesses attributing various statements and activities to 7 of the 11 absent persons ' Of these 7, the testimony as to statements and activities of Anderson, Hartnett, E. R. Smith, Markley, and Hermoso Smith, as found by the Trial Examiner, relate to the issue of violation by the -respond- ent of Section 8 (2) of the Act?4 Even if the testimony as to the statements and activities of these five persons be disregarded, it is clear that the respondent violated- Section 8 (2) of the Act, as the Trial Examiner found. Admittedly the Association admits -both licensed and unlicensed seamen to its membership.`° At the a Specifically, James Tynan, Thomas Hill, E R Smith, W. W. Markley, Hermoso Smith, Ralph Stall, Harold Anderson, J. E Hartnett, R. Attahowe, one Dengg, and one Ratto zd It is not clear whether the respondent's' counsel had interviewed any of the absent persons At one point, counsel for the respondent stated, "Now I haven't even had an opportunity to talk to these witnesses," but later said "I know some of them will rebut it because I have talked to some of them before." 23 The seven are Harold Anderson, J. E. Hartnett, E. R. Smith, W W Markley, Hermoso Smith, R. Attahowe, and Dengg. 24 The testimony involving the five persons named above disclosed the following- First Mate Anderson and Engineering Officer Hartnett were initial vice presidents of the Association Minutes of the second meeting of the Association state that it resolved to request the transfer of Anderson and Hartnett, who represented the deck and engine departments on tankers, to the Richmond dock in order to "enable them to better represent their constituents." Sometime later the transfer was effected. During the summer of 1934, Captain E. R. Smith gave Zlvaray Brown, a radio operator, a supply of Association membership applications and told Brown to have them signed by crew members. Captain Smith further told Brown that he, Smith, "wanted to bring the ship in 100 percent organized." All eligible employees on the ship signed cards. During the fall of 1934, Captain. W. W Markley told Francis MacGillivray, a radio operator, that it would be a "good idea" for MacGillivray to join the Association. At about the same time, Markley told Mate Hermoso Smith, in• MacGillivray's presence, that Smith "had better join" the Association. Markley also frequently suggested to other officers of his boat, the Richmond, that they join the Association He told them that it seemed like "a good idea," and that "the Company would probably appreciate it." 25 The respondent excepts to the Trial Examiner's finding that "according to the uncontradicted testimony at the hearing, it [the Association] is the only labor organization in the maritime field which admits both licensed and unlicensed seamen to membership in the same union " Since the record indicates that on the East Coast the Organization of Master, Mates & Pilots, A F. L , in a few instances has contracts covering in a single unit the licensed and unlicensed personnel of railroad towboats and ferries, the exception is well taken. However, the undisputed testimony estab- lishes, and we find, that the Association is the only labor organization in the maritime field which admits both licensed and unlicensed personnel of off-shore vessels to membership in the same union In any event, we regard the extent of the practice among labor organizations of including both classes of personnel in a single unit, whatever it may be, as not controlling here. STANDARD OIL COMPANY OF CALIFORNIA 457 -oral argument before the Board, counsel for the respondent admitted that "All except the masters and chief engineers, and the assistant engineers' belong to this, Association. That is correct. In other words, the licensed and unlicensed personnel belong to this Association except the masters." Moreover, such licensed officers were members of the Executive Board which negotiated the contracts with the respondent. The Association was thus subject to domination by licensed marine officers, all of whom were supervisory employees.' Under such circumstances, the Association could not represent a free and uncoerced selection by the unlicensed seamen. Moreover, the circumstances surrounding the organization of the Associa- tion, as well as other evidence that the respondent accorded it assistance and support and manifested control over its activities throughout the life of the Association, as more fully set forth in the Intermediate Report, substantiate the conclusion that the Association was the creature and instru- ment of the respondent. Nothing in the respondent's offer of proof tends to negative or to overcome the existence of such circumstances or the evi- dence of such assistance, support, or control. Disregarding the statements and activities attributed to Anderson, Hartnett, E. R. Smith, Markley, and Hermoso Smith, we, nevertheless, conclude and find that the respondent has, since July 5, 1935, dominated and interfered with the administration of the Association and has contributed support to it in violation of Section 8 (2) of the Act, and thereby, and by the statements of Mate Tom Hilton and Third Mate Rocq set forth in the Intermediate Report, the respondent interefered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.28 In finding that John Hansen was discriminatorily discharged, the Trial Examiner has relied upon statements attributed to 2 of the 11 persons whom the respondent desired to call as witnesses, namely, Chief Mate R. 26 The statement of counsel that assistant engineers are ineligible for membership in the Associa- tion is erroneous The Association's constitution provides that all marine employees of the respondent are eligible for membership "except Captains and Chief Engineers of `ocean -going' vessels " Assistant engineers are covered by the terms of the contract between the respondent and the Association 27 Cf N. L R B. v Delaware-New Jersey Ferry Company, 128 F (2d) 130 (C C A 3), enf'g as mod 30 N L. R B 820; Virginia Ferry Corp v N L. R B , 101 F. (2d) 103 (C C A 4), enf'g as mod 8. N. L. R. B 730. 2' As indicated above, the respondent did not offer to call Rocq or Hilton to meet testimony as to their respective statements Accordingly , our order hereinafter set forth reopening the record to take further testimony does not contemplate that any testimony bearing upon the statements of Hilton or Rocq he taken 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Attahowe and Second Mate Dengg.29 Their testimony is material to the issue as to whether the respondent violated Section 8 (3) of the Act. Al- though under the circumstances we are not convinced that the Trial Exam- iner's denial of the motion for continuance was an abuse of his discretion, in order to remove any question as to the fairness of the proceeding, we shall direct that the record be reopened to take the testimony of Attahowe and Dengg and of any of the other 9 persons whom the respondent desired to call. Their testimony, however, shall be confined solely to the issue of whether the respondent violated Section 8 (3) of the Act by discharging Hansen and whether the remarks of its supervisory personnel, relating to Hansen's discharge, were violative of Section 8 (1) of the Act. No further testimony shall be elicited on the issue of whether the respondent violated Section 8 (2) of the Act since, as we have found above, even after giving full effect to the respondent's offer of proof, the record establishes the Association as an unlawful labor organization. It appearing to the Board that the purposes of the Act will best be effec- tuated by severance of the following allegations in the complaint, namely, (1) that the respondent violated Section 8 (1) and (2) of the Act with respect to the Association, and (2) that the respondent violated Section 8 (1) of the Act insofar as such allegation rests upon the statements of Tom Hilton and Third Mate Rocq, from the remaining allegations of the complaint,' and by granting the respondent's motion for continuance of the proceeding to the extent set forth above, the Board shall order that the allegations of the complaint be so severed and that the record be reopened for taking of the testimony of the 11 named persons, or any of them, insofar as such testimony bears upon the allegation of the complaint that the 29 The Trial Examiner found that late in November , or early in December 1943 , Hansen spoke to Second Mate Dengg in the wheelhouse of the respondent 's tanker Richmond, on the subject of changing the crew's coffee hour , and that Dengg indicated displeasure at Hansen's remarks bi saying, "You guys .. . are all the time agitating . . instead of trying to be good sailors and get ahead." On the same occasion , according to the Trial Examiner's finding, Dengg told the wheelsman that Hansen was "a good sailor, but he is always agitating ," that unions were no good, and that the men were "much better off in Standard Oil without them " The Trial Examiner further found that later in December , Dengg told Hansen that he did too much talking about the Union and about conditions on the ship , asked why Hansen did not "forget about it and try to get ahead ," told him that it was a "good company ," and stated that Dengg had been on the picket line during the seamen's strike and that, while the union had never done anything for him, the respondent had treated him well The Trial Examiner also found that, on December 29, 1943, while the Richmond was in the port of San Pedro, Hansen was summoned to the deck by Chief Mate Attahowe and discharged ; that when Hansen asked the reason for the discharge , Attahowe replied, "You have been doing too much talking about this ship about the working conditions . I figure that if you don't like it aboard here . you better get off", and that when Hansen inquired if that was the only reason Attahowe answered that it was enough su The remaining allegations relate to the discriminatory discharge of john Hansen in violation of Section 8 (3) of the Act and to the iespondent 's conduct in violation of Section 8 (1) of the Act other than by the discharge of Hansen and the statements of Hilton and Rocq The issues arising from the other allegations of the complaint , specifically mentioned in the text , are disposed of herein STANDARD OLI. COMPANY OF CALIFORNIA 459 respondent discriminatorily discharged John Hansen or upon the alle- gation that the respondent discouraged its employees from affiliating with, or being active on behalf of the Sailors' Union of the Pacific or the Sailors International Union and urged, persuaded, and warned its employees to join or assist the Association, and for no other purpose In view of our finding, that the respondent engaged in direct violations of Section 8 (1) of the Act and for the reasons set forth in Ilatter, of ,Slarrdard Oil Company,' we shall order the respondent, among other things, to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , Standard Oil Company of California , San Fran- cisco, California, its officers, agents, successors , and assigns , shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of, or contribut- ing support to, Standard Marine Employees ' Association, or any other labor organization of its employees ; (b) Recognizing Standard Marine Employees ' Association as the rep- resentative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes , wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to its contracts of March 24 , 1942, with Standard Marine Employees' Association, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract or agreement with Standard Marine Employees ' Association , which may now be in force, (d) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist Seafarers International Union of North America, affiliated with the American Federation of Labor, or Sailors' Union of the Pacific, affiliated with the American Federation of Labor, or National Maritime Union of America, C. 1. 0., or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargain- ing 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 effec- tuate the policies of the Act : " 61 N L. R B. 1251. "N L R B v Standard Oil Co, 138 F (2d) 885 (C C A 2), enf'g 43 N L R B 12; Bethle- hem Steel Co v N L R B , 120 F (2d) 641 (App. D C.), enf'g 14 N L R B 539, Holtville Ice & Cold Storage Co. v N. L R B , 148 F (2d) 168 (C. C A 9), enf'g 51 N. L R B. 596 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Withdraw all recognition from Standard Marine Employees' Asso- ciation, and completely disestablish that organization as the representative of any of the respondent's employees for the purpose of dealing with the ,respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment ; (b) Post on each of its docks and ships, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Twentieth Region, shall, after being duly signed by the respondent's representative, be posted by the respondenf immediately upon receipt thereof, and maintained by it for sixty (60) consecutive 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; (c) 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 HEREBY FURTHER ORDERED that the allegations of the com- plaint, namely, (1) that the respondent violated Section 8 (1) and (2) of the Act by sponsoring, promoting, assisting, and interfering with the formation of the Association, and dominating, and interfering with its adminis- tration, and by contributing support thereto, and (2) that the respondent violated Section 8 (1) of the Act insofar as such allegation rests upon the statements of Toin Hilton and Third Mate Rocq, be, and they hereby are, severed from the remaining allegations of the complaint ; AND IT IS HEREBY FURTHER ORDERED that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held upon such remaining allegations of the complaint for the purpose of taking the testi- mony of James Tynan, Thomas Hill, E. R. Smith, W. W. Markley, Her- moso Smith, Ralph Stall, Harold Anderson, J. E. Hartnett, R. Attahowe, one Dengg, and one Ratto, or any of them, insofar as such testimony bears upon such remaining allegations of the complaint; AND IT IS FURTHER ORDERED that this proceeding be referred to the Regional Director for the Twentieth Region for the purpose of conducting such further hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. MR. GERARD D. REILLY, concurring specially : I agree with the conclusion reached by my colleagues in the majority opinion. The evidence shows that from the time of inception of the-Asso- STANDARD OIL COMPANY OF CALIFORNIA 461 ciation, the membership of which was composed of both supervisory and non-supervisory personnel, supervisory employees of respondent sponsored and dominated that organization. Its first organizational meeting was presided over by Captain Heyne, and the majority of its officers have been licensed personnel. That an organization so formulated and maintained deprived the non-supervisory personnel of their rights to a free expression of a choice of a collective bargaining representative is clear as evidenced by First Mate Hilton's speech to unlicensed personnel in 1935 in which he stated that if they "figured on staying with Standard Oil any length of time it was best for them to join up with the Association." In view of the fore- going, I find it unnecessary to pass upon the weight to be attached to other evidence relating to the recognition and support given the Association by respondent. "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 Rela- tions Act, we hereby notify our employees that: We hereby disestablish Standard Marine Employees' Association as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate or interfere with the formation or administra- tion of any labor organization or contribute financial or other sup- port to it. We will not in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist Seafarers International Union of North America, A. F. L., or Sailors' Union of the Pacific, A. F. L., or National Maritime Union of America, C. T. 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. All of our employees are free to become or remain members of this union, or any other labor organization. STANDARD OIL COMPANY OF CALIFORNIA (Employer) By (Representative) (Title) Dated This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced , or covered by any other material. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Messrs. John Paul Jennings and Bernard L. Alpert, for the Board. Pillsbury, Madison & Sutro, by iVir Norbert Korte, of San Francisco , Calif., for the respondent. Messrs. Charles J. Janigian, Harry Lundeberg , and H C Banks. of San Francisco. Calif., for the S. I. U and S U P Mr. Benjamin Dreyfus, of San Francisco, Calif, for the N M U Carlson & Collins, by Mr Robert Collins, of Richmond, Calif, for the Association STATEMENT OF THE CASE Upon charges and amended charges dilly filed by Seafarers International Union of North America and Sailor's Union of the Pacific, affiliated v ith the American Fed- eration of Labor, and hereinafter referred to as the S I. U and the S U. P., and by National Maritime Union of America, C. I 0 , hereinafter referred to as the N M U . the National Labor Relations Board. hereinafter called the Board, by the Regional Director for the Twentieth Region (San Francisco, California), issued its complaint dated August 18, 1944, against Standard Oil Company of California, hereinafter referred to as the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practice w thin the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the compla nt and notice of hearing thereon were duly served upon the respondent, the S I U , 'and S U P , the N M U, and Standard Marine Employees' Association, herein called the Association. With respect to the unfair labor practices, the complaint alleged. in substance, that the respondent : (1) through various officers, agents, and supervisory employees, sponsored, promoted, assisted and interfered with the formation of the Association, dominated and interfered with its administration, and contributed support thereto, (2) discouraged its employees from affiliating with, or being active on behalf of the S U. P and the S I. U , and urged, persuaded, and warned them to join or assist the Association; and (3) on December 29, 1943, discharged John Hansen because of his membership in and activities on behalf of the S I U and S U P. On August 28, 1944, the respondent filed an answer denying the commiss on of unfair labor practices Pursuant to notice, a hearing was held at San Francisco, California, on Augu,t 30 and 31, and on September 1 and 2, 1944, before Charles W. Schneider, the under- signed Trial Examiner, duly designated by the Chief Trial Examiner The Board, the respondent, the S. I U and S U P , the N M U., and the Association, ii ere repre- sented by counsel and all parties participated in the hearing Full opportunity to he heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was afforded all parties At the opening of the hearing, a motion by the Association to i terNere in the proceedings was granted by the undersigned The Association then filed an ansvsor denying that it was company dominated and denying that the respondent had dis- criminatorily discharged Hansen. At the beginning of the hearing, the respondent and the Association moved to dismiss the proceedings on the ground, iutci alia, that the Board had no jurisdiction to hear the case and was barred from proceeding by the Appropriation Act of 1945' The undersigned denied these motions Thereafter, on the same ground, the respond- ent and the Association objected to the introduction of evidence In addition, and i Public Law 373, 78th Congits,, Chaptei 302. Second Se-ion, 11 12 4899 STANDARD OIL COMPANY OF CALIFORNIA 463 allegedly for the same reason, counsel for the respondent and for the Association refused, during the course of the hearing, to comply with subpoenas duly issued by the Board and refused to permit employee witnesses, who had been duly subpoened, to testify.' On the last day of the hearing, September 2, 1944, the respondent moved for a continuance to November 1, 1944, which was denied 3 At the close of the hearing, the parties argued orally before the undersigned and were afforded opportunity to file briefs ` Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent, Standard Oil Company of California, maintains its principal offices in San Francisco, California, and is engaged in the production, refining, transporta- tion, sale, and distribution of petroleum and petroleum products The respondent and its subsidiaries and affiliates own, lease, or hold under contract extensive oil lands in the United States and foreign countries The respondent owns and operates refineries at Richmond, Bakersfield, and El Segundo, California, and through subsidiaries, operates refineries in Texas and British Columbia. In addition, the respondent oper- ates 15 seagoing tankers and a number of other vessels which transport crude oil from pipe line terminals to refineries, and refined products from refineries to points outside the State of California. Rail and truck facilities of common carriers are also engaged to transport the respondent's refined products to points outside the State of California. During 1943, the respondent produced approximately 87,500,000 barrels of refined petroleum products, of which at least 40 percent was shipped from California to various other States of the United States and to foreign countries. The present proceedings involve only the employees of the respondent's Marine Department, which is engaged in the transportation of the respondent's products by water II. THE ORGANIZATIONS INVOLVED Seafarers International Union of North America and Sailor's Union of the Pacific are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the respondent -National Maritime Union is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent Standard Marine Employees' Association is an unaffiliated labor organization admitting to membership employees of the respondent. 2 These contentions of the respondent and the Association are without merit. See Opinion of the Comptroller General of the United States, October 14 , 1944, B-44156 ; Ar L, R B v Albine Knitting Co, 138 F. (2d) 663 (C. C. A. 2); N. L. R. B v . National Tool Co, 139 F. (2d) 490 (C C. A 6) 3 The ground assented for the continuance was to afford the respondent opportunity to produce testimony by persons allegedly on the high seas Counsel for the respondent declined , however, to state what testimony would be adduced through these witnesses at a continued hearing 4 The hearing also involved several representative cases Prior to the hearing , the S I. U , the S U P., and the N M. U had filed petitions for certification of representatives of certain employees involved in the complaint case . By order of the Board , the complaint and representation cases were consolidated for the purpose of hearing . Following the close of the hearing, the Board severed the representation cases from the complaint cases and disposed of them separately Matter of Stands ii Oil Company of California, et al, 58 N . L. R. B 554. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. TIIF. UNFAIR LABOR PRACTICES' A. The Association; domination, interference , and support 1. Background, the respondent's letter of November 21, 1933 For many years the respondent has operated, 'under its Marine Department, a fleet of tankers and other vessels for the transportation of its products to North American ports and various parts of the world. Some of these vessels operate on inland waters and between points on the Pacific Coast. Others are ocean-going tankers. The former are generally 'referred to as the inland fleet, the latter as the ocean-going fleet. The personnel of these various craft is made up of licensed officers and unlicensed seamen. The licensed officers are the captain or master, the mates, the chief engineer and the assistant engineers. They are responsible for and direct the operation of the ship, and, by custom and maritime law, exercise complete authority over the unlicensed seamen who make up the crew. Licensed officers have traditionally been excluded from membership in American maritime unions composed of unlicensed seamen, and have their own labor organizations which admit only licensed men.' On November 21, 1933, R. W. Kingsbury, president of the respondent, sent the following letter to the respondent's employees • TO ALL EMPLOYEES OF -THE STANDARD OIL COMPANY OF CALIFORNIA The Company has recently been asked by some of its employees for a statement of its attitude toward the formation of an Employees' Association. The Company understands that such an association would be formed to represent the employees of the Standard Oil Company of California in any matters that might arise between the Company and its employees primarily pursuant to the labor provisions of the National Industrial Recovery Act. The Code of Fair Competition for the Petroleum Industry, to which your Company fully subscribes, provides : Section 7. Employees in this industry shall have the right'tb organize and bargain collectively through representatives of -their own choosing, and shall be free from interference, restraint, or coercion by employers of labor, or their agents, in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. No employee in this industry, and no one seeking employment therein, shall be required as a condition of employment to join any company union or to refrain from joining a labor organization of his own choosing. Employers of labor in this industry shall comply with the maximum hours of labor, minimum rates of pay, and other conditions of employment approved or prescribed by the President. This provision of the petroleum Code (which Code, as you know, has been signed by President Roosevelt) conforms to the provision of Section 7 (e) (the so-called labor section) of the National Industrial Recovery Act which became effective June 16, 1933. G The following findings are based on uncontradicted and credible testimony , or on other undisputed and credible evidence As has been indicated heretofore, the respondent refused to comply with subpoenas duly issued by the Board, and counsel for the respondent and for the Association would not permit officials of the respondent , and officers of the Association , who had been duly subpoened, to testify. 6 The best known of these organizations are: Masters , Mates , and Pilots , A. F. of L , which takes in licensed officers in the deck department (captains and mates ), and Marine Engineers' Beneficial Association, C. I. 0., which takes in licensed engineers. STANDARD OIL COMPANY OF CALIFORNIA 465 The employees therefore without question can, if they so desire, form an Employees' Association which will comply with the letter and spirit of the above quoted provisions of the Petroleum Code and which will afford all opportunity to employees to deal with the management through representatives of their own choosing. We all realize that conditions in industry are changing rapidly at the present time and that the future may present unusual problems affecting both the Com- pany's management and its employees. The Company has always endeavored to keep the welfare of its employees foremost among its responsibilities and recipro- cally the loyalty of its employees has been outstanding. The Company believes that the time is particularly opportune for establishing even closer relations between management and employees, to the end that the problems now arising and those which may arise in the future may be worked out to mutual advantage. The Company, therefore, has no objections whatsoever to the formation of such an association and will cooperate with any such association which is formed. STANDARD OIL COMPANY OF CALIFORNIA BY: K. R. Kingsbury President November 21, 1933. 2. The 1934 and 1935 maritime strikes; the elections In May 1934, the maritime unions on the Pacific Coast called a general strike of merchant seamen and longshoremen on that Coast. Among the demands of the sea- men's unions was one for recognition. Thereafter, the National Longshoremen's Board' announced that in order to resolve the question of recognition, elections would be held among the various companies on the coast who employed seamen. In July, under circumstances more fully discussed hereinafter, the Association was formed among the respondent's seamen. The strike terminated on July 31, 1934, and elections were conducted later in the year to select representatives for collective bargaining. Among the respondent's seamen three elections were held involving, respectively, (1) licensed personnel of the deck department, (2) licensed personnel of the engine department, and (3) all unlicensed personnel. In the first two elections, the respond- ent's employees selected the Association. In the third, however, no organization received a majority and no representative was selected. These results were certified to the respondent by the National Longshoremen's Board on January 18, 1935.' Following the above elections, the operators of dry cargo vessels on the Coast entered into agreements with the International Seamen's Union. The tanker operators, however, including the respondent, declined to negotiate. In March, 1935, the seamen struck the tankers. The operators refused to recognize or to meet with the Union, or to arbitrate the issues. The strike was lost and was called off on June 13, 1935.° 7 This Board was appointed by the President of the United States on June 26, 1934, to settle the strike. Executive Order 6748. 8In the unlicensed group the vote was 217 for the Association; 202 for the International Seamen's Union, and 20 for all others. For a complete history of the causes and events in the 1934 and 1935 strikes see: Maritime Labor Board, Report to the President and to the Congress, March 1, 1940; Lorwin & Wubnig, Labor Relations Boards; Eliel, The Waterfront and General Strikes, San Francisco, 1934. 466 DECISIONS OF NATIONAL LABOR I:L'LATIONS HOARI) 3 The formation of the Association; recognition and assistance by the respondent The evidence does not disclose who conceived the idea of forming the Association. However, sometime in July, 1934, while the general strike was in progress, an organi- zational meeting of the Association, presided over by.Capta n Bruno Heyne, was held on a company barge at the respondent's Richmond, California, dock.10 Approximately 47 or 48 of the respondent's employees, both licensed and unlicensed, attended, mostly ft one the inland fleet. It was decided to admit to membership both licensed and unli- 'Lensed personnel employed by the respondent, excluding only captains and chief engineers of ocean-going tankers Temporary officers were selected and directed to draft by-laws. All the officers selected, with the exception of the secretary-treasurer, Joseph Willis, were licensed men 11 On July 21, 1934, Langren, Heyne and Willis sent the following letter to President Kingsbury : For your information, employees on vessels of the Marine Department of the Standard Oil Company of California have formed an organization along the lines set forth in your letter of November 21, 1933, known as Standard Marine Employees' Association, with the undersigned elected as temporary officers. We are now soliciting members, with a total of one hundred twenty five (125) employees enrolled to date.72 The attached copy of our Constitution and By-Laws will give you an outline of the objects and form of our organization. You will note that all employees of the "inland" fleet, and all employees on "ocean-going" vessels (except Captains and Chief Engineers), who have been in service of the Marine Department for thirty days or over are eligible for membership. We trust that the formation of this Association meets with your approval, and that the Company will recognize our organization as a medium for the promotion of the welfare of its members and the solution of subjects or problems' of mutual interest. On July 25 and 26, 1934, the respondent had printed 900 membership cards, and some 2,150 election ballots for the use of the Association. Under date of August 20, 1934, Kingsbury made the following reply to the Asso- ciation's letter of July 21 : I wish to acknowledge your communication of July 21st, announcing the formation of the Standard Marine Employees' Association in Richmond, Cal., and to advise you that your Association has the recognition of the Company and the Management will cooperate with you in an endeavor to realize the purpose for which the Association was formed. - Undoubtedly, your Association will be a medium of increased understanding between employees and the means of strengthening the relationship that has existed in the past between the Management and employees. P.S. A similar letter to above was written you on August 8th, but apparently has gone astray as I understand it was not received On August 18, 1934, the Association held a second meeting This meeting was 10 Heyne was captain of the respondent 's ship BENECIA , a gas propelled steamer or barge with a crew of six u The officers were. President, Louis Langren , tugboat captain , vice-president , Heyne, vice- president, Harold W Andeison, first mate on a tanker; John Hartnett, an engineering officer, and secretary-treasurer , Willis Willis was not present at this meeting and was not a member of the Association at the time. 12 In the subsequent elections a total of 633 , of the respondent's employees cast ballots STANDARD OIL COMPANY OF CALIFORNIA 467 held in the respondent's cook house on the Richmond dock. The temporary officers were selected by ballot to serve regular terms. It was resolved to request the transfer of vice-presidents Anderson and Hartnett, representatives of the deck and engine departments on the tankers, to the Richmond dock in order to "enable'them to better represent their constituents." Sometime later the transfer was effected A luncheon which was served after the meeting was provided by the respondent Several weeks after the July 21 meeting, the Association's secretary-treasurer, Willis, who had theretofore been employed on a barge, was informed by Captain Rumsey, port captain and representative of management in charge of the respondent's Richmond dock, that he (Willis) was being transferred to the dock to do clerical and personnel work The transfer was effected and Willis received a $25 a month raise thereby. Willis was told by Rumsey that he (Willis)) would work with Heyne in organizing the Association and meet the crews as the ships came into port A short time later Rumsey sent Willis and Heyne to Los Angeles, San Pedro, and El Segundo, California, for the purpose of promoting the Association. On Ruinsey's instructions they secured money from the respondent's paymastei at Richmond to defray travel expenses On this trip Willis and Heyne met MacDonald Burleigh, a representative of man- agement attached to the respondent's Personnel and Employee Relations Depart- ment 13 Willis, Heyne, and Burleigh visited ships of the respondent in these ports, and Willis and Heyne solicited the crews to join the Association, issued membership cards, and collected dues. Burleigh provided Willis with the membership cards 1i Willis and Heyne were away about a week on this trip Quarters on the respondent's ships were provided for Willis. During this period they did not work for the respondent, but continued to receive their regular pay While at San Pedro, Willis and Heyne were advanced further sums of money by the respondent. Sometime in 193$, the Association reimbursed the respondent some $225 for these cash achances After returning to Richmond, Willis resumed his regular duties on the clock, but continued his activities on behalf of the Association, some of them on company time Heyne, however, remained on the dock for some time, meeting ships as they came to port and promoting the Association Thereafter, Heyne returned to his regular job on the BENECIA. At about this time Burleigh came to Richmond several times, conferred with Association officers, attended one or more meetings, and one one occasion assisted Willis in the preparation of minutes of a meeting. 4 Promotion of the Association by masters and mates During the formative stages of the Association, and thereafter, various of the respondent's licensed officers promoted its activities and sought to enroll the members of their crews in the organization Thus, during the summer of 1934, E R Smith, captain of the respondent's tanker DISTRICT OF COLU\dBIA, gave Zivara'\ Brown, radio operator on the tanker, a supply of Association membership applications and told Brown to get them signed by the crew members Captain Smith further told Brown that he "wanted to bring the ship in 100% organized " Brown then distributed 13 Burleigh has been employed by the respondent since 1929 Doting most of his employment he worked in connection with land titles, and assisted in the preparation of lawsuits involving land titles or anti-trust actions From December 1933 to February 1935. however, he was employed in the Personnel and Employee Relations Depaitments The undersigned finds him to have been representing management in his connection with the formation of the Association See Proposed Findings, N L R B Mattei of Standard Oil Company of California, 61 N L R B 1251 14 Subsequent supplies of membership cards were purchased by the Association at its own expense 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the cards among the crew, both licensed and unlicensed men All but the chief engineer, who was ineligible, signed." During the fall of 1934, W. W. Markley, captain of the respondent's tanker RTCH- MOND, told Francis MacGillivray , radio operator on the RICHMOND, that it would be a-"good idea" for MacGillivray to join the Association At around the same time, Markley told Hermosa Smith , a mate on the RICHMOND, that Smith "had better join" the Association . Markley also frequently suggested to the other officers of the RICHMOND that they join the Association . He told them that it seemed like "a good idea," and that "the company would probably appreciate it" Second Mate -Thomson of the same ship also solicited unlicensed crew members to join the Association. In about April , 1935, Heyne solicited Arthur Thaysen, a boatswain who had just been hired, to join the Association . Heyne told Thaysen that unions were no good; that officials of the seamen 's unions were "a bunch of rats" ; said that the company was "100%" behind the Association , and that because of his years of service with the respondent, he could assure Thaysen that it would not deny the Association anything. During the winter of 1935, Tom Hilton, first mate of the respondent's tanker STANDARD SERVICE, made a speech to the unlicensed crew members in the messroom of the STANDARD SERVICE Hilton told the men that lie wanted to know which of them belonged to the Association, and said that if they "figured on staying with Standard Oil any length of time it was best for them to join up with the Association ." Hilton also told the crew that if they were approached by union men they should treat them'with violence le 5. The Association's Constitution and By-Lazas The Constitution and By-Laws of the Associations' provide that all employees on vessels in the respondent's Marine Department who have been employed 30 days excluding captains and chief engineers , are eligible for membership They further provide for an Executive Board consisting of a president, vice president, and a secretary-treasurer to he elected by the members, and "if desired". 2 more vice presidents elected from among the licensed and unlicensed personnel of seagoing ships Continuous employment in the Marine Department for at least a year is a condition of eligibility to those offices. The Executive Board represents the members in dealing with the respondent. In addition, provision is made for "Investigating Committees" to be elected on each ocean-gonig vessel, and for similar committees from the inland fleet personnel in each of 3 ports : Richmond, Seattle, and San Pedro The function of these committees is to attempt initial settlement-of purely local problems, and, failing that, to refer them to the Executive Board. Employment of one year's duration is required as a It Brown also signed one of the cards He testified that be did so, "because in, 1934 jobs weic very scarce, and if I lost my lob with the Standard Oil I didn't know where I could get another, and I felt that if I didn ' t sign this that it would certainly be contrary to the wishes of the company and would possibly cause my discharge front the company " 10 The above findings are based on the testimony of Arthur Thaysen Thaysen testified that Hilton gave a demonstration of bow he had throttled the unions in the 1934 strike , that sonic of them had followed him all over town and that he had knocked some of them to the sidewalk He said that is what he figured everybody else should do in the Standard service , not to be afraid of any of them if they approached him, that if they approached them about the strike not to listen to them He says, "Haul right up and hit them right in the middle of the face if you see anybody approaching you " The constitution and by-laws were apparently adopted by the officers and werc evidently not submitted to the membership for approval, although, as indicated betetofoic, they acic submitted to the respondent STANDARD OIL COMPANY OF CALIFORNIA 469 condition of eligibility to election to the inland committees ; on the ship committees 3 months employment is required. Dues are $25, per month . The Constitution and By-Laws have apparently remained unchanged. up to the present day. 6. The respondent's contracts with the Association The first written contract between the Association and the respondent covering terms and conditions of employment, appears to have been made in 193915 This con- tract was succeeded by 3 signed agreements all dated March 24, 1942, and effective January 1, 1942. The 1942 agreements, which effected no substantial change from the terms of the 1939 contract, cover, respectively (1) the licensed and unlicensed personnel in the standby crew ;10 (2) licensed and unlicensed personnel on inland vessels; (3) licensed and unlicensed personnel on seagoing vessels. These contracts enumerate various wage, hours, overtime, holiday, and miscellaneous provisions as to working conditions They then conclude with the following statement: These working conditions were negotiated as a result of collective bargaining between the Executive Board of the Standard Marine Employees' Association and the Management of the Marine Department, Standard Oil Company of California, and it is understood and agreed by both parties that said working conditions written herein . . . supersede all previous agreements and remain in force until January 1, 1943, and yearly thereafter unless cancelled by written notice thirty (30) days prior to any January 1st of either party to the other at their respective places of business. Other than what is implicit in the above provision, the contracts contain no clause recognizing the Association as the representative of the employees, and-there is no provision for any grievance procedure.'° These contracts were apparently renewed in 1943, and again in 1944, by virtue of the automatic renewal provision. 7. Other use of the respondent's premises by the Association The Association maintains no office or meeting place. All its meetings are held in the respondent's cookhouse on the Richmond dock. Meetings are called by its officers when there is necessary business to transact. Up to April 1938, at least, its records were kept in the Marine Office on the Richmond dock. For a period in late 1935 or early 1936, dues collections were kept in a safe in the same office pending deposit in the Association's bank account. Thereafter they were sometimes left with the respondent's paymaster for safe keeping until they could be deposited. For at least a year and a half, minutes of Association meetings were sent through the respondent's mail system to the respondent's San Francisco office, where they were mimeographed and then returned to the Association's secretary-treasurer for distribution to the ships. The Association also made use of the respondent's mailing service in the trans- mission of Association matter, and of other equipment, such as typewriters, in the Marine Office. is This contract is not in evidence. w The standby crew consists of seamen stationed on the docks for assignment to sea-going ships as they are needed. "There is a clause that, in the event of dispute as to the amount of overtime to be awarded licensed men, the dispute shall be "decided by the Management and the Executive Board of the . . . Association " There is no other provision for recognition or for the adjustment of disputes or grievances. 470 DECIStON'S OUNATIONAL LABOR RLLAT1ONS BOARD 8 Concluding findings as to the Association Whether or not the idea of .forming an employee organization originated with Heyne cannot, and need not, be determined. In any event Heyne was a licensed officer and a supervisory employee Moreover, whatever the Association' s origin, it is clear that'the respondent's letter of November 21, 1933, suggesting such an organization, influenced, contributed, and gave direction to its formation Several factors are significant in connection with the establishment of the Asso- ciation. Thus, despite the respondent' s open invitation in the 1933 letter to form a company organization, the employees evinced no interest. Nevertheless, when, during the 1934 strike, the respondent was faced with a demand for recognition by the Seamen's unions, and elections to select representatives for the purpose of collective bargaining, the Association suddenly sprang into being and was quickly organized The Association's letter to the respondent announcing its formation made significant reference to the respondent's letter of 8 months before, attached a copy of the Asso- ciation's Constitution and By-Laws for the respondent's inspection, and expressed the hope that the Association would meet with the respondent's approval. Before it had even acknowledged this communication, the respondent had membership cards and election ballots printed for the use of the Association. Thereafter, although the request for recognition plainly disclosed that the Association represented less than 20 percent of the employees, the respondent extended recognition, and continued to extend it despite the fact that in the subsequent elections the unlicensed seamen, who comprised the great bulk of the employees, had not selected the Association as their -bargaining representative. This action of the respondent's is in significant contrast to its attitude in dealing with the seamen's unions, whom it refused to recognize on even to meet. The Association was completely dominated by the licensed officers, all of them supervisory employees. According to the uncontradicted testimony at the hearing, it is the only labor organization in the maritime field which admits both licensed and unlicensed seamen to membership in the same union. Under such circumstances, the Association could not represent a free and uncoerced selection by the unlicensed seamen. The provision in the Association's Constitution requiring a minimum of one year's employment with the respondent as a condition of eligibility to office, effectively limited control of Association policy, and representation on its bargaining committee, to the older employees. As soon as the skeleton of the organization had been set up, the respondent accorded it assistance and support and manifested control over its activities. Thus, as has been indicated, cards and ballots were printed by the respondent even before recognition had been extended. Secretary-Treasurr Willis was infornid by Port Captain Rumsey that he was being transferred to a dock job in order to promote the Association, given a raise in pay, and later sent with Heyne to southern California ports to solicit memberships for the organization. So far as the evidence discloses, both the transfer of Willis and the southern trip were at the initiative of the respondent Burleigh, the respondent's representative, lent assistance and provided Willis with membership cards. The expenses and the salaries of Willis and Heyne on the southern trip were defrayed by the respondent The later reimbursement of traveling expenses by the Association, presumably after the passage of the Act, make the advances no less support. Thereafter, Anderson and Hartnett were transferred to dock jobs in order to facilitate the work of the Association. The masters and mates on the respondent's ship, such as Smith, Markley, Thomson, and Hilton, promoted the Association, saw to it that their crews were enrolled STANDARD OIL COMPANY OF CALIFORNIA 471 therein, and, in the case of Hilton, counseled the crews to treat union men with violence.' Heyne disparaged the legitimate seamen's unions and assured Thaysen that the respondent was "100%" behind the Association. All the Association's meetings were held on the respondent's property, it had no meeting place or office of its own; the respondent provided it with luncheons, with a repository for its books and records and facilities for the temporary safekeeping of its funds, mailing service and the use of other equipment in the Marine office. Minutes of the Association' s meetings were mimeographed by the respondent, who thus had opportunity to peruse them. All these incidents constituted substantial assistance and support to the Association In addition, they and other factors indicate actual domination and control: Thug, the domination of the organization by the licensed men ; the subservient tone of the letter of July 21, 1934, with its bid for approval and "trust" for recognition; and Rumsey's transfer of Willis to the dock and the sending of him and Heyne to the southern ports. The effectiveness of the Association as a bargaining agent and the level of esteem with which it was regarded by the respondent, may be gauged by these facts and by the contracts which it secured. In March, 1942, after 7/ years of dealing on an alleged arms' length basis, the contracts signed by the Association contained no provision for grievance machinery, and lacked even a clause recognizing it as the representative of the employees. The contracts in fact constituted little more than a statement of terms and conditions of employment. It is evident from these facts that the Association was, and is, the creature of the respondent, wholly under its domination and control, and existing only by virtue of the respondent's suggestion, assistance, interference, and support While such of this conduct as occurred prior to the passage of the Act on July 5, 1935, constituted no unfair labor practice, no change in the situation occurred after that date. The Association continued to function exactly as it had theretofore. Except for the secretary-treasurer, who was changed in 1938, the original officials continued to hold office until 1941. Of the 5 new officials elected in the latter year, 3 were licensed officers. In 1944, 4 out of the 5 officials were licensed men. No change in operation, and no other change in structure, has occurred since the formation of the Association Licensed officers thus continued to dominate the organization by retaining a majority on its Executive Board and continued to attempt to enroll their crew members in the organization; meetings of the Association continued to be held in the respondent's cookhouse, the Association continued to make use of the respondent' s facilities and equipment for the safe keeping of its records and custody of its funds, for the mimeo- graphing of its minutes, and for the transmission of its business. The Association has never been disavowed or disestablished by the respondent In view of the character of the organization, the passage of the Act imposed on the respondent the duty to dis- establish it and to free the employees from the respondent's domination and control ." No such action was ever taken. The respondent, did not, by any announcement or intimation, inform the employees that it disavowed its connection with the Associa- tion, or inform them that they would be permitted to exercise the rights guaranteed by the Act free from interference by the respondent Indeed, the respondent thereafter continued to render the Association assistance and support, and pretended to deal with it as if it were a legitimate organization. Upon the entire record, the undersigned therefore concludes and finds that the a It is to be noted that Hilton's conduct occurred after the passage of the Act 22 N L R B v Newport News Shipbuilding & Di vdork Co, 108 U S. 241, N L R B v Brown Paper Mill Co, 108 F (2d) 867 (C C A 5) 472 DECISIONS Or NATIONAL LABOR RELATIONS BOARD respondent has, since July 5, 1935, dominated and interfered with the administration of the Association and has contributed support to it, and that the respondent thereby, and by the statements of Mate Hilton, heretofore set out, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge of John Hansen Hansen, an able-bodied seaman, was hired by the respondent in September 1943. Except for the first'several weeks of his employment, during which period he worked in the standby crew on the Richmond dock, Hansen was employed on the respondent's tanker RICHMOND. His work was satisfactory. He was given important assign- ments, called off watch to take the ship out of harbor, acted as temporary bosun, and was complimented on his work. On December 29, 1943, he was discharged. Hansen has been a member of the S. I. U. and S. U. P. since 1941. Early in October 1943, while he was in the standby crew, Banks, an official of the S. I. U.-S. U P, asked Hansen to help organize the respondent's unlicensed seamen. Hansen agreed to do so Banks then supplied Hansen with union literature and membership cards, which Han- sen distributed, first on the docks and later on the RICHMOND.-He solicited the members of the RICHMOND crew to join the S. I. U.-S. U. P. Most of them joined. Hansen's activity soon became known among the licensed officers of the RICH- MOND and evoked adverse comment from some of them. Third mate Rocq referred to Hansen as "the S. U. P. organizer", and as an "agitator", and made frequent jeering and derogatory remarks to the members of the crew about Hansen's organizational efforts. Late in November, or early in December, 1943, Hansen spoke to Second Mate Dengg in the wheelhouse of the RICHMOND, on the subject of changing the crew's coffee hour. Dengg indicated displeasure at Hansen's remarks and said, "You guys . are all the time agitating . . . instead of trying to be good sailors and get ahead." On the same occasion Dengg told the wheelsman that Hansen was "a good sailor, but, he is always agitating," said the unions were no good, and that the men were "much better off in Standard Oil without them." Sometime later in December Dengg came up to Hansen, threw his arm about him, told him that he was a good sailor, but that he did too much talking about the Union and about conditions on the ship ; asked why Hansen did not "forget about it and try to get ahead"; told him that it was a "good company"; that he (Dengg) had been on the picket line during the seamen's strike, and that while the Union had never done anything for him, the company had treated him well. At the time of this conversation, Dengg had been drinking. On December 29, 1943, about 2:30 a m , while the RICHMOND was standing in the port of San Pedro, Hansen was summoned to the deck by Chief Mate Attahowe and discharged. When Hansen asked the reason, Attahowe told him, "You have been doing too much talking aboard this ship about the working conditions. I figure that if you don't like it aboard here ... you better get off " Hansen asked i4 that was the only reason. Attahowe answered that it was enough. Hansen was allowed to remain on the ship overnight and left in the morning. There- after he applied for reinstatement several times but was refused. However, following the filing of a charge alleging that his discharge was discriminatory, the respondent offered to reinstate Hansen without loss of pay or other rights or privileges, on condi- tion that the charge be withdrawn This offer was not accepted. The respondent averred in its answer that Hansen was discharged for "good and sufficient cause." At the hearing counsel for the respondent indicated that the dis- STANDARD OIL COMPANY OF CALIFORNIA 473 charge was for "breaches of duty." The respondent introduced no evidence, however, in support of these allegations In view of the activities of Hansen on behalf of the S. T. U -S. U P, activities which resulted in adverse comment by his officers and criticism of his talk of the Union and "conditions" on the ship, and the remarks of Attahowe at the time of his discharge, the undersigned finds that Hansen was discharged because of his concerted activities, and because of his activities on behalf of the S. I. U. and S U P., and that the respond- ent thereby discriminated in regard to hire and tenure of employment, discouraged mem- bership in the S. I. U.-S. U. P, and by that action, and by the remarks of Rocq and Dengg, heretofore set out, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 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 con- nection 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, have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the under- signed will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the respondent has dominated and interfered with the admin- istration of and contributed support to Standard Marine Employees' Association. Because of the respondent's domination, interference, and support the Association is incapable of serving the respondent's employees as a genuine and independent col- lective bargaining agency, and constitutes a continuing obstacle to the free exercise by the employees of the rights guaranteed them in the Act. Accordingly the under- signed will recommend that the respondent disestablish and withdraw all recognition from the Association as representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment. The contracts of March 24, 1942, between the respondent and the Association, as renewed, em- body recognition of that organization as a bargaining representative of the respond- ent's employees, and represent the fruit of the respondent's unfair labor practices. The undersigned will therefore recommend that the respondent cease giving effect to those or any other contracts with the Association embodying terms and conditions of em- ployment or recognition of the Association as a bargaining agent. Nothing in these recommendations, however, shall be construed as requiring_the respondent to vary its wage, hour, and other substantive features of its relations with its employees which the respondent may have established in conformity with such contracts, as extended, renewed, modified, supplemented or superseded. It has been found that the respondent has discriminated in regard to the hire and tenure of employment of John Hansen. It will therefore be recommended that the respondent offer Hansen immediate, full, and unconditional reinstatement to his former x,Counsel for the respondent examined Hansen with respect to several incidents for the apparent purpose of establishing breaches of duty The undersigned finds no evidence, however, to support the conclusion that Hansen was guilty of such derelictions . In any event, the statements of Attahowe establish that he was not discharged for any such reason. 474 DECISIONS OF nT \T1ON L LABOR I:ELATIONS BOARD or a substantially equivalent position, without prejudice to his seniority and other rights and privileges. It will also be recommended that the respondent make Hansen whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the respondent's unconditional offer of reinstatment, less his net earnings2; during that period.' Upon the basis of the foregoing findings of fact, and upon the entire record of the case, the undersigned makes the following: CONCLUSIONS OF LAW 1 Seafarers International Union of North America and Sailors' Union of the Pa- cific, affiliated with the American Federation of Labor ; National Maritime Union, affiliated with the Congress of Industrial Organizations ; and the Standard Marine Employees' Association, unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of Standard Marine Em- ployees' Association, and contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of John Han- sen, thereby discouraging membership in Seafarers International Union of North America and Sailors' Union of the Pacific, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 4 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the under- signed recommends that the respondent, Standard Oil Company of California, its offi- cers, agents, successors and assigns, shall: 1. Cease and desist from. (a) Dominating or interfering with the administration of or contributing support to, Standard Marine Employees' Association, or any other labor organization of its employees ; 14 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 , which would not have been incurred but for his unlawful discharge and the conse- quent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal or other work-relief projects shall be considered as earnings See Republic-Steel Cor- poration v N L R B 311 U S 7 a As indicated' heretofore, following the filing of the charge alleging that his discharge was discriminatory, the respondent offered to reinstate Hansen without loss of pay or other rights and piivileges, provided that charge was withdrawn . Reinstatement upon such a condition would not effectuate the policies of the Act. The offer not being unconditional, Hansen was under no obligation to accept it The undersigned finds that the policies of the Act can be effectuated only by the unconditional reinstatement of Hansen with full hack pay and the posting of remedial notices, as piovided hereinafter STANDARD OIL COMPANY OF CALIFORN IA 475 (b) Recognizing Standard Marine Employees' Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment; (c) Giving effect to the contracts of March 24, 1942, with Standard Marine Em- ployees' Association, or to any modification, extension, or renewal thereof, or to ally other contract with the Association embodying terms or conditions of employment or recognition of the Association as a bargaining agent. (d) Discouraging membership in Seafarers International Union of North America and Sailors' Union of the Pacific, affiliated with the American Federation of Labor, the National Maritime Union of America, C. I. 0 or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition of employment ; ° (e) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Seafarers International Union of North America and Sailors' Union of the Pacific, affiliated with the American Federation of Labor, the National Maritime Union of America, 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 purposes of collective bargaining, or other mutual aid or protection, as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act. (a) Withdraw all recognition from Standard Marine Employees ' Association, and completely disestablish that organization as the representative of any of the respond- ent's'employees for the purpose of dealing with the respondent concerning grievances, labor disputes , rates of pay, wages, hours of employment or other conditions of employment ; (b) Offer John Hansen immediate, full and unconditional reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges ; (c) Make whole John Hansen for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he would normally have earned as wages during the period from the date of his discharge to the date of the respondent 's unconditional offer of reinstatement, less his net earnings during that period; (d) Post immediately in conspicuous places on each of its docks and ships, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : ( 1) that the respondent will not engage in the con- duct from which it is recommended that it cease and desist in paragraph 1(a), (b), (c), and (e) of these recommendations, (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b), and (c) hereof, and (3) that the respond- ent's employees are free to become or remain members of Seafarer 's International Union of North America and Sailors' Union of the Pacific, affiliated with the Ameri- can Federation of Labor, the National Maritime Union of America. C I 0 or any other labor organization and that the respondent will not discriminate against any employee because of his membership in or activity. on behalf of that or any other labor organization; (e) Notify the Regional Director for the Twentieth Region in writing within ten (10) clays from the date of receipt of this Intermediate Report what steps the re- spondent has taken to comply therewith 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the Na- tional Labor Relations Board, Series 3, as amended, effective November 26, 1943, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, 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 to- gether with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party 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. As further provided in said Section 33, should any party desire permission to argue orally before the Board request there- for must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Dated December 30, 1944. CHARLES W. SCHNEIDER, Trial Examiner. O