Prigg Boat Works

In the Matter of H. PAUL PRIGG, AN INDIVIDUAL, DOING BUSINESS UNDER THE NAME AND STYLE OF PRIGG BOAT WORKS and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. 10-C-1660.-Decided June 27,19-116 DECISION AND ORDER On July 21, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. On May 28, 1946, the Board, at Washington, D. C., heard oral argument, in which the respondent participated. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board, has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications, exceptions, and additions : 1. We agree with the Trial Examiner's finding that the respondent discriminated in regard to the hire and tenure of employment of Kenneth Ekelberry, Henry Berry, D. H. Wood, J. P. Wood, H. P. Belknap, P. G. Watton, and Joe Craig in violation of Section 8 (3) of the Act. In addition to the Trial Examiner's subsidiary findings, we find upon the entire record that the union activities of these seven employees were known to the respondent at the time of the discrimina- tion against them. In addition to the factors indicating such knowl- edge, set forth in the Intermediate Report, we particularly base our finding that the respondent had such knowledge upon the circum- stance, not mentioned in the Intermediate Report, that employee D. H. Wood obtained from employees J. P. Wood, H. P. Belknap, G. Watton, and Joe Craig their signatures to union cards in the presence 69 N L. R B., No.11. q7 701592--47-vol. 69--8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Foreman Anderson , a management representative , before the re- spondent transferred those five employees to work at Johnson's, re- ferred to in the Intermediate Report, and the further circumstance that, after completion of the work at Johnson's, the respondent retained in employment the only three non-union employees who had been transfered to work at Johnson 's but none of the six transferees who were union adherents. 2. We do not adopt the Trial Examiner's findings that Berry's assignment to work at Johnson's yard did not constitute reinstatement to his former or a substantially equivalent position and that the trans- fer of the other five employees' to Johnson 's yard effected a discrimi- natory discharge of them. Berry was assigned to work at Johnson's yard pursuant to a settlement agreement , approved by the Board's Regional Director . The transfer of the other five employees was also effectuated with the consent of the parties concerned and did not con- stitute a termination of the employment relationship with the respond- ent. However, upon the entire record we find that, in failing or re- fusing to reinstate the six employees after the work at Johnson's had been finished on or about February 7, 1945, as set forth in the Inter- mediate Report, the respondent thereby discriminated in regard to their hire and tenure of employment in violation of Section 8 (3) of the Act. 3. While we adopt the Trial Examiner 's conclusion that the respond- ent thus discriminated against the six employees, in our opinion the discrimination took the form of selection of these employees for non- employment as part of a general reduction in the respondent 's work- ing force, which general reduction was itself not discriminatorily motivated . So far as appears , after the discrimination, the respond- ent hired no new men and has since continued business with a reduced personnel . Under these circumstances , sufficient positions may not be available for the six employees affected by the respondent's discrimi- nation who desire reinstatement' We shall accordingly order the respondent to reinstate the six employees in the following manner: each of these named employees shall be reinstated to the position that he occupied or would have occupied but for the respondent 's discrimi- nation, or to a substantially equivalent position , without prejudice to his seniority and other rights and privileges , the respondent to dis- miss , if necessary , all persons now employed in the same or similar positions who were hired or rehired after the respondent's discrimina- tion on or about February 7, 1945; if, after dismissal of all such em- ployees, there are insufficient positions for all employees remaining, 1 D H Wood, J P. Wood, Belknap, Watton, and Craig. 2 Inasmuch as the seventh employee, Ekelberry , who was discharged , does not desire to return to work for the respondent , we shall not order his reinstatement. PRIGG BOAT WORKS 99 including the six named employees, the available positions shall be distributed among all employees, without discrimination against any employee because of his union membership or activity, following such a system of seniority or other non-discriminatory practice to such an extent as has heretofore been applied in the conduct of the respondent's business ; those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed on a preferential list, with priority determined among them in accordance with such system of seniority or other non-discrimina- tory procedure as has been heretofore applied by the respondent in the conduct of his business, and thereafter, in accordance with such list, shall be offered reinstatement to positions as provided above, as such employment becomes available and before other persons are hired for such work. We shall also order the respondent to make whole the six employees for any losses incurred because of the respondent's discrimination during the period from the date of the discrimination to the date of the respondent's offer of reinstatement or placement of their names upon the preferential list, less net earnings as defined in the Inter- mediate Report. It is possible that one or more of the six employees might have been discharged in the general reduction of the work force, even if the respondent's selection had been made on a non- discriminatory basis. This possibility will be taken into consideration in determining the amount due to the employees in compliance with our order herein. We also expressly reserve the right to modify the back-pay and re- instatement provisions if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now appearing.3 4. We agree with the Trial Examiner's finding that the Union repre- sented a majority of the employees at all times between January 13 and February 10, 1945. We also agree with the Trial Examiner that the appropriate unit on February 10 consisted of 27 employees, of whom 14 were union members, and that the respondent's 3 watchmen, including Percy Adams, were properly excluded from the appropriate unit. Two of them, O'Rourke and Young, are indisputedly, solely watchmen.4 The respondent contended at the oral argument that the 4 Matter of Fairmont Creamery Company, 64 N L. R. n. 824, ef. N. L. R. B v New lurk Merchandise Company, Inc, 134 F (2d) 949 (C C A 2) ; International Union of Mine Workers v. Eagle Picher Mining t Smelting Co , 325 U S 335 ' Out finding excluding non-militarized and non -deputized watchmen from the appropri- ate unit should not he taken to represent our view as to their inclusion or exclusion in the normal case in view of the fact that we rest their exclusion in the present case upon the fact that the parties stipulated in the consent-election agreement that watchmen be excluded 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union did not have a majority on February 10 inasmuch as Adams was a clean-up man and not a watchman, and thus fell within the appropriate unit. While Adams served part time as a clean-up man, he worked at least 8 hours a day as a watchman. Adams' name was not included in the list of eligible voters that the respondent furnished for the consent election., . 5. The respondent, at the oral argument before the Board, con- tended in effect that H. P. Belknap was refused reinstatement by the respondent after his work was finished at Johnson's because Bel- knap was drunk while he worked at Johnson's and that, in any event, he had voluntarily quit his employment. We find no merit in these contentions. While Belknap was drunk during-his last day of work at Johnson's yard, he was not reprimanded for his conduct. When he reported at Johnson's on the next day, as in the case of the others, he was informed that work was unavailable for him. He then re- ported at the respondent's shop and talked to Mr. Lee, the respondent's bookkeeper. Having ascertained that the others had been refused reinstatement, he did not formally apply for continuation of his work at the respondent's plant. He did, however, try to vote in the elec- tion of February 10, 1945, and was prevented by the respondent, as stated in the Intermediate Report. Under the circumstances, formal application would have been futile. In his answer, filed in this pro- ceeding, the respondent admitted that he refused to reinstate the employees involved herein. We are convinced and find that Belknap's insobriety on the day in question did not motivate the respondent in refusing to continue Belknap in employment and that Belknap did not voluntarily quit his job. As in the case of the other five em- ployees involved herein, the respondent's conduct in terminating Bel- knap's employment is attributable to his union activities. ,ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, H. Paul Prigg, Miami, Florida, and his agents, successors, and assigns shall : Ellis W Jarrell , an employee, creditably testified without contradiction : Mr Adams has two bosses, from our understanding He is a clean-up man and he is also watchman in the daytime, at the time we * * * from 7 • 30 until 5: 00 o'clock Q What does he do in connection with the watchman' A He secures all the gates and sees that they are fastened at-all times and at lunch period he stands by the employees' entrance to see that no outsider comes in, or no one goes out with anything they shouldn 't go out with Q (By Mr Purdom ) Were his duties in that respect similar to those performed on-as an armed guard , on places where government contracts are being worked on in the daytime' A Well, from-as far as gate-keeping, yes, and then he also cleans up the building. PRIGG BOAT WORKS 101 1. Cease and desist from : (a) Discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., or any other labor organi- zation of his employees, by discharging or refusing to reinstate any of his employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment; (4) Refusing to bargain collectively with Industrial Union of Ma- rine and Shipbuilding Workers of America, C. I. 0., as the exclusive representative of all his employees at the Prigg Boat Works plant, exclusive of office clerical employees, watchmen, foremen, and super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, in respect to labor disputes, grievances, rates of pay, wages, hours of employment, and other conditions of employ- ment ; (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or_protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: 6 (a) Offer Henry Berry, D. H. Wood, J. P. Wood, J. P. Belknap, P. G. Watton, and Joe Craig immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, placing those employees for whom no employment is presently available on a preferential list and offering them employment as it becomes available in the manner set forth in our Decision herein; (b) Make whole Henry Berry, D. H. Wood, J. P. Wood, J. P. Belknap, P. G. Watton, and Joe Craig for any loss of pay that they may have suffered as a result of the discrimination against them in the manner provided in our Decision herein; (c) Upon request, bargain collectively with Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., as the ex- clusive representative of all his employees at the Prigg Boat Works plant, exclusive of office clerical employees, watchmen, foremen, and H The Board expressly reserves the right to modify the back-pay and reinstatement pro- visions if made necessary by a change of conditions in the future , and to make such supple- ments thereto as may hereafter become necessary in order to define or clarify their appli- cation to a specific set of circumstances not now appearing. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory employees with authority to hire, promote, discharge, dis- cipline, or otherwise effect changes in the status of employees or ef- fectively recommend such action, in respect to labor disputes, griev- ances, rates of pay, wages, hours of employment, and other conditions of employment ; - (d) Post at his plant in Miami, Florida, copies of the notice at- tached to the Intermediate Report, marked "Appendix A." 7 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent, be posted by him immediately upon receipt thereof, and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Tenth Region is writing, within (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. T. T. Purdom, for the Board. Mr. Michael Francis Doyle,-by Mr. Stanley Root, of Philadelphia, Pa., and Mr. H Paul Prigg, of Miami, Fla , pro se, for the respondent. Mr. Charles N Smolckoff, of Miami, Fla., for the Union STATEMENT OF THE CASE Upon a second amended charge filed April 23, 1945, by Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated April 25, 1945, against IT. Paul Prigg, an individual doing business under the name and style of Prigg Boat works, herein called the respondent The com- plaint alleged that the respondent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, notice of hearing, and a subsequent order changing the place of hearing were duly served upon the respondent and the Union with respect to the unfair labor practices, the complaint alleged in substance: (1) that on and after January 10, 1945, the respondent (a) vilified, disparaged, and expressed disapproval of the Union, (b) interrogated his employees concern- ing their union affiliations, (c) urged, persuaded, threatened, and warned his employees to refrain from assisting or joining the Union, (d) kept under surveil- lance the Union's meeting places, meetings and activities, and the concerted activ- 7 Said notice, however, shall be, and it hereby is, amended by striking from the first par- agraph thereof the words, "Recommendations of a Tiial Examiner," and substituting in lieu thereof, the words, "A Decision and Order," PRIGG BOAT WORKS 103 ities of his employees, and (e) offered, promised, and granted a wage increase to his employees: (2) that on and after January 12, 1945, the respondent discharged and has since refused to reinstate seven named employees' because they joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection ; (3) that on and after January 12, 1945, the respondent refused upon request to bargain collec- tively with the Union which was at all such times the exclusive representative of a unit of the respondent's employees appropriate for the purposes of collective bargaining; and (4) that the respondent, by the foregoing acts, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act Prior to the hearing, the respondent filed his answer, admitting certain of the allegations of the coniplaint but denying the commission of any unfair labor prac- tices Respondent also asserted in his answer that lie doubted whether the Union represented a majority of his employees and that he had released the seven employees named in the complaint because of their inefficiency, poor workman- ship, insubordination, junior service, and the lack of work due to the completion of contracts Pursuant to notice, a hearing was held from May 14 to May 26, 1945, at Miami, Florida, before the undersigned, William F Scharnikow, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its Regional Director All parties, including the respondent appearing pro se as well as by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing, the respondent moved to amend paragraph III of his answer by admitting, in essentially the language of paragraph III of the complaint, his procurement of a substantial quantity of raw materials from, and the shipment of a substantial amount of his product to, points outside the State of Florida. This motion was granted without objection Later, during the hear- ing, the undersigned reserved decision as to the admission of an exhibit offered as Board's Exhibit 44 The exhibit in question is hereby rejected At the conclu- sion of the hearing, unopposed motions to conform the complaint and the answer to the proof were granted The hearing was closed after oral argument before the undersigned by the respondent, his counsel, and counsel for the Board Pursu- ant to leave granted at the hearing, the respondent filed a brief and the attorney for the Board filed a memorandum which the undersigned has considered 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. II Paul Prigg, au individual business ender the name and style of Prigg Boat Works, has his principal office and place of business at Miami, Florida, where he engages in the manufacture, sale, and distribution of boats, barges, and related products. In the operation of his business, the respondent purchases raw materials consisting of lumber, fittings, barbed wire, screws, fas- teners, glue, paint, and linen cloth. During the period from January 1, 1944, until the date of the hearing, the respondent purchased such raw materials of a value between $5,000 and $10,000, practically all of which was purchased at and shipped ' Henry Berr} , Kenneth Ekleberiy, D H Wood, J P Wood, H P Belknap , P G Watton, and be Craig 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from points outside the State of Florida. During the same period, the respondent built approximately 100 boats of various descriptions for the United States Army and the United States Navy, at an aggregate price exceeding $250,000. While deliveries have been F. O. B. government yards in Miami, Florida, the boats have been transported in interstate and foreign commerce for use in prosecuting the war. In the brief filed with the Trial Examiner the respondent concedes that "there appears to be no question that the Prigg Boat Works was engaged in inter- state commerce." U. THE ORGANIZATION INVOLVED Industrial Union of Marine aipd Shipbuilding Workers of America, C. I. 0., is a labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The general course of the unfair labor practices 1. Organization of the respondent's employees ; interference, restraint, and coercion ; the discharge of Ekieberry and Berry In October or November, 1944, Charles N. Smolikoff, Regional Director of the Union, left union pamphlets in the automobiles parked outside the respondent's plant. Although there was some discussion of unionization among several of the respondent's employees in December 1944, nothing came of it until, on the evening of January 9, 1945, Kenneth Ekleberry, an electrician employed by the respondent, visited the Union's hall in Miami. Eckleberry told Smolikoff that the respondent's employees were interested in organizing, discussed the possi- bilities with Smolikoff, and secured a stack of applications for membership in the Union. On the next day, January 10, Smolikoff went to the plant of the respondent during working hours. At Smolikoff's request, Foreman Louis Anderson 2 sum- moned Ekieberry to the front gate. Ekleberry there reported to Smolikoff that talk of the union was "all over the shop" and arranged to deliver signed union membership applications to Smolikoff on the following day at a vacant gasoline filling station directly across the street from the respondent's plant. On January 11, 12, and 13, there was considerable discussion of the Union by the employees during working hours and, as a result, 18 of them signed appli- cations for membership in the Union, including Kenneth Ekieberry, Henry Berry, D H. Wood, J. P. Wood, H P. Belknap, P. G. Watton, and Joe Craig During the lunch hour on both January 11 and 12, Smolikoff appeared at the gasoline station, received membership applications signed by the employees, and talked with Ekleberry, Berry, and D. H. Wood in plain view of the respondent's office on the other side of the street. Within a week, Smolikoff also met and spoke with Craig, Watton, and Belknap some distance down the street although in the same block In the meantime, on the morning of January 11, according to Henry Berry's testimony, Berry overheard part of a conversation between the respondent and Anderson during which their mention of "Union" was followed by the respond- ent's statement, "God damn it, I won't stand for it", and by Anderson's rejoinder, "What can you do about it?" In their testimony, neither the respondent nor Anderson denied specifically having had this particular conversation. The re- spondent testified generally that his discussions of the Union with Anderson 2 According to his testimony and the general understanding of the employees Anderson was foreman over hull construction The respondent's contention to the contrary is dis- cussed below PRIGG BOAT WORKS 105 were limited to occasions when he instructed Anderson to take no action what- soever and to say nothing to the employees for or against union activities. Anderson, testifying as a Board witness, first said that the respondent never discussed "this Union business" with him , He was then confronted with a pre-trial affidavit in which he had stated that "Mr. Prigg didn't discuss the union with me much but he said if they had gone about it in a white way instead of such a sneaky way he wouldn't have objected to it." 3 Anderson there upon admitted the respondent 's having told him that "if they would have come out in the open and demanded what they were going to do about it, why, Mr. Prigg wouldn't have felt like he did towards them " The undersigned credits the testimony of Henry Berry as to the conversation between the respondent and Anderson on the morning of January 11, and finds that at the outset, the respond- ent and Anderson were aware of, discussed, and were displeased by the active interest of the employees in the Union Most of the union applications were signed by the respondent's employees on Friday, January 12, the regular weekly pay-day. Employee Loren Leonard, who had turned in his application card, testified that during the day Anderson jokingly said to him that he should pack up his tools because he might be fired or laid off, According to the testimony of employee Ellis Jarrell, at about two o'clock on that afternoon, he heard Anderson tell employees Urytzki and Trimmer that "Mr. Prigg said all you boys that signed up are going to be fired." The undersigned credits the testimony of Leonard and Jarrell concerning these state- ments of Anderson on January 12 Leo Droughton, employed by the respondent as an engineer and draftsman in charge of from three to six employees, including Ekieberry, testified that on that same afternoon of Friday January 12, the respondent told him, in effect, that "we would be minus electricians," and that he was going to discharge Ekleberry because he had seen him talking to a union representative and was not going to have "any of that" in the plant. When asked by Droughton for the reason to be given to Ekleberry for his discharge, the respondent said, according to Droughton, that Ekleberry would be released for inefficiency and laziness and said something about having paid Ekleberry more than $1250 to wire two boats, which he said was excessive. Droughton told the respondent he did not believe this to be excessive since no two boats were wired alike and the United States Navy had constantly required changes. The respondent denied Droughton's version of this conversation and testified that he had spoken to Droughton not before but after Ekieberry was discharged that afternoon and that he had then explained the discharge on the ground of Ekleberry's lack of interest and the excessive cost of his work The respondent testified, moreover, that it was Droughton who asked him whether Ekleberry was discharged because of his union activities and that the respondent had replied in the negative In 3 The undersigned makes no finding of fact based upon the substance of Anderson's af - davit However, he regards its use by the Board's attorney for the purposes of impeach, ment as being not only proper but effective, in view of the resulting admission by Ander• son next set forth in the text Anderson at first denied, and then conceded that the affi- davit might have been read to him by the attorney for the Board who signed the jurat. His testimony was followed by a stipulation between counsel that, if called as a witness, a bliss Nell Galloway, who is employed in Miami by the United States Civil Service Com- mission, would testify not only that she saw Anderson sign the affidavit and beard him swear to it in her office on May 9, 1945, but that she first heard the Board's attorney read- ing to Anderson with the affidavit before him The respondent's willingness to permit the introduction in evidence of this version of Miss Galloway s testimony without insisting upon cross -examining her, and his failure further to examine Anderson , who was present and heard the stipulation. dispel any possibility of doubt that the affidavit was read to Anderson before he signed and swore to it. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the opinion of the undersigned Droughton was a straightforward. disinterested witness and the undersigned therefore credits his version of his conversation with the respondent. At the end of the afternoon of January 12, Ekleberry and Berry each received his regular pay check together with a release or statement of availability and a statement of his earnings and of the amount withheld from his wages under the Federal Income Tax Act On the following morning, Foreman Anderson punched in at the time clock about 15 minutes before work was to begin and, turning to the men who were standing about, said, "I wonder how many was fired last night?" About 5 minutes later, Berry came in and punched his time card although he told the other employees he had been discharged He then walked over to Anderson whom he asked whether his receipt of statements of availability and of income tax deductions meant that he was fired, and, if so, whether it was because of union activities. To both queries, Anderson replied "I guess so " Later in the day, employee Ellis Jarrell asked Anderson what happened to Berry and whether his work had "gone bad " Anderson answered, "Well, it wasn't the work as far as I know." To Jarrell's question whether Berry's discharge was because of his "signing up for the Union," Anderson replied "That's all I know, I couldn't tell you " Anderson was not put on the stand by the respondent, nor did he, in the course of his examination as a Board witness, deny making any of these state- ments which were attributed to him by the testimony of Berry and Jarrell The undersigned credits Berry's and Jarrell's testimony 2. The agreements for a consent election and for the settlement of the charges first filed with the Board On January 12, 1945, after receipt of the employee's assigned membership appli- cations, Smolikoff mailed a letter to the respondent in which he. as Regional Director of the Union, claimed that the Union represented a majority of the respondent's employees and asked that the respondent recognize the Union as "the sole and exclusive bargaining agent of all your maintenance and production employees " The respondent received this letter the next day. After mailing the Union's request for recognition, Smolikoff learned later in the evening of January 12, that Berry and Ekleberry had been discharged Therefore, on Saturday, January 13, Sinohkoff prepared charges in the nan5e of the Union alleging that by these discharges, the respondent had violated Section 8 (1) and (3) of the Act At the same time, he prepared a petition for certification of the Union as the exclusive bargaining representative of the respondent's employees. On the same day, Smolikoff filed both the charges and the representation petition with the Board by mailing the originals to the Board's Regional Office at Atlanta and, in accordance with customary practice, by delivering copies to George Slyer, a field examiner of the Board, then duly assigned and working in the locality. Slyer immediately began his investigation of the charges over the week end. On the afternoon of Monday, January 15, Slyer called upon the respondent at the latter's plant. In the conversation between them, which took place in the presence of M. W. Lee, "Secretary of the Company," Slyer told the respondent that the Union had filed a petition for certification as the representative of his employees and also charges alleging the discriminatory discharge of Ekleberry and Berry The respondent showed Slyer the letter of the Union requesting recognition. When questioned by Slyer as to his position concerning the charges, the respondent replied that the work of Berry and Ekleberry had been unsatisfac- tory for some time; that he had paid Ekleberry $1234 to wire two boats, which he said was excessive; that Ekleberry had said that he could wire one of these boats in from 2 to 4 days with the help of a couple of electricians; and that he had PRIGG BOAT WORKS 107 learned of Ekleberry's statement since his discharge and could prove it by affi- davits Slyer asked to see the affidavits but the respondent refused to produce them In answer to Slyer's questions, Lee said that oral warnings had been given to Berry and Ekieberry but that no records of them were kept. Lee added, how- ever, that there were records of complaints about Berry's work In this conversation on January 15, Slyer also explained to the respondent the procedures of the Board in representation and complaint proceedings but sug- gested that the charges might be settled informally by agreement and the repre- sentation question by a consent election conducted by the Board' As to the charges of unfair labor practices, Slyer recommended that respondent reinstate Berry and Ekieberry with back pay Otherwise, he said, he would recommend the issuance of a complaint to be followed by a hearing before the Board 5 He added that the Board usually followed the Field Examiner's recommendation for the issuance of a complaint but that the Board's ultimate decision of the case could not be predicted ° The net result of this conference was that the respondent told Slyer he would like to settle the matters raised by the charges and the representation petition at one and the same time, that he would therefore consent to an election only upon disposition of the charges, and finally, that he refused to reinstate Ekleberry although the reinstatement of Berry was "not too difficult " The respondent and Slyer had several later conferences during which the settlement agreement was discussed and Slyer explained the mechanics of the consent elections conducted by the Board. The respondent objected to Slyer's suggestion that the election be held before February 3, on which date Slyer had business in Atlanta. When Slyer then suggested February 10 for the election, the respondent pressed for still a later date, stating frankly that he had applied to the War Labor Board the previous October for permission to give his men a wage increase and that lie hoped to be able to announce the grant of such permission before the date of the election. In the meantime, Slyer learned from Ekleberry that the latter did not wish to return to work for the respondent. Accordingly on January 24, the respondent and the Union entered into an agreement providing for the respondent's rein- statement of Berry and his payment to Berry and Ekieberry of $7305 and X68.22, respectively The agreement further provided that "contingent upon compliance with the terms and provisions hereof," no further action should be taken on the charge and that the Union "requested the withdrawal of the charge . . to become effective when the [Board's] Regional Director is satisfied that the provisions of this agreement have been carried out" At the * With reference to the Union s request for recognition, Slyer told the respondent that he might grant recognition forthwith, or ask for a check of the Union's membership cards against the pay roll, or leave the matter of the Union's status to be, determined by the Board, either by a consent election or a complete proceeding According to Slyer, the respondent summarily rejected the first two possibilities Slyer testified that lie had piactically completed his investigation of the charges although be did not so mfoim the respondent However, it appears that the respondent was in fact aware that S13er had been making his investigation According to the re- spondent s testimony, Anderson had informed hint early that morning that Slyer, a Field Examiner from the Board, had visited him in the company of Employee Joe Worthington R According to the respondent's testimony, S13 er said that no matter how strong the evidence in favor of the respondent might be, the Board would find that he had committed the unfair labor practices with which he was charged Slyer denied having made such a statement but said that the respondent had expresser] his own opinion to this effect, to which Slyer replied that the Board's action was unpredictable, and that, if there were a hearing, the respondent could be represented by counsel and get in all the evidence that lie wanted to put in. The undersigned credits Slyer's testimony which was characterized throughout by his obvious attempt to be fair to the respondent 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time this agreement was executed, the respondent asked Slyer "how it would be if Berry got a job somewhere else" and Slyer replied that that would not con- stitute compliance. On the following day, January 25, the respondent and the Union entered into an agreement that the Board's Regional Director should hold an election among the respondent's production and maintenance employees , exclusive of supervisors, foremen, office clerical employees , and watchmen to determine whether they desired to be represented by the Union . According to the agreement the election was to be held at noon , February 10, at the time clock in the respondent's shop and eligibility to vote was to be determined by reference to the respondent's pay roll for the week ending January 26. Among other significant provisions in the light of subsequent events, were clear provisions ( 1) stating that employees "discharged for cause" before the election should not be eligible to vote; (2) setting forth the right of the parties "to station an equal number of authorized observers , selected from among the non -supervisory employees . . at the polling places during the election . . . to challenge the eligibility of voters . . . ; and (3 ) empowering the Regional Director to decide such challenges if "determinative of the results of the election " Simultaneously with the signing of this agreement , the respondent delivered to Slyer a list of his employees as of January 12 At or about the same time, the respondent told Slyer lie would send Berry to work with some other employees on some of the respondent's boats at the plant of Forest E Johnson , another Miami shipbuilder, and assured Slyer that these men were still his employees on his pay roll Slyer asked whether the notice of election should not be posted at Johnson 's plant as well as the respondent 's. The respondent said that posting the notice at his time clock would be sufficient. 3. The transfers of Henry Berry, D. H Wood, J. P. Wood, H. P. Belknap, P. G. Watton, and Joe Craig to work at Forest Johnson's shipyard, and their ultimate discharge At the time of Ekleberry's and Berry's discharges on January 12, the re- spondent had not yet begun the construction of the last of five target boats which he had contracted to build for the United States Navy On or after January 17, the respondent received a letter from the Navy inspector in charge recommend- ing that work on this last hull be subcontracted "to any contractor having men available at this time " Shortly thereafter the respondent made such a proposal to Forest E. Johnson. Johnson told the respondent that he had only three men available, whereupon the respondent said that he had some men whom he was going to lay off and would give them releases and send them over to Johnson's yard. As a result, on or after January 17, the respondent and Forest Johnson orally agreed that Johnson was to build the last target boat at his shipyard, using and paying three of his own shipbuilders and such additional shipbuilders of the respondent as might be required' Upon completion of the work, Johnson was to bill the respondent for agreed items of overhead and profit as well as for the wages paid by him including those paid to the men supplied by the respondent. Pursuant to this arrangement, three of Johnson's men started work on the target boat at his yard on January 23, and, beginning with January 26, were joined on the job by six of the respondent's shipbuilders. T A stipulation by counsel as to the testimony of Forest Johnson first fixed the making of this arrangement as "a week or more before January 23, 1945 " It appears clear, how- ever, that the agreement could not have been reached before January 17, since the respond- ent testified that he spoke to Johnson only after his receipt of the letter from the Naval inspector PRIGG BOAT WORKS 109 Henry Berry was among the first of the respondent's men thus sent to Johnson's yard. On Thursday or Friday, January 25 or 26, Berry, having heard that he was to be reinstated , reported to Lee at the respondent' s plant.' Lee handed him a letter dated January 25, in which the respondent offered Berry reinstatement and directed him "to report to us tomorrow morning" at Johnson's shipyard "where some of our men are already working on a subcontract for the construction of the last Bomb Target Boat " ° Accordingly, on Friday, January 26, Berry went to Johnson's yard and began work on the target boat, as did Joe Craig and J P. Wood who were also sent there by the respondent on that day. On January 29, 30, and 31, respectively, the respondent also assigned P. G. Watton, D. H Wood, and H. P. Belknap to the target boat job at Johnson's yard. On January 26, the day of the first transfers, Lee wrote a letter to Johnson on behalf of the respondent in which lie forwarded the wage rates and Social Security account numbers of Berry, Craig, J P. Wood, and W. W. Carey, stating that the respondent would pay Carey's wages "due to the fact that he will only be there for a day or two " In this letter, the respondent also announced that Craig and J P Wood would be paid by the respondent for their work on January 26 but requested that Berry be paid by Johnson for his work on that day and that Craig, J P. Wool], and Berry be paid by Johnson for their work beginning with January 27. As it postcript, the respondent added: "We believe these men should obtain Supplemental Referral Cards " However, none of the six men were told at the time of their assignment to the work at Johnson's yard, nor had they reason to suspect, that their employ- ment by the respondent was being terminated or that thenceforth they were to be employed by Forest Johnson.'° When Foreman Anderson gave these men their assignment, lie informed them merely that they were to work on one of the respondent's boats None of them ever received a release or statement of avail- ability from the respondent such as are required by the War Manpower Com- mission upon termination or change of employment Furthermore, the work on the target boat proceeded at Johnson's yard under the direction of Anderson, who visited the job each day, and under the full-time supervision of W. W. Carey. one of the respondent's employees described as a leadmau, who received his instructions from Anderson The respondent's truck brought supplies and materials as they were needed. and two of the respondent's painters, Harry Buliler and N R. Knouse, spent several days painting the boat as it neared com- pletion Craig and J. P Wood punched time in and out at the respondent's plant until Tuesday, January 30, and Berry attempted to do so but found no time card for him in the rack. On Tuesday, January 30, Anderson told them they should report directly to, and leave work from, Johnson's plant where their time would be kept. Vi' W Carey, however, never stopped punching in and out the respondent's plant and was kept on the pay roll of the respondent. Apparently the first inkling the transferred employees had of the fact that they were to be paid by Johnson or of the possibility that they were no longer 8 Berm testified that lie reported to Lee on January 27 and that lie went to work at l'oiest Johnson's yard on Monday January 29 Apparently these are not the correct dates, since the records of the respondent and forest Johnson show that Berry began work at Johnson's , and on Friday, January 26 °' It is to be noted that, contrary to this statement, none of the respondent's shipbuilders actuall.N began working at Johnson's yard until January 26 i0 Although the respondent states in his answer that he "released " these men on the date, of their transfers to the work at Johnson's yard, and thereafter refused to rein- slate them, he testified at the hearing that, at the time of the transfers it was not his intention to release the men Whatever his actual intention may have been as shown by the sum total of his conduct, the respondent's testimony shows clearly that, at the time of the transfers , he gave the men no intimation that their employment by him was either then or shoftly thereafter to be terminated 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regarded by the respondent as his employees, came on or about January 30, the middle of their first full week at Johnson's yard At that time, Johnson requested them to secure a statement of availability from the respondent because the War Manpower Commission required it before they could be placed on Johnson's pay- roll The men refused, stating that they were still employees of the respondent and Berry pointed out that he had just been "reinstated" by the respondent. To the men's insistence that they were still the respondent's employees, Johnson answered, "You are working for Mr. Prigg. It is a little bit funny I am doing this work for Mr Prigg but, in order to keep the books straight, I am going to pay you boys off and Mr Prigg pays me back" In a few minutes, however, Johnson's secretary came out and told Johnson and the men that she had received a telephone call and had learned that the releases were not necessary. As already noted, none of the men ever received, or were thereafter offered, a state- ment of availability from the respondent. At the hearing, the respondent asserted that when he assigned his men to work at Johnson's yard, he still regarded them as his employees but was later com- pelled to "release" them under a ruling of the War Manpower Commission In this connection, the respondent testified that Johnson's secretary telephoned to Lee for a suggestion as to how Johnson should handle the Social Security and income tax deductions from the wages of the six men. According to the respond- ent, Lee referred Johnson's secretary to the War Manpower Commission which insisted upon their release by the respondent. The Carpentry on the target boat was finished at Johnson's yard on Februauy 7, within 2 weeks after the work had been begun, and according to the respond- ent's testimony, the hull was "laboriously" transported to the respondent's plant where installations were completed Berry was released and given a statement of availability by Forest Johnson on February 3, nine days after he had been "reinstated." H P. Belknap was similarly released by Johnson on February 5, and Craig, the two Woods, and Watton, on February 7. According to the respond- ent's answer; as well as the testimony of the men, they applied for further work at the respondent's plant but the respondent refused to "reinstate" them. W. W. Carey, Buhler, and Knouse, who were the only non-union employees of the respondent assigned to the target boat job at Johnson's yard, however, resumed their work at the respondent's plant. 4. Cancellation of the consent election and the events leading directly thereto) On January 27, the Board's Regional Director forwarded to the respondent notices of election to be posted at the respondent's plant in accordance with the consent election agreement Under the caption "Eligibility Rules," this notice contained a printed announcement that employees who were ill, on vaca- tion or temporarily laid off, as well as those in the armed forces should be eligible to vote, but that employees "who have quit or been discharged for cause" should be ineligible Under the caption "Voting Unit," there appeared only a typewritten description of the agreed appropriate unit without repetition of the eligibility rules. On February 1, the respondent wrote a letter to the Board's Regional Office in which he insisted upon incorporating the substance of the eligibility rules in the description of the unit, basing his demand upon the fact that the consent election agreement set forth these rules as to eligibility, and ignoring the fact that the rules were effectively set forth in the printed portion of the notice of election On February 5, after the matter was brought to his attention , Slyer called the respondent on the telephone and, acceding to the PRIGG BOAT WORKS 111 respondent's request, then prepared and forwarded to the respondent a new form of notice of election in which the rules as to eligibility were inserted in the description of the unit as well as in the printed portion of the notice On February 8, upon Slyer's return to Miami from Atlanta, he was informed by Smolikoff of the lay-off of the union members who had been working at Forest Johnson's plant. He immediately asked the respondent over the telephone why they were laid off and expressed the opinion that they were eligible to vote since their names appeared on the respondent's list of employees as of January 12, the only list which had been furnished to Slyer. The respondent replied that these men were no longer his employees, that he had been required by the War Manpower Commission to release them to Forest Johnson, and that Forest Johnson had released them when their work was completed. Slyer suggested that a lay-off according to seniority might not have affected some of the men laid-off but the respondent said that, except for the retention of one man who was a better worker, all the men laid off were his newest employees. Either on the same day or on February 10, the date scheduled for the election, the re- spondent mailed or gave Slyer another list of his employees," bearing the date January 26, which omitted Berry's name but contained the names of the other five men who had been working at Johnson's yard. Alongside each of these five names was the notation "Released Contract Complete " According to the testimony of employees John Morrow and John Perpall, when they came to the respondent's plant to vote in the election on the morning of February 10. the respondent told them that he had been authorized to give the men a wage increase, obviously referring to the War Labor Board's grant of the application which lie had made the preceding October.' The respondent did not squarely deny the substance of this testimony nor was his attention called thereto while he was on the witness stand. In outlining the procedure followed and the result of his application for leave to grant the employees a raise, he testified that on February 12 he received notice of the War Labor Board's favorable action in the form of a letter and copies of the War Labor Board's ruling and opinion and that he made a "formal announcement" of the fact to his employees on the same day, February 12. Later, he admitted that, between February 5 and February 8, he had received a telephone call and then a telegram from Washington advising him of the granting of his application He then stated that he made "no open announcement" of the increase until February 12 The undersigned credits the testimony of Morrow and Perpall and finds that they were informed by the respondent on the morning of the scheduled con- sent election that the respondent was about to grant the employees a wage in- crease On that morning, February 10, Berry, the two Woods, Craig, Watton, and Belknap gathered outside the respondent's plant with the intention of voting at noon, and were joined there by Smmolikoff When Slyer came to the plant at about 11 : 30 a in, Smolikoff told him he was not interested in seeing the polling place arrangements as is customary in these elections if the employer consents. Slyer then entered the respondent's office alone and saw the respondent at about 11 : 45 or 11:50 a in According to Slyer, he told the respondent that he thought the employees who were laid off at Forest Johnson's plant should be permitted to vote, subject to challenge by their respondent's observer, since the lay-offs were so recent and there might be some doubt as to their regularity. The respondent said that lie would decide who was eligible and that he would not let the laid-off employees come into the plant to vote. Then Slyer and the ii In any event, Slver had thus list on February 10 Notice of this application had been posted in the respondent's plant for several months 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent went into the shop where they arranged tables and the ballot box with the assistance of employees Harry Buhler and Ellis Jarrell, who had been designated as the respective observer for the respondent and the Union. The shop is approximately 120 feet square, is unbroken by any interior partitions, and is located to the rear of a narrower, two-story portion of the building. In this front portion of the building, the respondent has his living quarters, and an office on the second floor, and also an office and stock room on the first floor, adjacent to the shop. The polling place with the observers' tables and the ballot box was set up by the time clock and against the wall dividing the shop from the stock room. The voters were to mark their ballots in it small room jutting out of the shop into the stock room, where they could not be observed. At approximately noon, the respondent, Slyer, Buller, and Jarrell stood to- gether at the polling place in the shop and the employees lined up before them. Slyer, Jarrell and several other employees testified consistently and at great length concerning what occurred immediately thereafter. According to their composite testimony, Slyer asked, "Are there any supervisors around here'?" The men pointed out Anderson, who was sitting on at pile of lumber about 30 or 40 feet from the polling place and along the front wall of the shop. Slyer noted that Anderson was eating his lunch with his head down, paying no at- tention to anybody or to anything else. In any event, Slyer was satisfied that Anderson from his position could not see anything that happened at the polling place. Slyer then told the respondent that he was about to start. the election and asked the respondent to leave, because the Board's rules do not permit at company official to be present at the voting place during nit election. The respondent be- came angry and stated that he was going to stay there or otherwise there would be no election. Slyer explained that, to assure a fair atmosphere for the. con- duct of the election, union officials as well as company officials were excluded and asked the respondent, "Mr. Trigg, you wouldn't want Snmlikoff in here, would you?" The respondent replied, "You're daunt right, I wouldn't." One of the employees asked Slyer in it loud voice, "Are you working for the CIO?" .and Slyer said "No"-that he was working for the National Labor Relations Board. Either the same or another employee then asked, "Don't the C. 1. O. run the Board?" The respondent and the employee both said in substance, "You're right, they do." '3 The respondent offered to go over and sit on the lumber pile with Anderson, but, instead, went straight back in the shop from the time clock about 20 or 30 feet and, facing the polling place, said "Go ahead with your elec- tion." Slyer walked up to him and said ... hais is just the sonic, or practically the same, as being up there. I can't have the election with you being this close." The respondent replied that no one could order him off his on premises. Slyer said lie was not ordering the respondent off his premises or out of his place of business and suggested that the respondent might go to his rooms, or to his =office, or to any place except the room where the voting was to take place. There- upon, the respondent walked to the back of the shop and, still plainly visible, faced the polling place. Slyer turned to Buliler, the respondent's observer, and to Jarrell, the Union's observer, and asked theta whether they believed a fair ,election could be held under the circumstances. Both replied in the negative. Slyer then told the respondent and the men that the election would not be held :and went back into the office with the respondent. The respondent's testimony as to the occurrences on the.ntorning of February 10 differed in but few material respects from that of the witnesses produced by 13 According to Jarrell's testimony, the respondent and several of the employees said "Yes" in unison . According to Slyer 's testimony , either the respondent said, "You ' re damn right, they do," or the employee who asked the question made that remark and the respond- ent said "Yes, that's right. PRIGG BOAT WORKS 113 counsel for the Board The respondent testified (1) that he had no knowledge or information of his right to challenge ballots through his observer or of the procedure therefor, nor did Slyer explain these matters to him before they went into the shop to conduct the election; (2) that Slyer insisted that the respond- ent leave the premises and not merely leave the shop" and (3) that when the respondent moved to the back of the shop, he could not see the polling place. It will be recalled, however, that the consent election agreement, with which the respondent showed his familiarity when lie objected to the form of the first notice of election, clearly set forth the procedure upon challenges. It is also to be noted that the respondent in his testimony forcefully expressed his firm intention to prevent the men he had laid off from voting in the election as the explanation of his insistence upon being present Obviously, he could best ac- complish this purpose by remaining at, or near, the polls with a full view of the entire proceeding. Upon these considerations, as well as the inherent credi- bility and convincing rendition of the testimony of the witnesses produced by counsel for the Board, the undersigned credits their version of the events of the morning of February 10 as already set forth and finds particularly (1) that by the time the respondent went into the shop with Slyer, Slyer had spoken to him about, and in any event the respondent knew, the procedure for challenging ballots, (2) that Slyer did not tell the respondent to leave the premises but merely to leave the shop, and (3) that at no time during the attempt to hold the election, did the respondent remove himself from his view of the employees or from their view of him. In further attempting to justify his conduct on the morning of February 10, the respondent testified that he saw Smolikoff look into one of the shop windows while the respondent and Slyer were talking. Slyer testified without contra- diction that he, too, saw Smolikoff at the window and that the respondent may have mentioned the fact ; but that Smolikoff appeared at the window while Slyer was busily engaged with the respondent and disappeared in about 30 seconds before Slyer could ask him to leave" According to Slyer's uncontradicted testimony, which the undersigned credits, when Slyer and the respondent returned to the respondent's office after the elec- tion had been canceled, Slyer told the respondent that he always tried to have his elections so clear that nobody could object. The respondent replied that he did not want a C. I. 0 union or an A F L. union but "that if the boys wanted to form a union of their own, and have their own officers, that was something else." The respondent also told Slyer, "If you hadn't made that crack about those men who were laid off, or those men on the outside voting, I might have let you go ahead with the election." 5. Further interference, restraint, and coercion On Monday February 12, the respondent received a letter from the executive secretary of the Shipbuilding Commission of the National War Labor Board with which were enclosed copies of a ruling and an opinion of the Commission both li The respondent further testified that Slyer rejected the respondent's offer to sit down ie ith Anderson Slyer did not recall any such suggestion and Jarrell testified that athough the respondent made such a proposal, he did not act upon it but instead walked directly back from the polling place. The undersigned finds that Slyer (lid not in fact make any objection to the respondent's sitting with Anderson '5 Smolikoff testified that the men outside had become impatient, that one of them tried to go into the shop but was prevented by the watchman, and that he himself had looked briefly into the window but had seen nothing 701592-47-vol 69-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bearing the date January 22, 1945. The ruling approved increased wage rates for the respondent's employees which as a matter of fact were in accordance with the respondent's application to the Commission and the result thereof. The opinion of the Commission read in part as follows : Subsequent to Commission action in the instant case, but before the ruling was issued , notice came from the National Labor Relations Board that an agreement for a consent election dated January 25. 1945 had been reached between the company and The Industrial Union of Marine and Shipbuilding Workers of America, C. I. O. and the Prigg Boat Works. The Commission was aware of the problem posed by the impending elec- tion but voted unanimously not to withhold (sic) the issuance of the ruling. This action was controlled by the fact that the agreement for a consent election was consummated utter decision in the case Upon receipt of these papers, the respondent wrote a shoat speech to his ein- ployees in which he announced that the Shipbuilding Commission had just granted his application of the preceding Octobei toi leave to raise their wages. that the Commission's ruling was dated January 22, 1945, and by its terms was to be effective on that (late, but that the forwarding letter made February 9 the effective date The speech as written concluded with the statement- I am unable to explain why I was not officially notified of these increases in pay earlier, however, I may throw some light on the subject by reading an opinion signed by Jack G. Day. Public Member [of the Cominissioni which opinion accompanied the official ruling received this moining. Later the same day, the respondent gathered the employees in the plant and read this speech, after first giving a carbon copy to Jarrell so that he could confirm the fact that the respondent did not deviate from the text. After the respondent finished reading the speech, which Jarrell testified was delivered in the exact language of the copy in his hands, the respondent read the Shipbuilding Commission's opinion and ruling, which Jarrell had no means of checking since he had no copy. The respondent testified here again that his talk followed the exact language of the ruling and the opinion, without change or addition Jar- rell, however, testified that the respondent apparently interspersed his own comments. According to Jarrell's testimony and that of several other employees, the respondent made the remark that the raise had been approved before Febru- ary 9, but that it was delayed by the War Labor Board until the election should have been held "for the purpose of giving the Union the credit for the raise." The undersigned is of the opinion, however, that this testimony of the employees was the result of their misunderstanding of the language of the Commission's opinion which has already been set forth The undersigned, therefore, credits the respondent's testimony that, on this occasion, he did no more and no less than read his prepared speech and the ruling and opinion of the Shipbuilding Commission. In April, 1945, a few weeks before the hearing and shortly after his marriage, the respondent called the employees together from their work, introduced them to his wife, and served beer in the shop. He then announced that the employees of more than a year's service would be given a week's vacation with pay and spoke of his post war plans In that connection, he said that most of the men would probably still be with him on a piece-work basis and that he would build a quality boat provided he had "no outside interference." PRIGG BOAT WORKS B. The specific unfair labor practices I Interference. resttaitat, and coercion 115 As already set tot th, it appears front the ev ideuce that Foreman Louis Anderson told employees Urvtzki and Truinner on January 12, 1945, that "Mr. Prigg said all you boys that sigticd up iie going to he fired" ; that he told employee Leonard on the same day when the Union' s organization campaign had reached its p:,-ak that he should pack up his tools because he might be leaving; that on the morning after Berry and Ekleberry wete discharged nndei circumstances clearly indicat- ing discrimination. Andeison said to the employees who were gathered around the time clock, "I wonder how inane was fired last night"; and that he informed Berry the same morning that lie "guessed" Berry' s discharge was due to his union activities. Even aside from the discharges and his conduct with respect to the election, which is discussed below, the respondent himself also directly interfered with the self-organization of his employees and their selection of a collective bargaining representative by informing employees Morrow and Perpall, on the Very morning of the election in an obvious attempt to influence their votes, that the men were going to get the raise which lie had been trying to obtain for them since the preceding October," and by informing the employees at the celebration of his wedding in April 19-15, that his post-war plans depended upon the absence of "outside interference." The undersigned finds that this latter statement was intended by the iespondent. and was reasonably and actually taken by the em- ployees, to mean that the respondent would continue production after the war and thus pi oxide elnploynient for them only if lie were hampered by union "inter- ference." 'i The respondent testified that despite the title of "foreman," Anderson was not, in fact, a supervisory employee. but merely an older, more experienced employee who guided his youngei fellow employees and that this had been made clear to the employees when the respondent announced the appointment of Pease as general foreman, in October 1944. Anderson testified that he was foreman over bull construction and that the job was "practically wished on him." The em- ployees who testified agreed that they and their fellow employees regarded Anderson as foreman, and that the ship builders had always taken orders from him. They also testified that the respondent in announcing Pease's appointment as foreman had made no mention of any change in Anderson's status, and that therefore Anderson had retained supervision of the men working on the bulls '['here was also uncontradicted testimony : t 1) that Pease had consulted Ander- son with reference to a raise for Henry Berry, and that upon Anderson's recom- mendation the raise had been granted; (2) that Anderson had discharged an employee in April 1943; (3) that Anderson had chosen employees for work on Sunday in January and February 1945, and had given them their instructions to that effect; and (4) that Anderson occasionally interviewed prospective em- liloyees, and was sometimes sent out by the respondent to secure an extra painter Respondent himself described Anderson as a foreman on a list of his employees which he submitted to S1}et in contemplation of the consent election. He also admitted in his testimony that Anderson "had been used in directing men," and had "voluntarily assumed duties Similar to what a foreman normally does have, 1b The undersigned makes no finding of unfair labor practices based upon the respondent's reading of the \Var Labor Board ruling and opinion on February 12, after the election had been called of 17 While the respondent's vaiious statements to Foreman Anderson and Foreman Drough- ton clearly indicate his anti-union attitude and are highly significant , in the consideration of the discharges and the respondent'', refusal to bargain, none of them was made to em- ploiees and the} ilo not therefore, tit and of themselves, constitute unfair labor practices. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but without authority." Upon the above testimony, the undersigned concludes that Anderson was in fact a supervisory employee and as such, was regarded by the employees as representing the respondent The undersigned finds that by his acts, statements, and conduct and those of Foreman Anderson, which are set forth above, the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in section 7 of the Act. 2. The discharge a. Kenneth Ekleberry Kenneth Ekleberry was hired by the respondent on September 19, 1944, as an electrician possessing the special ability and experience required for the intri- cate wiring of the five bomb target boats then being built by the respondent for the United States Navy. As has already been noted, Foreman Anderson knew of Smolikoff's visit to see Ekleberry at the plant on January 10, 1945. On the following day, Ekleberry began the movement, to organize the respondent's em- ployees by bringing the Union's application cards into the plant and starting the open discussions of the Union among the employees. On the morning of January 12, it will be recalled, the respondent told Anderson that he would not stand for the Union in the plant. During lunch hour on that day, Ekleberry' and several other employees conferred with Smolikoff on the street in full view of the respondent's office. At the end of the same day, during which 16 employees had joined the Union, the respondent discharged Ekleberry and told Foreman Droughton that the reason for the discharge was the fact that Ekleberry had been seen talking with a union organizer Notwithstanding this clear evidence that Ekleberry's discharge was due to his union activities, the respondent asserted in his answer and also in his testi- mony at the hearing, that Ekleberry was discharged on January 12 because of his inefficiency and failure to perform his work properly. In attempting to support this contention, the respondent testified that General Foreman Pease had reported Ekleberry as loafing on the job and recommended his discharge as early as October or November 1944; that Ekleberry had not prepared any usable diagrams of the wiring installed by him; that Ekleberry had wired only three boats from September 19, 1944, until January 12. 1945 at the exorbitant wage cost of $1,250 although he told other employees that he could wire a boat in two or three nights with the assistance of a couple of electricians; that after hkleberry's discharge, the respondent had invited and received a bid from a local electrical contractor for the installation of the wiring in the last two target boats at a cost of $340 per boat; and that the respondent had then employed another expert electrician who completed the work on these two boats in 2 or 3 weeks. However, this testimony, when considered in conjunction with the uncontra- dicted testimony of other witnesses, is not persuasive of Ekleberiy's inefficiency or his failure to perform his work properly, nor does it reveal any expression of dissatisfaction by the respondent with Ekleberry's work before the time of his discharge. On the contrary, the undersigned is impelled to draw conclusions from the testimony quite opposite to those urged by the respondent. Foreman Droughton, who was in charge of Ekleberry, commended the latter's work and insisted that he accompany the trial rums of the boat m spite of the respondent's objection. Parks, the resident inspector for the Navy, testified not only that Ekleberry's work was difficult and so highly specialized that only a few eleetii- cians were qualified but also that the boats on which Ekleberry worked were satisfactory. The only criticism of Ekleberry's work was made by Pease during PRIGG BOAT WORKS 117 the first 2 weeks of his employment and before he became general foreman According to Pease's testimony, however, he reported as unsatisfactory the work and conduct not only of Ekleberry but also that of almost every other man in the shop including Foreman Anderson, and recommended their discharges. That this report must have appeared unreliable to the respondent as it did to the undersigned, seems clear. For, the respondent not only rejected Pease's recom- mendations with the statement that Ekleberry was doing experimental work which required time, but in speaking of Kenneth Ekleberry's work to his brother, J. F. Ekleberry, late in December 1944,15 the respondent said that he was very fortunate to get a man who could wire the boats and understood radio shields. radio control, and the other electrical apparatus used on the boats. That the re- spondent was in fact satisfied with Ekleberry's work and had no thought of dis- charging him until he became pi ominent in the Union's campaign is further indi- cated by the fact that, in spite of the importance of Ekleberry's work and the difficulty of securing in adequate ieplacement, the respondent admittedly made no attempt to get a qualified electrician to complete the work until after Ekle- berry's discharge There appears to be no reasonable basis for criticizing Ekleberry's omission to prepare and submit plans of the wiring which he was installing When Ekleberry began his vu ork for the respondent, he was not provided with all ade- quate blue print or plan of the wiring but was compelled to lay out the circuits and to determine the location of the panels for the controls, in conjunction with two -Navy men who uioiked at the salve time on the installation of the secret mechanism to be served by the wiring As a result, there was considerable experimentation, testing, and revision of the work as it progressed Ekleberry was not instructed by Droughton, the respondent, or anyone else to draft plans and, as he pointed out in his testimony, he had been employed as an electrician and not as a draftsman. He did, however, make such rough pocket sketches a- were necessary for his work but no one asked him to submit them. Finally, the respondent's argument that Ekleberry was discharged because the cost of his work on the target boats was excessive, is unsupported by the evidence. Moreover, it incorrectly assumes that Ekleberry's work during the 16 weeks of his employment by the respondent was limited to the routine wiring of three target boats. For, in addition to wiring the target boats, Ekleberry performed all the general electrical maintenance work about the plant. Further- more, his work on the target boats, as already pointed out, was highly experi- mental in the beginning and he was required to change the lay-outs and location of the control panels from time to time as a result of test runs. By the time of his discharge, however, lie had not only completed three boats but had wired all the panels, the fuse block, and the generator relay for the last two boats so that they were ready for installation. His unchallenged estimate was that he had 50 percent of the work on the next to last boat ready so that only installa- tion remained. According to Ekleberry, it was at this stage that he told some of his fellow employees that, with the equipment made up and in the boat, he could wire the boat in 3 or 4 days with two or three good men. It was also at this stage that the respondent asked and received an outside bid for the com- pletion of the work on the last two boats. Even with so little routine work yet to be done, the bidder asked for $340 per boat including a labor item of $228 for 3 weeks of work for one man's Certainly the respondent had received greater 18J F Ekleberrv. an electrical engineer, was first asked by the respondent to wire the tat get boats, but, being unavailable, he recommended his brother, Kenneth. 19 The labor estimate in the bid was 190 hours The respondent's normal maximum work week consisted of 6 days of 91/ hours each 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD value from Ekleberry's services for the wages paid to Ekleberry, than this bidder was prepared to offer Upon the foregoing considerations, the undersigned is convinced that the re- spondent discharged Ekleberry on January 12, 1h45, because he knew that Ekle- berr^ was the active leader of the movement to of gamze the respondent's em- ployees as members'of the Union, and not because of and dissatisfactioii with Ekleherry's work The undersigned therefore finds that tine respondent, by dis- charging Kenneth Ekleberry on Januar-, 12, 1945. discriminated in regard to his hire and tenure of employment, therebi discouraging niembersliip in the Union and interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act b Henry Berry, D. H Wood. J P. Wood, H P Belknep, P G lVatton, end Joe Crai tr Henry Berry was also discharged on January 12. under the sane general cir- cumstances as Kenneth Ekleberry Berry, too, had been active on that and the preceding day in securing memberships for the Union and had also conferred with Smolikoff on the street in plain view of the office That Berry's discharge like that of Ekleberry was based upon his open connection with the Union, was made clear by Anderson's comments at the time clock the next horning and his frank statement to Berry that he "guessed" Berry's discharge was due to his union activities. In the respondent's and Slyei's subsequent discussions of Berry's and Ekle- berry's reinstatement and of the consent election, the respondent showed clearly his desire to accomplish the defeat of the Union at the consent election by insist- ing upGn delaying the election as long as possible so that he might first announce the grant of a wage increase With the obviously related purpose of whittling down the Union's membership among his employees before election time, the re- spondent also asked Slyer whether the procurement of a job for Berry "some- where else" would be satisfactory After Slyer rejected this suggestion, the re- spondent informed him that Berry and several other employees would be sent to work at Forest Johnson's plant and, although he had already told Johnson he was going to release these men and had arranged to transfer them to Johnson's pay roll, he assured Slyer that the men were still on his pay roll, and that it would not be necessary to post election notices at Johnson's yard The respondent immediately ignored these assurances of good faith both in his selection and in his treatment of the men sent by him to Johnson's yard With the exception of W. W. Carey, who supervised the job. and the two painters, all the Wien who were transferred were union members, had been openly active in the union campaign and discussions on January 12. and had conferred with Smoli- koff where they could be seen from the respondent's office Then, on January 26, the day after he had given Slyer assurances to the contrary, the respondent re- affirmed his arrangement with Johnson that these men be transferred to John- son's pay roll and suggested that they secure supplemental referral cards Under the circumstances shown by the record, the respondent's testimony that he was compelled to release the six union employees by a ruling of the War Man- power Commission and therefore did not discharge them because of their union membership and activities , is incredible. When the respondent subcontracted the work on the target boat on or after January 17, he told Johnson he was going to release these men. His letter to Johnson on January 26 confirmed his posi- tion in this respect. When Johnson's secretary asked Lee during the following week how Social Security and income tax deductions should he handled, it is significant that Lee referred her not to the office of the Social Security Board nor PRIGG BOAT WORKS 119 to the local office of the Bureau of Internal Revenue, but to the War Manpower Commission instead. It thus appears to the undersigned that the respondent invited a ruling of the War Manpower Commission which would apparently re- quire him to release the union men to Johnson and permit Johnson rather than the respondent eventually to lay them off. But even so, the plan miscarried. For according to uncontradicted testimony, Johnson's secretary learned, and then informed the men, that releases from the respondent were unnecessary after all. Moreover, none were in fact ever given to them by the respondent. Even if the War Manpower Commission's regulations had required the re- spondent to release these six men before they could be placed on Johnson's pay roll, the respondent lmght either then have arranged to keep them on his own pay roll or have reinstated them when the target boat was completed. That he did neither, although he continued W. W. Carey and the painters on his pay roll and returned them to work at his own plant, serves to emphasize his intent to discriminate against the union members and his unwillingness to take any reasonable step which would preserve the status quo for the purposes of the election. Without seeming to realize the inconsistency, the respondent testified not only that he "released" the six union shipbuilders because of a ruling of the War Man- power Commission, but also that the reason for the releases was lack of work due to the impending completion of his contract for five bomb target boats on February 14 and of a contract for 29 gliders on February 10. Evaluation of this explanation for the releases requires a brief preliminary consideration of certain aspects of the respondent's operations. Since the beginning of the war, the respondent has confined himself to the building of boats for the United States Army and Navy. Under various contracts awarded to him since May 17, 1943, he has constructed air driven swamp gliders and "secret" boats for the Army, and personnel boats, plane rearming boats, and bomb target boats for the Navy. The keel of each of these boats is laid and the boat completely constructed upon a "building form" consisting of a linear series of 4 x 4 uprights erected on a 2 x 6 sill which rests upon the floor of the shop. There are two of these building forms in the rear of the shop, the sills of which are embedded in the concrete floor. Each of these two building forms is located approximately 100 feet from the front wall of the shop and is connected with the Miami River, which borders the rear of the shop, by a launching way into which the boat is slid upon completion of the hull. All of the recent 35 foot plane rearming boats have been built on these two permanent forms. At the same time, the other boats, including the bomb target boats, which are slightly larger than the plane rearming boats, have been built upon other forms in the front of the shop where their sills were merely placed upon the floor and not embedded in the concrete. One of these forms still remained in the shop itt the time of the hearing and could have been altered to meet the requirements of the deeper and heavier keels of the plane rearming boats within half a day. When target boat hulls were completed on these forms in the front of the shop They were launched with the aid of a trailer and a hoist. This method of con- struction and launching was once regularly employed by the respondent for plane rearming boats at a former plant and is still possible although his more recent use of the permanent forms and the launching ways is obviously more .onvenient. Until the beginning of September, 1944, the respondent employed a staff of 19 carpenters or shipbuilders, which at that time included Watton, D H Wood, and Berry. By September 1944, construction had fallen considerably behind schedule and the respondent realized that he had more work than he could 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handle with his existing staff. Between September 19 and December 12, he therefore increased the number of his shipbuilders to 25. Among those hired in that period were Joe Craig, J. P. Wood, and H. P. Belknap. By January 25, 1945, three of the shipbuilders had left the respondent's employ and a fourth had been permanently incapacitated in an accident. Thus, on January 25, the respondent had only 21 shipbuilders, including the six union members who were shortly thereafter discharged. Upon their discharge, the respondent was left with only 15 shipbuilders. The respondent contends that, upon completion of the bomb target boat and glider contracts, there was insufficient work for more than this group of 15 shipbuilders. It appears, however, that on January 25, 1945, he was awarded a new contract by the United States Navy for the construction of 10 more plane rearming boats upon which he began work on April 4, 1945, and had only 40 percent completed by the time of the hearing although the contract required delivery of one boat per week beginning on March 26. In addition, at the time he discharged the six union shipbuilders. the respondent was engaged in experi- mental construction and in the construction under other contracts of 16 plane rearming boats which were eventually completed on April 11, 1945, instead of October 22, 1944, as required by the contract, and of six vessels of a secret type which were only 70 percent completed at the time of the hearing in May 1945 Thus it is apparent that the respondent has been considerably behind in his contract schedules since he discharged the 6 union shipbuilders, just as he was behind in his schedules before he increased his staff in the fall of 1944. The secret project required three men and little, if any, work thereon was performed between February and May 1945. Most, if not all of the work during that period, was performed on the plane rearming boats which normally required eight ship- builders, for each boat. Furthermore, these boats were being built on the two permanent forms only. Several of the respondent's experienced shipbuilders testified that the six discharged shipbuilders could have been used to advantage in building additional plane rearming boats on an extra building form as was done in the case of the bomb target boats. The undersigned not only finds this to he the fact but is convinced that the comparatively slight inconvenience and inefficiency involved in such a course did not in fact deter the respondent from using the extra building form and continuing the employment of the 6 union shipbuilders whom he discharged. From a purely business standpoint, it was clearly to his advantage to bear such an inconvenience in order to meet his contract obligations to the Navy. As he himself put it in his own testimony, "They [the Navy] get in a hurry sometimes and crowd the very devil out of you . . " and again ". One of the best ways for a contractor to get in bad with the government and not be able to be eligible for future contracts is not to make his delivery on schedule " Thus, when the Navy inspector urged rapid completion of the target boats which were long overdue, the respondent not only subcontracted one hull but rushed the completion of the other remaining hull at his own plant by requiring his men to work on Sundays, the only time they had ever done so Similarly, it would have been the sensible thing for the respondent to rush the work on the plane rearming boats by building some of them on the extra building forms, as lie had built the bomb target boats. Although the respondent stated at the hearing that his construction of hulls was repeatedly delayed because of the non-delivery of motors and underwater fittings which he said were ordinarily installed while the hulls were still on the forms and before they were launched, he later testified that at the time of the hearing there were three bulls in the water without PRIGG BOAT WORKS 121 fittings. Upon these considerations, the undersigned concludes that the re- spondent's reduction of his shipbuilding staff through the discharge of the six union members was not motivated in fact either by lack of work or even by the inconvenience or inefficiency of continuing their employment under the circumstances shown by the record. The respondent also asserted in his answer that the 6 union members were released because of inefficiency and poor workmanship. To support this position, the respondent and Pease testified that in October 1944, within approximately 2 weeks after he was hired to make an efficiency study, Pease reported these six men were not doing their work but that the respondent did not follow his recommendations as to discharge because of the press of work and the difficulty of getting labor Aside from the fact that it was peculiar that Pease should single out just six men who 3 months later became the most obviously active members of the Union and were then immediately discharged , Pease later testi- fied, as has already been noted , that he also recommended the discharge of a considerable number of the other men including Foreman Anderson and, upon searching questioning , was unable to describe several of the discharged men or to remember the names of, or types of work, performed by a substantial number , of the other employees . Shipbuilder John Morrow , a man of 70 , also testified that none of the six discharged employees were qualified except D. H. Wood, whose discharge had surprised Morrow But Morrow's testimony revealed that this was his general opinion of the younger shipbuilders. In questioning several of the union employees, the respondent asked them to compare the work and ability of the discharged men with those of two of the older shipbuilders and the witnesses quite frankly agreed that the latter were superior . But there was no expression of opinion at the hearing , supported or unsupported that the six discharged employees were inferior to the rest of the shipbuilders as a group. Nor was there any evidence that any of the six discharged employees had ever been criticized because of their work On the other hand , they denied having received any criticism and it is a matter of fact that they were chosen as a group to rush the work on the last target boat at Johnson 's yard under a leadman and finished the boat in the credible time of 2 weeks . Upon this state of the record, the undersigned finds no ground to believe that the six discharged employees were inefficient or performed their work unsatisfactorily , or that the respondent released them for that reason From all these facts, the undersigned concludes that the respondent discharged Berry on January 12, 1945, because of his union activities and that his assign- ment to the work at Johnson 's yard did not constitute "reinstatement to his former or substantially equivalent position ." The undersigned is also convinced that the respondent 's assignments of the other five men to Johnson's yard and their transfer to Johnson's pay roll was made with the firm intention of severing their employment with the respondent and constitutes discharges which were motivated by their union activities and the respondent's desire to defeat the Union in the impending consent election The undersigned therefore finds that the respondent by discharging Henry Berry on January 12, 1945, by discharging Joe Craig and J. P. Wood, on January 26, 1945, by discharging P G Watton , D. H Wood, and H. P Belknap on January 29. 30 , and 31 , 1945), respectively , and by thereafter refusing to reinstate any of them, discriminated in regard to their hire and tenure of employment , thereby discouraging membership in the Union , and interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The refusal to bargain a. The appropriate unit In the consent election agreement, the respondent and the Union agreed that all of the respondent's employees, excluding office clerical employees, watchmen, foremen, and supervisory employees, constitute a unit appropriate for the pur- poses of collective bargaining At the hearing, all parties agreed that Foreman Anderson was not included in this unit In the course of the testimony, some of the employees were referred to as "leadmen." The respondent explained that the term had not been used at the plant but was being used in the hearing solely for the purpose of describing several of the experienced working em- ployees He conceded that none of the so-called "leadmen" were to be excluded from the unit as supervisory employees Employee Percy Adams works part- time as a shop clean-up man and part-time as a watchman. The respondent contended that he should be included in the appropriate unit but counsel for the Board contended, and the undersigned finds, that Percy Adams should be excluded because of his function and duties as a watchman. The undersigned finds that all employees of the respondent employed at hia Prigg Boat Works plant, exclusive of office clerical employees, watchmen, fore- men, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment, have constituted and now constitute. an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. b Representation by the Union of a nta)ortty in the appropriate unit As already noted, 1S of the respondent's employees had joined the Union by January 13, 1945. All of them were either non-supervisory shipbuilders or non- supervisory mechanics and thus within the appropriate unit which then included 31 persons.20 In the period from January 13, to February 10, 1945, Seman Urytzki, one of the union members, became a foreman, Ekleberry relinquished his claim to reinstatement ; two other union members left the respondent's em- ploy on January 16 and February 9, respectively; and one new employee was hired on January 20 but was discharged on January 29 2 Thus, on February 10, 1945, the appropriate unit consisted of 27 employees of whom 14 were members of the Union, including the six union members who were released to Forest John- son but excluding Ekleberry. The undersigned finds that on January 13, 1945, and at all times to and in- cluding February 10, 1945, the Union represented a majority of the respondent's employees in the appropriate unit. 20 On a list submitted by the respondent to Slyer, the respondent showed his employment of 38 persons as of January 12, 1945 Among those on the list but not within the unit were his bookkeeper, his secretary , two foremen ( Anderson and Droughton ), two watchmen, and Percy Adams, who has already been mentioned. The other 31 employees on the list, in- cluding the 18 Union members, were all within the unit Seman Urytzki, one of the Union members, was listed as a foreman but this was an error, as the respondent admitted, since he did not acquire this status until the first week in February. 21 The name of P W Emge, who was hired to complete Kenneth Ekleberry's work, ap- pears on the respondent' s pay roll for the week ending January 26, 1945 , with the notation, "Contract-piece work" El mge's name does not appear on the respondent's pay roll rec- ords for the weeks ending February 2, 9, or 16; nor does it appear upon the eligibility list furnished by the respondent to Slyer on February 8 or 10. The undersigned finds there- fore that Enige was not in the appropriate unit on February 10, 1945. PRIGG BOAT WORKS c The refusal to bargain 123 On January 13, 1945, the respondent received the Union's letter requesting recognition. Although lie never answered this letter, he did consent to the holding of an election uudei the supervision of the Board's Regional Director to determine whethei the Union in fact represented a majority of the employees in the appropriate unit While lie was entitled to insist upon the establishment of the Union's majority, lie was under the correlative obligation to permit, and to abide by, his employees' fiee choice of a representative as it existed at the time of the request for recognition, and not to attempt to defeat such choice by dischaigma union ineinbei,4 betoie the election or by any other form of inter- ference, restraint. or coercion That the respondent did not observe this obli- gation, and had no intention of doing so, is clear from the present i ecord. In fact, the respondent overlooked no opportunity which would enable him to avoid bargaining with the Union As the undersigned has already found, he insisted upon delaying the election in the frankly expressed hope that before the election lie aright be able to announce the War Labor Board's approval of his request for permission to give them a wage increase. Failing to receive official notification from the War Labor Board by the morning of the election, he relied upon a telephone call which gave him the desired information, and made a point of telling Perpall and Morrow that morning that they were to get the raise Fin thermore, as the undersigned has also found, the respondent dis- i•harged the six union iaen whom he transferred to Johnson's yard for the ob- vious purpose of eliminating them as employees and excluding them from the election He then insisted upon remaining at the polls during the election to be certain that they were not permitted to vote even a challenged ballot which would have preserved their vote should the Regional Director have found them to be eligible and their vote to be material. Moreover, while in the presence of the men waiting to vote, lie either made or agreed with the remark directed to Sider that the C. I 0 controlled the Board. In short, his conduct in the presence of the men at the polls was such that they could not fail to have been impressed by his opposition to the Union and his disregard of Slyer's repeated pleas that he leave the polls to insure a fair election, unembarrased by his presence That this was his intention and that the respondent knew what he was doing, appears from his later remarks to Slyer that be did not want a C I. 0 or A. F L. union but that "If you hadn't made that crack about those men who were laid off, or those men outside voting, I might have let you go ahead with the election " The undersigned concludes that respondent's conduct not only made impossible a fair election for the determination of the employees' free choice of a repre- sentative, but that it constituted a clear announcement both to his employees and to the Union that he was determined not to recognize nor to bargain with the Union as their representative. The undersigned is also convinced that the respondent neither discussed nor executed the consent election in good faith but that from the time he received the Union's request his sole concern was to avoid collective bargaining with the Union. The undersigned therefore finds that, on January 13, 1945, and on February 10, 1945, and at all times since February 10, 1945, the respondent has refused to bargain collectively with the Union as the exclusive representative of his employees in the appropriate unit and has thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR L\BOR PRV('TICES UPON COMMERCE The activities of the respondent set forth tit Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate and substantial relation to trade, traffic and conmerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of coannei ce V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action in order to effectu,ite the policies of time Act. The undersigned has found that, by discharging licitly I.ei iy, D H Wood, J P Wood, H P Belknap , P G Watton, Joe Craig, and Kenneth Ekleb>rry, the i espondent discriminated in regard to their hire and tenui e of employment, thereby discouraging membership in the Union No recommendation 11 ill be made for the reinstatement of Kenneth Ekleberry or for his reimbursement for loss of earnings because, on or about January 24, 1945, he disclaimed any desire for reinstatement and was thereafter made whole b^ the respondent for his loss of earnings to that date. The undersigned will, however, reconunend that the respondent offer to the other six discriminatorily discharged employees irn- inediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and that the respondent make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a mum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge, to the date of the offer of reinstatement, less his net earnings 22 during that period. For the reasons expressed b^ the Board in other cases ,23 the undersigned regards compliance with this recom- mendation as essential to the effectuation of the policies of the Act in the present case, even though it appears from the record that several of the employees tit question may have secured substantially equivalent emploi moat elsewhere The undersigned has also found that the respondent refused to bargain col- lectively with the Union although the Union was the exclusive representative of the employees of the respondent in a unit appropriate for the purposes of col- lective bargaining Accordingly the undersigned will reconunend that the re- ^pondent, upon request, bargain collectively with the Union as the representative of his employees in the appropriate unit. Upon the basis of the above findings of tact, and upon the entire record in the case, the undersigned slakes the following: CONCLUSIONS OF LAW I Industrial Union of Marine and Shipbuilding Workers of America , C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. By "net earnings" is meant earnings less expenses , such as foi tiansportation, room, aid board, incurred by an employee in connection with obtaining w\ ork and working else- vvhere than for the respondent , which would not have been incurred but for his unlawtul ,lischarge and the consequent necessit ,, of his seeking employment elsewhere . See Matter of Crossett Lumber Company , 8 N L R B 440 -Monies received for work performed upon Federal, State, county , municipal, or othei work -relief projects shall be considered as earn- ings. See Republic Steel Corporation v N L R B , 311 U. S 7 23 See Matter of Ford Motor Company, 31 N I, R B 994 , 1 099 1100 , Matter of Phelps Dodge Corporation, 35 N L R . B 418, 420-421 PRIGG BOAT WORKS 125 2 By discriminating in regard to the lure and tenure of employment of Kenneth Ekleberry, Henry Berry. D H Wood, J. P. Wood, H P. Belknap, P. G Watton. and Joe Craig, and thereby discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (3) of the Act. 3 At all times material herein, all employees of the respondent employed at his Prigg Boat Works plant, exclusive of office clerical employees, watchmen, foremen, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment, have constituted and now constitute, an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. On or about January 12. 1945. and at all times thereafter, Industrial Union of Marine and Shipbuilding Workers of America. C. I 0, has been the exclusive representative of the employees in the above unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about January 12, 1945, and at all times thereafter to bargain collectively with Industrial Union of Marine and Shipbuilding Workers of America, C I. 0. is the exclusive representative of the employees in such unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 6 By interfering with, restrainuig, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) pf the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondent, H. Paul Prigg, an individual doing butsuess under the name and style of Prigg Boat Works, Miami, Florida, his agents, successors, and assigns, shall : 1. Cease and desist from (a) Discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, C. I 0, or in any other labor organization of his employees, by discharging or refusing to reinstate any of his employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment ; (b) Refusing to bargain collectively with Industrial Union of Marine and Shipbuilding Workers of America, C I 0., as the exclusive representative of all his employees at the Prigg Boat Works plant, exclusive of office clerical em- ployees, watchmen, foremen, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) In any other mariner interfering with, restraining, or coercing his em- ployees in the exercise of the right to -elf-organization, to form labor organiza- tions, to join or assist Industrial Union of Marine and Shipbuilding Workers of America, C. 1 0, or any other labor organization, to bargain collectively through repieaentatives of 11 err own chooaing, and to engage in concerted activi- 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer Henry Berry, D. H. Wood, J. P. Wood, H. P Belknap, P G. Watton and Joe Craig immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of remstatenient, less his net earnings ' during that period. (b) Upon request bargain collectively with Industrial Union of Marine and Sbipbnilding Workers of America, C. I O., as the exclusive representative of all his employees at the Prigg Boat Works plant, exclusive of office clerical em- ployees,, watchmen, foremen, and supervisory employees with authority to hire promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action in respect to rates of pay, wages, hours of employment, and other conditions of employment. (c) Post at his plant in Miami, Florida, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent, be posted by him immediately upon receipt thereof , and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are 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 ; (d) Notify the Regional Director for the Tenth Region in writing, within ten (101 days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent has notified said Regional Director in writing that it will comply with the toregoing recommenda- tions the National 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 National Labor Relations Board, Series 3, eltective July 12, 1944, as amended, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferred in the case to the Board. pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, 25 D C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof Immediately upon the filing of such state- ment of exceptions and/oi brief, the party or coinisel for the Board filing the same :shall serve a copy thereof upon each of the panties and shall file it copy with the Regional Director As further prodded in said Section 33. should any Marty desire permission to argue orally before the Board. request therefor must be made in writing to the Board within ten (10) dad s from the (late of the order transferring the case to the Board WILLIAM F. SCHARNIKOW, Dated July 21 , 1945 - Trial Examiner. '4 See footnote 22, supra. PRIGG BOAT WORKS APPENDIX A NOTICE TO ALL EMPLOYEES 127 Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will 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 Industrial Union of :Marine and Shipbuilding Workers 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 purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination We will bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is : All em- ployees at the Prigg Boat Works plant, exclusive of office clerical employees, watchmen, foremen, and supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment. The employees to be reinstated with back pay are Henry Berry, D. H. Wood, J. P Wood, H. P. Belknap, P. G. Watton, and Joe Craig. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. H. PAUL PRIGG,, DOING BUSINESS UNDER THE NAME OF PRIGG BOAT WORKS, (Employer) Dated----------------- ------ By------------------- ------------------- (Representative) (Title) NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material