Norfolk Shipbuilding & Drydock Corp.

In the Matter of NORFOLK SHIPBUILDING & DRYDOCK CORPORATION and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA (C. I. 0.) Case No. 5-C-1851.-Decided August 26,1946 Messrs. Herman Goldberg and George L. Weasler, for the Board. Mr. Leon T. Seawell, of Norfolk, Va., for the respondent. Mr. Savory E. Amato, of Norfolk,Ya., for the EPA. Mr. Byras V. Cook, of Norfolk, Va., for the Union. Mr. David V. Easton, of counsel to the Board. DECISION AND ORDER On April 16, 1946, Trial Examiner Mortimer Riemer issued his In- termediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take} certain affirmative action; as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and the EPA filed exceptions to the Intermediate Report and supporting briefs. Oral argument, in which the respondent, the EPA, and the Union participated, was held before the Board at Washington, D. C., on July 23, 1946. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs of the respondent and the EPA, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifica- tions and additions: 1. In his Intermediate Report, the Trial Examiner found that "the respondent interfered with the formation and.administration of, and contributed to the support of the EPA . . ." in violation of Section 8 (2) of the Act, and recommended that it "disestablish the EPA as a representative of any of its employees . . ." We agree with the Trial Examiner insofar as he found that the respondent, 70 N. L. It. B., No. 36. 391 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through leadmen and other supervisory employees, discouraged mem- bership in the Union and encouraged membership in the EPA by- suggesting the formation and assisting the organization of the EPA,, by soliciting membership in that organization on company time and property, by seeking in furtherance of its efforts on behalf of the EPA to persuade employees to vote "no union" rather than for' the Union, in a representation election held under Board auspices,, and, as de- scribed in the Intermediate Report, by discriminating against cer- tain of its employees who were active on behalf of the Union or who, -refused, to assist the EPA, as well as by refusing to bargain collet-' tively with the Union as the certified representative of certain of its, employees. However, as pointed out by the Trial Examiner, the rec- ord contains-no evidence that the respondent assisted the EPA finan- cially; furthermore, no evidence was adduced which would indicate that the respondent has ever recognized or dealt with the EPA as the representative of any of its employees. It also appears that some of the respondent's supervisory employees also assisted the Union in many of its organizational efforts, and that while there was some difference in degree there was none in kind, as between the assistance given the two organizations. Under all these circumstances, we are of the opinion that the respondent's conduct with respect to the EPA is insufficient to constitute domination within the meaning of Section 8 (2) of the Act, and the complaint will be dismissed in this respect. However, we are satisfied, and we find, that, by the conduct outlined above, the respondent has unlawfully interfered with the formation and administration of the EPA, and thus has been and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8• (1) thereof.2 In view of this conclusion, we shall not adopt the Trial Examiner's- recommendation that the respondent be directed to disestablish the- EPA as the representative of any of its employees, but shall, instead, order the respondent to withhold recognition from the EPA as the collective bargaining representative until such time as the EPA may be certified as such representative by the Board. 2. The Trial Examiner found that on October 15, 19453 the respond- ent discriminatorily discharged a group of striking laborers and push- ers, in violation of Section 8 (3) of the Act. This finding is based 1 See Matter of Norfolk Shipbuilding & Drydock Corporation,,57 N L. R. B 1168. The EPA was not a party to the representation proceeding, and its several attempts to be accorded a place upon the ballot in this election were denied by the Board. 2 In arriving at this conclusion , it is not necessary for us to rely upon the evidence adduced through the testimony of Melvin E. Sampson , whose credibility was sharply attacked both during the course of the hearing and in the oral argument held before the Board, inasmuch as the facts upon which our conclusion is based are established by other evidence I' NORFOLK SHIPBUILDING & DRYDOCK CORPORATION. 393 upon an order by a foreman to the striking employees to leave the yard; upon a statement by a minor supervisory employee to these em- ployees that the respondent would reinstate the laborers but not the pushers; and upon the fact that the respondent refused to reinstate the pushers and did not reemploy any of the laborers. We do not agree. The respondent was within its rights in ordering the strikers to leave its premises. Furthermore, the record clearly indicates that officials of the respondent gave instructions to subordinates to attempt to obtain the return of all strikers, and there is no evidence that the actions of the minor supervisory employee entrusted with this duty were a reflection of the attitude of management. Finally, at the time an unconditional offer of return was made by the pushers, it appears from the record that their positions had already been filled, and the respondent's evidence that it was at all times willing to reemploy such of the striking laborers as were needed by it is not contraverted. We are of the opinion that the facts relied upon by the Trial Examiner, by themselves, are not sufficient upon which to base a conclusion that the respondent's employees who engaged in the strike of October 15, 1945, were discriminatorily discharged, and the complaint, insofar as these employees are concerned, will be dismissed. 3. The Trial Examiner found, as do we, that on October 20, 1944,3 and at all times thereafter,-the respondent refused to bargain collec- tively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment and other conditions of employment. In so finding, we do not rely upon the delays occasioned by recourse to the Shipping Commission of the War Labor-Board and to the War Labor Board itself, for it is clear from the record that, from the first, the respondent had no intention of recognizing and dealing with the Union. As in- dicated in the Intermediate Report, the respondent was successful in delaying negotiations with the Union until 4 months after the latter's certification, and at that time refused to recognize the Union in ac- cordance with its certification, refused to agree to an "interim agreement" covering matters needing immediate attention, and, al- though it had a copy of the Union's proposals in its possession, refused to submit any counterproposals. The respondent later met again with the Union after some delay, at which time it submitted counterpro- posals which served only to create unnecessary issues and to delay nego- tiations leading to a collective bargaining agreement; and again it refused to enter into an interim agreement covering matters requiring immediate attention. It was to resolve the issues raised by the re- spondent's counterproposals that recourse was again had to other 8 This is the date on which the Board certified the Union as the representative of certain of the respondent's employees. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD governmental agencies.4 It is not necessary here to summarize the various negotiations between the parties. It is sufficient merely to state that at no time since the Union's certification on October 20, 1944, as the collective bargaining representative of certain of the re- spondent's employees did the respondent, despite the Union's several requests, grant it recognition in accordance with the respondent's legal obligation to do so. Furthermore, there is nothing in the record which would indicate that the respondent's actions with respect to the Union were dictated by anything but its desire to avoid the obligation to bargain collectively with it in good faith. On the contrary, its entire course of conduct, including its assistance to the EPA and its discriminatory discharges, lends strong support to the Trial Ex- aminer's conclusion "that the respondent at no time ever intended to bargain in good faith with the Union." 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, Norfolk Shipbuilding & Drydock Corporation, Norfolk, Virginia, and its officers, agents, suc- cessors, and assigns shall: 1. Cease and desist from : (a) Recognizing or in any manner dealing with Employees Pro- tective Association of Norfolk as the representative of any of its employees in respect to grievances, wages, rates of pay, hours of em- ployment, or other conditions of employment, unless and until that labor organization is certified •as such in the future by the National Labor Relations Board; (b) Giving effect to any agreement with Employees Protective Association of Norfolk which may now be in force, or to any exten- sion, renewal, or modification thereof, or to any superseding contract with said organization; (c) Discouraging membership in Industrial' Union. of Marine and Shipbuilding Workers of America (C. I.0.), or any other labor organ- izations of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment,;' (d) Refusing to bargain collectively. with Industrial Union of Marine and Shipbuilding Workers of America (C. I: 0.), as the exclusive representative of all production and maintenance employees at its Brambleton and Berkley yards, including transportation depart- 4 As indicated in the Intermediate Report, the Union had recourse to the U . S. Conciliation Service and to the Shipping Commission before the respondent first met with the Union. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 395 ment employees, storeroom employees, launch captains, fire watch employees, operators, trainees, and canteen employees, but excluding office employees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees, timekeepers, plant-protection em- ployees,' dock masters, assistant dock masters, instructors, canteen manager, quarternien, leadmen (leadingmen), gang pushers, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Industrial Union of Marine and Shipbuilding Workers of America (C. I. 0.), or any other labor or- ganization, to bargain collectively through representatives, of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will' effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Employees Pro- tective Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that labor organization shall have been certified as such in the future by the National Labor Relations Board; (b) Offer to Joseph E. Pearce, Byras V. Cook, Kenneth R. Haynes, Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, R. S. Starcher, and E. H. Ramey immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (c) Make whole Joseph E. Pearce, Byras V. Cook, Kenneth R. Haynes, Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, R. S. Starcher, and E. H. Ramey for any loss of pay they may have, suffered by reason of the respondent's discrimina- tion againt them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of the respondent's discrimination to the date .of the respondent's offer of reinstatement, less his net earnings during said period; (d) Upon request, bargain collectively with Industrial Union of Marine and Shipbuilding Workers of America (C. I. 0.), as the ex- clusive representative of all production and maintenance employees 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its Brambleton and Berkley yards, including transportation depart- ment employees, storeroom employees, launch captains, fire watch employees, operators, trainees, and canteen employees, but excluding office employees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees, timekeepers, plant protection'em- ployees, dock masters, assistant dock masters, instructors, canteen manager, quartermen, leadmen (leadingmen), gang pushers, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment; (e) Post in conspicuous places throughout its Brambleton and Berkley yards at Norfolk, Virginia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be fur- nished by the Regional Director for the Fifth Region, shall,, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, includ- ing 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; (f) Notify the Regional Director for the Fifth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken-to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint, that the respondent discriminatorily discharged Jesse T. Bowden, Rolland T. Ikenberry, and Garry G. Thomas; that it discriminatorily laid,off H. L. Currier, Charles L. Blancher, and H. E. Finch; that it discriminatorily discharged Joseph E. Pearce for the reason that he gave testimony under the Act in a Board proceeding; that it discharged and refused to reinstate, for engaging in concerted activities, George Williams, Bud Whitner, Thurman Hines, Willie Harris, Willie Har- ron (Harrow), Allen (Arion) Walker, Paul Simms, James Brooks, Raymond Johnson, William Caldwell and those laborers and pushers set forth in Appendix A attached to the Intermediate Report; and that it dominated the formation and administration of Employees Protective Association of Norfolk, and contributed financial support to it, be, and they hereby are, dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. - NORFOLK SHIPBUILDING & DRYDOCK CORPORATION APPENDIX A NOTICE TO ALL EMPLOYEES 397 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that We will not in any manner interfere with, restrain, or coerce our employees 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 repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purposes of collective bargaining, or other mutual aid or protection. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : Joseph E. Pearce Byras V. Cook G. C. Pickard Kenneth R. Haynes William Flaugher M. N. Laden E. H. Ramey Mark T. Gardner E. C. Oliver R. S. Starcher We will not recognize Employees Protective Association of .Norfolk as the representative of any of our employees for the purposes of collective bargaining until such time as it may be cer- tified as their representative by the National Labor Relations Board. We will not enforce any agreement heretofore or now existing with the Employees Protective Association of Norfolk. We will not interfere with the formation or administration of any labor organization or contribute other support to it. We will bargain collectively upon request with the Industrial Union of Marine and Shipbuilding Workers of America (C. I. 0.) as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of em- ployment, or other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. The bargaining uiiit is-. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees of the Norfolk Shipbuilding & Drydock Corporation, at its Brambleton and Berkley yards, including transportation department em- ployees, storeroom employees, launch captains, fire watch em- ployees, operators, trainees, and canteen employees, but excluding office employees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees,. timekeepers, plant-protection employees, dock masters, assist- ant dock masters, instructors, canteen manager, quartermen, leadmen (leadingmen), gang pushers, and all other super- visory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of em- ployees, or effectively recommend such action. All our employees are free to become or remain members of Indus- trial Union of Marine and Shipbuilding Workers of America (C. 1. 0.) or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any such labor organization. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION, Employer. By ------------------------ ----------- ---- --- iv (Title) Dated-------------------- 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. INTERMEDIATE REPORT Messrs. Herman Goldberg and George L. Weasler, for the Board. Mr. Leon T. Seawell, of Norfolk, Va., for the respondent. Mr. Savory E. Amato, of Norfolk, Va., for the EPA. Mr. Byras V. Cook, of Norfolk, Va., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed December 3, 1945. by Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Con- gress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated December 3, 1945,-. against Norfolk Shipbuilding & Drydock Corporation, Norfolk, Virginia, herein called the respondent, alleging that respondent engaged in and was engaging in unfair labor practices within the meaning of Section 8 ( 1), (2), (3), (4) and NORFOLK SHIPBUILDING & DRYDOCK CORPORATION1 399 Q5) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, copies of the complaint and second amended charge, together with notice of hearing thereon were duly served upon respondent, the Union, and Employees Protective Association of Norfolk , herein called EPA. Concerning, the unfair labor practices , the complaint alleged in substance that the respondent : (1) since May 1, 1944, disparaged the Union , advised and urged employees not to join the Union , and discouraged membership therein ; warned employees that they would receive no benefits from the Union and questioned employees about their membership therein ; granted special privileges in working conditions to EPA members thereby discouraging membership in the Union ; instigated an anti-union campaign in order to defeat the Union in a scheduled Board election, while indicating a preference for an unaffiliated labor organization , meanwhile assisting and supporting the formation and administration of EPA and thereafter dominated and interfered with its formation and administration ; threatened employees with loss of employment, discharge and other reprisals for membership in the Union , or refusing to join or assist EPA ; solicited information concerning the Union and engaged in surveillance of the Union and concerted activities ; disseminated propaganda ,to induce employees not to assist , join, or remain union members and urged employees to deal individually with it in respect to working conditions and grievances all in order to discourage concerted activities ; (2) has from on or about June 1, 1944, and thereafter dominated and interfered with the formation and administration of EPA and contributed support thereto ; ( 3) did discharge various named employees and thereafter refused to reinstate them because they joined or assisted ( he Uijion and engaged in concerted activities ;' ( 4) did discharge Kenneth R. Haynes, on or about March 30, 1945, and thereafter refused to reinstate him because he protested against the respondent's - scheme of aiding EPA; (5 ) did on or about October 13 , 1945, lay off various named employees and thereafter refused to reinstate any of said employees because each of them joined or assisted the Union or engaged in concerted activities ;2 ( 6) did on July 27, 1944, discharge Joseph E Pearce because he joined or assisted the Union and for the further reason that he gave testimony under the Act in a proceeding before the Board conducted in the Matter of Norfolk b7iipbuilding 4 7Jrydock Corpoi ation, Case No 5-R-1627, at Norfolk, Virginia, on July 21, 1944; ( 7) on or about October 14, 1945, when certain employees classified as laborers and pushers ceased work and went on strike, did discharge the said ,pushers and thereafter offered conditionally to reinstate the laborers but not the pushers and thereafter discharged the laborers because of their refusal to work; ( 8) on or about October 15 , and November 7, 1945, when the Union sought reinstatement of all the named employees did refuse- to reinstate said employees because each of them had participated in the strike ; ( 9) since October 20, 1944, has, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, although the Union had been designated as their representative by a majority of such em- ployees and had been certified by the Board as their exclusive representative; ' The named employees and dates of discharge follow : Joseph E Pearce, July 27, 1944, Henry Etheridge, Dlarch 6, 1945, Byras V. Cook, July 10, 1945, It T Ikenberry, August 1944, and J T Bowden, October 4, 1944 Charles L Blancher, H E Finch, IItaik T Gardner, William Flaugher, E C Oliver. Y; C Pickard, William Smith, H. N. Laden, C. L. Haynes, Charles King, R S. Starcher, H L. Currier, and E H Ramey. 400 DECISIONS OF NATIONAL LABOR RELATIONS" BOARD and (10) by these acts and conduct has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. EPA filed an answer dated December 27, 1945, in which it denied that it was the subject of the respondent's domination and interference, the recipient of its support, special favors, or privileges and averred that it was freely formed and, since formation, continuously administered by the autonomous and inde- pendent action of its members. The respondent's answer, dated December 27, 1945, admitted certain factual matters concerning the jurisdictional allegations of the complaint but denied the commission of the unfair labor practices alleged. On January 2, 1946, the respondent filed with the Board's Regional Director, a motion for a bill of particulars. This motion, referred to the Trial Examiner, was granted in part, and the Board's bill of particulars, dated January 7, 1946, furnishing the names of the respondent's agents committing the acts complained of as well as the approximate places of occurrence, was ordered served on all parties. Pursuant to notice, a hearing was held at Norfolk, Virginia, from January 8, 1946 to January 22, 1946, ,before Mortimer Riemer, the undersigned Trial Examiner duly designated by the Chief Trial Examiner The Board, the re- spondent, and EPA were represented by counsel, the Union by its representative, and all participated in the' hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, counsel for the Board moved to strike portions of the EPA answer which attacked the conduct of the Board election and the validity of the certification of the Union ; as well as the assertion that EPA and not the Union was the true majority representative and that the respondent was there- fore justified in refusing to bargain with the Union. The motion was granted in part. c On the second day of the hearing, counsel for the Board moved to strike from its complaint the allegation that William Smith, C. L Haynes, and Charles King had been discriminatorily laid off on October 13, 1944. The motion was granted. At the conclusion of the Board's case, it moved to strike from the complaint the name of Henry Etheridge, allegedly discriminatorily discharged on March 6, 1945. This motion was granted. Counsel for the Board also moved to amend the com- plaint by adding to it, in conformity with the testimony adduced, the name of Harry C. Thomas as having been discharged by reason of his union membership on August 19, 1944 and to add the names of 10 laborers to the complaint, as having been discharged and refused reinstatement because of participation in the strike of October 15, 1945 s These motions were granted with leave to the respondent to move for an adjournment if necessary to prepare its defense as to the additional matters. Likewise at the conclusion of the Board's case the respondent moved to dismiss the complaint. The EPA joined in the motion generally and moved specifically to dismiss the allegations of the complaint concerning it. The motions were denied. At the conclusion of the hearing, ruling was reserved on motions of the respondent and EPA to dismiss.' These motions are hereinafter disposed of. The Board's motion to conform the pleadings to the proof was granted without objection At the close of the hearing an informal discussion of some of the issues was held on the record. A date was fixed for filing of briefs with the Trial Examiner. Thereafter briefs were submitted. 8 Albert Roscoe White, Thomas B. Graham, Willie Harlow, Thurman Hines, Arion Walker, James Brooks, Raymond Johnson, Bud Whitner, Paul Sinus, and William Caldwell. The respondent's motion to strike the testimony of the witness Sampson concerning an alleged conversation between the witnesses Nixon and Manning is herein denied. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 401 Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Norfolk Shipbuilding & Drydock Corporation, a Virginia corporation, owns and operates a shipyard located in Norfolk, Virginia, hereinafter referred to as the Brambleton yard, and operates another shipyard under lease from the United States Navy, located at Berkley Ward, Norfolk, Virginia, hereinafter referred to as the Berkley yard. The respondent is engaged at both yards in the repair of vessels for the United States Navy, United States War Shipping Administration. and the British Ministry of Shipping; it is also engaged in both yards in per- formance of other kinds of repair work. During the year 1945, the gross income of both yards was approximately $8,000,000, more than 90 percent of which was in payment for work performed on vessels owned privately or by Government agencies engaged in interstate and foreign commerce During, the same period, approximately 10 percent of all raw materials used in both yards, consisting principally of steel, iron, timbers, and other shipyard repair materials, originated from points outside the State of Virginia. As of June 1945, the respondent employed approximately 1,900 employees at both yards.' The undersigned finds that the respondent is engaged in commerce within the meaning of the Act' It. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and'Shipbuilding Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. Employees Protective Association of Norfolk, is an unaffiliated labor organiza- tion admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interfei ence with, and support of , EPA; interference , restraint, and coercion- On charges filed in 1937 by the Union, the Board has heretofore found that respondent engaged in unfair labor practices by reason of its domination and interference with the formation and administration of Employees Association of Norfolk Shipbuilding and Drydock Corporation and the discriminatory dis- charge of an employee for membership in the Union.' o There is no history of organizational efforts by the Union following Sits activity in 1937 which culminated in the charges referred to above, until sometime in May of 1944, when the Union renewed its efforts to organize the respondent's employees. Those efforts led eventually to the request by the Union on June 5 The facts found in this paragraph are based upon a stipulation entered into between counsel for the Board and for the respondent. See Newport News Shipbuilding if Diydock Co. v. N. L R. B., 101 F (2d) 841 (C. C A. 4). The respondent although stipulating the facts as to its operations, does not concede that it is engaged in interstate commerce within the meaning of the Act. I See Matter of Norfolk Shipbuilding if Drydock Corporation, 12 N. L. R. B. 886, modified as to the reinstatement and back pay provisions of the Board's order, but otherwise en- forced in N. L. R. B. v Norfolk Shipbuilding it Drydock Corporation, 109 F. (2d) 128 (C. C. A. 4), January 8, 1940. This matter is referred to only for the purpose of presenting background information. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9, 1944, that it be recognized as the exclusive bargaining representative of certain of the respondent's employees. Following refusal thereof by the respondent, a hearing was held on the Union's petition that a question had arisen concerning representation of the respondent's employees ° On August 25, 1944, pursuant to a Board Decision and Direction of Election, an election was conducted among respondent's employees. - This election proving inconclusive insofar as determination of a majority representative was concerned, a run-off election was held on October 4, 1944 A tally of ballots in the run-off election showed 1383 valid votes counted, of which 731 were cast fSr the Union and G.52 against it. Pursuant thereto, on Octobei 20, 1944 the Board formerly certified the Industrial Union of Marine and Ship- building Workers of America (C. I. 0.), as the exclusive representative of all employees in the unit found appropriate." It was in and around these two elec- tions conducted by the Board and subsequent thereto that the acts complained of occurred. 1. The Union starts to organize The Union commenced organization of respondent's employees in early May 1944. The respondent's officials at both yards knew of these activities. Super- visors were warned to maintain an attitude of impartiality in view of the cur- rent union activity and to avoid all discussion of union matters with employees. These instructions were issued by Maxwell N Lawrence, general superintendent of the Berkley yard, and Arthur E. Jakeman, personnel director. Similar in- structions were repeated on occasions throughout the summer and fall of 1944 The instructions were oral, casual in nature, given to the foremen, assistant fore- men, and leadmen. There is no evidence that the respondent's policy as thus -enunciated was made known to the employees and that such instructions were without controlling effect is apparent from what is related hereafter. John Henry Woolvin was a machinist in the outside machine shop of the Brambleton yard. His foreman was Walter L. Manning, an employee with 29 years of service with respondent. Woolvin testified that on May 5, 1944, Man- ning called him to his office. Manning told Woolvin that the Union was meeting that night in Norfolk and asked him to attend, checking on the presence of the respondent's employees. Manning mentioned the names of Brown and Ethe- ridge, two other machinists who were also asked to perform the same service. According to Woolvin's further testimony, he attended the meeting and the next morning was called to Manning's office to render his report. He declined to do so, stating that Manning already knew who had attended the meeting. Then Woolvin was asked if he would acknowledge the presence of employees, if Man- ning mentioned their names. This Woolvin agreed to do, identifying certain .employees. Woolvin was also advised to be "neutral" and not to join the Union or take part in its activities. Manning, in his testimony, denied asking Woolvin to attend this or any other meeting to report on those present. He did not deny telling Woolvin to be "neutral" and not to join the Union In the same SMatter of Norfolk Shipbioldinq cf Digdock Corporation, 57 N L R B 1168. ° The unit consisted of all production and maintenance employees of the respondent in both of its yards, "including transportation department employees, storeroom employees, launch captains, fire watch employees, operators, trainees, and canteen employees, but ex- cluding office employees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees, timekeepers, plant protection employees, dock masters, assistant (lock masters, instructors, canteen manager, quartermen, leadinen (leadingnien), gang pushers, and all other supervisory employe(- " Despite agreement of all parties upon the inclusion of leadmen and gang pushers within the appropriate unit, the Board was of the opinion that as supervisory emplo3ves, they .hould be excluded and so directed. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 403 pattern, there is the uncontradicted credible testimony of Durwood B. Clemons, presently employed by-respondent, that in the spring of 1944, Manning told him that the Union was "getting in here," queried Clemons as to his membership in the Union, and his knowledge of union activity, with particular reference to that of Joseph E. Pearce, an employee referred to hereinafter. Sometime in July 1944, according to Woolvin's uncontradicted testimony, he was asked by Lewis, assistant foreman of the outside machine shop, where he stood with respect to the Union and, when Woolvin acknowledged his union membership, he was advised to "lay low" and keep his "mouth shut . . . and everything will come along fine." About the same time, C. L. Overton, Woolvin's leadman, ac- cording to Woolvin's further testimony, told him that if he had good sense he would join EPA. The undersigned accepts and credits the testimony of Woolvin and Clemons and finds that Manning, Lewis and Overton made the statements attributed to them. 2. The EPA is formed According to the testimony of Mrs. Elizabeth D Rice, the first meeting which led eventually to the formation of EPA was held at her home in Norfolk about April 1, 1944. Mrs. Rice testified that an employee named Roy Morgan 10 sought her help, because of her previous association as President of the Navy Wives Club of Norfolk. Thereafter, meetings were held every Saturday afternoon at her' home until sometime in August 1944. Accepting this testimony, it must be clear, as Mrs. Rice sought to suggest, that the meetings were somewhat secre- tive and exploratory in nature for the preponderance of testimony on the forma- tion of the EPA indicates that its existence was unknown to the employees when they joined the Union in May and June of that year. The Union lost no time in its organizing efforts and, on June 9, 1944, requested recognition from respondent as exclusive bargaining representative. Thus at least by this time; the respondent had ample knowledge of the Union's presence and its intentions. Following this open request, and in the months of July and August preceding the first election hold on August 25, 1944, the EPA, as will now be shown, put on an intensive organizing campaign in an effort to weaken if not destroy the Union's position. Harry G. Galladay was acting foreman of respondent's welding shop, Bramble- ton yard, from May 19, 1944, until his voluntary termination on January 15, 1945. About the middle of June, Galladay in a conversation with Quinto Di Nunzio, an instructor in the respondent's apprentice trainee school, suggested the formation of an inside union to combat the Union's drive. Di Nunzio replied that this work was already under way. Galladay also suggested the formation of an independent union to Kenneth R. Haynes, leadman on the night shift. About July 1, Galladay broached the subject of organizing a local of the Brotherhood of Welders to Paul Tolson,,leadman in the boiler shop. Tolson replied that he was not sympathetic to the suggestion and that-in any event there was another organi- zation at work in the yard Tolson thereafter became EPA's first president. It is difficult to place in exact chronological sequence the whole category of EPA activities that followed thereafter in July and August. There are two events, however, occurring in July which' indicate the nature and character of EPA activity, and the tacit approval and endorsement of it by the respondent. Harry L. Currier, a leadman, was working a group of men and women welders on a ship in the Berkley yard. He observed Tolson soliciting for the EPA with a "Now deceased 712344-47-vol. 70-27 404 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD group of 8 to 12 employees clustered about hnn. The incident is best described in Currier's own testimony : . . I came over to him, and I asked him, I says, "What are you doing down here; I want this group of workers I have group (sic) here," and lie says, "Haven't you been notified to the effect that I had authority to come down here and do it?" I says, "I don't know anything about that," I says, "you are holding up production, this is an ammunition ship, and we want to get the work going and want to finish as soon as possible." He says, "Well, you can't do anything about it," he says, "I am going to kepe undoing it." At this moment, C. S. Rogers, respondent's president, came by and Currier asked President Rogers if Tolson had the right to organize on coil pauy time. Rogers made no comment and passed along, leaving the scene." The other incident likewise involved Rogers Mark T. Gardner, a welder at the Berkley yard, with a group of about 10 other employees sought an interview with Rogers What transpired thereafter is thus described by Gardner: Well, we went in because a lot of the boys complained that they were being stepped on in their work by different people, they were supervisors or other people in the yard, why not leave the C 1 O. and join the E P. A., that the E. P. A. had more to offer, different people would stop you from working and at that time we were trying-a lot of us boys, we were trying to get the AE-12" out sooner than the-AE-11, it seemed to be behind it, so we were doing all we could, and then we saw the matter now, how could our efforts-we were on the outside, how could we bring this new union. in, the Shipbuilders Union in, we saw we couldn't break down something what was going on inside, in other words a hatchet over our heads, so I told Mr. Rogers-we will stay on the outside and pass it out. and will you stay oil the outside, because if we do it on the inside we will be fired. He says, "We will see about it," and lie then made a statement that it must be open to you. Q. [By i1lr. Goldberg, counsel for the Board ] Was there any mention made of any supervisors engaging in union activities at this meeting'? A Yes, there was several supervisors' names brought up that were doing this work at the meeting Q. I see. Now, do you remember any of their names'? A. Mr. Galladay, Mr. Blankenship, Mr. Johnson, and two or three others that I learned .. . Q. Mr Rogers make any comment about it'? A. As far as I can remember, he took a view as it was just fighting us, 'and for us to get back to work and he would probably do something about it later on. Q. . . And after you had this conversation with Mr. Rogers (lid you notice whether or not the supervisors continued E. P. A activities? A. I noticed that until I was terminated from the shipyard." Garner testified further concei ning this incident as follows : Q. [By Mr. Seawell, coui'sel for the respondent.] Now, you say it was on account of E. P. A activities in the yard that you went to see Mr. Rogers? it Currier at first fixed this event as occuriing in July, then in later testimony, in August 1944 The undersigned has found it occurred in July based upon what would appear to be the logical cui rent of EPA activities at the time - ss The AE-12 is mentioned frequently herein. It was an ammunition escort vessel being converted into a troop carrier. It entered the yard in June or July 1944 and departed in early October 1944 a October 13, 1944. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 405 A. Because of the supervisors and everybody else that belonged to the E. P. A., whether they were or not a supervisor, just able to take an advantage and going around and doing as they pleased, when we knew we could not do it, and we knew then and we still know that we had a better union than they did. Q. They might dispute that idea. A. That perhaps is true. Q. As a matter of fact, things were getting pretty warm in the,yard there just before election time, weren't they? A Well, that was a good ways before election. Q But it was getting warm even a good ways before the election? A. Well- Q. The C. I 0 and the E. P. A. were soliciting as hard to gain the majority? A Yes, of course Our complaint was that we wanted to do it legitimately on the outside. While we didn't, if we felt that we had the supervisors with us, why, it would be easier, but since we had no one to help us so it was a hatchet hanging over our heads, we just wanted to have that chance. Contrast Rogers' apathy to the pleas of Currier and Gardner, set forth above, with the treatment meted out to Byras V. Cook, the Union's leading proponent. Sometime between August 25 and October 4, 1944, Cook, according to his un- contradicted testimony, which is credited, was accused by Nixon, foreman of the Brambleton boiler shop, of roaming in the yard and soliciting for the Union. Nixon warned Cook that if he was caught again lie would be fired. That after- noon, President Rogers sent for Cook and repeated Nixon's accusation of roaming and solicitation and stated that his conduct had a "bad influence on other workers" and warned him to be careful. Shortly before the first Board election on August 25 and in the period leading to the run-off election on October 4, the respondent's yards were the scene of intense organizing activity. But it is clear from an appraisal of the entire record and in particular from what is now related that such activity was pre- ponderantly that of the EPA One of the chief witnesses to describe this activity was Acting Foreman Galla- day, previously mentioned Galladay was on the whole a credible witness, with no apparent interest in the outcome of the proceedings, and gave every,evidence of his desire ton tell the truth. Except wherein his testimony by specific reference is found to be uncertain and vague, the facts found below are based upon his uncontradicted testimony, corroborated generally, and in many instances specifi- cally, by other Board witnesses He joined EPA in June or July 1944, and thereafter wore its button in the shop. Prior to the Board election in August 1944, Tolson " asked Galladay to desig- nate a group of employees to solicit EPA members. Thereupon, Galladay selected a group of leadmen in the welding shop, including Charles L. Blancher, Clarence L. Webb, and the leadman on the night shift, Kenneth R. Haynes, to urge em- ployees to join EPA. The leadmen were given EPA application cards which were returned later to Galladay along with current fees which he in turn gave to Tolson. Shortly before the election, Tolson solicited Galladay's aid to get as ninny employees as possible to vote "no union " Leadnian BlAnkenship assisted Galladay in this regard Galladay encouraged Blankenship to repeat this performance in October prior to the run-off election. The facts found above, based on Galladay's testimony, find added significance in the uncontradicted testimony of other witnesses. For example, before the election, Leadman Haynes, who had received EPA application cards from Galla- day, sought, pursuant to his foreman's advice, to get all of the night shift men 11 Tolson was not called as a witness. He is no longer employed by the respondent. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to join EPA Signed application cards were returned to Galladay. When Haynes required additional cards, Galladay told him that supplies would be obtained from Pete Hamlin, then assistant superintendent of the Berkley yard. After the election, Galladay called William H Flaugher, a welder, to his office and there asked him how he was going to vote and uiged him to vote against the "C. I. O " and to tell other employees to do so. Flauglier's leadman, Blancher, likewise inquired how he would vote. The undersigned turns now to it consideration of the testimony of Board witness Melvin E. Sampson, concerning the early history of EPA. He was employed by respondent from 1939 to March 1945. During 1944, he was leadman in the boiler- plate shop at Brambleton under foreman Nixon. His testimony drew the sharpest fire from opposing counsel and it was the subject of denial and contradiction by witnesses for EPA and the respondent. Although in articulate and"opinionated witness, at times he used indefinite and inexact language, which makes it dif- ficult.to reconstruct certain events which he described. But he testified openly and at ease and his testimony, even where sharply contradicted, finds corrobora- tion in the general pattern of events and in the testimony of numerous other witnesses. - Sampson testified that shortly after the Union started to organize the yard, Tolson requested him to attend a meeting at the home of Quinto Di Nunzio Present were Di Nunzio, Tolson, McReynolds, leadman from the paint shop, and St. Leger Joynes, leadman from the outsideinachine shop. Di Nunzio there gave instructions and suggestions for perfecting the EPA organizing work.' The above testimony was vigorously controverted by Di Nunzio who denied that Sampson had ever been at his home at any time for any reason. The undersigned is of the opinion that Sampson erred about Di Nunzio's home and that the meet- ings that Sampson attended were in fact held at the home of Mrs Rice, mentioned above. Di Nunzio admitted his presence at her home and participating in dis- cussions about EPA. He likewise acknowledged the presence there of Tolson and Sampson on at least two occasions and he fixed the time of some,of the meetings as in June and July. As to Sampson's efforts following these meetings there can be no question. He went about his solicitation with unabashed fervor, even going so far as to journey to an outlying pier, where according to his uncontradicted testimony he and Tolson informed L. L. Dempsey, in charge of work on the pier, "What the score was." 18 Tolson checked on Sampson's progress, gave him additional appli- cations and urged him to continue his efforts. Sampson devoted from 15 min- utes to an hour daily to EPA solicitation as he went about his tasks in the Brambleton yard. He signed up about 85 employees in the first week of his efforts and his activities continued down to the week preceding the run-off election in October. 3. Activities prior to first election The first outside meeting of the EPA was held just prior to the August election in the Red Men's Hall in Norfolk. It was attended by about 35 persons, including 15 Sampson also described a second meeting held in Di Nunzio's home after August 25, 1944, attended by the same people and where again Di Nunzio assumed the role of instructor in EPA organizing efforts, particularly urging the men to work haidei 19 Sampson set up Gore and Gordon, two employees, as solicitors for EPA on the pier. Signed applications and dues were remitted to him from the pier by Mrs Snyder, the time- keeper. Sampson testified that he told his foreman Nixon that lie wanted to go to Pier S to "sign up the men." Nixon admitted that he knew Airs Snider participated in "union activity" and that he made no effort, "none whatsoever." to determine whether his leadmen complied with neutrality instructions. The undersigned finds that Sampson visited Pier S with Nixon's approval as to his use of company time to "sign up the men NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 407 Leadmen Sampson, McReynolds, Pillar, and others not identified in this record. At this meeting, according to Sampson, officers were appointed from a slate previously drawn np by the committee. Mrs. Rice testified that at this meeting the nominees of the Committee were not approved. During the week that followed and prior to the second meeting held about August 12, according to the further testimony of Mrs.-Rice, the names of Sampson and O. E. Johnson, nominee for the position of vice-president, "were erased" when it was discovered that they were leadmen. If this be true, certainly nothing was done to publish this correc- tion, for in an issue of the EPA publication, "Tidewater Broadcasts," dated August 24, and presumably issued on the eve of the Board election, Tolson is listed as president, O. E. Johnson as vice-president, and Sampson as one of the trustees. The undersigned credits Sampson's testimony and finds that the EPA officers were appointed at its first open meeting. Moreover it is hard to understand the con- cern of Mrs. Rice with respect to Sampson and Johnson and her failure to take any similar action respecting Tolson, the president. Whether Sampson and Johnson ever actually held office and functioned as such is not the real issue. The EPA advertised the fact that at least two leadmen were EPA officers and thereafter nothing was done so far as this record disclosed by either respondent or EPA to correct that impression. The undersigned finds further, based on the testimony of Sampson, despite denial by William L. Davis, personnel manager of the Brambleton yard, that sometime before the election Davis called Sampson to his office and there gave him an envelope containing the mimeographed paper ballot. These ballots which Sampson distributed in the yard urged the employees to mark the square reserved for the "neither" vote and carried this message: EPA LAWYER POLICE JUDGE AMATO SAYS VOTE NEITHER AND CONTRACT WITH COMPANY WILL BE ASSURED. BEAT CIO-AIL VOTE EPA VOTE EPA On or about August 21, 1944, the respondent posted on its bulletin boards a bulletin herein set forth in full : BULLETIN Friday, August 25th, 1944, has been designated by the National Labor Relations Board as election day for the employees of this plant This election has been called upon the petition of a labor organization which desires to become the bargaining agent and representative of all of you. On that day you have the choice to- 1. Vote to have no union at all. If a majority of those voting decide in favor of no union, the Com- pany will continue its policy of open, direct, and fair dealing with its employees 2. Form an independent union of your own. 3. Vote for either the C I. 0 or A. F. of L. If a majority of those voting decide for either Nos. 2 or 3, instead of No. 1, the Company will continue to conduct its affairs in a fair and frank manner looking to full and efficient cooperation with its employees. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BE SURE TO VOTE A majority of those voting will decide the issue. Therefore it is highly important for every employee affected to cast his ballot. A failure to vote may result in letting someone else, whom you may not want, represent you in vital matters pertaining to your employment. [Emphasis in original.] NORFOLK SHIPBUILDING & DRYDOCK CORP, (s) C. S ROGFRS, President and General Manager. The official Board ballot presented three choices to the employees : a vote for the "C. I. 0.," for the "A. F. of L " or for "Neither " It did not present the choice of forming "an independent union." This was the respondent's own suggestion coming on top of the known existence of the EPA drive. Two days before the election the respondent. addressed its employees by letter. over the signature of President Rogers, similar to that appearing in Matter of American Tube Bending Co , Ine.'1 This letter which appears on the respondent's stationery is herein set forth : ' AUGUST 23, 1944., To our employees: Next Friday, August 25th will be an important day for all of us, and so I wish it were possible for me to sit down and write each of you a personal letter about the election to be held in our plant on that day . But if you all receive the same letter it is only so because time prevents my doing any- thing else. If there are matters not quite clear to you, I hope this letter will help to explain some of them at least. - This is an election to determine whether you want to continue as we have been doing, `discussing your own matters individually , with no union to represent you ; or whether you will have for your exclusive bargaining agent the C. I. 0 or A F. of L. with the sole right to represent you in vital matters such as wages, working hours and conditions and other things. This election will be by secret ballot. No one can know, by any means, how you vote The outcome of the election will be determined by a majority of those voting, which means that if more than one-half of those voting choose one or the other of the unions, that union has the say for all. This is different from a majority of those entitled to vote, so BE SURE TO VOTE, so that the election will really show your wishes And remember , if you do not vote, it is the same as letting someone else decide who will represent you. A failure to vote is almost the same as a vote for the choice you do not want. Some of you may wonder if your preference as expressed at any time in the past must govern how you vote on Friday . It does not have to do so. This election is by secret ballot, so that you can record your vote as to how you feel to-day, without fear or favor . You have the right to vote in accordance with your own desires , regardless of whether or not you belong to any group, or whether or not you have signed an application card, authorization or anything else. One more thing I would like to suggest . This is an important election For many of us it is the most important one we have ever voted in. It bears directly on your welfare and that of yours dependent upon you. To what kind of leadership are you going to entrust your future with the Company? Is it unselfish, or is it not ? Is it interested in your personal , individual welfare , or is it self-seeking ? On the basis of its past record, is it open and IT 44 N L. R. B 121, 124-129, set aside in N. L. R B. v American Tube Bending Co, 134 F. (2d) 993 (C C A 2), cert. den 320 U S 768. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 409 ' aboveboard and dependable? Or don't you know? These are questions you should think about and talk over at home. And now I will close with this promise. In the past your Company has tried to conduct its affairs directly, openly and fairly and for the best interests of all concerned. Whatever the election on Friday decides, your Company will still continue to conduct itself in the same manner. [Emphasis in original ] 4. Activities after the election The results of the election , as heretofore indicated, were inconclusive It was not inconclusive, however, respecting the respondent 's continued support of the EPA. For shortly after the ' election, according to Sampson , he was called to Davis' office and there told that Tolson wanted to talk to him . Leaving Davis' office, Sampson met Tolson and Di Nunzio seated in an automobile within the yard, explaining to Leadman Carrington plans for organizing a separate lodge of Negro employees . This testimony is denied by Davis and Di Nunzio. It is uncontradicted however , that thereafter, Carrington held a'meeting on company time in the yard/^, Alfred Cherry who attended the meeting testified without con- tradiction that Carrington stated that if the Negro laborers and pushers wanted-ft union the respondent would give the men "enough to run our union," and allow them to elect their own officers. They were given 2 days to decide. The under- signed finds, despite denials of Davis and Di Nunzio, that Sampson was called to the office of Davis, that a meeting was held, and that thereby respondent continued its support of EPA. Moreover , there is ample evidence that after the election Galladay, too , continued his activities . He asked Leadman Webb to ascertain who among the welding shop employees belonged to the Union and EPA. Lead- men Blankenship, Tolson, and Johnson of the riggers , likewise continued EPA .activity on company time and property. Throughout the hearing the respondent objected to the introduction of evidence pertaining to the activities of Di Nunzio for the reason that as an employee, lacking supervisory status, the respondent was not accountable for his conduct. It appears from this record that Di Nunzio possessed no supervisory status per se, except as it might have been called into being by reason of his position as an instructor and the necessity to give instructions and orders to workers who were his pupils. As an instructor in the apprentice trainee school , Di Nunzio was in a unique position to further the respondent's support of the EPA . He was a vigorous and vocal opponent of the Union . This is clear from his testimony at the hearing. Next, he was one of the first to interest himself in the formation of t lie EPA and in the early meetings was helpful in outlining to the other workers the organizing strategy to be followed in the EPA campaign . In the repre- sentation hearing all parties agreed upon the exclusion of instructors and the Board in its Direction of Election found that leadinen were "on a par with instructors" who were excluded from the appropriate unit. But aside from these general observations it has been found above that Di Nunzio acted in concert with the respondent to aid and assist the EPA. For example, at one of the early meetings of the EPA , Di Nunzio stated that those who did not join the EPA would be given jobs that they could not perform.18 Even more important in showing the respondent 's knowledge of and acquiescence in Di Nunzio's actions is the conduct of Davis, the assistant personnel manager, ii ho called Sampson to a meeting with Di Nunzio . Thereafter they discussed on company time and property plans for organizing a Negro local of EPA. At a later- date after the Union had been certified and was pressing for an interim 18 Finding based on Sampson's testimony. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement on grievances, as more fully discussed below, respondent through Pickard, foreman of the welding shop, and Mathews, superintendent of the train- ing center, called a meeting at which Di Nunzio spoke on the subject of grievances. At this meeting, Di Nunzio stated that thereafter Leadman Turner' would handle the individual grievances of the workers. Here was a direct holding out of Di Nunzio as the representative of management, consistent with respondent's previous conduct and its failure at this or any1other time to disavow his known activities The Board has recently had occasion to pass upon the,question of a respond- ent's accountability for the anti-union conduct of an employee instructor, lit Matter of Scullin Steel Company, 65 N. L. R B. 1204. There it was held that where other employees could reasonably look to him and his conduct as inter- pretative of management policy, the respondent was responsible This respond- ent's asserted policy of neutrality had never been communicated to the employees Thus it found expression only in the anti-union conduct of acknowledged super- visors such as Manning, Nixon, Davis, and Galladay and in the studied indif- ference of President Rogers to the pleas of Currier and Gardner. Di, Nunzio furthered that policy and with the effective cooperation of. Davis on at least one occasion was instrumental in carrying it out. In the undersigned's opidii n the employees could do nothing else but look upon such activity on Di Nunzio's part as further evidence of the respondent's anti-union attitude and the respond- ent's acceptance of Di Nunzio's role in carrying it out. It is found by reason of all of the foregoing that respondent is responsible for the acts and conduct of Di Nunzio." 5. Support after certification of the Union - There is evidence of further support and condobation of EPA activities after certification of the Union. For example, F. T. Pickard, the respondent's witness, admitted, that in January 1945, when he reported to the Berkley yard to replace Galladay as foreman, Galladay asked him if he had "any men EPA." Pickard testified further : "I told him I didn't know any, and he asked me if I could get someone and get them to try about EPA, and I did not." About March 15, 1945, Leadman Haynes saw employee Zoby of the respondent's personnel department soliciting for the EPA among employees working on one of the boats. Haynes told Zoby that there was "a law against soliciting on the job for EPA members " Zoby left and shortly after Haynes met Zoby accompanied by Paul Smith, then president of EPA. Smith told Haynes that there "wasn't any law against solicit- ing for membership in the E. P A " and they continued over to the boat to resume their activity.20 About the same time Olga Sherertz, a Berkley welder,. who, acted as sort of overseer over other female welders, told a group of leadmen, 19 In like manner, the undersigned has found the respondent accountable for the activi- ties of Tolson . This finding is based on a considered review of all the testimony and the record as a whole Sampson testified that Tolson was a leadman . Jakeman acknowledged that Tolson was a leadman sometime in 1944 but refused to specify whether he held that position during the entire year or exactly when he assumed that position. A voting eligibility list introduced in evidence disclosed that as of the period ending August 6, 1944, Tolson was carried on the pay roll as a leadman . ' The respondent attempted to offset this, by testimony to the effect that Tolson was an instructor in the apprentice trainee school about the time of his EPA activity . It is clear , however, that leadmen and instrue- tois' drew the same pay and leadmen while acting as instructors did not have their classifications as leadmen changed. The undersigned was convinced and found above that Tolson was a leadman while engaging in EPA activity . In any event , the under- signed would hold the respondent accountable for his activity in view of its widespread nature at times in concert with Davis, Galladay, and Di Nunzio and respondent's knowh edge of it. 2° Finding based on Haynes undenied testimony. NORFOLK SHiPBUILDING & DRYDOCK CORPORATION 411 gathered in the office of the welding shop, that they would have to join EPA.21 She handed each one an application card. Haynes refused to accept the card. Leadman Webb tore the card and threw it in a trash can but Foreman Pickard, made him retrieve it from the can and return it to Sherertz.22 Neither Haynes nor Webb joined EPA and were discharged under circumstances related hereafter. Conclusions respecting EPA In summary, the undersigned finds that the EPA was formed as a result of aid and assistance given it by respondent's supervisory officials, leadmen, and strategically placed employees at a time when the threat of genuine organ- ization by the Union had become apparent. Thereafter, and down to the time of the hearing, this support and interference continued despite the existence of a certified exclusive representative of the employees. During this entire period, respondent at no time made known to its employees any desire to re- main ° impartial in the dispute between the Union and EPA. More particularly, it has been found that despite proclamations of neutrality to supervisors, respondent was in fact openly hostile to the Union and opposed to organization of its employees. This'is seen, to repeat only a few illustra- tions, in the activities of Manning engaging in surveillance through other em- ployees and his success in obtaining names of those who attended union meet- ings Union members were warned to "lay low" and others were told to remain "neutral" and not to join the Union. Hostility which thus found expression in anti-union statements was given further expression in the aid furnished EPA by officials, supervisors, and leadmen. Hereunder, may be considered the attitude of President Rogers in response to the pleas of employees to grant them an even chance in organizing the Union; the fact that Davis assisted in distribution of anti-union ballots before the first election and was iilstru- anental in assisting a group that met to discuss the formation of a Negro local. in the yard. Finally, but by no means the only other type of activity upon which the undersigned relies in reaching this ultimate conclusion, there is the clear and convincing proof of the complete abandon with which supervisors and leadmen engaged in anti-union and pro-EPA activity. The efforts of Galladay were particularly outstanding. He delivered anti-union ballots and enlisted the aid of, his leadmen to solicit for the EPA and ascertain the union affilia- tion of the welding shop employees. Leadmen Blancher, Webb, and Haynes as- sisted him in this work. Leadman Sampson's solicitation was notorious, his action on Pier S, which bore Foreman Nixon's approval, being an example of the freedom with which he functioned In the treatment of this portion of the report the undersigned has not re- ferred specifically to later portions of the report wherein there has been found other violations of the Act at or about the same time that respondent was throwing its support to the establishment of the EPA. This cannot be over- looked in the total picture of respondent's opposition to the Union. Galladay's activities have been referred to, but further and more detailed discussion of particular activities that he engaged in with respect to the, lay-off of the welders in October 1944, points up respondent's opposition to the Union. The same is also true with reference to respondent's action in discharging Cook, Pearce, and particularly Haynes, who, as is found hereafter, was discharged 21 Counsel for the Board took the position that Sherertz was a supervisor . The under- signed is not convinced of the validity of this assertion and no finding is made to this effect 22 Finding based on undenied testimony of Haynes and Webb. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he refused to join and support respondent's activity in behalf of EPA, as well as the discriminatory lay-off of seven welders all as found hereafter. The undersigned has considered respondent's claimed policy of neutrality as reflected in the oral instructions issued by Lawrence and Jakeman. Yet except for these instructions, repeated on various occasions to supervisors, there is no evidence that respondent attempted to make its policy known to its employees. Nor did respondent at any time during the course of the organ- izing drive do anything to impress upon its employees, as distinguished from its supervisors, that supervisors eligible for membership in the competing unions and engaging in anti-union activity were by such conduct violating respondent's policy. In the somewhat similar situation, the Board held in Matter of Tennessee Copper Company: Supervisory employees, although eligible for membership in competing labor organizations, are forbidden by the Act, in their capacity as the employer's agents, to interfere, in the selection of employee bargaining repre- sentatives, yet there need be no conflict by reason of their dual status It is' perfectly consistent for supervisory employees to belong to labor organiza- tions and yet be prohibited from conduct permitted non-supervi^,ut y employees 23 Eligibility for membership in a labor organization, or membership therein, does not permit employees for whose conduct an employer is otherwise chargeable to interfere with, restrain, or coerce non-supervisory employees in their union activities.' Therefore, where instructions of neutrality are openly violated, the asserted defense, of neutrality must fall." In reaching the above conclusions, the undersigned has considered the testimony of all the witnesses concerning pro-union activity and solicitation Sherertz was asked by Leadman Currier to join the Union, and thereafter solicited for the Union in the welding shop; Sampson' joined the Union in March 1945; other union members wore buttons while at work; Haynes, the Board witness, "guessed" there was as much union activity as EPA ; Chester L. Shaffer, chairman of the foremen's committee, reprimanded Leadman Blankenship for wearing a union button and Roland T. Ikenberry was. seen soliciting for the Union As respects the pro-union activity of Currier and the others this can be said. The Union, as well as EPA, solicited on company time and sought to obtain members among the employees. But a careful review of the entire record reveals clearly and convincingly that the Union's organizing efforts on company time and property were sporadic in nature. At no time did the Union's inside-the-yard activities approach in any degree the intensity and thoroughness of EPA solicita- tion by Sampson, Galladay, Tolson. and others. Nor is there any evidence of company'ofticials acting for the Union, comparable to the conduct of Davis and Nixon. The extent of the pressure exerted by respondent through officials and supervisors is best revealed in the testimony of Gardner, heretofore mentioned, concerning his interview with- Rogers, when lie appealed to him to remove the EPA "hatchet over our heads." In its answer EPA asserted that certain supervisors, notably Galladay, warned and threatened employees because of their EPA membership, and that Galladay sought the discharge of certain female welders because of EPA membership. The 22 Matter of Tennessee Copper Company, 9 N. L. R. B., 117, 119. 24N. L. R. B. v Pacific Gas & Electric Co., 118 F (2d) 780 (C C A 9) ; N L R B v. Christian Board of Publication, 113 F. (2d) 678 (C. C. A. 8). 15 Swift & Co v. N. L. R B , 106 F. (2d) 87 (C C. A. 10). NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 413 evidence on this issue is far from convincing and in any event nowhere approaches in degree of intensity the anti-union conduct of supervisors as, found herein. Sherertz testified that after she joined EPA, Galladay reprimanded her and ordered her to surrender the buttons and applications in her possession. Galladay denied reprimanding Sherertzp or that he requested her to turn over the union buttons. He admitted that union buttons were left on his desk in the welding shop. As to attempted discriminatory discharge of employees by reason of EPA membership, Galladay acknowledged that he recommended the discharge of certain female welders some of whom may have been EPA members But his recommendation according.to his testimony was based on the fact that "their actions was detrimental to the morale . . . of the welding department" because they loafed and refused to stay on the job. His recommendations were not followed by the personnel department. The evidence hearing on this issue is vague and indefinite, lacking sufficient clarity and decisiveness to warrant any finding that employees were by reason of their EPA membership coerced, intimi- dated, or threatened with discharge. Galladay's denials are credited,'and based thereon and on the entire record no finding is made herein that respondent's supervisors coerced, warned, or intimated employees or threatened discharge because of EPA membership Shortly before the Board election on August 25. 1944, the respondent ad- dressed its employees in the bulletin and letter heretofore mentioned. They followed a coercive course of conduct on the part of the respondent's super- visors and were published in an atmosphere of hostility to the Union. The bullletin, the first document issued, suggested the formation of an independent union, a choice-not open to the employees on the ballot, at, a time when the respondent knew of efforts to organize the EPA In the letter, Rogers closed with the statement that regardless of the outcome of the election, the respondent would continue to deal with its employees as it has in the past, "directly, openly and fairly." This, coupled with the statement that previous expressions of preference were not binding in the forthcoming vote, viewed in the context of expressed hostility to the Union, was a subtle suggestion to vote against the Union, and consequently aided the EPA. The letter then proceeded to sow in the employees' minds the seeds of suspicion and dissension by questioning the union's leadership, sincerity, motives, and good faith Under the circumstances of this case, the undersigned believes that the bulletin and letter contained at least an intimation that by voting for the Union, the employees would risk incurring the respondent's displeasure. Upon consideration of the respondent's entire course of conduct, the undersigned finds that the respondent's bulletin and letter preceding the election were not privileged as free speech but con- stituted interference, restraint, and coercion, in violation of Section 8 (1) of the Act. - Upon the basis of the foregoing facts, the undersigned finds that the respondent interfered with the formation and administration of, and contributed support to, the EPA, and that the respondent has been and is interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act The undersigned finds further that by interfering with the foi ination and ad- ministration of the EPA; by lending support and assistance to it; by interrogat- ing employees concerning their membership in the Union; by warning them to refrain from joining the Union; and by obtaining the names of its employees who attended union meetings and joined the Union, respondent has interfered 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act's The complaint alleged that the respondent contributed financial support to the EPA. The evidence does not support that allegation and the undersigned makes no finding to that effect. B. The discharges The complaint alleges the discharge of and refusal to reinstate Joseph E. Pearce, Byras V. Cook, R. T. Ikenberry, J. T. Bowden, and Harry C. Thomas;' all because they joined and assisted the Union or engaged in concerted activities. 1. Byras V. Cook Cook was hired at the respondent's Brambleton yard in April 1942 and dis- charged on May 12, 1945. He was a shipfitter and worked continuously in the plate and boiler shop Cook was promoted to first class shipfitter in March 1943, and he carried that rating until his termination. Cook joined the Union on May 5, 1944, one of the first to become a member, and commenced activities as a volunteer organizer. He was elected shop steward and financial secretary of Local 27 of the Union. Cook admitted talking about the Union while on the job and Nixon his foreman acknowledged that he saw Cook wear a "C. I. O. shop steward's badge." In June 1944, Leadmaii Sampson told Cook that foreman Nixon knew of his union activities and warned him to be careful. Reference has been made in Section III A (2) above to an incident sometime between the first and run-off elections wherein Nixon accused Cook of soliciting on the job, and roaming the shops, and thereafter President Rogers cautioned Cook about his conduct. In addition, Cook served on the Union's contract negotiating committee which met with the respondent in Feb- ruary and March, 1945. In November 1944, Cook's father died and he asked Foieman Nixon for an advance in wages in order to return home. Nixon referred Cook to President Rogers. On November 28, Cook saw Rogers in the latter's office. What occurred there is not in conflict, except as regards one particular of the total conversa- tion. Cook related to Rogers what it was that lie wanted and Rogers telephoned the company paymaster to prepafe his check for wages' Rogers then told Cook to sit down, that there were some things he wanted to talk over with Cook. According to Cook's uudenied testimony, Rogers told Cook that he considered him "one of the ring leaders . . . in the C I 0." and asked what Cook could hope to obtain by reason of membership Cook mentioned wages, improvement in working conditions including a grievance procedure, and improved safety measures. In the same conversation, according to Cook's further testimony, Rogers stated "that as long as lie had a dollar that he would never sign a contract with the C. I. 0., that no union was going to suggest to him how to run his business." This latter point is the only portion of Cook's 26 In making the above findings, the undersigned has not credited the testimony of Sampson that sometime between the first election and the run-off election, at, a management meeting, Jakeman told the supervisors that the respondent "did not want the C. I. O. In the shop." That may have been Sampson's deduction from the tenor of Jakeman's remarks but no finding is made that such was said. Nor does the undersigned credit Sampson's vague testimony that at about the same time Foreman Manning gave him EPA application cards and membership buttons. Similarly rejected is the testimony of the Board witness Edward Saunders to the effect that on July 9, 1944, he saw employee Robert Stapp dump a paper bag of EPA buttons on Manning's desk. The testimony of Manning and Stapp to the contrary is persuasive. 27 The name of Thomas was added by amendment at the conclusion of the Board' s case. 41 Rogers also instructed the paymaster to prepare Cook's bonus check. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 415 testimony that Rogers denied. The undersigned credits Cook's testimony and finds that the interview with Rogers took place substantially as testified to by Cook. On May 4, 1945, Nixon caught Cook off his job, engaged in conversation with James Carrington. When Cook was questioned he told Nixon that Jim Dunlow his riveter had stated he would drive no more rivets that morning. Nixon and Cook then went to the barge where Dunlow, in the presence of Nixon, denied making the remarks attributed to him by Cook. Cook then stated that Tommy Newburn, another employee, had reported these remarks of Dunlow to him. But Newburn when questioned likewise denied bearing Dunlow make aiAT such remarks. Thereupon, Nixon warned Cook to either "stay on the job and work" or get is time 2' At or about this same time, Cook's position as a union leader in the yard was called forcibly to the respondent's attention. At a union meeting on May 4, 1945, Cook had been elected chairman of a grievance committee to consult with respondent concerning show-up pay for employees not previously notified that work was not available. On May 9, 1945, Cook was sent home with a group of em- ployees for lack of work. Cook thereupon went to the office of William R. Copeland, assistant personnel director, for the'Brambleton yard and explained that he wanted an interview for the Union's committee to discuss the matter. Copeland referred Cook to Jakeman. Cook explained to Jakeman that he wanted io discuss the grievance of the employees over show-up pa\ 30 According to his uncontradicted and credible testimony, which the undersigned credits, the follow- ing then occurred: . Mr Jakenian asked "Now, what is this, a committee of workers?" I said "Yes, it is a committee of workers that work here in the yard where I am chairman of the committee" He said, "Is this a union committee?" I says, "I wouldn't say it was, but I think it was elected on the floor; it would be a union committee." So Mr. Jakenian says, "Well, I am not going to meet with no committee, I will only handle individual grievances," and I said to Mr. Jakeman, "Well, I have an individual grievance, I am being sent home this morning without showup pay," and he says "How many other people have been sent home?" I says, "There are ten sent home," and he said if he knew that there was work in the yard-that lie knew there was work in the yard and that no one would be sent home The respondent in its answer asserts that Cook was discharged for cause. His separation report gave the following as the reason for his discharge: "Con- tinuous complaining from leading men relative to your work, leaving the job and being very undependable." The incident of-May 4, involving the riveter Dunlow has already been mentioned. The other, referred to by Nixon in support of his broadside testimony that he had received "an awful lot of complaints" about Cook, occurred on May 11,.1945 On that day, according to Nixon, assistant foreman Gray informed him that Alexander, Cook's leadman, had complained that Cook had been off his job some 2 hours and that later in the day Alexander had discovered Cook "playing with other employees in the yard." Nixon did riot investigate the matter, relying on the reports of Gray and Alexander. Neither Alexander nor Gray were called as witnesses to corroborate Nixon. The under- 6 se Cook and Nixon were the only witnesses to testify about this incident. The above account is based largely on Nixon's testimony which on the whole was the clearer exposi- tion of the incident. 30 The Union Naas the certified representative for more than 6 montlrs at this time. 416 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD signed does not credit,Nixon's testimon} that Cook was "playing in the yard and is unable to accept the testimony that he was away from his assigned task, for as great a period as 2 hours In any event, Nixon told Alexander to permit Cook to finish out the day and to have him report to Nixon the next morning. In the morning, Cook started work and was then sent to Nixon Nixon told Cook: "I have got to give you your time this morning." Cook asked what he had now done and Nixon replied, "You will find out on your discharge." Cook continued to seek the reasons for his discharge and Nixon answered that he was being paid to carry out his "orders." Nixon took Cook to the personnel office where Copeland gave Cook his termination notice which cited the reasons for discharge quoted above This was the first knowledge Cook had of the- alleged cause of his discharge. Cook told Copeland he was being "railroaded . for union activities." Nonetheless Cook had to sign the termination notice in order to be paid." ` There can be no question concerning the respondent's knowledge of Cook's union membership, interest, and activities But in seeking to determine whether Cook's discharge was-justified on the basis on which respondent put it, the ques- tion presents itself whether respondent took action against Cook which it did not use against others who devoted as much it not more time to EPA activities. This record is replete with instances of employee, including supervisory, par- ticipation in EPA activities without the slightest interference from respondent. Galladay, Sampson, Tolson, and others had tree rein apparently, to come and go as they pleased while they spent their employer's time in establishing"the EPA. Tolson and Sampson left their jobs to visit Pier S. with Nixon's tacit if not express understanding that the purpose was to solicit The time lost in this operation caused Nixon little or no concern. As late as March 1945, Sherertz freely sought to get all the welding leadmen to join EPA in the presence of their foreman None of these cited instances merited the respondent's slightest rebuke. But when Cook allegedly absented himself from his job on two ocea- + sions, Nixon who could countenance absences on the part of Sampson and Tolson, decided to have Cook discharged. Moreover, the circumstances surrounding Cook's discharge, particularly Nixon's failure or. refusal to give the reasons therefor, to Cook indicates to the undersigned that Nixon was not too sure of the grounds on which the discharge was based. The timing of the discharge, too, following as it did Cook's presentation of grievances and Jakenian's refusal to treat with Cook as a union representative is not without significance. The undersigned is of the opinion that the respondent was not willing to treat with Cook, an influential employee, and that it came finally to the conclusion to dis- charge him. It is the undersigned's considered judgment, that, although Cook's absences may have presented cause for discharge, the underll ing motive and real reason for discharge of Cook is found in his extensive union activities. The two inci- dents of allegedly reprehensible conduct cited by respondent in justification for the discharge are not persuasive, considered in the light of failure to treat EPA adherents similarly for like absences and undependability The undersigned finds that Cook was discharged because of his union inem- bership, more particularly his activities of long standumu in behalf' of the Union, his attempt to present grievances, and his influence among other employees, and 31 The findings in this paragraph are based on Cook's testimony which does not differ from Nixon's except that the latter testified that lie told Cook initially that lie was being discharged because lie would not stay on the job Copeland testified that lie prepared the separation notice on the basis of information given him by Nixon that morning at the time of the discharge. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 41-7 that by thus discharging Cook, the respondent discriminated in regard to his hire and tenure of employment, and thereby discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Joseph E Pearce - The Board alleges the discriminatory discharge of Pearce for r the reason that he joined or assisted the Union or engaged in concerted activities ; and "for the additional reason that he gave testimony under the Act in a proceeding before the Board conducted In the Matter of Norfolk Shipbuilding Drydock Corpo- 2 ation, Case No. 5-R-1627, at Norfolk, Va , on July 21, 1944." Pearce was employed by the respondent in January 1941, in the outside machine shop, Brambleton yard. He was discharged on July 27, 1944. During the term of his employment Pearce rose to first class machinist and at times -acted as "snapper." 3: Peace was one of the first to become a member of the Union, joining on May 6, 1944. Previous thereto, Pearce had been a member of the International Association of Machinists, but when he sought to solicit members for that organization he "found so many C. I 0." members that he "went ahead to organizing the C. I. 0." Pearce became an active solicitor for the Union He selected a few key em- ployees to help him and he made a complete list of, the employees, entering their naives in a book Pearce carried on some of his activity on company time. In late May or early June 1944, Stang, a leadman, cautioned Pearce: "Watch your step . I was in the office yesterday, and they asked me if I had seen J on passing out any cards of any kind." ' On June 4, 1944, Foreman Manning called a meeting of the outside machine shop employees attended by the entire day shift. He asked the employees to turn in their insurance policies to be exchanged for a new policy ; spoke about un- satisfactory conditions in the wash rooms, and stated that an effort would be made to corrdct these conditions. Then according to Pearce's testimony, which the undersigned credits, Manning said : There are some union activities going on here, we know who is responsible for that, he can be handled, he will be handled, we will bide our time. There is a man going around with a book telling you how many names he has on it, he is a damn liar and that gate is wide open for anybody that works in this shop that isn't satisfied with the way things are going on here . . . And a damn overtime hog, lie will have to hobo away from here' After this meeting, Pearce did no further snapping except possibly for a day or two Likewise after this meeting he worked only 45 minutes overtime, whereas before he had received his regular share of overtime assignments. Upon this occasion, Pearce had been told to work overtime and Leadman Sonni instructed him to be prepared to work all night. Later, Sonni informed Pearce that Man- 42 The term "snapper" or "snapping" is used to denote the status of acting leadman without, however, the pay for that classification. An employee may be used as a "snapper" for a single job , reverting on completion of the job to his other classification. 93 This latter finding is based upon Pearce's uncontradicted testimony. t' Manning admitted that at the meeting he spoke about insurance policies , wash basins and lockers He denied making any statements about union activities or any, reference direct or implied about Pearce . Pearce's account is corroborated by Woolvin , a credible witness, who testified that Manning "also brought up that there was a certain fellow in there going around taking names and drawing a list for the C. I . 0 , and he had names in the book , and that man , they didn 't need such as that in the yard, and he would be run out the damn gate." 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping would not permit him to use Pearce and the work was assigned to another employee. Pearce testified on behalf of the Union at the representation hearing con- ducted by the Board on July 21, 1944. Superintendent Gearhart was present at the hearing and Manning gave Pearce permission to attend. The events culminating in his discharge followed quickly thereafter. On Monday, July 24, 1944, Pearce telephoned Manning and asked for the day oft because of the illness of one of his children. Permission was granted. About noon Pearce went to the shop and told Manning that lie had b^en elected to attend a C. I. O. meeting in Lynchburg, Va., and asked permission to be absent on Tuesday and Wednes- day, the 25th and 26th of July. According to Pearce's further testimony, Manning told him, he could not grant him the time off but that Gearhart, superin- tendent of the yard would have to approve this request. Pearce then sought without success to see Gearhart during the afternoon. Finally at about 8 o'clock that evening he telephoned Gearhart at the latter's home and told Gearhart of his request to Manning Gearhart replied that Manning was in full charge of his shop, but according to Pearce, that Gearhart saw no reason why Manning could 'not let him go Pearce admitted that neither Manning nor Gearhart gave him permission to be absent Manning's testimony is not essentially different except in one particular He denied that Pearce stated that he wanted to attend a C. I. 0 meeting.36 Other than that, he testified that Pearce asked to be released for two or three days to visit Lynchburg; that he could not grant permission; that Pearce then stated he would go anyway in which event Manning told him to see Gearhart. The undersigned was more favorably impressed with Pearce than with Manning as a trustworthy witness, and finds that Pearce told Manning that he wanted to attend a "C. I. 0." meeting. Gearhart testified that Pearce requested leave without stating the purpose for the request and he was told to take the matter up with his foreman 36 Pearce replied that Manning had already denied his request and had referred him to Gearhart Gearhart stated that in any event Manning would have to approve the matter. Pearce left'that night for Lynchburg, returning on Thursday morning, July 27,1944. ' When he repot ted to the plant, Manning told him that he was through, the respondent having taken the position that Pearce had quit his job voluntarily. This Pearce vehemently denied, asserting rather that he was "being laid off for C. I. O. activities." Moreover, Pearce explained to Manning the efforts he had- made to obtain Gearhart's permission to go to Lynchburg.. Pearce was given a discharge report to sign on which the reason for termination was "quit voluntarily" and stating that he was hot eligible for rehire. Pearce refused to sign this report. Thus, the question is presented whether Pearce was discharged because he absented himself for two days without the respondent's express approval, or because of his extensive union activities. In deciding this question, considera- tion must.be given to respondent's justification for the discharge and its method of dealing with absentee cases. He likewise denied any knowledge of Pearce' s union activities This is incredible in view of Pearce 's extensive union interests and his appearance in behalf of the Union at the representation hearing of which Manning was aware. 36 Pearce testified that he told Gearhart of his conversation with Manning . It seems most unlikely that therein he did not at least mention a trip to Lynchburg , even assuming he did not mention a union meeting. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 419 In a statement filed with the Board's Regional Office on May 29, 1945, and introduced in evidence as a Board exhibit, respondent wrote respecting Pearce: Voluntarily left his employment at a time when he was much needed and against the warning of his foreman not to leave. He was not satisfactory in his work as a first-class mechanic, although he was finally given a chance .it this classification, and was then laid off. As to the asserted defense that Pearce's work was unsatisfactory, this does not merit extensive consideration, in the opinion of the undersigned. There is no evidence that prior to his discharge, he was ever warned or disciplined because of poor or inferior work. He was rated a first-class machinist and at times acted as snapper. Wdolvin who had worked under Pearce stated his work "was very good, satisfactory * * x a first-class machinist" and that he worked well with his men. Manning, who should have known, was not familiar with Pearce's work and no one else testified about it. This reason was not assigned as grounds for the discharge on July 27, and hence the undersigned can find no support in this record that prior to that -date Pearce's work warranted discharge for that reaso_l. A consideration of the other reason that Pearce "quit voluntarily" leads the undersigned to the same conclusion. Gearhart, when questioned concerning the respondent's policy with respect to absenteeism without leave, gave testimony so confusing as to be worthless, in trying to decide what that policy was, unless it was a special determination as each case arose. For example, he first testified : By Mr Gorni3riic : Q Now, there are instances where men- have been away on, say, AWOL, away from the plant without leave? A. A good many. _ Q. Now, those men when they return, if it is their first infraction they are not terminated or dismissed, are they? A. It would depend on the circumstances. Q That is right, and the company has some sort of a fixed policy with reference to AWOL? A No, sir. Q. Isn't there some sort of policy as to the number of days that a person has to be AWOL? A During the war a man was dropped if he was out so many days. Q. Well, how many days was that? A. I believe it was seven; I am not positive. On further questioning Gearhart said "circumstances would govern" the re- spondent's action respecting an employee who having finished work on a Mon- day, absented himself Tuesday and Wednesday, and reported in to work on Thursday. He then testified that an employee who left after being refused per- mission would be discharged. Along the same line Manning testified that all employee absent without leave over four days "had to go to the employment board and be reinstated." In case of an absence of three days if there was "sufficient reason to justify it, he would be put back to work." It is true that Pearce left for Lynchburg without respondent's permission. Yet the respondent's policy or lack of policy in handling cases of this sort is apparent from the testimony quoted above and from the reason, "quit voluntarily," ascribed to Pearce on the discharge slip. Pearce had indicated no desire to relin- quish his employment. In fact he sought to continue it by returning, ready for work. Manning's abhorrence of the Union is clear from a consideration of his 712344-47-vol. 70-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request to Woolvin to engage in surveillance of a union meeting as found above,, and of Pearce in particular from a consideration of his remarks made at his shop meeting, and of Clemons' uncontradicted testimony that Manning sought from him information about Pearce's union activities Moreover, Stang, a leadman, had warned Pearce to watch his step. The undersigned is of the opinion that Pearce's absence presented Manning with the opportunity he had been seeking- to rid his department of an active union adherent. Utilizing this opportunity he sought to justify his determination to discharge Pearce by calling it a volun- tary quitting. The respondent's lack of policy respecting absences left Manning free to reach any determination in Pearce's case. The undersigned concludes .and finds on the basis of the above facts and the entire record in this case that Pearce was discharged by reason of his union membership and activity in viola- tion of Section 8 (3) of the Act. Alleged violation of Section 8 (4) of the Act Gearhart was present in Chambers at the representation-hearing on July 21, 1944, in which Pearce testified. His discharge followed six days later. This fact may have entered into the respondent's calculations when it decided to discharge Pearce. But it pinned his separation on his unexcused absence. The Board made no attempt to prove that Pearce's discharge followed by reason of the fact that he testified at the hearing but cited the instance rather in support of Pearce's total union activity, Thus, there is no persuasive showing that, absent his trip to Lynchburg under the circumstances related above, the respondent would have come to the same conclusion and taken the same action because Pearce had given testimony under the Act. The undersigned concludes and finds that the respondent did not discharge Pearce because he gave testimony under the Act and it will be recommended hereafter that this allegation of the complaint be dis- missed. 3. Kenneth R. Haynes The complaint alleged that respondent discharged Haynes on March 30, 1945, and thereafter refused to reinstate him "because he had objected to and protested against the unlawful acts of Respondent," more particularly its alleged anti- union conduct and its domination and interference with the formation of EPA and because Haynes "refused to cooperate with or withheld full cooperation In the Respondent's scheme of offering assistance and support to the Association [the EPA]." Haynes was employed by the respondent as a welder in the Brambleton yard in April 1942 and quit in January 1943. In April 1943, he was rehired at the Berkley yard and some six or nine months later he was promoted to leadnian He was terminated on January 15, 1945, at which time he was leadman and in charge of the night shift. Haynes was rehired a week later on January 23, 1945, but returned to work as leadman on the day shift.", His employment was finally terminated on March 30, 1945. ° The following reasons for the discharge were contained on Haynes' termination notice: "Work unsatisfactory, was ac- complishing about one-sixth of the work that should have been done according to the management, said that the soldiers that are fighting on the other side are'damn suckers The Board's theory respecting Haynes' discharge is that Haynes refused to accede to or condone the respondent's ailti-union conduct and in addition re- - 37 This was after lie had consulted Jakeman and was told that a mistake' had been made and that lie would be reinstated. 38 In the statement filed with the Board 's Regional Director, May 29, 1945, the respond- ent stated Haynes was "discharged on March 30, 1945, especially for unsatisfactory Mork, and his lack of cooperation with other men in the shop " NORFOLK SHIPBUILDING Sc DRYDOCK CORPORATION 421 fused to cooperate or support it in its efforts to establish EPA. There is no evidence that at any time during the summer and fall of 1944, Haynes refused or even suggested his unwillingness to cooperate in the formation of EPA. Nor is there any evidence that at any time during this period, Haynes by word or conduct raised the slightest opposition to any of the respondent's other acts which indicated its opposition to the Union. The first indication, however, of a positive change in Haynes' loyalty to EPA came in March 1945. Up to that time lie had joined neither EPA nor the Union. On or about March 15, 1945, Haynes had a dispute with employee Zoby, because of his solicitation of a group of men working under Haynes to join EPA. As heretofore related in Section III A (5), Smith, the EPA president, then told Haynes that this was permissible activity. About the same time, Haynes refused to join EPA under the following circumstances: One morning in Galladay's office, Sherertz passed out application cards to all the employees then present, including timekeepers and leadmen. Sherertz told Leadlnan Webb that he would have to sign a card or find himself "out of a job." Sherertz asked Haynes if he wanted a card and he replied that he "didn't want to belong to any union." Shortly after these two incidents, but before Haynes' discharge, the EPA pub- lished and distributed a leaflet wherein appeared this paragraph: Workers, do not be fooled by lies and propaganda put out by such people as "Cook" "Haynes" and "others" who do not know what they are talking about nor the law s that they have become involved in. No doubt they are not smart enough to realize what they are mixed up in. There is no-evidence of the so-called "lies and propaganda put out by * * * Haynes," except as might be, interred from the above two incidents involving Zoby, Smith, and Sherertz. Haynes' discharge followed shortly thereafter on March 30. He came to work that morning and about 10 o'clock, Foreman Pickard '0 told him that his work was unsatisfactory and that he would have to discharge him. The respondent sought to justify the discharge of Haynes because of unsatis- factory work. Both Haynes and Webb denied that when Haynes signed the termination slip quoted above it contained the concluding reference to soldiers as "danan suckers." Webb testified that when he saw and read the slip it was only to the effect that Haynes' work was unsatisfactory.40 Hoffman, assistant personnel director yf Berkley, insisted that the language was on the slip when tendered Haynes, and Haynes admitted that he (lid remark to Pickard that "I lie guys that was going into the Army was stickers" Pickard placed the time of this continent as about March 1, 1945. More important, however, in trying to evaluate the respondent's reasons for Haynes' discharge is the testimony of Pickard He testified that Haynes loafed, drank a lot," came to work unfit for his duties, and that lie was put on the day shift because lie could not be trusted to work alone on the night shift. Pickard's testimony is, in the undersigned's opinion, greatly exaggerated and not convincing Pickard did not come to the Berkley yard until January 1945 His knowledge of Haynes' skill must therefore have been based on Haynes' employment at lirambleton from April 1942 to January 1943, when Haynes was rated no higher than second class welder It was during this period that lie observed Haynes "loaf" and again in 1944 when Pickard observed Hanes' work on the AE-12 at •19 Pickard had succeeded Galladay as foreman of the welding shop. 40 Webb is the employee who tore up the EPA card and threw it in a trash can and was made to pick it up by his foreman Pickard. 11 Haynes denied that he ever drank on the job 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Berkley yard. Yet, despite this, he was willing to rehire Haynes on January 23, 1945 Pickard also testified that Haynes did not get along well with his men. There is no evidence that he was a greater problem than other leadmen in this respect. Lawrence investigated Haynes' productive capacity and testified that in his opinion Haynes took too much time to complete a specific task, using more rivets than required to satisfactorily complete the job. Lawrence spoke to Pickard about this and Haynes was warned about the quality of his work Haynes did not deny that Lawrence had referred to lowered production of his crew The undersigned is not convinced that Haynes was as inefficient as was sought to be established by Pickard's test-mony. There is no evidence that Haynes drank on the job or due to the after effects of alcohol was so unfit' for work that he was disciplined or sent home. Haynes testified that lie was regular-in his attendance at work and never absent except with permission. There is no evi- dence that during the entire tenure of his service as leadinan on the night shift his work was such as to merit discipline or even warning for alleged deficiencies. In fact when Haynes was rehired on January 23, 1945, after his lay-off Jakernan admitted that a mistake had been made, that he wanted Pickard to rehire him, and referred to a good report on Haynes received from Welding Engineering, his interim employer 42 More important in analyzing the true reasons for Haynes' dismissal is the fact that all of his alleged deficiencies piled up subsequent to fns atte.npt to 'top EPA solicitation and his refusal to become,a member of the organization In this connection the statement of Sherertz to Leadman Webb, in the presence of Haynes and Foreman Pickard, is especially significant. Sherertz told Webb, "You will either have to sign this card or you will find yourself out of a job." Webb was discharged on or about March 30, 1945. The EPA bulletin referred to above, published after Haynes' altercation with Zoby and Smith and about a week before his discharge, foreshadowed impending disaster for Haynes The undersigned is of the opinion that when Haynes, an otherwise satisfactory workman, publicly indicated his lack of interest in EPA, exhibited an intent to stop its solicitation, capped by his refusal to join the organization, the respondent then decided to terminate his.services by discharge. The reasons advanced to justify the discharge, as indicated above, are to the undersigned generally uncon- vincing. This, plus the threat of discharge for refusal to join EI'A, leads in the undersigned's opinion to the reasonable inference that Haynes was 'in fact dis- charged because lie sought to interfere with EPA solicitation and-refused to hecome a member of that organization. The discriminatory discharge of a supervisory employee for failure or refusal to aid his employer by joining and assisting an organization set up by the employer to defeat,the employees' rights to self-organization, itself discourages union membership among the employees. It is clear and dramatic proof that those who hinder or attempt to thwart the existence of the respondent's favored organization do so at great risk to their economic livelihood , It is an indirect but nonetheless forceful presentation of the respondent's wish-join the Union at your peril; obstruct or hinder the EPA at similar peril,-but join the EPA. Under these circumstances the undersigned finds that by discharging Haynes, on March 30, 1945, the respondent discriminated in regard to his hire and tenure of employment, and has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed them in Section 7 of the Act." 42 However, Pickard sought to explain his rehiring of Haynes on that date because Haynes came to him "with a, sad story" 43 See Matter of Reliance Manufacturing Company, 60 N. L R. B. 94G , and Matter of Vaal Manufacturing Company, 61 N. L. R. B. 181. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 423 4. Jesse T. Bowden Bowden was discharged October 4, 1944, from the welding department, Berkley yard. A lad of 18, at the time of the hearing, he was first employed by the respondent in June 1943. He worked for about 9 months and was fired for sleeping on the job. Six or seven months later he was rehired and was again fired, this time for gambling in the yard. He was again hired for the third time, and it was this latter employment which terminated in the discharge, herein complained of. The respondent's justification for this discharge was gambling. Bowden joined the Union in May 1944 and wore a union button while at work. According to Bowden's undenied testimony, Flinchum, a leadman, once told him in August 1944, prior to the election, "that if the C. I. O. didn't come in there, that the ones that belonged to the C. I. O. had to leave." Bowden acknowledged that Flinchum may have been "joking." On the afternoon of October 3, 1944, Flinchum told Bowden and his fire watch, Eddie Reed, Jr., to wait for him in the mess hall. While there, Bowden picked up a deck of cards and started to play double solitaire. He was observed by the Chief Engineer 44 of a boat then in the yard, who told a' Coast Guardsman to report Bowden to the office. Bowden explained to the Engineer why he was in the mess hall, whereupon the engineer instructed another Coast Guardsman not to "prefer charges" against Bowden. Bowden then went to lunch, reported to Flinchum and finished out the working day. The next morning, Bowden went to the Union's hall to pick up some leaflets which lie later distributed outside the plant gate. Voting in the run-off election was to take place that afternoon. While he was distributing leaflets, Jakeman and Hoffman, assistant personnel officer, stood about 15 feet away, within the yard. That afternoon, on reporting to work, one of the plant guards told Bowden to report to Jakernan. On doing so, Jakeman told Bowden, he was _hscharged for "gambling on the job." Bowden denied that he had been gambling and refused to accept his dismissal pay'but, after consultation with union officials, Bowden accepted his dismissal and a challenged ballot which he thereafter voted. Eddie Reed, Bowden's fire watch, was likewise discharged at the same time. Reed wore a union button and his father, also an employee, wore an organizer's badge.46 The facts found above are all based on 1-iowden's testimony, who was the only one to testify concerning the discharge. The respondent's penalty for loafing, first offense, is to impose as punishment a 3-day lay-off, a second offense carries 6 days' lay-off and a third offense merits discharge There is no published penalty for gambling per se, but in Bowden's case, he had been previously discharged for gambling. The question narrows itself as to whether it may be concluded reasonably from all the facts that Bowden was discriminatorily discharged because Jakeman stood near him while he was passing out leaflets on the morning of the election. There is no evidence that Jakeman saw Bowden but this may be assumed. Likewise there is no evidence that the second Coast Guardsman countermanded the Chief Engineer's report of gambling. Jakeman, however, placed the discharge squarely on that issue indicating that the Chief Engineer's report did reach him. Moreover, Bowden's past record, making due allowance for his age, was not such as to inspire confidence, including as it did previous discharges for sleeping and gambling. Some 8 or 9 months,later, Bowden was, on application to Jakeman, "Not an employee of the respondent. 11 The Board does not question the discharge of Eddie Reed, Jr. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rehired at the same job classification as previously held, a position he filled 2 weeks and then quit. Thus on the basis of all facts pertaining to Bowden's case and on the entire record herein, the undersigned is not convinced that the Board has made out a clear and convincing case of discriminatory discharge or that it may be inferred reasonably from the facts found above. It will be recommended therefore that this portion of the complaint be dismissed. 5. Rolland T. Ikenberry 9a Ikenberry was employed by the respondent on March 3 , 1943 at the Bramble- ton yard as a trainee welder. Three weeks later he was transferred to the Berkley welding shop. At the time of his lay-off on August 3, 1944, he was rated a first class welder . Ikenberry joined the Union in May or June 1944; was an active membership solicitor thereafter and wore his union button He testified on behalf of the Union in its representation hearing on July 21, 1944. On Thursday, August 3 , 1944, according to Ikenberry, he was at work in the hold of the AE-12 and came up into the engine room for a smoke . He lit a cigarette and started to talk about the Union to a co-worker when he was tapped on the shoulder by John L Roper, II , assistant superintendent of the yard- Roper asked for Ikenberry's badge'number and departed . That noon Ikenberry mentioned the incident to his foreman , Galladay who replied the "wrong man caught you smoking." Shortly thereafter, Galladay came down to where Iken- berry was at work and told him he had orders to lay him off to Tuesday morning, a matter of 4y days. Ikenberry asked to be allowed to finish out the day but Galladay answered that his orders were to lay him off. Roper's version of the incident is as follows : He testified that he came upoix Ikenberry smoking and in the center of a group of employees in the engine room of the AE-12. According to Roper, Ikenberry was signing up the workers in some labor organization, which one he did not know Roper spoke to Ikenberry and then reported him to Galladay for smoking and being off the job, and left it to. Galladay to fix the penalty. Galladay testified that Roper reported that Iken- berry "had set up shop," sitting on a box and using another for a desk, with a row of employees lined up single file in front of the box and that when Roper tapped Ikenberry on the shoulder lie told him "to get in the back of the line." - Galladay imposed the penalty after his conversation with Roper . WhVn asked why he imposed the lay -off, Galladay answered , "Well, I don't just recall." When asked again whether Roper's report of "soliciting" entered into a-determination of the penalty , Galladay replied, That would be a factor that Mr. Roper mentioned this, and also mentioned the fact that he resented organizing on company time. There was a strict rule ;-gainst smoking on the AE-12, and according to Roper the customary discipline for employees caught in situations similar to Iken- berry's was a 3- to 5-day penalty . Although Ikenberry denied soliciting in the fashion described by Galladay , for the reason, he testified , that all the employees belonged to the Union except the one lie was talking to he did feel that a 3- day penalty was fair for smoking and being off the job. It was the extra day and a half which he refused to accept and by reason of which he asked for his "release." The narrow question then is whether Galladay's penalty was discriminatory and how much weight can be attributed to his testimony that Roper's alleged report of "soliciting" was a factor that entered into Galladay 's fixation of 46 Incorrectly spelled Inkenberry in the complaint. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 425, penalty. Roper stated he reported Ikenberry for smoking "and being away from the job." He could not recall reporting anything else to Galladay. Galladay, testifying in restrospect about his mental operations on a day 18 months previous, is not convincing in this instance, particularly in view of his other testimony that he treated all employees "impartially" and that he never recommended discharge of an employee because of union affiliation. Roper did not discipline Ikenberry. He left the matter to Galladay Although Galladay was at the time interested in espousing the cause of EPA, the undersigned is unable to conclude, other than on the basis of Galladay's efforts to reconstruct his mental processes, that the added penalty was in fact imposed because of Ikenberry's union affiliation or activities It will be recommended. hereafter that this portion of the complaint, per- taining to Ikenberry be dismissed. 6. Harry C. Thomas 44 Thomas was employed in July 1943, as a welder in the Berkley yard. At the time of his termination in June 1944 he was a first class welder. Thomas joined the Union in May 1944, was active as an organizer, signing up about 280 mem- bers, according to his testimony and wore an organizer's button. He was present as a union representative at a conference with management 98 at some time prior to his termination. Galladay testified that he saw Thomas solicit for the Union while on the job. Thomas was absent due to illness for about a week in June 1944. His wife attempted to report his absence to Galladay but was unable to reach him and left a telephone message explaining the absence with the office of Lawrence, yard superintendent. After his illness Thomas returned and worked 2 days. On the third day after his return he found his,time card pulled and was told by the timekeeper to report to Galladay. Galladay asked Thomas why he had been absent and told him that lie would have to present a doctor's certificate to continue work. When Thomas explained that he had not been under doctor's care and hence could not present such certificate, Galladay directed him to see Jakeman. Thomas reported the incident to Jakeman He testified as follows concerning this conversation with Jakeman : By Mr. SEAWFLL : Q. Tell me just as well as you remember word for word just what Mr. Jakeman told you. A. He told me Mr. Galladay was my foreman. Q. Yes. A. And that Mr. Galladay would have to lay me off, it was between me and Mr. Galladay how he would do, and I went to l\ir. Galladay if it was all right with Mr. Galladay, he said what was right, if I could come back to work. Q. Now, as a matter of fact, Mr. Thomas, didn't Mr. Jakeman tell you to go back to Galladay and you would be put back to work? A. Yes, he did. Q. Well, after that didn't Mr. Jakeman ask you to remain and not to quit work? A. No. He testified further that thereafter Galladay told him that he could do nothing for him because Jakeman had issued orders for his release. The next day, Thomas The complaint was amended at the hearing to include the name of Thomas. 48 This conference is not otherwise identified in the record. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented Galladay with a statement of illness written by his wife but Galladay refused to accept it and stated that lie would have to have a doctor's certificate. Jakeman testified as follows concerning Thomas' case: . . . Thomas came into my office and talked to me shortly before he quit his job: He had been absent for a few' days and on returning to work Mr. Galladay, so Thomas claimed, had requested a doctor's certificate from him. Thomas told me that he could not provide a certificate, that he had no doctor, and said that his wife had called the plant in regard to his absence. I made an investigation of the case and ordered Thomas back to work and so instructed Galladay to put Thomas back to work . Thomas returned to work and worked every day from that time until'he voluntarily quit ten or twelve days later. Galladay when asked if Thomas' "C. I. O. activities" played any part in his termination answered, "I would say that his affiliation was the controlling factor in his termination." It was because of this testimony of Galladay 's that the Board moved to'amend the complaint to include Thomas' name . The motion was granted to permit a careful review of all the testimony applicable to the alleged discrimination. Galladay's testimony is no more persuasive in this instance concerning his mental processes, than in the case of Ikenberry , particularly in view of his other testimony, that he at no time sought to discharge people because of their union affiliation . Moreover, Thomas' testimony leaves uncertain the exact time he left the respondent's employ. There is no clear evidence that following the presenta- tion of the certificate signed by his wife and which Galladay refused to accept, he actually terminated his employment. Jakeman's testimony is that Thomas continued to work thereafter for 10 or 12 days and then quit, voluntarily. The issue is not clear and in the absence of more compelling proof to sustain the Board's position , the undersigned is unable to find that Thomas was discrimina- torily discharged by reason of his union membership. It will be recommended , therefore , that the complaint respecting the allegedly discriminatory discharge of Thomas be dismissed. C. The October 1944 lay-off-Berkley Yard The complaint alleges that on or about October 13, 1944, the respondent selected for lay-off from its welding shop, Berkley Yard, the employees named below 40 and thereafter refused to reinstate them for the reason that each of them joined dr assisted the Union or engaged in concerted activities. The respondent in its answer denied the discriminatory selection of the men for lay-off and asserted that it was "by reason of the necessity for reducing the force." In the- statement filed with the Regional Director on May 29, 1945, and before referred to, counsel for respondent wrote that lay-off was normal under the circumstances due to completion of work on the AE-12; that the lay- off totaled 102 in nine departments ; and that the men, were selected for' lay-off by their foremen on the basis of seniority, skill, and ability and that some of ,the men were rehired. The conversion of the ammunition escort, AE-12, was completed October 10, 1944. About 2 weeks before completion, Superintendent Lawrence called a meet- ing of all supervisory employees of the Berkley yard. He told them of the current rumor that there would be no work on completion of the AE-12. In 99 Charles L. Blancher, H. E. Finch, Mark T. Gardner , William Flaugher , E. C. Oliver, G. C. Pickard, William Smith, M. N. Laden, C. L. Haynes, Charles King, R. S Starcher, H. L. Currier, and E H. Ramey. The names of Smith, Haynes and King were struck from the complaint on the second day of the hearing. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 427 order to allay continued unrest, Lawrence described a survey that he had made of the possibilities of continued employment. He stated that based upon his understanding of future operations there would be a lay-off but that "the fellows who were up, on their production would not have anything to worry about, and that the fellows who'did not produce would, of course, be the first men to go." The lay-offs followed thereafter over a period of about 2 weeks and /vas general throughout the yard. In all 102 men were cut from the working: force. Lawrence's account of his remarks is corroborated by Galladay, who testi- fied that Lawrence stated continued employment depended on individual ability and that the respondent "was expecting more work." In preparing for a lay-off, the respondent's policy was to follow the recommenda- tions of its foremen, who relied on their knowledge of individuals, their records,' and advice of leadmen. Prior to this lay-off, Galladhy's recommendations had_ usually been followed. In preparation for' the October lay-off, Galladay was asked by Jakeman_to submit his recommendations. There was introduced in evidence a written list of 26 names, in Galladay's handwriting. He testified that he handed a copy of this list to Jakeman. Galladay's list was based on the efficiency and ability of the individual after consultation with leadmen and reference to work records. Leadman Webb was one of those consulted by Galladay in making up his suggestions. Jakeman admitted that he asked Galladay to prepare a slate of suggested names but he denied that Galladay had ever presented him a copy of the list introduced in evidence. He testified, on the contrary, that Galladay came to his office and personally discussed with him the names to be approved. According to Jakeman, he wrote down the names of those Galladay wanted to lay off and both men agreed on an exact list which was the one followed in the lay-off. He testified further that when Galladay left his office full agreement had been reached on the persons to be laid off, in which the union affiliation of the indi- viduals played no part, and that this was the list actually followed in the lay- off. Of the 10 welders herein complained of, none appear on Galladay's list introduced in evidence. The undersigned finds on the basis of all the evidence- pertaining to this lay-off, particularly that of Galladay, corroborated by Pickard, Currier, and Ramey as hereinafter related, that Galladay did submit a list, as he testified, to Jakeman. Attention is now directed to the individual records of the laid off welders in view of the finding made above that Lawrence told supervisors that "fellows who did not produce" would be the first laid off and the fact that Galladay's recommendations were based upon efficiency and ability. Charles L. Blancher 60 was a leadman who at Galladay's request helped to promote the EPA. GalLiday rated him a good supervisor with at least 2 years" experience Galladay did not recommend his lay-off. He sought reinstatement after the lay-off and was refused" Blancher was identified as a member of the Union and a steady worker by Leadman Webb. H. E. Finch was an electric welder,62 better than average in efficiency and a member of the Union. Leadman Haynes told Galladay that Finch was a union member and that it would be a "good idea" to lay him off because "his attend- ance record was bad." Mark T. Gardner was hired May 8, 1944 At the time of the lay-off he was rated a first class welder. Although the respondent sought to show that Gardner 60 Blancher did not testify. 51 Hoffman , assistant personnel manager, testified that Blancher was drunk on this occasion Pickard, who accompanied Blancher, testified that neither he nor Blancher was drunk on this occasion . The undersigned credits Pickard's testimony. 52 He did not testify. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been reprimanded "for being away from" his job there is no evidence to that effect and his own undenied testimony that he was complimented by Galla- day and leadmen on his work, is credited. Leadman Haynes described Gardner as a "good welder." Gardner joined the Union in June 1944, and was extremely active in its behalf Haynes informed Galladay that Gardner was a member of the Union. It was Gardner, it may be recalled, who in July protested in person to President Rogers concerning EPA activity. William •Flaugher was employed in April 1944 and at the time of the lay-off was a first class welder Galladay told Flaughei• that he was one of the best welders in the shop. Although a union member„ Flaugher was asked by Galla- day to oppose the Union. - Flaugher was irregular in attendance at work being absent about 40 days between July 7 and September 30, 1944. However, this was with Galladay's permission, and he had never been reprimanded by any super- visor for his absences. E. C. Oliver did not testify and there'is no record of his employment history Galladay and Webb identified Oliver as a good workman Leadnian Haynes testified that he was an expert pipe welder. In July or August 1944, Haynes told Galladay that Oliver was a member of the Union. G C. Packard was employed on May 3, 1944, and was a first class welder at the time of his lay-off He was once caught smoking on the AE-12 by Lawrence. No disciplinary action followed. There is no record of complaints about his work and Galladay and Webb rated him it good workman. Pickard joined the Union in June 1944. About August 1, when his leadman, Webb, asked him to join EPA, Pickard disclosed his existing membership in the Union. Galladay also asked Pickard if he was ii union member and Pickard acknowledged this to be the fact. About 3 weeks after his lay-off, Pickard met Galladay, who told him that he regretted the lay-off, because he was a good man and his name had not been submitted. M. N. Laden did not testify and there is no evidence of his employment history Galladay identified him as a member of the Union. He worked under Haynes on the night shift and Haynes testified generally that the men laid off in his department were, in his opinion, the better men R. S. Starcher was not called as a witness Apparently Starchier was on vacation at the time of the lay-off and on his return was notified of his dismissal Haynes, who was Srarelier's supervisor, described him as a "first class welder" and testified that he informed Galladay of 'his membership in the Union. Starcher was "always kidding" Haynes about joining the Union, and Webb describe(] him as an "active member." H. L. Currier commenced employment in February 1944 as a first class welder. Thereafter lie was promoted to leadman, which grade he held at the time of lay- off. Currier joined the Union in May or June 1944 and his presence at a union meeting was reported to Manning by Woolvin at about this time. It was Currier who in July 1944, interrupted Tolson's efforts to solicit members of his crew. Reference has been made to this incident and to the fact that Currier 'asked President Rogers if this conduct was to be tolerated, receiving no response from Rogers in reply to his inquiry. Just before the first Board election on August 25, 1944, Galladay called Currier to his office and directed hint to survey all of the men in his crew indicating whether they were members of the Union or EPA. Currier told Galladay this was, none of Currier's business and if Galladay wanted the information lie would have to get it himself. On Monday, October 16, following the lay-off, Currier conversed with Jakeman and asked the reason for his lay-off. Jakeman replied that the names had been submitted through shop channels, a mistake-had been made in his case, and that Lawrence would be consulted about his lay-off. He was rehired a week later. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 429 In it later conversation with Galladay, Currier was told that his name had not been on the list of recommended lay-offs E. H. Ramey was hired in May 1944. His discharge report stated that he was discharged for "Lack of Work " Ramey was a first class welder and was never criticized for poor work or reprimanded for violation of a rule. Webb characterized Ramey as "first class and a good man." Ramey joined the Union in May or June 1944 and wore his union button. Tolson asked Rainey to join the EPA but was told' that Rainey would remain a union member. On the day of the lay-off, Mrs. Dixon, the timekeeper, told Ramey that his name was not on the lay-off list submitted to the personnel office. Some weeks after the lay- off, Ramey was told by Leadi nan F linchum that work was available and welders were needed. Ramey applied to Hoffman for reinstatement but was refused employment. There is no other evidence concerning the work records of the welders, other than as indicated above. The respondent called no witnesses to testify concern- ing the production records of the welders nor were their personnel jackets intro- duced in evidence. It might be assumed that a lay-off occasioned by lack of work would, in accordance with the respondent's policy, be based upon seniority, efficiency, and ability. There is no evidence, other than a bald assertion to that effect, that such policy was followed, and in the case of the night shift Haynes testified that it was not followed Of the 10 welders now being considered, Currier and Blancher were leadmen and the rest first class welders It is significant that on Galladay's list, a copy of which is in evidence, there are 26 names, including 6 first-class welders, 10 second-class welders, 2 third-class welders, 7 welder's helpers and a trainee helper. Thus if the lay-off were based on merit, Galladay's list, again in the absence of countervailing reasons, seems the nearest approach to a merit lay-off, containing as it does men and women seemingly less well qualified than the first-class welders and leadmen actually laid off. Fourteen on this list were women, second-class welders or lower. Ac- cording to Galladay, only one or two named on his list were laid off. Documentary evidence of the respondent shows a decline in employment follow- ing completion of the AE-12 For example, these figures give a total of 127 employees in the Berkley welding shop, on September 30, 1944, Ind 85 on October 7, 1945.' The year 1944 closed with 55 welders as compared to 75 on October 7. Similaaly, the trend was downward in 1945 until June when it rose, dropping thereafter iii August, and the year 1945 finishing with 24 welders and a total of only 27 employees in the entire shop. Lawrence, Jakeman, and Galladay all testified that following completion of AE-12, work fell off substantially. Cuirier could not recall any new welders being hired thereafter. Thus these figures and this testimony, generally, support respondent's condition of an economic lay-off. In support of the Board's theory of a selective lay-off of the 10 welders there is other testimony which warrants close scrutiny. Galladay testified that some- time prior to the first election in August 1944, Jakeman asked him to submit as list of the welding shop employees identifying each as to Union or EPA mem- bership. In accordance with the request, Galladay asked his leadmen to aster= twin the information. There is a good deal of corroborative and undenied tes- timony that this was done by leadmen such as Blancher, Webb, and Haynes. Currier, it will be recalled, refused to do this for Galladay. Galladay testified further that with the information supplied to him he prepared a master list 61 The records show a decline of 27 welders in the welding shop between September 30 and October 14, 1944 Galladay's list contained 26 names. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was presented to Jakeman . He then described in some detail how Jakeman entered this information in an employee "ledger," noting after each employee's name by appropriate mark, his union affiliation . Of about 125 employees in the welding shop, 35 to 40 were identified as members of the Union . In addition, Galladay testified that he believed it his duty to know, and in fact did know, the union affiliation of each of his employees. With respect to this testimony, Jakeman denied ever asking for this informa- tion; that lie ever discussed it with Galladay; or that lie entered it in a "ledger." Of Galladay's inclination for this sort of activity there is no doubt in the under- signed's opinion. He was an indefatigable seeker of union information as well as active protagonist for the EPA cause. Leadmen followed his leadership in these efforts. In view of the respondent's open and unequivocal support of EPA, there is strong support for the likelihood that Galladay did submit such a list. Finally, the undersigned was more favorably impressed with Galladay as a witness than with Jakeman's testimony on this point , and believes and finds that Galladay did in fact submit a list identifying members of the Union to Jakeman. As to the method used in determining those who would be laid off , there is strong support for the:Board 's position that it was discriminatory . The respond- ent failed to produce any documentary proof that it did in fact follow a policy of seniority, efficiency , and ability and there is no evidence to support its con- tention that the men laid off were the least productive . It is clear that the 10 welders were good workers classified as leadmen or first-class mechanics. Gal- laday's October list followed the respondent 's asserted policy in determining lay-offs, for it included second and third class welders as well as a trainee. But, as far as this record discloses , only-one or two of these workers were laid off. ` It was found above that Galladay submitted his information about the 35 to 40 adherents of the Union in August 1944. Of the 10 welders herein considered, Galladay identified with certainty seven as being on his August list-Gardner, Flaugher, Oliver, Pickard, Laden; Starcher, and Ramey. Thus the undersigned is convinced that as to these 7, Jakeman had positive knowledge of their interest in the Union. Between August and October*13, 1944, when the lay-off occurred, there is no clear showing that Jakeman acquired knowledge of the union affiliation of Currier, Blancher, and Finch. In determining lay-offs, it was the respondent's policy to follow the recom- mendations of its foremen who in turn relied in part upon advice of leadmen. For this reason Galladay had submitted his October lay-off recommendations. But, as found above, this latter list , based on efficiency and ability, was not used. Nor was it shown that Jakeman acquired any knowledge of the qualifica- tions of the welders in any other fashion. Thus, on the basis of knowledge of union membership or interest , coupled with a demonstrated anti-union attitude and hostility together with the respond- ent's failure in whole or in part to substantiate its position that, in the lay-off, it followed a policy based on seniority and efficiency, there exists the setting for discrimination in selecting employees for lay off. Further, there is the fact, found above, that Galladay's October lay-off list, which followed the respondent's policy, was not used in determining which employees were to be laid off. For these reasons, therefore , knowledge of union membership , hostility to the Union, respondent's failure to substantiate its claimed lay-off policy, and failure to use Galladay 's October lay-off list, the undersigned concludes and finds that the 7 welders named above, i. e., Gardner , Flaugher, Oliver, Pickard, Laden, Starcher , and Ramey were in fact discriminatorily selected for lay-off by reason of their membership or interest in the Union. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 431 The undersigned finds that by the lay-off of Gardner, Flaugher, Oliver, Pickard, Laden, Starcher, and Rainey, on October 13, 1944, the respondent discriminated in regard to their hire and tenure of employment, and has interfered with, re- strained, and coerced its employees in the exercise of their rights guaranteed them in Section 7 of the Act. It will be recommended hereafter, that those allegations of the complaint alleging a discriminatory lay-off and a discriminatory refusal to reinstate Currier, 1-Blancher, and Finch, be dismissed. D The strike of October 15, 1945 1. The strike The complaint alleges that on or about October 15, 1945, a group of pushers and laborers employed in the labor department, Brambleton yard, ceased work con- certedly and went on strike ; that on the same day the respondent discharged the pushers and thereafter refused to reinstate said employees; that on or about October 15, the respondent offered conditionally to reinstate the laborers but not the pushers and did thereafter discharge and refuse to reinstate the laborers because,of their refusal to return to work under unlawful conditions imposed by respondent and because of their participation in the strike and finally that the Strike was thus prolonged by the respondent's unfair labor practices. On Monday morning, October 15, 1945, the laborers and pushers reported for work. They clocked in and the pushers went to their foreman' s office for instruc- tions before commencing the day's work. They then learned for the first time that their foreman, Hough, had been replaced by L. C. Rawls. For reasons not disclosed in this record some of the pushers refused to work under Rawls. Some of the laborers then decided that if the pushers would not work, neither would they In the interim, the crowd of employees had increased as time approached for the morning whistle to blow. James Carrington, a head pusher, told the gathering of employees to stand in a designated spot if they were going to work, and that those who did not intend to work to stand in another. About 65-70 employees gathered about Waymond Baker, a pusher, who up to that time had .u•ted as spokesman for the non-working group. Rawls told the men if they were not going to work "just to get the hell out of the gate." lit the meantime Joseph A. Gearhart, superintendent of the yard, and Copeland, personnel manager, had learned of the situation and hurried to the scene. Jake- man, likewise had been notified and came over from the Berkley yard The non- working laborers and pushers obeying Rawls' order started to leave the yard but were stopped at the gate and told to send a committee to talk to Jakeman. Thereupon Baker, Joseph Drake, William L Jackson, and George M. Phillips, all pushers, returned and talked to Jakeman Jakeman was asked if Hough would be ieinstared as foreman. When it was clear that Rawls would not be replaced by Hough, the spokesmen said the men would not return to work and they left the office. - Immediately preceding this interview Jakeman had told Rawls to get the men back to work. The men started to drift away from the plant gate. Rawls testified : By Mr. WPASt.iut, counsel for the Board : - Q. And do you recall whether or not on the morning when the men walked out whether or not you told Jumbo [Carrington] to go on down the street and try to get the laborers to come on back to work? A. I don't remember ever telling Jumbo that ; I don't know that I did. Q. You deny it, do you? 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I think that I told Jumbo; he asked me what was the matter-I think he wasn't around there at this time-and he came around I think afterwards and asked me what was the trouble, and I told him that they had all walked out, and he said he would go out and talk to them. The laborers and pushers had walked away from the yard some distance when Carrington overtook the workers in a car. What happened is best described in the words of the witness Baker : By Mr. WEASLER: Q. . . . Then what happened? A. He says, "Hold, boys, wait, wait, wait a minute." So we all stopped. He says, "Listen"- Q. Who said "Listen?" A. Jumbo. Q. All right. What else did he say? A. He says, "They want all you laborers back to work." Then I spoke myself, I say, "What about we lead men?" He said, "They don't want you all lead men back because they got something up their sleeve for you lead men " I says, "O' K., I will go." That is all I had to say. Q. And then what happened? A. I went on home" 2. Efforts at reinntatenient Some of the strikers following their sidewalk meeting with Carrington, con- tinued on their way to the Union's office. There a committee sought Cook and asked his help in the reinstatement of the strikers. Cook testified that he telephoned the plant and spoke to someone who identified himself as Gearhart and that when Cook asked if some agreement could not be reached to reinstate the strikers, the person identified as Gearhart replied, "To hell with them - guys." Gearhart denied talking to Cook over the telephone about reinstate- ment. Cook was convinced that he spoke to Gearhart because when he asked for "Mr. Gearhart" a voice answered, "Yes." When asked if he recognized his voice, Cook answered, "I think so." There is no certain evidence that the person Cook spoke to was, in fact, Gearhart and no such finding is made. But regardless of who Cook did speak to, he must have been convinced by the reply lie received that other efforts besides his own would be necessary to obtain reinstatement of the strikers, tor lie immediately got in touch ilitlr the -Uniteil States Conciliation Service, requesting the assignment of a conciliator to help settle the strike and procure reinstatment. On or about October 16, Conciliator Maxey of the Conciliation Service called on Jakeman. What followed is best described in Jakeman's own words: Mr. Maxey asked if we would put the pushers back to work. I told 'him that we would not, that the jobs had been filled. He said, "How about laborers?" At that time I, told Mr. Maxey that it would be necessary for us to know who the laborers were. That walk-out occurred on Monday morning and I didn't know who the individuals were that were involved, and that we were perfectly willing to put these men on if we had a place 64 Baker is corroborated by other uncontradicted testimony including that of Alfred Cherry, a laborer, who testified "He [Carrington ] drove up and nays, `wait,' and he got out of the car, and he says, `Men,' he said , `the laborers could go back to work, but the pushers, they don 't want them back, they had something up their sleeve for them * * •' There was somebody . I think his name is Heniy Barker (apparently laborer, Henry Barkley) . who told them if they don't want the pushers to go back the laborers , they won't go back to-work." NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 433 for them and if we were [read "know"] who they are I told Mr. Maxey that we would be delighted to work with him in any way to solve the problem. I According to Jakeman's further testimony, between the hour of the walk-out on October 15 and his later interview with Maxey, laborers had been hired, "because these others had quit their jobs and had not made application for them, and they were not coining back, and we need laborers. . . ."" 3. Further efforts to secure reinstatement On or about October 18, .39 of'the strikers returned to the yard to draw their pay. While there, Alfred Cherry made a list of the men who had returned for their pay. Copeland testified that on this occasion he asked "several of them if they wanted to go back to work" but that none responded to his inquiry. The undersigned cannot credit this testimony, inconsistent as it is with the strikers' efforts at reinstatement, previously made and those made thereafter. _ On or about November 7, Cook accompanied by Russell Watson, a national representative of the Union. went to see .lakeman, seeking reinstatement of the pushers. Jakenian, however, questioned the authority of the Union to represent the pushers in view of the fact that pushers had been excluded from the unit certified by the Board. Jakeman also stated that the jobs of the pushers had been filled. At about the same time, a mixed group of pushers and laborers saw Copeland seeking reinstatement. They were told their jobs had been tilled. Another group of 10 or 12 laborers,called on Copeland and asked for their jobs about November 13. They were told that there was no need for laborers that day. Shortly after, Cook walked in and asked Copeland for job applica- tion forms to be filled out by the workers Cook was told that the laborers' jobs had been filled, they would not be taken back and the job application forms would not be given out. 4. Rehiring to fill vacancies Rawls, labor foreman, testified that the jobs of the pushers, left vacant by the strike were filled from within by replacements. There is no evidence that new pushers were hired. Some laborers were hired to replace the laborers who went on strike. But as to those Rawls did not know the number or when they were hired, and the respondent introduced no recoi ds to show how, when, or where the jobs of any of the striking employees were filled. 5. Conclusions When the employees went on strike, they remained employees of the respond-, eat, within the ,meaning of Section 2 (3) of the Act, for their work had ceased as a consequence of a current labor dispute. Thus the strikers were entitled to the protection the Act affords against discriminatory practices.6s It is clear from the facts above found that the respondent offered to take back the striking laborers but not the striking pushers, thus requiring the acceptance of an illegal condition as a prerequisite to the reinstatement of the laborers. For when the respondent denied employment to those who led and instigated the walk-out, while illegally conditioning employment to other employees because of 65 At noon on October 15, Jackson and a group of pushers and laborers returned to the yard seeking reinstatement . They were unable to speak to Copeland and apparently left the yard without commitment from the respondent 66 N. L. R. B. v Mackay Radio & Telegraph Co., 304 U. S.. 333, 345 , 346; Firth Carpet Co. v. N. L. R. B., 129 F. ( 2d) 633 (C C A. 2). 434, DECISIONS OF NATIONAL LABOR RELATIONS BOARD the concerted activities of all the employees, the laborers could return to work only 'by condoning respondents unlawful denial of employment to their fellow strikers." The undersigned is of the opinion and finds that Carrington's illegal .offer of employment to the laborers, coupled with Rawls' previous order to all strikers to get the "hell out" of the yard plus subsequent refusal to reinstate, was effective at the moment of the illegal offer as a discharge of the pushers and laborers. Moreover, it was a discharge for engaging in an.activity protected by the Act. The undersigned Concludes and finds further that by conditioning employment ,of the laborers upon their acceptance of an illegal offer, the respondent discrim- inatorily refused reinstatement to all the strikers For an unqualified application for reinstatement on October 15, 1945, and thereafter, would have been futile in .view of Carrington's illegal condition, a condition which the respondent had no right to attach, and was equivalent to an absolute refusal to reinstate all the strikers. That the respondent at no time ever seriously considered reinstating the strike] s is clear, the undersigned believes, from what occurred on each of the successive ,occasions when reinstatement was sought. First, when Maxey sought reinstate- ment on or about October 16 for the laborers Jakeman replied that he "would be delighted" to work with Maxey "to solve the problem" but none were recalled. When, on October 18, some 39 laborers called to get their pay checks, none were offered employment. When Cook sought reinstatement for the laborers about November 13, Copeland told Cook that the jobs had been filled and that they would not be taken back. The undersigned is convinced that the respondent at no time was willing to reinstate the strikers and sought by every delay possible to avoid doing so. The fact that these employees went on strike motivated the respondent in its subse- quent refusal to reinstate them. The respondent's conduct after October 15, considered in relation to the illegal offer of that date, proves that having failed ,to break the strike by use of an illegal offer of employment, it determined there- after to rehire none Upon the entire record, the undersigned concludes and finds that on October 15, 1945, by offering the striking laborers reinstatement upon ,their acceptance of an illegal condition, the respondent discharged and refused .to reinstate the laborers, and by Carrington's pronouncement that the respondent had "something up their sleeve" concerning the pushers the respondent discharged and refused to reinstate the pushers ; and that thereafter the respondent refused to reinstate both pushers and laborers named in Appendix A, because of their union and concerted activities. The undersigned finds further that the Union unconditionally applied for their return to work on or about October 16, 1945, and thereafter, the respondent discriminated in regard to the hire and tenure of employment of said employees, theneby discouraging membership in the Union, and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. E The 7efusal to bargain collectively 1. The appropriate unit The complaint alleges that a unit composed of the respondent's production and maintenance employees at its Branibletoii and Berkley lards, including transpor= tation department employees, storeroom employees, launch captains, fire watch employees, operators, trainees, and canteen employees, but excluding office em- 51 N. L R B. V. Link-Belt Co, 311 U. S 584. 601, N. L. R. B. V. American Mfg Co., 106 F (2d) 61, 68 ( C. C. A. 2). - NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 435 ployees, technical employees, draftsmen, planners, inspectors, material clerks; clerical employees, timekeepers, plant protection employees, dock masters, assist- ant dock masters, instructors, canteen manager, quartermen, leadmen (leading- men), gang pushers, and all other supervisory employees, would insure to the respondent's employees their full right to collective bargaining and otherwise effectuate the policies of the Act. In a prior representation proceeding, the Board, do August 8, 1944, issued its decision," in which it found the above would constitute an appropriate unit. The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of a majority in the appropriate unit The complaint alleges that on October 4, 1944, a majority of the employees .n the unit described above, designated or selected the Union as their repre- sentative'for the purposes of collective bargaining with the respondent, such designation having been made by secret ballot in an election conducted by the Board. On October 20, 1944, the Board certified the Union as the collective bargaining representative of all the employees in the appropriate unit. The respondent's answer admits the appropriateness of the unit found by the Board and the certification of the Union by the Board. However, it de- nied that the Union was chosen by a majority of all of the respondent's em- ployees in the appropriate unit. It did not deny that a majority of employees voting choae the Union and other than as indicated it did not question the results of the election. The undersigned finds that on October 4, 1944, and at all times thereafter, the Union was, and now is, the duly designated representative of the ma- jority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all times was, and now is, the repre- sentative of all the respondent's employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment, or other conditions of employment. 3. The refusal to bargain (a) Chronology of events The facts hereinafter related and found are based in large measure upon the testimony of James C. Simone, regional director of the Union, and the voluminous documents identified by Simone and admitted in evidence. The respondent's evidence on this subject was limited to the testimony of Lawrence that he met with union representatives and in seriousness discussed a pro- posed contract. Thus, there is no major issue of credibility or conflict con- cerning Simone's testimony and the issue becomes solely the legal consequences that flow from the course of action now set forth. On October 20, 1944, the Board certified the "Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Indus- trial Organizations" as the exclusive representative for employees in the unit found in subsection (1) above "for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment." Upon notice of certification, Simone telephoned President Rogers requesting that a date be fixed to begin negotiations. Rogers told Simone that Matter of Norfolk Shipbuilding & Drydock Corpwatfon, 57 N. L. R B. 1168, 1171. 712344-47-vol 70-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent had named two representatives, but they were on vacation at the time and were expected back about November 1, 1944. About November 1, Simone called Rogers to fix the date for a meeting. At this time Rogers told Simone that the respondent could not agree on a set date for a meeting because Rogers had "heard," EPA would file a petition in the United States Circuit Court of Appeals for the Fourth Circuit, to review the Board's certification of the Union and until this issue was settled no conferences would be held. Rogers then referred Simone to respondent's counsel, Leon T. Seawell. Simone testified that at the time he felt he had been "sort of left holding the bag" by these maneuvers About November 3, therefore, Simone called in Maxey, the conciliator heretofore referred to, and presented the facts to him. Maxey reported to Simone that after discussing the situation with Seawell, the respondent took the position that negotiations with the Union would not com- mence in view of the pendency of the EPA petition 69 On November 28, 1944,- Simone wrote Rogers a letter requesting a date for meeting, enclosing a copy of the Union's proposed agreement, and demanding a favorable reply by December 1, in lieu of which the Union would be "compelled to turn this proposed Agreement over to the National War Labor Board [here- inafter referred to as War Labor Board], for their certification on the basis of conditions of employment." On December 1, Rogers replied referring Simone to Seawell and on December 4, Seawell wrote Simone in part as follows: There has been served upon the company a copy of the petition for review of the decision of the National Labor Relations Board filed with the United States Circuit Court of Appeals for the Fourth Circuit on behalf of the Employees Protective Association of Norfolk, a corporation. This petition places the matter of the certification of C. I 0 as the bargaining agent in controversy before the Circuit Court of Appeals. Our position, therefore, is that until this is decided we are not at liberty to deal with you on any pro- posed agreement * * Just as soon as a decision is rendered we shall then communicate with you further. Simone again called in Maxey who was brought up to date on the facts as they then stood. Maxey reported back to Simone that he had sought but had been refused an interview with Rogers who had referred him instead to Seawell who, in turn, stated that pending the EPA appeal in the Fourth Circuit, the respondent would not start negotiations. On receiving this report, Simone asked Maxey to have the Union's proposed agreement, a copy of which had been sent the respondent on November 28, "certified by the War Labor Board." On De- cember 13, the U. S. Conciliation Service notified Simone that the "controversy" between the respondent acid Union had been' certified to the War Labor Board on December 12, and that the principal issue involveB was: "Refusal of Company to recognize Union as bargaining agent for its imployees." Thereafter, on Jan- uary 5, 1945, the War Labor Board notified all parties that a public hearing would be held before its Shipbuilding Commission on January 25, at Washington, D C, on the issue certified by the Conciliation Service to the War Labor Board, i. e, "Refusal of Company to recognize Union as bargaining agent for its em- ployees." The hearing was thereafter postponed to February 26, 1945. In the meantime on January 29, the Fourth Circuit Court of Appeals had dis- missed the EPA petition to review the Board certification of the Union. Then the Shipbuilding Commission notified the Union that respondent, in view of the 5a The EPA petition was filed in the United States Circuit Court of Appeals, Fourth Circuit, on November 11, 1944. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 437 dismissal of the EPA petition, would commence negotiations with the Union. Nonetheless, the Union insisted, in view of the facts to date, that the War Labor Board issue a directive order binding the responent to deal with the Union.' In view of the Union's insistence on a directive order, the Shipbuilding Com- mission of the War Labor Board in a directive order issued February 9, 1945, decreed : (1) That any agreement between the parties shall be reduced to writing and incorporated in a collective agreement relative to wages and other terms and conditions of employment. (2) That the parties will render a report to the Shipbuilding Commission thirty days from this date setting forth the agreed upon and unresolved issues including a statement with respect to their respective position on the unresolved items. (3) That the unresolved issues will be presented to the Shipbuilding Com- mission at a public hearing on March 15, 1945. (4) Continuance of the hearing until March 15, 1945 is without prejudice to the losition of either party with respect to the effective date of any wage adjustments on other terms and conditions of employment which may here- after be established by directives of the Commission. Upon receipt of the above directive order, Simone's office attempted without success to agree upon a meeting date with Seawell. Thereupon Simone wrote Seawell accusing respondent of stalling proceedings and warning that he "was going to stop fooling around with them and certify the whole thing to the War Labor Board" Seawell acknowledged the letter, but his reply was not intro- duced in evidence and Simone could not recall its contents. In any event, Simone telephoned Seawell's office on February 14 and 15; on February 16, Seawell referred Simone to Lawrence and only after speaking to Lawrence was a date, February 23, for the first meeting, agreed upon. Thus, on February 23, 1945, 4 months after Board certification-and after 4 months of backing and filing before the Conciliation Service and the War Labor Board, first in Norfolk, next in Washington, then back in Norfolk, the parties for the first time met around the table in a collective bargaining conference. But even at the outset of the conference, Lawrence questioned the legality of the credentials of Simone and of a national representative. After Simone overcame this obstacle, Lawrence questioned the status of three representatives of the local union and negotiations proceeded only when Simone agreed to furnish Lawrence a letter giving the status of the three representatives of the local union. At this time the only matter before the parties was the Union's proposed agree- ment submitted on November 28, 1944. At the outset the respondent objected to the Union's preamble set forth in full below." Then Simone asked that "an in- terim agreement regarding grievances and seniority" be reached pending negotia- tions of the full contract. This the respondent refused to discuss. It was asked for counterproposals but replied that it had none, it was "open minded." The meeting was brief and recessed to February 27, at which time the respondent was to bring in its counter-offer. On February 26, Lawrence requested a continuance to March 6 in order to prepare its counter-offer. Simone agreed to this, requesting that he receive a copy of the respondent's counter-offer by March 3, 1945 60 "Norfolk Shipbuilding & Dry Dock Company, it corporation, for itself, its successors and assigns, party of the first part, hereinafter referred to as the 'Company,' and the Industrial Union of Marine & Shipbuilding Workers of America, and its Local No 27, unincorporated associations affiliated with the Congress of Industrial Organizations, acting on behalf of themselves, of their present and future-members, and of other employees, as hereafter defined, in the Company's yards at Norfolk and Berkley, parties of the second part, hereinafter referred to as the 'Union,' agree as follows ." 438 DECISIONS ` OF NATIONAL LABOR RELATIONS BOARD On March 6, the parties again met, at which time the respondent presented its. proposed agreement. The union representatives studied it briefly and con- cluded that the parties "were pretty far apart." Hence they again asked the respondent to consider an interim grievance procedure and seniority clause. This the respondent refused and insisted that both proposed agreements be considered clause l y clause starting with'the preamble. This the parties started to do, immediately running into disagreement over the preamble, recognition clause, and union security, the first three clauses of the proposed agreements. The preamble of the respondent's proposed agreement is set forth in full below 83 The Union's recognition clause stated simply -that: "The company recognizes the Union as the exclusive collective bargaining agent" for all of the employees in the appropriate unit with the limitations set forth in the Board's certification. The respondent's proposed clause however read : "The company recognizes the directive of the National Labor Relations Board certifying the aforementioned Union as the exclusive collective bargaining agent in matters relative to wages, hours of work and other . working conditions as specified in this agree- ment . . . ' The Union proposed a maintenance of membership clause ins lieu of its original demand for a closed shop but no agreement was reached on this point either. The respondent was willing to accept, on directive of the War Labor Board, "in view of the present emergency," a form of maintenance of membership clause. No final agreement was reached that clay on any portion of the proposed agreement. The directive order of the Shipbuilding Commission of the War Labor Board of February 9, 1945, quoted above, directed the parties to bring any unresolved issues to it for a public hearing on March 15. It was clear at this point that the War Labor Board would be presented an entire contract to resolve since at this pace of the proceedings no definitive agreement on important principles would be reached by March 15. The parties met twice on March 7 and for the last time on March 8. In the undersigned's opinion, the parties were now rushing through motions, more concerned with the form of the proceedings, than the substance, in order to present the entire contract to the War Labor Board on March 15. This is apparent from Simone's remark made at the meeting on March 7, for when the respondent stated that it would "stand pat" on its proposed counter- offer, Simone replied that there was no use in continued negotiations and that the Union would "refer the thing to the War Labor Board." At the hearing before the undersigned, Simone took each proposed agreement and went through them clause by clause, attempting to state the position of the Union and respondent respecting each clause, as these positions were advanced at the four bargaining conferences. It is a fair summary of Simone's extended and voluminous testimony, that at the conclusion of the conferences, out of all the points at issue, agreement had been reached only on the issues of "sanitation and convenience" and the inclusion of Atlantic Coast Zone Standards. On fundamental matters such as the preamble and recognition clause there was no agreement ; the respondent refused to discuss an interim grievance procedure or seniority agreement ; and it was clear that the entire contract would now go to the Shipbuilding Commission of the War Labor Board. Pursuant to the directive order of T+ ebruary 9, 1945, the parties on March 15, came before the Shipbuilding Commission in Washington. At this hearing the 61 "Norfolk Shipbuilding and Drydock Corporation, a corporation organized or existing under and by virtue of the laws of the State of Virginia, hereinafter referred to as the 'Company' and Local No. 27, Industrial Union of Marine and Shipbuilding Workers of America, an unincorporated association affiliated with the Congress of Industrial Organi- zations , hereinatter referred to as the 'Union,' in compliance with the directive of the Shipbuilding Commission of the National War Labor Board of February 9, 1945, in respect to rates of pay, hours of work and other working conditions, agree as.follows :" J NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 439 respondent's views respecting the Union's proposed agreement were set forth in a 38 page brief. No purpose, except to unduly lengthen this report, would be served by a detailed analysis of the respondent's objections, and reasons therefor, to specific clauses of the Union's agreement. An analysis of respondent's posi- tion on a few issues indicates how far apart the parties were and the unreason- ableness of the respondent's attitude, particularly its outright refusal to recognize the Union. Respecting the preamble, the respondent argued that the agreement was between it and "Local No. 27 Industrial Union of Marine and Shipbuilding Workers of America" and not "The Industrial Union of Marine and Shipbuilding Workers of America and its Local No. 27" as contained in the union agreement. This, despite the certification order of the Board which clearly certified the parent organization. Likewise, on the subject of recognition, the respondent sought to hinge recognition on the "directive of the National Labor Relations Board certi- fying the aforementioned Union." This was not recognition of the Union but only recognition of the existence of a Board "directive." The company stated its oppo- sition and position respecting a closed shop, maintenance of membership clause, grievance pay for union stewards, seniority, use of bulletin boards, grievance procedure, upgrading and promotion, etc., until it had disposed of every point in the Union's proposed agreement. Following the public hearing of March 15, before the Shipbuilding Commission, there is no further evidence of any attempt on the part of either party to resume negotiations. They were waiting for the action of the Commission. On June 9, 1945, exactly 1 year to the day, that the Union had first sought recognition from respondent, the Shipbuilding Commission handed down a lengthy Directive Order in which it decided the dispute between the parties and ordered certain terms and conditions of employment to govern the relations between the parties. Far too lengthy to be quoted even in part, the following is pertinent to the present discussion. The Order awarded the preamble and recognition clause of the Union's proposed agreement. It denied the union demand for a closed shop and awarded a maintenance of membership clause with a 15-day escape provision It went into all of the Union's requests, awarding some, denying others, and modifying still others. This was true, for example, of the Union's proposal on "Work Week and Overtime Rates," seniority, and grievance procedure. Decision was reserved, to be covered by a later Supplemental Directive Order on Permanent Severance Pay, Upgrading and Promotion, Sick Leave and Group Insurance. The Order finally provided that the above terms and conditions were to be incorporated in a signed agreement between the parties, and the order was to stand as an order of the War Labor Board to take effect 14 days hence unless in the interim a petition for review was filed " Following receipt of the directive order which, under the circumstances then prevailing in the relations between the parties, represented a distinct union gain, Simone called Lawrence and asked for an appointment so that the parties "could get together on this agreement." But Lawrence told Simone that re- spondent intended to file a petition for review. On June 28, Seawell wrote Simone enclosing a copy of respondent's combined brief and petition to review the June 9, directive order. Simone, nevertheless, continued his efforts to reach agreement on some sort of interim grievance procedure, because as he testified, "Grievances had been piling up, and there was a great deal of unrest in the yard." Accordingly, on July 3, Simone called in Thomas Morton of the U. S. Conciliation Service who arranged a m The two industry members of the Commission dissented from that portion of the order requiring the respondent to compensate union officials , employees of the respondent, for time spent in settling grievances on company time. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joint meeting with Seawell. Morton stated the purpose of the meeting was "to get together on the grievance procedure." Seawell, however , remarked that review of the directive order was pending , and after a telephone call to the plant, stated that there was a grievance procedure in the yard -"any man could take up any grievance with his foreman." After extended discussion , Seawell arranged an appointment for the parties to meet that afternoon , but Simone was unable to keep the appointment due to previous engagements . Thus the meeting concluded without decision being reached. On September 11, 1945, the Shipbuilding Commission handed down its Sup- plemental Directive Order on the reserved matters of its Order of June 9. The Union's requests on Upgrading , Sick Leave, and Group Insurance 'were de-. nied. Action on Permanent Severance Pay was to be held in abeyance pending action by the War Labor Board in a case then under review. All provisions of the June 9 order, not inconsistent with the directive of September 11, were reaffirmed and the parties were again granted 14 days to file a petition for review. The respondent then filed its petition for review of the September 11, supplemental directive order , incorporating also its petition for review of the original June 9 order. By this time negotiations had become lost in a welter of directive orders and petitions for review . The confusion was increased by a second supplemental directive order of the Shipbuilding Commission , handed down September 19, 1945. No copy of this order was available But following issuance of the order, the respondent again filed its petition for review objecting to the Commission's failure to grant a company proposal on wages and to the allowance of an award on "The Repair Differential ." On December 12, the Shipbuilding Commission vacated its supplemental directive order of September 19, and in lieu thereof reaffirmed certain portions of its oligmal June 9 order . This time, the parties were given 7 days to file a petition for review. It is questionable whether any of the parties could now with certainty and precision indicate where they stood with respect to original issues . It is true that the Union had been awarded a recognition clause, maintenance of member- ship, and check off, but actual operation of a contract was as far off as it had been when the parties first met in r bruary 1945. The respondent had turned to profitable account the delays made possible by skillful use of the Commission orders. But this long unfolding story was not yet to close. For on December 21, 1945, the War Labor Board handed down its directive order. That Board on December 4, 1945, "having accepted insofar as it relates to the management suc- cessor clause, pay for settling grievances and transfer of laid -off employees, the petition filed by the company for review of the Directive Order of June 9, 1945 of the Shipbuilding Commission ," granted modifications requested by the respondent, respecting the above clauses. It then denied the remainder of the respondent's petition for review as well as request for oral argument and ordered that except as modified above, the terms and conditions of employment as set forth in the original directive order of June 9 were to govern the relations between the parties and be incorporated in a signed agreement. As the year drew to a close , Simone must have felt his long efforts to bargain with the respondent were now to be consummated. On December 29, 1945, Simone wrote Seawell in part as follows : As the Directive Order of the N. W. L. B. leaves one or two points to be further negotiated, we are requesting herewith, a conference with the dull authorized representatives 6f the company . We ask that this conference be held at an early date and it may be held at any place which is convenient to your client. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 441 The letter was followed by a telegram on January 3, 1946. On January 5, 1946, Seawell acknowledged the telegram and letter and replied : In view of the fact that we are in the midst of preparing for the hearing which is to begin on Tuesday before the Examiner of the Labor Relations Board and of the ensuing litigation, we are of course not in position to meet you for the purpose which you mention just at this time. However, after the hearing is over, I shall advise you when it will be convenient to arrange a conference. [Italics added.] Concluding findings The undersigned concludes and finds on the basis- of the foregoing and on the entire record in the case, that the respondent violated the Act by its refusal to bargain with the Union, more particularly because of its refusal to recognize the Union, its refusal to deal with the Union pending the EPA appeal; its refusal to deal with the Union respecting an interim grievance procedure ; its refusal to con- tinue negotiations atter final War Labor Board Directives, due to a Board hearing, coupled with its continued and unremedied violations of the Act in other respects, all as heretofore found. The Union was the certified exclusive bargaining agent on October 20, 1944, of all employees within the appropriate unit. Despite this the respondent sought to avoid its direct responsibility of recognition by raising an issue of distinction be- tween the parent and local union The respondent was bound by the Board cer- tification to recognize the Union and it had no alternative but to do so. Yet it persisted for over a year in avoiding what it was clearly obligated to do. Moreover, the respondent's refusal to agree to a contract clause recognizing the Union as the exclusive bargaining representative, but instead insisting that it would recognize only "the directive of the National Labor Relations Board cer- tifying the aforementioned Union" was complete and unequivocal refusal of recog- nition. It was moreover, a deliberate confusion of issues since "the aforemen- tioned Union" was not Local 27 which the respondent now asserted, had been certified by the Board, but the parent union which was in fact the certified Union. This early attitude, never thereafter deviated from, when considered in relation to other violations heretofore found, convinces the undersigned that the respond- ent at no time ever intended to bargain in good faith with the Union. The respondent's obligation to give exclusive recognition to the Union has never been met " In view of the foregoing, the undersigned is further convinced, and finds, that when respondent refused to meet with the Union, because of the EPA petition to review the Board certification, it refused to bargain collectively with the Union, using the EPA appeal as a convenient excuse to again avoid its direct obligation. It is sufficient to point out that appropriate legal safeguards could have been interposed to protect the interests of all parties, in the event the Circuit Court of Appeals ruled favorably upon the EPA motion. Had respondent again intended in good faith to meet with the Union such might have been done. But the Union was never able to suggest such precaution since its request to confer was sum- marily dismissed. 61 A second amended charge had been filed December 3 , 1945 and notice of hearing and complaint served on the respondent on December 4, 1945. 64 See Matter of Montgomery Ward & Company, 37 N. L. R. B. 100; and Matter of Pacific States Cast Iron Pipe Company , 37 N. L. R. B. 405 65 See Matter of Sheba Ann Frocks, Inc, 5 N. L. It. B. 12, 16; and Matter of Lebanon Steel Foundry, 33 N. L. It. B. 233, 252. a 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case there is also present the respondent's refusal to deal with the Union concerning an interim agreement covering grievances. Here was a matter of fundamental importance to the Union and the welfare of all employees. Yet despite the existence of grievances and unrest the respondent remained adamant in its refusal to discuss the matter 6° The undersigned concludes and finds that by its refusal to deal with the certified union to effect a grievance pro- cedure and by announcing to its employees, that it would continue to adjust indi- vidual grievances through its leadmen and foremen, the respondent further refused to bargain collectively with the Union.67 Finally, the undersigned feels impelled under the circumstances of this case to find that on January 5, 1946, the respondent still continued to refuse to bar- gain with the Union. It may be true that at this date, Seawell found himself, as any attorney might, oNerwhelmed in preparing for the instant heaung. At,this o stage of the proceedings, after having exhausted all processes of the War Labor Board, any further delay, regardless of reason, cast serious doubt on respondent's bona fides. The issues had been precisely defined by the War Labor Board and the respondent's obligation to deal with the Union still remained paramount. Law- rence and other company officials were available to commence negotiations Under the circumstances, to continue to refuse to meet because of the Board hear- ing and "ensuing litigation" was to leave the entire course of negotiations no further advanced than'it was-on October 20, 1944, when the Union was certi- fied. The undersigned finds that on October 20, 1944, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours, and other conditions of employment, and that respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the respondent has violated Section 8 (1), (2), (3) and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondent interfered with, and contributed support to, the formation and administration of the EPA. It has also been found that in the same period of time that the respondent engaged in such conduct with respect to EPA, it also engaged in anti-union conduct by questioning its employees con- cerning their membership in the Union, by engaging in surdeillance of union meetings and warned employees not to become or remain members of the Union, 66 The respondent was aware of grievances . In February 1945, it 'appointed Turner, a leadmen, to handle grievances despite the existence of a certified collective bargaining agent in the yard. 01 See Matter of Ross Gear 'and Tool Company, 63 N. L. R. B. 1012 ; Matter of The Alexander Milburn Company, 62 N. L. R. B. 482; and Matter of U. S. Aut'bmatie Corpora- tion, 57 N. L. R. B. 124. NORFOLK SHIPBUILDING & DRYDOCK CORPORATION, 443 and that it thereby interfered with, i estrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Moreover, the under- signed has found that the respondent discharged, because of union membership, Joseph E. Pearce and Byras V. Cook. The undersigned has also found that Kenneth R. Haynes was discharged, not by reason of his union membership but because Haynes refused to join the EPA. It has also been found above that on October 13, 1944, the respondent dis- criminatorily selected for lay-oft, contrary to its lay-off policy, employees Mark T. Gardner, William Flaugher, E. C. Oliver, G. C Pickard, M. N Laden, R. S. Starcher and E. H Barney because of their membership in the Union In addition, it has been found that the respondent discharged and refused to reinstate a group of pushers and laborers in the labor department of the Bramble- ton yard by reason of their lawful participation in a strike that occurred on October 15, 1945. Finally, the undersigned was convinced and found that begin- ning on October 20. 1944, despite certification of the Board, the respondent refused to recognize the Union, the majority representative of the employees, in an appropriate unit, and thereafter refused to bargain collectively with the said Union and that such refusal continues down to date. All of the above findings and a considered review of the entire record in this case convinces the undersigned that the respondent set out upon a deliberate course of delay and obstruction to defeat the Union in its efforts to organize the respondent's employees In doing so it availed itself of nearly every known device by which the Act could be violated. It warned employees not to join the Union, discharged employees for membership therein, engaged in surveillance, discharged employees for engaging in concerted activities, meanwhile lending aid and assistance to EPA and continuing to interfere with its formation and administration through the activities of its supervisory employees, and deliber- ately set forth on a course calculated to weaken, if not destroy, the majority representation of a certified Union by reason of its refusal to bargain collectively with the said Union. No recommendation, not co-extensive with the respondent's unlawful conduct, as found above, and with the threat of future violations would satisfy the pre- ventive purposes of the Act. Therefore, in order to make effective the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act 69 The effect and consequence of the respondent's interference with, and support of, EPA, constitutes a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through represent- atives of their own choosing. Because of the respondent's illegal conduct, the EPA is incapable of serving the employees as a genuine collective bargaining agency. The EPA has been established as a corporation for the purpose of acting as and has acted as a labor organization. Accordingly, the undersigned will recommend that the respondent disestablish the EPA as a representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment. The undersigned has found that the respondent discriminated regarding the hire and tenure of employment of Joseph E. Pearce, Byras V. Cook and Kenneth R. Haynes. The undersigned will accordingly recommend that the respondent make whole Pearce, Cook and Haynes for any loss of pay each may have 68 See N. L R. B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Co. v. N. L. R. B., 326 U. S. 376. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered by reason of the discrimination against him, 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 discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings, " during such period. The undersigned has found that the respondent discriminated regarding the hire and tenure of employment of Mark T. Gardner, William Fiaugher, E. C. Oliver, G C. Pickard, M N. Laden, R. S Starcher, and E H. Ramey. The under- signed will recommend, therefore, that the respondent make whole the employees named in this paragraph for any loss of pay each may have suffered by reason of the discrimination against hun, 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 discrimination against him, to the date of the respondent's sifter of reinstatement, less his net earnings during such period. Reinstatement-of these employees shall be effected in the same manner as is provided for in the remedy, for the reinstatement of the employees listed in Appendix A. The undersigned has found that the respondent discriminated with regard to. the hire and tenure of employment of the pushers and laborers, the employees listed in Appendix A. At the hearing, the motion of counsel for the Board, was granted, to amend the- list set forth in the complaint, by adding the names of 10 additional laborers who, it was asserted, the evidence disclosed, participated in the strike and were thereafter refused reinstatement: Testimony at the hearing, revealed that some Co- to 70 employees participated in the strike. Jakeman testi- fied that on the basis of his search of company records, certain employees listed in the amended complaint were not employed on October 15, 1945, the day of the strike. In this group he identified George Williams, Bud Whitner, Thurman Hines, and Willie Harris. In addition, Jakeman testified that Willie Harron (Harrow), Allen (Anion) Walker, and Paul Simms, names added to the com- plaint by the Board's motion, were "unknown in the personnel office." Nor does the record affirmatively show that these three latter named individuals partici- pated in the strike. The undersigned has therefore excluded from Appendix A these 7 names. Also, there has been excluded from Appendix A the names of James Brooks, Raymond Johnson, and William Caldwell, added by the motion of the Board, but concerning whom there is no evidence to show their participation in the strike. Having found that the respondent failed and refused to reinstate the employees listed in Appendix A, the undersigned will recommend that the respondent offer each of them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. The undersigned further recommends that the respondent make them whole for any loss of pay they may have suffered by reason of the respond- ent's discrimination against them, by payment-to each of them of a sum of money - equal to that which he normally would have earned from the date of the discrimi- nation to the date of the offer of reinstatement less his net earnings during the said period. Reinstatement shall be affected in the following manner : 69 Hereafter, by use of the term "net earnings" is meant : earnings less expenses, such as for transportation , room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would,not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company , 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N: L. R. B., 311 U: S. 7. - NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 445 The undersigned recommends that the respondent be required to displace employees by transfer or otherwise who have succeeded to the former positions of any of these employees. Further, all employees hired after October 15, 1945 for the same or substantially equivalent positions, shall, if necessary to provide employment to the persons to be offered reinstatement, be dismissed. If, even after this is done, there is not, by reason of a reduction of force of employees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be dis- tributed among such remaining employees, in accordance with the respondent's usual method of reducing its forces, without discrimination against any employee because of his union affiliation or activities following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence and shall thereafter, in accordance with such list, be reemployed in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work?° In view of the extended and protracted controversy between the parties herein, particularly the failure to conclude a collective bargaining agreement with the certified Union, the undersigned further recommends that the respondent on request by the Union immediately grant recognition to the Union and bargain with it. Upon-the basis of the above findings of'fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1 Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, and Employees' Protective Associa- tion of Norfolk, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with the formation and administration of- Employees' Protec- Pve Association of Norfolk and contributing support to it, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating with regard to the hire and tenure of employment of Joseph E. Pearce, Byras V. Cook, and Kenneth R Haynes, and thereby discourag- ing membership in the Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and .is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, R. S. Starcher, and E. H. Ramey and thereby discouraging membership in the Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. By discriminating in regard to the hire and tenure of employment of the pushers and laborers listed in Appendix A of this report, thereby discouraging membership in the Industrial Union of Marine and Shipbuilding Workers of 70 See Matter of The Firth Carpet Company, 33 N. L. R. B. 191 , enf'd as mod. 129 F. (2d) 633 (C. C. A. 2). 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, affiliated with the Congress of Industrial Organizations, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. All production and maintenance employees of the respondent at its Bramble- ton and Berkley yards, including transportation department employees, stoie- room employees, launch captains, fire watch employees, operators, trainees, and canteen employees, but excluding office employees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees, timekeepers, plant protection employees, dock masters, assistant dock masters,, instructors, canteen manager, quartermen, leadinen (leadingmen), gang pushers, and all other supervisory employees with authority to hire, promote, discharge, disci- pline or otherwise effect changes in the status of employees, or effectively rec- ommend such action, at all times material herein constituted and now con- stitute a unit appropriate for the purpose, of collective barg. using within the meaning of Section 9 (b) of the Act. 7. Industrial Union of Marine and Shipbuilding Workers of America, af- filiated with the Congress of Industrial Organizations, was at all times material herein and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 8 By refusing to bargain collectively with the Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Indus- trial Organizations, as the exclusive representative of the employees in the above-described unit, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 9. By interfering with, restraining, and coercing its employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 11. The respondent has not violated Section 8 (3) of the Act by the dis-' charge of Jesse T. Bowden, Rolland T. Ikenberry, and Harry C. Thomas. 12 The respondent has not violated Section 8 (3) of the Act by the lay-off of H. L. Currier, Charles L. Blancher and H. E. Finch on or about October 13, 1944. 13. The respondent has not violated Section 8 (3) of the Act by discharge or a refusal to reinstate the following employees : George Williams, Bud Whitner, Thurman Hines, Willie Harris, Willie Harron (Harrow), Allen (Arlon) Walker, Paul Simms, James Brooks, 'Raymond Johnson, and William Caldwell. 14. The respondent has not contributed financial support to the EPA. 15. The respondent has not violated Section 8 (4) of the Act by its discharge of Joseph E. Pearce for the reason that he gave testimony under the Act in a proceeding before the Board conducted In The Matter of Norfolk Shipbuilding and Drydock Corporation; Case No. 5-R-1627. RECOMMENDATIONS e Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that the Norfolk Shipbuilding and Drydock Corporation, Norfolk, Virginia, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Interfering with the formation and administration of Employees' Pro- tective Association of Norfolk, or with the formation and administration of any NORFOLK SHIPBUILDING & DRY DOCK CORPORATION 447 other labor organization and from contributing support to Employees' Protective Association of Norfolk or to any other labor organization ; (b) Discouraging membership in the Industrial Union of Marine and Ship- building Workers of America, affiliated with the Congress of Industrial Organi- zations, or in any other labor organization of their employees, by discharging and refusing to reinstate any of its employees or in any other manner discrimi- nating in regard to the hire and tenure of employment, and any terms and con- ditions of employment ; (c) Refusing to bargain collectively with the Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all its production and main- tenance employees at its Brambleton and Berkley yards, including transporta- tion department employees, storeroom employees, launch captains, fire watch employees, operators, trainees, and canteen employees; but excluding office em- ployees, technical employees, draftsmen, planners, inspectors, material clerks, clerical employees, timekeepers, plant protection employees, dock masters, as- sistant dock masters, instructors, canteen manager, quartermen, leadmen (lead- ing men), gang pushers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (d) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organi- zations, to join or assist Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Completely disestablish Employees' Protective Association of Norfolk as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment and other conditions of employment ; (b) Offer to Joseph E. Pearce, Byras V. Cook, and Kenneth It. Haynes im- mediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges; (c) Make whole Joseph E. Pearce, Byras V. Cook, and Kenneth R. Haynes for any loss of pay they may have suffered by reason of the respondent's discrimina- tion against them in regard to their hire and tenure of employment, in the man- ner set forth in the section entitled "The remedy," less their net earnings during the said period; (d) Offer to Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, It. S. Starcher, and E. H. Ramey immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (e) Make whole Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, It. S. Starcher, and E. H. Ramey for any loss of pay they may have suffered by reason of the respondent's discrinunation against them in regard to their hire and tenure of employment, in the manner set forth in the section entitled "The remedy", less their net earnings during the said period; 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Offer to the pushers and laborers named in Appendix A immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges in the manner set forth in the section entitled "The remedy " above, placing these employees for whom employment is not immediately available upon a preferential list, in the manner set forth in said section , and thereafter , in' said manner, offer them employment as it becomes available; (g) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by payment to each of them of an amount equal to that which he would normally have earned as wages during the period from October 15, 1945 to the date of the respondent's offer of reinstatement or placement upon a preferential list, in the manner set forth in "The remedy," less his net earnings during said period; (h) Post in conspicuous places throughout the Brambleton and Berkley yards at Norfolk , Virginia, copies of the notice attached hereto marked Appendix B. Copies of said notice, to be furnished by the Regional Director for the Fifth Region, after being signed by the respondent's representative, shall be posted immediately by the respondent upon the receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced or covered by any other material; (i) Notify the Regional Director for the Fifth Region in writing within ten (10 ) days from the date of the receipt of this Intermediate Report what steps respondent has taken to comply herewith ; It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is also recommended that the allegations of the complaint that the respond- ent discriminatorily discharged Jesse T. Bowden, Rolland T. Ikenberry, and Harry C Thomas ; discriminatcrily laid off in October 1944 from the Berkley yard H. L. Currier, Charles L. Blancher and H. E. Finch; that it discriminatorily discharged Joseph E. Pearce for the reason that he gave testimony under the Act in a Board proceeding; that it discharged and refused to reinstate for en- gaging in concerted activities George Williams ; Bud Whitner, Thurman Hines, Willie Harris, Willie Harron (Harrow), Allen (Anion) Walker, Paul Simms, James Brooks, Raymond Johnson and William Caldwell ; and that it contributed financial support to EPA, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations , file with the Board, Ro- chambeau Building, Washington 25, D. C., an original and four copies of a state- ment 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 a statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 449 desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated April 16, 1946. Baker, Waymond Conrad, Fred L. Drake, Joseph Pushers 4ackson, William L. Phillips, George M. White, Elbert Laborers Ashy, William Barkley, Henry Bilcher, Simms Bobs, Tom Bradley, W. C. Bright, Dave Burnham, Raymond Cherry, Alfred Clark, Thomas E. Eason, Ed Eason, William Forman, Wilson Forman, Woodrow Foster, Judson Gibbs, Sam Graham, Thomas B. Grase, Woodrow Hodnett, Joseph Holman, Henry Jennings, Alphers Johnson, William F. Laws, Albert (Alfred) Leary, Lonnie J. Lyons, Allen McBride, James Means, Willie Parker, Clarence Phillips, Clinton Stephens, James Watson, Daniel H. White, Albert Roscoe White, Alvin C. Williams, Linwood APPENDIX B NOTICL TO ALL EMPLOYEES Pursuant to 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 bargain collectively upon request with the Industrial Union of Marine and Shipbuilding Workers of America (C. I. 0.) 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 em- ployment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the Norfolk Shipbuilding & Drydock Corporation, at its Brambleton and Berkley Yards, including transportation department employees, storeroom employees, launch captains, fire and watch employees, operators, trainees, and canteen employees, but excluding office employees, technical employees, drafts- men, planners, inspectors, material clerks, clerical employees, time- keepers, plant protection employees, dock masters, assistant dock masters, instructors, canteen manager, quarterinen, leadmen (leading- men), gang pushers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We hereby disestablish Employees' Protective Association of Norfolk, a corporation as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of - pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not interfere with the formation or administration,of any labor organization or contribute other support to it. We will offer to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrim- ination. Joseph E. Pearce, Byras V. Cook, Kenneth R. Haynes, Mark T. Gardner, William Flaugher, E. C. Oliver, G. C. Pickard, M. N. Laden, R. S. Starcher, and E. H. Ramey Pushers Baker, Waymond Jackson, William L. Conrad, Fred L Phillips, George M. Drake, Joseph White, Elbert Laborers Asby, William Hodnett, Joseph Barkley, Henry Holman, Henry Bilcher, Simms Jennings, Alphers Bobs, Tom Johnson, William F. Bradley, W. C. Laws, Albert (Alfred) Bright, Dave Leary, Lonnie T. Burnham, Raymond Lyons, Allen - Cherry, Alfred McBride, James Clark, Thomas E. Means, Willie Eason, Ed. Parker, Clarence Eason, William Phillips, Clinton Forman, Wilson Stephens, James Forman, Woodrow Watson, Daniel H. Foster, Judson White, Albert Roscoe Gibbs, Sam - White, Alvin C. Graham, Thomas B. Williams, Linwood Grase, Woodrow We will not in any manner interfere with, restrain, or coerce our employees 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:\O.) or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this 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. NORFOLK SHIPBUILDING & DRYDOCB CORPORATION, ' Employer. By --------------------------------------------------- (Representative) ( Title) Dated ------------------ NORFOLK SHIPBUILDING & DRYDOCK CORPORATION 451 Nara.-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. 11 712334-47-vol. 70-30