The Greenport Basin and Construction Co.

In the Mattel of THE GREENPOR'r BASIN AND CoNSTRUCIION COMPANY and INDUSTRIAL UNION OF MARINE AND .SHIPBUILDING WORKERS OV- AMERIC k, LOCAL #47, C I 0 Case No C-2105 -Decided July 13, 1942 Jurisdiction shipbuilding industry Unfair Labor Practices- Into feienie, Restioint, and Coerual, saiveillance of union meeturg, anti-union statements, declarations of union preference, intetiogation conceining union membership, threatened cessation of operations Conipanij-Dinmiiated Union totination of, with aid and suppoit of employer by suggestnig and instigating formation of ernplovees association, by conducting election by seta n iig couii el for emploNees association, br sohntation of inenibeis, by failure to deduct from Rages time spent in foimiiig and carrying on activities of emploj ees association Discrimination discharges and lad-otts for union membership and activity, charges of, dismissed as to one employee Remedial Orders - dominated otgariiiation disestablished, Ieinstatement,and back pa3 a'Naided 111r Martin I Pose and Mr John J Cuneo, for the Board "I r Jet one, F Healy, of New Yolk City, for the respondent Mr Her man, J Schoen f eld, of Patchogue, N Y , for the A_ssoclat}on Mr Robert Denson, of New York City, for the Union Mr J"redetic B I'a2Ires, 2nd, of counsel to the Board DECISION AND ORDER STATEMENT OF THE CASE Upon chat ges and amended charges duly filed by Industllal Union of Maisie and Shipbuilding Workers of America, Local #47, C I 0, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New Yolk City), issued its complaint, dated December 5, 1941, sgaln-t The Gieenpoit Basin and Construction Company, Greetrport, New York, herein called the respondent,' alleging that the respond- ent had engaged in and was engaging in unfan labor practices af- fecting commei ce, mthnn the meaning of Section 8 (1), (2), and (3) 'The name of the respondent was etIoneously designated as 'the Gieenport & Constinetio,i Co, Inc, in the pl'ading', formal pipets, iecoid, and Inteiniediate Report, all of which ii eie corrected bi stipulation of the pai ties 42N L R B, No 84 377 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the ,Act Copies of the complaint, acconi- panted by notice of hearing, were duly served upon the respondent, the Union and The Greenport Basin and Construction Company Em- ployees Association, herein called the Association, a labor organiza- tion alleged in the complaint to be dominated by the respondent. With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) on or about July 28, 1941, initiated, formed, and -sponsored the Association and continuously since that date has dominated it, contributed to its support, and interfered with its administration; (2) since July 26, 1941, has urged, persuaded, and warned its employees and applicants for employment to refrain from assisting, or becoming or remaining members of, the Union; (3) has threatened its employees with discharge or other reps isals if they did not become or remain members of the Association; (4) has interrogated its employees, and applicants for employment, concerning membership in the Union; (5) has made disparaging remarks to its employees about the Union, its leaders, and its adherents; (6) has threatened to close its shipyard if the Union successfully organized the employees or if it were compelled to bargain collectively with the Union; (7) has urged its employees to deal directly with it concerning grievances, labor - disputes, wages, hours of employment, and other conditions of em- ployment, rather than through the Union; (8) has kept under sur- veillance the activities, meetings, and meeting places of the Union; and (9) has discriminatorily discharged, on specified dates, mile named employees,2 and thereafter refused to reinstate them because they had joined or assisted the Union On or about December 15, 1941, the respondent filed its answer, in which it admitted the allegations of the complaint as to the nature of its business, denied the alleged unfair labor practices, and alleged affirmatively that Jennings, Knipp, and Kanwetz were discharged for cause, and that Warner, Sterling, Cummings, and Hansen, Jr., weie temporarily laid off Pursuant to notice, a hearing was held from December 18 to 29, 1941, and from January 5 to 20, 1942, at Greenpoit, New York, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing, the Association filed a motion to intervene in the proceeding, and the Trial Examiner granted the motion, limiting the intervention to the issue of alleged violation of Section 8 (2) of the Act On December 23, 1941, the, Association 2 Harry Warner, Walter Sterling , Douglas Cummings , Alfred Hansen, Jr, Arthur Klipp, Frederick G Jennings , Alexey Kanwetz , Louis George Tuthill , and Charles Raynor At the close of the Board's case, counsel for the Board moved to dismiss the allegations of the complaint v ith respect to the alleged discriminatory discharges of Louis George Tuthill and Charles Raynor The Trial Examiner granted the motion and their cases will not be considered herein. 1 THE GREENPORT BASIN AND CONSTRUCTION COMPANY 379 -filed its answer, denying that it was company-dominated or that it had received any support from the respondent. The Boai d, the iespondent, the Association, and the Union were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, counsel for the respondent made several motions to dismiss the complaint in its entirety or, in the alternative, to dismiss cei tam portions thereof. The Trial Examiner denied these motions in part and reserved ruling on the remaining portions of such motions, which he later denied in his Intermediate Report Counsel for the Association moved, at the conclusion of the Board's case, to dismiss the allegations of the complaint which charged the respondent with violating Section 8 (2) of the Act. The motion was denied At the conclusion of the hearing, counsel for the respond- ent and counsel for the Association renewed their respective motions to dismiss. Ruling thereon was reserved by the Trial Examiner, who denied the motions in his Intei mediate Report. At the close of the hearing, counsel for the Board moved to conform the complaint to the proof, and counsel for the respondent and counsel for the Associa- tion moved to conform their respective answers to the proof. The motions were granted. During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence The Board has reviewed the rulings of the Trial Examinee and finds that no prejudicial errors were com- mitted The rulings are hereby affirmed. At the conclusion of the heaiing, the parties were afforded, but did not avail themselves of, an opportunity to argue orally before the Trial Examiner Subsequent to the heating, the respondent filed a brief with the Trial Examiner. On February 18, 1942, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent, the Union, and the Association. He found that the respondent had en- gaged in and was engaging in unfair labor practices, within the mean- ing of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. He further recommended that the complaint be dismissed insofar as it related to the alleged discriminatory discharge of Frederick G. Jennings On March 9, 10, and 20, 1942, respectively, the respondent, the Union, and the Association each filed with the Board its exceptions to the Intermediate Report On March 23, 1942, the respondent filed with the Board a brief in support of its exceptions. On April 16, 1942, pursuant to notice, a hearing was held before the Board at Washington, D C, for the purpose of oral argument. The 380 -DECISION'S OF NATIONAL LABOR RELATIONS BOARD respondent, the Union, and the Association were iepiesented -by coun- sel and participated in the oral argument The Boaid has considered the exceptions to the Intei inediate liepoi t and the suppoi ting hiief and , nisofai as the exceptions are urconsrstent with the findings , conclusrons, and or der set forth below , buds them to be wi ithout pier it Upon the entree i ecor (I in the case , the Bom d makes the following FIND1'.GS OF F WT I TI1E BUSINESS 01, 111F R1%81'0\DEN I The Gieenpon t Basin and Consti uctron Cormpanv is a Nevv Jer 5ey colpolatlon hav ing its pi Incipal office and ships ru d at Ur eenpol t, Nei-%, Yolk, where it is engaged in building . consti uct ing i epair pig, and selling boats The value of the materials used b} the tespondent, con- sisting of lumber, steel, bronze, and copper , amounted to mole than $1.000,000 during the peiiod trout January 1 to D:cenrbei 18, 1941 The respondent received approximately 50 percent of these rnateuals from points outside the State of New Yoik During the same per rod, the respondent Ai as engaged almost exclusiN el) m the cousti uctron of ocean -going mine sww eepei s for the United States Navy Dui mg 1941 it sold to, of had under consti uction for, the United State, Nax y, mine sweepers having an aggregate value of approxrmatck $,3000.000 The respondent achmrts that it is engaged in cornruetce vvithm the meaning of the Act II TILE ORO ANiZATiONS INvOLV-1_D Industrial Union of panne and Shipbuilcl uag Woi lcets of timer Ica, Local #47, is a labor of ganrzation affiliated with the Con-toss of In- dustrial Organizations, admitting to nreurbershrp employees of the respondent The Gieenpoi t Basin and Construction Company Employees Associ- ation is an unaffiliated labor organization, adnnttnrg to membership employees of the i espondent III THE UNFAIR LABOR PRACTICES A Doviteviatzon, and interference with the for>rrrtiom and adnainistr'a- tbon of the Assoclataon 1 Events leading to the for matron of the Association No labor organization had attempted to establish itself ate the re- spondent's shipyard prior to June 1941 Dui uig that month, the Union THE GREENPORT BASIN AND CONS1R[ CIION COMPANY 381 commenced' its organizational activities among the respondent's 'em- ployees On Satuiday evening, July 26, 1941, the Union held its first open meeting in the Gieenport Village Hall It is undisputed that 'I'heodoie Brigham, the respondent's president, and Foieman Thorn- hill attended the meeting as uninvited guests Appioximately 174 of the 306 persons then employed by the iespondent were present at the meeting and, in Brigham's piesence, about 125 employees signed appli- cations toi nienibeiship in the Union While Brigham denied that he knew that the meeting was being conducted ruder the auspices of the Union until shortly befoie lie ariived at the hall. we do not credit the denial The minutes of a conference held on July 24, 1941, for the purpose of discussing a wage grievance of the iespondent's night-shift employees, and attended by Bi igliam, rfullock, the iespondent's secs e- taiy and ti casurer, Snyder, at that time the respondent's assistant secie- taiy and ti_easuier, 4 foremen, and the employee iepi esentmg the work- cis on the night shift, weie read into the iecoid at the heaiing and clearly sho'i that the plans of the Union to hold a meeting on July 26, 1941, wen e known to, and discussed by, the officers and foiemen of the Iespondent In ani, event, Biighann's piesence at the meeting after he became awaie of its puipose would nevertheless constitute interference ii ith the rights of his employees under the Act On July 2'8, 1941, the first working day after the union meeting, a movement w as stiu ted in the respondent's plaint to i liveit the employees' - effoi is fiwn the Union to a rival organization, which came into exist- ence a few days later The evidence as to what occurred during this pen nod is, eycept as hereinafter indicated, laigely uncontroveited and, in many instances, admitted. and we, like the Trial Examinee, find it to be ci edible Ea i ly on July 28, pursuant to mistiuctions fi om Brigham, Fied Bohlke, foieman of the machine department, assembled his 40 to 50 subordinates and dnected them to appoint 2 employees from their department to discuss with the respondent any grievances the men might have The men complied with the direction and elected two delegates Bi igham simultaneously addi essed the renaming em- ployees at a meeting in the carpenter shop and requested that 2 dele- gates fionn each depaitment come to his office and state the grievances which weie the source of the iumoied dissatisfaction among the em- ployees Bingham then left the meeting and delegates were selected, with whom the employees then eupon discussed then gi ievances After a majority of the men in the machine, carpenter, and handymen de- pan tments decided to be repiesented by the Union rather than by any other gi oup of oiganization, the representatives drafted and signed the following petition To the officials of the Gieenport Basin & Const,i uctioii Com- pany We, the delegates as appointed by the various departments 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - namely the Machine, Carpenter, and Handyman do hereby agree Our departments having been organized by the Industrial Union of Marine and Shipbuilding Workers of Amer ica, we have nothing to say ourselves at this time At the proper time, a collective bar- gaining agency of the said Union will present our demands A few hours later, the employee delegates from all the departments met with Brigham, George Snyder, then the respondent's secretary and assistant treasurer and now its vice president, and Foreman Bohlke, Thornhill, and Morris Appelt. Thomas Stein, a delegate from the ma- chine department, read and presented the petition to Brigham. The latter-replied that he was not interested in the petition and asked the delegates to present whatever grievances they had Some stated that the men wanted an increase in wages, and Brigham replied that he would discuss the wage issue with the respondent's secretary and treasurer, as soon as the latter returned to Greenport Another dele- gate inquired if it would be possible to increase the wage scale to that set by the Atlantic Coast Standards -Agreements Brigham ad- mittedly answered that "it would be impossible . . . to pay that price and continue working" and added that ". . . if it was necessary to have the CIO Union," the respondent would finish the four boats it was then working- on and would "take up with the Navy Department the cancellation of further contracts and . . . then close the yard." Brig- ham concluded by telling the delegates to go back to their departments, report to the men what had taken place at the meeting, and return to his office at 9 o'clock that evening to meet with John Kluge, mayor of Greenport, who had expressed a desire to talk with the employees. Early that afternoon Brigham, according to his own testimony, called two meetings of the employees, the first in the carpenter shop and the second in the machine shop. With respect to the first meeting, employee Bishop testified that Brigham addressed the assembled em- ployees as follows. Brigham informed them that he was "not satisfied with the grievance committee" which, "instead of discussing griev- ances," had presented the petition, and stated that he desired to dis- cover the source of the "trouble" and to determine whether the men wanted to work on a proposed merit system or wished to be represented by the C. I. O. or some other organization. He then announced that Snyder, who was with him, would call the names of the employees from the pay roll, and that the men were to reply orally whether they were "with the company" on the merit system or whether they wanted "the outside organization, the CIO," to represent them. When one of the men objected to such a vote, Brigham openly told Snyder to list that 8 The Atlantic Coast Standards is an agreement between the Navy -Department, the Maritime Commission , and various labor organizations, which sets forth, among other things, the wage scale to be paid to employees of shipyards engaged in building steel ships The respondent builds only Nrooden boats for the Navy Department and therefore does not come under this agreement THE GREENPORT BASIN AND CONSTRUCTION COMPANY 383 man as having voted "No" and announced that further objections or failure to answer would be considered a vote in the negative indicating that the employee did "not want to be with the company but wanted the CIO " Brigham further stated, according to Bishop, that he was "not going to-have any outside union running his business" and that "if the union came in" he would finish the four boats under construc- tion, "and cancel the contract for the other eight-" Snyder called the roll and the employees responded orally to the questions asked. The testimony of Stein and Ketcham, employee representatives, is in sub- stantial agreement with Bishop's testimony set forth above. According to the testimony of employees Cummings and Khpp, the machine-shop meeting, which was attended by about 50 employees, was substantially similar to that of the carpenter shop and Brigham there made practically the same remarks which he had made to the employees at the meeting in the carpenter shop. Brigham testified that the pur- pose of the vote was to ascertain whether the men were behind him or with the C I. 0 The remainder of his testimony with regard to these meetings was, in substance, meiely a denial of the statements at- tributed to him by Ketcham, Bishop, Cummings,-and Khpp He ad- mitted, however, that he might have made the remark that "if the union came in, why, I might ask to finish what we were doing and get the Navy department to allow us to cancel the contract and stop work- ing " We do not credit Bi igham's denial, and we accept, as did the Trial Examiner, the testimony of Ketcham, Bishop, Cummings, and Klapp. Brigham testified that, at about 7 o'clock that evening, he and; Snyder conducted a roll call of the employees on the night shift and piopounded the same questions upon which the day- shift had been polled. During the same day, Foreman Bohlke had similarly engaged in anti-union conduct. Employee Alfred Hansen, Jr, testified that Bohike asked him why he had joined the Union and that, when he informed Bohlke that he had joined in order to obtain an increase in salary, Bohlke told him that if he did not resign from the Union he would be discharged within 2 weeks. Douglas Cummings, an em- ployee of the machine shop, testified that when he admitted, in response to a question by Bohlke, that he was a member of the Union, Bohlke said "If you fellows think you are going to run this yard, you are not. There is not going to be any Gaffga or Stein-ism in this yard. Any- body who joins the union is going to get thrown out of the yard . . . I want you to think it over, and I will give you until tomorrow to think it over I don't want you to be so stubborn." The record shows that Gaffga and Stein were employees who were active in behalf of the Union. Employee Harry Warner testified that during a conver- sation with Bohlke the latter stated that if the Union succeeded in 384 DECISIONS OF 1TAIIO,TAL LABOR RELATIONS BOARD organizing the employees the iespondent would close the yaid Bohlke denied that he made the statements atti ibuted to hu i by Hansen, Cum- mings, and Wainer The Trial Examiner iejected Bohlke's denial for the reason that Bohlke's demeanoi on the stand, categorical denial of the statements attributed to him by the various Board witnesses, and his evasive answers to the questions propounded by counsel foi the Board, inade it apparent that he was suppressing the ti lie facts The Trial. Exammei credited the testimony of Hansen, Cummings, auul Warner, all of whom impressed him as foithi ight and ti ntliful wit- nesses, and found that Bohlke made the statements attributed to him by those witnesses We agi ee with the Ti ial Examiner and find accordingly At about 9 o'clock that evening, all the delegates, except S(ein. mete in the respondent's offices with Biigh,un and MTayoi Khi2e Kluge participated in the meeting only to the extent of telling Bugbam and the delegates that, in the interest of national defense, the pal ties should come to a satisfactory agreement as quickly as possible Sei el al of the delegates, including Ketcham, told Biighaii that the majouty of the inen in their respective depaitments were "for the union and mole money" Delegates Rafford and Dickerson stated that the men In their departments wanted their runes iemoved from the petition which had been piesented to Bi ighani at the morning meeting After a short discussion regarding a wage mciease, which Biigham said the respondent was unable to grant, the meeting ended with the under- standing that Brighaiii would meet with the delegates the following day The next moinmg, July 29, 1941, Bugham called the delegate, to his office to discuss the question, i ailed by Raffoid and Dickei son the pievious evening, of the withdi awal of navies from the petition At his request, the delegates signed notices, di afted by Bi igham, -stating that the signei s "desii e to withdraw their mines fiom that document Ithe petition of July 28] " Brigham had the delegates execute the notice of withdrawal despite the fact that that morning lie had re- ceived the following letter, of which the delegates had no knowledge, from the Union's national representative On behalf of the membership of the Union also the employees of the Gieenpoit Basin Construction Co of whom we iepiesent a substantial majority, we wish to inform you that we ai e in a posi- tion to fulfill any needs you may have foi iegnlai shipbuilding men We also would like to set a date whereby we may bargain collectively for your employees It is our hope that amicable laboi ielations will exist between us THE GREENPORT BASIN AND CONSTRUCTION COMPANY 385 Early in the afternoon of July 30, the thn d day of the campaign to oust-the Union, Brigham called a meeting in the carpenter shop of all the employees on the day shift According to the testimony of Ketcham, Brigham, in the presence of Snyder, then the respondent's assistant secretary and assistant treasurer, and Krancher, the respond- ent's personnel director, addressed the approximately 250 employees there assembled as follows He stated that it had been suggested to him that the men get together and form a "company" union He informed the employees that he did not want an "outside organization" coming into the yard and telling him how to iun his business but would 1atllei have the employees form a "company" union Brigham concluded his address by saying that he had prepared ballots and wanted the men to indicate thereon whether they wanted the -'company" union or the C I 0 , and suggested that the men elect a chairman and fully discuss the matter Thereupon Brigham withdrew from the meeting, and the employees selected as chairman Albeit Kenneth Monsell, a "snapper" boss in the carpenter department, and as secretary, Leonard Kiancher, the respondent's personnel director Monsell told the employees that he was in favor of forming an independent union because he believed that such an organization would be more beneficial to the men, to the respondent, and to the village of Gieenpoi t, than an outside labor organization Krancher then distributed the ballots, winch called for the signature of the voter and provided for a choice between "my own Company union" and "the C I 0 or other outside organization " When some of the men objected to signing the ballots and another op- posed the holding of the vote on company property, Brigham was recalled After informing the men that they need not sign the ballots and that he had arranged with the village authorities to hold the elect tion at the Village Hall, Brigham read to the employees the following telegram from the Union's national representative Wagner Act gives your employees the right to join an'f union I must ask you stop intimidation immediately if we are to maintain amicable i elritrons Roy Granata National Representative of'IUMSWA After the meeting had adjourned to the Village Hall, and in the midst of the voting, Snyder appeared and announced to the men that the words "Company union" were erroneous and should be stricken from the ballot and replaced by the word "association " However, the men continued to cast their ballots without making the suggested change Krancher, the Company's personnel director, supervised the balloting, noted the names of those voting, and aided in the tabulation of the results When Monsell announced that the "company union" had received a majority of the votes cast, an employee suggested that the new organization be known as "The Greenport Basin & Construction 472814-42-vol 42-25 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company Employees Association " and that an organizing committee be selected Both suggestions were adopted , and Monsell was desig nated chairman of the organizing committee Brigham denied that he made any statement to the men at that meeting, although he testified that he called the men together and "simply told them that I had decided to have a ballot and that I wanted to have them vote and handed them a printed ballot to be handed out " We, like the Trial Exanuner , reject the denial as incredible , in view of the appearance on the b rllots of the terms "Company union" and "outside organization ," and in view of the corroboration of Ketcham's testimony by other witnesses We agree with the Trial Examiner,, and find, that Brigham made the statements attributed to him by Ketcham. That evening, Monsell and Krancher held a meeting in the car- penter ship with the men on the night shift Monsell outlined briefly the events of the afternoon meeting and Krancher read them the min- utes of that meeting Thereupon a vote was taken on the , question "Do you favor being represented by an Employees Union, or by the C. I 0 or other outside organization " A majority of the employees voted in favor of the "Employees Union." Bishop, who was then a member of the Association 's organizing committee, testified that immediately after the election, the committee consulted Bohlke on the question of retaining counsel for the new organization . According to Bishop , Bohlke suggested that they seek the aid of an attorney named Schoenfeld and conducted the commit- tee to Snyder's offices to ascertain whether Snyder might have Schoen- feld's telephone number Snyder told the committee that he did not have Schoenfeld 's telephone number but that lie would try to get in touch with him Snyder made a telephone call and then informed the committee that he "couldn't contact the lawyer,',' but that he "could call and try to get in contact with him later on " Bishop stated-that the next morning, July 31 , 1941 , Monsell informed the committee that Snyder had arranged with Schoenfeld for the committee to meet in the latter's office at 11 o'clock that morning Bolilke and Snyder denied that they had assisted or were instrumental in the retention of Schoenfeld as counsel for the Association Monsell testified that he, Monsell, had independently employed Schoenfeld as counsel for the Association We do not credit the testimony of Bohlke, Snyder, and Monsell and find, as did the Trial Examiner, that Schoenfeld was engaged by the committee as attorney for the Association at the suggestion of Bohlke and with the aid of Snyder, substantially as related by Bishop In any event, since as we hereinafter find, Monsell was a supervisory employee whose acts are attributable to the respond- ent, we would nevertheless find that Monsell 's selection of counsel THE GREENPORT BASIN AND CONSTRUCTION COMPANY 3$7 was, in fact, an act of the iespondent We further find, howevei, that Schoenfeld did not knowingly or willingly participate in the respond- ent's unfair labor practices by accepting the Association as a client Eaily on July 31, the Association's organizing committee, headed by, Monsell, left the yard and went to Schoenfeld's office in Patchogue, New York, approximately 50 miles from Greenport. Schoenfeld, after conferring with the committee at some length, prepared a peti- tion to be signed by the employees who wanted to become members of the Association Thereupon the committee returned to Greenpoit and circulated the petition among the employees during- working hours Practically all the employees signed the petition Although foremen and snapper bosses wei e cognizant of its contents and were present when the petition was being signed, none of them attempted to stop its cuculation Indeed, all the snapper bosses signed the peti- tion One snapper boss, Robeit Preston, obtained signatures to the petition At about 5.30 p. in on August 1, 1941, Monsell called a meeting in the carpenter shop which was attended by about 200 employees. There Monsell, as chairman, briefly reviewed the activities of the newly ere- 0 ated Association and suggested that a`bylaws committee be formed. Monsell's suggestion was adopted and a bylaws committee was formed consisting of the members of the organizing committee and 3 addi- tional employees The parties stipulated that the employees, all of whom were hourly paid workers, received their regular wages for July 28, 29, 30, and August 1, 1941, without deduction for the time spent by them at the various meetings previously described, that the delegates weie likewise paid their regular wages, without deduction for the time spent by them at the morning meetings with Brigham on July 28 and 29, 1941, and that the members of the organizing committee were paid their reg- ular wages, without deduction for the time spent by them on Associa- tion business on July 30, 1941 Snyder denied that the members of the organizing committee were paid foi the time spent by them on Association business on July 31, 1941 However, Bishop testified that Monsell instructed him to deduct 2 hours from his time sheet for July 31, 1941, for the time spent by the oiganizing committee with Schoenfeld and, that, in order that Bishop might ultimately receive compensation for such deduction, Monsell ordered him to add 2 hours to the amount of time actually worked on one of the first days in August The pay-roll records introduced into evidence support Bishop's testimony We reject Snyder's denial, as did the Trial Ex- aminer, and find that the members of the organizing committee re- ceived their full wages without deduction for the time consumed by the conference with Schoenfeld. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Saturday night, August 2, 1941, at the Village Hall, the Asso- ciation held its first and only geneial meeting, duling which the mem- bership elected officers and membei s of the executive committee and adopted the bylaws as proposed by the bylaws counnittee Snapper Bosses Monsell and Preston weie elected president and vice piesident, respectively Edmund Sarles, who had charge of the stockroom on the night shift, was elected secietary and tieasuiei Until Novembei 1, 1941, the Association had no offices, and its executive committee met weekly on company piopeity On of about that date the Association iented a building adjoining the iespondent's pienuses, where the exec- utive committee thereafter met Since its inception, however, the Association has kept its books and records in the office of the captain of the respondent's uniformed guards The executive committee on about six separate occasions presented grie\ances to the respondent, but the record does not disclose what disposition Was made of them 2 Conclusions as to the Association ,Upon the entire record, we find that the Association is the creature Ca of the respondent and was brought into existence and utilized by Brigham and his supervisory force in order to forestall the organi- zational efforts of the Union The contention of the respondent made during the hearing and in its brief that the Association was the spon- taneous result of the organizational desiies of its employees is not supported by the record 4 On the contrary, it is is definitely estab- lished that the iesponclent was the impelling force behind the Asso- ciation, indeed, the iesponclent brazenly foisted the Association upon its employees as a device for supplanting the Union, which the em- ployees had freely selected as their representative By attending the first union meeting on July 26, Brigham and Fore- man Thornhill clearly interfered with the right of the employees to self-organization On the fii st, working day after the meeting, Brig- 4 The only possible support for this it gument is the undisputed testimony of employees Ilmumel and Myles, and Snapper Boss Monsell in regard to the follow mg steps which weie taken to establish an unaffiliated union Rmmnel met Myles in front of the village Hall, directly after the union meeting of July 26 They discussed the ad%isability of forming an independent union and decided to consult Monson rlommel met Monsell the following day, July 27, and mfoimed him of what had occurred at the meeting Both agreed that it would be advisable to foim an independent union, unaffiliated with any other labor organization Monsell undeitook the task of talking to the men on the day shift and suggested that 1\lyles and Honunel talk with the night-shift employees Ilonunel accord ingly discussed with the men on the night shift the matter of "foimmg an association of our own to take out giiesances to the office , without bringing in outside help" On the eNemng of July 27, Myles further discussed the formation of the proposed association with Rommel and thereafter talked with other employees concerning such an organisation Monsell admitted that he "naturally was opposed to an outside oiganization and we [he and Rommel] decided we would foam an association of employees if we could" In view of the state of the uncontradicted esidence as to the actual participation of Brigham and other company officials in the steps leading to the formation of the Associa- tion, die do not deem it necessary to reconstruct an account of the actual events to include the testimony of Rommel and Myles THE GREENPORT- BASIN AND CONSTRUCTIO\ COMPANY 389 ham immediately manifested his antipathy to the Union and launched a campaign to stifle its organization by ordering his employees to select delegates to discuss grievances with him Any doubt the delegates may have had in respect to Brigham's sentiments toward the Union, was dispelled when the delegates met with Brigham and the officers and foremen of the iespondent later that day Biigham not only re- fused to consider the delegates' petition, naming the Union as their bargaining representative, but also announced that he would close the yard if the Union were successful in organizing the employees A few hours later Brigham assembled his employees and after stating his opposition to an "outside union" and threatening to cancel the contract and cease operations if the Union organized the yard, he and Snyder polled the employees to determine whether they were "with the com- pany" on the merit system of whether they desired to be represented by "the outside organization, the C I 0 " Throughout the day, Bohlke similarly uttered anui-union statements The next morning Brigham induced the delegates to withdraw their names ftom the peti- tion vhich they had originally presented and consequently to repu- diate their designation of the Union as then baigaining agent That afternoon-Brigham called a meeting of the day-shift employees and in the presence of the respondent's personnel manager and its assistant secretary and treasuier openly espoused the organization of a "com- pany" union At his direction, the employees voted, using ballots prepared by the respondent, on the question of whether they iN anted the "company" union or an outside organization In view of the re- spondent's express hostility to the Union and avowed preference for a "company" union, it is not surprising that the "company" union re- ceived a majority of the votes cast The first formal steps in the organization of the Association. immediately followed the balloting by the selection of an organizing committee, of which Monsell, a snapper boss, with designated as chairman. At the suggestion of Bohlke and with the aid of Snyder, the ni ganizing committee ietained Schoenfeld as counsel for the Association Within the next 3 days the formal organization of the Association had been completed Throughout the period when the Association as being formed, further assistance was given it by the respondent's fr ilure to make deductions from the wages of the organizers for the time spent by them on Association business. From these activities, it is clear that the iespondent initiated, sup- ported, and dominated the Association, thereby effectively stifling the organization of the Union and destioyutg, the employees' freedom of choice and other rights guaranteed by the Act In marked contrast with the respondent's attitude toward the Asso- ciation was its conduct toward the Union Surveillance of union meet- ings by the respondent's officials was engaged in openly Employees 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were questioned by the respondent's officials and supervisory employees iii regard to their membership in the Union and were urged not to join or remain members of the Union In addition, the respondent repeatedly threatened to close its yard if the Union were successful in its organizational efforts. As hereinafter found, the respondent actu- ally discriminated against a number of union members for their affilia- tion with that organization and in numerous instances its officials disparaged the Union before its employees.5 The respondent and the Association dispute the supervisory status of snapper bosses Monsell testified that "snapper bosses supervise groups of employees fluctuating in number from as few as 6 to as many as 50, that during July and August 1941, the number of men - working under his direction varied fiom 15 to 50, and that at the time of the hearing there were 22 employees under his supervision. It appears that snapper bosses may perform some manual work them- selves, depending upon several factors, principally the amount of work on hand. According to Foreman Thornhill, a snapper boss is-"the head one and pushes the gang along to see that the work is done, and done properly." Thornhill fur they stated that snapper bosses i epoi t directly to the foreman of thcc depai tment regarding the performance of their groups and receive at least 5 cents more per hour than the men under them. At the hearing, several witnesses referred to snapper bosses as their superiors, and other employees, including Monsell, testified that it is the duty of i snapper boss to see that the mistakes of the men in his group are coi rected From the foregoing it is clear, and we accordingly find, as did the Tiial Examiner, that the duties of snapper bosses are unquestionably such as to identify them with management and thus to charge the i espondent with responsibility for their activities 6 Nor does the fact, relied upon by the respondent and the Association, that these bosses were eligible for membership in the Union excuse their interference as management representatives with the freedom of choice of subordinate employees or relieve the respond- ent'of responsibility for their activities in this connection 7 Even if the activities of snapper bosses were not attributable to the respondent; it is clear that they were carrying out the respondent's announced anti- union policy, and that through the acts of its officeis and foremen the iespondent has violated the provisions of the Act We find, as did the Trial Examiner, that by the foiegoing acts the respondent has dominated and interfered with the formation and ad- ministration of the Association and has conti ibuted financial and other' support to it, thereby interfering with, restraining, and coercing its See Section B, infra ,'See International Association of Machinists v N L R B, 311 U S 72 7 See Matte; of Shesusn-Wsllsams Company and Chemical workers Union No- 22215, American Federation of Laboc, 37 N L R B 260 THE GREENPORT BASIN AND CONSTRUCTION COMPANY 391 employees in the exercise of the rights guaranteed in Section 7 of the Act. We fuither find that the respondent, by surveillance of union meetings, by statements, threats, and speeches of Brigham and its super- visory employees disparaging the Union, and by other -acts outlined 47 above, has interfered with, restrained, and coerced its employees in the exercise of the rights guai anteed in Section 7 of the Act - B The discriminatory discharges and lay-off 8 Harry Warner and Walter Sterling were employed by the respond- ent as maintenance electricians Wainer worked for the respondent for short periods of time in 1931 and 1939 , On or about December 15, 1940, lie was again rehired, and- on August 22, 1941, he was laid off. Sterling was first employed by the respondent on May 13, 1940, and, after a lay-off of several months, was rehired on March 31, 1941 He worked thereafter until August 22,1941, when he was laid off Warner, Sterling, and Charles C Montgomery were the only electricians em- ployed on the maintenance force of the day shift at the time of the lay-offs of August 22,1941, with which we are here concerned Warner was in charge of the group _ The union membership of Sterling and Warner was well known to the respondent Both had joined the Union at the meeting of July 26, 1941, in the presence of Brigham and Thornhill Warner was, at the time of his lay-off, secretary of the steering committees and openly solicited members and distributed the Union's dues-cards and buttons to the members.- Both Warner and Sterling refused to join the Associ- ation, although requested to do so on a number of occasions by Monsell and Preston, snapper bosses who were president and vice president, respectively, of the Association As found above, Bohlke told Warner on July 28, 1941,-that if the Union were successful in orgamzing,the employees, the respondent would close the yard In addition, Wainer testified that he had the following conversations with Bohlke • About August 7, 1941, Bohlke asked him why he was interested in the Union. Warner replied that the men were compelled by the respondent's action to have i union to represent them; that whenever an employee asked for an increase in wages he was told "to pick up his tools -and get the hell out" The conversation concluded when Bohlke said that as long as he (Warner) remained in the yard, he would never get an increase in wages About a week prior to Warner's lay-off, Bohlke said to him, while they were discussing employee Arthur Klipp, that it was unfortunate that a com- munistic outside organization "had come in and undone all the good work which had been done in that yai d " 8 Also referred to in the record as the organizing committee At the time of the hearing Warner was vice president of the Union 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sterling testified that on July 28, 1941, Bohlke asked him whether he had attended the union meeting of July 26, 1941, and had joined the Union and that when Stei ling replied to both queries in the affiima- tive, Bohlke stated, "You will be soi i y " ° Bohlke denied that the conveisarions related by Wainer and Sterling had ever occuiied We reject Bohlke's denials, as did the Trial Ex- aminer, and find, from the Trial Examiner's evaluation of the witnesses and in view of the respondent's surveillance of the first union meeting and its subsequent antipathy toward the Union, that Bohlke made the statements attributed to him by Warner and Sterling On August 22, 1941, Bohlke told Wainer that the i espondent had decided to lay off the three electricians on the day shift because the electrical work could be done "cheaper other ways" and that Warner was "through " Thereupon, Bohlke walked to the place where Sterling and Montgomery were working and told them that they should get their tools together and that they were being laid off because there "wasn't any more work to do" At the end of the day, Wainer, Sterling, and Montgomery received checks for the wages due them and left the yard Bohlke and Brigham insisted at the hearing that Warner, Sterling, and Montgomery were laid off because they had no need at that time for any electricians on the day shift They contended that the build- ings which the respondent had recently erected had been fully wired and that the respondent had decided to have Sherill Tuthill, the elec- trician on the night shift, handle all the electrical repair work, with the aid of any other capable employee, and to send out for repairs any motors or electiical hand drills These contentions, however, are not borne out by the record The credible evidence shows that on August 22, 1941, there ww as a considerable amount of unfinished electrical work to be done, not only on the news ly ei eeted buildings but also throughout the yard Warner testified without contradiction, and we find, as did the Trial Examiner, that, when Bohlke told him, "You are through," he said to Bohlke that there was "some work which [has] to be fin- ished up, which [is] in an unsafe condition, and I would appreciate it if [you] would let us finish it up before we left, and he let us finish it up, and we were paid and left " Although the respondent dial =not' ' thereafter hire any electricians-until September 18, 1941, in the interim, according to Brigham and Bohlke, it assigned other employees, in- eluding Tuthill who had commenced his employment with the respond- ent in January 1941 and consequently possessed considerably less seniority than Warner and Sterling, to do the tasks formerly per- formed by Warner, Sterling, and Montgomery Tuthill had never joined the Union Furthermore, Brigham admitted that in July 1941, the respondent was planning to erect another new building on which it in fact started construction in December 1941 Neither Warner nor THE GREENPORT BASIN AND CONSTRUCTION COMPANY 393 Stealing was recalled to perform the-electrical wiring for the new building 9 On September 27, 1941, the Union's grievance committee, of which Warner was a member, met with Brigham, Snyder, Tulloch, and coun- sel for the respondent The committee requested that the respondent grant,a wage increase and reinstate the Union's members who had been laid off The respondent refused both demands On September 29, 1941, the Union called a strike which ended on October 1, 1941 Both Warner and Sterling were on the picket line during the strike. Montgomery, a former garage mechanic, was first employed by the respondent in March 1941, as an electrician's helper although he had had no previous electrical experience He was laid off on August 22 together with Warner and Sterling He was rehired on October 7, 1941, after he had abandoned his union membership, despite the un- questionably superior ability and length of service of both Warner and Sterling, who had had more than 10 years of experience as elec- tricians It is clear from the anti-union statements made by Bohlke to Warner and Sterling, the advocacy of these men on behalf of the Union and their outspoken opposition to the Association, the circumstances sur rounding their lay-off, the transfer of employees with less seniority and experience to perform the tasks of electricians, and the subsequent reinstatement of Montgomery, a less experienced employee who had renounced his union affiliation, in preference to Warner and Sterling, that the respondent sought to remove from the yard two influential members of the Union who might disrupt its organization of the Association Our finding in this respect is further supported by a remark which employee Khpp testified that Bohlke made to him in the latter part of August, to the effect that when he "got rid of Harry Warner [he] thought things would kind of die down and go back to normal" again Bohlke denied that he made such a' state- ment,to Knipp We reject the denial and find that Bohlke made the statement attributed to him by Knipp We find, as did the Trial Examiner, that Warner and Sterling were laid off and refused reinstatement because of their membership and activities in behalf of the Union, and because of their refusal to join the Association Walter Klipp started to work for the respondent in March 1941, as a painter's helper After working in the paint department for ap-' proximately 2 weeks, he was transferred to the machine shop, which 9 On September 18, 1941, the respondent iehired Sterlingpursu2nt to an ariangement made bi counsel for the respondent and the Union 's national representative whereby the Union agreed to consider entering into a consent election if Steiling were reinstated IIowevei , he was immediately laid off again on September 19, 1941, when the Union, the Association , and the respondent were unable to reach an agreement regarding a consent election 394 DECISIONS OF NATIONAL LABOR I RELATIONS BOARD was under Bohlke's jurisdiction He joined the Union at its organiza- tional meeting of July 26, 1941, in the presence of Brigham and Thorn- hill, and immediately became very active -in its behalf. Early in August he became a member^of the steering committee, and in Sep- tember was elected recording secretary. He openly solicited members and distributed union books and buttons in the yard He was never a member of the Association. He was discharged on September 18, 1941 - Klapp testified that he had the following conversation with Bohlke about the middle of August 1941, after Klapp had started wearing a union button to work every day • Bohlke asked him what his griev- ances were Klipp replied that he believed that he was entitled to an increase in wages. Bohlke then said that he liked Klipp's work and that if Klapp "stayed . with the company," he would see that Klapp received an increase He added that the respondent was not concerned with the Union's organizational activities since it had "ways of getting rid of union men " Several days later Bohlke asked Klapp, "how the union was making out," and Klipp replied that "it was mak- ing out all right " About August 20, 1941, Klapp further testified, Bohlke warned him that if he remained in the Union he would have "to take the consequences " Bohlke denied the anti-union state- ments attributed to him by Klapp 'and testified that on August 14, 1941, he told Klapp that "lie would have an increase in wages" as soon as he, Klipp, finished the job he was then doing We, like the Trial Examiner, find Klipp's testimony to be substantially in accord with the facts and accordingly reject Bohlke's denial Bohlke testified that on September 18,, 1941, when he entered the blacksmith shop where Klipp was then working he saw a group of about five or six other employees, most of whom were from other de- partments, gathered around Klipp's bench and heard Klipp's voice. Bohlke admitted that he listened for a few seconds but was unable to hear what was said and that, without waiting to ascertain the topic of conversation or the reason for the presence of men from the other departments, he left the shop and reported the incident to Tulloch, the respondent's secretary and treasurer It is undisputed that within a few minutes, Bohlke returned with Tulloch, who said to Klipp, "Get your tools and get out", Klipp asked why he was discharged and Tulloch replied, "You talk too much " The respondent contended at the hearing and in its brief that two other incidents occurring in September were deter mining factors in its decision to discharge Klipp The-facts as to the fiist incident are undisputed. Early in September 1941, a dispute arose between Klipp and Miller, another employee, i egarding the 'use of the punch machine in the blacksmith shop Klipp'refused to allow Miller to operate the THE GREENPORT BASIN AND CONSTRUCTION COMPANY , 395 machine, claiming that he, Klipp, had been put in charge of it Miller, returned to his department, without having used the punch machine, and reported the incident to his snapper boss, Abbott Muir, who in turn related, it to Brigham and Bohlke Klipp, when questioned by Brigham and Bohlke, said that he was only "kidding " Miller Bohlke then suggested that Brigham discharge Klipp Brigham refused, but warned Khpp that , in the future; he would not tolerate any "kidding " Bohlke testified that early in the afternoon of September 18, 1941, the day Klipp was discharged; Miller complained to -him that Khpp again refused to allow him to use the punch machine and that he told Miller, "Don't bother with it, just keep right on going, don't bother " Miller was called as a witness for the respondent but was not questioned about the incident We find, as did the Trial Examiner, that Bohlke's testimony in this regard is incredible and that this second incident did not in fact take place According to Krancher , the respondent's personnel director , the orig- inal notation on Khpp's personnel record stated that Khpp was "laid off." Krancher testified that he changed this notation, after conferiing with Bohlke, to "interfering with other men, slowing down work " The respondent's defense of Klipp's discharge is not persuasive be- cause of its obvious inconsistency . The credible testimony shows that the only reason assigned to Klipp by Tulloch at the time of the dis- charge was that Khpp talked too much There was no rule against talking in the yard on company time The credible evidence, on the contrary, establishes the fact that talking was permitted and freely indulged in by all employees , both supervisory and non-supervisory. Nor was the subject-matter of conversations restricted , for the record discloses that Brigham, Bohlke, and other supervisory officials spoke to the employees about numerous matteis, including the Union and the Association In any event , neither Tulloch non Bohlke sought to ascer- tain before dischaiging Klipp what the nature of his discussion with his coworkers was Moreover, it is significant that on no other occasion had anyone eves been similarly discharged or otherwise disciplined for talking on company time and property No explanation was off eied by the respondent to account for its deviation from established custom in this respect, nor for the fact that Khpp was singled out for dis- charge, while other employees who had paiticipated in the discussion with him were neither discharged nor otherwise disciplined Tulloch did not testify We find that Klipp was iiot discharged for talking ex- cessively or for any of the other ieasons assigned by the respondent. In view of Bohlke's anti-union statements and his open threats of dis- charge if Khpp's union activities continued , Khpp's persistent support of the Union , and the circumstances surrounding his discharge ,-we find, as did the Trial Examiner , that the respondent discharged Klipp pur- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suant to its program to rid itself of influential members of the Union who might obsti uct the progress of the Association Douglas Cummings and Alfred Hansen, Jr, were laid off on October 5, 1941 Cummings was first employed by the respondent as a rousta: bout in June 1940, and quit about 2 months later In March 1941, he was rehired as a mechanic and worked steadily in the machine shop under Bohlke's supervision until the clay of his lay-off Hansen was first hired in February or March 1941 as a machinist's helper and worked until the time of his lay-off at various jobs in the machine and blacksmith shops under Bohlke's supervision Both nien joined the Union on July 26, 1941, in the Village Hall in the presence of Brigham and Thornhill Hansen testified that early on July 28, 1941, Bohlke asked him why he had joined the Union and that Hansen replied that he had domed in order to get higher wages According to Hansen, Bohlke thereupon said that Hansen should have consulted him about the matter and added that if "you don't get rid of that cal d, we will have to let you go in a couple of weeks " Cummings testified that about noon that day Bohlke had a smul,tr conversation with him, in the course of which he said that anyone "who joins the union is going to get thrown out of the yard " Cummings further testified that about a week later he had the following conversation with Bohlke Bohlke asked Cummings whether he still belonged to the Union Upon receiving an affirmative reply, Bohlke said, "I thought I told you that any member of the C I 0 was going to get discharged " Thereupon Cummings asked Bohlke whether he wanted his identification button and tool chest To this Bohlke remarked, "No, I am not that dumb " Bohlke denied making the statements attributed to him by Cummings and Hansen. For the reasons stated above, Bohlke's testimony cannot be cieditecl, and we find, as did the Trial Examiner, that he made the statements attributed to him by Hansen and Cuininings On September 19, 1941, Cummings became a member of the steering committee of the Union He was one of the union representatives who conferred with the respondent on September 27 in regard to the Union's demands for a wage increase and reinstatement of members who had been laid off During the strike, immediately following the September 27 conference, both Cummings and Hansen were on the picket line They were never members of the Association Cum',- inings and Hansen testified without conti adiction that on October o, 1941, Bohlke told them that he had no work for them; that they were being laid off temporarily; and that when work picked up lie would rehire them On the same day, Bohlke laid-off six other men in his department, all of whom were members of the Union 10 10 The complanit does not cover the other six discharges THE.. GREENPORT BASIN AND CONSlRUCT1ON' COMPANY 397 The respondent contended at the healing that work on the boats then under construction had been completed, that it was therefore necessary to curtail its working, force, and that it selected for lay- off the eight men, including Cummings and Hansen, because of their poor workmanship and their lack of ability to do work in any other department of the yard The credible evidence does not support this contention The record does not disclose that the respondent ever adversely criticized the work of Hansen and Cummings On the- conti ary, at the time of the lay-off, Bohlke gave Cummings a letter of recommendation Furthermore, both Hansen and Cummings had worked in other shipyards prior to their employment with the re- spondent and had been assigned from time to time by Bohlke to jobs in vaitons departments under his jurisdiction Commencing in July 1941 and during the rest of the year, the respondent gradually in- ci eased the number of its production employees from 306 to approxi- mately 400 11 Despite the increase in the numbei of flew persons hired after the lay-off of Hansen and Cuminings,,the respondent re- fused to rehire them even though both sought reinstatement on sev- era] occasions during the latter part of October During October, and thereafter, the respondent, lured numerous persons to perform the duties formerly assigned to Hansen and Cummings Moreover, the respondent produced no records or other evidence tending to dis- close the condition of its business on or about October 6, 1941 The above facts, coupled with the respondent's demonstrated hostility to the Union, made it incumbent upon the respondent satisfactorily to explain the lay-offs of Hansen and Cummings 12 It is apparent that the employment of these men was terminated because they failed to heed Bohlke's warning to abandon the Union We find, as did the Tiial Examiner, that Hansen and Cummings were laid off be- cause of their membership and activity in behalf of the Union Alexey Ii anwetz was first employed by the respondent on Sep- tember 4, 1941 He testified that when he applied for a position as sheet metal worker, he was interviewed by Bohlke, who asked him about his union affiliation, and that when Kanwetz replied that he had none, Bohlke said that there was "a company union here Most of the fellows belong to it, and the C I 0 is trying to get" into the yard Kanwetz, howevei, did not follow Bohlke's suggestion and never joined the Association Kanwetz testified that on Sep- tember 20, 1941, the day after he joined the Union, he had the follow- 1 At the end of August the production employees numhere'l appioxunately 315 , appioei- mately 330 at the end of September , approxnnately 355 at the end of October , and appioximately it0 at the end of No%enibei 1941 'a See Montgomery Ward Iii v National Labor Relations Board, 107 F (2d) 555 (C C A 7), wherein the Court stated This infe,ence of discrmmnatory discharge leaves it-up to, the emplo3cr to giNe an adequate `explanation of the discharge,' eNen though the burden of pioof remains on the Bovd, since it is obnous that the seasons of-the discharge `lay exclusncly within its knowledge' " 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing conversation with Bohlke Bohlke said to Kanwetz, "I thought you told me you were not going to join the union " Kanwetz replied that Bohlke must have misunderstood him and that he had merely told Bohlke, at the time of their interview, that he did not then be- long to a union. Bohlke concluded the conversation by saying that Kanwetz still had a chance to-reconsider and that he "would be sorry for joining it" Bohlke denied that he made the above-quoted state- ments or that he had questioned Kanwetz of any othei applicant i e- garding his union affiliation The form of application used by the respondent, which was introduced into evidence, requires the applicant to state his union affiliations, if any We theiefore reject Bohlke's denials and find, as did the Trial Examiner, that Bohlke made the statement attributed to him by Kanwetz. - Kanwetz soon became active in the Union, lie openly solicited mem- bers and joined the picket line during the Alike. Kanwetz testified that when he returned to the yard after the strike he asked his snapper boss, Muir, whether wearing a union button "would make any differ- ence" and that Muir replied, "You might as well walk down to the end of the dock and throw it in the bay " Muir_ denied that he ever talked with Kanwetz about the Union We reject this denial, as did the Trial Examiner Muir was one of the founders of the Association and actively solicited members in its behalf Consequently; it is rea- sonable to assume, and we find, that he made the statement attributed to him by Kanwetz Kanwetz testified further, without contradic- tion, that shortly after the strike, his job was changed from that of riveter to filer's helper, a less desirable position In regard to his discharge on October 30, 1941, Kanwetz testified as follows That day Muir assigned him to help John Klein, who was in charge of building engine beds Klein, who had previously cut off seven intercostals 13 foi a boat then under construction, told Kanwetz that one of them was about 1/i 6 of an inch too wide at one end and, in the presence of Muir, ordered Kanwetz to follow the markings on the intercostal and cut the intercostal to the proper width. Kanwetz carried out Klein's instructions; when he finished the work, Klein accused him of spoiling the intercostal and denied to Bohlke, to whom the incident was repoited, that he had given Kanwetz instructions to -cut the intercostal Without waiting to hear Kanwetz's explanation, Bohlke summarily discharged Kanwetz In response to Kanwetz's plea that he needed a job and that Bohlke should reconsider his orders, Bohlke said, "I told you you would be sorry for [joining the Union] " Concerning this incident Klein testified as follows Upon measuimg the intercostals, he discovered that six were cut true to the specifica- tions but that the seventh was leis of an inch too wide at a certain 13 An intercostal is a piece of flat metal that is placed between the stern and the engine ,bed of a ship THE GREENPORT BASIN AND CONSTRUCTION COMPANY 399 point He told his three helpers, namely, Kanwetz, Havens, and Gagen, that he would have to check with the mold and decide what to do He did not indicate to them where the intercostal was too wide. Leaving the imperfect, inteicostal on the pin block, Klein went outside the shop to check the patterns and was gone about 8 or 10 minutes: When the returned, the intercostal was no longer on the pin block but was on two steel sawhorses, and Kanwetz was "just finishing cutting that inteicostal " Without measuring it, he immediately perceived that Kanwetz had cut the intercostal 1/ s of an inch too short Klein reprimanded Kanwetz and threw the inteicostal against the side of the pinblock Shortly thereafter, Muir enteied the shop According to Muii, lie noticed Kanwetz grinding on an intercostal which was on the pin block when he entered the shop, saw that the intercostal had been badly cut, and asked Klein who had done the work Muir stated that he then left the shop and in a few minutes returned with Bohlke, who theieupon discharged Kanwetz Bohlke testified that he-did not see Kanwetz cut the intercostal, but believing Muir's'ver- sion of the incident, he discharged Kanwetz The testimony of Muir and Klein is patently Inconsistent and obviously implausible Kan- wetz's veision of the events leading up to his discharge is, on the contiaiy, amply supported by the suiiounding circumstances We consequently accept, as did the Tiial Examiner, the testimony 'of Kanwetz and find that he was not dischaiged because Bohlke believed that he had spoiled the intei costal but rather that the incident as to the inteicostal meiely served as pretext upon which the iespondent seized to conceal its seal purpose in dismissing Kanwetz We find that Kanwetz was in fact discharged because of his membership and activities in behalf of the Union Upon the entire iecord we find that the respondent, by laying off Harry Warner, Walter Sterling, Douglas Cummings, and Alfred Han- sen, Ji , and by discharging Arthur Knipp and Alexey Kanwetz, and thereafter refusing to reinstate them, has discriminated in regard to their lice and tenuie of employment, theieby discouraging membership in the Union and encouraging membership in the Association, and has accoidingly inteifeied with, restiained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act The discharge of Jennings Frederick G. Jennings was first employed on April 21, 1941, as a mechanic He joined the Union in June 1941 , and the union activity in which he engaged, until the date of his discharge on August 15, 1941, was limited to attending the July 2G union meeting and wearing his union button in the'plant for a week 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jennings admitted that he was absent from work for 4 clays without permission and had spent part of that time on a pleasure trip to Canada When he returned to the yard on August 14, 1941, Bohlke told him that he was being dischaiged for not having obtained Bohlke's permission to stay away from work and to go to Canada - The respondent contended at, the heaiing and in its brief that Jen- nnngs was chschaiged foi violating Its long established iule that an employee must fiist obtain permission fiom his snapper boss or his foreman before he may take a leave of absence foi more than 2 days It also maintained that in April 1941, the Federal Bureau of Investiga- tion promulgated a rule prohibiting an employee of a company engaged in defense work from "taking an a nauthoiized vacation to another country " That Jennings was familial with the respondent's rule is evidenced by his testimony to the effect that on June 28, 1941, he asked and obtained the permission of his snapper boss to remain away from the plant fi om June 29 to July 7, 1941 We find, as did the Trial Examiner, that the evidence is insufficient to warrant the conclusion that Frederick G Jennings was discharged because of his membership or activities in behalf of the Union IV THE EFFECT OF THE IINF SIR L A BOR PR 1CTICES UPON COMMERCE We find that the activities of the respondent set forth i n 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 engaged in unfan labor prac- tices, we shall ordei it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act I We have found that the respondent dominated and inteifeied w11,11 the foimation and administration of the Association and contributed support to it In order to effectuate the policies of the Act and to fiee the employees of the respondent from such domination and inteifeience, and the effects thereof, we shall order the respondent to withdraw all recognition from the Association as 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 and completely to disestablish it as such representative We have found that the respondent discriminated in regard to the hire and tenure of employment of Hairy Warner, Walter Sterling, THE- GREENPORT BASIN AND. CONSTRUCTION COMPANY 401 Alfred Hansen, Ji , Douglas Cummings, Arthur Klipp, and Alexey Kanwetz We shall older the respondent to offer Harry Warner, Alfred Hansen, Jr , Douglas Cummings, Arthur Khpp, and Alexey Kanwetz immediate and full Ieumstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and pirvileges, and to make each of them whole for any loss of pay each has suffered by reason of the discliminatlon by payment to each of a sum of money equal to that which he normally would have earned as wages during the period from the date of the discrnnmation against him to the date of the respondent's offer of reinstatement, less his net earnings 14 during such period Sterling testified that lie did not desire reinstatement We shall consequently not diiect that he be iestoiecl to his employment but we shall oidei the iespondent to make Sterling whole for any loss of pay he has suffered by ieason of his lay-off by payment to him of a sum equal to that amount which lie normally would have earned as wages dining the period ftom the date of his lay-off to the date upon which he secured the job he held at the time of the heating, less his net earnings. during such period Since -Ni e have found that the respondent did not discriminate with respect to the hire and tenure of employment of Fredeiick G Jennings, we shall order that the complaint be dismissed as to him Upon the basis of the foregoing findings of fact and upon the entice iecoi cl in the case, the Board makes the following CONCLUSIONS OF LAW 1 Industrial Union of Marine and Shipbuilding Workers of Amer- ica, Local #47, C I 0, and The Gieenpoit Basin and Construction Company Employees Association, aie labor oigamzations, within the meaning of Section 2 (5) of the Act 2 By dominating and inteifeimg with the formation and adnun- istiation of The Gieenpoit Basin and Construction Company Em- ployees Association, and contiibuting financial and other support to it, the respondent hasengaged in and is engaging in unfan labor pi actices, within the meaning of Section 8 (2) of the Act 3 By discinnmatmg with legal d to the hire and tenure of employ- ment of Hairy Warner, Waltei Steilnig, Douglas Cumlmngs, Alfred "By "net eauungs" is meant earnings less expenses , such as for transportation, loom and boiid incurred b5 an emploNee in connection with obtaining Roil, and working else- wheie thus foi the respondent , which would not have been incuried but for his unlawful dischiige and the consequent necessiti of his seeking empioynient - elsenheie See Dlatter of Gossett Lumber Company and United Broth( hood of Cm penters and Joiners of Amei ica Lnmbei and Sawmill ]Porkers Union, Local 2590, 8 N L R B 440 Monies i eeon ed for wort, performed upon Fedeial State, county, municipal or other nOik-relief pioocets shall be consideied as earnings See Republic Steel Corporation v National Loboi Relation Bomd, 111 U S 7 472814-42-', of 42--26 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hansen, Jr, Arthur Klipp, and Alexey Kanwetz, thei eby discoui ag- ing membership in Industrial Union of Marine and Shipbuilding Workers of America, Local #47, C I 0, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (3) of the Act. 4 By interfering with, restraining, and coercing its employees in - the exercise of the rights guaranteed- in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfan labor practices, within the meaning of Section 8 (1) of the Act 5. The aforesaid unfair labor practices aie unfan labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act 6 The respondent has not discriminated with respect to the hire and tenure of employment of Fiedei ick G Jennings ORDER Upon the basis of the-above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Boaid hereby orders that the respondent, The Gieenport Basin and Construction Company, Gieenport, New York, its officers, agents, successors, and assigns shall 1 Cease and desist from (a) Dominating or inteifeiing with the administiation of The Gieenport Basin and Constiuction Company Employees Association, or with the formation or adnnnistiation of any other labor oigani- zation of its employees, and from contributing financial of other support to The Greenpoit Basin and Construction Company Em- ployees Association or to any other labor organization of its employees; (b) Recognizing The Gieenpoit Basin and Construction Company Employees Association as the iepiesentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, Local #47, or any other labor organization of its employees by discriminating in regard to the hue and tenure of employment of its employees, or any term or condition of their employment; (d) In any other manner interfering with, restraining,.oi coercing its employees in the exercise of the right to self-organization, to form, loin, and assist labor organizations, 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 and protection, as guaranteed in Section 7 of the Act THE GREENPORT BASIN AND CONSTRUCTION COMPANY 403 2 Take the following affirmative action which the Board finds -will effectuate the policies of the Act. (a) Withdraw all recognition from The Greenport Basin and Construction Company Employees Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances; labor disputes , wages, rates of pay, hours of employment , or otlier conditions of employment , and completely dis- establish The Greenport Basin and Construction Company Employees Association as such representative; (b) Offer to Hariy Wainer, Douglas Cummings, Alfred Hansen, Jr, Aithur Klipp, and Alexey Kanwetz immediate and full rein- statement to their former or substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges; (c) Make whole Harry Warner, Douglas Cummings, Alfred Han- sen, Jr , Arthur Khpp, and Alexey Kanwetz for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each-of them of a sum of money equal to the amount which lie normally would 'have earned 'as wages during the - per`iod from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during such period, (d) Make whole Waltei Steilnng for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have eai ned as wages dining the period fiom the date of his dis- chaige to the date upon which he secured the job he held at the time of the heaiing , less his net earnings during such period; (e) Immediately post in conspicuous places throughout its ship- yard, and maintain for a peiiocl of at least sixty (60) consecutive days from the date of hosting,' notices to its employees stating ( 1) that the respondent will not engage in the conduct fiom which it is oidered to cease and desist in paragiaphs 1 (a), (b), (c ), and (d ), of this Order, ( 2) that the i espondent will take the affirmative action set forth in paiagraphs 2 (a), (b), (c), and (d ) of this Order; and (3) that the respondent 's employees are fiee to become or remain members of Industrial Union of Marine and Shipbuilding Workers of America, Local #47, and the respondent will not discriminate against any em- ployee because of his membership or activity in that organization; (f) Notify the Regional Diiector for the Second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith; AND IT is FURTHER ORDERED that the complaint be, and it hereby is, dismissed'msofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of -Frederick G Jennings -