The Texas Co.

In the Matter of THE TEXAS COMPANY, MARINE DIVISION and NATIONAL MARITIME UNION5 PORT ARTHUR BRANCH Case No C-1276 -Decided July 18,1942 Jurisdiction : petroleum products production and distribution industry Prevention under Act of discrimination by maritime employer against seamen who have engaged in normal and lawful union acti,,ity and reinstate- ment of a maritime employee discriminately discharged, held not incompati- ble with marine safety legislation Unfan Labor Practices. Intel fel once, Restl aint, and Coeicion anti-union statements by supervisory em- ployees, tbieatening to dischaige union members, questioning employee about membership in union Discrimination dischaige of employee because of his union activities found dis- cnminatoiy Remedial Order : reinstatement and back pay, including reasonable value of boaid and maintenance, awarded Practice and Procedure : sections of the Board's oiiginal Decision dealing with the dismissed allegations of the complaint which were not the basis of any part of the Boaid's Older which was before the Court on the petition for review, and not within the scope of the Court's remand, not reconsidered lfr E. P. Davis and Mr Alba Burnham Martin for the Board. Mr. A E Van Dusen, of New Yolk City, Mr. James H. Pipkin, of Houston, Tex , and Mr. J. W. Williams, of Port Arthur, Tex., for the i espondent. Mandell c Combs, by Mr Herman Wright, Mr. W. A. Combs, Mr. Arthur J. Mandell, and Air Otto Mullinax, of Houston, Tex., and Mr Max Lustig, of New York City, for the Union. - Mr. Robert R Hendricks and Mr. Edward J. Creswell, of counsel to. the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by National Maritime Union of America,' Poit Arthur Branch, heiein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its ' Incorrectly designated in the complaint and other formal papers as "National Maritime Union " - 42 N L R B, No 123 472814-42-vol 42-38 593 594 DECISION'S OF NATIONAL LABOR RELATIONS BOARD complaint dated September 3, 1938, against The Texas Company, Marine Division, New Yolk City and Houston, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, heiein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the iespondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent discliai ged and thereafter refused to reinstate 10 of its employees 2 for the ieason that they, and each of them, joined and/or assisted the Union and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid and protection, thereby discriminating in regard to the hire and tenure of employment of these employees and discouraging membeiship in the Union; that, since on or about August 1, 1937, the iespondent, through its officers, agents, and employees, has made various statements to its employees discoui- aging affiliation in, or activity on behalf of, the Union, that, through its officers, agents, and employees, the respondent has denied passes to representatives of the Union to board the respondent's vessels in. order to meet, with members of the Union; and that, by the afore- mentioned and other acts, the iespondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - On September 12, 1938, the respondent filed its answer and its amended answer to the complaint, in which it denied having engaged in any unfair labor practices, but admitted that certain of the em- ployees named in the complaint had been discharged and refused ieinstatement.3 In its amended answer the respondent also admitted that it had denied passes to representatives of the Union to board itss vessels, but averred that such denial had not been discriminatory 2 The complaint listed the employees allegedly dischar ged , the, dates of the alleged dis- charges, and the ships from which they took place, as follows F W Zinkiewycz, April 18, 1938, S S Rhode Island , D G MacClennan , April 17, 1938, S S Rhode Island, c Backless , April 18 , 1938, S S Nevada , J Gordon Rosen , April 19, 1938, S S Nevada, F W Zinkiewycz, July 14, 1938, S S Washington,; C Buckless, July 14 , 1938, S S Wash- ington , J Goidon Rosen , July 14 , 1938, S S Washington , James P Blasingame, Septem- ber 19 , 1937, S S California , Arthur Spencer , September 19,-1937 , S S California, J Gordon Rosen, September 19, 1937, S S California, A P Lortie, July 30, 1938, S S Roanoke, John Helton , July 30 , 1938, S S Roanoke , C T Adams , July 30, 1938, S S Roanoke, R M Lyons, July 17, 1938 , S S Roanoke 2 The respondent admitted in its amended answer that it had, on the dates given, dis- charged the following employees from the following named ships C Buekless , April 18, 1938, S S Nevada , J Gordon Rosen, April 19, 1938, S S Nevada , F W Zinkiewycz, July 14, 1938, S S Rhode Island, J Gordon Rosen , .July 14, 1938 , S S Washvngton, C T Adams, July 30, 1938, S S Roanole , A P Lortie , July 30, 1938, S S Roanoke, John Helton, July 30 , 1938, S S Roanoke , C Backless, July 14 , 1938, S S Washington THE TEXAS COMPANY, MARINE DIVISION 595 Pursuant to notice, a healing was held at Port Aithui, Texas, from September 12 through September 22, 1938, before Howard Myers, the Trial Examiner duly designated by the Boaid The hearing was continued at Port Arthur, Texas, on November 28 and 29, 1938, before Chailes E Persons, another Trial Examiner duly desigated by the Boar d The Boai d, the respondent, and the Union were i epi esented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the beginning of the hearing, counsel for the Boaid moved to amend the complaint to include an allegation that the respondent discharged and refused to reinstate 2 men 4 not previously named therein for the reason, among others, that they had joined and/or assisted the Union The Trial Examiner granted the motion without objection With the consent of all the parties, the respondent's answer was deemed amended to include a denial of the allegation that these 2 men were discharged in violation of the Act During the course of the hearing, counsel for the Board moved to dismiss the allegations in the amended complaint as to certain discharges of 7 of the 12 em- ployees named 5 The Ti Trial Examiner granted the motion, which was not opposed Also during the course of the hearing the respondent made various motions to dismiss the amended complaint in its entirety; to dismiss that portion of the amended complaint which alleged that Rufus H Andrews and F W Zi nkiewycz were discharged by the i espondent on July 8 and July 14, 1938, respectively, because they had joined and/or assisted the Union; and to strike certain testimony. Decision on these motions was reserved by the Trial Examiner at the hearing: In his Intermediate Report, the Trial Examiner 6 denied the motions to dismiss the amended complaint in its entirety and the mo- tions to strike cei tarn testimony, but granted the motions to dismiss the amended complaint as to Rufus H. Andrews and F W. Zm- kiewycz At the close of the hearing, counsel for the Board proved to conform the complaint to the proof. This motion was granted by the Trial Examiner. During the course of the hearing, the-Trial Exam- iners made rulings on other motions and on objections to the admission of evidence The Board has ieviewed the^rulmgs of the Trial Exam- 4 The names of these employees , the dotes of the alleged discharges , and the ships from yr h,ch they took place an a Rufus H Andrews , July 8, 1938, S 8 Australia , Jack Wilson, March 17, 1938, S S Washington 5 These seven discharges involved the following employees who were alleged to have been discharged on the following dates from the following ch,ps F W Zinknewycz , April 18, 1938 , S S Rhode Island, D G MacClennan , April 17 , 1938 , S S Rhode Island , Arthur Speneor September 19, 1937 S S California , John Helton , July 30, 1938, S S Roanoke; U T Ad ins , July 30, 1938 , S S Roanoke R M Lyons, July 17, 1938, S S Roanoke, Jack Wilson, March 17, 1938, S S Washington - °,The Inteimediate Report was submitted by Trial Examiner Howard Myers 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iners and finds that no prejudicial errors were committed The iulings are hereby affirmed. On May 8,1939, Trial Examiner Myers filed an Intermediate Repoi t, copies of which were duly served on the paities, finding that the ie-- spondent had engaged in and was engaging in unfair laboi practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respond- ent cease and desist from its unfair labor practices; that it reinstate with back pay 4 of the 12 employees originally named in the amended complaint, and`that it take certain affirmative action to remedy the situation brought about by the unfair labor piactices He dismissed the allegations of the complaint, as above stated, with respect to Rufus H Andrews and F. W Zinkiewycz. The respondent filed a Statement of Exceptions to the Intermediate Repoit and to the record on July 14, 1939, and a brief in support of the Statement of Exceptions on July 17,1939. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was held on Oc- tober 24, 1939, befoie the Board in Washington, D C. The respond- ent and the Union were represented by counsel and participated in the argument. On January 24, 1940, the Board issued a Decision and Order in the case? The Board found in its Decision that the respondent, by wain- ing its employees against union organization and by other acts, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) thereof ; and that the respondent, by discharging Clarence Buckless on April 18, 1938, and J. Gordon Rosen on April 19 and July 14, 1938, and thereafter refusing to reinstate them, because 'of then union affilia- tion and activities, engaged in unfair labor piactices within the mean- ing of Section 8 (3) and (1) of the Act. The Board ordered the re- spondent to reinstate Rosen with back pay, and awarded back pay to Buckless whom the respondent had already reinstated. - On May 7, 1940, the respondent filed a petition for review of the Board's Decision and Order in the United States Circuit Court of Appeals for the Ninth Circuit, and on June 24,1940, the Board filed an - answer requesting enforcement of its Oider. Upon biiefs filed by the respondent and the Board, and after oral argument in which the respondent and the Board participated by counsel, the Court, on May 23, 1941, entered its opinion and a decree denying enforcement of the Board's Order as to Buckless and remanding the remaining portions 7 Matter of The Texas Company, Marine Division and National Maritime Union, Port Arthur Blanch, 19 N L R B 835 THE TEXAS COMPANY, MARINE DIVISION 597 of the Order to the Board for reconsideration in the light of certain maritime safety statutes to which the Court adverted in its opinion On June 28, 1941, the Board vacated and set aside its Decision and Order of Januaiy 24, 1940, with the exception of paragraph 2 (a)$ thereof. Pursuant to notice duly served upon the respondent and the Union, a hearing for the purpose of reargument was held before the Board in Washington, D C., on July 17, 1941. The respondent and the Union were represented by counsel and participated in the argument, and the respondent then filed a brief which the Board has considered. Upon the entire record, and pursuant to the remand of the United States Circuit Court of Appeals for the Ninth Circuit, the Board makes the following : FINDINGS OF FACT I THE BUSINESS OF TIIE RESPONDENT _ The respondent, The Texas Company, a wholly owned subsidiary of The Texas Corporation, is a Delaware corporation, with its prin- cipal business and executive offices located at New York City and Houston, Texas It is engaged chiefly in the production, distribution, and sale of petroleum and petroleum products. The respondent op- erates refineries in Texas at Galena Park, Port Arthur, and Port Neches In addition, at Port Neches, it operates a factory for the manufacture of roofing materials, barrels, and various other products. Chief products of the Galena Park refinery are gasoline and fuel oils. The crude oil used in their manufacture comes principally from producing wells in Texas and New Mexico through pipe lines operated by the Texas New Mexico Pipe Line Company. This company is a common carrier with tariffs prescribed by the Interstate Commerce Commission A majority of its stock is owned by The Texas Corpo- ration The average daily throughput of the Galena Park refinery is approximately 20,000 barrels of crude oil. Of the finished prod- nets, approximately 75 percent is shipped out of Galena Park on board seagoing tankers to points outside the Stafe of Texas. The principal products manufactured at the respondent's Port Neches works are roofing, asphalt, steel barrels, wood barrels, and drums. The principal raw materials used are crude oil, felt, sheet steel, wood staves, slate, paper, and nails. The daily average through- put of crude oil is approximately 25,000 barrels. Most of the crude oil is obtained from Texas and Louisiana, but substantial quantities arrive 8In this paragraph back pay was awarded Buckless As noted above, enforcement of the Board s Ordei as to Buckless was denied by the Circuit Court of Appeals 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by tanker and barge from Mexico All of the felt, slate, sheet steel, and papei is procured fi om outside the State of Texas The unfinished crude distillates from both the Galena Park and Port Neches refineries are pumped to the respondent's Port Aithur refinery wheie the iefinuig piocess is completed In refined form, a substantial percentage of the ciude-oil distillates pumped to Port Arthur eventually reaches a destination outside the State of Texas. Products of the respondent are, in part, distiibuted through 2,100 wholesale outlets and over 40,000 retailers located in most of the States of the United States. Gross receipts of the respondent for the fiscal year ending December 31, 1937, were in excess of $280,000,000 In the respondent's franchise-tax return to the Secretary of State of Texas, covering the year 1937, over 86 percent of its business was reported as interstate in character and approximately 13 peicent was reported as intrastate The respondent owns, maintains, and operates through its Marine Division approximately 28 oceangoing vessels having an average ca- pacity of 11,000 tons. These vessels are used by the respondent in transporting its petroleum products between various ports in the Gulf of Mexico and other ports of the United States, and to and from Eu- rope, South America, and other points. H THE ORGANIZATION INVOLVED National Maritime Union of America, Port Arthur Bi anch, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all unlicensed seamen employed by the respondent. III THE UNFAIR LABOR PRACTICES The Board, in its original Decision, dismissed the complaint insofar as it alleged that the respondent had iefused to issue passes to union representatives, in violation of Section 8 (1) of the Act, and that the respondent had discriminated in regard to the hire and tenure of employment of Rosen and Blasingame by discharging them from the S. S. California during September 1937, of Loitie, Zinkiewycz, and Andrews, by discharging them from the S. S. Roanoke, S. S. Australia, and S S. Washington during July 1938, and of Buckless, by discharging him from the S. S. Washington on July 14,1938, in violation of Section 8 (3) and (1) of the Acts Since those sections of the Board's original Decision dealing with the dismissed allegations of the complaint were not the basis of any part of the Board's Order which was before the Court on the petition for review, they are not within the scope of the Court's remand and will not, therefore, be reconsidered 9 19 N L R B 835 THE TEXAS COMPANY, MARINE DIVISION 599 A Interference, restraint, and coercion Both J Gordon Rosen and James P Blasingame were hired by the respondent on or about June 30, 1937, at Port Arthur , Texas, and were assigned to the S S California as able-bodied seaman and quarteimastei , respectively. When Rosen went on board, he reported for duty to Eail Baldwin, then acting first mate of the S S California According to Rosen's account of the ensuing conversation , Baldwin stated to him, "Just a minute, theie is one thing I want to tell you we don't allow on this ship, and that is getting diunk , missing watches, and we don't allow any agitation with the ciew on this union business ." Blasingame gave a similar account of his first conversation with Baldwin He testified that, when he boarded the S S California, Baldwin warned him against thiee things "diunkenness," "missing watches," and-"union agitating " Soon after Rosen and Blasingame went to work on the S. S Cali- fornia, its regular first mate, Dave Rosen, returned to the ship from a leave of absence, and Eail Baldwin was shifted back to his regular positron as second mate As such, Baldwin was in charge of the 12 to 4 watch during which Blasingame, as quartermaster, steered the ship. In the course of their duties, Blasingame and Baldwin were fie- quently on the bridge together and engaged in various conversations. Concerning these conveisations, Blasingame testified that Baldwin told him how the ship had been iun without union men aboard and how he ( Baldwin ) had to get rid of a man "because he was agitating union all the time " On one occasion , accoiding to Blasingame, a newly hired seaman came aboaid wearing a union button Baldwin, upon seeing it. remarked, "There is a roan who won't ride this ship long" At another time, Blasingame testified , Baldwin asked him if a ceitain new seaman was a "iank and file 710 Blasingame replied that he did not know, and Baldwin said , "Well, if he is he won't be on this ship vei y long " Blasingame also testified that Baldwin asked him about his own union affiliation as well as that of various other crew members, including J Gordon Rosen. Blasingame avoided giving a direct answer to the question as to his own membership in the Union, he testified, and told Baldwin that he knew nothing about the member- ship of the others. On the termination of this voyage, both Blasingame and J . Gordon Rosen left the ship When J. Gordon Rosen was being paid off, to During the first stages of its oiganization , and for some time thereafter, the Union was commonly iefei red to as the "rank and file" -600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baldwin commented on Rosen's termination of employment as fol- lows "Well, you know we don't want any agitating back there " Baldwin testified that, when J. Gordon Rosen and Blasingame first boarded the S S California, he simply told them to go to their quarters He denied warning them against "union agitation " Al- though he admitted having had, as second mate, various conversa- tions with Blasingame, he flatly denied each and every anti-union statement attiibuted to him by the latter. Trial Examiner Myers, before whom Baldwin testified, did not credit Baldwin's denials, nor do we. We find that Baldwin made the statements attributed to him by J. Gordon Rosen and Blasingame, substantially as recited above. An acting first mate on the S S. California when J Gordon Rosen and Blasingame were hired and when he warned them against "union agitation," Baldwin was second in authority only to the captain As second mate at the time of his various conversations with Blasin- game on the bridge of the S. S Calif orliia, Baldwin was the third ranking officer on the ship. During the absence of his superior officer or officers, Baldwin was in complete charge of the ship. He was at all times in charge of the deck crew during one watch of 8 hours each day. The respondent is clearly accountable for the anti-union statements made by him 11 We find that the iespondent, by warning its employees against union organization, by threatening the discharge of union members, and by questioning an employee concerning the identity of union members, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The shipping articles As stated above, the amended complaint charges the respondent with having discharged and iefused to reinstate various employees, in violation of Section 8 (3) of the Act. It is undisputed that each seaman involved in the alleged discharges, which are discussed below, signed shipping articles required by law,12 and that each received his discharge certificate 13 at the port at which be had originally embarked. The respondent contends that there is and can be no issue of unlawful discharge in this proceeding, because the shipping articles constituted contracts of employment under which the employment relationship was terminated, as a matter of law, at the end of the paiticular voyages concerned 11 Cf Vaigtnta Ferry Corporation v National Labor Relations Board, 101 F - (2d) 103 (C C A 4), enf'g as mod Matter of Virginia Ferry Corporation, 8 N L R B 730 12 46 U S C A, Sec 564, 46 U S C A, See 574 "In the event that a seaman quits a particular vessel of is dismissed for any reason, the law requires that he be given a discharge certificate 46 U S C A , Sec 643 THE TEXAS COMPANY, MARINE DIVISION 601 - We do not concur in this view. It is clear from the record that the termination of a voyage does not, as a matter of fact, terminate the employment relationship between the respondent and the mem- bers of the crew With the exception of those seamen who either quit or are dismissed, the crew continues in the performance of its duties Regular watches are maintained and the seamen remain subject to the orders of their ship's officers. Oidinarily the same crew goes on the succeeding voyage Despite the fact that seamen may have concurrently signed shipping articles for a voyage, the respondent may dismiss them on different days upon or after the end of the voyage, thus indicating that it is the dismissal by the respondent's officers rather than the completion of the voyage which terminates the employment relationship Fur- thermore, the respondent's working rules provide that "all unlicensed personnel with one year of continuous service shall be given an annual yacation of one week with pay," and that "those in continuous service for two years or more shall be given an annual vacation of two weeks with pay." Since shipping articles signed by the respondent's sea- men are never for-voyages lasting as long as a year, these provisions of the working rules would be meaningless if, as the respondent contends, the employment relationship ended upon the completion of each voyage. On the basis of all the evidence, we find that, notwithstanding the termination of a particular voyage, the employee relationship of each member of the crew on the respondent's ships here involved continued until he quit or until lie was dismissed for lawful cause 14 C The discharge of J Gordon Rosen from the S S "Nevada" On January 10, 1938, J Gordon Rosen was again hired by the re- spondent and was assigned to the S S Nevada as an able-bodied seaman When Rosen boarded the S S Nevada he found that the entire crew, with the exception of one man, was composed of members of the Union Rosen at once became active in 'affairs of the Union He presided over meetings held in the crew's quarters each week and acted as a delegate to discuss various controversial grievances with the ship's officers He drafted a letter, copies of which the crew sent through 14 South Atlantic Steamship Company of Delaware v National Labor Relations Board, 116 F (2d) 480 (C C A 5), enf'g as mod Mattel of South Atlantic Steamship Company of Delaioane, 12 N L R B 1367, ceit denied, 313 U S 582, National Labor Relations Board v TVato+man Steamship Corporation, 309 U S 206, rev'g 10; F (2d) 157 (C C A 5), mod Matter of TVate,man Steamship Corporation, 7 N L R B 237 See Southern Steamship Company v National Labor Relations Board, 62 S Ct 886, rev'g and rem'd'g 120 F (2d) 505 (C C A 3), enf g as mod Matter of Southern Steamship Company, 23 N L R B 2b 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the malls and hiring halls to crews of the respondent's other ships, urging them to join the Union. It is clear that Rosen was outstand- ing as an active union leader on board the S. S Nevada, and that the .hip's officers were aware of his activity. On April 18, 1938, when the S S Nevada docked at Port Arthur, Buckless was discharged by Captain Swanson. Rosen , as crew dele- gate, immediately protested Buckless' discharge to Fnst Mate Tran- berg and was, in turn, discharged on the following day Tranbeig, in answer to Rosen's request for an explanation of his discharge, stated , "Well, it might be for the reason that your work is not satisfactory " The respondent contends that Rosen's employment was terminated because he was lazy and inattentive to duty. 'r'ranbeig testified that Rosen seemed to "intentionally lag behind in his work," and that on various occasions he left his post when he was supposed to be on watch and went aft to play cards, write, or smoke Captain Swanson tes- tified that Rosen appeared to be "purely lazy" and that Tianbeig had often complained about his work Rosen denied that he had been derelict in the performance of any of his duties It is clear, and we find, that he did not use tobacco The respondent's charge of neglect of duty on the part of Rosen is also refuted by Rosen's long record at sea,16 and his previous admittedly satisfactory service with the respondent as quartermaster on the S S Nevada in 1935, and as temporary boatswain on the S S California in 193716 We believe that the reasonable resolution of this conflicting testi- mony, as well as the respondent's reason for discharging Rosen, is revealed by the testimony of Leo Heiman and George Hart Herman, who was not a member of the Union, was hired as a seaman on the S. S Nevada on April 19, 1938, some horn s' after Buckless' dismissal but before Rosen's discharge. Rosen and other union members voiced strenuous objection to Herman's employment, because of his non- union status 1-ieiman reported this to Tranbeig, who questioned him as to the identity of the objectors. Herman testified that, when lie refused to divulge this information, Tranbeig remarked: "At the time of the hearing , Rosen had had 10 years ' experience as a seaman 19 As discussed below , less than a ,month and a half after Rosen had received his dis- charge papers from the S S Nevada, he was reluied by the respondent on the S S Wach- angton In its brief and at the oral argument, the respondent urged that the fact that Rosen was refined demonstrates that he had not been discharged from the S S Netada because of his activity in the Union We do not believe that this argument resolves any of the nseues It might equally well be urged that the respondent would not have rehired Rosen, as it did, if he ens in fact negligent and lazy The record indicates that, Insofar as the hiring of unlicensed seamen is concerned , each of the respondent 's ships was operated largely as a separate unit, obtaining its employees from any of various uncoordinated agencies A man might therefore be discharged from one of the respondent 's ships and thereafter be rehired on another , the rehunng having little or no bearing upon the merits of, or the reasons for, the previous discharge THE TEXAS COMPANY, MARINE DIVISION 603 I know who you had the conversation with It was Baldy 17 Baldy is a good man but he let the Union go to his head We had _a boatswain on here; he done the saine thmg Every time a [new] man comes on board he asked him if he had a union book. Nine days later, Tianberg told Herman, according to the latter's ,testimony, that he [Tranberg] fired Baldy on account of union activities but that is not the reason he gave him . . . the only reason he [Tianbdig] told me was that I told him I didn't belong to the NM.U ... Quartermaster Hait of the S S Nevada corroborated the first of these two conversations, which he had overheard, and testified that, prior to Rosen's discharge, when Tranberg was investigating the crew's opposition to Herman's employment, he directed Hart to tell those people I don't want none of that kind of stuff on here. I am not going to have it I thought I got rid of that when I got rid of that fellow yesterday. Hart testified that Tranberg's allusion to "that fellow" was to Boat- swain Buckless, who had been discharged- on the previous day. It is apparent from Tranberg's remark that further punitive measures were contemplated at that time Tranberg denied the statements attributed to him by Herman, but did not testify as to his conversation with Hart. On the entire record, we credit the testimony of Herman and Hait, and we find that the iespondent discharged J Gordon Rosen from the S S Nevada because of his union membership and activities, thereby discriminating in regard to his hire and tenure of employment, discouraging membership in the Union, and inter- fering with, resti airing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D The discharge of J Gordon Rosen from the S. S. "Washington" J Gordon Rosen was unemployed fi om the time he left the S S. Nevada until June 1, 1938, when be was relined by the respondent as an able-bodied seaman on the S S Washington. As in the case of his pi evious employment with the respondent, Rosen became outstand- ingly actin e in the affairs of the Union soon after his arrival on the ship. He piesided over meetings and was elected a delegate . In that capacity, from tinie to time, he presented various grievances of the crew to Captain Beigi7ian of the S S Washington Bergman told Rosen that the respondent "didn't recognize any union," but discussed "Rosen Ras commonly called "Baldy" 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the various grievances with him On July 11, 1938, Rosen drafted and signed an open letter from the crew of the S S. Washington to the crews of all other ships owned by the respondent, urging them to organize and severely criticizing the respondent because it allegedly refused to improve the working conditions of its employees. Rosen also sent a telegram to J P Roney, general manager of the respond- ent's marine department, complaining that the captain of the S. S Washington refused to recognize the delegates of the Union. It is clear that the officers of the S S Washington had knowledge of Rosen's activity on behalf of the Union. On July 14, 1938, at Port Arthur, the first mate, C B Johannesen, told Rosen that he was "fired" because of "unsatisfactory seamanship " This occurred a few hours after Rosen, as delegate of the Union, had taken up an overtime dispute with C L Hand, the port captain, who refused to recognize him as union delegate. Rosen protested his dis- charge to First Mate Johannesen, who thereupon withdrew his original reason for Rosen's discharge and admitted that he had nothing against Rosen's seamanship. Johannesen then told Rosen that his slowness at work was the reason for his discharge. Captain Bergman and Mate Johannesen testified that Rosen on various occasions was negligent and lazy. On the other hand, there is substantial evidence to the contrary Furthermore, several of the instances of laziness attributed to Rosen by Mate Johannesen oc- curred, according to the latter's own testimony, during the first voyage of the S. S Washington, after which{Rosen was shipped on the second voyage. We are not convinced that this was done, as the respondent contends, merely to give Rosen "another chance " In view of Rosen's long experience as a seaman and his previous satisfactory record with the respondent, we find, as did the Trial Examiner, that neither Bergman's nor Johannessen's testimony as to Rosen's negligence and laziness is entitled to credence. The notation made by Captain Berg- man in the crew list, that Rosen was discharged for "incompetency," is, in our opinion, no more persuasive than the testimony given by Berg- man at the hearing On the basis of the entire record, we find, as did the Trial Examiner, that the respondent discharged Rosen from the S S. Washington on July 14, 1938, and thereafter refused to reinstate him, because of his union membership and activities, thereby discriminating in regard to his hire and tenure of employment, discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act E. Marine safety legislation , Pursuant to the decree of the Circuit Court of Appeals, we have care- fully reconsidered our findings as to the respondent's unfair labor prac- THE TEXAS COMPANY, MARINE DIVISION 605 tices in the light of the Court's opinion and of the traditional need for safety and discipline aboard ship. We appreciate the importance of the legislation to which the Court refers in its opinion 18 and recognize our task of accommodating the "scheme" of of the Act to "other and equally important Congressional objectives " We take note that the amendments to the Merchant Marine Act of 1936 (49 Stat. 1985) enacted by Congress in 1938 (52 Stat 965, 46 U. S C A, Secs 1251- 1262) added to that Act a title on maritime labor relations declaring a policy of encouraging collective bargaining among maritime em- ployees and affirming the applicability of the National Labor Rela- tions Act to them 19 Seamen who have engaged in conduct condemned as illegal by other legislation have indeed been denied reinstatement under the Act '20 but our own decisions and those of the courts have fre- quently and consistently recognized the general applicability of the Act to maritime employees 21 Protection by law of the right to organize and bargain collec- tively has also been extended by Congress to employees engaged in other hazardous occupations. Railroad employees and employees of common carriers by air, although employed in industries covered by extensive safety legislation, have, for example, expressly been given guarantees in the Railway Labor Act substantially similar to those is This legislation, biiefiy summarized, is as follows 18 U S C A , Sec )84, At title 293 provides a fine and imprisonment for a member of a crew unlawfully and by force, fraud, of intimidation, to usurp the command of a vessel from its master 46 U S C A , Sec 701, Articles Fifth and Sixth provide for the punishment of a ciew member for continued wilful disobedience of neglect of duty at sea, and for assaulting a master, mate of other officer 46 U S C A , Sec t39 provides that inspectors shall investigate all acts of mss.- conduct committed by any licensed officer, whose license shall be suspended if the inspectors aye satisfied after a hearing that the officer Iis incompetent or has been guilty of misbehavioi, negligence, or unskilfulness, or has endangered life wilfully 46 U S C A , Sees 226, 228, 229 provide that licenses of captains, mates, and engi- neers shall he suspended on satisfactory proof of tntcmpeiate habits 46 U S C A , Sec 222 requires that a s essel shall only be operated with a full complement of officers and crew, and provides that a captain is liable to fine or penalty for failing to explain to the local inspectors the season for any deficiency in com- plement This affirmation of the applicability of the Act is contained in Section 1002 of the Merchant Marine Act, which was added in June 1938 by 52 Stat 965, 46 U S C A, Sec 1252 The 1938 amendments oiiginally were to expire in 3 years, on June 23, 1941, but the life of some of the sections added by these amendments, including Section 1002, was extended until June 23 1942 by Public L No 124, 77th Cong, 1st Sess Southern Steamship Company v National Labor Relations Board, 62 S Ct 886, rev'g and rem'd'g 120 F (2d) 505 (C C A 3), enf'g as mod Matter of Southern Steamslibo Company, 23 N L R B 26 2 See, e g, National Labor Relations Board v Waterman Steamship Corporation, 309 TJ S 206, rev'g 103 F (2d) 157 (C C A 5), mod Matter of Waterman Steamship Cor- poration, 7 N L R B 237, Black Diamond Steamship Corpomation v National Labor Relations Board, 94 F (2d) 875 (C C A 2), enf'g Matter of Black Diamond Steamship Corpoiatzon, 3 N L R B 84, cert denied, 304 U S 579, South Atlantic Steamship Com- pany of Delaware v National Labor Relations Board, 116 F (2d) 480 (C C A 5), enf'g as mod Matter of South Atlantic Steamship Company of Delaware, 12 N L R B 1367, cert denied, 313 U S 582 €O6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contained in the National Labor Relations Act. Similarly, although the hazardous nature of the mining industry has long been recognized in safety legislation, the applicability of the National Labor Relations Act to mining employees is well-established .22 Certainly it cannot with reason be said that ship's officers must be permitted to engage in anti-union conduct and statements if safety and discipline aboard ship are to be preserved Any such holding would in effect mean that normal union activities create otherwise nonexistent dangers and interfere with discipline and good order. Experience provides no basis for any such proposition. On the con- trary, Congress has found in the Act that "Experience has proved that protection by law of the right of employees to organize and bar- gain collectively safeguards commerce from injuiy . . ." (Section 1) Upon reconsideration, therefore, we are of the opinion and we find that considerations of marine safety and discipline give no reason for disturbing our findings in Section III A, above, as to the respond- ent's interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act Nor do we believe that prevention under the Act of discrimination by maritime employers against seamen who have engaged in con- certed activities is in any sense incompatible with the marine safety legislation to which the Court refers in its opinion 23 To say that "the fact that Rosen was a labor leader heightened the wrong" of the activity in which he engaged is to justify the discharge of active union members for conduct which in others might be regarded as not improper. Similarly, to presume that a seaman who leads his fellows: in union activity _"well may have been absent from his station and inattentive to his duties" is to make union activity prima facie evi- dence of carelessness or incompetence. Either would make possible the discharge of seamen who are active union members or officers almost without reference to the pi opriety or impropriety of their activities according to normal standards and without regard for the- proscriptions contained in the Act In any event, the record shows that Rosen's union activities neither endangered discipline nor interfered, with his work, and we find that the respondent in discharging hun was not moved by any such considerations. Rosen's union activities on board the S. S Nevada and the S. S Washington consisted of presiding over weekly union as See, e g, Matter of Crowe Coal Company and United Mine Workers of America, Dis- trict No 14, 9 N L R B 1149, enf'd in National Labor Relatwns Board v Crowe Coal Company, 104 F (2d) 633 (C C A 8), cert denied , 308 U S 584 , Matter of Nevada Consolidated Copper Corporation and International Union of Mine, Mill and Smelter Work- ers, 26 N L R B 1182, set aside in National Labor Relations Board v Nevada Consolidated Copper Corporation, 122 F (2d) 587 (C C A 10), rev'd 62 S Ct 960 , 21 Section 1002 of the Merchant Marine Act of 1936, as amended , expressly provided that "enforcement of any of the navigation laws of the United States or any other laws relating to seamen" shall not be affected 52 Stat 965, 46 U S C A, Sec 1252 THE TEXAS COMPANY, MARINE DIVISION 607 meetings held in the crew's quarters, acting as delegate to discuss grievances with the ship's officers, drafting letters urging the crews of the respondent's other ships to join the Union and criticizing the respondent for its alleged refusal to improve working conditions, and protesting to the. iespondent's general manager the refusal of the captain of the S S Washington to recognize the delegates of the Union There is nothing in the record to indicate that these activities endangered the safety of the respondent's ships on which Rosen worked or of the cargoes they cairied, or that his union activities were deti imental to discipline on board those ships, within the mean- ing of the legislation to which our attention has been directed. Hence theie is no basis for concluding that any of these Congressional enactments were violated by Rosen and it does not appear that he was prosecuted for any criminal offense in that respect. There is, therefore, no basis for believing that Rosen's reinstatement with back pay involves any such threat to discipline or safety or any such con- flict with maiine safety legislation as to require us to deny this nor- mally applicable remedy. Upon reconsideiation, we find no reason to alter our conclusion that Rosen was discriminatorily discharged and that his reinstatement with back pay will effectuate the purposes of the Act 24 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A, C, and D above, occurring in connection with its operations described in Sec- tion 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. THE REMEDY We have found that the respondent, by its anti-union statements and in other ways, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. We shall order the respondent to cease and desist from such practices. We have found that the respondent discriminatorily discharged J. Gordon Rosen from the S S. Nevada on April 19, 1938, and from the S S. Washington on July 14, 1938. We shall therefore order the respondent to offer Rosen immediate and full reinstatement to his foinier or a substantially equivalent position without prejudice 21 We have not vacated our original order with respect to Buckless , and we therefore do not reconsider his case, although the same considerations apply to his union activities as to those of Rosen 608 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD to his seniority or other rights and privileges, which we find is neces- sary to effectuate the purposes and policies of the Act even though he may have obtained substantially equivalent employment else- where 25 We shall fuither order the respondent to make Rosen whole for any loss of pay suffeicd by him by reason of his discharges by pay- ment to him of a sum equal to the amount which he normally would have earned as wages from April 19; 1938, the date of his discharge from the S. S Nevada, to June 1, 1938, when he was rehired on the S S Washington, and from July 14, 1938, the date of his discliaige from the S S. ,Washington, to the date of the offer of reinstatement, less his net earnings 26 during such periods Since J Goidon Rosen, while in the employ of the iespoiident, received maintenance on board ship in addition to his wages, we shall order that the reasonable value of such maintenance during the periods for which we shall award back pay be included in the total amount to be paid him by the respondenit Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Boaid makes the following: CONCLUSIONS OF LAW 1. National Maiitmne Union of America, Poit Aithur Branch, is a labor organization, within the nieanuig' of Section 2 - (5) -of the Act. - 2. By discriminating in repaid to the hire aiid tenuie of employ- ment of J. Gordon Rosen, thereby' discouraging membership in - National- Maritime Union of America, Port Al thur Bi anch, the re- spondent has engaged in and is engaging in unfair laboi practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coeicing•its employees in the exercise of the rights guaranteed- in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 25 See Phelps Dodqe Corporation v National Labor Relations Boaid, 113 U S 177, nfod'f'g and rem'd g 113 F (2d) 202 (C C A 2), enf'g as mod Matter of Phelps Dodge Coi poration, 19 N L R B 55547 , National Labor Relations Board v Blanton Co, 121 F (2d) 504 (C C A 8), enf'g as mod Matter of Blanton Co, 16 N L R B 951, as amended by 18 N L R B 143, Matter of Ford Motor Company and International Union, United - Automobile Workers of America, Local Union No 2119, 31 N ,L R B 994 - 20By "net earnings " is meant earnings less expenses, such as for lianspoitation, room, and board , incurred by an employee in connection with seeking « ork and working else- where 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 and United Brotherhood of Carpenters and Joiners of Amer- sea, Lumber and Sawn? ill Workers Union, Local 2590, 8 N , L R B 440 Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings See Republic Steel Corporation v National Labor Rela- tionsBoat d,311U S 7, - - 11 - THE TEXAS COMPANY, MARINE DIVISION 6G9 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act 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 Boald hereby orders that the respond- ent, The Texas Company, Marine Division, New York City and Houston, Texas , and its officer s, agents, successors, and assigns, shall : 1 Cease and desist from (a) Discouraging membership in National Maritime Union of America, Port Arthur Branch , or any other labor organization of its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hie and tenure of employment, or any terms or conditions of their employment, because of membership or activity in any such labor organization, (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization, to form, loin, or assist labor oiganizations , to bargain collectively through representatives of then own choosing, and to engage in con- ceited activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act. 2 Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Offer to J Gordon Rosen immediate and full reinstatement to the position held by him on July 14, 1938, of to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges; (b) Make whole J Gordon Rosen for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his line and tenure of employment by payment to him of a sum of money equal to the amount which he normally would have earned as wages,- including the reasonable value of his maintenance on board ship,- from April 19, 1938, to June 1, 1938, and from July 14, 1938, to the date of the respondent's offer of reinstatement, less his net earnings during such periods; (c) Immediately post notices to its employees in conspicuous places on its clocks and vessels, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting , stating. (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; ( 2) that the respondent will take the affirmative action set 472814-42 -von 42-39 1 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain membeis of National Maritime Union of America, Port Arthur Branch, and that the respondent will not discriminate against any employee because of his membership in or-activity'in behalf of said organization; (d) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10) days from the date of this Oi dei what steps the respondent has taken to comply-therewith. _ MR GERARD D. REILLY took no part in the consideration of the above Decision and Order.