Pacific American Fisheries, Inc.

PACIFIC AMERICAN FISHERIES, INC. 9 Respondent's repeated unlawful activities go to the very heart of the Act and indicate a purpose to defeat self-organization of its employees . I am convinced that the unfair labor practices committed by Respondent are potentially related to other unfair labor practices proscribed by the Act, and that the danger of their com- mission in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the Board 's order is coextensive with the threat. Accordingly, in order to make effective the inter- dependent guarantees of Section 7 and thus effectuate the policies of the Act, I recommend that Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. [Recommendations omitted from publication.] Pacific American Fisheries, Inc. and George Brighton Alaska Fishermen's Union Local Industrial No. 1821 , AFL-CIO and George Brighton. Cases Nos. 19-CA-1635 and 19-CB-539. July 9, 1959 DECISION AND ORDER On March 17, 1959, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Company, the Union, and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations with the modifications indicated in The Remedy and the Order. TIDE REMEDY Having found, as did the Trial Examiner, that the Respondent Company violated Section 8 (a) (1) and (3) and Respondent Union violated Section 8(b) (1) (A) and (2) of the Act, we shall order them to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. So that such policies may be fully effectuated, our remedy differs in various particulars from that recommended by the Trial Examiner. Accordingly, we shall order that the Respondent Company offer George Brighton employment as second engineer on the vessel Salmo 124 NLRB No. 5. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Point or at a substantially equivalent position; said offer to be made upon receipt by the Respondent Company of a certificate that Brighton is physically able to perform such work from a physician mutually agreed upon by the Respondent Company and the Charging Party.' In the event that they cannot agree,-the physician shall be selected by the Regional Director for the Nineteenth Region. Should Brighton's physical examination reveal that he is unable to fulfill the duties of the second engineer on the Salmo Point or a substantially equivalent position, the Respondent Company shall offer Brighton such lighter work as the physical examination shows he is able to perform. In addition, we shall order the Respondent Union to notify the Respondent Company and George Brighton, in writing, that it has no objection to Brighton's employment as second engineer on the Salmo Point or at a substantially equivalent position or at such lighter work as the physical examination reveals he is able to perform. In the written notice, the Respondent Union shall also request the Respondent Company to offer such employment to Brighton immedi- ately upon receipt of the physician's report. Except as provided herein, the Respondent Union shall not be liable for any back pay accruing after 5 days from the giving of such notice.2 As it is impossible, at this time, to ascertain the particular job which Brighton may be certified as able to perform, we leave to the compliance stage of this proceeding the determination of the job to be used in computing the loss of wages he has suffered. D ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Pacific American Fisheries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in Alaska Fishermen's Union Local Industrial No. 1821, AFL-CIO, or in any other labor organization of its employees, by discriminating against employees or applicants for employment in violation of Section 8(a) (3) of the Act or by any other discriminatory practice. 1 The physician's fees and expenses shall be borne equally by the Respondents. G At the time of issuance of this Decision and Order , the Respondent Company's hiring for the 1959 season will probably have ended and its boats and men will be thousands of miles off in Alaskan waters. As a result, employing Brighton and transporting him to Alaska may not be feasible. In such a case, the Respondent Company will remain liable for his back pay throughout the season . To release the Respondent Union from liability subsequent to its giving notice would , under such circumstances , inequitably affect the joint and several liabilities of the Respondents . Accordingly, it is impossible for the Respondent Company to employ Brighton for the 1959 season, the Respondent Union's liability shall continue for the duration of that season. PACIFIC AMERICAN FISHERIES, INC. 11 (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer George Brighton employment as second engineer on the vessel Salm,o• Point or at a substantially equivalent position on if he is physically unable to perform such jobs, at such lighter work as he is found able to perform , subject to the conditions set forth in the section of the Decision entitled "The Remedy." (b) Jointly and severally with the Respondent Union make whole George Brighton for any loss of pay suffered by reason of the dis- crimination against him in the manner , and upon the conditions, set forth 'in "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social -security payment records, timecards , personnel records and reports, and all other records necessary or useful to an analysis of back pay due under the terms of this Order. (d) Post at its office in Bellingham , Washington, copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished ` by the Regional Director for the Nineteenth Region, shall, after being duly signed by a representative of the Respondent Company, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (e) Post at the same places and under the same conditions, as set forth in .(d) above, as soon as forwarded by the Regional Director, copies of the notice attached hereto marked "Appendix B." (f) Notify the Regional Director for the Nineteenth : Region, in writing, within 10 days from the date of the Order , what steps have been taken to comply herewith. B. Alaska Fishermen's Union Local Industrial No. 1821, AFL- CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause the Respondent Company to discriminate against any of its employees or applicants for employ- 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment because such employees or applicants for employment are not members of the above -named labor organization. (b) In any like or related manner, restraining or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will . effectuate the policies of the Act:. (a) Notify the Respondent Company and George Brighton, in writing, that it has no objection to Brighton's employment and re- quest the Respondent Company to employ Brighton , as second en- gineer on the vessel Salmo Point or at a substantially equivalent. position or, if he is physically unable to perform such jobs, at such lighter work as he is found able to perform, subject to the conditions. set forth in the section of the Decision entitled "The Remedy." (b) Jointly and severally with the Respondent Company make whole George Brighton for any loss of pay suffered by reason of the discrimination against him in the manner, and on the conditions, set. forth in "The Remedy." (c) Post at its business offices in Bellingham , Washington, copies. of the notice attached hereto marked "Appendix B." 4 Copies of saicl notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being signed by a representative of the Respond- ent Union, be posted by it immediately upon receipt thereof and main - tained by it for a period of 60 consecutive days thereafter in con- spicuous places, including all places where notices to members are. customarily posted. Reasonable steps shall be taken to insure that said notices are not, altered, defaced, or covered by any other material: (d) Mail to the Regional Director signed copies of Appendix B for- posting by the Respondent Company at its Bellingham, Washington,, office, as provided above. Copies of said notice, to be furnished by the, said Regional Director, shall, after being signed by the Respondent. Union's representative, be forthwith returned to the Regional Director for disposition by him. (e) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps have. been taken to comply herewith. * See footnote 3. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: PACIFIC AMERICAN FISHERIES, INC. 13 WE WILL NOT encourage membership in Alaska Fishermen's Union Local Industrial No. 1821, AFL-CIO, or in any other labor organization of our employees, by discriminating against employees or applicants for employment in violation of Sec- tion 8(a) (3) of the Act or by any other discriminatory practice. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer George Brighton employment as second en- gineer on the vessel Salmo Point or at a substantially equivalent position or, if he is physically unable to perform such jobs, at such lighter work as he is found able to perform. WE WILL jointly and severally with the aforementioned Union make whole George Brighton for- any loss of pay suffered by reason of the discrimination against him. All our employees are free to become, remain, or refrain from be- coming, members of any labor organization, except to the extent that such right may be affected by an agreement conforming to the appli- cable provisions of Section 8(a) (3) of the Act. PACIFIC AMERICAN FISHERIES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL EMPLOYEES OF PACIFIC AMERICAN FISHERIES, INC., AND TO ALL MEMBERS OF ALASKA FISHERMEN'S UNION LOCAL INDUSTRIAL No. 1821, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Pacific American Fish- eries, Inc., to discriminate against any of its employees or appli- cants for employment because such employees or applicants for employment are not members of our labor organization. WE WILL NOT, in any like or related manner, restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL notify Pacific American Fisheries, Inc., and George Brighton, in writing, that we have no objection to Brighton's employment as second engineer on the vessel Salmo Point or at a substantially equivalent position or, if he is physically unable to perform such jobs, at such lighter work as he is found able to perform. WE WILL jointly and severally with the aforementioned Com- pany make whole George Brighton for any loss of pay suffered by reason,of the discrimination against him. ALASKA FISHERMEN'S UNION LOCAL INDUS- TRIAL No. 1821, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by George Brighton, an individual, the General Counsel of the, National Labor Relations Board issued a consolidated complaint and notice of hearing on November 14, 1958, against Pacific American Fisheries, Inc., and Alaska Fishermen's Union Local Industrial No. 1821, AFL-CIO.' The complaint, alleged `in'substance thaton'or about'April 18, ;19558; the Company"directed George Brighton, an applicant for employment, to clear with the Union and on the same date the Union refused to clear Brighton, and that because of his failure to obtain clearance -he was not employed by the Company, and that thereby the Company violated Section 8(a)(1) and (3), and the Union violated Section 8(b)(1)(A) and (2) of the Act. The Company's duly filed answer denied the commission of unfair labor practices, and stated affirmatively that its decision not to employ George Brighton was en- tirely unrelated to either Brighton's membership in, or clearance by, the Union. .This pleading was amplified by a statement of Company counsel, at the opening of the hearing, that he would show that the Company refused to hire Brighton because 'there was a more qualified man available for the job. The Union's answer, in effect, was a specific denial of the unfair labor practices. Both answers admitted the facts alleged in certain allegations of the complaint, relating to the interstate character of the Company's operations, and the status of the Union as a labor organization. Pursuant to notice a hearing was held in Bellingham, Washington, on December 2, 1958, before the duly designated Trial Examiner. The parties were represented by counsel who were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties were given an opportunity to argue orally and to file briefs: All parties have filed briefs which have been considered. 'In this report Alaska Fishermen's Union Local Industrial No. 1821, AFL-CIO, is referred to as the Union ; Pacific American Fisheries, Inc., as the Company ; ,the General Coun$el of the Board and his representative at the hearing, as the General Counsel; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended, as the Act. PACIFIC AMERICAN FISHERIES , INC. 15 On January 13, 1959, the General Counsel moved to correct numerous typo- graphical and other errors in the transcript of testimony. The order prayed for is hereby ' g'r nted. However, the Trial Examiner is constrained to note that this order does not correct certain passages of the transcript containing arguments of counsel, and remarks of the Trial Examiner, which appear to be garbled in transcription. Absent consent of counsel , these passages remain uncorrected. From my observation of the witnesses , and, upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Upon the pleadings , and the entire record, I find that the Company is a Washington corporation having its principal place of business in Bellingham , Washington. It is engaged in the business of canning salmon which are caught in Alaskan waters. Annually the Company sells and ships from the State of Washington to customers .located outside that State canned salmon valued in excess of $1,000,000. I find therefore that the Company is an employer . within the meaning of Section , 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Upon the pleadings I find that the Union is a labor organization within the mean- ing of Section 2,(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Undisputed facts constituting .background of the present controversy As indicated above, the Company conducts salmon canning operations in Alaska. The operations are seasonal ; the length of the season being dependent upon many factors such as the length of the salmon run, the sale of the previous year 's pack, the condition of the market, and so forth. The employment of men in the industry is also seasonal, varying between a minimum of 2 months and a maximum of 51/2 months; 31/2 or 4 months is the average period of employment . Only a small percentage of the jobs. require skilled or semiskilled workers, so the vast majority of the Company's employees from season to season are unskilled workers. As in- dicated, the number of canneries , fish camps , or vessels used as cannery tenders; may vary from season to season under the influence of the factors noted above. In the spring of 1958, the Company was preparing to operate six canneries and two fishing camps in Alaska. Under its system , in the spring of that year there were eight superintendents of the Company engaged in readying crews for work in Alaska. One of these superintendents was Fred W. Scheel, who was the superin- tendent of the Company's cannery at Port Moller, Alaska. Port Moller is located 'on the northern side of the Aleutian Peninsula, on Bristol Bay, which opens into the Bering Sea . The community of Port Moller consists of the Company 's cannery and 'two Eskimo families. Port Moller is over 2,500 miles from Bellingham , and it re- quires approximately 20 days - of constant running for a cannery tender to make the voyage from Bellingham to Port Moller . The employees based at Port Moller are isolated by wide distances from other operations of the Company , so there can be no interchange or replacement of employees after the start of the season, except at considerable inconvenience and expense. Assigned to the Port 'Moller operations and' to Superintendent Scheel for the season of '1958 was the vessel Salmo Point which operates as a cannery tender. It is an 85-foot vessel driven by twin diesels with communication between bridge and engineroom by a system of signal bells . In the fishing operation , the cannery tender transports men and supplies at 'the opening and closing of the cannery season, and in the course of the fishing operations , it shuttles, back and forth from the cannery to the fishing fleet, transporting fish and supplies . A cannery tender may be "single crewed," when the vessel 's operation will permit the crew to rest at night , or it may be "double crewed ," when it is operated 24 hours a day. In the 1957 season the Salmo Point had operated at another cannery and with a -single crew, but sometime in April 1958 , Scheel, as superintendent at Port Moller, decided to "double crew" the Salmo Point . The decision necessitated the employ- ment of additional crew members , including a second engineer , the job here in dis- pute . The duties of the second engineer on the Salmo Point are to stand a watch in the engineroom during the operation of the vessel ,' control the engines as directed ' by the bridge , and to oil, adjust, and otherwise maintain the diesels. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The hiring procedure under the contract It is undisputed that wages, hours, and working conditions of the men employed in the Alaska salmon industry are covered by a master agreement dated March 15, 1958, between Alaska Salmon Industry, Inc., and Alaska Fishermen's Union,2 which was supplemented by the Port Moller supplemental agreement for the season of 1958? Section 12 of the master agreement provides for certain preferences of employ- ment. It states that in selecting its employees the Company shall follow these prefer- ences: first, to company employees working under the terms of the agreement in the previous season; second, to persons previously employed in the service of other companies signatory to the agreement; and, third, to other persons satisfactory to the company, including but not limited to members of the Union, accepted appli- cants for membership in the Union, or men recruited for employment in the Alaska salmon canneries by the Union. The contract states that the intent and purpose of this section is to provide con- tinuity of employment for men previously employed by the Company or in the industry. Section 13 is devoted to "Rules Pertaining to Employment." It states the following: To facilitate employment under the contract, the company and the Union shall observe the following rules: (a) List of Persons to be Employed The Union shall keep available and shall furnish to the company on request a list of persons previously employed in the Alaska salmon canneries who are available for employment. At least twenty days before the scheduled date of embarkation, the company will furnish to the Union a list of all former em- ployees which it intends to re-employ for the season of 1958 and a similar list of other employees recruited for the season's work. Section 13 also has an additional section-(e)-entitled "Signing On." This provision reads as follows: The company agrees to sign the men on in their various capacities, and the men so employed shall register or clear with the union or their names shall be furnished to the union by the company, all prior to leaving port of embarkation... . At the hearing the General Counsel stated that he made no attack on the con- tractual hiring arrangements between the Company and the Union. 2. The conflicting testimony At the hearing the principal witnesses for the parties, namely, George Brighton, the Charging Party; Fred W. Scheel, the Company's superintendent, and Oscar Rodin, its foreman; Jack Wood, the Union's representative at Bellingham; and Leo Love, the successful applicant for the job, all testified. There is no dispute between the parties that Brighton sought the job of second engineer of the Salmo Point; that Scheel sent Brighton to Wood at the Union; that Brighton did not receive a clearance from Wood; and that Leo Love was hired as second engineer on the Salmo Point. The conflict in testimony occurs not in relation to the fact of, or the sequence of, these conferences, but in relation to what was said and done in each and, to a lesser degree, as to the specific dates on which these conversations occurred. George Brighton testified that on approximately April 17, he first sought employ- ment with the Company for the season of 1958. On this occasion he talked to Johnson, another superintendent, asking Johnson about jobs in the can loft at Alitak. Johnson told him that there would be no jobs in the can loft that year. Brighton then asked him if there was any job of storekeeper, watchman, or fish washer open. Johnson said that those jobs were all filled. On the next day Brighton returned to the office of the Company and on this occasion he talked to Scheel. He asked Scheel if he had an opening anywhere, 3 General Counsel's Exhibit No. 3a. S General Counsel's Exhibit No. 3c. A third contract between the Alaska Salmon Indus- try, Inc., and Alaska Fishermen's Union designated General Counsel's Exhibit No. 3b was also introduced in evidence. This contract is pertinent as bearing on the duties and rates of pay of the men. PACIFIC AMERICAN FISHERIES, INC. 17 either in the can loft or storekeeper. Scheel replied that there was no such job open. However, when Brighton mentioned that he had previously worked on a cannery tender, the two men fell to talking about the job of second engineer on the Salmo Point. This conversation ended when Scheel said he had nothing, right then, but that he would see what he could do. On this day Brighton obtained an applica- tion for employment from the Company and later in the day he returned to Scheel with the application filled out. On this occasion, when Scheel read his application, Scheel said that the Company had an opening as second engineer on the Salmo Point. Brighton said that was fine. Then Scheel said that he would call Wood of the Union. In Brighton's presence Scheel called Wood on the telephone and told Wood that he was sending to him George Brighton, the second engineer. Scheel then told Brighton that the Salmo Point was tied up at the dock and that he should go down and take a look at the vessel, and then go over and talk to Wood in the offices of the Union in the Luther Building, Bellingham. Brighton looked at the vessel from the dock, but he did not go aboard, and then went to the offices of the Union. When he introduced himself to Wood, Wood said that he had just gotten through talking to Scheel on the phone, in regard to the job of second engineer. Wood then said that Brighton could not have the job. When Brighton asked why not, Wood replied, "You don't belong to the Alaska Fishermen's Union." Brighton said that did not make any difference, but Wood insisted that it did, "because there were too many men on the beach," and Brighton did not belong to the Union. Brighton immediately returned to Scheel, telling the latter what Wood had said. Scheel said, "I happen to know that they don't have a second engineer." On the next day Brighton returned to the union offices to see Wood. Brighton in this interview insisted that he should have the job. Wood said that there were too many members of the Union on the beach and made the same argument as he had on the day previous. When Wood flatly refused to give the job to Brighton, the latter left the office. This interview happened on a Saturday. On the following Monday Brighton returned to Scheel. When he spoke to Scheel the latter said that he had just gotten through talking with Wood, who had secured a second engineer. He said, "I am sorry. We all have to play along with the Union." At this point Scheel said that when he went to Alaska, he would have an opening, and that he would then employ Brighton. Brighton asked him what kind of a job it would be. Scheel said that it would be a job in the "beach gang." At that, Brighton told him, "I am sorry, I don't think I can handle it on account of my leg." It should be noted that this was the first time that Brighton had mentioned to anybody that he had an impairment in his leg, although his application for employ- ment stated, "Leg injury but able to handle jobs applied for." 4 On cross-examination it developed that Brighton was not sure of his dates. He first testified that his first conferences with Johnson and Scheel were approximately April 17, but when confronted with the charge herein, which he had signed, he admitted that the charge stated these events happened a week later on approximately April 24. Furthermore, his application for employment was dated still earlier, on April 7. Brighton's testimony, other than these discrepancies as to dates, withstood cross-examination. Fred W. Scheel, the superintendent referred to above, was also hazy and vague, as to the dates of the employment interviews. He testified that in the month of April he was engaged in preparations for the fishing season. Scheel said that generally he obtained his crews through the foremen, and that most crews were composed of former employees. Usually he told the foremen what they would need and there- after the foremen were on the lookout for experienced men. Scheel actually did the hiring but on recommendation of the foremen. In the middle of April he learned that the Salmo Point was to be assigned to his operation at Port Moller and some- time later in the month Scheel decided to "double crew" the Salmo Point. The engineer who had previously worked on the vessel was available for the coming season, so the vessel needed only an assistant or second engineer. Scheel said that when he decided to "double crew" the Salmo Point he told his beach boss, Rodin, that he had need of a second engineer. According to Scheel, he also told Jack Wood of the Union that he needed a second engineer. He did this because Rodin, the beach boss, had a wide acquaintance in the Alaska fisheries, and Wood, as the union agent, knew the men who wanted to go to Alaska in the fishing ,'This application is Company's Exhibit No. 1 in evidence. 525543-60-vol. 121 3 - 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD season. Although he was uncertain about it, Scheel stated that he thought the decision to "double crew" the Salmo Point was made on either April 17 or 18. On his direct examination , Scheel said that he remembered talking to Brighton about the job of assistant engineer on two occasions . On the first occasion, Brighton asked for a job as a fish washer or cook but Scheel told him that no such jobs were available. During this first interview they did not talk about the Salmo Point. Brighton's second talk with him occurred a day or two after the first. On this occa- sion they talked about the job of second engineer on the Sahno Point. Scheel said that he was "pretty sure" that he inquired as to Brighton's experience on that job, but he does not remember Brighton's reply. Scheel testified that he sent Brighton to see Wood on this occasion. His purpose was to see "if they had found a man nor- mally." When Scheel was asked if he had told Brighton that he could have the job, Scheel replied that he told Brighton "that the opening was there." According to Scheel, Brighton left his office to go to the union hall and sometime later returned. Scheel was not certain what Brighton told him when he came back, "whether he said they filled the job or didn't have any, or what, but he remembers that he called Wood or Wood called him, and said that they had a man which Oscar Rodin had recommended." Scheel denied that he told Brighton he had the job at the time he sent him to see Wood at the Union. Scheel also testified that by the time Brighton returned from the union office he had already learned that Leo Love, a qualified second engineer, had been found for the job. He then told Brighton that he might be able to use Brighton in a job in the beach gang, but that he wouldn't know about that until he arrived at the cannery. At that point, Brighton said that he couldn't do any hard work because of his physical disability. Scheel explained that he told Brighton to see Wood, because he had in mind that both Wood and Rodin were trying to dig up an experienced man, and it turned out that they had, in fact, obtained Leo Love. On cross-examination, Scheel was confronted with a letter which he had written to the Company in the nature of a report on this incident. In this letter, Scheel said, "I told Mr. Brighton to go to the AFU office to clear, and if Jack Wood had not been able to find a man he would be considered." When examined in connection with a second signed statement which he had made to a field examiner of the Board, Scheel said that he called Jack Wood on the phone and told Wood that he needed a second engineer. This statement reads in part as follows: "The last part of April 1958 the morning I had decided to make the Salmo Point a double crew ship I called Jack Wood, of AFU and told him that I needed a second engineer." Scheel agreed with the cross-examiner, that there was nothing in the latter state- ment to the effect that he had informed Rodin that he needed a second engineer. He also admitted that in his report to the Company there was no mention of his asking Rodin to find a second engineer. Late in his testimony, Scheel said that very shortly after Brighton left his office to go to Wood's office, Wood called him, and told him that he had found a second engineer by the name of Leo Love. Scheel also testified at this point that when Brighton returned to him from the union hall, he told Brighton that Jack Wood or Oscar Rodin had found a man for the job. Toward the close of his examination, Scheel said that if. another second engineer had not been found, he would have accepted Brighton for the job of second engineer on the Salmo Point. He also testified that he did not know anything about Brighton's incapacity to do hard work until he spoke to Brighton about a job in the beach gang. Jack Wood, the union official previously mentioned, testified that he remembered only one occasion when Brighton came to his office. As he recalled the incident, Brighton told him that he was interested in tender work. Thereafter, they had some discussion in which Brighton indicated that he had a physical disability. Wood then suggested very strongly that he discontinue any search for a job in Alaska, because of his physical condition and suggested that Brighton try to obtain a job on a vessel in Puget Sound. To assist Brighton, he supplied the names of several superintendents to whom Brighton could apply for that type of work. Wood stated that the main tenor of the conversation was that he was trying to help Brighton to locate a job on Puget Sound, and discouraging him from taking a job in Alaskan waters because of his physical impairment. Wood did not recall that Brighton mentioned a specific job on the Salmo Point. Wood said that he had no recollection of Love and Brighton being applicants for the same job. He denied that he ever told Scheel not to hire Brighton; or that he told Brighton that the latter could not join the Union, or have the job on the Salmo Point, On cross-examination , Wood said it was possible that Brighton could have come in to see him on two occasions, and he readily admitted that his Union had no jurisdiction of any of the fishing boats in the Puget Sound area . The witness insisted that he had no further recollection of Brighton, or the incident, than as stated above. PACIFIC AMERICAN FISHERIES, INC. 19 In the course of his examination, Wood said that he kept a book at his office, in which he placed the names of men who sought work in the fishing industry, and who requested that their names be entered in the book. Upon the request of the General Counsel, Wood produced this book and, after examining it, testified that the name of Leo Love did not appear therein. Oscar Rodin, previously mentioned as one of the Company's foremen, testified that he has been engaged in the Alaskan fishing industry since 1934. He was the skipper on the Salmo Point on its voyage from Bellingham to Port Moller. During the fishing season his son is the skipper of the ship, while he attends to other super- visory duties. Rodin testified that it was the general practice for the superintendent to permit the foremen to select their own crews. The men were actually hired by the superintendent on the recommendation of the individual foreman. Rodin could not remember the exact date when Scheel told him of his decision to "double crew" the Salmo Point, but he was informed of Scheel's decision shortly after it was made. Scheel instructed him to take steps to find a second engineer which would be neces- sary for the "double crew." Rodin called the union office to inquire if there were any experienced men available. He decided to do this because usually men who desired to work in the Alaskan fishing season registered their names with the Union. The person to whom Rodin spoke at the union office, evidently Wood, read off a couple of names of men who were available, one of which was the name of Leo Love. Rodin knew Love who had worked under him as a deckhand on a cannery tender in the season of 1956. In Rodin's opinion, Love was a good worker, so he called Love on the telephone. Love said that he would like to go north with Rodin, so the foreman told him to see Scheel at the Company, and to tell Scheel that he was recommended by Rodin for the job of second engineer on the Salmo Point. Rodin also testified that he would consider it hazardous to take a man as second engineer who was not familiar with the engineroom bell system of a vessel such as the Salmo Point. He explained that the second engineer had to be familiar with the bell system and how to stop and start the engines, as on its voyage to Alaska, and while operating in Alaskan waters, the vessel was in operation 24 hours a day, and the second engineer would have to stand a watch at the engines. On further questioning, Rodin said that a man who was able-bodied, and a good sailor, and who was familiar with the general operation of boats, such as a cannery tender, could be accepted as a second engineer, and by the time the vessel had completed its 2 weeks' voyage to Alaska, he could be an experienced and satisfactory man in the job. Leo Love, who became the second engineer on the Salmo Point in the season of 1958, testified that he had sailed with Rodin on a vessel named Kupraunof during the season of 1956. During the season of 1957 he did not work in the industry. Love said that he had never worked as a second engineer on a cannery tender before his taking that position on the Salmo Point, but because of his 8 years' experience on vessels of that type in Alaskan waters he knew the duties of the second engineer. Love testified that he was not sure of the date when he first talked to Rodin about the second engineer's job on the Sabno Point. He thought the date was either the 25th or 26th of April. On this occasion, Rodin phoned him and said that he had a job for him as second engineer on the Salmo Point. Love told him that he would like the job. Rodin told him to see Mr. Scheel at the Company's office and to tell Scheel that he was the man for the job on the Salmo Point. On the next morning he went to the plant of the Company and met the chief engineer, the cook, and Scheel. Scheel conducted him to the bookkeeper who recorded his personnel data, and who gave him a slip for his physical examination in Seattle. On the same day he went to Seattle and had his physical examination by the company doctor. On the following day he visited with some friends, and on the next day returned to Bellingham. He placed the day on which he returned to Bellingham as a Tuesday. He said the Salmo Point left for Alaska on May 1. On cross-examination Love said that Wood at the Union had had Love's name in his book of available men for a period of a couple of weeks before he was hired. Love also said that he talked to Wood about the job on the Salmo Point, after Mr. Rodin called him. At the time, Love was not a member in good standing of the Union as he had not worked in the industry in 1957, and had allowed his dues to lapse. According to the records of the Union, Love paid his dues for the years 1957 and 1958 on June 27, 1958. Wood, the union official previously referred to, also said that Love, according to the union records, had signed a checkoff authorization form on May 1, 1958, covering his employment on the Salno Point. Records of the Company shed some light on the dates of Love's hiring. Accord- ing to these, Love's first appearance on the payroll was on Wednesday, April 30, 1958. He took his physical examination in Seattle on Monday, April 28. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Using these dates, as a basis for reconstructing Love's testimony with dates, it would then appear that Love received his slip for his physical examination after being hired by Scheel, and took his physical examination in Seattle on the same day, Monday, April 28, and that Love was first told of the job on Sunday, April 27, or, if allowance is made for working days, at the earliest on Friday, April 25. In addition to the witnesses mentioned above, the testimony of Joseph H. Morrison, the bookkeeper for the Port Moller cannery, was received in connection with certain company records, and the testimony of George Johansen, secretary and treasurer of the Union, was received in connection with certain paragraphs of the contract be- tween the Union and the Company. All of the testimony in the case has been con- sidered, though much of it has not been narrated here in the interests of brevity. 3. The physical condition of Brighton On cross-examination, counsel for the Company and counsel for the Union sought to interrogate Brighton as to an injury he received in the course of his employment, in the year 1945. The General Counsel objected to this as not being relevant to the issue, as framed by the pleadings. Counsel for the Company and counsel for the Union each stated that he sought to prove that Brighton suffered a permanent disability in one leg, and that he could not qualify physically for the position of second engineer on the Salmo Point. Counsel for the Company pointed out that section 22a of the master agreement provided that any man hired, and discharged before embarking on the voyage to Alaska was to receive $75 as full compensation under the contract. The Trial Examiner sustained the objection of the General Counsel, stating that the issue of the instant case was the alleged discrimination against Brighton, and that the ques- tions of Brighton's physical qualification for the job, and the application of the contract provisions to the remedy of back pay became pertinent only in the event of a finding contrary to the Respondents, when the propriety of specific remedies would then be considered and resolved by the Board. The Trial Examiner stated in his ruling that he would permit further limited cross-examination of Brighton on this point, for the sole purpose of raising the questions, as a matter of record, in order to protect the rights of Respondents therein. With the positions of all parties noted, Brighton's cross-examination was continued within the limits stated by the Trial Examiner. Brighton testified that in 1945, while in the employ of the Bellingham Chain and Forge Company, he suffered an injury to his back, while doing some heavy lifting. From 1945 to 1948 he was under the care of physicians, and did not work. In 1948, he worked for a period on his brother-in-law's cannery tender in Alaskan waters, being employed by the Kenai Packers. Also in 1948 an operation was performed to correct his back condition, but this surgery left him with a numbness in one leg, which continues until the present time. In 1951 he worked for Columbia River Packers, and in 1952 he worked for the Company in the can loft of the cannery at Alitak, Alaska, after passing the Company's physical examination. For 5 years prior to his layoff in January 1958, he was again employed at Bellingham Chain and Forge Company, as a watchman. In this connection, it should be noted that Brighton's application for employment stated, "Leg injury, but able to handle jobs applied for." The jobs applied for, according to the application, were "storekeeper, bull cook, watchman, can loft." It should also be noted that no question of Brighton's physical condition was raised by anyone, in the entire hiring incident, until Scheel had informed Brighton that another man had been hired for the Salmo Point, and Scheel spoke of a job on the "beach gang" for Brighton. Only at that point was the question raised and by Brighton. Concluding Findings As the exposition of the testimony indicates, there is no dispute that Brighton, who was not a member of the Union, sought the job of second engineer on the Salmo Point and that, after discussing the position with Brighton, Superintendent Scheel sent Brighton to the union office. It is likewise undisputed that thereafter the Company refused to hire Brighton for the position, and instead hired Love. The testimony of the witnesses must be considered with reference to these facts. Upon a consideration of all the evidence I accept Brighton's version of the hiring incident. His testimony was clear and plausible and his recollection of the sub- stance of the various conversations appeared to be adequate. It is true that he exhibited some uncertainty as to the date on which the discrimination occurred, but upon all the evidence I am satisfied that the discrimination actually occurred in the manner related by Brighton. PACIFIC AMERICAN FISHERIES, INC. 21 In reaching this conclusion, I have examined and weighed the testimony of all the witnesses, accepted the testimony I deem most worthy of credit. Certain de- ficiencies in the testimony of some witnesses deserve to be pointed out. Wood, the union representative, had no recollection of Brighton ever having spoken to him concerning a job on the Salmo Point. Superintendent Scheel's recollection of the hiring incident was also deficient in important particulars. Perhaps the haziness of the memories of these two important witnesses is understandable since each of these talks occurred to large numbers of employees in the weeks immediately prior to the fishing season. But, an absence of recollection, no matter how understandable or excusable, cannot outweigh the positive testimony of a reliable witness, equipped with an adequate recollection of the events about which he testifies. In his testimony Superintendent Scheel admitted that he conferred with Brighton about the job of assistant engineer on the Salmo Point and that he sent Brighton to clear with the Union. Scheel explained that his purpose in sending Brighton to the Union was to see whether the Union or Rodin, the foreman, had already found a satisfactory employee for the position. This explanation I consider unpersuasive, for the very simple reason that Scheel could have phoned the union office and ob- tained that information immediately. Contrary to Scheel's explanation the contract specifies that men may be hired by two methods, (1) "the men so employed shall register or clear with the Union" or, (2) "their names shall be furnished to the Union by the Company, all prior to leaving Port of Embarkation." The fairest inference to be placed on Scheel's conduct, in my judgment, is that he was pursuing the first method of hiring-that encompassing clearance by the Union, in the hiring of Brighton, and thus he initiated the procedure which ultimately worked discrimina- tion upon Brighton. Elsewhere in his testimony Scheel said that almost immediately after Brighton left his office to go to the union office, he and Wood had a telephone conversation in which Scheel learned that another man had already been hired. This statement is also unpersuasive. If this were true, we could certainly expect that Wood would have disposed of Brighton quite quickly upon his appearance at the union office, by telling Brighton that he was too late, that his job had been filled, and that Scheel would have disposed of Brighton just as quickly on his return to Scheel's office by telling Brighton that the Company had engaged a second engineer from a prior season, Leo Love. However, Wood did not so dispose of Brighton, and had no recollection of either Brighton or Love being applicants for the job of second engineer on the Salmo Point; and Scheel, in the early part of his testimony, testified that he could not recall what was said when Brighton came back to him on this occasion, the time when, according to Brighton, Scheel told him he happened to know that the Union didn't have a second engineer. Furthermore, if the refusal to hire Brighton was the result of an unfortunate, but honest, mixup in which two men were contemporaneously hired for one job, cer- tainly it would seem that such an extraordinary mischance, productive of such serious consequences, would have impressed itself most vividly upon the recollection of Scheel and Wood, and would constitute their immediate and almost spontaneous explanation. In the light of all the evidence, I must consider unacceptable Scheel's testimony that introduces Beach Boss Rodin into the case, as the person responsible for the hiring of Love. Scheel's testimony on this point shows a wide variation. On his direct examination, he testified that shortly after he decided to "double crew" the Salmo Point he talked to Beach Boss Rodin about a second engineer, and he thought he also talked to Wood. When questioned by the Trial Examiner, he said that Wood might have learned he was looking for a second engineer by coming to Scheel's office, but he thought Wood got the information through Rodin. On cross-examination Scheel again testified that the first thing he did after decid- ing to "double crew" the Salmo Point was to notify Rodin, but he had no recollec- tion of calling Wood, but he stated it was possible that Wood was in Scheel's office, and Scheel might have talked to him there. Then, when confronted with the affi- davit he gave to a field examiner of the Board, Scheel agreed that the affidavit stated that he had called Wood the morning that he decided to "double crew" the Salmo Point, and that the affidavit said nothing about his having called Rodin. He also admitted that he had not mentioned Rodin in the report he made to the Company on the Brighton incident. There is a further discrepancy in the testimony of these witnesses in relation to each other, in that Wood had no recollection of Love as an applicant for the job, and the "out-of-work book" which was produced at the hearing did not contain the name of Love among its entries . Yet, Foreman Rodin testified that he obtained Love's name in the first instance from the Union. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, I resolve the conflict of testimony in favor of Brighton. I find that the "General Counsel has established by a preponderance of the credible evidence that on April 24, 1958, the Company offered Brighton the job of second engineer on the Salmo Point, conditioned upon Brighton obtaining clearance from the Union; that the Union denied clearance to Brighton in order to prefer one of its out-of-work members for the job, and that the Company thereafter refused to hire Brighton because of his lack of such clearance. Thus, by their joint action, the Company and the Union discriminated against Brighton as alleged in the complaint, the Company violating Section 8(a)(1) and (3), and the Union 8(b)(1)(A), and 8(b),(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union and the Company, set forth in section III, above, which occurred in connection with the Company's operations as set forth 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union and the Company engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that: (1) From April 24, 1958, the Company has discriminated against George Brighton in his hire, tenure, terms, and conditions of employment; ( 2) such conduct by the Company encouraged membership in the Union and interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act; and (3) the Union engaged in unfair labor practices by causing the Company to so discriminate, thereby restraining employees in the exercise of rights guaranteed by the Act. It will be recommended , therefore , that the Company offer to George Brighton immediate and full reinstatement to his former or substantially equivalent position without prejudice to his other rights and privileges ; and that the Union notify the Company, in writing, and furnish a copy of said notification to Brighton, that it has no objection to Brighton's employment as second engineer on the vessel Salmo Point, and request the Company to offer Brighton immediate and full re- instatement to that position or an equivalent position. Having found that the Company and the Union were jointly responsible for the discrimination in the hire and tenure of employment of Brighton , it will be recom- mended that the Company and the Union , jointly and severally, make George Brighton whole for any loss of pay he may have suffered by reason of the discrimina- tion against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from April 24, 1958, until his reinstatement as ordered above, less his net earnings during this period. The loss of earnings will be computed in accordance with the formula of the Board stated in F. W. Woolworth Company, 90 NLRB 289. Since it appears that the Company's normal hiring procedure requires that em- ployees demonstrate their physical ability to perform the duties of positions for which they are hired , by passing a physical examination , it will be recommended that the above provision relating to reinstatement to the position of second engineer on the Salmo Point or an equivalent position, and the above provision for making Brighton whole, be conditioned upon Brighton passing the usual and customary physical examination, fairly conducted, for the aforementioned position. It is also recommended that the Company be ordered to make available to the Board upon request, payroll and other records to facilitate the checking of the amount of earnings due. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Alaska Fishermen's Union Local Industrial No. 1821, AFL-CIO, is a labor organization , within the meaning of Section 2(5) of the Act, which admits to membership employees of the Company. 2. Pacific American Fisheries , Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating in regard to the hire, terms, and conditions of employment of George Brighton, thereby encouraging membership in the Union, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. ACE FOLDING BOX CORPORATION 23 4. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Company has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing the Company to discriminate against employees in violation of Section 8 (a)(3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 6. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Ace Folding Box Corporation and Amalgamated Lithographers of America and United Papermakers and Paperworkers, AFL- CIO. Case No. 13-CA-3069. July 10, 1959 DECISION AND ORDER On April 14, 1959, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the Intervenor filed exceptions to the Intermediate Report, and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Panning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Ace Folding Box Corporation, Middlebury, Indiana, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Amalgamated Lithogra- phers of America, as the exclusive representative of all the employees 124 NLRB No. 9.