Peninsular & Occidental Steamship Co.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peninsular & Occidental Steamship Company and Green Trad- ing Company and Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO. Case No. 12-CA-255. July 10, 1961 DECISION AND ORDER On September 2-1, 1959, Trial Examiner James A. Shaw 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 Inter- mediate Report attached hereto. Thereafter, the Respondents and the General Counsel filed exceptions thereto and the Respondents filed a supporting brief.' 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 brief, and the entire record in the case 3 and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions and modifications. Jurisdiction The Respondent contends that the Board is without jurisdiction to proceed in this matter and, assuming such jurisdiction, that it would not effectuate the policies of the Act to assert jurisdiction in this case. It thus moved that the complaint be dismissed. The unfair labor practices alleged in this case involve, inter alia, the crew of the SS Florida. A full discussion of the control and 1 As set forth in our decision in West India Fruit and Steamship Company, Inc., 130 NLRB 343, footnote 4, the Attorney General of the United States was permitted to inter- vene in this and the West India case, and in Eastern Shipping Corporation, McCormick Shipping Corporation, 132 NLRB 930, and, in his brief, filed November 18, 1960, pre- sented on behalf of the Department of State and Department of Defense certain considera- tions of international law and national defense policy bearing upon issues common to - the three cases. 2 On February 7, 1961 , Respondent filed a motion "to disqualify Board Member Joseph Alton Jenkins from participation , deliberation and decision " in this case. As Mr. Jenkins resigned, effective March 28, 1961 , as a Member of the Board, the motion is moot with respect to his participation in the decision of this case . As for his "participation, delibera- tion and decision" at prior stages of the proceeding , see West India Fruit, supra, foot- note 6, in which the motion to disqualify is denied. 3 On May 18, 1960, the Board issued a notice of hearing consolidating the present case with West India Fruit and Steamship Company, Inc ., supra, and Eastern Shipping Corporation, McCormick Shipping Corporation, supra, for purposes of oral argument on certain jurisdictional and public policy issues common to the three cases. The hearing was held on May 31, 1960, and all parties in the consolidated cases were represented by counsel and participated in the argument . See West India Fruit, supra, footnote 5. All requests for reargument or additional argument have been duly denied See West India Fruit, supra, footnotes 5 and 6 132 NLRB No. 1. PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 11 operations of the Florida and the status of its crew is set forth in the Board's decision in Peninsular & Occidental Steamship Co.," a repre- sentation proceeding, and need only be outlined here. Prior to August 1955, the Florida was owned and operated by Peninsular & Occidental Steamship Co., herein called P & 0, a Connecticut corporation, and sailed under the American flag, operating between Miami, Florida, and Havana, Cuba. In that month, P & 0 organized Blue Steamship Company, a Liberian corporation, and having complied with appli- cable United States laws, transferred the ship to Blue for a nominal consideration. That company, in September 1955, duly registered the Florida under the laws of Liberia. During this same period, P & 0 and its attorneys organized, under the laws of Liberia, Green Trading Company. On August 18, 1955, Blue chartered the Florida bareboat to Green, which on the same day entered into a time sub- charter with P & 0 for operation of the vessel. Insofar as the record indicates, the above charter arrangements have been in effect at all times here material. The Florida, which is a passenger cruise vessel carrying some cargo, has since its transfer to Liberian registry continued to operate regu- larly out of Miami, Florida-its de facto if not de jure home port-to various foreign territories, such as Nassau in the British Bahamas and Havana, Cuba, which were ports of call at the time the unfair labor practices involved in this proceeding occurred .5 The ship is primarily provisioned and repaired in the United States and derives most of its passenger trade and the bulk of its cargo at Miami. It has never been in Liberian waters, but is inspected by agents of the Liberian Government.6 The crew of the vessel is composed primarily of nonresident aliens. With respect to the unfair labor practices, the record here shows that the events involved occurred in the United States, upon the high seas, and in areas under the jurisdiction of Great Britain and Cuba. As noted, they involved, inter alia, members of the crew of the Florida and were directly related to their status as employees serving on that vessel. The Respondents, as stated above, contend that on these facts, the Board is without. jurisdiction under the Act to proceed in this case, 4120 NLRB 1097 , herein called "representation proceeding." That case involved the SS Southern Cro88 as well as the Florida. However, the Southern Cross was not in operation at the time of the hearing in this case, having been taken out of service and offered for sale in February 1958. Whether it has in fact been sold or returned to service is not reflected in the record . Before the Southern Cro88 was taken out of service, it was operated in substantially the same manner and under the same circumstances as the Florida. 6 However, after mid-November 1957 the Florida sailed only between Miami and Nassau, making two round trips a week. 6In the representation proceeding , 120 NLRB at 1099, the statement appears that the Florida is subject to inspection by certain United States officials and "subject to no other inspections." However, the record here , contrary to that in the representation case, shows that the Florida is inspected by agents of the Liberian Government 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arguing in support of their position that (1) the Act cannot be ap- plied extraterritorially as would be required to reach the unfair labor practices involved, (2) only the law of Liberia-that, is flag law-is applicable to the vessel and its crew in view of its Liberian registra- tion and ownership, and (3) the National Labor Relations Act was not intended by Congress to apply to labor disputes between foreign employees and .their employers. They also argue that in view of, cer- tain national defense considerations, the Board should not assert jurisdiction in this proceeding. The foregoing arguments were con- sidered at length in the Board's decision in West India Fruit d Steamship Company, Inc.,' and the conclusions reached there estab- lish the legal framework within which the question of jurisdiction must be decided in this case. The facts in the present case are substantially the same in many material aspects as those in West India. Thus, we have here a United States enterprise operating vessels registered under the laws of a foreign nation, maimed by predominantly alien crews, and engaged in the "foreign commerce" of the United States as that term is defined in Section 2 (6) of the Act. However, in West India, the owner of the vessel and employer of the crew was a domestic corporation, while here, it is argued, such owner and employer are foreign corporations, i.e., Blue Steamship and Green Trading, respectively. Consequently, the jurisdictional question which now must be decided is whether the interposition of these Liberian corporations stands as a bar to the jurisdiction of the Act which would clearly cover the operations under the, rationale of the West India decision were P & 0 directly the ship- owner and employer of the crew. In the representation proceeding the Board found that both Blue Steamship-and Green Trading are instrumentalities of P & 0 and that P & 0 had full control of the vessel, was its beneficial owner, and was in fact the employer of its crew .8 No facts have been placed in evidence in this proceeding warranting our disturbing such find- ings and they are hereby affirmed. Consequently, the situation now before us is, in substance, the same as that in West India. Clearly, under such circumstances, the foreign incorporation of the nominal owner and operator of a vessel cannot bar the jurisdiction of the Act over an operation otherwise within the coverage of its provisions.9 7 130 NLRB 343 As noted in footnote 10 of the West India decision, in deciding certain jurisdictional issues present not only in that case but in the instant proceeding, full consideration was given not only to the arguments and positions of the parties in West India but also to those of the parties in this proceeding . Moreover, in view of the several important jurisdictional issues raised in this proceeding but not fully presented in the representation proceeding , we have, despite our findings in that case, considered de novo the questions relating to jurisdiction here. 8 120 NLRB 1100 , 1101, footnote 5. e Compare, Bartholomew v. Universe Tankships , Inc, 263 F. 2d 437, 442 ( C.A 2 1959), cert denied 359 U.S. 1000 ; Bobolakes v. Compania Panamena Maritima San Gerissimo, PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 13 'Therefore, we find, in accord with our decision in West India, that the Respondents and their maritime operations subject of the com- plaint are in, and affect, commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. ORDER 10 Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents Peninsular & Occi- dental Steamship Company and Green Trading Company, their offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, or in any other labor organization of their employees, by discriminating in regard to their hire or tenure of employment, or any term or condi-, tion of employment. (b) Interrogating employees concerning their union affiliation or activities in a manner violating Section 8 (a) (1) of the Act. (c) Threatening employees with discharge for being d member of the Union, for signing a union card, or for engaging in other union activities. (d) Engaging in surveillance of their employees for the purpose of learning of their union activities. (e) Refusing to employ or otherwise discriminating against em- ployees because they have filed charges under the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, or any 168 F. Supp 236, 238 (D C.S.N.Y. 1958 ),; Zielinski v Empresa Hondurena De Vaporer, 113 F. Supp. 93 (D.C.S N.Y. 1953). 10 As noted above, the representation proceeding involved both the Florida and Southern Cross and in that proceeding the Board found , in agreement with the stipulation of the parties, that a unit composed of the crews of the two vessels constituted a unit appro- priate for purposes of collective bargaining . However, between the hearing in the repre- sentation proceeding and the election directed pursuant to the decision there, the Southern ,Cross was taken out of service and apparently only the crew of the Florida participated in the election, a majority voting for the Union , and the Union was thereafter certified as the bargaining representative for the employees in the unit therein found appropriate. We agree with the Trial Examiner that the Respondents unlawfully refused to bargain with the Union as the representative of its unlicensed crew . The refusal was not predi- cated on any questions concerning the appropriateness of the unit or the Union ' s majority status, and it was not until the hearing in this proceeding that Respondents brought to the Board's attention that the Southern Cross was no longer in service . In these circum- stances we find that the certified unit remains appropriate . However, the present status of the Southern Cross cannot be finally determined on the record before us . If it has been sold, the obligation to bargain pursuant to our order shall be limited to the employees of the Florida 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. (g) Refusing to bargain collectively with Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, as the exclusive statutory bargaining representative of its employees in the following appropriate unit: All unlicensed personnel employed aboard the SS Florida and SS Southern Cross, excluding licensed personell, pursers, and radio operators, and supervisors as defined in the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Abelarclo Navarra, Luis Tanlayo, Jose L. Dominguez, Angel Maya, Juan Poveda, Jose Pena, Ubaldo Diaz, and Melciades Castro immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of the aforesaid employees whole for any loss he may have suffered by reason of the Respond- 'ent's discrimination against him -in the manner set forth in the sec- tion of the Intermediate Report entitled "The Remedy." (b) Upon request, bargain collectively in good faith with the above- named labor organization as the exclusive representative of all em- ployees in the appropriate unit, and embody any understanding reached in a signed agreement. (c) Preserve and, 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 to analyze the amounts of backpay due the above-named employees under the terms of this Order. (d) Post in both Spanish and English on its bulletin boards on the SS Florida and SS Southern Cross, and at such other places as notices. to the crews of these.vessels are normally posted and at its offices, pier, or other shore facilities at Miami, Florida, copies of the notice at- tached hereto marked "Appendix." 11 Copies of said notice, to .be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondents' authorized representa- tive, be posted by the Respondents immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by them for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. u 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" PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 15 (e) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBER RODGERS, dissenting : For the reasons stated in my dissenting opinion in Vest India Fruit and Steamship Company, 130 NLRB 343, I do not agree with my colleagues that policies of the Act will be effectuated by asserting jurisdiction over the Respondent's operations. I would, therefore, dismiss the complaint in its entirety. CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. APPENDIX 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, we hereby notify our employees that : WE WILL NOT discourage membership in Seafarers' Interna- tional Union of North America, Atlantic and Gulf District, AFL-CIO, or in any other labor organization of our employees, by discharging or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT refuse to employ or otherwise discriminate against employees because they have filed charges against us under the National Labor Relations Act. WE WILL NOT question our employees concerning their union membership or activities, in a manner constituting interference, restraint, or coercion. WE WILL NOT threaten our employees with discharge for being members of the Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, or any other union, or for signing a union card, or for engaging in any other proper union activities. WE WILL NOT keep watch of our employees in order to learn if they are engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Sea- farers' International Union of North America, Atlantic and Gulf District, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from such activities. WE WILL offer the following-named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them : Melciades Castro Angel Maya Abelardo Navarra Juan Poveda Luis Tamayo Jose Pena Jose L. Dominguez Ubaldo Diaz WE WILL bargain collectively in good faith, upon request, with the above-named labor organization as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All unlicensed personnel employed aboard the SS Florida and SS Southern Cross, excluding licensed personnel, purs- ers, and radio operators, and supervisors as defined in the Act. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named or any other labor organization. PENINSULAR & OCCIDENTAL STEAMSIIIP COMPANY AND GREEN TRADING COMPANY, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, herein called the U1,non, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board , by the Regional Director for the Twelfth Region (Tampa, Florida), issued a complaint, dated October 2 , 1958, which was thereafter amended at the hearing and during a recess in December 195&, alleging therein that Peninsular & Occidental Steamship Company and Green Trading Company, herein called the Respondent, had engaged in and was engaging in unfair 'This term specifically includes counsel for the General Counsel appearing at the hearing. PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 17 labor practices affecting commerce within the meaning of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Due to the complexity of the issues set forth in the complaint and the Respond- ent's answer and amendments thereto, the Trial Examiner feels that it would be better for all concerned to set forth below the allegations in the complaint under appropriate subsections of this report, each of which will be devoted to a particular allegation, and the Respondent's answer thereto. On October 23, 1958, the Respondent filed its answer denying the commission of the unfair labor practices alleged, and in addition denied that the Board had juris- diction over either it or its employees. For reasons stated immediately above, the Trial Examiner will discuss the Respondent's answer and amended answers below. The Respondent also filed on October 23, 1958, a motion to dismiss the com- plaint on the same jurisdictional grounds that it alleged in its answer. The motion was referred to Trial Examiner Arthur E. Reyman, who denied the motion on October 28, 1958. Pursuant to due notice, a hearing was held November 24, 25, and 26, December 9, 10, 11, 12, and 15, 1958, and January 6, 7, 8, 9, 12, 13, and 14, 1959, at Miami, Florida, before the duly designated Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to argue orally at the conclusion of the taking of the evidence, and to file briefs was afforded all parties. Counsel for the Union (on April 3, 1959) and counsel for the Respondent (on April 6, 1959) filed well-drafted and comprehensive briefs on the issues herein? They have been carefully considered by the Trial Examiner. Counsel for the General Counsel did not file a brief with the Trial Examiner for reasons fully set forth in the record. He did, however, read into the record a clear and concise statement of his position in regard to the issues herein .3 Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT It is obvious from the pleadings, the statements of counsel at the hearing herein, the briefs of the Union and the Respondent, and the oral and documentary evidence received at the hearing herein that the primary question involved herein is juris- dictional. In order to dispose of this question the Trial Examiner feels that it is necessary to consider the relationship between the Union and the Respondent prior to the filing of the charges herein. In other words it is necessary to set forth herein what is ordinarily referred to as "background evidence." The record herein shows that the Union started its organizational drive among the Respondent's unlicensed personnel sometime in the summer of 1957. On November 15, 1957, the Union filed a petition for certification of representatives with the Board's Regional Office in Tampa, Florida. Thereafter on January 15 and 16, 1958, a hearing in the matter of Peninsular & Occidental Steamship Com- pany and Green Trading Company, Case No. 12-RC-241 (120 NLRB 1097), was held in Miami, Florida, before Hubert B. Mintz, hearing officer. At the hearing in the instant case the parties stipulated that the testimony of the three witnesses who testified in the representation case should be embodied herein in toto. All were officers of the Respondent Company. The Trial Examiner approved the stipulation. The witnesses referred to were as follows: Kenneth Osborne, vice president and general manager of Peninsular & Occidental Steamship Company; E. P. Pfaff, Jr., auditor of Green Trading Company; and Robert F. Lord, operating manager of Green Trading Company. As indicated above, the foregoing were the only witnesses who testified in the representation hearing, hereinafter referred to as the "R" case. An examination of their testimony shows that it was confined to the ownership, operation, and the status of Green Trading Company under the Liberian flag. In other words each of the witnesses testified in support of the Company's position 2 At the request of the parties the Trial Examiner permitted the official reporter to re- tain the exhibit file until counsel for the Union and the Respondent completed their briefs; as a result the Trial Examiner did not receive the documentary evidence in the case until April 23, 1959. 8 His statement will be found in the official transcript of the record at pages 859 to 871. In the considered opinion of the Trial Examiner it is such an excellent presentation of the issues involved herein that it merits consideration by all concerned. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board had no jurisdiction over it, because it was registered under the Liberian flag, and subject to the laws of Liberia and not the United States of America. On May 23, 1958, the Board issued its Decision and Direction of Election. An examination of the Board's Decision clearly shows that the jurisdictional issue was carefully considered by the Board. The Trial Examiner takes official notice of the Board's findings and conclusions in its Decision and Direction of Election. What transpired after the Board issued its Decision and Direction of Election in the "R" case is well stated in the following stipulation: Mr. SCHENERLEIN: I might ask counsel for the respondents, since on cross examination he has referred to bringing this witness and another witness up to an election which was held by the National Labor Relations Board, if we can at this time stipulate to the dates of the events pertaining to those elections. TRIAL EXAMINER: Give the case number. Mr. SCHENERLEIN: Well, it would be a petition filed in Case 12-RC-241 involving this very same employer, said petition being filed by the Seafarers' International Union of North America, Atlantic and Gulf District, AFL and CIO on November 15, 1957; and further that pursuant to the hearing held in this case, the Board issued a decision of direction of the election, which is 120 NLRB 147 [1097], which has been previously referred to in this record earlier involving the same employer, and that pursuant to the decision and direction of the election referred to in 120 NLRB 147 [1097], an election was held on Thursday, June 19, 1958 among the employees of the unit found appropriate by the Board in its decision directing the election; and as a result of that election, the Seafarers' International Union of North America, Atlantic and Gulf District, AFL and CIO was certified as the collective bargaining representative of the employees and an appropriate unit was found by the Board in 120 NLRB 147 [1097] on the 27th day of June, 1958. Can we stipulate as to those facts? TRIAL EXAMINER: Do you so stipulate? Mr. STEEL: I am unwilling to stipulate that it is relevant but I am willing to stipulate that these facts are authentic and that no further proof- TRIAL EXAMINER: That is all he is asking. Mr. STEEL: That no further proof need be required as to what he has just stated. [Emphasis supplied.] As indicated above the Trial Examiner takes official notice of the Board's decision in the "R" case. At the hearing herein the General Counsel and counsel for the Respondent entered into the following stipulation insofar as certain of the "jurisdic- tional facts" are concerned. Prior to August 1955, the SS. Florida and SS. Southern Cross 2 were owned and operated by P. & 0, a Connecticut Corporation, and sailed under the American Flag. The Florida plied between Miami and Havana, Cuba; the Southern Cross between Tampa, Key West and Havana. Both ships carried tourists as well as cargo. Operations of the two ships became increasingly un- profitable, reaching a half million dollar loss in 1954. The reasons for the loss were, according to the Employers, the decline in tourist trade and the competition of foreign flag ships. Having failed to obtain a Federal subsidy, P. & O. was faced with the necessity of cutting operating expenses and especially crew wages. The Petitioner, who at the time represented the unlicensed per- sonnel on the two ships, refused to agree to a wage cut. As long as the ships were under American registry, the law required that 75 percent of the crew be composed of American citizens. P. & O. therefore, decided to transfer the ships to foreign registry in order, as it conceded at the hearing, to be able to hire foreign crews whose wages in at least some classifications were about half that being paid the American seamen . The United States Maritime Commission, upon P. & O.'s application, authorized transfer of the ships. In August 1955, P & O. organized two Liberian corporations-the White Steamship Co. (herein- after called White) and the Blue Steamship Co. (hereinafter called Blue)-each wholly owned by P. & O. Thereafter, on September 3, P. & O. for nominal consideration transferred the two ships to White and Blue, which corporations registered the ships under the laws of Liberia. During this same period, P. & O. had its attorneys organize a third Liberian corporation, the Green Trading Co. The attorneys and some of their employees, acting on behalf of P. & 0., became the officers, directors, and stockholders of Green Trading. 2 Prior to the transfer of registry in 1955, the Southern Cross was named SS Cuba PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 19 On August 18, 1955, the Green Trading Company chartered bareboat the Florida and Southern Cross from Blue and White and on the same day entered into a time subcharter with P. & O. for operation of the ships... . The ships were changed to Liberian registry in September 1955. The American crew of the Florida was then discharged and in a day or so a new, predominantly alien crew was hired. The Southern Cross was in dry dock at the time of transfer of registery and, thus, had no crew. Upon being placed back in commission, a predominantly alien crew was hired. At the time of the hearing herein the unlicensed crew of 113 on the Florida was composed of 3.5 percent Americans, 14.2 percent resident aliens, and 82.3 percent non- resident aliens. The corresponding breakdown for the Southern Cross was, out of a crew of 76, 10.6 percent Americans, 9.2 percent resident aliens and 80.2 percent non-resident aliens. These unlicensed personnel were recruited in a number of areas. However, 86 percent of those in the Southern Cross's crew signed ship's articles in the United States, while only some 33 percent of the Florida's crew signed on in the United States. Although Green Trading is required under the time sub-charter to hire the crew members, Green Trading actually operates through a Captain Lord, its operating manager, who is also P. & O. 's Marine Superintendent and is on P. & O. 's payroll only. Moreover, the wage scales for the vessels, when established, were submitted to P. & O's vice president and general manager for his approval. He also has been con- sulted before any changes were made in the scale. Furthermore, P. & O. pays medical bills for crew members injured aboard ship and handles immigration matters concerning the alien members of the crew. While on board ship, the crew is under the supervision of the ship's master and other officers. Under the shipping articles signed by each crewman the "crew agrees to conduct themselves in an orderly, faithful and sober manner, in ful- fillment of their duties: obedient to the order, regulation, and instructions of the captain . . . and of the officers ... . The masters of both ships were hired by P. & O. and the other officers are hired by Captain Lord and Captain Owen, both on P. & O.'s payroll, and both representing P. & O's vice president in hiring these officers. It might also be noted here that these officers are pre- dominantly American citizens and carry for the most part American licenses. There has been no change in the operations of the vessels since transfer of registry. They operate regularly out of Miami, Florida, and both their passen- gers and cargo originate for the most part at that port. The Southern Cross takes on fuel in Venezuela, but otherwise the ships are principally provisioned at Miami... . Under the terms of the bareboat charter, Blue and White have no control over the vessels and their crews, but pay a tonnage tax on the vessels to the Liberian government.. . None of the companies maintain an office in Liberia. There is some evidence that Green has or has had an office in Cuba for hiring crew members. How- ever, it has a business office in Miami at the offices of P. & O.'s attorney. Its operating manager is located on Pier 2, Miami which is P. & O. 's address and which carries P & O's name only. The comptroller for P. & 0., apart from being a director of both Blue and White, handles federal tax matters for Green Trading as well as for P. & O. and the two steamship companies. In addition to its contention that the Board isswithout jurisdiction over its opera- tions,4 the Respondent further contends, as it did in the "R" case, that its employees are not "employees" within the meaning of the Act, because they are aliens. While it is true that the record clearly shows that at all times material herein they were Cubans, nevertheless the Trial Examiner is convinced and finds that the position of the Respondent in this regard is without merit, for the reason that the Board disposed of this question in the "R" case. Its finding in this regard was as follows: In contesting the Board's jurisdiction, the Employers rely upon the facts that Green Trading which they contend is the sole employer of the employees in- volved, is a foreign corporation and that the employees are predominantly aliens. In support of their position the Employers argue that the Act does not apply to a foreign ship and its foreign crew. However under the circumstances of this case we find no merit in the position of the Employers. 4 The parties further stipulated in regard to certain changes in the operations of the vessels. See below 614913-62-vol 132-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner desires to point out at this time that he is bound by the Board's findings in the "R" case, in the absence of newly discovered evidence that was not available to the Respondent herein at the time of the hearing in the "R" case or new and changed conditions that may have arisen since the Board's Decision and Direction of Election in that case. The Board's position in this regard is well stated in a recent case, National Van Lines, 123 NLRB 1272.5 The following excerpt therefrom follows below: On April 16, 1957, the Board issued a Decision and Direction of Election in Case No. 21-RC-4426, in which it found, contrary to the contention of the Respondent, that the Respondent's contract drivers were employees within the meaning of the Act, and not independent contractors.2 On June 6, 1958, the Board issued a Supplemental Decision and Certification of Representatives in that case, in which it sustained the challenges to six ballots cast in the repre- sentation election, and certified the Union as the bargaining agent for the Respondent's contract drivers? On that same date, the Union requested that the Respondent bargain, but by answer on July 17, 1958, the Respondent re- fused to bargain on the ground that the Board's decision in the representation case was erroneous as a matter of law, and that in any event there were changed circumstances which rendered that decision inapplicable. The Trial Examiner found that such refusal to bargain was a violation of Section 8(a) (5) of the Act. [Emphasis supplied.] The Respondent contends that: (1) The Trial Examiner erred by refusing to admit into evidence and review the entire record of the proceedings in the prior representation case; (2) the Trial Examiner erred by placing the burden of disproving the allegations of the complaint upon the Respondent; and (3) the Respondent has not violated Section 8(a)(5) of the Act by its refusal to bargain, because the contract drivers involved are independent contractors, and not employees, within the meaning of Section 2(3) of the Act.4 With respect to contention (1), the Board has held, in a similar situation where it found alleged independent contractors to be employees in a prior representation case, that the Trial Examiner in the subsequent refusal-to-bargain case with respect to such employees properly refused to admit into evidence or review the record in the prior representation case, because the Trial Examiner was bound by the Board's finding of employee status in the representation case, and could only consider evidence which might show a subsequent change in such status.5 As there stated, in the absence of evidence of changes in the facts surrounding a prior unit determination, or the presentation of evidence un- available to a respondent in the prior representation proceeding, the Board, with the approval of the courts, has uniformly refused to redetermine such issues in an unfair labor practice proceedings Moreover, contrary to the con- tention of the Respondent, Section 9(d) of the Act does not require a Trial Examiner in an unfair labor practice case to admit into evidence and review a prior representation case, but only requires that upon petition for court en- forcement or review of the unfair labor practice case, the record in the repre- sentation case be included as part of the entire record which must be filed in the case? [Emphasis supplied.] 2 National Van Lines, 117 NLRB 1213. 3 National Van Lines, 120 NLRB 1343. 4 As they have already been considered and rejected in the prior representation case, we shall not consider here the Respondent's further contentions that (1) no unit appropriate for purposes of collective bargaining exists in the Board's Twenty- first Region, and (2 ) the Regional Director's refusal to open and count the six challenged ballots cast in the election in the representation case was an abuse of discretion which resulted in a nonrepresentative vote in the election 8 United Insurance Company, 122 NLRB 911, Intermediate Report, section B 2. 6 Ibid , and cases there cited. 'Thus, Section 9(d) provides: "Whenever an order of the Board made pursuant to section 10(c) is based in whole or in part upon facts certified following an investi- gation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such Investi- gation shall be included in the transcript of the entire record required to be filed under section 10(e) or 10(f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript." 5 See also Plant City Welding and Tank Company, 123 NLRB 1140. PENINSULAR„&f,OCCIDENTAL:STEAMSHIP,CO.p,TETC. 21 Contrary to contention; (2), the Trial- Examiner did' not place the burden of disproving the allegations of the complaint upon the Respondent . In the similar United Insurance case, supra, the Board held that once the General Counsel had shown the certification of the union in the representation case, and a subse- quent request and refusal to bargain, the General Counsel had established a prima facie case of a violation of section 8(a) (5); and that even assuming that there was a further burden on the General Counsel to show the employee status of the alleged' independent contractors, that burden was met by the Board's finding of employee status in the prior representation case, and the well- established legal principle that a state of affairs once shown to exist is pre- sumed to continue until the contrary. is shown.8 In accord with that holding, the Trial Examiner here properly found that: "The Board having found in its Decision [in the representation case] that the contract drivers were employees, the burden was upon the Respondent in this proceeding to establish that the circumstances upon which that decision was based no longer existed." Such finding did not place any burden of disproving the allegations of the complaint upon the Respondent, but only placed upon the Respondent the burden of re- butting the presumption which had been established that the contract drivers were still in an employee status. The General Counsel having established this presumption and the remainder of his -prima facie case, the Trial Examiner properly placed the burden of going forward, and not .the burden of proof, upon the Respondent. 8 Ibid., Intermediate Report, section B 3, and cases cited. Insofar as this record is concerned the only new or changed condition in the Respondent's operations is found in a stipulation of the parties regarding the with- drawal of the SS Southern Cross from service, and placing her in drydock for sale, and a change in the schedule of the SS Florida. The stipulation follows below: 8 TRIAL EXAMINER: All right. Does that complete your stipulation on jurisdiction? Mr. SCHENERLEIN: And with respect to the first sentence in the same para- graph, which is the second paragraph on page 4, where it says, "There has been no change in the operations of the vessels since transfer of registry. . ." Mr. Steel will state what the operations of the vessels have been. It appears that we'll incorporate that as part of the stipulation. TRIAL EXAMINER: Mr. Steel, will you make a statement as to the stipulation proposed by General Counsel? Mr. STEEL: Yes. First, I would like to state what we are stipulating to is commencing with the second paragraph under section designated "1" of that decision, commencing with the second paragraph through the next to the last paragraph before that portion of the decision designated "A," the employer. Now, with reference to the statement in the Board's decision, there has been no change in the operations of the vessels since transfer of registry. They operate regularly out of Miami, Florida, and both their passengers and cargo originate, for the most part, at that port. With reference to those two statements I would like to state the following: The trade route of the "Southern Cross" was changed, and I do not know the exact date, but not too long after August of 1955, trom Tampa, Key West and Havana to a route of Miami, Venezuela, Dutch West Indies and return. As to the SS "Florida," she operated from September, 1955, through 1956 on a thrice-weekly run trom Miami to Havana. Well, she would leave Miami each Friday night at five p.m., and arriving Havana at approximately eight a.m., on Saturday morning. She would depart from Havana at five p.m., Sunday night and arrive at Miami at eight a.m., Monday morning. She would depart from Miami at live p.m., on Monday night and arrive at Havana at eight a.m., Tuesday. She would depart from Havana at five p.m., Tuesday, arrive Miami eight a.m., Wednesday. She would depart from Miami at five p in., Wednesday and arrive at Havana at eight a in., Thursday; then depart Havana five p.m., Thursday and arrive Miami eight a.m., Friday. On or a few days after January 1st, 1957, the trade route of the SS "Florida" was changed in one respect. After that time she would depart from Miami at 8 This stipulation should be considered along with the one set forth above, which is concerned with certain excerpts from the Board's Decision in the "It" case. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD five p.m., on Friday and arrive at Nassau. at. approximately eight a.m., on Saturday; then depart from Nassau at five p.m.; on Sunday, and arrive at Miami at eight a.m., Monday. The remaining two weekly trips to Havana continue. That continued until after the annual dry docking of the "Florida" in September of 1957. After the dry docking the schedule of the SS "Florida" was this: -Leave Miami five p.m., Friday; arrive Nassau eight a.m., Saturday. Depart Nassau five p.m., Sunday; arrive Miami eight a.m., Monday. Depart from Miami at five p.m., on Monday; arrive Havana eight a.m., Tuesday. Leave Havana five p.m., Thursday; arrive Miami eight a.m., Friday. That continued through November 4, 1957. For the next two weeks in November, 1957, the "Florida" made only one trip per week, and that was to Nassau, departing Miami five p.m., Friday; arriving Nassau eight a.m., Saturday. Departing Nassau five p.m., Sunday; arriving Miami eight a.m., Monday. Commencing around the 15th to the 18th of November, 1957, the schedule was to leave Miami five p.m., Friday, arrive Nassau eight a.m., Saturday; de- part Nassau five p.m., Sunday, arrive Miami eight a.m., Monday. Depart Miami five p.m., Monday, arrive Nassau eight a.m., Tuesday. Depart Nassau five p.m., Wednesday; arrive Miami eight a.m., Thursday. .She has continued on this trade route and schedule since. The SS "Southern Cross," due to losses, was taken out of service, and has been in dry dock and up for sale since, I believe it was, sometime in February of 1958. The only testimony offered by the Respondent at the hearing herein in support of its position on the jurisdictional question was that of Albert J. Rudick, Deputy Commissioner, Maritime Affairs for the Republic of Liberia. Rudick's offices are in New York City. He was born, raised, and educated in the United States of America, and at the time of the hearing herein still retained his American citizenship. He testified at great length at the hearing herein.? The Trial Examiner has thoroughly considered his testimony and the numerous exhibits that were offered and received in evidence during the course of his testimony. Quite frankly the Trial Examiner is unable to find in his testimony any evidence that would justify his recommending to the Board that it change its position isofar as its findings in regard to its jurisdiction over the Respondent and its employees is concerned. Suffice it to say that he was a pleasant and cooperative witness, and on the whole his testimony was interesting and informative to all who had the privilege of hearing him testify. Since the hearing was closed on January 14, 1959, there have been at least two cases decided by the U.S. district courts which in the considered opinion of the Trial Examiner bolster the Board's reasoning in reaching its decision to assert juris- diction over the Respondent in the "R" case. These cases will be discussed below. The first case that the Trial Examiner has reference to is Afran Transport Co. v. Maritime Union, U.S. District Court, Southern District of New York, No. 140-156, December 19, 1958, 43 LRRM 2311, January 5, 1959. In that case the plaintiff, that is the shipowners, herein referred to- as Afran, sought an injunction against threatened picketing and secondary boycott by the unions. The injunction was denied by District Judge Bryan who heard the case. The facts before the court in this case were almost identical with those involved herein insofar as the jurisdic- tional question is concerned. The shipowners were American corporations. The following pertinent excerpt from Judge Bryan's opinion follows below: [SUPPORTING AFFIDAVITS] The complaint is supplemented by affidavits which in essence document the allegations of the complaint with respect to the threatened acts of the defendants. It is stated that the plaintiff corporations are primarily owned by leading United States oil and bulk carrier companies, and that these vessels under foreign registry and carrying so-called "flags of convenience" are considered by the State and Defense Departments to be a valuable adjunct to the United States merchant marine in times of war or emergency. The affidavits say that the transfer of American vessels to the Liberian and Panamanian flags has been encouraged by the policy of the United States and that the vessels, many of which have been newly constructed in American yards, represent very large in- Two hundred and eighty-two pages. PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 23 vestments by American corporations. -It is pointed out that industrial carriers are not eligible for the subsidies, which are given by the United States to American flag liner operations in the foreign trade, a subsidy which amounted to some $120,000,000 in 1957. ,It is stated: The subsidy is measured principally by the difference between foreign crew wages and American crew wages which are the highest in the world. Because of this all bulk cargoes, such as petroleum or ore, coming to the United States from overseas are transported to American refineries and mills largely by foreign flag ships. It is stated that the unlicensed personnel of plaintiffs' vessels are aliens re- cruited in foreign countries, largely in Italy,. and are employed under foreign articles. The wages and working conditions of such personnel aboard plaintiffs' vessels are said to be as high or higher than those of their European flag counterparts. The plaintiffs insist that there is no dispute or controversy be- tween them and their personnel, numbers of whom are union represented. The defendant Unions state in their opposing affidavits that the objective of their protest is directly concerned with preserving the present wages and work- ing standards of the merchant seamen on American vessels whom they repre- sent. They say that their members have a direct stake in the wages and working standards of plaintiffs' employees since large numbers of American ships have been transferred to foreign registry to the detriment of American seamen with resultant loss of job opportunities. [FOREIGN FLAGS] The defendants describe the "flags of convenience " or "flags of necessity" which these ships fly as "runaway flags" and assert that they are a device by the American interest who control the plaintiff corporations to avoid the necessity of entering into American collective bargaining agreements with the crews of such vessels or the payment of American seamen's wages. It is stated, for example, that the Liberian merchant fleet, most of which is American owned or American financed, now totals almost 1,000 ships, totaling some sixteen million tons, and is the second largest merchant fleet in the world. It is alleged that more than 500 United States flag vessels have been transferred to Liberian registry since 1953, involving the loss of 16,000 jobs to American seamen, and that additional transfers will further impinge upon the job opportunities, wages and standards of their members. The defendant Unions have collective bargain- ing contracts with various oil companies who concededly are the parent corpora- tions of these plaintiffs, and stress the danger of the depression of wages and working conditions enjoyed by American seamen through the much less expen- sive non-union wages and inferior working conditions aboard the vessels flying the so-called "runaway flags." Plaintiffs have moved for a temporary injunction restraining the defendants from carrying out their threatened plan of action pending the hearing and determination of this suit.' The plaintiffs' theory is that the actions of the defendants in concert with the ITF constitute a conspiracy in violation of the Sherman Anti-Trust Act to restrain the foreign commerce of the United States and irreparably to damage the plaintiffs in their business. The defendants, on the other hand, contend that their actions constitute merely peaceful protest and picketing in the course of a controversy arising out of a labor dispute which is free from any, injunctive interference by the courts under the provisions of the Norris-LaGuardia Act and that, if any such relief is obtainable, it may be obtained only on application of the National Labor Relations Board pursuant to the Taft-Hartley Act. 'At the outset it should be noted that the treaty between the United States and the Republic of Liberia which is relied on by the Liberian plaintiffs does not confer upon them or upon their vessels any greater rights than those of American corpora- tions or vessels. It goes no farther than to place them on a parity with American corporations and vessels in the respects enumerated by the treaty. Though no similar treaty between the United States and the Republic of Panama has been shown to exist, I will assume that the Panamanian plaintiffs have the same rights as the Liberian plaintiffs. The court then goes on and distinguishes the facts as alleged in the supporting affidavits of the plaintiffs in the Afran case and the Benz case, which counsel for the Respondent herein cites in his brief in support of its position on the jurisdictional 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questions In the Afran case the plaintiffs contended they could not secure the aid they sought under the National Labor Relations Act and 'cited the Benz case in sup- port of their contention in this regard. As to this contention Judge Bryan said: The plaintiffs claim that under the Benz case they cannot invoke the aid of the National Labor Relations Board because the Taft-Hartley Act has no appli- cation to them. Whether or not this is so under the present state of facts is by no means free from doubt. Indeed,-the defendants argue that the case of Peninsular and Occidental S.S. Co., 42 LRRM 1113, before the National Labor Relations Board indicates that the Board would take such. jurisdiction in the light of the conceded facts here showing that the plaintiff corporations were controlled by American corporations. Moreover, such cases as Bobolakis v. Compania Panama, D.C.S.D.N.Y., Civil 135-97, decided by my brother Kauf- man on November 18, 1958, Lauritzen v. Larsen, 345 U.S: 571, and Gerradin v. United Fruit Co., 2 Cir., 60 F. 2d 927, cited, by him there, give some color to the claim that majority ownership and control by Americans of the corporate owners of foreign vessels might make even such statutes as the Taft-Hartley Act applicable to such vessels. Moreover, it may well be that" the treaty be- tween the United States and Liberia, which gives Liberian vessels the, same rights as American vessels in American ports, might ,lead to ,a similar `result, at least in so far as the right of the Liberian plaintiffs, to seek the aid of the National Labor Relations Board is concerned. [JURISDICTION OF NLRB] But it is unnecessary to decide this question. If the plaintiffs have the right to seek the aid of the National Labor Relations Board they have not done so. The subject matter of the injunctive relief which plaintiffs seek is then within the exclusive jurisdiction of the Board and I have no right to grant such relief except at the instance of the Board. Conversely, if the plaintiffs have no right to appeal to the Board, they are plainly not within the class of those entitled to protection of the Taft-Hartley Act. For that Act provides that the only, remedy against the unfair labor practices which it condemns is through the Board. If the plaintiffs, as they claim, cannot avail themselves of that procedure then they are squarely up against the provisions of 'the Norris-LaGuardia Act and do not come within the narrow exception to it thus provided in Taft-Hartley. The plaintiffs are therefore in the position either of being barred from relief because they did not follow the procedure prescribed by the Taft-Hartley Act or because they could not follow such procedure. There is nothing by way of statute or decision which would authorize this court to issue an injunction to restrain the secondary boycott (assuming one exists here) arising out of a labor dispute except through the Taft-Hartley procedure. Any other form of injunc- tive relief is prohibited by Norris-LaGuardia. Judge Bryan then concludes as follows: [SUMMARY] Thus I conclude, on the basis of all the facts which are now before me, that the'plaintiffs have not shown that they are entitled to the preliminary injunction which they seek. To summarize, as far as now appears;' this case involves a labor dispute within the meaning of the Norris-LaGuardia Act. There is no showing that any fraud or violence -has been or will be resorted to so as to bring the case within those sections of Norris-LaGuardia which authorize in- junctive relief by the courts under such exceptional circumstances. Nothing has been shown which would exclude the defendant Unions from the protection of the Norris-LaGuardia Act and bring them within the provi- sions of the Sherman Act because they are combining with non-labor or busi- ness groups in restraint of trade. Plaintiffs cannot avail themselves of the provisions of the Taft-Hartley Act against secondary boycotts since they either have not followed or cannot follow the procedure prescribed by that Act which is the exclusive remedy against such proscribed conduct. They thus have failed to establish the basic essential to the relief which they seek, which is that this court has jurisdiction to grant it. Their motion for a preliminary injunction must therefore be denied. [Emphasis supplied.] 0 8 Benz v. Companie Naviera Hidalzo, 353 US 138, 39 LRRM 2636 See Respondent's brief at pages 21 and 26. See also Board's Decision and Direction of Election, 120 NLRB 1097 , footnote 8 PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 25 The second case that the Trial Examiner considers in point is Fianza Cia Nav. S.A. et al .9 v. Benz et al., No. 10101 , December 4, 1958, U.S. District Court , District of Oregon, 43 LRRM 2682, dated March 23, 1959. In that case which was heard by District Judge East, the defendants-that is, the union-relied to a great extent on the Afran case which has been discussed above. The facts developed in the Fianza case showed an entirely different situation than those before the court in the Afran case. It must be borne in mind that in the Afran case, the actual owners of the ships were American corporations who had registered them under the Liberian flag. In the Fianza case the ownership was found by the court to be lodged in bona fide foreign corporations . There were two plaintiffs in the Fianza case, one a German corporation and the other a Panama corporation . The court found that the German corporation was truly foreign and that there was no direct showing in the evidence adduced before the court "... as to who the stockholders of this corpora- tion are,'° neither on behalf of plaintiff nor on behalf of the defendants who were required to show cause."" As to the German corporation the court found as in- dicated above that its ownership was truly foreign and not American . Even though the court's finding in this regard will lengthen this report the Trial Examiner feels that due to the importance of the instant case the following excerpt from Judge East's decision should be set forth herein . Primarily because it shows the court's reasoning as regards the status of ships that are truly foreign and those which are in fact American owned and have been registered under foreign flags, which of course is pertinent to the issues herein. [FOREIGN VESSEL] Now, the first plaintiff indicated is a corporation of Panama . There is no direct showing in the evidence as to who the stockholders of this corporation are, neither on behalf of plaintiff nor on behalf of the defendants who were required to show cause. Now, this Court takes Judicial knowledge of the laws of Panama, and is bound to take the presumption or the inference, at least , that all business trans- actions had are bona fide and in due course. The second plaintiff in the case is a German corporation who is the charterer of the vessel on this given voyage. Evidence shows that she came here under ballast and that she was to be stowed with a cargo of barley to be delivered to a port in Germany. There seems to be no quarrel , no contention made by the defendants that any of the stockholders of the German corporation are of American nationality . The evidence shows that the operator of the vessel is a corporation of England or, at least, an organization of some type in England with its office in London. And the testimony of the Mate and the Master of the vessel indicate that the principals of that corporation or organization, what- ever it be, are of Greek nationality. The crew of this vessel on this voyage are of Greek nationality with the exception of one, the radio operator, who is an Englishman. The crew and the officers some two months ago signed Articles of the voyage at Rotterdam. And the only testimony or evidence before the Court is that those Articles were in conformity with the laws of Greece and that the wage scale and the conditions, working conditions , of the officers and the crew were in conformity with the wages and working conditions established by the labor unions of Greece. There is no showing as to who the stockholders of this English organization or corporation are other than the oral testimony of these two officers that they were of Greek nationality. One other thing: The testimony shows that this vessel's keel was laid and she was built and launched in Japan some two years ago. The record is absolutely devoid of any evidence on behalf of any of the parties that she was ever owned by American interests, she was ever chartered by American interests, or that she was ever operated by American interests with the one exception of the port husband agent here in Portland who was hired, as he said, by telegraph instructions from London. So I am content to find on the record before me that this vessel is a foreign vessel; that she is owned, she is controlled, that she is operated by an entire foreign interest; that no national of the United States has any interest in this voyage other than the sellers of the cargo. 9 Herein referred to as Flanza. 10 The Panama corporation. 11 The defendants were unions and their officers. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, unlike the New York case this Court is content to hold that this vessel is not a runaway flag; that she is operating when she came to this port under treaty approved by Congress; that there was no competition, and that there was no market for any American seaman as a member of her crew. That the court in the Fianza case was concerned with the true ownership of the vessels is well illustrated in the following excerpt from the court 's decision: [RUNAWAY FLAGS] And that movement was advertised, as the evidence shows in this case, through the media of trade journals of the union and verbal conversation of the union members, that a four-day protest would be staged against this practice of vessels being and carrying what seems to be in the vernacular "runaway flags"; in other words, meaning that by subterfuge the true ownership and nationality of a vessel as disguised by having her registered and carrying the flag of some foreign country. And there seems to have been three countries that had been picked out to be utilized by these so-called runaway flagships, being the Panamanian flag, Costa Rica, and, as we are dealing here , Liberia, or the Liberian flag. Now, I have reached the conclusion that in determining the relationship of these parties that what flag any given bottom carries is not of importance. The question is: Who are the true owners, the true operators and the true charterers of any given vessel upon any given voyage? If it should develop that the owners, operators, or charterers are engaged in some sort of a conspiracy or some sort of activity that tends to relieve them of their true obligation of deal- ing collectively with bargaining agents of American seamen, then the American seaman has had a wrong committed against him. If, on the other hand, the true ownership and the true operator or the true charterer of any given vessel on any given voyage is purely foreign, none of them are in a position to deal collectively, with any bargaining agent representing any American seaman, and the American seamen have no complaint; they are not in the market. [Emphasis supplied.] Counsel for the Respondent also cites Air Line Stewards and Stewardesses Associa- tion v. Northwest Airlines, Inc., 162 F. 2d 684, as an authority for its position as regards the jurisdictional question. Since the Trial Examiner received the Respond- ent's brief on April 6, 1959, the United States Court of Appeals, Eighth Circuit, has considered this case and sustained the U.S. district court's findings with modifi- cations.12 The Trial Examiner has considered this case and is convinced and finds that it is not applicable to the issues herein for the reason stated below: RAILWAY LABOR ACT -Applicability-Airline employees in foreign countries 103.101 103.105 Railway Labor Act, as applicable to air carriers, does not cover employees of United States airline who are hired and perform services entirely outside the United States and its territories . Although airline engages in flight opera- tions within continental United States, the doctrine of "Yaw of the flag" will not be applied to give extraterritorial effect to Railway Labor Act, since Congress specifically has not done so, and Interstate Commerce Act, which is incorpo- rated by reference into Railway Labor Act, definitely limits applicability to such transportation as takes place within the United States. Appeal from the U.S. District Court for the District of Minnesota (42 LRRM 2479, 162 F. Supp. 684). Affirmed. While it is true that the Trial Examiner is required to follow the Board's findings in the "R" case particularly as regards the jurisdictional question (except as noted above as regards "newly discovered evidence"), nevertheless where as here the prin- cipal question before him involves that question as is amply demonstrated in the record and the briefs of the parties, he feels that the parties herein are entitled to full and frank discussion of the issues which they have raised, or relied upon in support of their respective positions. For this reason he has devoted considerable time in drafting of this report and thereby unquestionably lengthened it considerably. As indicated above, the Respondent in the "R" case and by statements of its counsel at the hearing herein and in his brief admits that the corporate manipula- 18 See 44 LRRM 21'89, dated June 8, 1959. PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 27 tions and transfer of registry of its ships to Liberia was economic. Indeed counsel for the Respondent in his brief stated in substance that this was done to escape the wage and other objections required of American-flag ships. All of the corporate transactions mentioned above were before the Board in the "R" case and were given due consideration. As the Trial Examiner sees it the Board like the courts in the above-cited cases followed the age-old maxim that "Equity looks to the substance and not to the form" in reaching its ultimate decision of the jurisdictional question. In view of all of the foregoing the Trial Examiner finds as did the Board in the "R" case that the Board has jurisdiction over the Respondent and its employees. 1. RESPONDENT'S BUSINESS OPERATIONS The complaint alleges, and the Board found in Case No. 12-RC-241, that: 1. Peninsular & Occidental Steamship Co., hereinafter referred to as Respond- ent, is a Connecticut corporation with principal offices and place of business located in Miami, Florida, and is engaged in the business of transporting pas- sengers and cargo from ports in Florida to ports located outside the United States. 2. Respondent annually derives revenue from the transportation of passengers and cargo, as described in paragraph 1 above, in excess of $2,000,000. 3. Respondent, in the course and conduct of its business, described above, established and operated a Liberian corporation named the Green Trading Corporation, as the instrumentality for the employment of the employees named in paragraph 6 below.13 Upon all of the foregoing, the undersigned finds that during all times material herein Respondent was, and now is, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to reassert jurisdiction in this proceeding. It. THE LABOR ORGANIZATIONS INVOLVED Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The alleged violations of Section 8(a)(1) and (3) of the Act The complaint alleges that Peninsular & Occidental Steamship Company, herein- after referred to as Respondent, by and through its instrumentality, Green Trading Company, agents, and representatives did, in mid-November 1957,14 discharge em- ployees Abelardo Navarro, Luis Tamayo, Jose L. Dominguez, Angel Maya, Juan Poveda, Jose Pena, and Ubaldo Diaz, and has at all times since failed and refused to reinstate the aforenamed employees to their former or substantially equivalent positions of employment, for the reason that they, and each of them, joined or assisted the Union, or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or -protection; that Respondent, by and through its instrumentality, agents, and representatives, including Jesus Hernandez and Mario Aguero Reyes, at times, mainly in October and November 1957, did interrogate employees as to their membership in the Union and did threaten dis- charge for union activity; that Respondent did, on or about July 19, 1957, discharge Angel Maya because he was seen talking to an agent of the Union, and did a few days thereafter reinstate Maya on the condition of his refraining from union activity; and that Respondent did in the latter part of October 1957 discharge or threaten discharge to Abelardo Navarro, Malcrados Castro, Jose Dominguez, and others be- cause they had signed cards for the Union, or engaged in union activity. The Respondent in its answer alleged as follows: (1) ". . . Peninsular & Occi- dental Steamship Co. denies that it by and through its instrumentalities, agents and representatives discharged the named employees or has failed and refused to re- 1S The Respondent admitted in its answer all of the allegations In the complaint as regards its business operations except certain allegations in paragraph 3 of the complaint. Its answer to this particular allegation was as follows : Answering paragraph 3 they admit that the Green Trading Company is a "Liberian corporation established by the Peninsular & Occidental Steamship Co but deny that the Green Trading Company is an Instrumentality " 14 The exact dates of the discharges will be set forth below d 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instate them ; Green Trading Co., admits that it discharged such employees but not as an instrumentality , agent or representative of Peninsular & Occidental Steamship Company; that it had no knowledge of the union affiliation of the discriminatees named in the complaint and that Green Trading Company discharged those named in the complaint for cause, to wit: (1) Navarro, Tamayo, Diaz, and Castro were discharged because a reduction in passenger load necessitated a reduction in crew strength in the'steward's department; (2) that Dominguez was discharged for re- fusal to obey lawful orders of his superior; and (3) Maya, Poveda, and Pena were discharged for unsatisfactory attitude and performance; and denied the commission of the other unfair labor practices alleged in the complaint. At the hearing herein Castro, Diaz, Navarro, Poveda, and Pena testified on be- half of the General Counsel. Dominguez and Tamayo, of whom more anon, appeared at the place of hearing, but refused to testify. Since both of these alleged discriminatees are involved in the 8(a)(4) allegation the Trial Examiner will dis- cuss the "problem" herein as to them below. The record clearly shows that the Respondent abandoned its position that the alleged discriminatees were discharged for cause at the hearing herein, and chose to rely on the same defense it advanced in the "R" case, in its motion to dismiss the complaint, and as alleged in its answer, that: (1) The Board has no jurisdiction over the subject matter, and (2) that the discriminatees named in the complaint . are nationals of countries other than the United States and are employed by Green Trading Company, a citizen of Liberia." All of which have been discussed and disposed of herein, supra. The Respondent did not choose to call any witnesses to rebut the testimony of Castro, Diaz, Navarro, Poveda, and Pena. Hence their testimony in support of the General Counsel's case-in-chief stands uncontradicted and undenied in the record. Each of them impressed the Trial Examiner as honest and forthright witnesses, and their testimony in his considered opinion was in nowise shaken by vigorous and ex- tensive cross-examination by counsel for the Respondent. In the circumstances the Trial Examiner credits the testimony of each of these witnesses in its entirety. Con- sequently he sees no necessity to set forth the testimony in detail of each regarding certain incidents that were common to all. To begin with the record shows that all of the alleged discriminatees were Cubans. At the time of the hearing herein Castro, Diaz, Dominguez, Tamayo, Poveda, and Pena were Cuban citizens and maintained their residences in and around Havana, Cuba. Maya and Navarro lived in or around Miami, Florida, and were "registered aliens." The record indicates that the Union started its organizational drive among the Respondent's unlicensed personnel sometime during the summer of 1957. That the Respondent was aware of the union activities of its employees as early as July 1957 is evidenced by the testimony of Juan Poveda, an employee in the engineroom on the SS Florida, in regard to the discharge of Angel Maya on July 7, 1957.15 Accord- ing to Poveda's uncontradicted and undenied testimony which is fully credited by the Trial Examiner he had a conversation (in regard to Maya sometime in July 1957) with Jesus Hernandez, whom he and other witnesses who testified at the hearing herein referred to Hernandez as ". . . the second representative . . . of the company in Havana." In the circumstances and particularly in regard to other activities of Hernandez which will be thoroughly discussed below, the Trial Examiner finds that at all times material herein he was a supervisory employee of the Respondent within the meaning of the Act. According to Poveda's credible testimony Maya was discharged by the Respondent on July 7, 1957. He and Maya were friends and had both worked together in the engineroom . After Maya was discharged he told Poveda that the reason for the Respondent's action in this regard was that someone had reported to the Company that he had been seen talking to Al Lopez, the Union's representative in Miami, Florida. As a matter of fact it was Poveda himself who had talked with Lopez and not Maya. It was for this reason that he interceded with Hernandez on Maya's behalf. Hernandez told him in substance that he would straighten things out and have Maya put back to work when they got back to Miami. Shortly after they arrived in Miami, he went with Hernandez to the offices of Osborne, vice president and general manager of Peninsular & Occidental Steamship Company, to see what could be done about Maya. Hernandez talked to Osborne privately. After the conversation was over he told him that Maya would be put back to work at once and paid for the time he lost. From what the Trial Examiner gleans from the record Maya was restored to his job in the engineroom and worked there until 15 See supra, and paragraph 9 of the complaint PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 29 November 12, 1957 , when he and others mentioned above were discharged, of which more anon. Neither Maya, Hernandez, nor Osborne testified at the hearing herein. Hence Poveda's testimony stands uncontradicted and undenied .in the record.' Even so, his testimony in this regard has concerned the Trial Examiner quite a bit , not so much because, standing alone, much of it is hearsay, but primarily because of its vague- ness.16 However when it is considered in the light of the record considered as a whole, particularly other testimony regarding Hernandez' activities, he is inclined to and does accept it as probative and relevant evidence to the issues involved herein. In the circumstances the Trial Examiner finds that by the conduct described above the Respondent violated Section 8(a)( I) of the Act . The vice of the Respondent's conduct in this regard is that it was a warning to. its employees that their union activities were not only under surveillance, but that they too might expect the same treatment for engaging in union activities as was meted out to Maya . Clearly such conduct constituted interference, restraint, and coercion .within the meaning of Sec- tion 8 (a)(1) of the Act. The record also shows that on numerous occasions Hernandez queried the em- ployees in regard to their union, affiliation and threatened them with discharge if they signed union cards . Hernandez' activities in this regard occurred for the most part in Havana, Cuba, and on board the SS Florida on the return trip to Miami, on or about October 23, 1957. The General Counsel's witnesses testified without con- tradiction that on or about the above date Hernandez came to them and in substance asked each if he had joined the Union . At the time he had a list of names and when they replied that they had done so he placed an X after their names. At the same time he threatened them with discharge. Typical of Hernandez' tactics in this regard is found in the undenied and credible testimony of Jose Pena, one of the alleged discriminatees. Q. (By Mr . SCHENERLEIN.) Do you recall whether or not the ship was in Havana on or about October 23,.1957? A. Yes. Q. Did you have a conversation with Jesus Hernandez on or about this time? A. Yes. Q. What did Jesus say in substance to you and what did you say to Jesus? A. Jesus Hernandez had a list in his hand on entering the dock and we found him waiting for the other crew members to leave , when I left . He said that he didn't have anything to say to me . He knew that it was I who was passing out the cards on the boat-union cards .on the boat, that I shouldn't continue fill- ing out the cards because I was putting my companions in jeopardy , and every- body that had filled out a card they were going to fire from the boat. Q. (By Mr. SCHENERLEIN.) Were those things in your last answer things that Jesus said to you? A. Yes. Q. Did Jesus have a list in his hand at the time he talked to you? A. Yes; he had the list in his hand. Q. Did you see the list? A. Yes. Q. What did he do -with this list? TRIAL EXAMINER : Establish what was on the list from the witness. The WITNESS : He took the list and opposite my name he put a cross. I also saw above my name the name of a fellow worker, Maya. Q. (By Mr. SCHENERLEIN.) In addition to your name and Maya's name, what else was on the list that you saw? A. There was writing at the top of the paper. I couldn't say what it was, because I couldn't get a good look at it. And below the writing there were names of the crew members. Q. Did you testify that you saw Maya's name on the list? A. Angel Maya. Q. Was there a mark next to Maya's name? A. Yes, it had a cross. In the considered opinion of the Trial Examiner , Hernandez' interrogation of the crew in regard to their union activities and affiliations accompanied by threats of discharge to each of them personally for their activities is such an obvious violation of Section 8(a)(1) of the Act that he sees no necessity for,citing authorities ad 38Poveda did not speak English and his entire testimony went'into the record through the official interpreter % 30 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 'infinitum to substantiate his conclusion in this regard . Suffice it to say that he finds that Hernandez' conduct as described above was violative of Section 8(a)(1) of the Act. B. The alleged violations of Section 8(a) (3) - As indicated above the complaint alleges that the employees named therein were 'discharged in mid-November 1957. The record shows that six of them were "tech- 'nically" discharged twice,17 first in Miami, Florida, on or about November 12, 1957, and again on November 17, 1957, in Nassau, Bahama Islands. The record shows that the SS Florida arrived in Miami sometime either on Novem- ber 11 or 12, 1957. On the morning of the 12th, Pena, Poveda, and Maya were discharged by Chief Engineer William E . Russell , under the following circumstances. According to the credible testimony of Pena and Poveda they and Maya were called into Russell's office and told by him "that he was very sorry that he had to fire us, but it was a company order because they didn't want any people who belonged to the Union. That he was sorry." According to the credible testimony of Abelardo. Navarro, he, Dominguez, and Tamayo were fired under the following circumstances: Q. (By Mr.,SCHENERLEIN.) Do you recall whether or not the ship was in Miami on or about November 11, 1957? A. Yes. Q. Were you fired on or about that date? A. Yes, on the 11th of November. Q. Who fired you? A. Mario Aguero. He's a second steward. TRIAL EXAMINER: Second steward, very well. Q. (By Mr. SCHENERLEIN.) Tell us what happened at that time? A. Well, the boat arrived in Nassau. I was collecting the dirty linen. He called Dominguez and Tomayo and me. He told us that we were discharged and that we should sign off on the articles. I told him that I couldn't do that without previously seeing my union repre- sentative. He said that was of no interest to him; that he was simply complying with company orders, and that's all that concerned him. So I went and called Albert Lopez. Q. Finish the translation A. So I went and I called Alberto Lopez. Q. Now, did this conversation take place in Miami? A. Yes Q. He had it placed in Nassau earlier, and the question was in Miami. I don't know whether you made the mistake. The INTERPRETER: I may have. TRIAL EXAMINER: Very well. Mr. RUTLEDGE: What date was this? TRIAL EXAMINER: November the 11th, 1957. Thereafter Poveda, Pena, Maya, Navarro, Dominguez, and Tamayo met with Al Lopez, a representative of the Union,18 and accompanied him to the U.S Immi- gration Office in Miami. What transpired there and thereafter is best told in the testimony of Juan Poveda: 19 Q. All right. What happened at immigration? A. A lady, who is in the maritime division of the immigration and who speaks Spanish-that they didn't have any knowledge of the company having fired us; and because of that we should go -back to the boat, because since they had no knowledge of our being fired, we'd have-they would have to put up a bond of one-thousand dollars for each of us: that we should return to our work again. Q. Did you go back to the ship? Did you all go back to the ship? A. Yes. Q. When you went back to the ship were you put to work? A. No. 17 The record shows that of the six discharged at this time all were permitted to go to work but Angel Maya and Abelardo Navarro , of whom more anon. 19 The record shows that Albert Lopez , at times material herein , was vice president of the Maritime Council of Southeast Florida , AFL-CIO. 19 According to the credible testimony of Navarro ,- the lady who interviewed them at the US Immigration Office was a Mrs Aguilera . She was employed in the Maritime Division of Immigration and spoke Spanish PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 31- Q. Who told you you couldn't go to work? A. The same chief engineer. Q. What did the chief engineer say? A. He told us that he had orders from the company not to permit us to work because we belonged to the union. They said they- Q. Did you go to see Mr. Osborne after this? A. Yes. Q. Why did you go to see Mr. Osborne? A. We went to see Mr. Osborne because Mr. Russell, the chief engineer, had told us that we couldn't work on account of orders from the company. One of our companions, Navarro, and all the rest went to see him. Q. Who were all the rest? A. Navarro, myself, Pena, Maya, we were all together six. Q. Dominguez? A. Dominguez and Tamayo. Q. What happened at Mr. Osborne's office? A. We no sooner started to enter the office, and then he said to us, "Get out. Get out of here." He didn't say anything else. "Get out of here right away. You don't have anything to talk to me about. Get out." We got out of there rapidly, because when he spoke to us that way, why- TRIAL EXAMINER: That person has been identified as whom? Mr. SCHENERLEIN: I was just going to ask him that question. These fellows are not exactly sharp on titles. Mr. RUTLEDGE: I think it can be stipulated that Mr. Osborne is vice-president and general manager of the P. & O. Steamship Company. Mr. STEEL: Yes. TRIAL EXAMINER: Do you join in that stipulation, Counsel? Mr. SCHENERLEIN: Yes, your Honor. After leaving Osborne's office they returned to the SS Florida. Eventually all were permited to go aboard but Maya and Navarro of whom more anon. Those who were permitted to go back on board the ship were not assigned to their old jobs but were given less desirable work. For example Pena, who was a first-class fireman, before he was discharged on November 12, 1957, was put to work "wiping up the floor." As indicated above the discharge of Maya and Navarro was effectuated and they were denied 'permission to reboard the ship. As the Trial Examiner sees it the reason the discharge of these two was made to "stick," so to speak, was because they were "registered aliens," and the Respondent was not required to post a $1,000 bond as to them, as they would have been for the others because they were "aliens." ao On November 15, 1957, the SS Florida left Miami for Nassau, and arrived there the next morning. On Sunday, November 17, 1957, Castro, Pena, Poveda, Diaz, Dominguez, and Tamayo were ordered by Pico, the ship's quartermaster, to meet with Captain Donovan in the purser's office. What transpired there is best told in the language of the witness Castro, who acted as interpreter: 121 Q. What happened in the purser's office with Captain Donovan? A. He called Mr. Pico to interpret, because he figured out that nobody could understand English. Q. Go ahead. A. So after he told Pico that he got the order from the company to fire all the guys, because they belonged to the Union. He knew we already had a case here in Miami, because in Miami he fired Mr. Navarro and Mr. Maya; and I think he fired about the 11 or 12-he fired the other guys too. There was Mr. Poveda, Mr. Pena, Tamayo and Dominguez. Q. What else did he say, if anything? A. Well, he said he had nothing to do with that. He got an order to put up, the ship. TRIAL EXAMINER: You mean to put it in drydock? The WITNESS: Yes. Q. (By Mr. SCHENERLEIN.) Did you act as interpreter for` the other mem- bers of the crew that could not understand English? A. When Mr. Pico started to talk I said we didn't need that, because I was the representative; and I asked for the Cuban Consul. And he said, "We haven't any Cuban Consul." 20 See supra, In regard to what transpired at the Immigration Office. z<The record shows that Diaz was also present at the meeting with Captain Donovan. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And then I asked him for the Liberian Consul, and he said there wasn't any Liberian Consul. And I asked for the American Consul. And he said, "the American Consul can't do anything because it' s a foreign flag." So I asked for the English Coast Guard. He said they don't have any. TRIAL EXAMINER: Who made these statements? The WITNESS: Captain Donovan. TRIAL ExAMINER: He is repeating what he said? The INTERPRETER: No, I repeated your question, sir. TRIAL EXAMINER: What year was this? The WITNESS: November 17; 1957. TRIAL ExAMINER: And in the stipulation this morning about the "Florida," was it under the American Flag? Mr. SCHENERLEIN: We'll only- Mr. STEEL: She went from American to Liberian approximately September 1, 1955, your Honor, and has been Liberian since that time. Q. (By Mr. SCHENERLEIN.) Is there anything else then? A. Well, he brought an immigration officer, I think, and he told me, "This is the authority on the dock." I told him I just wanted the American Consul or any other consul, because we wanted to explain what is going on. He said he didn't have anything to do with it, but we'd have to get off the ship, because it was the captain. Q. Did you thereafter ever get employment on the ship again? A. No. TRIAL ExAMINER: ' Who was it that made this statement that you had to get off the ship? The WITNESS: Mr.-Captain Donovan. TRIAL EXAMINER: That's the captain? The INTERPRETER: Yes. Q. (By Mr. SCHENERLEIN.) Were you given your final pay at this time? A. We didn't even get any breakfast. Castro's testimony in this regard not only stands uncontradicted and undenied in the record but was corroborated by the witnesses, Diaz, Pena, and Poveda. Con- sequently it is fully credited by the Trial Examiner. Following their discharge all of the above left the ship and went. ashore with Castro who called Lopez in Miami. The purpose of the call as the Trial Examiner sees it was what they should do about signing off the ship. - What Lopez advised them to do is not too clear, but in any event all refused to sign any papers, pri- marily because their lockers had been broken into and their clothes piled together in a room near the purser's office. The record also shows that they were not paid the wages due them at this time, but that they did receive them at a later date. The record also shows that the Respondent paid their transportation from Nassau to their respective places of residence. Conclusion • From all of the above the Trial Examiner finds that the Respondent herein dis- charged Jose Dominguez, Luis Tamayo, Juan Poveda, Jose Pena, Melciades Castro Rivera, and Ubaldo Diaz on November 17, 1957, and Angel Maya and Alberto Navarro, on November 11, 1957, because of their membership in and activities on behalf of the Union; and that by such conduct the Respondent violated Section 8(a) (1) and (3) of the Act. While it is true that Maya, Dominguez, and Tamayo did not testify at the hear- ing herein,22 the record clearly shows by a preponderance of the uncontradicted and undenied testimony of five of their coworkers who were present at the time that they were discharged by the Respondent, and that the issues herein as to them were fully litigated, and an opportunity was afforded the Respondent to adduce testi- mony as to them which it did not choose to do. In the circumstances the Trial Examiner finds that the issues as to them were fully litigated at the hearing herein 23 C. The alleged violation of Section 8(a)(4) and (3) of the Act The, alleged violations of Section 8(a)(4) and (3) arose under the following cir- cumstances. During the course of the hearing herein the General Council called 22 See infra in regard 'to Dominguez and Tamayo. 2e See N'L.R.B. 'v. Clearfield Cheese- Co., Inc.; 213 F. •2d 70 (C.A. 3), -enfg., as mod. 106 NLRB 417. PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 33 Jose Dominguez as a, witness. It was obvious to all who were present in the hearing room that he was a hostile and unwilling witness. After the Trial Examiner swore him in as a witness he requested that he be permitted to make a statement. What transpired thereafter is best told by the record itself. The INTERPRETER: He wants everyone here present in the court, the judges, the lawyers and those present here to know that he has an affidavit and which he retracted what he formerly said. Mr. SCHENERLEINi: Ask him if he will cooperate with ine in answering the questions I ask him? The WITNESS: My only problem is with reference to that affidavit which I made. The United States being a free country, I want to tell them with regard to that affidavit which I have executed, I want to take back everything that I said and, sincerely, I do not wish to say anything further. Mr. STEEL: I would like to state at this point I was out of Miami from- well, last Thursday until Sunday night. On Monday afternoon I was advised by officials of the Green Trading Company that this man had come to the company last week-I think Wednesday or Thursday-I'm not certain as to the date-and said that he wanted his job back, he wanted to quit these hearings or dismiss whatever it was, and if he could have his job back, he wanted to go back to work. I I was also advised by Captain Lord bf the Green Trading Company that he had told him that as far as the company was concerned he could go back to work if it was understood that there were to be no further proceedings on this case. In other words, that he was not going to take him back and litigate with him at the same time. [Emphasis supplied.] I'm advised by Captain Lord that the man said that that was what he wanted to do, that he wanted to go back to work. I am further advised by Captain Lord that the man can go back to work if he wants to do so. Mr. RUTLEDGE: Does that apply to all eight of these people? Mr. STEEL: No. Mr. RUTLEDGE: Only to this man? Mr. STEEL: It applies to Dominguez and Tamayo. And Twill state for the record that I am advised that Tamayo and Dominguez came to the company together and said that we want our jobs back. Mr. SCHENERLEIN: Mr. Steel, may I ask the company's position, that they will take these employees back if they withdrew their names from the charge in this case; is that right? Mr. STEEL: Yes. Mr. SCHENERLEIN: But otherwise, unless they ' withdraw they will not put them back to work, is that correct? The Trial Examiner also feels that the following colloquy between the General Counsel's representative and counsel for the Respondent should likewise be inserted herein, primarily because the Respondent's position in regard to the rehiring of Dominguez and Tamayo is clearly stated by its counsel. Again, the Trial Examiner takes the,position that where as here the record is clear as to the Respondent's posi- tion, there is no need for further construction by him_ Suffice it to say that the record speaks for itself. , Mr. STEEL: I would like to make one or two more statements in that connection. I'd like to state, first, that I have refrained from talking to either of these men. I know of no rule which prohibits the company and these men talking. The company's position, of course, as has been apparent in this hearing, is that the Board does, not- have jurisdiction over this matter and, in addition to that I believe that both of these men, as I understood it, were room stewards; that is, where they take care of passengers in the stateroom as well as in the dining room, which is a very personal relationship, and the company doesn't feel that it is conducive to that type of employment to be litigating and then working at the same time. Now, with that combination of factors, the company told them when they came to the company and said they wanted to go back to work and to drop their charges, that they could be reemployed if this was the situation. [Emphasis supplied.] As indicated above the General Counsel issued subpenas to both Dominguez and Tamayo. Both reported at the hearing room. The record shows that Tamayo sat 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the hall outside the hearing room while Dominguez was on the witness stand. From what the Trial Examiner gleans from the record the General Counsel did not call him as a witness because he would have met with the same difficulty. that he experienced with Dominguez. The record clearly shows that Dominguez refused to answer any questions posed him by the General Counsel that were pertinent to the issues herein . Faced with this situation the General Counsel made an offer of proof . The Trial' Examiner re- served ruling thereon for reasons which will be apparent below 24 u Counsel Schenerlein testified . You make your proffer of proof, please , counsel. ,Mr. SCHENEELEIN : This witness would testify that during the course of his em- ployment, he was a waiter-steward ; that his supervisor was Mr. McCoy, the chief steward, and also his supervisor and second steward was Mario Aguero ; that Mr. Aguero has the power to hire and fire or effectively recommend hiring and firing ; that this witness signed a seafarer's application for the union in July of 1957, a card which he obtained from the employee, Navarro ; that during the months of July through November, 1957, the ship traveled between the ports of Miami and Havana and Nassau, and that during this period of time, that the crew engaged in discussions as to whether or not to have a union and that this witness talked in favor of the union to other crew members; that during the month of July of 1957, this witness had a conversation with Mario Aguero, the second steward, about the union, and at this time , Mario told this witness : "You guys don't know what you're doing here. Lopez has you all fouled up, and you are going to be fired Do not join the union," or words to that effect Further, that the ship was in Havana , Cuba, in October of 1957, and that the witness knows a man named Jesus Hernandez , that he would identify Jesus Her- nandez as being a company official of P & 0 in Havana, Cuba, and that while the ship was in Havana, he had a conversation with Jesus Hernandez in October of 1957 on the dock and in the presence of another crew member named Navarro and, in substance, Jesus Hernandez asked the witness if he signed a yellow card and the witness answered to the effect that he had not signed a yellow card , that he had signed a blue card, and the witness was told by Jesus Hernandez the fact that all those who had signed blue cards are on the blacklist and everyone will be fired. Further, that at the time this conversation took place, Jesus Hernandez had the list in his hands, and that he marked an "X" on this list opposite this witness' name ; and on the same day, about ten minutes later, which occurred outside the gates of the shipyard and also at the same time the employee Navarro was present at this conversation, and that Jesus Hernandez did accuse the employees gathered around the gate at that time of Jhaving talked about the union. The employees told Jesus Hernandez that they were talking about oleomargarine, and that Jesus Hernandez said words to the effect that they were not talking about oleomargarine, that they were talking about the union and, in effect, that if they didn't like it they could sign off the ship right now. Thereafter, the ship left from Havana for Miami and while in transit to Miami, the crew, comprised primarily of waiter-stewards had a meeting in the dining room or the salon on the ship to talk over-the purpose of the conversation was to talk over the list that Jesus Hernandez had in his hands which was going around to the various crew members , and that after this meeting got started, that Jesus Hernandez attend- ing this meeting That, in substance , Jesus told these employees that the company did not want anybody in the union and he called Al Lopez and the union officials gangsters, and he relayed an event to them which he said took place in Jacksonville which he said one of the union officials was responsible for, the overturning of a bus. Then, when the ship was in Miami on or about November 11th or 12th, this witness was fired by Mario Aguero for reasons that he was participating in the union. After being fired by Mario Aguero, this witness went along with the other employees to see Al Lopez, the representative of the union who, took him to the Immigration office, and at the Immigration office, they had a conversation with an Immigration official who told them that due to the fact that the Immigration office had not re- ceived notice of this action ;thereafter this witness along with other employees went back to the ship following their visit to the Immigration office, but were not put to work, and this witness together with other employees went to Mr. Osborne's office to see why they weren 't being put back to work , and upon arriving at Mr. Osborne's PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. 35 An examination of the offer of proof shows that it covers in substance the same factual situations that were elicited from all of the witnesses who had previously testified at the hearing in support of the General Counsel's case-in-chief. After long and careful consideration the Trial Examiner rejects his offer of proof for the follow- ing reasons. In the first place an offer of proof or proffer must be made through a witness who is cooperative and in fact a witness for the party who called him, as such. Where as here a witness publicly states on the record that he is unwilling to testify for the party who called him as a witness -then he is not a "witness" through: whom an offer of proof may be made. In support of his position in this regard the Trial Examiner sets forth herein below the following pertinent excerpts from "Wigmore on Evidence." Wigmore on Evidence B. The individual witness §'s 1882-et seq.-Vol. VI- What constitutes-a witness § 1893-Same: (a) on Ordinary Subpoena or by Deposition The object then is to define the point of time at which it may properly be said that the person has become the witness of the party for the purpose of forming the first stage of the examination. It would seem that the proper test is to be found in the question whether he has given admissible testimony. Until then, he may be potentially a witness (as are all persons having relevant knowledge), but is not actually a witness. Until he has made a contribution, by way of testimonial assertion, to the general mass of evidence, and this con- tribution has been accepted by the party and sanctioned by the Court as a part of the evidence, the person is only prospectively and not "de facto" a witness. Certain consequences follow from this: (1) A person. who has been sworn by mistake, as sometimes happens under the, practice of swearing in a group (ante, § 1819), and has not yet been put on the stand, is not yet the witness of the party for whom he was sworn. (2) A person sworn but not yet asked any question is not the witness of the party swearing him; moreover, he cannot be cross-examined even to discredit him, for there is, as yet no testimonial assertion to be discredited. (3) A person sworn and asked questions, where he gives no answer or where the facts in his answer are irrelevant to the case, has not yet become the party's witness? (4) A person who is questioned and answers merely to prove a document does become a witness of the party thus using him. (5) [In re depositions] *. 1936, State v. Gregory, 339 Mo. 133, 96 S.W. 2d 47 (robbery; witnesses called but refusing to answer any questions) ; 1899 Fall Brook Co v Hewson, 158 N.Y. 150, 52 N.E. 1095 (asked on immaterial points only) ; . . In passing the Trial Examiner desires to point out that the Respondent did rehire Dominguez and Tamayo sometime around December 15 or 16, 1958. This of course does not excuse its conduct for reasons which will be set forth below. office, he refused to talk with them ; thereafter they returned to the ship and the ship sailed from Miami to Nassau on or about November 15th. That this witness was employed after this date as a pot washer, which is a less- paying job than he had prior to the events of his being fired in Miami by Marion Guero That working conditions on this job were not as favorable as the job he previously had, and that the ship arrived in Nassau on or about Saturday, November 16th or 17th. That, thereafter, on a Sunday, this witness was fired and he was called into the purser's office, along with other employees, and that Castro, an employee acting as an interpreter for Captain Donovan discharged these employees. That Castro told this witness that Captain Donovan had said that due to the fact the company doesn't want to have employees participating in the union, they don't want them. That this witness will testify that he had never refused to follow the orders of his supervisors, nor had he ever had any complaints about his work. That is my proffer of proof. TRIAL EXAMINER • All right. My ruling is reserved. 614913-62-vol. 132-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusion In view of all of the foregoing the Trial Examiner is convinced and finds that the Respondent acting through Captain Lord,25 operating manager of its instrumentality Green Trading Company, conditioned the rehiring of Dominguez and Tamayo upon their withdrawing the charges that had been filed on their behalf by the Charging Union. In the considered opinion of the Trial, Examiner the Respondent's conduct in this regard was violative of the plain language of Section 8(a)(4) of the Act, which states as follows: . , SEC. 8. (a) It shall be an unfair labor practice for an employer- (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act; .. . That the Respondent was deeply concerned over the fact that Dominguez and Tamayo were named in the complaint, which was piedicated upon charges filed on their behalf, is found in the statements of its counsel "on many occasions, some of which have been set, forth herein above. As the Trial Examiner sees it the fact that they were in a sense "litigants" (as the Respondent dubbed then) was what con- cerned the Respondent's officers and was the reason for their refusal to rehire them until they withdrew from the proceedings herein. -In the considered opinion of the Trial Examiner the Respondent's conduct in this regard was violative- of the Act. The Board was faced with a somewhat similar situation in the Vogue Lingerie, Inc., case.26 - In that case the General Counsel did not allege a violation of Section 8(a)(4); however, the Board found a violation of Section 8(a)(1). Following ex- cerpt from this case is set forth below. - 1. Contrary to the Trial Examiner, we find that the Respondent violated the Act by discharging Sylvia Robison on August 21, 1957, because the Union filed an unfair labor practice charge on her behalf. Robison was first discharged by the Respondent on August 7, -1957, for alleged economic reasons. On August 19, 1957, the Union filed a charge on her behalf, alleging that Robison was discharged for engaging in union activities. On August 20,_ 1957, Union Organizer Wollk, who authorized the filing of the charge, met with Plant Manager Greenberg to discuss Robison's discharge. Wollk contended that Robison was unlawfully. discharged and threatened to file unfair labor practice charges against the Respondent, if she were not reinstated. Greenberg had no knowledge that a charge- had been filed and agreed to Wollk's suggestion that Robison be reinstated to a nonsupervisory job.. Later that day, on August 20, Greenberg received by registered mail a copy, of the charge filed by the Union on August 19, 1957. Robison -reported for work on August 21, but about 2 or 3 hours later Greenberg, having learned that she had reported, discharged her.' Greenberg admits that the reason for this discharge was the fact that a charge had been filed. Although-Wollk's threat to file unfair labor practice charges. if Robison were not reinstated may have carried the implication that-charges would not be filed if she were reinstated, agreements between private parties with respect to unfair labor practice charges cannot restrict the jurisdiction of the Board. The Board may process any case involving an unfair labor practice when in its'discretion it is necessary to protect the public rights as defined in the Act; 2 and we believe it is necessary here. Accordingly, Robison's right to an adjudication of her case by the Board is not foreclosed by any -agreement .between Wollk and Greenberg to the contrary. [Emphasis supplied.] While it is true that the complaint did not allege' a violation of Section 8(a) (4), the Respondent's conduct may be held to constitute a violation of Sec- tion 8(a) (1), which was alleged in the complaint .3 Contrary to the Trial Examiner; 'it is clear from a mere reading of the Intermediate Report that parties litigated the issue,of whether,Robison was discharged because-a charge had been filed. In view of the Respondent's discharge of Robison on August 21 2N L R:B . v. Walt Disney Productions; 146 F: 2d 44 (C.A. 9), cert. denied 324 U.S. 877. ' L. 3N L R B. v. Newark Morning Ledger Co., 120 F. 2d 262, 267 (C.A 3), cert. denied 314 U S. 693. ' 25 See statement of Respondent's counsel, supra 26 Vogue Lingerie, Inc, 123 NLRB 1009 PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC.- 37 for the admitted reason that a charge had been filed on her behalf, and in view of the fact that Robison occupied an employee status at that time,4 we find that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In view of the fact that Robison was actually rehired for 2 or 3 hours in a non- supervisory status before being discharged , we reject the Trial Examiner's findings that the agreement to rehire her was not consummated, and Robison was a super- visor at all material times. The Trial Examiner desires to point out that the Board -is concerned with the public interest and not private agreements between the parties. Hence any agree- ment between Dominguez and Tamayo and the Respondent's officers as to the-with- drawal of the charges herein is of no avail to the Respondent as a defense to its conduct in this regard. , In view of all of the foregoing, the Trial Examiner finds that by the conduct de- scribed and found above the Respondent interfered with, restrained, and.coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in.viola- tion of Section 8(a)(1), (3), and (4) of the Act. D. The alleged violation of Section 8(a) (5) of the Act As indicated above, the Union was certified by the Board as the exclusive collective- bargaining representative of the, Respondent's employees in the unit found appropri- ate by the Board in Case No. 12-RC-241 (120 NLRB 1097), on June 27, 1958. The unit found appropriate by the Board was as follows: visors as defined in the Act. On December 31, 1958, the Trial Examiner granted the General Counsel's motion to amend the complaint by including therein, inter alia, the following allegations: 13. All unlicensed personnel employed aboard the S.S. Florida and S.S. Southern Cross, excluding licensed personnel, pursers and radio operators, and,supervisors as,defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 14. - - On or about June 19, 1958, a majority of the employees of the Respondent in the unit described above in paragraph 13, by an election conducted by the Twelfth Regional Office of the National Labor Relations Board in its case docketed as 12-RC-241, designated or selected the Union as their representative for the purpose. of collective bargaining with the Respondent. 15. At all times since June 27, 1958, the Union has been the certified representa- tive for the purpose of collective bargaining of a majority of employees in said unit, and by virtue of Section 9(a) of the Act, has been, and is now, the ex- clusive representative of all the employees in said unit for the purpose of collec- tive bargaining in respect to rates of pay, wages, hours of_ employment, and other working conditions of employment. 16. ' . • On or about June 27, 1958, and at all times thereafter, Respondent refused, and continues to ,fail and refuse, to, bargain collectively with the Union as the exclusive certified representative of the employees in the unit described in paragraph 13 above. S 17. By the acts described in paragraph 16 above, Respondents did engage in, and is thereby engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. On January 9, 1959, the Respondent filed its answer td the amended complaint in which it denied in part and admitted, inter alia, paragraph 16 of the amendments to the complaint as set forth immediately above., ' - At the hearing herein the parties entered into the following stipulation: It is 'hereby "agr^'d and stipulated in Case No. 12-CA'-255,'by and'between the parties, that: All unlicensed personnel employed aboard the SS Florida and SS Southern Cross, excluding licensed personnel, pursers, and radio operators,' and super- 38: DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Peninsular & Occidental Steamship Company has at all times since issu- ance of the certification on June 27 , 1958 by the National Labor Relations Board in Case No. 12-RC-241, refused to meet with the Seafarers International Union of North America, Atlantic & Gulf District , AFL-CIO, for the purpose of collective bargaining ; has refused to recognize the jurisdiction of the National Labor Relations Board; and has refused to recognize the Seafarers International Union of North America, Atlantic'&. Gulf District, AFL-CIO, as the certified collective bargaining agent as set forth in the aforesaid certification. The' Green Trading Company , at all times since June 27, 1958, has refused to recognize the Seafarers International Union of North America, Atlantic & Gulf District, AFL-CIO, as the certified bargaining agent as set forth in the aforesaid certification; has refused to recognize the jurisdiction of the National Labor Relations Board over its operations . However, after the issuance of the certification, and specifically from August 5, 1958 through December 12, 1958, meetings were held between Green Trading Company and the Union with the view to negotiating a collective bargaining agreement . During the course of these meetings the Union submitted a written proposal to Green Trading Com- pany and Green Trading Company countered by the submission of a written proposal to the Union. In the proposal submitted by the Green Trading Com- pany it indicated its willingness to recognize the Union as the sole and exclusive bargaining representative for the unlicensed personnel employed by it inasmuch as a majority of said unlicensed personnel had indicated that they wished the Union to bargain for them . This same proposal also provided that the recogni- tion of the Union would not be based upon its certification by the National Labor Relations Board as the bargaining representative because the Company did not recognize the jurisdiction of such Board over its operations. The Peninsular & Occidental Steamship Company has refused to enter into any collective bargaining contract with the Union . However, since under the time charter on the SS "FLORIDA" P & 0 was obligated to pay Green an amount sufficient to reimburse Green for the payment of the crew wages, P & 0 did offer to permit Union representatives to examine its books to satisfy them- selves independently as to P & O 's inability to pay Green more under the charter to in turn enable Green to increase wages and other benefits. Upon all of the foregoing the Trial Examiner finds that since "On or about June 27, 1958, and at all times thereafter Respondent refused , and continues to fail and re- fuse, to bargain collectively with the Union as the exclusive certified representative of the employees in the unit described above ," and thereby committed an unfair labor practice within the meaning of Section 8 (a) (5) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in connection with the operations of the Respondent, described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3), (4), and (5) of the Act, the Trial Examiner shall recom- mend that it cease and desist from such conduct and take certain affirmative and remedial action designed to effectuate the policies of the Act. The Trial Examiner has found above that the Respondent engaged in conduct violative of Section 8 (a) (1) and (3) of the Act twice as regards the hire and tenure of employment of six employees including Jose L. Dominguez and Luis Tamayo. They were first discharged, along with'other employees named above, in Miami, Florida, on or about November 12, 1957. For reasons set forth above they along with others were permitted to go back to work on the SS Florida for a run to Nassau, the Bahamas. Upon arrival all of those named above were effectively and finally discharged on or about November 17, 1957. The record shows and the Trial Examiner has found above that the Respondent on or about December 12, 1958, again interfered with, restrained, and coerced its employees within the meaning of Section 8(a)(1), (3), and (4) of the Act, by con- ditioning the reemployment of Luis Tamayo and Jose L. Dominguez upon, their withdrawal of charges filed on their behalf with the Board, and cease being "liti- gants," so to speak, in this proceeding. The record also shows and, the Trial Examiner has found above that Tamayo and Dominguez acceded to the Respond- PENINSULAR & OCCIDENTAL STEAMSHIP CO., ETC. ,39 ent's conditions of reemployment.on a date uncertain in December 1958. Even so, effectuation of the policies of the Act requires a positive, effective, and affirmative order of reinstatement as to them, as regards this separate and'distinct violation of Section 8(a)(4) of the Act. Suffice it to say that this issue. is - disposed'of under "The Remedy" recommended for the 8(a) (3) violations of the Act. It will therefore be recommended that the Respondent offer Luis Tamaya and Jose L. Dominguez immediate and full reinstatement to their former jobs with all customary rights and privileges, and make them whole, in accordance with the Board's usual policies, for any wage losses incurred as a result of discrimination against them. Further dis- cussion regarding Tamayo and Dominguez follows below. In passing, the Trial Examiner desifes to point out that he has deliberately set forth above a resume and comment on his recommendation as to Tamayo and Dominguez "out of turn," for the purpose of a better understanding of what follows below, in regard to his findings as to violations of Section 8(a) (1), (3), and (5) of the Act. It will be recommended that the Respondent offer immediate and full reinstate- ment to the following named employees to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges: Abelardo Navarra, Luis Tamayo, Jose L. Dominguez, Angel Maya, Juan Poveda, Jose Pena, Ubaldo Diaz, and Melciades Castro, and make them whole for any loss of pay suf- fered as a result of the discrimination against them, by payment to each of them of a sum of money- equal to that which he would have earned from the date of the discrimination to the date of the offer of reinstatement, less net earnings, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of backpay due. Having found that the Respondent has refused to bargain collectively with the Union, it will be recommended that upon request it bargain collectively with the Union in respect to wages, hours, and other terms and conditions of employment affecting employees within the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. The character and scope of the unfair labor practices engaged in by the Respond- ent indicate an intent to defeat self-organization of its employees in the unit found appropriate by the Board in the "R" case. It will therefore be recommended that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Seafarers' International Union of North America, Atlantic and Gulf District, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of 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(a)(1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Abelardo Navarra, Luis Tamayo, Jose L. Dominguez, Angel Maya, Juan Poveda, Jose Pena, Ubaldo Diaz, and Melciades Castro, thereby discouraging membership in a labor organization, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(a) (3) of the Act. 4. By discriminating against Jose L. Dominguez and Luis Tamavo in the manner described in section III and "The Remedy" above because they had filed charges under the Act the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(4) of the Act. 5. All unlicensed personnel employed aboard the SS Florida and SS Southern Cross, excluding licensed personnel, pursers, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. The aforesaid labor organization on June 27, 1958, was and at all times there- after has been, the exclusive representative of all employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with said labor organization as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of,the Act. 8. By interrogating employees as to their membership in and activities on behalf of the Union, and at the same time making notations of their answers on a prepared list; by telling employees that the owners of the SS Florida did, not want a union on board the ship; by telling the employees-that 'is, the unlicensed personnel of the crew-that if they -joined the Union they would be discharged; by discharging em- ployees because they had joined the Union; by refusing to bargain with the Union, -the certified bargaining representative of its unlicensed -personnel (i.e. employees); and for reasons set forth above in "The Remedy" in regard to violation of Section 8(a)(4) of the Act, regarding Tamayo and Dominguez, the Respondent has inter- fered with, restrained, and coerced its employees -in the exercise of the rights guar- anteed in Section 7 of the Act.and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of-the Act. [Recommendations omitted from publication.] Upholsterers Frame & Bedding Workers Twin City Local No. 61, affiliated with Upholsterers' International Union of North America, AFL-CIO and Minneapolis House Furnishing Company Upholsterers Frame & Bedding Workers Twin City Local Union No. 61, affiliated with Upholsterers' International Union of North America, AFL-CIO and Allied Central Stores, Inc. of Missouri d/b/a L. S. Donaldson Company. Cases Nos. 18-CC- 76-1 and 18-CC-76-2. July 11, 1961 DECISION AND ORDER On April 27, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, and on July 7, 1960, Addendum thereto, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other unfair labor practices and recommended that the com- plaint be dismissed with respect thereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 to the extent consistent with our Decision herein. 132 NLRB No. 2.