Export Steamship Corporation

In the Matter of EXPORT STEAMSHIP CORPORATION and NATIONAL MARINE ENGINEERS BENEFICIAL ASSOCIATION Case No. C-738.-Decided April 19, 1939 Water Transportation Industry-Interference, Restraint, or Coercion: charges of, not sustained-Strike: not result of unfair labor practice-Discrimination: charges of refusal to reinstate strikers after strike because of union affiliation or activity, not sustained-Complaint : dismissed. Mr. Will Maslow, for the Board. Haight, Griffen, Deming cfi Gardner, by Mr. Kenneth Gardner, of New York City, for the respondent. Mr. E. P. Trainer, of New York City, for the M. E. B. A. Mr. Allan Lind, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by National Marine Engineers Bene- ficial Association, herein called the M. E. B. A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated December 10, 1937, against Export Steamship Corporation, New York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and upon the M. E. B. A. In respect to the unfair labor practices the complaint alleged, in substance, that the respondent refused to reinstate to their former positions on the respondent's vessels 33 named individuals who had participated in a strike commencing on or about November 23, 1936, and ending on or about Januafy 14, 1937, said refusal being for the reason that they had joined and assisted the M. E. B. A. and engaged 12 N. L. R. B.. No. 40. 309 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in concerted activities with other employees of the respondent for the purpose of collective bargaining and other mutual aid and protection; and that the respondent had urged, persuaded, and warned its em- ployees to refrain from becoming or remaining members' of the M. E. B. A. The respondent filed no answer to the complaint. Pursuant to notice, a hearing was commenced at New York City on January 11, 1938, before P. Wolf Winer, the Trial Examiner duly designated by the Board. The Board, the respondent, and the M. E. B. A. were represented and participated in the hearing. Before adjournment of the first day's hearing it was agreed by all parties that the testimony of the individual seamen named in the complaint might be taken in the Regional Office before an agent of the Board as they arrived in the Port of New York City. Such testimony was to be subject to cross-examination and objections, but rulings upon objections were to be reserved and passed upon by the Trial Examiner in his Intermediate Report. Thereafter, on February 5, 16, 19, and March 8 and 23, 1937, the depositions of 11 persons named in the com- plaint were taken at the Regional Office. The hearing was resumed on May 11, 1938, before William Seagle, the Trial Examiner duly designated by the Board to replace P. Wolf Winer. At the close of the hearing it was stipulated by counsel for the respondent that Trial Examiner William Seagle might act in the ,proceedings in all respects as if it had been conducted before him in its entirety. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the close of the hearing counsel for the Board moved to conform the pleadings to the proof adduced at the hearing. This motion was granted by the Trial Examiner. The ruling is affirmed. Counsel for the Board also moved to strike from the complaint the allegations with respect to those employees who did not testify in person or as to whom there was no proof that individual applications for employ- ment were made by or for them. He further moved to strike from the complaint the allegations with respect to Gordon Millspaugh, Mal- colm Gatheral, and Frank Campbell, 3 of the 11 employees whose dep- ositions were taken at the Regional Office. The Trial Examiner re- served rulings upon such motions at the hearing, but granted the same in his Intermediate Report. These rulings are discussed below. At the close of the hearing, counsel for the respondent made a number of motions which, in substance, asked that the entire complaint be dismissed upon the ground that the evidence was insufficient to sus- tain the allegations thereof. The Trial Examiner reserved rulings upon such motions at the hearing. In his Intermediate Report, the Trial Examiner granted the motions in so far as they asked dismissal EXPORT STEAMSHIP CORPORATION 311 of the allegations of the complaint with respect to certain of the in- dividuals alleged to have been discriminated against by the respondent and denied the other motions. These rulings are also discussed below. The Board has reviewed the rulings of the Trial Examiners on mo- tions and objections to the admission of evidence made during the course of the hearing and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On June 29, 1938, the Trial Examiner filed his Intermediate Report finding that the respondent had not engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) of the Act and recommending a dismissal of the complaint. Exceptions to the Intermediate Report were thereafter filed by the M. E. B. A. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Export Steamship Corporation is a New York corporation with its principal office at New York City. It is engaged in the operation of vessels transporting mail, freight, and passengers between ports on the North Atlantic Coast of the United States of America and ports in foreign countries. In the conduct of its business, the respondent operates a fleet of from 18 to 22 vessels. It employs from 70 to 80 licensed engineers on such vessels. The respondent admitted it was engaged in foreign commerce and that its activities are subject to the jurisdiction of the Board. We find that the respondent is engaged in trade, traffic, transporta- tion, and commerce among the States and foreign countries. H. THE ORGANIZATION INVOLVED National Marine Engineers Beneficial Association is a labor organ- ization affiliated with the Committee for Industrial Organization, ad- mitting to its membership licensed marine engineers. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of events On or about October 29, 1936, a general shipping strike involving both unlicensed and licensed seamen began on the west coast of the United States of America. It spread to the east coast and on November 20, 1936, the M. E. B. A. called out on strike the licensed engineers on the respondent's vessels. Approximately 56 of the respondent's licensed engineers answered the strike call, leaving their ships as they came into port during the succeeding 4 to 6 weeks. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The strike was apparently called in protest against working condi- tions generally and in an effort on the part of the M. E. B. A. to secure signed agreements with the various shipping lines. While the strike was thus a labor dispute, there is no charge in the com- plaint that it was precipitated by any unfair labor practice on the part of the respondent. ' On or about January 5, 1937, Edward P. Trainer, business rep- resentative of the M. E. B. A., offered to call off the strike on the respondent's vessels if it would reinstate all the strikers. The re- spondent refused to agree to reinstate all the strikers, claiming that it had already hired men to take their places. The strike was officially terminated by the M. E. B. A. on Janu- ary 14. The respondent was, on January 18, formally notified of such fact. On January 18, pursuant to a request by the M. E. B. A., a con- ference between representatives of the M. E. B. A. and the respond- ent was held at the respondent's office. The M. E. B. A.'s purpose in requesting the conference was to secure the reinstatement of the strikers and to obtain a contract with the respondent. The respond- ent refused to enter into an agreement with the M. E. B. A., having already negotiated an agreement with the Brotherhood of Marine Officers.' The M. E. B. A.'s representatives did not press the contract issue further but sought to secure the reinstatement of the strikers. The respondent stated at the hearing that its position at the con- ference was that it had filled the places of the strikers and that it would consider reinstatement of the strikers when vacancies occurred, except those strikers who carried lead pipes on the picket line. Trainer testified that the respondent agreed to reinstate all the strik- ers when vacancies occurred. During the period from the termina- tion of the strike to about May 1938, the respondent reinstated some 18 of the 56' strikers and hired approximately 22 other individuals, including 15 persons who had previously been within its employ. B. The alleged discriminations Of the 33 individuals named in the complaint as having been dis- criminatorily refused reinstatement, only 11 appeared to testify on their own behalf. The M. E. B. A. objected to the Trial Examiner's dismissal of the complaint as to the 22 individuals who did not appear to testify, claiming that their occupation as seamen prevented them from appearing at the hearing. There is, however, practically no evidence in the record with respect to these 22 individuals and what 1 This agreement was not a closed -shop agreement and did not prevent the respondent from employing members of the M. E. B. A. EXPORT STEAMSHIP CORPORATION 313 there is, is clearly insufficient to sustain the allegations of the com- plaint that such persons were discriminated against. We shall, there- fore, affirm the Trial Examiner's dismissal of the complaint as to them. Of the 11 strikers who did testify, counsel for the Board moved to dismiss the complaint as to Gordon Millspaugh, Malcolm Gatheral, and -Frank Campbell. The M. E. B. A. also objected to the Trial Examiner's granting of this motion. The testimony of Millspaugh reveals that after the strike he would not have accepted any position on the respondent's line except that of chief engineer on one of its passenger vessels. The record shows that no such position was available up to the time of the hearing. Gatheral testified that he did not wish reinstatement and that he had secured employment on another steamship line within a few days after the strike. Campbell had been employed in an unlicensed posi- tion on the respondent's "laid-up fleet," at the time of the strike. This laid-up fleet consisted of vessels not in active service. This fleet was dissolved in the early part of January 1937 when the respondent sold four of its ships. Thus, Campbell's position no longer existed after the strike. Furthermore, it appears from the record that Camp- bell was reemployed by the respondent shortly after the strike as a water tender on one of its vessels. The ruling of the Trail Examiner granting the motion of counsel for the Board for a dismissal of the allegations of the complaint with respect to Millspaugh, Gatheral, and Campbell is hereby affirmed. There remain for consideration the allegations of the complaint that the respondent discriminated against Edward Williams, Frank Galla- gher, Lester Sorenson, Colin Branford, Harry L. Thompson, Harvey C. Brown, George W. Hanson, and Thomas Ketner, by refusing them reinstatement following the strike. The complaint does not allege that the strike was due to any unfair labor practice on the part of the respondent and no showing was made at the hearing that the strike was based upon any such practice. The evidence shows, more- over, that at the time the strike was terminated and at the time application was made for reinstatement by or on behalf of the in- dividuals here involved the respondent had already filled the positions of such individuals. Any discrimination by the respondent, there- fore, consisted of its taking on new employees rather than reinstating the strikers when vacancies occurred. There was introduced in evidence, in support of the contention that the respondent has discriminated against the strikers, the employment cards of most of the strikers, including seven of the eight here in- volved, bearing the word "resigned" and a small asterisk immediately thereafter. The word "resigned" referred to the date on which the 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals went on strike. It was contended that the presence of the asterisk indicated that the respondent was maintaining a blacklist against the strikers. Byron Robison, the respondent's superintendent engineer in charge of hiring engineers, testified that he did not know the purpose of the asterisks but that they were not intended as a blacklist. He pointed to the fact that 18 strikers, including 14 who had asterisks on their employment cards, had been given employment by the respondent after the strike and stated that a number of other such strikers had been recommended to other steamship lines. Under the circumstances, we conclude that the presence of the asterisks on the employment cards affords no basis for any finding as to discrimi- nation by the respondent. We think, moreover, that the facts pre- sented in the record with respect to the several individuals further militate against a finding that the respondent has discriminated against the strikers. Edward Williams was employed by the respondent as a fireman on the steamship Exporter in April 1935. Thereafter he worked as fire- man and water tender on the respondent's vessel the Excambia. From March to August 1936, he was employed as a junior engineer on the Excambia. On August 28 he was relieved to make way for an em- ployee with more seniority. On November 9, 1936, he was recalled to a position paying $90 a month on the respondent's laid-up fleet. Two days later Williams went on strike. During the 2 weeks following the termination of the strike on January 18, 1937, Williams applied for reinstatement on three dif- ferent occasions. Each time he was informed that no vacancy was available. The record shows that the laid-up fleet, with which Wil- liams had been prior to the strike, had been disestablished. Thus, after the strike Williams' position was no longer in existence. While Williams' past experience with the respondent indicates that he was capable of filling a position as junior engineer, it affirmatively appears that no such position was available until February 27, 1937. Meanwhile, on February 19, 1937, Williams secured a position with the Standard Oil line as a machinist on one of its tankers. This position paid $115 a month plus maintenance, compensation sub- stantially in excess of what he was earning while last employed by the respondent. On or about May 1, 1937, Williams was advanced to a position as third assistant engineer on the Standard Oil line. He also received a salary increase to $183 a month plus maintenance. At the date of the taking of his deposition on March 8, 1938, Williams testified that although he desired reinstatement he would accept no position lower than third assistant engineer. However, he admitted that he had never been employed by the respondent as third assistant engineer. EXPORT STEAMSHIP CORPORATION 315 Under the circumstances, we find that the respondent has not dis- criminated against Edward Williams in regard to his hire and tenure of employment. Frank Gallagher started working for the respondent in 1929 as a cadet engineer on the Examelia. He was employed as third assist- ant engineer on the Exmoor when he went on strike on December 1, 1936. As soon as the strike was officially called off on January 18, 1937, Gallagher secured a position as third assistant engineer with the Weyerhauser steamship line at the same salary he had been earn- ing while employed with the respondent and at the hearing he testi- fied that he did not desire reinstatement. There was no opening on the respondent's lines for a third assistant engineer until February 27, 1937, a date subsequent to the employment of Gallagher by the Weyerhauser steamship line. There is no evidence that at the time Gallagher was immediately available for employment by the respond- ent. Robison testified in this connection that vacancies were not usually known of until a vessel arrived in port and that inasmuch as the vessels were in port but a few days vacancies had to be filled immediately. We find that the respondent has not discriminated against Frank Gallagher in regard to his hire and tenure of employment. Lester Sorenson began working for the respondent in October 1934 as a cadet engineer. At the time of the strike he was employed as third assistant engineer on the respondent's vessel the Executive. He applied for reinstatement on January 16, 1937, and was informed by Robison, superintendent in charge of hiring engineers, that no position was available for him at that time, but that he would be called if he were needed. Sorenson secured a position as third assist- aint engineer with the Black Diamond Steamship Line on February 16, 1937, and was so employed at the time of the hearing. As stated above there was no opening on the respondent's line for a third assistant engineer until February 27, a date subsequent to the em- ployment of Sorenson on the Black Diamond line. Furthermore, there was no evidence showing that Sorenson was available for employment at that time. We find that the respondent has not discriminated against Lester Sorenson in regard to the hire and tenure of his employment. Harry L. Thompson was employed by the respondent at the time of the strike as chief engineer on its vessel the Excambion. He applied for reinstatement on several different occasions in January and Febru- ary 1937, but was informed that no position was available. Thomp- son secured a part-time position as marine engineer for the Black Diamond Steamship Line in February 1937, and on March 31, 1937, secured a position as chief engineer on the vessel Seathrush operated 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Shepard steamship lines. The Seathrush was sold by the re- spondent to the Shepard Company shortly before Thompson secured his position on it and, in response to an inquiry by the Shepard Com- pany, the respondent had recommended Thompson for such position. The record shows that no position as chief engineer on the respond- ent's lines was open until September 22, 1937. There is no showing that Thompson was available at such time. In his deposition, Thomp- son stated that he did not desire reinstatement by the respondent, but that he desired back pay for the period from the date of the strike to the date he secured his position with the Shepard line. We find that the respondent has not discriminated against Harry L. Thompson in regard to the hire and tenure of his employment. Colin Branford was employed by the respondent as a senior first assistant engineer on the Excambion. Branford made no personal application for reinstatement, stating that he was staying with Thomp- son at the time of the strike and thought that if the respondent recalled Thompson it would also call him. The respondent stipulated that it knew Branford was staying with Thompson for a month after the strike. Branford obtained a position with the Pallite Products Com- pany as a machinist on February 1, 1937, and was employed by the Shepard Company on April 1, 1937, as first assistant engineer on the Sea thrush. The respondent recommended Branford for the latter position. Although the record indicates that the respondent filled two openings for senior first engineers with new employees prior to April 1, 1937, we think that the evidence is insufficient to show that the re- spondent failed to employ Branford for such positions because of his union membership and activity. We have also above noted the testi- mony of Robison that the respondent did not usually know of vacan- cies until a vessel arrived in port and that since the vessels were in port only a few days vacancies had to be filled immediately. We find that the respondent has not discriminated against Colin Branford in regard to the hire and tenure of his employment. Harvey C. Brown was employed by the respondent as second assist- ant engineer on the Excalibwr at the time of the strike on November 20, 1936. On February 5, 1937, following the termination of the strike, an opening for a second assistant engineer became available on the re- spondent's vessel the Exmouth. This position was filled by a new employee. Thereafter, on March 22, 1937, a position as second assist- ant engineer became open on the respondent's vessel the Exeter. The respondent filled this position by transferring to the Exeter a third assistant engineer who had been employed on the Exmoor on March. 12, 1937. Brown resided in Philadelphia, Pennsylvania, and there is no showing that he was readily available at the time the two aforesaid EXPORT STEAMSHIP CORPORATION 317 vacancies occurred in New York City. Moreover, even if he were readily available, we think that there is no sufficient basis for conclud- ing that Brown's union affiliation or activity was the reason he was not given the positions. We have noted above that the charge of discrimi- nation against the strikers was predicated in large part upon the appearance on the employment cards of asterisks opposite the names of many of the strikers. There was, however, no asterisk opposite Brown's name. Under all the circumstances, we find that the respondent did not discriminate against Harvey C. Brown with respect to the hire and tenure of his employment. George W. Hanson, who was senior first assistant on the Exochorda at the time of the strike, and Thomas Ketner, who was junior first assistant on the Excalibur at such time, each individually applied for reinstatement on January 20, 1937. Their positions had been filled during the strike and no openings were available at the time of their applications. There occurred, however, on January 28 va- cancies in the positions of senior first assistant and junior first as- sistant on the Exeter. These positions were given to two new em- ployees. The respondent states that it was not known until the Exeter arrived in port on January 28 that there would be such vacancies; that the positions had to be filled before the ship left port; and that they employed men who were immediately available. It was pointed out in this connection that both Hanson and Ketner resided in Philadelphia, Pennsylvania, and that the Exeter docked in New York City. Although there is no clear showing that the respondent could not have obtained the services of Hanson and Ket- ner promptly, we do not think that it has been sufficiently estab- lished, under all the circumstances, that its failure to do so was predicated upon their union membership or activities. We find that the respondent has not discriminated against George W. Hanson and Thomas Ketner in regard to the hire and tenure of their employment. With respect to the allegations in the complaint that the respond- ent urged, persuaded, and warned its employees from becoming or remaining members of the M. E. B. A. there was no proof offered. We find, therefore, that the respondent has not interfered with, re- strained, or coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining and other mutual aid and protection. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, Export Steamship Corpora- tion, occur in commerce, within the meaning of Section 2 (6) of the Act. 2. National Marine Engineers' Beneficial Association is a labor organization, within the meaning of Section 2 (5) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Re- lations Act, the National Labor Relations Board hereby orders that the complaint against Export Steamship Corporation be, and it hereby is, dismissed.