Trawler Maris Stella, Inc.

In the Matter of TRAwLER MARIS STELLA, INC. and AMERICAN COMMUNICATIONS ASSOCIATION (C. I. 0.) In the Matter of FEDERATED FISHING BOATS OF NEW ENGLAND AND NEW YORK, INC. and AMERICAN RADIO TELEGRAPHISTS ASSOCIATION OF THE C. I. O. Cases Nos. C-114 and R-1120, respectively.Decided April 21, 1939 Fishing Industry-Interference, Restraint, and Coercion-Discrimination: discharge-Reinstatement Ordered: discharged employee-Back Pay: awarded to discharged employee ; to include reasonable value of maintenance on ship- board-Investigation of Representatives : controversy concerning representation of employees : controversy concerning appropriate unit ; rival organizations ; petition for, dismissed in part-Units Appropriate for Collectve Bargaining: employer units ; history of collective bargaining ; persons employed as radio operatorsElections Ordered Mr. Bernard J. Donoghue, for the Board. Mr. Edward H. Cooley and Mr. J. Lawrence Alphen, of Boston, Mass., for the Federated. Mr. Sidney S. Grant, of Boston, Mass., for the A. R. T. A. Mr. Louis J. Kleinklaus, of New York City, and Mr. Andrew B. Anderson, of Boston, Mass., for the C. T. U. Mr. Peter C. Borre, of Boston, Mass., for the A. F. U., the A. F. of L., and the C. T. U. Mr. Aaron Velleman, of Boston, Mass., for the A. F. of L. Mr. Daniel J. Harrington, of counsel to the Board. DECISION ORDERS AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon charges and amended charges duly filed by American Com- munications Association (C. I. 0.), herein called the A. C. A., the National Labor Relations Board, herein called the Board, by A. Howard Myers, Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated October 20, 1938, against Trawler Maris Stella, Inc., and Margaret G. Ross, Chester F. Ross, 12 N. L. R. B., No. 50. 415 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry C. Ross, Joseph M. Gavan, and Grimur Hackonarson, stock- holders of said Trawler Maris Stella, Inc., and others, individually and as an informal association and partnership under the style and firm name of Trawler Maris Stella, Inc., or other style and firm name, herein collectively called the respondent," alleging that the respondent had engaged in and was engaging in unfair labor prac- tices 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. In respect to the unfair labor practices, the complaint alleged, in substance, that the respondent dis- charged and thereafter refused to reinstate David Wrathall, an em- ployee, because of his membership in American Radio Telegraphists Association, herein called the A. R. T. A., and that by said discharge and refusal to reinstate the respondent thereby interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed by Section 7 of the Act. Copies of the complaint, together with notice of hearing, charge, and amended charge, were duly served upon the respondent, Chester F. Ross, Margaret G. Ross, Harry C. Ross, Joseph M. Gaven,2 Thomas A. Norris, Grimur Hack- onarson, and Richard J. Golden, New England representative of the A. C. A. The respondent did not interpose an answer to the complaint. On September 16, 1938, the A. R. T. A. filed a petition and on October 12, 1938, an amended petition, with the Regional Director for the First Region. The amended petition alleged that a question affecting commerce had arisen concerning the representation of em ployees of the following boat owners, members of the Federated Fish- ing Boats of New England and New York, Inc., herein called the Federated : O'Hara Bros. Co., Inc. ; O'Hara Bros. Company, Inc. ; O'Hara Vessels, Inc.; Massachusetts Trawling Co.; Trawler Arling- ton, Inc.; Trawler Brookline, Inc. ; Trawler Cambridge, Inc. ; Traw ler Newton, Inc. ; Trawler Winchester, Inc.; Usen Trawling Com- pany; Trawler Maris Stella, Inc.; Trawler Boston College, Inc.; Trawler Fordham, Inc. ; Trawler Georgetown, Inc. ; Trawler Holy Cross, Inc. ; Trawler Jeanne d'Arc, Inc. ; Trawler Notre Dame, Inc. ; 'On June 23 , 1937, the respondent . Trawler Maris Stella , Inc., was enjoined by the Supreme Judicial Court of the Commonwealth of Massachusetts from the further prosecu- tion of its business and on March 31, 1938 , pursuant to an act of the Commonwealth of Massachusetts entitled "An Act Dissolving Certain Corporations," approved March 29. 1938, and subject to the provisions of Sections 51, 52, and 56 of Chapter 155 of the General Laws of the Commonwealth of Massachusetts , its corporate existence was terminated On or about May 27, 1938, pursuant to Section 56 of the General Laws, the respondent applied to the Commissioner of Corporations and Taxation of the Commonwealth of Massachusetts for revival of its corporate existence Such application had not yet been granted at the date of the hearing The stockholders however , have continued to carry on its business since March 31, 1938. 2 Spelled in the complaint as Gavan TRAWLER MARIS STELLA, INC. 417 Trawler Villanova, Inc.; F. J. O'Hara & Sons, Inc.; F. J. O'Hara Trawling Company; Trawler Gemma, Inc.; John Chisholm Vessels Company; John Chisholm Fisheries Company; Trawler Hekla, Inc.; General Sea Foods Corporation; Portland Trawling Company (At- lantic Coast Fisheries) ; Bay State Fishing Company; Booth Fish- eries Corporation; Haskins Fish Company; Ocean Trawling Cor- poration ; and R. O'Brien & Co., Inc., herein collectively called the Companies, and requested an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On September 29, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, further ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purposes of hearing.3 On October 12, 1938, and on October 18, 1938, the Regional Di- rector issued a notice of hearing with respect to the petition and a notice of postponement of hearing, copies of which were duly served upon the- Federated, the Companies, the A. C. A., and Commercial Telegraphers Union of A. F. of L., herein called the C. T. U., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a consolidated hearing was held in Boston, Massachusetts, on October, 31, November 1, 2, 3, 4, and 5, 1938, be- fore Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the Federated, the A. R. T. A., the C. T. U., the American Federation of Labor, herein called the A. F. of L., and Atlantic Fishermen's Union, No. 21455, herein called the A. F. U., were represented by counsel or other representatives and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the A. F. U. filed a petition to intervene in the proceeding with re- spect to the unfair labor practices. The motion was granted by the Trial Examiner. During the hearing counsel representing the A. F. of L., the A. F. U., and the C. T. U. moved that "the hearings be dismissed" on the alleged ground that, during and because of his absence from a portion of the hearing, evidence was introduced il- s On November 2, 1938 , the Board ordered that the two instant cases be consolidated with Matter of O'Hara Bros . Company, Inc and American Radio Telegraphists Association of the C I 0 (Case No. I-C-940,) for all purposes. On February 28, 1939 , the Board ordered the latter case severed and continued as a separate proceeding. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legally and improperly and the rights of the C. T. U. were thereby prejudiced. The motion was denied. At the conclusion of the hear- ing counsel for the Board moved to amend the complaint to conform with the proof and to amend the date of the discharge as alleged in the complaint from August 31, 1938, to August 30, 1938. Although no objection was made, the Trial Examiner failed to rule on the motion. It is hereby granted. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed, all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter the Trial Examiner filed his Intermediate Report dated January 3, 1939, copies of which were duly served upon the respond- ent, the Federated, the A. C. A., the C. T. U., the A. F. of L., and the A. F. U. The Trial Examiner found 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 Act, and recommended that the respondent cease and desist therefrom and, affirmatively, offer full reinstate- ment with back pay to Wrathall. Exceptions to the Intermediate Report were filed by the respondent on January 25, 1939. Pursuant to notice duly served upon the respondent; Edward H. Cooley, secretary of the Federated; Grimur Hackonarson; Chester F. Ross; Margaret G. Ross; Harry C. Ross; Joseph M. Gaven; Thomas A. Norris; and representatives of the A. C. A.; the A. R. T. A.; the C. T. U.; the A. F. U.; and the A. F. of L., a hearing for the purpose of oral argument was held before the Board on March 7, 1939, in Washington, D. C. Only the respondent appeared and participated in the argument. The Board has considered the exceptions to the Intermediate Report and in so far as they are inconsistent with the findings, conclusions, and orders set forth below, finds no merit in them. Upon the entire record in the cases, the Board makes the fol- lowing : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES A. The Federated and the Companies Federated Fishing Boats of New England and New York, Inc.,4 a Massachusetts corporation, is an association composed of owners or operators of "one or more boats, vessels or trawlers, registered in ' Prior to February 9, 1935, the Federated was known as Federated Fishing Boats of America. For further discussion of its activities , see Section VI, infra. TRAWLER MARIS STELLA, INC. 419 the States of New England or New York, for the purpose of engag- ing in the commercial capture of Salt Water Fish." Trawlers owned or operated by members of the Federated are engaged in the busi- ness of catching groundfish on fishing banks located in the Atlantic Ocean, approximately 100 to 800 miles from shore, and in the Gulf of St. Lawrence and eastward. Fish so caught is sold principally in Boston through the New England Fish Exchange on the Boston Fish Pier and is ultimately shipped to destinations throughout the United States. In 1937 approximately 318,000,000 pounds of fish, valued be- tween $7,000,000 and $10,000,000, were landed at the Boston Fish Pier and sold through the New England Fish Exchange, 90 per cent of which came from the above fishing banks. About 80 per cent of such fish is shipped from Massachusetts to other States. The following tables show the approximate distribution and value of the products of each of the Companies : Company Amount of fish landed in 1937 Selling price Booth Fisheries Corporation________________________ Over 13,340,953 pounds____ Over $320,487.66. John Burns Co. (Ocean Trawling Corporation) ------- Over 4,500,000 pounds ----_ Over $104,000 00. John Chisholm Vessels Company (Trawler Cemma, Over 7,000,000 pounds----- Over $174,000 00. Inc.). General Seafoods Corporation (Bay State Fishing Over 87,588,166 pounds---_ Over $1,998,137.00. Company) I Haskins Fish Company 2---------------------------- Over 8,000,000 pounds ----- Over $200,000.00. Trawler Hekla,Inc__________________________________ Not over 2,439,000 pounds- Not over $64,820.00. Trawler Marls Stella, Inc___________________________ Over 2,900,000 pounds --___ Over $81,400 00 Massachusetts Trawling Co_________________________ Over 9,000,000 pounds -____ Over $202,000.00. B. O'Brien & Co---------------------------------- Over 28,000,000 pounds---- Over $700.000.00. O'Hara Bros. Company, Inc (O'Hara Vessels, Inc.) __ Over 1,500,000 pounds----- Over $30,000.00. F. J. O'Hara & Sons, Inc.e.......................... Over 25,919,600 pounds---- Over $658,229.76. Usen Trawling Company 4__________________________ Over 18,000,000 pounds---- Over $500,000.00. ortland Trawling Company________________________ Amount landed from Janu- ary to October 1938 Over 21,765,000 pounds---- Value of amount landed from January to Oc- tober 1.938 Over $465,300 00. I General Sea Foods Corporation purchased the business and assets of Bay State Fishing Company on or about October 20, 1938. 2 Owns the following subsidiaries, Triton Trawling Company and Neptune Trawling Company. 3 Owns the stock of the following subsidiaries, the assets of each of which consist of a single trawler- Trawl- er Georgetown, Inc.; Trawler Notre Dame, Inc.; Trawler Fordham, Inc.; Trawler Villanova, Inc.; Trawler Boston College Inc.; Trawler Holy Cross, Inc.; Trawler Jeanne D'Arc, Inc. 4 Owns the stock of the following subsidiaries, the assets of each of which consist of a single trawler: Trawl- er Arlington, Inc.; Trawler Winchester, Inc.; Trawler Newton, Inc.; Trawler Brookline, Inc.; Trawler Cambridge, Inc. B. The contention of the A. F. U. The A. F. U. contends that the fishermen engaged on the boats of the Companies are joint entrepreneurs with the Companies and have participatory rights as employers in the selection of radio operators and other personnel . The A. F. U., in support of this contention, points to the following custom in the industry , known as the "lay," under which fishermen are paid in proportion to the selling price of the catch after various expenses are deducted. When a trawler arrives at the Boston Fish Pier after a trip, the fish which have been caught are sold at auction blocks on the Pier 169134-39-vol. 12-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by an auctioneer, who in some instances is the captain of the boat. The fish are then unloaded, weighed, and delivered to stalls on the pier occupied by the purchasers, who are members - of the New England Fish Exchange, herein called the Exchange. The individ- ual purchasers do not pay the sellers directly; instead, payment is effected immediately through the facilities of the Exchange. Slips indicating the amount of fish bought and the purchase price are received from the purchasers and delivered to the Exchange office on the Pier. After computing the total purchase price, the Exchange deducts therefrom certain charges such as the wharfage fee, Ex- change discount, use of scales, and service charge. The amount re- maining is called the net stock from the Exchange. The expense of wireless equipment and the wages of the radio operator, firemen, engineers, and other personnel, except the fishermen, are deducted and the remainder, called the net stock to be divided, is then appor- tioned, 50 per cent being allocated as the trawler's share and 50 per cent as the crew's share. The captain is usually accorded a cer- tain per cent of the catch, which is deducted from the trawler's share. From the crew's share are deducted expenses for supplies, provi- sions, and sundries. Formerly when a fishing trip was unsuccessful, a sum of money, which was deducted later from the next profitable trip, was advanced to the crew. At present, however, except in the case of one company which has a special arrangement under a con- tract with the A. F. U., each crew is guaranteed a minimum sum in the event of an unprofitable trip and no deduction is made on the next profitable trip. Thus, under the "lay" arrangement, the fisher- men contend that they are entrepreneurs or employers, that they pay one-half of the radio operators' wages, and that therefore they have the right to participate in their selection. It is apparent from the record, however, that members of the crews are themselves employees and not employers. The boat owner hires the captain, firemen, and radio operators, although in some instances the captain might engage the operator for the owner. The captain hires the crew, subject, however, to the approval of the owner. The owner, as the employer, is responsible under the Jones Act 5 for the payment of compensation to members of the crew injured while at sea. The radio operator, except when at sea, is subject to the orders and directions of the owner. Before sailing he receives orders from the owner, which he executes while at sea under the authority of the captain. The crew hires and discharges no one, although the A. F. U. claimed that it was agreed in conference between the A. F. U. and the Federated that the fishermen had the right to select radio oper- ators and other personnel. 46 U. S. C. A. Sec. 688. TRAWLER MARIS STELLA, INC. 421 Although the fishermen, through their representatives at the hear- ing, contended that they were not employees, it is significant that the A. F. U. filed a charge with the Board against the Federated in 1937. Aaron Velleman, an A. F. of L. organizer who has been conducting negotiations with the Federated on behalf of the A. F. U. since that time, stated at the hearing that the fishermen are the employees and the boat owners the employers within the meaning of the Act and that for the purposes of the hearing he was representing the fisher- men who are wage earners and the employees of the boat owners. Thomas A. Norris, treasurer and general manager of the respondent, testified that the discharge of David Wrathall, which is discussed below, was the only occasion on which anyone other than the captain or owner had caused the discharge of an employee. We find that the fishermen herein involved are employees, not em- ployers, within the meaning of the Act and that the "lay" settlement is primarily a method used in determining the amount of wages to which fishermen are entitled." It should be noted, however, that a contrary finding would not relieve the respondent from his obligations under the Act, nor in any manner affect our findings below with respect to the unfair labor practices, except to make the fishermen equally liable with the respondent for the commission of the unfair labor practice. We find that each of the Companies is engaged in trade, traffic, transportation, and commerce among the several States, and that the radio operators employed by each are directly engaged in such trade, traffic, transportation, and commerce. II. THE ORGANIZATIONS INVOLVED American Communications Association is a labor organization affi- liated with the Committee for Industrial Organization, admitting to its membership communication employees in the marine, tele- graph, telephone, broadcast, point-to-point radio .and cables, avia- tion industries, and marine coastal stations. American Radio Telegraphists Association, the marine division of the American Communications Association, is a labor organization, admitting to its membership radio operators employed on fishing boats. Commercial Telegraphers Union, Marine Division, is a labor or- ganization affiliated with the American Federation of Labor, admitting to its membership radio operators employed on fishing boats. Atlantic Fishermen's Union, No. 21455, is a labor organization affiliated with the American Federation of Labor. It admits to its membership fishermen on the Atlantic Coast. Cf. The Crusader, 6 Fed . Cases, No. 3 ,456; The Carrier Dove, 93 F. 978, Id., 97 F. 111; United States v. La/Un et al., 24 F. (2nd) 683. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE DISCHARGE OF DAVID WRATHALL The complaint, as amended at the hearing, alleged that on or about August 30, 1938, the respondent discharged and thereafter refused to reinstate David Wrathall because of his membership in the A. R. T. A. and that by said discharge and refusal to reinstate the respond- ent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Wrat- hall, a member of the A. R. T. A. since 1934, was employed as radio operator on the Maris Stella from August 7, 1937, to August 30, 1938. It is admitted that he was a competent operator and that his services were satisfactory to the respondent. It is further ad- mitted that his employment was terminated solely because of his membership in the A. R. T. A. During 1938 both the A. R. T. A. and the C. T. U. were endeavor- ing to organize the radio operators employed by members of the Federated. On August 30, 1938, the A. F. U., to assist the mem- bership campaign of the C. T. U., passed a resolution under which its members resolved not to sail after September 30, 1938, with radio operators who were members of the A. R. T. A. On the same date, August 30, 1938, however, the crew of the Maris Stella, who were members of the A. F. U., refused to sail with Wrathall because he was a member of the A. R. T. A. Norris, treasurer and general manager of the respondent, thereupon told Wrathall that he would have to go ashore. The latter left the ship, which sailed without a radio operator aboard. On the following morning, Wrathall met Norris at the fish pier. Norris asked him if he wished to return to work on the Mans Stella. When Wrathall replied in the affirmative, Norris said, "if we ever carry an operator the job is yours." On September 7, 1938, Wrathall and representatives of the Board and the A. R. T. A. met with Norris in his office. In response to a request that Wrathall be reinstated, Norris replied that he could not reinstate him because he was a member of the C. I. 0., with whom the crew refused to sail. Thereafter, Edward H. Cooley, secretary of the Federated, informed the A. R. T. A. that the boat owners were not responsible for the discharge of A. R. T. A. radio operators and that he was so advising all the owners. At the time of the hearing Wrathall had not received other employment and desired to be reinstated. After the vessel had sailed on three trips without a radio operator the captain requested that Norris hire one. Norris replied that he desired to have nothing to do with the matter and that, if the cap- tain required a radio operator, he could secure one himself. The C. T. U. furnished an operator who sailed on the boat 's next trip. It is apparent that the discharge of Wrathall constituted discrimi- nation in regard to his hire and tenure of employment and discour- TRAWLER MARIS STELLA, INC. 423 aged membership in the A. R. T. A. The discharge thus amounted to an interference with, restraint, and coercion of, employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent urges that it was compelled to discharge Wrathall at the insistence of the crew of the Maris Stella and that the only alterna- tive was to discontinue fishing operations. The respondent was ob- viously placed in an unenviable position; as the employer, however, it was responsible for the discharge. The respondent's violation of the Act was unmistakable.7 We find that the respondent, by discharging and refusing to rein- state David Wrathall, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the A. R. T. A. and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondent's conduct described above tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We shall therefore order it to cease and desist there- from. Since we have found that David Wrathall was discrimina- torily discharged, we shall order the respondent to offer him reinstate- ment without prejudice to his seniority and other rights and privi- leges. We shall further order the respondent to make him whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 8 during said 7 See Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L. R. B. 498; order affirmed in National Labor Relations Board v. Star Publishing Company, 97 F. (2nd) 465, in which, under similar circumstances, the court said, "The respondent further contends that it was necessary to make the transfer, and thus engage in the unfair labor practice, because its business would otherwise be disrupted, and there- fore, under all the facts, the transfer was excusable. We think, however, the act is controlling. The act prohibits unfair labor practices in all cases. It permits no im- munity because the employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by the employer." 8 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlaw- ful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period. The record shows that the radio operator, in addition to monetary wages, receives from the respondent his maintenance on shipboard. Accordingly, in determining the amount of back pay to be awarded Wrathall, we shall order that the reasonable value of his maintenance on shipboard be added to the amount of his monetary compensation from the respondent.' V. THE QUESTIONS CONCERNING REPRESENTATION Both the A. R. T. A. and the C. T. U. claim to represent -a majority of the radio operators employed by the Companies. The Federated and its constituent Companies are desirous of engaging in collective bargaining with respect to the radio operators, but do not know which of the two labor organizations represents a majority of these employees. We find that a question has arisen concerning representation of the radio operators employed by each of the Companies and that such question tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE APPROPRIATE UNITS The Federated and the A. R. T. A. claim that the radio operators employed on all the trawlers owned and operated by the Companies constitute a single appropriate bargaining unit. The C. T. U., on the other hand, contends that radio operators employed by each of the 13 Companies owning the trawlers comprise separate appropri- ate units . The units which the C. T. U. claims are appropriate and the number of trawlers represented in each unit are as follows : Booth Fisheries Corporation (3 trawlers) ; John Chisholm Vessels Company (1 trawler) ; General Seafoods Corporation (18 trawlers) ; Haskins Fish Company (2 trawlers ) ; Trawler Hekla, Inc. (1 trawl- er) ; Trawler Maris Stella, Inc. (1 trawler) ; Massachusetts Trawl- ing Co. (3 trawlers) ; R. O'Brien & Co. (7 trawlers) ; Ocean Trawling Corporation (1 trawler) ; O'Hara Bros. Company, Inc. (2 trawlers) ; F. J. O'Hara & Sons, Inc. (7 trawlers) ; Portland Trawl- ing Company (5 trawlers) ; Usen Trawling Company ( 5 trawlers). In support of its contention for an industry-wide unit, the A. R. T. A. points to a community of interest among the operators em- 9Matter of Peninsular and Occidental Steamship Company and National Maritime Union of America, 5 N. L. R. B. 959; and Matter of Waterman Steamship Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile. Alabama. 7 N. L R B. 237. TRAWLER MARIS STELLA, INC. 425 ployed by all the Companies. Wages and working conditions are uniform and there is a considerable interchange of operators among the Companies. It therefore urges that a single unit composed of all the operators is most desirable and would most effectively insure to these employees the benefit of their right to self-organization and collective bargaining under the Act. The A. R. T. A. has negotiated with all the Companies through the Federated since October 1937, and although no contract has been concluded and the Federated has not been delegated the power to bind all its members, both the Federated and the A. R. T. A. claim that collective bargaining on an industry-wide scale has been successful. The efficacy of collective bargaining on behalf of the single unit, according to the A. R. T. A., is shown by a contract negotiated with the Federated by the Inland Boatmen's Union covering the firemen employed on the trawlers here involved, and by successful collective bargaining carried on with associations of ship owners on the Pacific Coast for a unit broader than the single employer unit. Although it is apparent from all the evidence that a single unit might be appropriate, under the circum- stances of this case we are not authorized to make such a determination. The Federated was organized according to its bylaws, "to foster and promote by educational and social methods the industrial and business interests of its members and the interests of the fishing business in general, to provide quarters for social and business meet- ings of its members, to encourage proper legislation relating to the fishing industry and to encourage cooperative effort among its mem- bers." In furtherance of its purposes, the Federated has established a labor committee with authority to negotiate collective bargaining agreements with labor organizations. The labor committee, how- ever, has not been delegated the power to bind any or all of the Com- panies and the individual Companies retain to themselves the privi- lege of either accepting or rejecting the fruits of the negotiations. Thus each of the Companies exercises direct control over the essential employer functions. Consequently within the limitations of the Act, we are unable to fix a single unit embracing the radio operators employed by all the Companies.1° We shall therefore find that sepa- rate units consisting of radio operators of each of the Companies, with the exceptions noted below, are appropriate for the purposes of collective bargaining. 10 See Matter of F. E. Booth & Company at at. and Monterey Bay Area Fish Workers Union No 23, 10 N . L R B. 1491; and Matter of Aluminum Lane, et at and Interna- tional Longshoremen and Warehousemen's Union, 8 N L R B 1325 ; and cf. Matter of Shipowners Association of the Pacific Coast et at and International Longshoremen's and Warehousemen's Union, District No. 1, 7 N. L R. B. 1002; Matter of Monon Stone Com- pany et at. and Quaiiy Workers International Union of North America, 10 N. L R. B 64; Mattel of Admiar Rubber Company at at . and American Federation of Labor on behalf of Employees of the Company, 9 N. L. B. R. 407. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The 13 separate units contended for by the C. T. U. include the radio operators of four Companies : John Chisholm Vessels Company, Trawler Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling Corporation, each of which employs only 1 operator. With respect to these companies we adopt our finding in Matter of Luckenbach Steamship Company, Inc., et al.,11 and in Matter of Metro-Golciwyn- Mayer Studios, and Motion Picture Producers Assn., et al.12 "The National Labor Relations Act creates the duty of employers to bargain collectively. But the principle of collective bargaining pre- supposes that there is more than one eligible person who desires to bargain. The Act therefore does not empower the Board to certify where only one employee is involved. This conclusion does not mean that a single employee may not designate a representative to act for him; he had such a right without the Act, and the Act in no way limits the right. By the same token, the conclusion in no way limits the protection which the Act otherwise gives such an employee." The radio operators employed by those four Companies, therefore, cannot be considered as constituting separate appropriate units. The petition for investigation and certification of representatives will accordingly be dismissed in so far as it relates to the employees of the above four Companies. We find that radio operators employed by Booth Fisheries Corpora- tion, General Seafoods Corporation, Haskins Fish Company, Massa- chusetts Trawling Co., R. O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons, Inc., Portland Trawling Company, and Usen Trawling Company, respectively, constitute separate units ap- propriate for the purposes of collective bargaining and that said units will insure to these employees the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. VII. THE DETERMINATION OF REPRESENTATIVES As a result of agreements reached at the hearing between the parties it was determined that 52 radio operators were employed on trawlers by the 9 Companies during October 1938. As proof of its claim to represent the employees in the above units, the A. R. T. A. introduced in evidence 58 cards signed by radio operators between April and May 1938 and authorizing the A. R. T. A. to represent them for the purposes of collective bargaining. In addition the A. R. T. A. produced for inspection its books and records which showed n Matters of Luckenbach Steamship Company, Inc, et al. and Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 33-12§; International Longshoremen's Association, 2 N L. R. B. 181, at p. 193. 12 Matter of Metro -Goldwyn-Mayer Studios, and Motion Picture Producers Assn, et al. and Screen Writers' Guild, Inc., 7 N. L R. B 662 and 8 N L. R B. 858. TRAWLER MARIS STELLA, INC. 427 that in October 1938, it represented 49 of the employees in the ap- propriate units, 41 of whom were members in good standing. The q. T. U., on the other hand, introduced in evidence the petition of 13 radio operators, who between January and October 1938 desig- nated the C. T. U. as their collective bargaining representative. The- radio operators and the union memberships thereof are distributed among the appropriate units as follows : Company Number in appropriate unit Number who signed A. R T. A. cards Number who signed C. T. U. petitions Number reesented ,Tyr A. R. T. A. in October 1938 Booth Fisheries Corporation--------------------------- 3 2 2 General Seafoods Corporation-------------------------- 18 16 17 2 Haskins Fish Company -------------------------------- 2 2 2 ------------ Massachusetts Trawling Cc---------------------------- 3 2 3 R. O'Brien & Cc--------------------------------------- 7 7 7 a O'Hara Bros. Company, Inc--------------------------- 2 1 1 F. J. O'Hara & Sons, Inc------------------------------ 7 5 6 Portland Trawling Company-------------------------- 5 4 5 ------------ Usen Trawling Company------------------------------ 5 4 6 In addition, Louis J. Kleinklaus, general secretary-treasurer of the marine division of the C. T. U., testified that the C. T. U. had in its possession 21 similar designations, which, because of the intense rivalry between the labor organizations, he refused to produce. The evidence in the record shows that some of the operators are members of both the C. T. U. and the A. R. T. A. In view of the duplications of mem- bership and the incomplete proof of membership in the C. T. U_, it is impossible to determine precisely the representative of the majority of the radio operators in any one of the appropriate units. We there- fore find that elections by secret ballot are necessary to resolve the questions concerning representation which have arisen. VHI. THE CONDUCT OF THE ELECTIONS The A. R. T. A. contended at the hearing that if the Board should order elections eligibility to vote should be determined upon the basis of the pay rolls of October 15, 1938. The C. T. U., on the other hand, claimed that all radio operators employed on the date of the elections should be eligible to vote. Inasmuch as radio operators at times trans- fer from boat to boat and since the number of vessels in active use may have changed since October, the eligibility date sought by the A. R. T. A. is too remote to furnish a satisfactory standard for deter- mining such eligibility. We are of the opinion that a more recent eligibility date will more accurately reflect the desires of the employees involved. The record discloses that the peak period in the industry extends approximately from October to April. We shall therefore direct that elections be held among the radio operators within the ap- 428 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD propriate units who were employed by the nine Companies during the pay-roll period next preceding March 1, 1939. Charges involving the discriminatory discharge of radio operators employed by some of the Companies herein have been filed with the Board. Should we hereafter find that such operators were discharged as a result of unfair labor practices their employee status would relate back to the dates of their discharge. In order to provide for such contingency, the ballots of radio operators who have filed charges or on whose behalf charges have been filed prior to the dates of the elec- tions shall be segregated and remain unopened. Similarly the ballots of radio operators who have replaced the above-mentioned employees shall be segregated and remain unopened. Thereafter whether the ballots of either the discharged operators or the operators who re- placed them shall be counted will depend upon our disposition of the alleged unfair labor practices and upon the necessity of counting such ballots for the determination of any of the elections herein. Under the above circumstances, therefore, if we find that the discharged operators suffered discrimination as a result of unfair labor practices, the ballots of such employees shall be counted. On the other hand, should the allegations of the unfair labor practices with respect to the discharged employees be dismissed, the ballots of the employees who replaced them shall be counted.13 Upon the basis of the above findings of fact and upon the entire record in the cases, the Board makes the following: CONCLUSIONS OF LAW 1. American Communications Association ; American Radio Teleg- raphists Association; Commercial Telegraphers Union, Marine Divi- sion; and Atlantic Fishermen's Union, No. 21455, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of David Wrathall, thereby discouraging membership in the American Radio-Telegraphists Association, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. u Matter of Fleischer Studios, Inc. and Commercial Artists & Designers Union- American Federation of Labor, 3 N. L. R. B. 207. TRAWLER MARIS STELLA, INC. 429 5. Questions affecting commerce have arisen concerning the repre- sentation of employees of Booth Fisheries Corporation, General Sea- foods Corporation, Haskins Fish Company, Massachusetts Trawling Co., R. O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons, Inc., Portland Trawling Company, and Usen Trawling Com- pany, respectively, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 6. The radio operators employed by each of the above-named com- panies respectively, constitute separate units appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. 7. No question affecting commerce has arisen concerning the repre- sentation of employees of John Chisholm Vessels Company, Trawler Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling Corpora- tion, respectively, within the meaning of Section 9 (c) of the Act. ORDER On the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Trawler Maris Stella, Inc., and Margaret G. Ross, Chester F. Ross, Harry C. Ross, Joseph M. Gaven, and Grimur Hackonarson, stock- holders of said Trawler Mans Stella, Inc., and others, individually, and as an informal association and partnership under the style and firm name of Trawler Maris Stella, Inc., or other style and firm name, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in American Radio Telegraphists Association or any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employ- ment or any term or condition of employment because of membership or activity in American Radio Telegraphists Association or any other labor organization of its employees; (b) In any other manner interfering with, restraining, and coercing 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 or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer David Wrathall immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges; (b) Make whole David Wrathall for any loss of pay he has suf- fered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he would normally have earned as wages, in- cluding therein the reasonable value of his maintenance on shipboard, during the period from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (c) Post immediately notices to its employees in conspicuous places on its trawler and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the re- spondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the First Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor-Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Booth Fisheries Corporation, General Seafoods Corporation, Haskins Fish Company, Massachusetts Trawling Co., R. O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons, Inc., Port- land Trawling Company, and Usen Trawling Company, separate elections by secret ballot shall be conducted as soon as convenient and beginning as promptly as is practicable after the date of this Direc- tion of Elections, under the direction and supervision of the Regional Director for the First Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III,, Section 9, of said Rules and Regulations, among the radio operators em- TRAWLER MARIS STELLA, INC. 431 ployed by Booth Fisheries Corporation, General Seafoods Corpora- tion, Haskins Fish Company, Massachusetts Trawling Co., R. O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons, Inc., Portland Trawling Company, and Usen Trawling Company, during the pay-roll period next preceding March 1, 1939, and subject to the provisions of Section VIII, above, excluding those operators who have since quit or have been discharged for cause to determine whether they desire to be represented by American Radio Teleg- raphists Association, affiliated with the Committee for Industrial Organization, or by Commercial Telegraphers Union, Marine Di- vision, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. ORDER DISMISSING PETITION IT IS HEREBY ORDERED that the petition for investigation and cer- tification of representatives of radio operators filed by American Radio Telegraphists Association be, and it hereby is, dismissed in so far as it relates to John Chisholm Vessels Company, Trawler Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling Cor- poration.