Southern Steamship Company

In the Matter of SOUTHERN STEAMSHIP COMPANY and MARINE ENGI- NEERS BENEFICIAL ASSOCIATION Case No. C-707.-Decided May 18, 1939 Shipping Industry-Interference, Restraint, and Coercion-Discrimination: refusal to reinstate following strike, because of union activity-Reinstatement Ordered : of employee refused reinstatement ; displacement of employee newly hired or transferred to striker's position following his application for reinstate- ment-Back Pay: awarded, to employee refused reinstatement, from date of first vacancy occurring after application for reinstatement to date of offer of reinstatement, including reasonable value of maintenance on shipboard. Mr. Joseph F. Castiello, for the Board. Adams, Childs, McKaig & Lukens, by Mr. Randolph W. Childs and Mr. Edgar S. McKaig, of Philadelphia, Pa., for the respondent. Mr. Warren C. Evans, of Philadelphia, Pa., for the M. E. B. A. Mr. Abraham J. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed on March 12, 1937, and March 8, 1938, respectively, by National Marine Engineers' Beneficial Association,' herein called the M. E. B. A., the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated March 15, 1938, against Southern Steam- ship Company, Philadelphia, Pennsylvania, herein called the respond- ent, alleging that the respondent by its refusal to reinstate Max Starke because of his activities on behalf of the M. E. B. A., 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 were duly served upon the respondent and the M. E. B. A. The respondent thereafter filed an answer denying the commission of the unfair labor practices charged. 1 Incorrectly designated in the complaint as "Marine Engineers Beneficial Association." 12 N. L. R. B., No. 107. 1088 SOUTHERN STEAMSHIP COMPANY 1089 Pursuant to notice of hearing and notice of postponement of hearing duly served upon the respondent and the M. E. B. A., a hearing was held at Philadelphia, Pennsylvania, on April 11, 1938, before Albert L. Lohm, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the M. E. B. A. by a business manager of one of its locals. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. During the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings of the Trial Examiner are hereby affirmed. On June 13, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and the M. E. B. A. He 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 Starke be reinstated to his former position with back pay. On June 24, 1938, the respondent filed exceptions to the Intermediate Report and on December 23, 1938, a brief in support of its exceptions. On December 27, 1938, pursuant to request therefor and notice to the respondent and to the M. E. B. A., a hearing was had before the Board in Washington, D. C., for the purpose of oral argument. Counsel for the respondent and representatives of the M. E. B. A. appeared and participated therein. The Board has considered the exceptions to the Intermediate Report and, except as they are con- sistent with the findings, conclusions, and order, as set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Southern Steamship Company, the respondent, is a Delaware cor- poration having its principal office in Philadelphia, Pennsylvania. It owns and operates seven vessels having an aggregate gross tonnage of 18,382 and carrying freight between the ports of Philadelphia, Pennsylvania, and Houston, Texas. One of these ships is the S. S. City of Philadelphia. Southbound cargo carried by the ships is obtained from all the States on the eastern seaboard and from the State of Ohio. Northbound cargo is obtained in Arizona, Colorado, Louisiana, New Mexico, Oklahoma, and Texas. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent is engaged in traffic, commerce, and transportation among the several States, and that the officers and crews employed on its ships are directly engaged in such traffic, commerce, and transportation. II. THE ORGANIZATION INVOLVED National Marine Engineers' Beneficial Association is a labor organ- ization admitting-to its membership the -marine engineers employed by the respondent. III. THE UNFAIR LABOR PRACTICES The complaint alleged, inter alia, that the respondent refused to reinstate Max Starke, the chief engineer on its S. S. City of Phila- delphia, because of his membership in the M. E. B. A. and because of his participation in a strike of its engineers. Starke was first employed by the respondent in 1913 as a second assistant engineer on one of its ships. In 1920 he was promoted to chief engineer, and since 1923 he occupied that berth on the S. S. City of Philadelphia. In June 1935, the M. E. B. A. wrote a letter to Starke advising him of its submission to the respondent of a proposed agreement. Starke received this letter in the office of Charles 'F. Sherry, the respondent's marine superintendent. It was evident from the enve- lope in which the letter was received that it came from the; business manager of the M. E. B. A. Sherry inquired of Starke as to'-its contents and indicated his disapproval of the agreement. On November 23, 1936, the M. E. B. A. called a strike against the respondent and other steamship companies for better wages and working conditions. The S. S. City of Philadelphia, then at Houston, returned to Philadelphia on November 30. At that time Sherry told the crew of the strike and advised them "to be loyal to the company and stay with it, because we always treat you right, and I don't want any of you fellows to leave, because, if you do, we will get some men to sail the ships." He also told the crew that it was "only a rank and file strike." By December 4, however, the firemen, sailors , and engineers, with the exception of Starke, had left the ship. Starke was not a M. E. B. A. member at this time, having allowed his membership in that organization since 1917 to lapse in 1935 for non-payment of dues. On December 4, 1936, he received a letter from the M. E. B. A., which was seen by Sherry,-urging him, in effect, to rejoin the M. E. B. A. and participate in ,-the strike. Sherry told Starke that he hoped Starke was "not foolish and join the union now . . . you put in a long time on the ship, and the SOUTHERN STEAMSHIP COMPANY 1091 union won't help you. There is no use leaving a good job for the union, and somebody else take your job." On December 5, pursuant to 24 hours' notice to Sherry, Starke left the ship, reported to M. E. B. A. headquarters, and joined the strike. On the same day he was reinstated as a member in good standing of the M. E. B. A. On January 25, 1937, following the cessation of the strike, Starke applied to Sherry for reinstatement. Sherry told him that he had "no opening at the present time", and said, "I will keep you in mind. I have your phone number and , address." Sherry also asked , Starke whether he would be willing to take a first, second, or third assistant engineer's position, to which Starke replied : "I don't think I should take a third assistant's job, after the years I have put in with this company." The conversation was concluded by Sherry's asking, "By the way, Mr. Starke, do you still belong to the union?" Starke replied affirmatively. The respondent, in its answer, claimed that, because of his "care- lessness, inefficiency, inattention and neglect", to reinstate Starke "would be to risk the safety and lives of the respondent's crew and to jeopardize respondent's property." This was based on the claim that about February 16, 1937, it was discovered that the furnace crowns on the starboard boiler of the S. S. City of Philadelphia. were down and that the boiler tubes were heavily encrusted with scale. There is little doubt that by February 16 the furnace crowns on the S. S. City o f 'Philadelphia required repairs and the boiler tubes replacement. Starke's record in the respondent's service was a long and ex- emplary one. He had worked for the respondent over 23 years. During that time he had received several promotions and had held the position of chief engineer for over 16 years and the position of chief engineer on the S. S. City of Philadelphia for over 13. During all that time his record had not been impeached. He had received no complaints; on the contrary, lie had been praised for his work by the respondent's officials. Sherry had consulted him on several occa- sions concerning machinery which the respondent intended to pur- chase. For a time Starke's ship had held the speed record of the respondent's fleet. Sherry testified that Starke was an average engineer as far as the amount of the engine-room expenses was concerned. The evi- dence as a whole, however, is convincing that Starke was far better than an average engineer in this respect. Starke testified that "I never was highest in expense for running the'ship."-"For `the "most part I was second-lowest and lowest, and the highest I ever ran was third-lowest." In 19342 the engine-department expenses of the 2 For no other year does the record contain such figures 169134-39-vol 12-70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. S. City of Philadelphia were $894, the lowest of all the respond- ent's ships, while the corresponding expenses of its other ships were $1,468, $1,420, $1,375, $1,204, $1,298, and $1,117, respectively. Sherry admitted that Starke's competence accounted for the low engine- department expenses incurred by his ship.3 Six days after he went on strike, Starke received a letter of recom- mendation from the Master of the S. S. City of Philadelphia stating that "I have always found him (Starke) thoroughly capable for his position and an honest, sober, and conscientious worker, and recom- mend him unequivocally to anyone." At the time Starke applied for reinstatement, Sherry gave him a similar letter, setting forth that from 1913 to December 5, 1936, "Starke proved himself to be a capable and industrious Engineer, honest, sober and reliable." Between December 5, 1936, and February 16, 1937, the S. S. City of Philadelphia made two round trips between Philadelphia and Houston. Each of these was made with a different chief engineer, the first being made with Hastings, a chief engineer whom even Sherry described as not "too competent." Because of his incompe- tence, Hastings was replaced at the end of the voyage. Sherry ad- mitted that the furnace and tube condition may have been due in part to Hasting's incompetence. To prove, however, that the condition in which the furnaces and boiler tubes were found on February 16, 1937, was the fault of Starke, the respondent introduced the testimony of two witnesses, Sherry and William M. Stein, a qualified, independent marine engi- neer. On the assumption that certain tubes exhibited to him by the respondent were some of the tubes which had been removed from the S. S. City of Philadelphia, Stein agreed with Sherry that "exces- sive blowing" had caused the encrustation of them and this, in turn, had caused the collapse of the furnace crown. Sherry also testified, however, that the average life of boiler tubes is "11 years or more," and that the tubes in the S. S. City of Philadelphia had not been replaced, with a few exceptions, since the ship was built in 1919 or 1920. Sherry also stated that he had never seen any other tubes that had been removed from a boiler after 17 years or more of service. Stein, however, had seen tubes that had been in service for 26 years which were in better condition than those he assumed had been removed from the S. S. City of Philadelphia. This difference in experience between the respondent's own experts is brought into greater relief by other evidence regarding a boiler inspection which had been made by the Bureau of Marine Inspection and Navigation 8In the same year , the respondent expended $12,515 for repairs on the S . S. City of Philadelphia while It spent for repairs on Its other ships $8 ,477, $13 , 541, $14,817, $15,678, $20,877, and $25,063 , respectively. It Is not clear, however, that these amounts repre- sent expenditures for repairs solely to the parts of the ship embraced by the engine department. SOUTHERN STEAMSHIP COMPANY 1093 of the United States Department of Commerce on or about December 1, 1936, following Starke's last voyage. At this time the Government inspectors reported that everything was "0. K." and issued a Certifi- cate of Inspection permitting the ship to be operated for another year. We do not find that Starke was responsible for the condition of the furnace crowns and boiler tubes. Nor are we of the opinion that the respondent believed that the damage had resulted from Starke's inefficiency. The respondent also claimed that when Starke applied for rein- statement there was no vacant position in which he could have been placed. On the record there is some doubt whether on January 25, 1S37, the position of chief engineer on the S. S. City of Philadelphia had been filled. Assuming, however, that there were no vacancies to which Starke could have been appointed on. January 25, the testi- mony of Sherry reveals that thereafter numerous vacancies occurred, the first on February 3, 1937, when one of the respondent' s second assistant engineers, Fletcher, was promoted to be first assistant. In the absence of evidence to the contrary, we must assume that, as between Starke, who had been for so many years a chief engineer, and Fletcher, the former would have been considered as being entitled to fill the existing vacancy. Sherry, although he told Starke that he would keep him in mind, did not call Starke for this position or for any of those which were vacant thereafter. In the light of the foregoing, it appears that the respondent had no valid reason for refusing to reinstate Starke. We do not find that the damage to the furnace crowns and boiler tubes was Starke's fault. Even assuming, however, that Starke was to blame, the comparatively small 4 expenditure of $5,500 which was required to repair and re- place them and Starke's long and excellent record in the respondent's service, render it inconceivable that this could have been the basis for the respondent's refusal to reinstate him. It is plain that the respondent was unalterably opposed to the union membership of its employees. While Sherry denied that he ,ever "said anything to Mr. Starke about men belonging to the union or his belonging to the union," we must interpret such denial in the light of Sherry's notion of what constituted conversation concerning unions. Sherry did not consider his conversation of November 30 with the crew of the S. S. City of Philadelphia, in which he told the crew "to stay by their boat, that this strike was a rank and file strike, and to be loyal to the company," to be one concerning unions. Such ' In view of Starke's low expense and repair -cost record . On the assumption that the respondent's engine-department expenses and repair costs for the year 1934 were typical, and there is no evidence to indicate that they were not, during the 16 years that Starke had been chief engineer he had saved the respondent thousands of dollars 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criticism of a union activity is a disparagement of the union itself and discourages membership therein, and it indicates an attitude to the Union which is significant in appraising the respondent's motives in its dealings with Starke. We are satisfied that the real reason for the respondent's refusal to reinstate Starke is found in his re- newed membership in the M. E. B. A. and his participation in the- strike. We find that Max Starke was refused reinstatement by the respond- ent because of his membership in the M. E. B. A. and activities in its behalf, and that by this refusal to reinstate the respondent has discriminated-in regard-to-hire«and--tenure"of"employment, thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Starke has had no employment since January 25, 1937, and he de- sires reinstatement. 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 discouraged membership in the M. E. B. A. and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall, therefore, order the respondent to cease and de- sist therefrom. On February 3, 1937, a vacancy occurred which would have per- mitted the respondent to reemploy Starke had not the respondent dis- criminated against him by filling the vacancy with a transferee of lower rank. Consequently, we shall order the respondent to offer full reinstatement to Max Starke, to such a position as he would have normally attained (in accordance with the respondent's usual promo- tion policy) had he been appointed first assistant engineer on Febru- ary 3, 1937. Such reinstatement shall be effected by the displacement, if necessary, of such appointees to the positions of first assistant engi- neer and chief engineer on and since February 3, 1937, who, as of that date, ranked lower or had less seniority than Starke. At the time Starke went on strike he was receiving a salary of $235 per month and, in addition, his board and living quarters on ship- board. The respondent's engineers are entitled to board and living quarters on shipboard even when the ship is in home port. On Jan- uary 25, the, date Starke applied for reinstatement, in addition to board and living quarters, the respondent paid salaries to its chief 'engineers and first assistant engineers of $235 and $165 per month, SOUTHERN STEAMSHIP COMPANY 1095 respectively. Thereafter, the salaries of these officers were increased so that on February 3, 1937, they were earning $245 and $175 per month, respectively, on August 6, 1937, $255 and $180 per month, re- spectively, and, at the time of the hearing, $265 and $185 per month, respectively. A standard form of agreement which the M. E. B. A. seeks to employ in its dealings with ship operators on the Atlantic and Gulf coasts values the board which engineers receive at $2.50 per day and the living quarters at $2.00. We shall order the respondent to make Max Starke whole for any loss of pay he has suffered by reason of the respondent's refusal to reinstate him on February 3, 1937, by payment to him of a sum equal to the amount which he normally would have earned as wages from February 3, 1937, to the date of the offer of reinstatement, less his net earnings 5 during said period. In determining the amount of back pay to be awarded to Starke, we shall order that the reasonable value of his board and living quarters on shipboard be added to the ,amount of his monetary compensation from the respondent." Upon the basis of the foregoing findings of fact and upon the en- tire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. National Marine Engineers' Beneficial Association is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating against Max Starke in regard to hire and tenure of employment and thereby discouraging membership in Na- tional Marine Engineers' Beneficial 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. 5 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by Staike in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for the respondent's unlawful refusal to reinstate him on Febiuary 3, 1937, 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 Starke, 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. " See Matter of Peninsular and Occidental Steamship Company and National Maritime Union of America, 5 N. L. R. B. 959; Matter of Waterman Steamship Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N. L. R . B. 237 ; and Trawler Maris Stella, Inc. and American Communications Asso- ciation (C. 10 ), 12 N L R B 415 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7). of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Southern Steamship Company, Philadelphia, Pennsyl- vania, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in National Marine Engineers" Beneficial Association or any other labor organization of its em- ployees by refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employ- ment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of their 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 purpose 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 : (a) Offer to Max Starke immediate and full reinstatement to such a position as he would have normally attained (in accordance with the respondent's usual promotion policy) had he been appointed first assistant engineer on February 3, 1937, without prejudice to his seniority or other rights and privileges, displacing, if necessary, such appointees to the positions of first assistant engineer and chief engineer on and since February 3, 1937, who, as of that date, ranked lower or had less seniority than Starke; (b) Make whole said Max Starke for any loss of pay he has suf- fered by reason of the respondent's refusal to reinstate him, by pay- ment to him of a sum of money equal to that which he would normally have earned as wages-including therein the reasonable value of his board and living quarters on shipboard-from February 3, 1937, to the time of such offer of reinstatement, less his net earn- ings" during said period; deducting, however, from the amount otherwise due to him, monies received by Starke 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 *See footnote 5. SOUTHERN STEAMSHIP COMPANY 1097 appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places in and about its ships and in and about its offices, particularly its pier offices, notices to its employees, and maintain said notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner set forth in para- graphs 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 Fourth Region in writ- ing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Order.