The Texas Co.

In the Matter of THE TEXAS COMPANY, MARINE DIVISION 1 and NATIONAL MARITIME UNION, PORT ARTHUR BI:ANCH Case No. C-1076.-Decided January 04, 1940 Petroleum Products Distribution Industry-Interference, Restraint, and Coer- cion : anti-union statements by supervisory employees: warning employees against organization ; threatening to discharge , union members ; questioning employee about ' membership in union ; respondent's refusal , to .permit all persons not in its employ, including union representatives , to board its ships held not to be a violation of the Act-Discrimination : discharge and refusal to reinstate two employees found discriminatory ; charges of discriminatory discharge and refusal to reinstate four other employees dismissed-Employee Status: termination of voyage as affecting-Reinstatement Ordered: one employee discriminatorily dis- charged and not reinstated-Back Pay: awarded to employees discriminated against, including reasonable value of board and maintenance. 111r. E. P. Davis and Mr. Alba Burnham Martin, for the Board. Mr. A. E. Van Dusen, of New York City, Mr. James H. Pipkin, of Houston, Tex., and Mr. J. W. Williams, of Port Arthur, Tex., for the respondent. Mandell & Combs, by Mr. Herman Wright, .Mr. W. A. Combs, Mr. Arthur J. Mandell, and Mr. Otto Mullina ,. of Houston, Tex., and Mr. Max Lustig, of New York City, for the Union. Mr. Ben Law, of counsel to the Board. DECISION AND ORDER STATEMENT, OF THE CASE Upon amended charges duly filed by National Maritime Union of America,' Port Arthur Branch, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas) issued its complaint dated September 3, 1938, against The Texas Company, 1 As noted below, the complaint was issued against "The Texas Company " rather than "The Texas Company, Marine Division." 2 This is the correct . designation of the Union. As used :herein, "Union " also refers to National Maritime Unon, Port -Arthur Branch , as the Uriion Chas previously been desig- nated in this proceeding. 19 N. L. R. B., No. 89. 835 836 DECISIONS OF NATIONAL LABOB RELATIONS BOARD 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. A copy of the complaint accompanied by notice of hearing was duly served upon the respondent and upon the Union. In respect to the unfair labor practices the complaint alleged in substance that the. respondent discharged and refused to reinstate 10 of its employees 3 for the reason that they, and each of them, joined and/or assisted the Union and engaged in concerted activities with other employees of the respondent for the purpose of collective bar- gaining and other mutual aid and protection, thereby discriminating in regard to hire and tenure of employment of these employees and discouraging membership in the Union; that since on or about August 1, 1937, the respondent, through its officers, agents, and employees, has made various and sundry statements to its employees discouraging affiliation in or activity on behalf of the Union; that through its offi- cers, agents, and employees the respondent has denied passes to repre- sentatives of the Union to board the respondent's vessels in order to contact members of the Union; and that by the afore-mentioned and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 12, 1938, the respondent filed its answer and its amended answer to the complaint in which it denied that it had en- gaged in unfair labor practices, but admitted that certain of the employees named had been discharged and refused reinstatement.4 In its amended answer the respondent also admitted that it has denied passes to representatives of the Union to board its vessels, but averred that such denial had not in any way been discriminatory. Pursuant to notice a hearing was held at Port Arthur, Texas, from September 12 to 16 and 19 to 22, 1938, before Howard Myers, the Trial Examiner duly designated by the Board. The hearing was S The complaint listed the employees allegedly discharged , the dates of the alleged' dis- charges, and the ships from which they took place , as follows : F. W. Zinkiewycz, April 18, 1938 , S. S. Rhode Island ; D. C. MacClennan, April 17, 1938, S. S. Rhode Island ; C. Buck- less, April 18, 1938, S. S. Nevada ; J. Gordon Rosen, April 19, 1938, S. S. Nevada; F. W. Zinkiewycz , July 14, 1938, S. S. Washington ; C. Buckless , July 14, 1938, S. S. Washing- ton; J. Gordon Rosen , July 14, 1938 , S. S. Washington ; James P. Blasingame , September 19, 1937 , S. S. California ; Arthur Spencer , September 19, 1937, S. S. California ; J. Gor- don Rosen , September 19, 1937, S. S . California ; A. P. Lortie, July 30, 1938, S. S. Roa- noke; John Helton, July 30, 1938, S. S . Roanoke; C. T. Adams, July 30, 1938, S. S. Roanoke; R . M. Lyons, July 17,'1938, S. S . Roanoke. 'The respondent admitted in its amended answer that it had on the dates given dis- charged the following employees from the following named ships : C. Buckless , April 18, 1938, S. S. Nevada; J. Gordon Rosen, April 19, 1938, S. S. Nevada; F. W. Zinkiewycz, July 14, 1938, S. S. Rhode Island ; J. Gordon Rosen, July 14, 1938, S. S. Washington; C. T. Adams, July 30, 1938, S . S. Roanoke ; A. P. Lortie, July 30, 1938, S . S. Roanoke; John Helton, July 30, 1938, S. S. Roanoke ; C. Buckless, July 14, 1938, S. S. Washington. THE TEXAS COMPANY 837 continued at Port Arthur, Texas, on November 28 and 29, 1938, before Charles E. Persons, another Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented. by counsel.and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the beginning of the hearing, the Board moved to amend its complaint to include an allegation that the respondent discharged and refused to reinstate two men 5 not previously named therein for the reason, among others, that they had joined and/or assisted the Union. The Trial Examiner. granted the motion without opposition. With the consent of all parties the respondent's answer was deemed amended to include a denial of the charges that the said two men were discharged in violation of the Act. During the course of the hearing, the Board moved to dismiss the amended complaint as to particular alleged discharges of 7 of the 12 employees named.6 The Trial Examiner granted the motion which was not opposed. Also during the course of the hearing the respondent made various mo-. tions to dismiss the amended complaint in its entirety; it moved specially. to dismiss that portion of the amended complaint which alleged that Rufus H. Andrews and F. W. Zinkiewycz were dis- missed by the respondent on July 8, and July 14, 1938, respectively, because they had joined and/or assisted the Union; and it mad(',' various motions to strike certain testimony. Decision on these motions was reserved by the Trial Examiner at the hearing. In his .Intermediate Report,? discussed below, the Trial Examiner denied the motions to dismiss the amended complaint in its entirety and the motions to strike certain testimony, but grantel the motions to dismiss the amended complaint as to Rufus H. Andrews and F. W. Zinkiewycz. At the close of the hearing the Board moved to conform the complaint to the proof. This motion was granted by the Trial Examiner. During the course of the hearing the Trial Examiners made other rulings on motions and on objections to the admission of evidence. The Board ha,s reviewed the rulings of the Trial Exam- iners and finds that no prejudicial errors were committed. The rul- ings are hereby affirmed. " The names of these employees , the dates of the alleged discharges , and the ships from which they took place are : Rufus H. Andrews, July 8, 1938, S. S. Australia ; Jack Wilson, March 17 , 1938, S . S. Washington. 6 These seven discharges involved the following employees who were alleged to have been discharged on the following dates from the following ships: P. W. Zinkiewycz, April 18, 1938, S. S. Rhode Island ; D. G. MacClennan, April 17, 1938, S. S. Rhode Island ; Arthur Spencer, September 19, 1937, S. S. California ; John Helton, July 30,'1938, S. S. Roanoke; C. T. Adams, July 30, 1938, S. S . Roanoke ; R. M. Lyons, July 17, 1938, S. S. Roanoke; Jack Wilson, March 17, 1938, S. S. Washington. ' The Intermediate Report was submitted by Trial Examiner Howard Myers. 2830'30-41-vol. 19-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 8, 1939, Trial Examiner Myers filed an Intermediate Report finding 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. He recommended that the respondent cease and desist from its unfair labor practices; that it reinstate with back pay 4 of the 12 employees originally named in the amended complaint ; and that it take cer- tain other action to remedy the situation brought about by the unfair labor practices. He dismissed the allegations of the com- plaint, as above stated, with respect to Rufus H. Andrews and F. W. Zinkiewycz. The respondent filed its request for oral argument be- fore the Board upon. the Intermediate Report and,.,the: record on: May 12, 1939, its Statement of Exceptions to the Intermediate Report and to the record on July 14, 1939, and its Brief in support of the State- ment of Exceptions on July 17, 1939. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was held on Oc- tober 24, 1939, before the Board in Washington, D. C. The respond- ent and the Union were represented by counsel and participated in the argument. The Board has considered the Exceptions filed by the respondent to the Intermediate Report of the Trial Examiner and to the record and, except in so far as the exceptions are consistent with the find- ings_of fact, conclusions of law, and the order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, The Texas Company, a wholly owned subsidiary of The Texas Corporation, is a Delaware corporation, with its prin- cipal business and. executive offices located at -New York City and Houston, ' Texas.' It is engaged ' chiefly in ' the production , distribu- tion, and sale of petroleum products. The respondent operates refineries in Texas at Galena Park, Port Arthur, and Port Neches. In addition , at Port Neches it operates a factory for the manufacture of roofing materials , barrels, and vari- ous other products. Chief products of the Galena Park refinery are gasoline and fuel oils. The crude oil used in their manufacture comes principally from producing wells in Texas and New _Mexico'' through pipe lines operated by the Texas New Mexico Pipe Line Company . This com- THE TEXAS COMPAN Y 839 pany is a common carrier with tariffs, prescribed by the Interstate Commerce Commission. A majority of its stock is owned by The Texas Corporation. The average daily throughput of the Galena Park refinery is approximately 20,000 barrels of crude oil. Of the finished products, approximately 75 per cent are shipped out of Galena Park via seagoing tankers destined for points outside the State of Texas. The principal products manufactured at the respondent's Port Neches works are roofing, asphalt, steel barrels, wood barrels, and drums. The principal raw materials used are crude oil, felt, sheet steel, wood staves, slate, paper, and nails. The daily average through- put of crude oil is approximately 25,000 barrels. Most of the crude oil is obtained from Texas and `Louisiaiia, but- substantial quantities arrive by tanker and barge from Mexico. All of the felt, slate, sheet steel, and paper is procured from outside Texas. The unfinished crude distillates from both the Galena Park and Port Neches refineries are pumped to the respondent's Port Arthur refinery where the refining process is completed. In finished form a substantial per cent of the crude-oil distillates pumped to Port Arthur eventually reach a destination outside Texas. Products of the respondent are in part distributed by means of 2,100 wholesale outlets and over 40,000 retailers located in most of the States of the United States. Gross receipts of the respondent for the fiscal year ending December 31, 1937, were in excess of $280,000,000. According to the respondent's franchise tax return to the Secretary of State of Texas, covering the year 1937, over 86 per cent of its business was reported as interstate in character and approximately 13 per cent was reported as intrastate. The respondent owns, maintains, and operates through its Marine Division approximately 28 oceangoing vessels having an average capacity of 11,00.0 tons. These vessels are used by the respondent in transporting its petroleum products. between various ports of the Gulf. of Mexico and other parts of- the United States, and to and from Europe, South America, and other points. H. THE ORGANIZATION INVOLVED National Maritime Union of America, Port Arthur Branch, is a labor organization affiliated with the Congress of Industrial Organiza- tions. It admits to membership all unlicensed seamen employed by the respondent. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The refusal to issue passes On or about November 1, 1936, there was a general strike called in the shipping industry of the United States which lasted until some- time in the early part of January 1937. Immediately after the cessation of the strike a group known as the "rank and file" of the International Seamen's Union, an affiliate of the American Federation of Labor, formed the National Maritime Union of America, which later became affiliated with the Congress of Industrial Organizations. Soon after its formation the Union began organizing unlicensed seamen employed on the respondent's ships. In this work the Port Arthur branch of the Union was especially active. It is undisputed that during the entire period here involved the respondent refused permission to representatives of the Union not in its employ to board its vessels. The Union contended at the hearing that such refusals were discriminatory and illegally designed to prevent it from con- tacting its members on board. The respondent, on the other hand, offered evidence that it extended the prohibition against boarding its vessels to the representatives of any and all unions as well as to all other persons not in its employ. The respondent alleged that because of the highly inflammable nature of the cargo carried in its vessels such a policy is necessary in the proper conduct of its busi- ness. There is no evidence in the record that the respondent has discriminated against representatives of the Union by denying them access to its vessels while granting it to other persons not in its employ. It is clear that the Union was able to confer with the respondent at its offices on shore, and to contact its members employed by the respondent while they were on shore leave. Under these circumstances we find that by refusing passes to board its vessels to representatives of the Union the respondent has not interfered with, restrained, or coerced its employees in the exercise of their rights under the Act. B. Interference, restraint, and coercion Both J. Gordon Rosen and James P. Blasingame were hired by the respondent on or about June 30, 1937, at Port Arthur, Texas, and assigned to the S. S. California as able-bodied seaman and quarter- master, respectively. When Rosen went on board he reported for duty to Earl Baldwin, then acting first mate of the S. S. California. According to Rosen's account of the ensuing conversation Baldwin stated to him, "Just a minute, there is one thing I want to tell you we don't allow on this THE TEXAS OOMPANY 841 ship, and that is getting drunk, missing watches, and we don't allow any agitation with the crew on this union business." Blasingame gave a similar account of his first conversation with Baldwin. He said that when he boarded the S. S. California Baldwin warned him against three things, "drunkenness," "missing watches," and "union agitating." Soon after Rosen and Blasingame went to work on the S. S. Cali- fornia, its regular first mate, one Dave Rosen, returned to the ship from a leave of absence. Earl Baldwin was shifted back to his regular position as second mate. As such, Baldwin was in charge of the 12 to 4 watch during which Blasingame, as quartermaster, steered the ship. In the course of their duties, Blasingame and Baldwin were fre- quently on the bridge together and engaged in various conversations. Concerning these conversations, Blasingame testified, "He (Baldwin) told me he belonged to some union out on the west coast, and he got gypped out of about $50, and he never did get nothing out of it, and he ain't never had any use for a union since," and that Baldwin also told him how the ship had been run without union men aboard and how he (Baldwin) had to get rid of a man "because he was agitating union all the time." On one occasion, according to Blasin- game, a newly hired seaman came aboard wearing a union button. Baldwin upon seeing it remarked, "There is a man who won't ride this ship long." At another time, Blasingame testified, Baldwin asked him if a certain, new seaman was a "rank and file." a Blasingame replied that he did not know and Baldwin said, "Well, if he is he won't be on this ship very long." Blasingame also testified that Baldwin asked him about his own union affiliation as well as that of various other crew members, includ- ing J. Gordon Rosen. Blasingame avoided giving a direct answer to the question as to his own membership in the Union, he said, and stated to Baldwin that he knew nothing about the membership of others. Baldwin testified that when J. Gordon Rosen and Blasingame first, boarded the S. S. California he told them simply to go to their quar- ters. He denied warning them against "union agitation." Although he admitted having had, as second mate, various conversations with Blasingame, he flatly denied each and every anti-union statement attributed to him by the latter. The Trial Examiner did not credit Baldwin's denials, nor do we. We find that Baldwin made the state- ments attributed to him by J. Gordon Rosen and Blasingame sub- stantially as recited above. e The Union was commonly referred to as the "rank and file" during the first stages of Its organization and for some time thereafter. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As acting first mate on the S. S. California when J. - Gordon Rosen and Blasingame were hired and when he warned them against "union, agitation," Baldwin was second in authority only to the captain. As second mate at the time of his various conversations with Blas- ingame on the bridge of the S. S. California, Baldwin was the third ranking officer on the ship. During the absence of his superior officer or officers, Baldwin was in complete charge of the ship. He was at all times in charge of the deck crew during one watch of 8 hours each day. The respondent is clearly accountable for his statements of the nature discussed above., We find that the respondent, by warning its employees against organization, threatening to discharge union members, and questioning an employee about membership in the Union, has interfered with, restrained, and coerced its employees on the S. S. California in the exercise of the rights guaranteed in Section 7 of the Act. C. The shipping articles As stated above, the amended complaint charges the respondent with having discharged and refused to reinstate various employees in violation of Section 8 (3) of the Act. It is undisputed that each seaman involved in the particular alleged discharges, which are fully discussed in the sections below, signed shipping articles required by law,10 and that each received his dis- charge certificate 11 at the port from which he had originally embarked. The respondent contends that under the circumstances there is no issue of unlawful discharge involved in this proceeding, alleging that the shipping articles constituted contracts of employment under which the employment relationship was terminated as a matter of law at the end of the particular voyages concerned. We cannot concur in this contention of the respondent. It is clear from the record that the termination of a voyage does not, as a matter of fact, terminate the employment relationship between the respond- ent and the members of the crew. With the exception of those seamen who either quit or are dismissed, the crew continues in the performance of its duties. Regular watches are maintained and'the seamen remain subject to the orders of their ship's officers. Ordinarily the same crew goes on the succeeding voyage. Despite the fact that seamen may have concurrently signed ship- ping articles for a voyage, the respondent may dismiss them on differ- 6 See Virginia Ferry Corporation v. N. L. R. B., 101 F. (2d) 103 (C. C. A. 4), enf'g Matter of Virginia Ferry Corporation and Masters, Mates and Pilots of America, 8 N. L. B. B. 730. 10 46 U . S. C. A. 564; 46 U. S. C. A. 574. 11 In the event a seaman quits a particular vessel or is dismissed for any reason , the law requires that he be given a discharge certificate , 46 U. S. C. A. 643. THE TEXAS OOMMPANS 843 ent days upon or after the end of the voyage, thus indicating that it is the dismissal by the respondent's officers rather than the completion of the voyage which terminates the employment relationship. 12 Fur- thermore, the respondent's working rules provide, "all unlicensed personnel with one year of continuous service shall be given an annual vacation of one week with pay. Those in continuous service for two years or more shall be given an annual vacation of two weeks with pay." Since shipping articles signed by the respondent's seamen are never for voyages lasting as long as a year, the above-quoted provisions of the working rules would be meaningless if, as the respondent con- tends, the employment relationship was ended upon the completion of each voyage. On the basis of all the evidence, we find that nothwithstanding the termination of a particular voyage, the employment relationship of each member of the crew on the respondent's ships here involved con- tinued until he quit or was dismissed for a lawful cause.13 D. The alleged discharges of J. Gordon Rosen and James P. Blas- ingame from the S. S. "California" At the time of the hearing both J. Gordon Rosen and Blasingame had been seamen for about 10 years, and able-bodied- seamen for 6 and 7 years, respectively. Prior to their employment on the S. S. California on June 30, 1937, J. Gordon Rosen had worked about 4 months during 1935 for the respondent on the S. S. Nevada, from which he resigned, and Blasingame had been employed on various of the respondent's vessels intermittently since 1931 for short periods totaling about 7 months. He had not been dismissed from any of these vessels because of unsatisfactory work or conduct. Between periods of employment by the respondent J. Gordon Rosen and Blas- ingame worked on the ships of various other companies. Both men joined the Union at its inception in the first part of 1937. J. Gordon Rosen was an especially active member. Immediately after he was hired on the S. S. California he began discussing the Union with various members of the crew. He distributed union litera- ture among the unlicensed seamen and started the practice of holding regular meetings of the Union, a practice which had been neglected prior to his coming aboard. On several occasions J. Gordon Rosen 12 Both J. Gordon Rosen and Clarence Buckless signed their last shipping articles on the S. S. Nevada on April 13, 1938, at Port Arthur for a voyage to Port Texaco , Louisiana, to be paid off in Port Arthur, Port Neches, or Houston. Buckless was dismissed by the respondent on April 18, 1938, at Port Arthur, while Rosen was dismissed April 19, 1938, at Port Arthur . The respondent contends in substance that neither man was discharged, but that the expiration of the shipping articles automatically terminated the employment relationship on the dates given. 18 See Matter of South Atlan tio Steamship Company of Delaware and National Maritbnw Union o f America, 12 N. L. It. B. 1367. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was elected as the crew's delegate to present grievances to the captain and first mate. Blasingame accompanied him as a co-delegate on one or more occasions. On September 19, 1937, when the S. S. California was in Port Arthur, J. Gordon Rosen and Blasingame left the ship. According to the Union, they were discharged because of their union activity. The respondent contends that both men quit voluntarily. Circumstances surrounding the alleged discharge of J. Gordon Rosen will be discussed first. He testified that on the morning of September 19, 1937, the boatswain said to him, "The mate told me you are fired." J. Gordon Rosen reports that he replied, "I guess you know what I am getting fired for," and that the boatswain answered, "Yes, I feel pretty bad about it. I ought to quit myself." The boat- swain did not testify. According to J. Gordon Rosen, he then packed his things and went to see Baldwin who was making out his discharge slip. He testified that he asked, "What is the reason for my getting fired?" and that Baldwin replied, "The reason, well, you know we don't want any agitating back there." Blasingame. testified that on the- same morning he was, below. packing to leave the ship and that he heard the boatswain and the first mate, Dave Rosen, talking outside his bunk. Blasingame testified that he heard the boatswain say, "You are firing Rosen, the only good A. B. that I got on deck," and the first mate reply, "I don't give a damn. These guys aren't going to run this ship. This ship is no union ship." Baldwin denied that he had dismissed J. Gordon Rosen, or that he knew anything about his leaving the ship until some time after the event, when the first mate instructed him to enter on the ship's crew list that J. Gordon Rosen and Blasingame had resigned. 1.4 He denied having made out J. Gordon Rosen's discharge certificate. Captain P. Peterson, of the S. S. California, was in Norway at the time of the hearing. The parties stipulated that if he were present he would testify that both J. Gordon Rosen and Blasingame had vol- untarily quit, and that he personally paid them off. A comparison of the handwriting on both men's discharge certificates with Captain Peterson's signature on the shipping articles indicates that Captain Peterson both made out and signed the discharge certificates. Dave Rosen, the first mate, testified. that neither he nor Captain Peterson had dismissed J. Gordon Rosen. He said that both J. Gordon Rosen and Blasingame told him before September 19, 1937, that they were going to quit. This latter statement is confirmed by J. Gordon Rosen who testified that on September 7, 1937, he and Blasingame unsuccessfully took up a dispute concerning overtime 14 The crew list was not introduced in evidence. THE TEXAS COMPAE Y 845 with the first mate. Concerning the first mate's failure to satisfy his request, J. Gordon Rosen said at the hearing, "When I had this . conversation with the mate I.told him if that is all they could afford to give us, I said, `I am going to quit,' and James Blasingame told him the same thing, `I am going to quit.' 1) On the basis of the entire record, we find that the evidence is insuf- ficient to establish that the respondent discharged J. Gordon Rosen from the S. S. California because of his membership in the Union. Blasingame testified that in the morning of September 19, 1937, the first mate said to him, "Blasingame, you are fired right now," and that when he asked for the reason the first mate replied, "Never mind, you can't ride this ship any more. Go ride one of your rank and file ships." Dave Rosen, on the other hand, testified that when the S. S. Cali- f ornia got into Port Arthur, Blasingame told him that he was dis- satisfied with conditions on board and was going to quit. Blasingame did not deny that he had announced on "September 7, 1939, as testified by J. Gordon Rosen, that he was going to quit. The account given by O. D. Mitchell, Blasingame's "bunkmate" on the S. S. California, of events on the morning of the alleged dis- charges is uncontradicted by other evidence in the record. Mitchell testified that on that morning he found Blasingame in their quarters packing his belongings. Mitchell asked him what had happened. Blasingame replied, according to Mitchell, "that he was getting off; that he didn't like the ship." Blasingame did not tell Mitchell that he had been "fired." Mitchell also testified that Blasingame was not any more active in the Union than a number of the other employees on the ship. The record is clear that there were other men active in the Union on board the S. S. California. On the basis of the entire record we find that the evidence is insuffi- cient to establish that the respondent discharged James P. Blasingame from the S. S. California because of his membership in the Union. E. The discharges of Clarence Buck less and J. Gordon Rosen from the S. S. "Nevada" At the time of the hearing, Clarence Buckless had been a seaman for 20 years and an able-bodied seaman for 12 years. He joined the Union on June 7, 1937. Buckless was hired by the respondent on No- vember 17, 1937, and assigned to the S. S. Nevada as an able-bodied seaman. About a week later he was promoted to the position of ship's boatswain. During the 13 years previous to his employment on the S. S. Nevada, Buckless had been employed intermittently on various of the respondent's ships for short r eriods totaling 18 months. .846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the S. S. Nevada Buckless very soon became active as a leader and organizer of the Union. He called meetings of the Union for the crew, most of whom were members, and was delegated to speak with the captain and first mate concerning various grievances. Buckless testified that he told Carl Tranberg, the first mate, that he had been elected delegate of the Union. Thereafter, on January 10, 1938, J. Gordon Rosen was again hired by„ the respondent and assigned to the. S. S. Nevada, as an_able-bodied seaman. Rosen testified that when he boarded the S. S. Nevada he found that the entire crew, with the exception of one man, was com- posed of members of the Union. Like Buckless, Rosen at once became active in affairs of the Union. He presided over meetings held in the crew's quarters each week and, along with Buckless and one or two others, acted as a delegate to dis- cuss various controversial grievances with the ship's officers. He drafted a letter, copies of which the crew sent through the mails and hiring halls to crews of the respondent's other ships, urging them to join the Union. It seems clear that Buckless and Rosen were out- standing as active leaders of the Union on board the S. S. Nevada, and that the ship's officers were aware of their activity. On April 18, 1938, at Port Arthur, Hugo Swanson, captain of the S. S. Nevada, gave Buckless his discharge slip and told him that he was dismissed for "drunkenness and bringing liquor aboard the ship." A day later, on April 19, 1938, the first mate, Carl Tranberg, dismissed Rosen, Rosen testified that he asked Tranberg why he was being "fired," and that the latter answered, "Well, it might be the reason that your work is not satisfactory." The respondent contended that Buckless' shipping articles termi- nated on April 18, 1938, and that he was not reemployed because of his alleged habitual drunkenness. Three officers of the S. S. Nevada testified concerning various occasions when Buckless came on board after shore leave "under the influence" of liquor. Buckless admitted that he drank while on shore but denied that his doing so interfered with his duties on the ship. The evidence does not entirely support his denial. On the other hand, it is clear from the record that heavy drinking is not uncommon among unlicensed seamen employed by the respondent, and that they, are not ordinarily discharged for that reason. Also, it is undisputed that on more than one occasion, and during the course of a voyage, Captain Swanson himself gave Buckless liquor in substantial quantities.15 As to Rosen, the respondent contended that he was not discharged because of his activity in the Union, but that his shipping articles 15 This was liquor which Buckless had obtained while the S . S. Nevada was in Spain. As the liquor came on board Captain Swanson confiscated it. During the return trip to the United States Captain Swanson gave it back to Buckless a bottle at a time. THE TEXAS COMPANY 847 expired on April 19, 1938, and he was not reemployed because he was lazy and continually neglected his duties. First Mate Tranberg testi- fied that Rosen seemed to "intentionally lag behind in his work," and that on various occasions he left his position when he was supposed to be on watch and went aft to play cards, write, or smoke. Captain Swanson testified that Rosen appeared to him to be "purely lazy" and that Tranberg had often complained about his work. Rosen denied that he' had improperly performed any of his duties. It is clear that he does not smoke. The respondent admitted that when Rosen was employed on the S. S. Nevada in 1935, and on the S. S. California from June 30 to September 19, 1937, his work had been satisfactory 16 We feel that the conflicting evidence concerning the respondent's real reason for discharging and refusing to reemploy Buckless and Rosen on the S. S. Nevada is resolved by the testimony of Leo Herman and George Hart. Leo Herman was hired by the respondent as an able-bodied seaman on the S. S. Nevada at about 7 a. in. on April 19, 1938, some hours after Buckless had left the ship but before the dismissal of Rosen. Herman testified that when he came on board Rosen and others asked him about liis union afflliatioin;*'and when he told them thatle' w"-as a member of the International Seaman's Union, an affiliate of the American Federation of Labor, they objected to his working on the ship. Herman then went to Tranberg, the first mate, and explained that the crew did not want him on board. Tranberg told him to go to work. Later during the same day Herman again reported to Tranberg, who asked. him,. according to Herman, with whom he had the con- versation about his union affiliation. Herman testified that he an- swered that, "he wasn't a rat," and that Tranberg then said, "I know who you had the conversation with. It was Baldy 17 Baldy is a good man, but he let the union go to his head. We had a boat- 1e As is discussed below, less than a month and a half after Buckless and Rosen received their discharge papers from the S. S . Nevada they were rehired by the respondent on the S. S. Washington as quartermaster and able-bodied seaman, respectively . In its brief and at the oral argument the respondent urged that the fact that they were rehired demon- strates that the two men had not been discharged from the S . S. Nevada because of their activity in the Union. We do not feel that this argument tends to resolve any of the issues . It might equally well be urged that the respondent would hardly rehire Buckless as a quartermaster with the duty of steering the S. S. IVashington, as it did, if he was in truth discharged from the S . S. Nevada because of habitual drunkenness as the respondent contends , and that the respondent would not rehire Rosen if he was in fact negligent and lazy. The fact of the situation appears from all of the evidence to be that . in so far as the hiring of unlicensed seamen is concerned , each of the respondent's ships was operated largely as a separate unit, obtaining its employees from any of various uncoordinated agencies . A man might therefore be discharged from one of the respondent's ships and thereafter rehired on another, the fact of the rehiring having little or no bearing upon the merits of, or the reasons for, the previous discharge. 11 The record is clear that J. Gordon Rosen was commonly called "Baldy." 848 DECISIONS OF NATIONAL LABOR RELA'HONS BOARD swain 18 on here. He done the same thing. Every time a - - - (new) man comes on board he asked him if he had a union book." Herman further testified that about 9 days later Tranberg again spoke to him. Herman's account of this conversation follows : He told me that he fired Baldy on account of union activities, but that is not the reason he gave him, but he also fired the boatswain on account of union activities but the captain found another reason to fire him. The only reason he told me (was) that I told him I didn't belong ' to the N. M. U.; I belonged to the I. S. U. Otherwise he wouldn't have told me. During the period here involved, George Hart was a quartermaster on the S. S. Nevada. He testified that on April 19, 1938, he was standing nearby when Herman reported to Tranberg that the rest of the crew objected to his working because he was a member of the International Seaman's Union. Hart said that after Herman left, Tranberg turned to him and asked, "Hart, how about this? What is this all about ?" Hart replied that all of the crew were members of the Union except Herman and that they didn't want him on board. Tranberg then said, according to Hart, "When you go back aft you tell those people I don't want none of that kind of stuff on here. I am not going to have it. I thought I got rid of that when I got rid of that fellow yesterday." Hart said he understood that Tranberg was referring to Buckless when he said "that fellow," since only one other man, an ordinary seaman, had been discharged the previous day and he was not active in the Union. Tranberg testified that he probably spoke to Herman when he came on board, but that he did not recall the conversation. He de- nied making the statements attributed to him by Herman but said nothing concerning the alleged conversation with Hart. On the entire record, we credit the testimony of Herman and Hart. We find that the respondent discharged Clarence Buckless and J. Gordon Rosen from the S. S. Nevada, and. refused to reemploy them on that•ship because they had joined and actively assisted the Union. F. The discharge of J. Gordon Rosen from the S. S. "Washington" J. Gordon Rosen was unemployed from the time he left the S. S. Nevada until June 1, 1938, when he was rehired by the respondent for work as an able-bodied seaman on the S. S. Washington. As in the case of his previous employment with the respondent, soon after his arrival on the ship Rosen became very active in the affairs of the Union. He presided over meetings and was elected as a delegate. In that capacity from time to time he presented various grievances "Herman testified that he understood that this reference was to Buckless. THE TEXAS COMPANY 849 of the crew to Captain Bergman of the S. S. Washington. Although the captain refused to recognize Rosen as a delegate of the Union, most of the grievances were satisfactorily adjusted. As delegate, Rosen also discussed various controversial issues with C. L. Hand, the respondent's port captain at Port Arthur. On July 11, 1938, he drafted and signed an open letter from the crew of the S. S. Wash- zngton to the crews of all other ships owned by the respondent, urging them to organize and severely criticizing the respondent be- cause it allegedly refused to improve the working conditions of its employees. This letter was distributed widely through the mails and by personal contacts on shore. Rosen also sent a telegram to J. P. Roney, the general marine manager of the respondent' s marine department, complaining that the captain of the S. S. Washington refused to recognize the delegates of the Union. It is clear that the officers of the S. S. Washington had knowledge of Rosen's activity on behalf of the Union. On July 14, 1938, at Port Arthur, the first mate, C. B. Johannesen, told Rosen that he was "fired" because of "unsatisfactory seaman- ship." This occurred a few hours after Rosen, as delegate of the Union, had taken up an overtime dispute with C. L. Hand, the port captain. The respondent contends that Rosen was not discharged because of his activity on behalf of the Union, but because he continually neglected his work. Both Bergman and Johannesen testified that.on. various occasions Rosen was noticeably negligent and lazy. The respondent also introduced in evidence the crew list of the S. ^S. Washington for July 16, 1938, showing a notation that on July 14, 1938, Rosen was "discharged for incompetency." In view of Rosen's long experience as a seaman we do not credit the notation on the crew list that he was incompetent. Nor do we fully credit the testimony that Rosen was negligent and lazy in the performance of his duties. There is considerable evidence to the contrary. On the basis of the entire record it seems apparent, and we find, that the respondent discharged Rosen from the S. S. Wash- ington on July 14, 1938, and refused to reinstate him because he had joined and actively assisted the Union. Rosen desires reinstatement. On the basis of the entire record we find that by discharging J. Gordon Rosen and Clarence Buckless from the S. S. Nevada, and by discharging J. Gordon Rosen from the S. S. Washington, the respond- ent has discriminated against them in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. We further find that by refusing to reemploy Clarence Buckless on the S. S. Nevada after April 18, 1938, and by refusing to reemploy 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Gordon Rosen on the S. S. Nevada after April 19, 1938, and on the S. S. Washington after July 14, 1938, the respondent discrimi- nated against the two men in regard to their hire and tenure of employment, thereby discouraging membership in the Union,19 and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. G. The discharge of Clarence Buckless from the S. S. "Washington" Clarence Buckless was unemployed from the time he left the S. S. Nevada on April 18, 1938, until June 1, 1938, when he was hired by the respondent as a quartermaster on the S. S. Washington. While on the S. S. Washington, Buckless continued to be an active member of the Union, but it does not appear from the record that he was outstanding in this respect. On July 14, 1938, at Port Arthur the first mate, C. B. Johannesen, told Buckless that he was "fired" for "missing a watch at Claymont, Delaware" and for being an unsatisfactory seaman. The respondent contends that Buckless was not discharged because of his activity in the Union, but was refused reemployment becannse of his alleged habitual drunkenness and poor helmsmanship. The evidence that Buckless did considerable drinking and that it inter- fered with the proper performance of his duties on the S. S. Wash- ington is convincing. On the basis of all the evidence we find that the respondent did not discharge Buckless from the S. S. Washington, or refuse to reinstate him because of his activity in the Union. H. -The discharges of Albert P. Lortie, F. W. Zinkiewycz, and Rufus H. Andrews Albert P. Lortie had been a seaman for over 20 years at the time of the hearing. He was hired by the respondent for the first time on May 11, 1938, and assigned to the S. S. Roanoke as an able-bodied seaman. . Soon after boarding the S. S. Roanoke, Lortie became active on behalf of the Union. He insisted that regular meetings of the mem- bers of the Union be held. These had been neglected prior to his coming on board. He presided at the meetings and saw that copies of the minutes, signed by himself as chairman, were posted on the bulkhead in the petty-officers' messroom. Lortie openly solicited non-union members of the crew to join the Union. There is no sub- stantial showing in the record, however, that during Lortie's employ- ment on the S. S. Roanoke, the respondent inferfered with or dis- couraged in any way his activities of the nature described above. 19 See footnote 13, supra. THE TEXAS COMPANY 851 On July 30, 1938, at Port Arthur, according to Lortie , the first mate, Edgar Carpenter, discharged him saying that he was a good seaman but that he had been "drunk and disorderly" and "threatening men back there to join the union." The respondent introduced un- controverted evidence that in Charleston , South Carolina, just before the S. S. Roanoke returned to Port Arthur, Lortie had come on board in a drunken condition and had threatened a messboy , not a member of the Union, with physical violence unless he got off the ship. A fight was"averted ' by the 'intervention of the first mate. There is other evidence in the record that on various occasions Lortie came aboard drunk and unable to perform his duties . Lortie admitted that he drank but denied that it interfered with his work. A notation from the log book of the S. S. Roanoke stating, ". . . A. Loftie discharged for being intoxicated and disorderly on board ship in Charleston, July 24," was read into evidence. On the basis of all the evidence we find that the respondent did not discharge Lortie from the S. S. Roanoke , or refuse to reinstate him because of his activity in the Union. As to F. W. Zinkiewycz , and Rufus H. Andrews , the complaint, as amended, alleges that the respondent engaged in unfair labor practices, within the meaning of Section 8 ( 1) and (3) of the Act, by discharg- ing Andrews on July 8, 1938, from the S. S. Australia, and Zinkiewycz on July 14, 1938, from the S. S. Washington, and by refusing to re- instate them. The Trial Examiner in his Intermediate Report found that the two men were not discharged and refused reinstatement be- cause of their union activities , but for good cause. In his Intermediate Report the Trial Examiner also granted the respondent's motion to dismiss that portion of the' amended complaint in so far as it con- cerns Zinkiewycz and Andrews . The Union has filed no exception to the findings or rulings on the motion . We have examined the evi- dence and we agree with the Trial Examiner in his findings and rulings as to Zinkiewycz and Andrews. We find that the evidence does not sustain the allegation that the respondent discharged and refused to reinstate Zinkiewycz and Andrews for the reason that they had joined and assisted the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III B, E, and F above, occurring in connection with its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY . We have found that the respondent, by its anti-union statements and in other ways, interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act. We shall order the respondent to cease and desist from such practices. We have found that the respondent discriminatorily discharged Clarence Buckless from the S. S. Nevada on April 18, 1938. We shall therefore order the respondent to make Buckless whole for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination on April '18, 3 .938, to June 1, 1938, the date on which he was reinstated by the re- spondent on the S. S. Washington, less his net earnings 20 during such period. Since we have found that Buckless' subsequent discharge from the S. S. Washington was not discriminatory, we shall not order the respondent to offer him reinstatement. We have found that the respondent discriminatorily discharged J. Gordon Rosen from the S. S. Nevada on April 19, 1938, and from the S. S. Washington on July 14, 1938. We shall therefore order the respondent to offer Rosen immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. We shall further order the respondent to make Rosen whole for any loss of pay. suffered by, him by reason of his discharges by payment to him of a sum equal to the amount which he normally would have earned as wages from April 19, 1938, the date of his discharge from the S. S. Nevada, to June 1, 1939, when he was rehired on the S. S. Washington, and from July 14, 1938, the date of his discharge from the S. S. Washington, to the date of the offer of reinstatement, less his net earnings 21 during such periods. Since both J. Gordon Rosen and Clarence Buckless, while in the employ of the respondent, received in addition to their monetary wage, maintenance on shipboard, we shall order that the reasonable value of such maintenance on shipboard during the period for which ° 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 else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, 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 . By "earnings" in this case is meant monetary compensation obtained at other employment and also the reasonable value of board and maintenance received in addition to such monetary compensation. 21 See footnote 20, supra. THE TEXAS COMPANY 853 we shall award back pay shall be included in the total monetary compensation to be paid to each by the respondent. The respondent contended in its brief and at the oral argument that the Board has no power to order reinstatement or back pay for 'any of the seamen involved in this proceeding on the alleged grounds that they have ceased to be employees of the respondent by reason of having' since obtained regular and substantially equivalent employment elsewhere. This contention is without merit. The record shows that both Clarence Buckless and J. Gordon Rosen were un- employed from the dates upon which they were discriminatorily dis- charged from the S. S. Nevada until the respondent rehired them on the S. S. Washington. Clearly then, during such periods neither man had substantially equivalent employment and neither lost his employee status. After J. Gordon Rosen was discriminatorily dis- charged from the S. S. Washington on July 14, 1938, he was unem- ployed until the last part of September 1938, when he obtained work on a ship bound for Europe. The details of this employment do not appear in the record. Thus, it is not shown that J. Gordon Rosen has obtained regular and substantially equivalent employment. Even if it be assumed, as the respondent contends, that he obtained such employment, we do not believe that he thereby became remediless, either for the purposes of back pay or for purposes of future em- ployment by the respondent.22 We have found that the respondent did not discharge or refuse to reinstate J. Gordon Rosen and James P. Blasingame on the S.. S. California, F. W. Zinkiewycz and Clarence Buckless on the S. S. Washington, A. P. Lortie on the S. S. Roanoke, or Rufus H. Andrews on the S. S. Australia because of. their activities in the Union. We shall, therefore, order that the amended complaint, in so far as it alleges that the respondent discriminated in regard to the hire or tenure of employment of the above-named employees on the above- named ships, be dismissed. 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. National Maritime Union of America, Port Arthur Branch, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of J. Gordon Rosen and Clarence Buckless, thereby discouraging membership in the National Maritime Union of America, Port Arthur zz See Matter ofEagle-Picker Mining d Smelting Company, etc. and International Union of Mine, Mill d Smelter Workers, Local Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727. 233080--41-vol. 19--55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Branch, 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 re- spondent 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. 5. The respondent did not discharge or refuse to reinstate J. Gor- don Rosen and James P. Blasingame on the S. S. California, F. W. Zinkiewycz' and Clarence Buckless on the S. S: Washington, A. P. Lortie on the S. S. Roanoke, or Rufus H. Andrews on the S. S. Australia, in violation 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 respond- ent, The Texas Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in National Maritime Union of America, Port Arthur Branch, or any other labor organization of its employees, by discharging or refusing to. reinstate any of its em- ployees,- or in any other manner discriminating" in regard to their hire and tenure of employment, or any terms or conditions of their employment, because of membership or activity in connection with any such labor organization; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist National Maritime Union of America, Port Ar- thur Branch, or any other labor organization,-to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the' policies of the Act : (a) Make whole Clarence Buckless for any loss of pay he may have suffered 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 the amount which he normally would have:earned as wages-including therein the reasonable value of his maintenance on shipboard-from April 18, 1938, the date of such discrimination, to THE TEXAS COMPANY 855 June 1. 1938, the date upon which he was reinstated by the respond- ent, less his net earnings during such period; deducting, however, from the amount otherwise due to him monies received by him during . said period for work performed upon Federal, State, county, muni cipal, or other work-relief projects and pay over the amount so de- ducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other governments which supplied the funds for said work-relief projects; (b) Offer to J. Gorden Rosen immediate and full reinstatement to his former position held on July 14, 1938, or to a substantially equiva- lent position without prejudice to his seniority and other rights and privileges previously enjoyed by him; (c) Make whole J. Gorden Rosen for any loss of pay he may have suffered 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 the amount which he normally would have earned as wages- including therein the reasonable value of his maintenance on ship- board-from April 19, 1938, the date he was discriminatorily dis- charged from and refused reinstatement on the S. S. Nevada, to June 1, 1938, when the respondent rehired him on the S. S. Washington, and from July 14, 1938, the date he was discriminatorily discharged from and refused reinstatement on the S. S. Washington, to the date of the offer of reinstatement, less his net earnings during such periods; deducting, however, from the amount otherwise due to him monies received by him during said periods for work performed upon Fed- eral, 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 governments which sup- plied the funds for said work-relief projects; (d) Immediately post notices to its employees in conspicuous places on its docks and on its vessels, and maintain such notices for a period of at least sixty (60) consecutive days from the date of post- ing, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order; that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and that its employees are free to become or remain members of the National Maritime Union of America, Port Arthur Branch, and that it will not discriminate against any employee be- cause of membership or activity in that organization; (e) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10)' days from the date of this Order what steps.the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the amended complaint, in so far as it alleges that the respondent has discriminated in regard to the 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire and tenure of employment or terms or conditions of employment of J. Gorden Rosen and James Blasingame on the S. S. California, F. W. Zinkiewycz and Clarence Buckless on the S. S. Washington, A. P. Lortie on the S. S. Roanoke, and Rufus H. Andrews on the S. S. Australia, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.