Cities Service Oil Co.

In the Matter Of CITIES SERVICE OIL COMPANY and NATIONAL MARITIME UNION OF AMERICA, C. I. O. In the Matter of THE PURE OIL COMPANY and NATIONAL MARITIME UNION OF AMERICA, C. I. O. In the Matter of THE TEXAS COMPANY and NATIONAL MARITIME UNION OF AMERICA, C. I. O. Cascs Nos. C-1270 to C-1272 inclusive.-Decided Jinly 3, 19 ^1) Jurisdiction : water transportation industry. Unfair Labor Practices Interference, Restraint, and Coercion Refusal to grant passes to representatives of Union certified as collective bargaining agency of respondents' unlicensed personnel in order to go aboard vessels to confer with the unlicensed personnel an "interference" with the right of those employees to bargain collectively concerning grievances through representatives of their own choosing, within themeaning of Section 3 (1) of the Act Remedial Orders, Grant passes to representatives of Union in order that they may meet with the unlicensed personnel of the respondents aboard their vessels, subject to such conditions on the use of the passes as will be arrived at through collective bargaining between the respondents and the Union. Mr. Martin I. Rose and Mr. Albert Ornstein, for the Board. Frueauff, Burns, O'Brien c!' Ruch,, by Mr. Ross W. Lynn, and Hatch ci Wolfe, by Mr. Carver W. Wolfe, of New York City, for respondent Cities Service. Vinson, Ellcin.s, Weems d Francis, of Houston, Tex., by Mr. Kelly Bell and Mr. David 7'. Searls, of Chicago, Ill., and Mr. Edward D. Rohbacli and Mr. Carver W. Wolfe, of New York City, for respondent Pure Oil. Mr. Albert E. Van Dusen, of New York City, for respondent Texas Company. William L. Standard, by Mr. Max Lustig, of New York City, for the Union. Mr. Stanley D. Metzger, of counsel to the Board. 25 N L R. B No. 12. 36 CITIES SERVICE OIL COMPANY DECISION AND ORDER STATEAIEET OF THE CASE 37 Upon charges and amended charges duly filed by National Maritime Union of America, C. I. 0., herein called the Umoil, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaints dated January 3, 1939, and its amended complaints dated January 28, 1939, against Cities Service Oil Company, The Pure Oil Company, and The Texas Company, sometimes herein called, respectively, respondent Cities Service, respondent Pure Oil, and respondent Texas Company, and collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of the complaints, amended complaints, and notices of hearing thereon were duly served upon the respondents and upon the Union. With respect to the unfair labor practices, the complaints, as amended, alleged in substance that the Union, having been certified by the Board as the exclusive representative for the purposes of col- lective bargaining of all the unlicensed personnel employed on the respondents' tanker vessels, sought and was refused by the respond- ents, in June 1938 and at all times thereafter, passes to its representa- tives for the purpose of obtaining access to the employees represented by the Union on board the respondents' vessels, and that by such refusal to grant passes the respondents interfered with, restrained, and coerced, and are interfering with, restraining, and coercing their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (1) of the Act. In their answers the respondents admitted refusing passes to the representatives of the Union, but denied the alleged unfair labor practices, and interposed several affirmative defenses to the allegations of unfair labor practices. Pursuant to notice, a hearing was held at New York City from February 3 to 15, 1939, before James C. Paradise, the Trial Examiner I On August 3, 1938, pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Seises 1, as amended, the Board ordered the cases of the respondents herein, and the case of Continental Oil Company, Case No II-C-1762, consoli- dated for the purpose of hearing On January 13, 1936, the Boai d; pursuant to said Rules and Regulations, ordered the Continental Oil Company case severed from the consolidated cases of the respondents herein On January 14, 1939, respondent Pure Oil moved for vacation by the Board of its order of consolidation of the cases of the respondents herein On February 2, 1939 , the Boaid denied the motion 283036-42-\ of 25-4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - -duly designated by the Board. The Board, the respondents, 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 evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence He denied the respondents' motion to dismiss the complaints on the grounds stated in their answers. He denied the respondent's mot ion to strike the testimony of David J. Saposs, Chief Economist for the Board, on the ground that Saposs was not qualified as an expert t<' testify concerning the problem of access to personnel on board the respondents' vessels. In connection therewith, the Trial Examiner also overruled the respondents' objections to the admission into evi- dence of certain exhibits comprising authoritative opinions appearing" in publications, prevalent collective agreements in the shipping in- dustry and in other industry, and historical material, relating to the, problem of access to employees in their place of employment by their representatives for the purposes of collective bargaining. The re spondents except to the rulings on the admissibility of these exhibits on the ground that insufficient time was allotted to them (1) in order to prepare adequately for cross-examination of Saposs thereon, and (2) to rebut the exhibits with appropriate and-additional excerpts from publications. They except also to the Trial Examiner's ruling excluding their offer into evidence of the entire books from which the Board inserted excerpts into the record. We have considered these exceptions in the light of the entire record and conclude that the vari- ous rulings of the Trial Examiner were not prejudicial.2 The rulings are hereby affirmed. The Board has reviewed all other rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 28, 1939, the Trial Examiner issued his Intermediate Re- port,, copies of which were duly served upon the respondents and upon the Union. The Trial Examiner found that the respondents had engaged in unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and Section 2 (6) and (7) of the Act, and recom- mended that the respondents grant passes to representatives of the 2 For judicial recognition of Mr . Saposs' expertness in labor relations , see N L R. B. v Griswold Manufacturing Company, 106 F. (2d) 713, 723 (C C A 3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association of Iron, Steel and Tin TPorters of North America, Lodge No 11.99, 6 N I. It B 298; N L R B v Pennsylvania Greyhound L'nes, Inc. et al, 303 U S 261, 267, rev'e 98 F (2d) 178 (C C A 3), and enf'g Matter of Pennsylvania Greyhound Lives, Inc , et al and Local Division No 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N L R B 1 ; N L R. B y Highland Park Manufacturing Company, 110 F (2dl 6'-12 638 (C C A 4) ent'g Matter of Highland Pail, JRunifactaring Co and Tei;tilc. Workers Organizing Committee, 12 N L. R B 1238 CITIES SERVICE OIL COAIPAN Y 39 TJnion for the purpose of boarding their vessels at all reasonable hours ii order to meet with the unlicensed personnel thereon. On May 25 and 27, 1939, the respondents filed their exceptions to the Intermediate Report, and on July 1 and 5, 1939, their briefs in support thereof. On May,26, 1939, the respondents moved the Board to reopen the record and for leave to introduce newly discovered evidence. On July 1, 1939, the Board granted the motion. Pursuant to notice, a hearing was held at New York: City from September 25 to October 14, 1939, before James C. Paradise, the Trial Examiner duly designated by the Board. The Board, the respondents, 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 evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 22, 1940, pursuant to an order of the Board dated October 20, 1939, the Trial Examiner issued his Supplemental Inter- mediate Report, copies of which were duly served upon the respond- ents and upon the Union. The Trial Examiner reaffirmed silbstan- tially-'therein, the findings and recommendations contained in his Intermediate Report. On February 17 and 20, 1940, the respondents filed their exceptions to the Supplemental Intermediate Report, and on March 23 and April 1, 1940, their briefs in'support thereof. In their briefs, the respondents contend, among other things, that they were prejudiced by the conduct of the Trial Examiner at'the reopened hearing a- in (1) attempting to break down "key" witnesses for the iespondents4 by extensive cross-examination, and (2) ruling incon- sistently on objections as between union witnesses and the respondents' witnesses, as to.similar testimony, and were thereby denied due process of law andh its right to a fair and' impartial hearing. We have ex- amined and reviewed the record of the instances, at the reopened hearing - cited' by the respondents in support of their contention.' lVe 3 No contention of bias on the pai t of the Trial Examinei at the first hearing is made ; counsel for respondent Pure Oil stated at the oral argument that "Air Paradise [the Trial Examiner] in the first heaung, in my opinion, was pretty fair 4 And, in one instance, a witness for the Union whose testimony allegedly embarrassed the Union's rebuttal at the reopened healing 5 The respondents, in their briefs ( both respondent Pure Oil and respondent Texas Com- pany refer to respondent Cities Service's Supplemental Brief in this connection), cite two instances of alleged inconsistent rulings by the Tiial Examiner We have read the tran- script surrounding these rulings and conclude ( a) that, under the circumstances , consider- ing the state of the record when the rulings weie made , the Trial Examiner was entirely correct in his respective rulings ; ( b) that , even if incorrect , the i uhngs were in no sense 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are of the opinion that the respondents were afforded full opportunity to give evidence material to the issues, that they were not denied due process of law, and that they were accorded a full and fair hearing; that the conduct complained of Was not prejudicial to them. We are impressed that the Trial Examiner, was entirely fair and that his conduct'of the long reopened hearing was commendable. Pursuant to notice duly served upon all parties, on request therefor by the respondents, a hearing was held before the Board in Washing- ton, D. C., on April 25, 1940, for the purpose of oral argument. The respondents and the Union were represented by counsel and partici- pated in the argument. The Board has considered the respondents' exceptions to the Inter- mediate Report, to the Supplemental Intermediate Report, and-to the record, and the respondents' briefs in support thereof, and except in so far as they are consistent With the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in 1 he case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF TI-IE RESPONDENTS Cities Service Oil Company is a Pennsylvania corporation , having its main office in New York City; it is a subsidiary of Cities Service Company, a Delaware corporation . It is engaged in the production, refining, marketing , and transportation of petroleum and petroleum products, and operates refineries in the States of Massachusetts, New Jersey- and Pennsylvania . It operates a fleet of 14 ocean-going oil tankers which transport approximately 20,000,000 barrels of petroleum and petroleum products annually between ports on the Gulf of Mexico and ports on the North Atlantic. The Pure Oil Company is an Ohio corporation , having its principal office in Chicago , Illinois. It is engaged in the production , refining, marketing, and transportation of petroleum and petroleum products, and operates refineries in the States of Texas , Ohio, West Virginia, Oklahoma, and Pennsylvania. It operates 4 ocean-going oil tankers which transport more than 6,000,000 barrels of petroleum and petro- leum products annually between ports on the Gulf of Mexico and ports on the North Atlantic. important or prejudicial , and (c ) that the iuhngs do not indicate any bias on the pact of the Trial Examiner With regard to the respondents' second contention , that the Tual Examiner cross- examined their witnesses, and, in one instance , a union witness, extensively for the purpose of destroying the effectiveness of their testimony , our examnation of the record leads to the conclusion that the contention is invalid "Where the testimony given is controN ersial, these is no prejudice in the Examiner 's examination of the key witnesses " Jefferson Elec- hic Company v N L B B, 102 F ( 2d) 949 , 9•;4 (C C A 7) The examination coin- plained about, moreover, was neither excessive , prejudicial , nor Indicative of bias CITIES SERVICE OIL COMPANY 41 The Texas Company is a Delaware corporation, having its main office in New York City; it is a subsidiary of The Texas Corporation, a Delaware corporation. It is engaged in the production, refining, marketing, and transportation of petroleum and petroleum products, and operates refineries in the States of Texas, Oklahoma, Kentucky, Illinois, Wyoming, and Colorado. It operates a fleet of 27 ocean-going oil tankers which transport approximately 46,000,000 barrels of petro- leum and petroleum products annually between ports on the Gulf of, Mexico and ports on the North Atlantic. We are concerned herein only with the tanker-vessel operations of the respondents. The respondents admit that they are engaged in interstate commerce. We find that Cities Service Oil Company, The Pure Oil Company, and The Texas Company are engaged, in the operation of their tanker vessels, in traffic , transportation , and commerce among the several States of the United States, and that their employees thereon are directly engaged in such traffic, transportation, and commerce. II. THE ORGANIZATION INVOLVED National Maritime Union of America is a labor organization affili- ated with the Congress of Industrial Organizations. It admits to its membership the unlicensed personnel employed on the respondents' oil tankers. III. THE UNFAIR LABOR PRACTICES A. The complaints and the contentions of the parties The complaints allege, and the respondents admit, that, in June 1938 and thereafter, the Union , having been certified as the exclusive representative for the purposes of collective bargaining of all the unlicensed personnel on board the respondents' oil tankers, sought and was refused by the respondents passes for the purpose of access by its representatives to the unlicensed personnel on board the respond- ents' vessels . The sole question in the case is whether , as the com- plaints allege, such refusal to grant access by the respondents interfered with, restrained , and coerced , and is interfering with, -restraining, and coercing, the respondents' unlicensed personnel in their exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8 (1) of the.Act. The Union contends that, under the circumstances of the operations of the respondents herein, " it denial of passes- to its representatives interferes with the right of the unlicensed personnel to bargain col- lectively through representatives of their own choosing and to engage See Section III C 1, infra 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in concerted activities for their mutual aid or protection. The Union states that the limited and staggered shore leave granted to the unli- censed personnel during the short time the oil tankers are in port renders impracticable other means of contact between their representa- tives and the unlicensed personnel for the purpose of ascertaining grievances, settling them if possible, informing the unlicensed person- nel of the latest union news, and dues collection. The Union contends that long-settled grievance procedures, nearly universal in American shipping, provide for boarding of vessels by "shore delegates,"',who, are experienced seamen and negotiators; these delegates meet with the unlicensed personnel on board the vessels, centralize and weed out minor grievances over food, overtime, and living conditions, and settle those possible of settlement with the officers in charge of the unli- censed personnel or, if unsuccessful, with the shore representatives of the shipping operators who also board the vessels, when they arrive in port. The Union contends that inability to obtain access for its representatives eliminates the recognized first step in the handling of grievances and thereby frustrates the entire grievance procedure. Therefore, the denial of passes results in the break-down of the only feasible method for bargaining concerning grievances, and interferes seriously with the right of the unlicensed personnel to bargain con- cerning grievances through representatives of their own choosing. The respondents contend that denial of access at most merely inconveniences the Union, and is therefore not an "interference" within the meaning of Section 8 (1) of the Act; that the presence of shore delegates on board their vessels would create a hazardous condition, on, and interfere with the efficient operation of, their vessels; that to require the respondents to grant access to shore delegates would be depriving them of their property without, due process of law, thereby contravening the Fifth Amendment to the Constitution of the United States; and that to require the respondents to grant access to repre- sentatives of the Union here involved would force them to grant access to representatives of all unions desirous of coming on board their vessels, in order to avoid accusations of "discrimination." B. Interference- with, the exercise of the rights guaranteed in Section 7 resulting from the denial of access 1. The operations of the respondents The respondents, among them, operate 45 ocean-going oil tankers which ply between Gulf of Mexico ports, including Galveston, Beau- mont, Houston, Corpus Christi, and Port Arthur, Texas, and North Atlantic ports, including New York City, Boston, Philadelphia, Port- land, Maine, and intermediate ports south of Cape Hatteras, North CITIES SERN71CE OIL COMPANY 43 Carolina. Gulf to North Atlantic trips require 8 to 9 days each way; and Gulf to south of Cape Hatteras trips, 4 or 5 days each way. Ves- sels spend approximately 24 hours in port at discharge (North Atlantic) ports, and approximately 24 to 30 hours in port at loading (Gulf) ports? The usual tanker crew comprises 37 men, 28 of them unlicensed personnel, distributed as follows : 11 in the deck department, 11 in the engine department, and 6 in the stewards' department.t Sea watches are maintained for certain employees while the vessels are in port, while certain other employees work on "day work." Watches are 4 hour shifts, with 8 hours off duty between shifts. A seaman "stands watch" 8 hours per day, i. e., a seaman standing watch from 4 a. in. to 8 a. in. will be off duty 8 hours, until he serves again from 4 p. in. to 8 p. in. "Day work" comprises 8 hours of work from 8 a. in. to 5 p. in. with 1 hour off for lunch between 12 in. and 1 p. In.; stewards work 8 hours a day between 6 a. in. and 6 p. in., with 2 hours off in both the forenoon and the afternoon. The following table indicates those of the respondents' employees who stand watch and those who' work "day work" : epartment Number of seamen who stand watch Number of seamen who work "day work" Deck------------------------------ 9 2 Cities Service _________________________ Engine--------------------------- 6 5 Steward I - ------------------------- -------------- 6 Deck-- -------------------------- 2 3and6 6 and 3, 2 Pure oil ------------------------------- Enrgine----------------------------- I 3 8 Steward -------- -------------------- -------------- 6 Peck------------------------------- 3 7 Texas Company = ___________-________ Engine -- -------------------------- 33 47 Steward----------------------------- 5 I As stated above, stewards work 8 hours between 6 a in and 6 p. m 7 In discharge ports three deckmen stand watch and six work "day work"; in loading ports six deckmen stand watch and three work "day work", at all times in port the remaining two deckmen work "day work " 3 On four vessels three watertenders are employed in the engine department , where so employed they also stand watch in port 4 Three oilers and two wipers are on "duty" about 6 hours a day , two pumpmen work 4- or 8 -hour shifts and sometimes overtime when discharge operations require it. Barring overtime work, therefore, stewards may enjoy shore leave (except for the 2-hour intervals in morning and afternoon)] only after 6 p. m.; deck and engine-room men who stand watches cannot be absent from the vessel for more than 8 hours, including the time re- °"fort time" is calculated from the moment the vessel ai rives in the han bor until it leaves the harbor ; it does not indicate the elapsed time spent at the dock whether or not a vessel docks immediately upon ai rival in poet depends on various circumstances, a. e, whether a dock is vacant and available for use, whether it is night or dav, since ordinarily oil tankers do not dock at night , and tide and weather conditions Generally, it appears that the vessels remain at the dock approxnnately 1 dav and night e Slight variations in the number occur, these are noted in the table above 11 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quired by them to prepare for their departure and return,9 and they cannot all leave the vessel simultaneously since their watches termi- nate at different times; those of them who are on "day work" cannot leave the vessel until after 5'p. m.,10 while pumpmen, due to frequent overtime requirements,h1 often are unable to leave the vessels at all in discharge ports. Although some of these tanker seamen have families and homes in various ports, while employed on the vessels their homes are actually on the ships, for it is on board that they eat, sleep, and work. More- over, even those who have homes can only visit them when the vessels happen to arrive in those ports in which the homes are located, and then only during the time normally allotted by the regular ship schedules. The respondents employ approximately 1,300 unlicensed seamen. As in the shipping industry generally, there is a large turnover in employment among unlicensed personnel in the tanker indnstry.'2 2. The relation of the right of access to the exercise of the rights guaranteed in Section 7 Section 7 of the Act provides that "Employees shall have the right 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." Since grievances concern "conditions of work" within the meaning of Section 9 (a) of the Act, they are proper subjects for collective bargaining. It follows that Section 7 guarantees employees the right to bargain collectively concerning grievances. The Union herein is the certified collective bargaining representative of all the unlicensed personnel employed on the respondents' vessels. Therefore, any "interference" with the employees' rights to bargain collectively concerning griev- ances through their duly designated representative, the Union, is proscribed by Section 8 (1) of the Act. °The respondents' vessels have one or two shoiacrs for bathing purposes, which ate gen- erally used by seamen before going on shore : it is the custom to "sign off" and "sign on" shipping aititles at the conclusion of each round trip; "advances" on salary are often secured by seamen in port after mooring operations, which occupy approximately 1 hour Tn sum, approxmnately 3 hours will have elapsed before a seaman who, for example, is "off duty" from 3 a in , immediately after the ship is moored, until 4 p. M., will be able to go aahoie, if lie peifotins the usual operations above outlined 10 And, most likely, not until after 6 p in , since they ordinarily "clean up" and eat dinner before going ashore - 11 See Hours, Wages, and TPorksng Conditions in Domestic Water Tiansportation, federal Co-ordinator of Tiansportation, Section of Research, Vol I, pp 34-5 (1936) When ves- sels are in discharge ports, the pumpmen must nian the pumps which force the oil out of the ship Depending on the grade of oil, i e , thick or ciude oil, the punipinen may be on duty the entire time during which the vessel is at the dock See Flours, Wages, and Working Conditions in Domestic Water Tiansportation, Federal Co-ordinator of Tiansportation, Section of Research, Vol I, pp 175-176 (1936). This tuunovei in ouipkn-uient iil,o occurs on the respondents' vessels CITIES SERVICE OIL COMPANY 45 We must determine herein whether or not denial of passes to repre- sentatives of a certified union for the purpose of obtaining access to the respondents' vessels in order to confer with the unlicensed person- nel thereon interferes with the rights of the unlicensed personnel to bargain collectively through representatives of their own choosing con- cerning grievances. In order properly to so determine, we must be cognizant of and examine the usual methods of dealing with griev- ances in the tanker and shipping industry, the necessity for such procedure in view of the living conditions of the seamen, whether other possible methods are effective, and the importance of "outside" representation in dealing with grievances in modern industry, including the shipping industry. The term "access" in the shipping industry means the boarding of vessels by union representatives, known colloquially as "shore dele- gates," in order to ascertain whether or not seamen on board have grievances, to determine the validity of the alleged grievances, and to settle those possible of settlement with the proper officials on board the vessel.13 The shore delegates are experienced seamen and negoti- ators, whose jurisdiction includes all of the tankers which arrive in the port in which they are on duty.'' The shore delegate functions as follows : He boards the vessel immediately after it is moored to the dock, proceeds to the crew's quarters or the messroom, and confers with the ship's delegates, consisting of one man each from the deck, engine, and stewards' departments, who relate to him the various grievances, if any, concerning food, living conditions, or overtime pay which have arisen, during- the voyage.15 The shore delegate then interviews the allegedly aggrieved seaman and decides whether the iS These officials are the heads of the depaitments • chief engineer, chief steward, and first mate , of a licensed officer directly under them ; the Master , who is the chief officer on board; and the shore representative of the operator, who boards the vessel when it docks to transact company business with the Master 14 Regarding the duties of shore delegates , or "pati olmen." Section 1 5 of the Constitution of the Union provides : Patrolmen shall be assigned to regular districts around the harbor They shall visit the crews of all the vessels in the port ; to collect dues, to carry the latest news of the Union to the crews on the ships; to enforce agreements with the em- ploy ers ; to advise and discuss with the nmmbei s them grievances and the adjustment of the same whenever possible . . . The record shows that the shore delegate collects dues and distributes copies of "The Pilot," official publication of the Union , to seamen ; it also shows that only on "rare" occa- sions does he solicit new meinbei s, and then only when requested by the applicant through a ship delegate. His principal function is to handle gi ievances i5 Grievances usually involve one or more of these basic conditions of w oik The record, although not entirely cleat as to the line between "nialoi" and "nunor" grievances con- cerning conditions of work , indicates that shore delegates attempt to settle "minor " griev- ances with Masters, who have the requisite authority to settle them "Major" grievances are refeued by the shore delegate to the Union Port Committee; they constitute, generally, differences of judgment as to standards of employment conditions For'example , an inci- dent testified to involved a dispute concerning the payment of a "war-zone bonus" to sea- men on a ship which harbored in the Canaiy Islands during the Spanish Civil war; the parties could not agree as to whether or not the Cana i y Islands wei e within a "war-zone " and the dispute was referred to the Union Port Committee by the shore delegate 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance is valid, using as a guide his long experience and intimate knowledge of the nature of seamen's grievances, their attitude to- ward them, and the problems of the tanker industry. Generally, be- fore deciding its validity, the delegate learns the position of the mates or department. heads on the alleged grievance.1e If he decides it is a valid grievance he then attempts settlement with the department heads, the Master, or the shore representative of the company who is usually on board at the time the shore delegate is present. If these consultations fail to settle the grievance, the shore delegate. refers the grievance to the members of the Union Port Committee on shore, who proceed to discuss the grievance with the company's shore officials. The record indicates that a large proportion of grievances are settled on the ship by the shore delegate. It is apparent that under this grievance procedure, which involves access, the seamen have complete opportunity' to confer with their duly designated representatives, who are well equipped by training and experience to assess their grievances, and who are expert nego- tiators.li Authorities in the. field of labor relations and economics agree that it is of great benefit for employees to be represented by "outsiders" in bargaining with management. As Carroll R. Daugherty states : 1s The business agent is so important a figure that he deserves special discussion. His chief functions usually include: (1) bar- gaining with employers on local matters, such as wages and hours; (2) the adjustment of workers' grievances with employ- ers . . . The conditions responsible for the creation of the office of business agent are as follows: (1) the ignorance and lack of bargaining skill on the part of most local members; (2) the frequent discharge ' by employers of workers who used to act on shop committees to uphold fellow-workers' grievances; (3) the lack of time which prevented other officers from dealing properly with union business. 19 Mr Saposs testified ( at pp 525-6 of the transcript) As I understand the procedure of unions, they would want . . not only to contact the shop chairman or steward . . , they also want to contact the men who have the grievances in order to familiarize themselves with the grievances Then they want to contact a representative of the management under whom this particular man worked directly so as to find out what his reaction is, because a union does not just accept any statement of a grievance from the member without first checking up. And they want to check it by contacten both sides Then , after that has been contacted , the representath e of the union would proceed to attempt to adjust it, if lie considered that the grievance was a Juat grievance . That is my understanding as to how unions proceed. 17 Shore delegates must have had, before appointment to their positions. 3 years' actual sea service, and experience as seanien on tankers ; Howard McKenzie, a union official, testi- fied that "all of the patrolmen [ shore delegates ] that I know of that board these tankers have had anywhere from five to ten years experience on these tankers •" 18Labor Yioblenis an American Industry, Carioll R Daugherty ( rev ed ), New York, 1938, pp. 421-22 CITIES SERVICE OIL COMPANY 47 E. E. Cummins writes in a similar vein : 19 The office of business agent has grown out of the obvious dis- advantages which attend bargaining by unpaid officials. These the employer is quite apt to regard as undesirable agitators, and if he does not actually discharge them, he will usually find other means of punishment. Then again, the employees are not, like the employer, versed in bargaining tactics and cannot negotiate with him on equal terms. The situation demands a man who is qualified by experience, or by uuuite ability, or by both, to bargain in a shrewd and competent maluler, and who can devote the necessary time and energy to the performance of this vital task.20 We find that this procedure, involving access, is necessary for the protection of the right of the employees to bargain collectively through representatives of their own choosing as guaranteed in Section 7 of the Act. The respondents urge, however, that there are other methods by which the seamen and -their representatives may confer. We have examined the record and have discovered two such additional -possible methods. The first is for the seamen to take their grievances ashore to union headquarters, where union officials discuss the grievances with the seamen and then attempt to settle them with the company's officials on shore. The record shows that this method, has serious disadvan- tages. In the first place, as Ave have noted above, the seamen have a limited opportunity to go ashore, and union headquarters are not read- ily accessible in terms of distance from the docks, closing time,21 and cost-of reaching them.22 Secondly, during that limited time ashore, seamen wish to spend their time in shopping, in visiting families and friends whom otherwise they have little opportunity to see, and in normal recreation such as "going to the movies." Thirdly, even if these obstacles are overcome, the procedure whereby aggrieved seamen ,visit union headquarters for the presentation of grievances' does not provide an adequate method of collective bargauiing. For it would mean, as Howard McKenzie, a union official, testified, that union head- quarters would be "swamped" with a multitude of minor grievances which its staff could not handle because of their very number; also, The Labor Problem in the United States, E. E Cummins ( 2d ed ), New York, 1935, pp 167-8. a See also Hearings before the Committee on Education cC Labor, U S Senate, on S 2926, To Create a National Labor Board (74th Cong., 1st Sess ), Pait I, p 208, statement of Prof Paul H Douglas, Univ . of Chicago ; Gemmlll , Paul F , Pi esent Day Labor -Relations (1929), pp. 183-184, 187, 188 ; House Report No 111, (74th Cong. 1st Sess ), 1Ir. Connery, Committee on Labor , to accompany S 1955 , pp 9-10 21 Union halls close, at 5 p. in The Union's staff iioiks the usual 8-11our da} . to keep open at night would reguiie an augmented staff at additional expense In some ports union halls can only be reached attei seieiat bus trips, am oth'as, only after train rides ; and in still others, only be taxicabs 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these grievances necessitate interviews not only with the aggrieved seamen, but likewise with his shipmates, and, more important, with his superior officers, in order to judge whether it is a valid grievance worth pressing; and quite often these grievances necessitate viewing the ship in order to form, intelligently, an opinion as to their merit. The respondents state, however, that they are willing to permit shore delegates on board vessels where such access is "necessary" for the set- tlement of a particular grievance: where the particular grievance necessitates a view of the ship. Although this proposal possesses, surface plausibility, its operation would be extremely doubtful as pro- tection for the rights guaranteed to the employees by the Act. In the first instance, the determination of "necessity" would rest in the hands of the respondents; any dispute concerning "necessity" would be re- solved by them. On the other hand, if this determination of "neces- sity" were to rest with the Board, eve )voulcl be deciding the question long after it arose; 23 in the meanwhile the grievance itself would have gone unsettled and the aggrieved seamen, clue to the turn-over in the industry, would probably have scattered. Secondly, this procedure overlooks completely what is probably the most important element in, access: the benefit to the seamen in the first instance of the advice of experienced, non-crew negotiators well versed in the ability to "spot" a grievance as valid or invalid, prior to "settling" it; this factor is independent of any "necessity" to view vessel conditions in order to settle a particular grievance. In connection with this method, absent, access, it is suggested that the seamen meet with the shore delegate as they leave the vessel. But this method is also inadequate, since the shore delegate must, thereunder, meet with the seamen individually, losing thereby the benefits of the opinions of the other seamen, the opportunity to confer with the officers concerning the grievance, and the opportunity to view vessell conditions. In addition, as Lee Arnold, a union member, testified : a patrolman [shore delegate] has many ships, and many men to contact, and to spend the whole day on one vessel, why, you would have to have as many patrolmen as you have members . . . Further, even assuming that the ' shore delegate is on hand in the vicinity of the dock during the entire time that the vessel is in port, both night and day, it is unlikely, in view of weather conditions and the leave schedules of the seamen above noted, that he could meet every member of the crew, or even most of them. The method whereby seamen, in the absence of access, contact dele- gates and union headquarters on shore would operate in conjunction za In addition, we would be called upon to decide the question in peihaps hundreds of cases annually, thereby creating an impossible administrative situation CITIES SERVICE OIL COMPANY 49 with what we shall call, for the sake of clarity, the second or "ship's delegate" method. Under it, if the ship's committee cannot settle a grievance which has been related to it by the allegedly aggrieved seaman, it mails the grievance to union headquarters for further handling. The experience of the union with this scheme has proved that it has serious shortcomings. The reason is not difficult to find. The ship is the seaman's home : he eats, sleeps, and works on board. The turn-over among unlicensed personnel on tankers, as in all ship- ping, is high; crews change often during the course of a year. Union organization has come relatively late to shipping in general, and even later to tankers ; organization on board tankers today is below that of other shipping.24' We find, therefore, that tanker seamen are un- trained as negotiators, shifting so far as stability of employment is concerned, and under almost constant supervision and authority from officers both at sea and in port.25 This combination of circumstances is hardly calculated to, nor does it, insure courageous negotiation on behalf of aggrieved seamen. The testimony of Ernest Daniels, a union member, that "fear" of losing their jobs prevents ship delegates from functioning properly, and that Masters will not "recognize" them as spokesmen for allegedly aggrieved seamen, further supports our finding that, in light of the present position of seafaring men, "outside" representation is of great importance for collective bargain- ing. In the absence of access, the Union has operated under these two methods of handling grievances for the unlicensed personnel on board the respondents' vessels. The result has been dissatisfaction with, and disaffection from, the Union; some 30 per cent of the Union's members on board the respondents' vessels have quit the Union since access has been denied. Summing up, we have here a situation where seamen are in port for a short time with very little time to go ashore, and then only in small groups; where union halls are not readily accessible and shore dele- gates few in number with a multitude of dutie-, ; where seamen spend the few hours that they have ashore in normal recreational pursuits; where, in a practical sense, grievances cannot adequately be settled by ships' committees because of the nature of the industry, the nature of the seamen, and the traditional subservience of the seamen to the Masters; and where grievances cannot be settled ashore in the first instance owing to the impossible practical difficulties to the Union, above noted, incident to such settlement. We find that these "addi- 24 Report of the Maritime Labor Board to the President and to the Congress, March 1, 1940, pp. 57, 242. At p. 242 the Report states The very limited scope of collective bargaining . . . on the oil tanker continues to be a potential source of industrial conflict. 25 Ibid., at pp . 24-26. u0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional" methods do not afford the seamen effective opportunity to bar- gain collectively concerning their grievances. In contrast with these methods is the normal grievance procedure of maritime unions, involving "access," which we have described above; this grievance procedure is common in the shipping industry today.26 The Union herein has the right of access by its representa- tives to approximately 95 per cent of all American ships,27 excluding tankers; it has access to ships of approximately 50 per cent of all American tanker shipping companies.213 The right of access is a common provision in contracts to which the National Marine Engi- neers' Beneficial Association, the American Radio Telegraphists' As- sociation, the National Organization of Masters, Mates and Pilots of America, and the Sailors' Union of the Pacific are parties. Nor is the practice of access confined to the shipping industry. Union representatives are permitted to enter the shop for the purpose of discussing grievances with the employees in the shoe, fur, mens clothing, women's clothing, bakery and confectionery, upholstery and floor-covering, cement and plaster, bricklaying, plumbing, leather, automobile, flat-glass, shipbuilding; rubber, brewery, gas, coke, and chemical, electrical, radio and machine, and printing industries.20 - In- deed, if employees consider access so important in industries wherein employees live on shore and have ample opportunity after work to carry on union business, a fortiori they deem it necessary where con- ditions relating to the possibility of the employees conferring with their representatives are more tenuous.10 20 Nor does the present general practice of access indicate recent ougin Access has been in use more than 35 years ; see Report of the rltar ituae Labor Boat it to the President and to the Congiccc . March 1, 191x9, pil 37-40; Petersen 'Walter J (General Manages, Em- ployment Service Bureau , San Francisco), Macine Labor Union Leadership, Jan 1925 p 12; -Forsyth, Ralph Kendall, "The Wage Scale Agreements of the Maritime Unions," The Annals of the American Academq of Polrticat and Social Se ence Vol XXXVI, No 2, Sept 1910, p 111 . Healey, James C , Ph D, Labor Problems of the American Merchant Marine, reprinted from Marine Progress 1937, Meri hant Marine Publi,hers, New York City, p 5. Gordon S 'Watkins and Paul A Dodd, The Managenreat of Labor Relations (1938), pp 707-709. Board Exhibits Nos 22. 23, 21, 25 iS 27U S Cong, blouse Committee on Merchant Marine and Fislhe, ies Ilearings on II R .193, Mar itune Labor Bill, 75th Cmng , 1st Sess , May 26, 1937, p 7.1 The United States Maritime Commission also piesently permits access 2' ('riot to the Apiii 1939 strike on Standard Oil of New Jeiscv and Socony-Vacuum tank- er the Union had access thereto; at that time it had access to approximately 75 per cent of all tanker ships Following the strike, which ins olN ed other iosues entn ely, the Union lost access to the tankers of these two companies 2' Board Exhibits Nos 6, 7, 9, 10. 10-A. 11. 11-A. 12 13, 14, 15, 16 . 50 Monthly Labor Reeiew, No 2, February 1940 (U S Department of Labor, Bureau of Labor Statistics), "Settlement of Grievances umdei Union Agreements." D 296 "See Natienil Lndustiial Recovery Administration, Hear iaq on Code of Fair Practices and Conrpetitioaz Presented by Shipping Industry (U S Department of Commerce, NRA Recoids Section), Appendix, Nov 10, 1933, pp 44, 51, 52,'56, 57, 58, 69, 70, 72, 79, 80, 82-83, 83, 86-87, 87, 90, 304-306, Jan. 31, 1934, pp 239, 248, 258, 262-63, 267-68. At the hearing nepiesentatives of practically all American marine unions submitted clauses to be included in the Code providing for access by union representatives to seamen , on ves- sels for the purpose of cmilerring ri ith them ; the Code itselt was never adopted, however See also National Recovery Administration, Appendix' to history of the Proposed Code of CITIES SERVICE OIL COMPANY 51 The respondents, however, object strenuously to the Union's re- quest for access. They contend that the regulations of the Bureau of Marine Inspection of the United States Department of Commerce prohibit "visitors" from boarding vessels carrymg^ inflammable ma- terial during the transfer of cargo; therefore, due to the presence on tankers of combustible gases, union representatives must be ex- cluded from the vessels since carelessness by visitors may result in Fair Competition foi the Shipping Industry (Geneial Shipping Code), lteeistiy No 1417-23, pp 27-30, wherein, in a letter dated May 14, 1534, to Dr Leo Wolman, Chair man of the Labor Adusory Board of the National Recovery Administration, V A Olander and Tames 7. Delaney, Labor Advisers in re'ation to seamen and to licensed officers, respectively, stated : To effectuate the policies of Title I of the National Indnstiial Recovery Act, the pending Code of Fair Competition for the Shipping Industiy should be amended by adding to Article V thereof (relating to labor) the following section SecrioN 14 Aiiangements shall be made under the direction of the National Shipping Labor Board having jurisdiction over crew of ships, or the _Admmistia- tor, whereby the authorized representatives of oiganizations of labor in the, indus- try shall have the right, under suitable regulations and limitations to be prescribed by such National Shipping Labor Board, or the Admnustiator, to go on board the ships in harbor for the purpose of consulting with members of the crews The piactice of isolating seamen on board ship, in such manner that they are con- fronted with extreme difficulties in organizin, and maintaining contact with the labor organization,, prevails in the Shipping Indrstry to such extent as to form an effective and widespread barrier against the application of the policies of Title I of the National Industrial Recovery Act, especially as relating to the declaration of policies in the Act and in Sections 4 and 7 of the Act All seamen (excepting relatively few on certain classes of harbor craft) reside on board the ships where they are employed Tlhey live in quarters which are reserved for their personal use by law The ship owners to a very large extent, insist that no person may visit seamen on board ship, even in the In mg quaff tens of the seamen, without the consent of the employer who owns the ship It is much like saying that no tenant may have visitors except with the consent of the landlord All seamen work under contract or "Articles" in which wages and various condi- tions are specified as a matter of law While under "Articles," seamen may go ashore only with the consent of the master They are subject to orders ei en when "off watch In many instances, they serve on watches and perform duties which require them to remain on board at the time meetings of labor organizations take place ashore The majority of employed seamen ,ire at sea when union meetings are held on shore Great numbers, especially in the coastwise, Great Lakes, Buy and Sound trades, serve on vessels whose stay is of such short duration as to make it impossible for members of the crew to obtain shore leave tot more than a few hours and frequently not at all. Under the conditions inherent in the calling (accentuated by activities of ship owners and their associations) it is manifestly impossible for seamen to organize, or to maintain and operate effective organizations, unless they lime an opportunity to discuss union affairs on board ship, to meet and consult on board ship with the authorized union representative, and to communicate with seamen on other ships through such representatives In a letter to N R. A Deputy Administrator J. B Weaver, dated May 28, 10:14 (Appen- dix, Exhibit No 63-E), William Green, Acting Chairman of the NRA Labor Advisory Board, wrote - The Labor Advisory Board approves the labor provisions of the Cods of Fair Com- petition for the Shipping Industiy as revised May 24, 1974, with the reservation set forth in the attached memorandum of May 14, by victor A Olander and James J Delaney 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fire or explosion. We need not determine whether a union repre- sentative, boarding a tanker on necessary union business, is a visitor within the meaning of the safety rules. The record shows that at least on the vessels of respondents Cities Service and Texas Company the rule is not'strictly observed and that it is "comnmon practice" for friends and relatives of the officers and unlicensed personnel to come aboard. The record also shows, as indicated above, that the practice of granting access is widespread in the tanker industry; there is no showing whatever that the question of the safety regulations of the Bureau of Marine Inspection has ever been raised as a bar to the granting of access by any of the shipping companies which grant access. Respondent Pure Oil itself permitted union representatives access to its vessels at Marcus Hook, Pennsylvania, for several months after the maritime strike of 1937, prior to an election to determine collective bargaining representatives; the record is barren of evidence that the safety regulations were then advanced as a reason for deny- ing access or that dangerous conditions resulted from their presence on board ship. Further, it is the general practice of all unions which obtain passes to indemnify the shipping operator against any lia- bility resulting from injury to the union representative while on board; the Union is ready to indemnify these respondents in the same manner. Finally, the union representatives-who board tankers are men, who are thoroughly familiar with conditions prevailing on such vessels, and with the safety precautions which must be taken; more so, it would appear, than are the r, friends and relatives'] who are permitted to board the tankers. We find no merit in this con- tention of the respondents. The respondents contend further that the "experience" of the- Standard Oil Company of New Jersey and the Socony-Vacuum Oil Company 31 shows that access to union representatives creates a hazardous condition on tankers because it causes seamen to leave watch in order to confer with shore delegates, and that access inter- feres with the operations of the vessels' because union representatives cause stoppages of work and delays of sailing; they contend that these companies refused to continue their policy of granting access under •contract with the Union, during the negotiations for the re- newal of that contract, because of the stoppages and delays in sailing which had occurred. The record shows that access was granted to representatives of the Union by Standard Oil and Socony-Vacuum beginning in June 1937, before a contract was signed by the parties, until April 17, 1939, 31 rvidence concerning this "experience" occupied almost the entire reopened hearing CITIES SERVICE OIL COMPANY 53 after the contract which was signed in January 1938, providing for access, had terminated. Section 3 of this contract provided : The Company shall permit, by the distribution of passes, the authorized representatives of the Union to board the Company's vessel for the purpose of consulting with the unlicensed person- nel em ployed'thereon, provided however, the Union's patrolmen shall neither violate any provision of this Agreement nor inter- fere with or retard the works of the vessel subject to penalty of revocation of the license granted herewith. Insofar as possible the work of the Union's patrolmen on board the vessel shall be accomplished within two hours. Section 3 also included a provision whereby the Union insured the company against any injury resulting to a shore delegate while on board a vessel. Section 4 thereof continued, inter alia: The Union will not stop, hinder, or restrain, or cause or permit its members to stop, hinder, or restrain, the movement of the Company's vessels, loading; or discharging cargo on same during the life • of this agreement. It is understood between the con- tracting parties that Union members participating in any such stoppage of work shall be subject to discharge. -Much testimony was adduced at the reopened hearing showing that shore delegates remained on board from, according to varying esti- mates, ]/2 to 7 hours, and that seamen left watch to confer with them. Although the leaving of watch without permission creates what a number-of ship's officers termed a "dangerous" condition, and is pun- ishable by discharge, in only one instance was a seaman discharged' for such action; although it was "customary" practice for seamen to leave watch' without permission, no disciplinary action was ever taken, nor were the seamen "logged." 32 The officers who testified stated that the reason for their inaction was a desire, prompted by the companies, to maintain harmonious relations with the Union. Be that as_ it may, if the offense was as serious as the respondents would like to make it appear, it would seem,that some disciplinary action would have been taken or formal protests to the Union made; none were. Accordingly, 'we attach as little weight to this "prac- tice" as did the companies who "winked" at it. The respondents herein may impose such conditions on their issuance of passes as may be determined by collective bargaining with the Union; 'but cer- tainly they cannot urge as a reason for refusing passes the-laxity of Standard Oil Company of New Jersey and Socony-Vacuum Oil Com- 32Events of importance Nxhich occur during the ship's voyage , including personnel prob- lenis are wiitten by the Master into the ship's `log 25;036-42-vol 25-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pony in enforcing the conditions which had been embodied in their contracts with the. Union. The record shows,'that during the period from June 1937 until April 1939, when access was granted to the Union by Standard Oil and Socony-Vacuum, stoppages of work due to short sit-down strikes and delays in sailing, of vessels occurred in "outports," I,, although none occurred in New York. The respondents cite approximately 30 such occurrences,, out of hundreds of times that shore delegates boarded vessels; the bulk of these stoppages was concentrated in the period before the contract was signed, and in the period when the negotiations for a renewal of the contract, in March and April 1939, were proceeding.3" A great mass of evidence was adduced to shown the details of the various stoppages calculated to prose that the shore delegate was responsible for the occurrences. In some instances it appears that the shore delegate was responsible, ii others lie u%as not; in any event it appears to us to be profitless to analyze each such instance, for, in the light of the negotiations for the renewal of the contract between the companies and the Union, they are largely 'irrelevant. With regard to these negotiations, the respond- ents seek to imply that in April 1939, Standard Oil and Socony- Vacuum refused to'continue to grant access because the practice had caused these stoppages. The evidence, however, is to the contrary. In brief review of these contract-renewal negotiations, we find that at the outset Standard Oil, and Socony-Vacuum stated that they would not renew the pass provision unless "the thing could be worked out so that we could be absolutely certain it would be satis- factory," and asked the Union to submit a pass provision for their consideration. Joseph Curran, president of the Union, freely admit- ted that stoppages had occurred through action of shore delegates in outports, and that steps had been taken, both at the, request of the companies and on. the Union's own initiative, to remove those dele- gates who had violated the provision of the contract providing that the shore delegates should not "interfere" with the operations of the vessels on penalty of having their passes revoked. On March 27, 1939, the companies expressed agreement in principle to the issuance of passes, asking- only for proper safeguards against abuses. On March 30 they submitted a proposed pass provision to the Union. Prior to the breakdown of negotiations on April 13, Standard Oil offered to sign a contract containing substantially the same pass pro- vision contained in the previous contract, to which the Union agreed. Finally, on April 13, 1939, when it appeared that negotiations were as Ports other than New York City 34 Stoppages in this latter period occurred, apparently, in older to spur the negotiations to a successful conclusion for the Union. lu CITIES SERVICE OIL COMPANY 55 about to break down on the' principal, but' wholly unrelated, issue of the hiring hall, Chairman, Shaw of, Standard Oil, who acted as principal spokesman for the companies during the contract nego- tiations, stated : If you want to stop and break negotiations Ave will continue operating under the old agreement with regard to our relations with our employees, and we will continue to observe the passes to your delegates in the outports [No "trouble" had occurred in New York, the' "inport"]. As I said, before, if there is any stoppage of work in those outports, those passes will be lifted. It is abundantly clear that neither the principle, of the issuance of passes nor the method of effectuating the principle was in question at the time of the breakdown of negotiations. It is also clear that, although Slia-% was completely aware of the stoppages and delays concerning which much evidence was adduced at the reopened hearing herein, lie did not think that their occurrence affected in any manner the principle of access. He was concerned only that they not occur in the future. Curran was of the same mind and assured him that These problems would be effectively dealt with by the Union. Nor was any mention made at the negotiations of the "practice" of sea- men leaving watch without permission. We are'not impressed that the possibility of stoppages occurring is a valid reason for refusing to grant access; safeguards against interference with vessel operations can be, and have been, easily arrived at. Any other position is tan- tamount to refusing to bargain with a union because it lacks "respon- sibility"; a practice uniformly condemned by the Board.36 W'e do itot believe that the respondents' contention in this regard is a valid reason for denying access. CONCLUSIONS In conclusion, we find that seamen are in port for a short time with very little time ashore, and then only in small groups; that aR See Jlattei of Art Metal Construction Company and International Association of Ma- chinists, Local 1539, affiliated with District #65, of the I. A. 'M. (A F of L ), 12 N L. R B 1307, eni'd as mod Art Metals Const> action Company v N L R. B , 110 F. (2d) 148 (C C A 2) ; Matter of Aionsson Printing Company and Detroit Printinq Pressmen's and Assistants' Union No 2 et at, 13 N L R 1: 799; Matter of Chambers Corporation and Allied Stove llounterd and Stove Processors International Union, Local No. 36 (A F of L ), 21 N L It B S0, ,Matte of Rabho, Company, Inc, a Corporation and International Ladies' Cmmeit 11 oilers Union. 1 N I. It B 470, Matter of Inland Steel Connpan,, and Steel Won kern Oi ganizing Committee et al , 9 N L R B 783 , cf. Matter of Jasper Blacl- burn Products Corporation and District No 9, International Association of Machinists (A F of L ), 21 N L R B 1240 ; Matter of Valley Mould and Zion Coiporation and Steel Workers Organizing Committee et at , 20 N. L R B , No 18 ; Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equip- ment Workers, 2 N L. R B 626 , enf'd as mod N L R B v Remington Rand , Ire , 94 F (2d) 882 (C. C A. 2), cert. denied 304 U. S. 576 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - union halls are not readily accessible and shore delegates few in number with many duties; that seamen spend the few hours the)-, have ashore in normal recreational pursuits; that grievances cannot adequately be settled by ships' committees because of the nature of the industry, the nature of the seamen, and the traditional subser- vience of the -seamen to the Masters; that grievances cannot be set- tled effectively ashore in the first instance owing to the impossible practical difficulties to the Union incident to such settlement; that grievance procedures which do not involve access are, in a practical sense, unworkable, and do not afford the seamen the opportunity to bargain collectively concerning their grievances; that the grievance procedure which involves access is prevalent today, and has long been in use, in the shipping industry; that access is common practice in' land industries' that such procedure, insures to the seamen the benefit gained from representation by expert, non-crew negotiators; that, with access, these representatives may learn the nature of, assess the value of, and properly present grievances on behalf of the seamen ; that, without access, these representatives cannot effectively accom- plish these important tasks; and that the grievance procedure which involves access is necessary for the protection of the right of the em- ployees to bargain collectively through representatives of their own choosing as guaranteed in Section 7 of the Act. We find that all of the objections of the respondents to the granting by them of access are without, merit. In view of these findings and of the entire record, we find that' the respondents, by refusing to grant passes to the duly designated representatives of their unlicensed personnel in order that such rep- resentatives might confer with the unlicensed personnel on board the respondents' vessels, have interfered with, restrained, and coerced, and, by continuing such refusal, are interfering with, restraining, and coercing their unlicensed personnel in the exercise of the rights guar- anteed them in Section 7 of the Act, and are thereby violating Section 8 (1) of the Act. THE REMEDY Having found that the respondents have engaged in and are en- gaging in certain unfair practices, we will order them to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondents have interfered with, re- strained, and coerced their unlicensed personnel in the exercise of the rights guaranteed in Section 7 by refusing to issue passes to their vessels to representatives of the National Maritime Union of CITIES SERVICE OIL COMPANY .57 America, the duly designated collective bargaining representative of the respondents' unlicensed personnel.' We shall, therefore, order the respondents to issue passes to the duly designated representatives of the National Maritime Union of America in order that they may board the respondents' vessels and meet with the unlicensed personnel thereon.36 The number of passes and the conditions governing their use shall be determined by collective bargaining between the respondents and the Union. The respondents contend that if they grant passes to the Union here involved, they will also have to grant passes to all other unions which are the representatives of some employees on board their vessels in order to avoid accusations of discrimination. Since the instant case involves only and union, and the question of discrimina= Lion is not now before us, we do not decide it. 37 3e The respondents' contention that the' Fifth Amendment to the Constitution renders unconstitutional a consti uction of the Act which ciders them to grant passes, since thereby they will be deposed of their "property," is invalid Foi if findings and order are reason- ably calculated to effectuate the policies of the Act, any incidental property deprivation is dannnuin absque injuria See Section 10 (c) of the Act, N. L R B. v Jones & Laughlin Steel Corporation, 301 U. S 1, and companion cases, Texas & Nev, Orleans Railroad Com- pany et at v. Bi otherhood of Railroad it Steamship Clerks et al , 281 U S 548, 568-571 ; Art Metals Constitution Company v. N L. R. B, 110 F. (2d) 148, 150 (C. C. A 2), enf'g as rood Matter of Art Metal Construction Company and International Association of Machinists, Local 15;9, affiliated with District x#65, of the I A M. (A. F. of L ), 12 N. L. R B. 1307. where the Second Cii cuit, per Leained Hand, J , said : if, the argument runs, he [the employer] is foiced to make it a term of any oral agreement that it shall be put into writing, he loses that absolute freedom in negotiation which he had at common law, and which Congress meant to preserve to him But he is no longer wholly free anyway; before the act he was not obliged to bargain with his employees collectively ; lie was at liberty to refuse to negotiate with them at all, or otheiwise than severally. The act impaired that freedom, it meant to give to the employees whatever advantage they would get' ti om collective pressui a upon their employei ; and the question here is what are the fan implications of that grant. They should include whatever is reasonably appro- pi iate to protect it . The respondents contend further that, since the Act is a penal statute, a deteimination that denial of access is a violation thereof would be invalid, since the Act nowhere specifi- cally mentions such denial as a violation, and is, therefore, invalid in that iegaid The contention is without merit ; the Act is not a penal statute. Consolidated Edison Co et at. v N L R. B, 305 U. S 197, 235, 236, aff'g as mod 95 F (2d) 390 (C. C A 2), enf'g Matter of Consolidated Edison Coni))ianq et at and United Electrical and Radio Workers of ,Amer ica (C I 0 ), 4 N L. R B 71 37 The issue as framed by the complaints i elated solely to the question of the right of a ceitified union to secure access; theretme, the Trial Examiner properly excluded, as not germane to that issue, evidence concerning the question of whether minority unions also have the right of access under the Act But see Matter of Amer scan-1Vest African Lines, Inc and Maui Engineers' Beneficial Association, 21 N L R B, 691 , Matter of The Texas Company, Marine Division and National Maritime Union, Port Arthur Branch, 19 N L It B 835, Mattis- of South Atlantic Steamship Company of Delaware and National Maritime Union of America. 12 N L R B 1367; see also Matter of Isthmian Steam- ship Company and Marine Engineers' Beneficial Assn, 19 N L R B 16; Matter of American Fiance Line et al , and International Seamen's Union of America, 3 N L R B. 64, 76, 78-79, cf Matter of Waterman Steamship Corporation and National Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N L R B. 237, enf'd Waterman Steamship Corporation i. N. L R B, 60 S Ct 493. iem'g 103 F (2d) 157 (C C A 5) 58 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. National Maritime Union of America is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of thi Act. 3. 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 respond- ents, Cities, Service Oil Company, New York City, The Pure Oil Company, Chicago, Illinois, and The Texas Company, New York City, and their officers, agents, successors, and assigns , shall:, 1. Cease and desist from : \ (a) Refusing to grant passes to representatives of the National lE'Iaritime Union of America in order that such representatives may go aboard the respondents' vessels to meet with the unlicensed per- sonnel thereon ; (b) In any other manner interfering with, restraining, or coercing their 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 Con- certed 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) Grant passes to the duly authorized representatives of the National Maritime Union of America to go aboard their vessels to meet with the unlicensed personnel ; such passes to be issued under such conditions and in such number as shall be determined by col- lective bargaining between each of the respondents and the Union; (b) Post immediately in conspicuous places on their vessels for a period of at least sixty (60) consecutive days from the date of posting, notices to their unlicensed personnel stating: (1) that the respondents will not engage in the conduct from which they are ordered to cease CITIES SERVICE OIL COMPANY 59 and desist in paragraph 1 of this Order, and (2) that the respondents will take the affirmative action set forth in paragraph 2 (a) of this Order ; (c) Notify the Regional Director for the Second Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply lrirewith. III;. WILLIAM M. LEISE[iSON, concurring in part and dissenting in part : I am in agreement with the finding that the conditions of working and living on the tankers require that the authorized representatives of the employees shall have access to the.employees by the customary method of securing passes from the management. But, I would limit the decision to an order requiring the, respondents to bargain collec- tively as to the terms and conditions tinder which passes should be issued. As the Trial Examiner indicated, the hours during which union representatives 'nay board the vessels, the length of time that they may stay on board, and the procedure, to be followed to enable them to confer with the employees are matters for collective bargaining. There are probably other conditions-the number of passes to be issued, the method of applying for passes, etc.=that the parties will wish to agree upon in order to accomplish the desired result of having union representatives board vessels and perform their union business with a minimum of delay, misunderstanding, and• friction. The es- tablished custom and practice has been to negotiate matters of this kind and to include provisions regarding them in the agreements 'between unions representing the employees and the managements.