Isthmian Steamship Co.

In the Matter of IsTHMIAN STEAMSHIP COMPANY and NATIONAL MARITIME UNION OF AMERICA Case No. C-969.-Decided April 4, 1940 Water Transportation Industry-Interference, Restraint, and Coercion-Con- tract: valid preferential hiring agreement providing for preference of employment as vacancies occur-Dzscrimznation : ( S S. Knoxville City ) charges of, dismissed, where employees in labor organization went on strike, not caused or prolonged by unfair labor practices , and were replaced under valid preferential hiring contract with rival organization ; ( S S. Steel Scientist ) charges of, sustained ; discharge of members of labor organization because of non-membership in rival organization ; valid preferential hiring agreement with rival organization not applicable to kind of employment involved-Employee Status • ( S. S. Steel Scientist ) wage payment and commencement of voyage , as affecting-Strike: ( S S. Knoxville City ) not caused or prolonged by unfair labor practices ; (S S. Steel Scientist ) not found to exist-Employer : responsibility of, for ejection of crew from S. S. Steel Scientist by members of rival union-Reinstatement Ordered: ( S S Steel Scientist ) for 10 employees discriminated against; not ordered for two employees , one not desiring continuance of proceeding as to him, one not desiring reinstatement-Back Pay: (S . S. Steel Scientist ) awarded 10 em- ployees discriminated against, including reaso-able value of board and mainte- nance; as to one employee, not desiring reinstatement , awarded, but limited by date on which lie testified. Messrs. Will Maslow, and Albert Ornstein, for the Board. Mr. Kenneth B. Halstead, by Mr. George Demmneny, and Kirlin, Campbell, Hickox, Keating & McGranra, by Mr. A. V. Chlerbonnier, all of New York City, for the respondent. Mr. William L. Standard, by Mr. Max Lustig, of New York City. for the N. M. U. M11r. Charlton Ogbum, by Messrs. Arthur E. Reyman, and John E. Pelegrine, all of New York City, for the I. S. U. Mr. Harry A. Sellery, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by National Maritime Union of America, herein called the N. M. U., the National Labor Relations Board, herein called the Board, by the Regional Director for 22 N. L. R. B., No. 33. 689 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Second Region (New York City ), issued its complaint dated November 9, 1937, against Isthmian Steamship Company, New York City, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint , accompanied by notice of hearing, were duly served upon the respondent , the N. M. U., and International Seamen's Union of America , herein called the I. S. U. In respect to the unfair labor practices , the complaint , as amended during the course of the hearing , alleged in substance : (1) that the respondent in May 1937 forced Joseph Knight, an employee on the Knoxville City, to pay $11 to the Master of that vessel for a mem- bership in the I. S. U. despite Knight's protest that he had designated a rival faction therein as his collective bargaining representative; in April 1937 refused the request of the Knoxville City crew that agents of a particular faction within the I. S. U. be permitted to visit and confer with the Memphis City crew; in July 1937 at Portland, Maine, refused the request of the Knoxville City crew that agents of the N. M. U. be permitted to board that vessel to confer with the N. M. U. members of the crew ; and since April 1937 had warned its employees not to join or remain members of a particular faction within the I. S. U. and of the N. Al. U. and threatened them with discharge if they did so; (2) that the respondent on July 28, 1937, at Portland, Maine, discriminatorily discharged and has since refused to reinstate, 20 named employees in the crew of the Knoxville City; and (3) that the respondent on August 13, 1937, at Baltimore , Maryland , discrimi- natorily discharged and has since refused to reinstate 16 named employees in the crew of the Steel Scientist. On or about November 26, 1937, the respondent filed an answer which, as amended during the course of the hearing , denied the alle- gations to the complaint in respect to the unfair labor practices. The answer affirmatively alleged ( 1) that on July 28, 1937, at Portland, Maine, the Knoxville City crew refused to accept its wages, but did so after the local police authorities intervened , and that some members of the Knoxville City crew have since been reinstated ; and (2) that about August 13, 1937, at Baltimore , Maryland, the 16 named em- ployees in the crew of the Steel Scientist engaged in a sit-down strike, and thereafter left that vessel and were paid off. Pursuant to the notice and amended notices , a hearing was held in New York City on December 21 and 22, 1937 , before Alvin M. Douglas, the Trial Examiner duly designated by the Board, and on May 24 and June 8 , 9, and 10, 1938 , before Mapes Davidson, the Trial Ex- aminer duly designated by the Board. The respondent and the N. M. U. were represented by counsel and participated in the hearing. ISTHMIAN STEAMSHIP COMPANY 691 At the opening of the hearing on December 21, 1937, the I. S. U. moved to intervene in the proceeding. As soon as this motion had been reduced to writing, as provided in Article II, Section 19, of National Labor Relations Board Rules and Regulations=Series 1, as amended, it was granted, on December 22, 1937. On that date and on May 24, 1938, the I. S. U. was represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiners granted the Board's motions to conform the pleadings to the proof, to dismiss the allegations in the complaint of interference, restraint, and coercion with respect to Knight, and to dismiss the complaint as to Barth Solomon, a member of the Steel Scientist crew. At the close of the Board's case and at the close of the hearing the respondent made several, motions to dismiss the complaint. These motions were denied. During the course of the hearing the Trial Examiners made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 11, 1938, Trial Examiner Davidson filed his Interme- diate Report on the entire proceeding, including that portion which had been heard by Trial Examiner Douglas. Copies of the Inter- mediate Report were duly served upon the parties. Trial Examiner Davidson found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and, affirmatively, reinstate with back pay the members of the Steel Scientist and Knoxville City crews remaining in the -complaint, except Paul Hoffman and -Peter Walsh. Exceptions to the Intermediate Report were filed by the respondent on October 25, 1938, and by the I. S. U. on October 27, 1938. Pur- suant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on December 13, 1938. The respondent and the N. M. U. were represented by counsel and par- ticipated in the argument) At the oral argument the respondent submitted an affidavit exe- cuted by A. P. Jump, who had been a witness for the respondent on May 24, 1938,- making certain corrections of and.additions to the 'At the oral argument the t espondent orally offered a typographical correction to its exceptions. The correction is hereby allowed 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transcript of his testimony. On October 25, 1939, the Board issued a rule, copies of which were duly served upon the parties, to show cause by November 5, 1939, why such affidavit should not be incor- porated in the record. No objections to such rule having been filed, the Board on November 7, 1939, made an order, copies of which were duly served upon the parties, so incorporating Jump's affidavit.2 On November 22, 1939, the respondent submitted a brief and on November 29, 1939, the N. M. U. and the I. S. U. each submitted a brief. The Board has considered the exceptions and the briefs and finds the exceptions without merit, except as they are in accordance with the Decision and Order herein. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Isthmian Steamship Company is a Delaware corporation having an office and place of business in New York City. It owns and oper- ates 27 vessels for the transportation of freight in interstate and foreign commerce. II. THE ORGANIZATIONS INVOLVED National Maritime Union of America is a labor organization affil- iated with the Committee for Industrial Organization.3 It admits to membership the respondent's unlicensed personnel. International Seamen's Union of America is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership the respondent's unlicensed personnel. III. THE UNFAIR LABOR PRACTICES A. S. S. Knoxville City About July 27, 1937, the Knoxville City, one of the respondent's vessels, docked at- Portland, Maine, after a voyage from the West Coast, to discharge a part of her cargo. Joseph Kane and Walter P. Jermack, the N. M. U. delegates at Portland, went aboard the vessel and arranged for the transfer of the unlicensed personnel of the crew from the I. S. U. to the N. M. U. While Jermack was arranging for this transfer, he secured from the unlicensed personnel a list of its grievances. About 8 o'clock the next morning, July 28, 1937, Jermack, accompanied by the N. M. U. ship's. delegates, requested the Master, 2 By typographical error both the rule to show cause and the order refer to him as "A T Jump" 3Now the Congress of Industrial Organizations. ISTHMIAN STEAMSHIP COMPANY 693 Captain George P. Shanahan, to dispose of such grievances. Shanahan declined to do so at that time on the ground that it would be necessary first for him to secure the consent of his superiors in New York City. He stated that he would consult them by telephone. When a ship is in port discharging cargo the unlicensed personnel in the deck crew work only from 8 a. in. to 4 p. in. As was customary, Boatswain John M. Olsen had received from the first officer his orders for the work to be performed by the deck crew that day. Olsen instructed the deck crew accordingly, and it started to work at 8 a. m. At the rest period at 10 a. in., known as "coffee time," "Tex" Henderson, the N. M. U. ship's delegate for the deck crew, notified Olsen that the deck crew intended to strike until its grievances had been settled. The deck crew thereupon went on strike. About noon Shanahan told Jermack he could not then recognize Jermack as the collective bargaining representative of the N. M. U. members in the deck crew, that he would confer again with his superiors in New York City, and that the strikers in the deck crew would be required to leave the ship. Jermack notified the ship's un- licensed personnel, who were at luncheon, of what Shanahan had said. The unlicensed personnel in the engine-room crew decided to, and thereupon did, join the strike of the deck crew. Since the steam valve furnishing power for the operation of the deck winches was closed by the deck engineer, one of the deck crew, no cargo was discharged from the ship that afternoon. During the afternoon Shanahan notified the strikers that they would be paid off, but none of them went to receive their pay. They remained on board the vessel until about 7 or 8 o'clock that evening, when a group of policemen came to the dock at which the Knoxville City was tied up, and ordered the strikers to leave the ship. They left the vessel peaceably and on the following morning began to picket the dock and continued to do so until the Knoxville City' sailed from Portland. Early the next day, July 29, 1937, the recruits of the I. S. U. arrived at the !dock. They went aboard the Knoxville City and were lured to fill the positions of the strikers. The discharge of the ship's cargo, which had been suspended at noon on July 28, 1937, was thereupon resumed. On July 30, 1937, the respondent paid off the strikers before a United States Shipping Commissioner and the ship's articles were closed. Subsequently, the Knoxville City sailed from Portland. Robert E. Moore, a fireman on the Knoxville City, and one of the strikers whose place `had been filled, applied to the respondent in New York City for employment sometime before December 31, 1937, .the date upon which the respondent's contract with the I. S. U. expired. The respondent's personnel department asked him what his union 283033-41-vol. 22-45 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affiliation was. When he stated that he was a N. M. U. member, the respondent stated that it could not employ him. . Upon this record the respondent has not discriminated against any member of the crew of the Knoxville City. The deck and engine-room crews went on a strike not caused or prolonged by unfair labor prac- tices. The respondent did not engage in unfair labor practices by filling their positions to continue the work of the vesse1.4 Moreover, the respondent and the I. S. U. had a valid preferential hiring con- tract at the time of the strike and of Moore's application for employ- ment.5 Consequently, the respondent acted lawfully in filling the vacancies created by the strike with members of the I. S. U. and in refusing to employ Moore because he was not a member of the I. S. U.e We find that the respondent has not discriminated in regard to the hire and tenure of employment of the Knoxville City crew, thereby discouraging membership in a labor organization. B. S. S. Steel Scientist Late in July or early in August 1937 the Steel Scientist, another of the respondent's vessels, returned to New York City from a voyage to the Orient. At New York City, the articles were closed. Thereafter the vessel proceeded to Norfolk, Virginia, to discharge a part of her cargo. Early in August 1937, while the Steel Scientist was at Norfolk, almost all the unlicensed members of the crew transferred their union affiliation from the I. S.' U. to the N. M. U. The vessel then proceeded to Baltimore, Maryland, arriving on August 12, 1937, for the discharge of the remainder of her cargo and for the fumigation of the ship. On August 12, 1937, Edward W. Flynn, a lieutenant in the respond- ent's watchman service and the respondent's ranking officer in Balti- more, notified John S. Reese, an I. S. U. delegate at Baltimore, that a new fireman was needed aboard the vessel to replace one who was leaving the ship. The new fireman was scheduled to go on duty for a 4 National Labor Relations Board v Mackay Radio d Telegraph Co., 304 U S 333 (1938), enf'g Matter of Mackay Radio d Telegraph Company, etc. and American Radio Telegraphists' Association, San Francisco Local No. 3, 1 N. L R. B. 201; Matter of Calmar Steamship Corporation and National Maritime Union of America, 18 N L R B 1. Article II, Section 1, of the contract provided: as vacancies occur, members of the International Seamen's Union of America shall be given preference of employment, if they can satisfactorily qualify to fill the respective positions ; provided, however, that this Section shall not be construed to require the discharge of any employee who may not desire to Join the Union, or to apply to prompt reshipment, or absence due to illness or accident From the terms of the contract as a whole, it appears that the various ships were not treated by the parties as separate collective bargaining units. , 6 Cf. Matter of Ansley Radio Corporation and Local 1221 United Electrical h Radio Workers of America, C. 1 0, 18 N L R B 1028 and cases cited. 4 ISTHMIAN STEAMSHIP COMPANY 695 watch beginning at midnight and ending at 8 a. m. on August 13, 1937. The I. S. U. sent a fireman as requested. Early in the morning of August 13, 1937, this fireman came to the I. S. U. hiring hall. He told Reese that the crew, upon learning that he was an I. S. U. member, had refused to permit him to work. Reese notified Flynn of this incident. He reminded Flynn of the above-mentioned preferential employment clause and warned him that the I. S. U. expected the respondent to comply with the contract. Flynn thereupon telephoned for advice to A. P. Jump, the respondent's director of labor relations, stationed in New York City. Jump told Flynn, "Well, you had better get hold of Mr. Vanderstaay and Mr. Bly J. S. U. agents). Report the matter to them and let them make an investigation to find out what the trouble is." Jump also instructed Flynn to notify him when the ship sailed. The Steel Scientist was scheduled to sail for Portland, Maine, at 6 o'clock that evening. Following the conversation between Flynn and Jump, Garritt Van- derstaay informed Flynn that if the respondent did not discharge the N. M. U. members of the crew, the I. S. U. would call a strike on each of the respondents vessels as it arrived at Baltimore. Flynn asked Vanderstaay if the I. S. U. could supply a new crew for the Steel Scientist. The latter assured Flynn that the I. S. U. could and would do so. He further stated that the N. M. U. members of the crew must leave the ship, that Vanderstaay would remove the N. M. U. members of the crew from the vessel, and that Vanderstaay did not wish Flynn to do anything in this connection. Flynn reported this information in a second telephone call to Jump. On this occasion Jump insisted that the Steel Scientist sail from Bal- timore at the scheduled hour of 6 p. m. With reference to the I. S. U. plan to replace the N. M. U. members of the crew, Jump stated : All right; let the Union (the I. S. U.) handle the thing, but we have got to get the ship going . . . that is a question for the I. S. U. to handle; we are going to live up to our agreement. Now, the next move is up to the I. S. U. It is up to them. The agreement is very clear and we have got to live up to it and that is all there is to it.' While these conferences were in progress, the ship was being fumi- gated. The crew had left the ship with instructions to report on the dock early in the afternoon. When the crew assembled about 2 p. m. it was not yet possible to go on board. The members of the crew re- mained on the dock for some time and then were notified that the re- spondent was "paying off" the crew. This pay-off was in accordance with the respondent's practice for a crew of a vessel at Baltimore on 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a "harbor pay roll." 7 When the pay-off had been completed, the crew was instructed to go aboard the ship and did so. Several members of the crew went to their quarters to rearrange their personal effects which had been disarranged in connection with the fumigation of the vessel. About 10 minutes after the crew had gone aboard, the ship's officers instructed the members of the crew to assemble at the No. 3 hatch, directly forward of the ship's bridge. When the crew had assembled it was addressed by Captain Marcosson, the Master of the Steel Scientist. Reese stood on the bridge near Mar- cosson during his talk. Marcosson said, "Fellows, I have had word from New York that if you fellows don't change your N. M. U. (membership) books back to I. S. U. books, that you will be ejected from the ship." He went on to state that a majority of the crew had sailed with him for some time, that he had been very well satisfied with their work and would regret their departure, but that he had to follow the orders which he had re- ceived from the respondent. Harry Shadle, an oiler and an N. M. U. member, asked Marcosson, "Do I understand, Captain, that you are Firing us for being N. M. U. men?" Marcosson replied, "Yes, that is what it looks-like, son." Thereupon, Marcosson introduced Reese, saying, "This man repre- sents the International Seamen's Union, and he will take you back in the I. S. U. if you exchange your N. M. U. books back again." Reese told the assembled crew, "You fellows can change your books back. I have books right here with me. There won't be any argument, and we will give you your I. S. U. book, and you can sail with your I. S. U. books." He told the men that if they did so immediately, they could exchange their N. M. U. books for I. S. U. books without charge. Reese then made a speech in favor of his proposal. No crew member accepted his proposal. At the close of the meeting, Shadle repeated his above-quoted question and Marcosson reiterated that anyone in the crew who remained a member of the N. M. U. would be discharged. The crew returned then to the after hatch adjacent to its quarters. After a brief and informal discussion the members of the crew decided not to reaffiliate with the I. S. U. They received no orders to work from the ship's officers and did no work. They had not been ordered "'Harbor pay roll" is a term used by the respondent to designate the pay roll for a ship engaged in coastwise shipping . The Steel Setentist clew had been on a harbor pay roll since the ship's arrival at New York City when a crew is placed on a harbor pay roll, it is the respondent 's practice to pay the crew about every 7 days . Moreover, with- out regard to the general practice of weekly payments on a harbor pay roll , it is also the respondent's practice to pay the crew at Baltimore . Flynn testified, "The men were paid off in the usual way." ISTHMIAN STEAMSHIP COMPANY 697 by the ship's officers to leave the vessel. The members of the crew re- mained in and about their quarters until about 10 p. in. No dinner was served to the crew that evening. During the afternoon the I. S. U. business delegates in Baltimore had stationed an I. S. U. crew and a group of about 12 or 14 volun- teers from among the I. S. U. membership near the Steel Scientist. During the afternoon Flynn told Lawrence Roache, a pier supervisor for the respondent, that he had heard from an I. S. U. delegate "some- thing about delegates going to pull a crew out" and that the I. S. U. was "going to pull the men off" because they belonged to the N. M. U. About 10 p. m. the group of I. S. U. volunteers boarded the Steel Scientist, pushing aside the respondent's watchman at the gangplank, and proceeded to the crew's quarters.8 These I. S. U. volunteers or- dered the N. M. U. crew members to leave the ship immediately. The N. M. U. men did not offer any resistance to this order. They gathered their personal effects and left the ship. No ship's officer appeared on deck or on the dock during the ejection of the N. M. U. members of the crew. The only unlicensed members of the crew who were per- mitted to remain on board were two I. S. U. members who had not joined the N. M. U. at Norfolk. Thereafter, the I. S. U. crew which had been assembled on or near the dock came aboard, accompanied by Flynn and Roache. This I. S. U. crew was hired by the respondent after it was on board the Steel Scientist. About 2 a. m. on August 14, 1937, the ship sailed for Portland, Maine. As noted above, the respondent and the I. S. U. had entered into a contract giving members of that labor organization "preference of em- ployment." ° By its terms the contract requires such preference only "as vacancies occur." 1° Upon this record, it is clear that the positions of the N. M. U. members of the Steel Scientist crew had not become 8 It does not appear that this watchman offered any resistance to the I. S. U volunteers. 8 See footnote 5, supra. 18 Jump testified as follows : Q. Did you consider at that time [August 13, 1937, that] if the I. S U. wanted the jobs you would have to discharge the N. M. U. men? A. Well, how could we live up to the agreement otherwise? ... Yes. Jump's ambiguous and unsupported interpretation of the contract cannot vary the plain meaning of the preference clause. In National Labor Relations Board v. Waterman Steamship Corporation, 60 Sup. Ct. 493, rev'g 103 F. (2d) 157 (C. C. A. 5), and enf'g Mat- ter of Waterman Steamship Corporation and National Maritime Union of America, etc., 7 N. L. It. B. 237, the Supreme Court of the United States, construing this very provision, held as follows : The contract with the I. S. U. "which only provided preferential treatment of the I. S. U. in filling vacancies, did not require the Company to discharge the N. M. U. men from these ships." 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vacant at the time these men were ejected from the vessel on August 13, 1937.11 The crew was paid "in the usual way." Then it was ordered to go on board as if in the customary manner the ship was about to sail from Baltimore. Marcosson stated publicly that as far as he was concerned the crew was satisfactory. Pascuale Parlapiano, a steward, who had been at sea since December 20, 1935, in the employ of two other maritime shipping companies in addition to the respondent, testified that the custom in the maritime shipping industry in hiring the unlicensed members of a crew is to "hire you on, and they keep you on the ship until they found out you are not competent to stay on" or until the seaman voluntarily 'resigns. Harold Norby, a deck oiler, who had been at sea for 10 years, testi- fied that he had been continuously employed by the respondent since June 15, 1935, and that even when the ship upon which he was em- ployed was periodically drydocked his full pay continued. Flynn, a witness for the respondent, testified that when one of the respondent's vessels arrives in Baltimore, its general custom is to retain the crew 12 There is nothing in the record to show that the N. M. U. members of the Steel Scientist crew engaged in a sit-down or in any other kind of strike, or that they engaged in any action endangering the safety of the ship. We find that the N. M. U. members of the crew remained employees within the meaning of Section 2 (3) of the Act 13 and that no vacancies had occurred in their positions. We find that by their ejection the, respondent discharged the N. M. U. crew members. Jump instructed Flynn, the respondent's ranking officer in Baltimore, to "let the Union handle the thing." Although Flynn had advance knowledge of the I. S. U. plan to eject the N. M. U. members of the crew, neither he nor the ship's officers 11 That in the maritime shipping industry the employment of satisfactory members of a crew is customarily continuous and has no relation to the payment of wages to a crew or the commencement of a new voyage and that no vacancies occur in such cases except when the crew members are discharged for cause or voluntarily resign, has been found in several cases For example, National Labor Relations Board v. Waterman Steamship Corporation, 309 U S 206, rev'g 103 F (2d) 157 (C C. A 5), and enf'g Matter of Waterman Steamship Corporation and National Maritime Union o f America, etc., 7 N L. R B 237; Matter of South Atlantic Steamship Company, etc and National Maritime Union of America, 12 N. L R. B 1367; Matter of The Texas Company, Marine Division and National Maritime Union, Poi t Arthur Branch, 19 N L R B 835 12 Witnesses for the I S U. testified that vacancies occur when a crew is paid off and a ship begins a "new voyage" and that a new voyage began when the Steel Scientist prepared to sail for Portland . It is clear from Flynn ' s testimony alone that this was not the case in so far as the respondent is concerned. 13 Section 2 (3) of the Act is as follows : The term "employee" shall include . . . any individual whose work has ceased as a consequence of, or in connection with any current labor dispute or because of any unfair labor practice . . . ISTHMIAN STEAMSHIP COMPANY '699 took action to prevent the execution of this plan. Acting in accordance with Jump's orders, they permitted the I. S. U. volunteers to board the ship and eject the N. M. U. crew members. Thereafter, the respondent gave the positions of the ejected men to members of the ejecting union. The respondent was responsible for the ejection and such ejection was tantamount to a discharge. Captain Marcosson's notice to the N. M. U. men that they would be .discharged if they refused to reafliliate with the I. S. U., their ejec- tion upon their refusal so to do and their replacement by members of the ejecting union, the retention of the two members of the original crew who remained affiliated with the I. S. U., and the other facts hereinabove mentioned, demonstrate that the respondent discharged the N. M. U. men discriminatorily because of their membership in that labor organization. Even though induced by the I. S. U.,14 such discrimination was unlawful because it was not required bythe con- tact between the respondent and the I. S. U. or by any valid closed-shop contract within the meaning of the proviso to Section 8 (3).15 We find that the respondent, by, discharging the N. M: U. members of the crew of the Steel Scientist at Baltimore, Maryland, on August 13, 1937, discriminated against them in regard to their hire and tenure of employment, thereby encouraging membership in the I. S. U. and discouraging membership in the N. M. U., and that by the above- described conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III B, above, occurring in connection with the operations of the respondent de- scribed 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. u National Labor Relations Board v. Star Publishing Co., 97 F . (2d) 465 (C. C A. 9), enf'g Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N L. R. B. 498. " The proviso to Section 8 (3) of the Act is as follows Provided, That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ( not established , maintained , or assisted by any action defined in this Act as an unfair labor practice ) to require as a condi- tion of employment membership therein, if such labor organization is the representa- tive of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order that it cease and desist therefrom, and that it take certain affirmative action which will effectuate the policies of the Act. . We have found that the respondent discriminated unlawfully in regard to the N. M. U. members of the Steel Scientist crew. Since Peter Walsh, one of these persons, does not desire this proceeding continued as to him, we will not order the respondent to reinstate him or award him back pay. Since Marx Kaplan, another of these persons, testified that he does not desire reinstatement, we will not order his reinstatement and we will not award him back pay for the period subsequent to December 22, 1937, the date upon which he testified. With respect to the remaining employees discriminated against, listed in Appendix A, we will order the respondent to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. All, or such number as may be necessary, of employees hired after August 13, 1937, who occupy the former posi- tions of the employees listed in Appendix A or substantially equiva- lent positions shall be dismissed, if necessary to provide employment for those to be offered and who accept reinstatement. If thereupon there is not sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining em- ployees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respond- ent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We will also order the respondent to make whole the employees listed in Appendix A for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum equal to that which he would normally have earned as wages from the ISTHMIAN STEAMSHIP COMPANY 701 date of his discharge to the date of the offer of reinstatement, less his net earnings 16 during said period.'7 The record shows that while in the employ of the respondent the unlicensed personnel in the Steel Scientist crew received, in addition to their monetary wages, maintenance on shipboard. Accordingly, we shall order that the reasonable value of such maintenance on ship- board during the period for which we will award back pay be included in the monetary compensation to be paid by the respondent to Marx Kaplan and each of the persons listed in Appendix A. We will dismiss the complaint in so far as it alleges that the re- spondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 8 (1) of the Act with re- spect to the Knoxville City and the Memphis City, and in so far as it alleges that the respondent discriminatorily discharged and refused to reinstate the N. M. U. members of the Knoxville City crew. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. National Maritime Union of America and International Sea- men's Union of America are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Peter Walsh, Marx Kaplan, and the persons listed in Appendix "By "net earnings" is meant earnings less expenses , such as transportation , room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful dis- charge 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 9590, 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 appro- priate fiscal agency of the Federal, State, county , municipal , or other government or governments which supplied the funds for the said work-relief projects. 170f the 13 persons listed in Appendix A, herein called the charging employees, 10 did not testify. During the course of the hearing , Trial Examiner Davidson ruled that in the event he found that any employee named in the complaint had been discriminatorily discharged and recommended that such employee be reinstated , he would not recommend that the employee also receive back pay unless the employee had testified at the bearing Counsel for the Board and the N M. U. excepted to this ruling . In his Intermediate Report Trial Examiner Davidson found that the charging employees , among others, had been discriminatorily discharged . He recommended that they be reinstated with back pay, without regard to his previous ruling limiting back pay to the charging employees who had testified The respondent excepted to his recommendation that the charging employees who had not testified be reinstated with back pay. The Board, at the oral argument , gave the respondent leave to file with the Board a written statement of the respondent 's position with respect to the holding of a further hearing on the issue of back pay for persons who did not testify . On December 15, 1938, the respondent filed a written statement that it was relying on the record already made and was not requesting a further hearing Under these circumstances , the Board finds that its back-pay order is warranted without a further hearing. 702, DECISIONS OF NATIONAL LABOR RELATIONS BOARD A, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. - 5. The respondent has not discriminated in regard to the hire and tenure of employment of Barth Solomon and the persons listed in Appendix B, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Isthmian Steamship Company, New York City, and its officers, agents, successors, and 'assigns, shall : 1. Cease and desist from : (a) Discouraging membership in National Maritime Union of America, or any other labor organization of its employees, by dis- charging any of its employees or in any other manner discriminating against its employees in regard to their hire or tenure of employment;, (b) In any other manner interfering with, restraining, or coercing its employees in the'exetcise of the right to, self-organization, to form, join, or assist labor organizations, to bargain collectively through rep-. resentatives of their own choosing, or to engage in concerted' activities for the purposes of collective bargaining or other' mutual aid or' protection. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer the persons listed in Appendix A immediate and full re- instatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "The Remedy" above, plat ing those employees for whom employment is not immediately avail- able upon a preferential list in the manner set forth in the said section, and thereafter, in said manner, offer them employment as it becomes available ; (b) Make whole Marx Kaplan for any loss of pay that he may have suffered by reason of his discharge by payment to him of a sum of money, equal to the amount which he would normally have earned ISTHMIAN STEAMSHIP -COMPANY 703 as wages, including therein the reasonable value of his maintenance on shipboard, during the period from the date of his discharge until December 22, 1937, less his net earnings during said period, deducting however, from the amount otherwise due to him, monies received by him during said period for work performed upon Federal, State, county, municipal or other work -relief projects ; and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal , or other government or governments which supplied the funds for said work-relief projects; (c) Make whole the persons listed in Appendix A for any loss of pay that they may have suffered by reason of their respective dis- charges by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages, including therein the reasonable value of his maintenance on shipboard , during the period from the date of his discharge to the date of the said offer of reinstatement, less his net earnings during said period, deducting however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work per- formed upon Federal, State, county, municipal , or other work-relief projects; and pay over the amount, so deducted , to the appropriate fiscal agency of the Federal , State, county , municipal , or other gov- ernment or governments which supplied the funds for said work-relief projects; (d) -Immediately post notices in conspicuous places on its docks and on the vessels owned and operated by it, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the man- ner set forth in paragraphs 1 (a) and (b), and that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; that the respondent's employees are free to become or remain members of National Maritime Union of America ; and that the respondent will not discriminate against any employee because of membership or activity in said organization; (e) Notify the Regional Director for the Second Region in writing within ten ( 10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act with respect to the Knoxville City and the Meva plis City, and in so far as it alleges that the respondent discriminated against Barth Solomon and the persons listed in Ap- pendix B in regard to their hire and tenure of employment. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlos E. Bridges Edward Drake A. S. Gibbs Nathan Hale Henry Ledford Harold Norby APPENDIX A M. Nunez Miguel O'Campa Pascuale Parlapiano Juan Raboto Ralph Rawcliffe Harry Shadle S. C. Williams APPENDIX B John R. Ahern Phillip Alvareaiso (Ad- vaiso) James Breath Ernest Erikson John P. Galvin John (Jatan) Gutterson John S. Henderson Paul Hoffman Harry L. Krekle (Kiehle) H. P. Kuznicki Arthur Lake William H. Maynard Theodore Monteira Robert P. Moore John Petry Reynold Quinn Lynn C. Smith Godfrey D. Sweet Isie Yaroslowsky Jose A. Yglesia MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.