Sun Shipbuilding and Dry Dock Co.

In the.Matter Of SUN SHIPBUILDING AND DRY DOCK Co. and INDUS- TRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA Case No. C-1899.-Decided January 15, 1942 Jurisdiction : shipbuilding industry. Unfair Labor Practices Interference, Restraint, and Coercion: surveillance, of union meeting; employment of labor spy, discriminatory treatment of non-members of company-dominated union; solicitation and encouragement of membership in company-dominated union. Company-Dominated Union: participation in circulation of petitions leading to formation of; subsidizing solicitation of votes for, prior to consent election; collusion with leader in formation of; payment for time spent in organizing activities; accorded preferential treatment and active assistance of supervisory employees; discriminatory treatment of non-members; failure to publish alleged policy of neutrality toward opposing unions. Discrimination: charges of sustained as to four, not sustained as to two; by trans- fer to undesirable and unremunerative work resulting in quitting of employ- ment; by discharge. Remedial Orders : disestablishment of and abrogation of contract with dominated organization; reinstatement and back pay ordered; deduction made from amount of back pay awarded for period from date of discharge to date charges filed where from one to three years had elapsed prior to filing of charges. Mr. Geoffrey Cunniff, for the Board. Mr. Sylvan H. Hirsch and Mr. J. S. Conwell, of Philadelphia, Pa., for the respondent. Mr. M. H. Goldstein, of Philadelphia, Pa., for the Union. Mr. Henry G. Sweney and Mr. Guy W. Davis, of Chester, Pa., for the Association. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Industrial Union of Marine and Shipbuilding Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its 38 N. L. R. B., No. 63. 234 SUN SHIPBUILDING AND DRY DOCK Co. 235 Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated November 19, 1940, against Sun Ship- building and Dry Dock Co., Chester, -Pennsylvania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notices of hearing thereon were duly served upon the respondent, the Union, and Sun Ship Employees Association, a labor organization, herein called the Association.' With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) since about December 14, 1936, in various ways detailed in the complaint, dominated and interfered with the formation and administration of the Association and con- tributed financial and other support to it and (2) by the foregoing acts, and by engaging in surveillance of union meetings and activities, by instigating and causing a "back-to-work" movement during a strike, by permitting the formation of a "strong arm squad," and by other specified anti-union and pro-Association acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Prior to the hearing, the respondent filed two motions with the Regional Director; one, to extend the hearing date until June 15; 1941, which the Regional Director denied, and- the second, to extend the date for the filing of the respondent's answer, which the Regional Director granted. The Regional Director also granted a petition to intervene filed by the Association. - - On or about December 5, 1940, the Association filed its answer in which it denied the allegations of the complaint that the respondent dominated,and interfered with the formation and administration of the Association and contributed financial support thereto, and averred affirmatively that the Association was the lawful bargaining agent of the respondent's employees as the result of an election conducted by the Board. On or about December 6, 1940, the respondent filed its answer in which it denied that it had engaged in the unfair labor prac- tices alleged in the complaint. Pursuant to notice and notice of postponement, a hearing was held at Chester, Pennsylvania, on, December 16, 1940, and at Media, Pennsylvania, from December 17, 1940, through February 14, 1941, before George Bokat, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, the Union, and the Association were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was 1 In quoted testimony the name of the Association appears, at times, as the S S. E. A. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afforded all parties. At the commencement of the hearing and, at the conclusion of the Board's case the Association moved to dismiss the complaint on the ground that -the legal status of the Association as the exclusive bargaining representative of the respondent's em- ployees had been fixed by Board elections held on March 19, 1937, and on August 22, 1939. At the close of the Board's case, the Asso- ciation advanced as a further ground for its motion to dismiss that the proof was insufficient. The respondent also moved to dismiss the complaint on the same ground. The Trial Examiner denied these motions. For reasons indicated in Section III, infra, the rulings are hereby affirmed. During the course of the hearing, counsel for the Board moved to amend the complaint to allege that the respond- ent discriminated against Chester Faunce, Walter Voytovich, Samuel Hall, Frank Harris, James Bailey, and Adam Polak, because of their membership in and activities on behalf of the Union, thereby engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. The Trial Examiner granted the motion. The ruling is hereby affirmed. The respondent thereafter filed an answer to the amendment to the complaint in which it denied the unfair labor practices alleged.2 The Association also filed an -answer to the amendment to the complaint in which it stated that it had not con- spired with the respondent to discriminate against the employees named therein. At the close of the hearing, the Trial Examiner granted a motion by counsel for the Board to conform the pleadings to the proof. During the course of the hearing, the Trial Examiner ruled upon other motions and upon 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. 'At the conclusion of the hearing, the parties were afforded an opportunity to file briefs and to argue orally before the Trial Examiner. Except for the Union, all of the parties pre- sented argument. The respondent also submitted a brief to the Trial Examiner. The Trial Examiner thereafter filed his Intermediate Report dated June 6, 1941, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He accordingly recom- mended that the respondent cease and desist from engaging in the unfair labor practices, disestablish the Association as the bargaining representative of its employees, and reinstate with back pay four employees found by him to have been discriminated against. 2 Although advised by the Trial Examiner that it might have a 10-day continuance from the date of the amendment to the complaint in order to prepare its defense, the respondent waived this 10-day period and elected to proceed with the hearing SUN SHIPBUILDING AND DRY DOCK CO. 1 237 On July 5, 1941 , the respondent and the Association filed excep- tions to the Intermediate Report of the Trial Examiner, and on July 31, 1941, briefs in support of their exceptions . On July 31, 1941, the Association also filed a petition to reopen the record for the purpose of introducing evidence showing that since the date of the hearing, it had participated in the Atlantic Coast Shipbuilding Stabilization Conference held in June 1941 , and that pursuant to the adoption of certain wage standards by such conferences the Association had obtained substantial increases in pay for the respondent 's employees. Inasmuch as the evidence sought to be introduced would not alter our_ conclusions as to the issues, the petition of the Association is hereby denied. Pursuant to notice, a hearing was held before the Board on October 21, 1941, at Washington , D. C., for the purpose of oral argument. The respondent , the Union , and the Association , were represented by counsel and participated in the argument. The Board has considered the briefs and the exceptions to the Intermediate Report and , insofar as the exceptions are inconsistent with the findings , conclusions , and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Pennsylvania corporation , has its principal place of business at Chester , Pennsylvania , where it is engaged in the con- struction and repair of ships, engines and parts , and refinery equip- ment. The raw materials used by the respondent consist principally of steel, iron , brass, copper, lumber, -paints, and oils. It obtains approximately 10 percent of its raw materials from points outside Pennsylvania. During the year 1939 , the respondent built and repaired ships the value of which was in excess of $25,000,000. During this same year, approximately 75 percent of the ships built and repaired at the Chester plant of the respondent were sailed to States other than Pennsylvania and to foreign countries . During the year 1939, the respondent manufactured refinery equipment the value of which was in excess of $600,000 , and 50 percent of which was shipped out of Pennsylvania to other States of the United States and to foreign countries . The respondent admits that it is engaged in commerce within the meaning of- the Act. At the time of the hearing it em- ployed approximately 7,000 persons. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Industrial Union of Marine and Shipbuilding Workers of America is a labor organization affiliated with the Congress of Industrial Organizations admitting to membership employees of the respondent. Sun Ship Employees Association is an unaffiliated labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background In March 1919, approximately 85 percent of the respondent's em- ployees were members of various craft unions affiliated with the American Federation of Labor, herein called the A. F. of L. By agreement between these unions and the respondent, machinery for the presentation and adjustment of disputes and grievances was set up through the medium of a Joint Crafts Committee composed of delegates from each craft union. The respondent paid the members of this committee for time spent in investigating grievances and in meeting with the management, and also provided the committee with a room where it held regular meetings. According to the testimony of Richard Clendenning, a member of the Joint Crafts Committee, in 1922 and 1923 "tire unions in the yard began to disintegrate-their work got slack and the membership fell off." John G. Pew, president of the respondent, testified that at about this time, pursuant to a con- ference with employee representatives, it was decided to set up a yard committee composed of departmental representatives for the purpose of dealing with the management. This was done, and on August 1, 1922, the respondent prepared and distributed to its employees a printed booklet entitled "Information for Employees," which contained, among other things, the following: EMPLOYEES' YARD COMMITTEE A committee composed of representatives from each of the de- partments of the Company has been organized for the purpose of conferring with the Management on matters affecting the general interest of all, i. e., employees and corporation. Each department is entitled to a department or shop com- mittee, composed of three employees of each department to be chosen by the departmental employees for a term of six months or until a successor is elected. One of these three men is entitled to membership in the General Yard Committee. This repre- sentative to be chosen from the department committee. This SUN SHIPBUILDING AND DRY DOCK CO. 239 representative is also to be chosen for a term of six months or until his successor is elected. , . The Company is in hearty sympathy with the method of operation of the above committee, and strongly recommends that all employees' questions be handled in this way. Until 1933, the General Yard Committee continued to act-as the sole bargaining representative of the employees. The members of this committee were paid for time spent conferring with management and investigating grievances. In 1933, the Federal Labor Union, an A. F. of L. affiliate, secured membership among the respondent's em- ployees. .In 1934, the employees of the respondent left the Federal Labor Union and together with employees of another shipyard formed the charging Union herein.' The functions of the General Yard Com- mittee were gradually absorbed by the Federal Labor Union and by the Union. There is no evidence that the General Yard Committee continued to exist,after the effective date of the Act. B. The strike On December 7, 1936, about 900 to 1,000 members of the Union went out on strike. The respondent had in its employ at that time about 4,200 persons, and' as a result of the mass-picketing tactics of the union members, the entrance to the shipyard was effectively blocked-and the production workers were prevented from entering the premises, thereby causing all work to cease. Since the non-union employees were anxious to return to work, feeling ran high and the situation became more tense as on December 8, 9, and 10, the union members continued to prevent ingress to the shipyard. In fact, on December 9 and 10, a clash was avoided only when Richard L. Burke, the respondent's vice president' and' general manager, acting on orders from the respondent's' president,, John G. Pew, Sr., advised the employees not to, break through the picket line as the respondent was attempting to work out a peaceful solution with the Union. On December 10, Burke reported to Pew that "this is the second time I have been up there. Those people are going to force this issue. Many of the men have declared that they are going to come back tomorrow-to me it looks serious." That evening, Burke instructed' the three superintendents who had supervision over various sections of the shipyard, "By all means to keep out of any movement the next day, that it was going to be serious." On the morning of December 11, about 2,200 employees, representing all 3 shifts (the second and third shift employees were not scheduled to report for work until 4:15 and 11:15 p. in. respectively), gathered behind the pickets. Unaffiliated at that time , the Union subsequently became affiliated with the C. I. 0. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although forewarned, the respondent's officials on this occasion made no attempt to disperse its employees who broke through the picket line and succeeded in entering the shipyard. In the ensuing riot many were injured, some seriously. The complaint alleged that in violation of the Act the respondent "did instigate and cause to be formed a `back-to-work' movement among its employees at its Chester plant who were then and there conducting a strike." Assistant Foreman Samuel Adams admitted that he, in company with Assistant Foreman Harry Butler, visited the homes of some of the employees and asked them to return to work. Further, Superintendents Norton and Carney, as well as some minor supervisors accompanied the employees who broke through the picket line. Norton' admitted- violating the respondent's instruc- tions, to "keep out of any movement" and in explanation of his conduct testified that he felt that his presence might avoid violence, since most of the strikers were from his department. There was no evidence, however, to indicate that any of the strikers were solicited to return to work nor did the respondent in any other way interfere' with the lawful activities of the strikers. While, as indicated above, several*supervisory employees of the respondent capitalized upon the desire of the non-striking employees to return to work by encouraging and aiding them in breaking through the picket line, we find that these activities of the respondent, without, any other evidence of interference with the rights of the strikers, did not constitute such interference, restraint, and coercion as is prohibited by the Act. C. Interference, restraint, and coercion and domination and support of ' the Association 1. The petitions Commencing on December 11, 1936, the date the non-strikers went through the picket line, and continuing for several days thereafter,, there were circulated among the employees, petitions, the majority of which bore the following heading: We, the undersigned employees of the Sun Shipbuilding & Dry Dock Company, are desirous of appointing and maintaining our, own Employees Representative Board to discuss and settle all working arrangements with the company. We request that -the company deal with us exclusively rather than with any minority organization that might assume power or 'representation not duly given to them by the majority of the men in the plant. These petitions, most of which were in identical mimeographed form' bearing the above preamble, were circulated among the employees of SUN SHIPBUILDING AND DRY DOCK CO. 241 the three shifts during working hours and lunch time. The respond- ent contended that it had nothing to do with their preparation and circulation and was ignorant-of their existence until about December 28, 1936, when the petitions, bearing about 2,600 signatures, were placed upon Pew's desk. In analyzing the evidence bearing upon the aforesaid contention, it must first be noted that with but one exception, the many wit- nesses at the hearing professed ignorance as to the origin of the petitions. The exception was James Monroe, who was working as a welder during the period in which the petitions were circulated. Ac- cording to Monroe's uncontradicted testimony, he was approached while at work by Leader 4 A.- Bradley and : - He had a sheet of paper and a pencil. And, he asked me would 1 go around among the men with the petition to take up for a new union, company union, in the yard. He said he had been sent out from the office to ask me that. He said it wouldn't matter with my standing with the company if I refused. I refused. The respondent did not call Bradley as a witness or advance any explanation for its failure to do so. We find, as did the Trial Exam- iner, that Monroe's testimony is substantially in accord with the facts. Moreover, since many of its assistant foremen and leaders signed the petitions,' the respondent must have been aware of the circula- tion of the petitions, and we so find. Not, only did supervisors sign the petitions, but in some instances solicited signatures. According to the undenied testimony of Lewis Agnew Campbell, who was employed in the boiler shop as a boilermaker, his leader, George W. Fitzsimmons, approached him during working hours on the after- noon of December 11, and stated that "the worker's were going to form an organization of their own and the other workers in the yard, for protection against the C. I. 0. . . . And that there was petitions being circulated which the workers were being asked to sign, designating that they wanted such an organization." At Fitz- simmons' request, Campbell signed the petition, and other employees in the department also signed, all in the presence of Fitzsimmons and another leader by the name of L. Dixson.5 Although Fitzsimmons- took the stand for the respondent on two separate occasions, he did 4 Leaders do manual work but are assigned to supervise the work of a group of men whose number varies according to the needs of the respondent In the event of certain types of offenses, such as drinking, sleep- ing on the job, or fighting, leaders can recommend,discharge They can also recommend promotions Their duties are clearly supervisory 5 A random check of the signatures on the petitions against the respondent 's list of supervisory employees reveals that the name of an assistant foreman or leader heads the lists of employees in departments 4, 33, and 68 who signed, and that in several of the departments all the supervisors therein with the exception of foremen, signed. 6 Erroneously spelled Dickson in the transcript Dixson died prior to the hearing. 438861-42-vol. 38-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not deny the above testimony, and we find, as did the Trial Examiner, that Campbell's testimony is in accord with the facts.' Although the circumstances surrounding the circulation of the petitions raise an inference that the respondent was responsible for their preparation, we do not find, as did the Trial Examiner, that they in fact originated with the respondent. As we have found above, however, the respondent, by virtue of the participation of its super- visory employees in the signing and circulation of the petitions, was clearly aware of their existence and their widespread circulation throughout the plant during working hours. Despite this knowledge, the respondent took no steps to notify its employees that such activi- ties were unauthorized. By its failure to do so, thus permitting and condoning the circulation of the petitions throughout the plant during working hours, and by the participation of its supervisory employees therein," the respondent clearly evinced to the employees its approval and support of the petitions and their declared objectives. 2. The formation of the Association With the impetus supplied by the petitions, the employees began to discuss the formation of an unaffiliated labor organization. Ac- cording to Charles Ruth, he and Stanley Hockman, another employee, took leadership of this movement and went through the departments on December 14, 1936, suggesting that a representative be elected from each department -to attend a meeting to discuss the formation of the new organization: Accordingly, elections were held in each department, and the selected representatives attended a meeting one day during the week of December 14, in a shack in the shipyard. According to the uncontradicted testimony of Campbell, Leader Fitzsimmons informed him that he had been elected while absent from the department 9 "to represent the group from the boilershop in the newly formed organization," and notified him of the meeting to be held in the shack. The representatives at this meeting, which 7 An examination of the petitions for the boiler shop reveals that of 10 assistant foremen and leaders in this department , all but 1 signed . In view of our findings upon the uncontradicted testimony set forth above , it is unnecessary to set forth and resolve other testimony which was contradicted , relating to the alleged activities of other supervisory employees in soliciting signatures for the petitions. 8 The respondent and the Association both argued before the Trial Examiner that since supervisors paid on an hourly basis , such as leaders and assistant foremen , were eligible to membership in the Union and later in the Association , the respondent is not responsible for their activities . We find no merit in this contention . See Matter of Decatur Iron & Steel Company and Steel Workers Organizing Committee et at , 29 N L. R. B , No 150; Matter of Ford Motor Company and United Automobile Workers of America, Local No. 235, 23 N. L. R. B , 342 Y On the evening of December 12, 1936 , Burke, the respondent 's vice president and general manager, visited the home of Campbell and told him that there was a warrant outstanding for his arrest, sworn out by one of the strikers alleging assault and battery . On the next day Campbell was spirited out of town by John G . Pew, Jr , the son of the respondent 's president , so that the warrant could not be served upon him. When the warrant was finally served upon Campbell the respondent furnished him with counsel and bail without cost . It was during Campbell's presence in court pursuant to the above warrant that he was elected to represent his department. SUN SHIPBUILDING AND DRY DOCK CO. 243 was held during lunch time, discussed the formation of a new labor organization and agreed to meet again on about January 4, 1937. On about January 4, the scheduled meeting of the elected repre- sentatives from the various departments took place and the Associa- tion was formed. Those present selected the name of the new organi- zation, adopted bylaws, and elected Charles Ruth as president. Walter M. Appleby as secretary, and Paul Herman as treasurer. The aforesaid meeting took place in the welding shack on the Com- pany's property at 4:30 p. m. It was undenied that representatives from the second shift who were scheduled to start work at 4:30 p.m. attented this meeting and suffered no loss in wages. Immediately following its formation, the Association ordered mem- bership cards and commenced an intensive organizational campaign. These cards were distributed to the departmental representatives who openly solicited employees for membership, in many instances during working hours. Many of the assistant foremen and leaders became members of the Association. On January 5, the day following the election of officers, the Asso- ciation by letter requested that the respondent meet with it on January, 7. On the latter date, Pew met with the Association and after listening to its demands, which included a request for an increase in wages, Pew stated: I do appreciate your loyalty boys. I cannot for a day or two, give you any decisions, but I am going to deal with our own employees . . . Do what you think is right boys and we will deal with you. I want you to tell your men that I have shown you the rates of 'the other yards and when others raise wages we will do so, -but we just cannot do it now. As testified by Pew, the strikers returned to work on December 28, upon the respondent's promise to meet with the Union between January 1 and 15, 1937, "to discuss and attempt to agree upon the terms and conditions of employment." From the minutes of the respondent's meeting with the Union on January 11, it is apparent that the latter was not accorded the same treatment as the Associa- tion. Nowhere therein does there appear the statement "I am going to deal with the Union," nor the statement "Do what you think is right boys and we will deal with you." At this meeting the Union presented a proposed contract and in addition to other demands requested recognition as the exclusive' bargaining agency of the respondent's employees. As a result of the, dispute as to whether the Union or the Association represented a majority of the employees, a consent election was held on March 19, 1937, under the auspices of the Board. The Association won the election and in December of 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that year entered into an exclusive bargaining contract with the respondent.fo 3. Events preceding the consent election of March 19, 1937 To a large extent the activities of the Association were directed by Appleby and Campbell . Campbell had been the leader in the back- 'to-work movement . Shortly after the formation of the Association, Campbell took a leading role in its activities , particularly with regard to organizing the employees in the shipyard . According to Camp- bell, he and Appleby worked in "complete collusion" with the respond- ent and received its unstinted support and cooperation in the Associ- ation's efforts to break the Union and to secure all employees as its members. Campbell testified that it was with Burke that he had most-of his dealings and further , that with Burke's support he had been able to dominate and intimidate many of the employees as well as some of the supervisors . In the words of Campbell, "Burke was the man I had most of my contacts with. Mr. Pew [Sr.] was Appleby's man. Appleby was a little smarter than I was." Campbell testified that shortly after the meeting at which the Association was formed , he suggested to Burke and Pew that he move to the Imperial Hotel because the family he was then living with was connected with the C . 1. 0., which made it embarrassing for him to carry on his activities there, and because if he was located at the hotel he would "be more centrally located and do a better job of organizing" for the Association . He further testified that Pew, Sr., gave him two $20 bills and that Burke gave him a $10 bill to "clean up my board bill where I was living and to move." Both Burke and Pew denied giving any money to Campbell to enable him to move in order to organize more effectively for the Association . Burke, -however, admitted that he lent Campbell $50 on this occasion . He testified: A. . . . As I recall the first money that I gave him was when, he said that his condition , where he was living, was not pleasant for him. As a matter of fact lie said he was living with a family that was pro-CIO and that they were uncomfortable and that his living there was uncomfortable and he wanted to move. He wanted to move; as I recall, to the Imperial Hotel and he wanted to know if I would let him have money so that he could pay up his board and other obligations that he had , and I did. Q. Was that loan made in anyway in so far as S. S. E. A. or- ganizational activities were concerned or promoted by that fact? A. It was made at his request so that he could move-that his living conditions were not happy where he was . And as a matter of fact I thought it would be a good thing if he got out of that neighborhood because at that time there was no question but 10 See footnote 22, infra. SUN SIiIPBUILDING AND DR Y DOCK CO. 245 what Lewis [Campbell] was in a great deal of danger when he walked around up in that neighborhood, from all the reports that I had or heard about him. In the light of the foregoing testimony of Burke, as well as for reasons hereinafter assigned in drawing our conclusions as to the general credibility of Burke and Campbell, we credit, as' did the Trial Exam- iner, Campbell's testimony that Burke gave him money so that he might more effectively organize for the Association. We deem it unnecessary to 'determine whether Pew played any part in this incident. Several weeks prior to the scheduled election between the Asso- ciation and the Union, Campbell heard that men who had, been on the pay roll as of December 7, 1936, were eligible to vote even though they had since quit, been laid off, or been discharged. He went to Burke and told him of the importance of obtaining their votes for the Association. According to Campbell, Burke agreed with him, and at his request furnished him with a list of the names and addresses of all men whose employment had been terminated since December 7, 1936. At the hearing, Campbell produced a list consisting of 17 typewritten pages bearing headings "Men Laid Off Lack of Work Since December 7, 1936," "Dropped From Roll Since December 7, 1936," "Men Quit or Discharged Since December 7, J936" which he testified Burke gave to him. The latest date of any employee marked "Date Dropped" on the list is March 6, 1937. Campbell testified that during working hours he made up a card index of all the names on the aforesaid list, and that he then: A. . . . told Mr. Burke there was too many people to be contacted in this short space of time in which I had to con- tact them before the election, and I said I would like to have a list of all the names of all the workers who had come to work on December 11, 1936. . . . I felt that any worker who had come through the picket line that day and had been laid off, quit or fired between the two dates of December 7, 1936 and March 19, 1937, if they were approached in the right manner that we would get a majority of them to come in and vote for us. Q. Did you explain that to Mr. Burke? A. I did. I furthermore asked Mr. Burke would he then vest in me this much power, to inform them voters that if we won the election they would be given first consideration and rehired, and he told me yes. According to Campbell, about a week prior to the election lie received the second of the two lists which he had requested, which was in longhand and contained only names and button numbers but no addresses. Campbell thereupon compared the lists and set aside the 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards of employees whose names appeared on both lists as those of persons to visit. Campbell testified that he then asked Burke for the use of a company car but that the latter said that he was afraid that it could be identified through the license plates . Campbell further testified that Burke authorized him to use a taxicab in order to solicit the men whose cards he had set aside , and advanced him $50 toward his expenses , and in the week preceding the election gave him another $150 for expenses . Campbell stated that he hired a taxicab and with the assistance of Joseph Ryan, a fellow -employee, visited the homes of the selected men and "told these workers if we should win their job would be restored to them at the earliest date." Sub- sequent to the election , according to Campbell , he and Appleby made use of the longhand list described above, which they referred to as their "Bible ," ascertaining whether the name of any applicant for work who claimed to have voted for the Association appeared thereon. If it did, Campbell testified , he would make arrangements with either Burke or Employment Manager Vickers to have the men reemployed. Campbell further testified- Early in 1939 I spoke to Vickers, the employment superin- tendent, about this list and the names appearing on this list of people who had come there recently for employment, and lie said if he had such a list it would be of use to him for reference, . . . and would I lend it to him, which I did. Vickers was not called as a witness nor did the respondent make any explanation of its failure to call him. Part of Campbell's testimony was corroborated by the taxicab operator whose cab Campbell hired prior to the election. This witness, Frank Figaniak , testified that on various occasions in March 1937, Campbell hired his taxicab by the trip and sometimes by the hour. Joseph Ryan testified that on the day of the election lie assisted Campbell and,although he did not report for work, received a full day's pay . He further testified: Campbell . . . had a list of men who had been laid off since the strike but who had come to work on the 11th, and he asked those men to come in to vote and he would check them and if they didn't come in, why , myself in company with a boy by the name of Bell went after those men to try to get them to come to the election. Ryan also testified that " Campbell gave me to understand that I was to tell those people that in the event the S. S. E. A. won the bargaining rights for the shipyard that they would be taken care of and put back to work," and that he so informed the 15 or 20 voters whom he contacted. Appleby, who was the principal witness for the Association, testi- fied that, prior to the election , the respondent gave to both the Union SUN SHIPBUILDING AND DRY DOCK CO. 247 and the Association a typewritten list of the names and button numbers but not the addresses, of all eligible voters not then on the pay roll, and that if the respondent gave Campbell a separate list which did contain addresses, he knew nothing about it. Appleby did admit, however, that Campbell had in his possession the long- hand list of former employees which they called the "Bible," and that it was used for the purpose described by Campbell." Burke denied substantially all material testimony of Campbell concerning the election. He admitted that the respondent had in its possession copies of the typewritten lists that Campbell produced at the hearing but denied giving them to Campbell and testified that'he was unable to explain how they came into the latter's pos- session.12 He also denied giving Campbell the longhand list. He denied giving Campbell any money to finance his cab trips in order to solicit votes for the election, but admitted that subsequent to his first loan to Campbell of $50 in December 1936, that "a little later on I loaned him $50 more . . . I don't remember what he said he had to have the money for." 13 Despite his general denials on direct examination, the following testimony by Burke on examination by counsel for the Association lends credence to Campbell's testimony: Q. Mr. Campbell testified that he discussed with you the im- portance of obtaining the votes of all the men who were on the pay roll as of December 7, 1936, and who had not been called back to work. Did he discuss that with you? A. That was discussed many times in many places by a lot of people, in so far as those discussions were concerned, and I wouldn't say it was Aggie or Lewis [Campbell] that discussed it with me. As far as I was concerned I was not interested. I did want to see, personally I wanted to see everyone vote that was entitled to vote at that election. Q. Did Mr. Campbell ever ask you for a company car to get out votes? A. Pardon me? Q. Did Mr. Campbell ever ask you for the loan of a company car to get out votes? 'A. He did; yes, he did. Q. What was your reply to that? >> That the Association was not kept informed of all the activities of Campbell and Appelby is evident by Appelby's admission that "I doubt if there was any one in the yard besides Campbell and myself who knew of the existence of that list because we did not bring it out in meetings or before the grievance com- mittee " 13 Appleby also testified that two lists containing the names and addresses were given to the Board's officials supervising the election. 13 Burke testified that he also made loans to other employees He admitted, however, that he never made a cash loan for as much as $50 to any employee other than Campbell. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I told Lewis that that was impossible, that we couldn't do anything like that . . . I told him that we couldn't become a party to going outside and trying to induce men to come into the plant to vote. Now, I want to go a little farther with this. I don't say that I didn't know that Lewis did that, but I can say this, that I never asked Lewis to do it. I never intimated that he should do it and I never knowingly financed him in doing it. Q. Well, did you ask him not to do it? A. It was none of my business what the man did outside on his own time- why should I? Q. Is it true that you told him that to give him a company car would mean that the license plates would be too easily identified? A I have no recollection of speaking about license plates but I do have a recollection that I told him that that was impossible, that he couldn't have a company car. Q. Now, getting back to the taxicab proposition. I want to ask you another question about that. You say you have no recollection of any talk about a taxicab. Will you say that there was no talk about a taxicab? A. I said I didn't have any recollection of a talk about the taxicab. I have told you about the company car and that is as much as I remember of it. Q. Mr. Campbell says that he offered to submit a list, an itemized list of expenditures [in connection with the election] and you said that wasn't necessary. Is that true or not? A. I have no recollection of that.'4 ]it view of the foregoing testimony of Burke, and in view of our conclusions as to the credibility of Campbell and Burke, hereinafter set forth, we find, as did the Trial Examiner, that the events preceding the election occurred substantially as Campbell testified.i5 On March 18, 1937, the day preceding the election, Burke tele- phoned to Campbell at the Imperial Hotel and, according to Camp- bell's testimony, told him "that he knew there.was a meeting, a rally of CIO Local 2 at a Lithuanian hall in Chester, and he would like to know flow well that meeting was attended." Present with Campbell on that occasion was Ryan, who volunteered to get the 14 Italics supplied 16 The respondent makes the point that inasmuch as the Association had about $400 in the treasury at the time , it is unlikely that Campbell would have asked Burke to defray the expense of soliciting the voters But Campbell indicated , and in this he was corroborated in effect by Appleby, that he did not want the Association to know all that was going on behind the scenes . In any event, the argument that since the Association had money in its treasury , it would not seek assistance from the respondent is not persuasive, SUN. SHIPBUILDING AND DRY DOCK CO. 249 information. Ryan, as he testified, attended the union meeting that night and immediately reported to Campbell what had occurred there. Campbell testified that he then telephoned to Burke at his home and "told him the gist of the meeting." During the course of his examination, Burke volunteered the statement that he had called Campbell at the hotel on the night of March 18, but did not state for what purpose. He did not deny Campbell's testimony regarding this incident. We credit the testimony of Campbell and Ryan and find, as did the Trial Examiner, that the respondent engaged in surveillance of the union meeting of March 18, 1937.- 4. The welding school In about April 1937, the respondent decided to depart from its old method of riveting ships and to adopt the welding technique. Conse- quently, the respondent began to hire new welders and also set up a school for its employees where they could learn the art of welding. Campbell testified that the Association realized that the welding department would become the key craft in the yard and that it was of vital importance to "command that department,'' and that he was selected by leaders of the Association as the man to organize the weld- ing department. It was necessary for applicants for the position of welder to prove their proficiency by' passing tests given to them in the welding school located in the boiler shop.16 According to Campbell, he arranged that either he or one of his confederates, namely, Edmund Robins, Michael Labosky, and Joseph Angelo, was present in the school when an applicant took his test and questioned him concerning his union affiliations and sympathies, and "through talking and other pressure methods they usually did not hesitate very long in signing up" in the Association., According to Campbell, he ``signed up hun dreds -of applicants coming into that welding school. They either signed up with me while I was there or they did` not go `to work." Campbell testified that if an applicant refused to join the Association or had come from a company whose employees were organized by either the C. I. 0. or the A. F. of L., he and his afore-mentioned con- federates would rig the test of the applicant in such a way as to cause him to fail. Campbell claimed that Albert Briggs, who was in charge of the welding school, and Briggs' assistants, Harry Butler, Samuel Adams, and William Davies, were aware of the nature of his activities in the welding school and never questioned his presence there. Camp- bell testified that although the aforesaid supervisors knew that appli= 19 In order of their ability, there are three grades of welders , the third-class welder or tacker , who does the simplest type of welding, the second-class welder who can perform more difficult work, and the first-class welder who can perform the most difficult kind of welding The rates of pay vary- with the designation. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cants' were being "framed," they did not know how it was being done. Campbell also gave the following testimony: Trial Examiner BOKAT. Was Mr. Burke aware of the methods you used in getting applicants rejected? The WITNESS. Itold Mr. Burke what I was doing. Trial Examiner BOKAT. When did you tell him that? The WITNESS. Many times. Trial Examiner BOKAT.` What did he say when you told him? The WITNESS. We do not want to know anything about that. Q. (By Mr. Cunniff.) Did he ever tell you to stop those activities? A. He did not. ,Q. Did Briggs ever tell you to stop those activities? A. He did not; he encouraged them. Campbell's testimony in regard to - the solicitation and fraudulent examination of applicants was corroborated by Robins and Labosky. According to them, Campbell arranged with Assistant Foreman Butler to -have them assigned to the welding school. Robins testified that in -questioning an applicant by the name of Goodrich, he found out that he was opposed to the Association, and therefore: ''We took and threw the switches on him. We, gave him damp wire: We grounded the handles on both'sides. ' And the man was sharp enough to catch all those things. He would correct it. He would ask for 'good wire. , He would ask for the metal and he would stop and` change his heat. So he put up a weld. He passed his test plate and when his test plate was completed we changed it for another test plate that we had laying around and ' had him disqualified. . . '. We told Mr. Briggs what it was all about and he marked it [Goodrich's card] "unapproved." 17 Questioned as to whether or not Campbell had any conversation with him concerning the solicitation of welding applicants for member- ship in the Association, Burke replied, "I have no recollection of any such conversation and I will say that he did not." "Burke also denied that he had any knowledge of the fraudulent activities of Campbell, but admitted that he had heard that Campbell was in the welding school soliciting applicants for the Association, and in this connection testified as follows: I heard of it on one or two occasions and gave instructions that he or' anyone else was to be kept out of there and that the appli- cants or the students or the applicants for new jobs were not to be interfered with. ' And I am pretty sure it was at that time 17 Goodrich evidently suspected that he had been tricked and wrote a letter of complaint to the respondent and was given a position as a first-class welder. Foreman Briggs admitted that despite this complaint he made no investigation into the facts or circumstances which caused Goodrich to fail his test. SUN SHIPBUILDING AND DRY DOCK CO. 251 that there was a sign put up for people to keep out of there who didn't have business in theme. However, Burke never instructed Campbell to keep out of the welding school and it was undisputed tha p no other supervisory employee of the respondent ever instructed him to stay away. In substance, Briggs, Butler, and Adams denied the testimony of Campbell, Robins, and Labosky. Davies was not called as a witness. The Trial Examiner found that Butler, Briggs, and Adams were evasive and contradictory witnesses, and that Labosky and Robins were direct, straightforward, and plausible. An analysis of their testimony supports the Trial Examiner's conclusion, and we likewise find, that the denials of Briggs, Butler, and Adams are not entitled to credence. No satisfactory explanation of how Robins, Labosky, and Angelo received assignments in the welding school was given by either Butler, Briggs, or Adams. Angelo, who testified as a witness for the Association, and who was clearly unfriendly to Campbell, admitted that he saw Campbell attempt to deceive applicants. We accept, as did the Trial Examiner, the testimony of Campbell, Robins, and Labosky regarding their manipulation of the welding tests as being in substantial accord with the facts.18 Similarly, and for the reasons stated above, we credit, as did the Trial Examiner, Campbell's testimony that he and Briggs sifted the list of employees who applied for lessons in the welding school in order to eliminate any applicant who was not a member of the Association. Campbell testified that with but two exceptions, all the students in the welding school were members of the Association. About 350 to 400 employees applied for the student welding courses and about 140 to 150 graduated. Despite Briggs' denial, it is clear that the latter was taking Campbell's advice as to who should be placed in the welding school. For example, Oswald Murphy, a witness for the Association, admitted that he asked Campbell to put three of his friends in the welding school and after making that request, they were so placed. Walter Voytovich, a witness for the Board, testified that when the welding school opened in April, he asked Briggs to place his name on the list. Voytovich at this time was not a member of the Association, and the department he worked in was "practically one hundred per cent C. I. 0." However, Voytovich did not get into the welding school until the summer of 1937 when he became a member of the Association. Again, it was Campbell who, through Briggs, got Voytovich into the school. The record is clear that only two members 18 The respondent introduced evidence which indicated that Campbell was not as successful in securing the rejection of candidates, as he testified. Whether or not this is so, it is clear from all the evidence that, as found above , the respondent permitted Campbell and his associates to carry on organizational activities In the welding school and closed its eyes to their practices. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union were admitted into the school.ts They were Frank Harris and Charles Nyce. Harris Fr.Aered the school through the intervention of his foreman , James . Neary, and Nyce by the aid of Burke. Campbell testified that he complained to Burke about Nyce being placed in the welding s;c:iool and that Burke replied "Well, that is an exception. They can say some day only S. S. E. A. men went to the school and we can say C. I. 0. men went to this school." Burke admitted that Campbell complained about his placing of Nyce in the school, but denied making the above statement. He admitted that Nyce had asked him about getting into the school and that he had told him that he could. We credit, as did the Trial Exam- iner, Campbell's version of this incident. 5. The safety office The respondent also cooperated with the Association in utilizing other methods to enlist new employees as members of the Association. New employees were sent to the safety office located in the yard, where they received safety instructions from Cressy and White, two em- ployees who had charge of the safety department. Campbell arranged that either he, Robins, or George McGlennen, assistant recording secretary of the Association, would be stationed outside the safety office to solicit new employees for the Association. Campbell testified, without contradiction, that he had heard Cressy tell the new em- ployees "that is the Association man out there and he wants to talk to you." According to the undenied testimony of Andrew Reeder, a welder, after he had received safety instructions as a new employee, White stated to him, "Now, in this yard we also have a union, the S. S. E. A. . . . Everybody belongs to it." Campbell further testified: . . McGlennen, Mr. Examiner, met every employee who came to the Shipyard during daylight, during working hours, from the early part of 1938 until the time I left the Association in 1939, everyone, notwithstanding, and I even furnished McGlennen with lists of the number of employees that he would be expected to see from day to day, because I would go out into the employ- 19 The respondent contended that no discrimination was practiced in regard to employees admitted into the school . In support of this contention, the respondent points to a notice to the effect that all employees were eligible for the school, which it claims it posted to correct a contrary impression evidently widespread throughout the yard . Burke admitted that not one riveter from the riveting department , whose work was being supplanted by welding, entered the school. The employees of this department were practically all pro-Union. The respondent contends that riveters did not apply because they believed that the welding school was a scheme for forcing them to become members of the Association , and cites as supporting such contention the testimony of Ruth, president of the Association , that upon hearing rumors as to such belief, he personally addressed the riveters and assured them that the school was open to all employees without discrimination . The respondent, whose records would have shown definitely whether any riveters had applied for admission into the school , did not produce them. Briggs , who kept these records in two books, testified that one of them had been burned, but did not produce the other . However, whether the riveters applied and were rejected or did not apply is immaterial , in view of the finding made above that Briggs did in fact reject applicants because of their union affiliations. SUN SHIPBUILDING AND DRY DOCK CO. 253 ment office and count them and ask Vickers how many were coming on daily, and go back and tell McGlennen to expect so many and he signed them up and before McGlennen signed them up by himself, I myself was on that job and talked with Robins and later McGlennen and I particularly took pains. After the men whose names I have mentioned had taken part in that kind of work and-I decided that MeGlennen was the best qualified to do that job and I even went so far as to tell Bill Brentenaw [William Brientnall, McGlennen's foreman] his boss, that I would have McGlennen do this job for me. When new employees failed to sign up, which according to Campbell happened rarely, McGlennen would report to Campbell the names of those who had not joined the Association, and then according to Campbell, "We would .exert all the pressure that we could on that person to make him sign up." Neither Brientnall, White, nor Cressy was called as a witness, nor was any explanation advanced for their failure to take the stand. McGlennen, who was called as a witness by the Association, in effect admitted the - above testimony. He testified that he discontinued his practice of soliciting new employees outside the safety office in the latter part of 1939, "Because it was deemed [by the Association] advisable at that time that my services could be better used otherwise." McGlennen did not state that he suffered any loss of pay as a result of his activities for the Association during working hours, leaving the inference that he received his regular wages. We find, as did the Trial Examiner, that with the knowledge and consent of the respondent, McGlennen during 1938 and 1939, spent a substantial portion of the working day in soliciting members for the Association. Further, whether or not McGlennen was paid for the time spent by him in soliciting members for the Association, we find that the respondent not only permitted McGlennen to solicit in the yard but represented him as soliciting with its approval and sanction. 6. The reports of Campbell and Appleby and the spying activities of Joseph Nilon According to Campbell, Joseph Nilon, a member of the Union and an employee of the respondent, acted as Appleby's "stool pigeon" in spying on the activities of the Union, and reported to Appleby who in turn reported to Burke. In March 1938, the charter of the Union was withdrawn by the International with which it was affiliated •20 Thereafter, some time in August 1938, a new union was formed known as Independent Shipyard Workers. Nilon was elected secretary of 20 The charter was restored in the latter part of 1939. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this new organization at a meeting held on August 24, 1938, and according to Campbell, a report of this meeting was turned over to Appleby by Nilon., Questioned . as to whether he had made this report to, Appleby, Nilon testified, "I don't recall, perhaps I did." After receiving this report, Appleby put it in typewritten form and, according to Campbell, delivered it to Burke. At the hearing, Camp- bell, produced ,a copy of this report which contained in part the following: A number, of employees from various departments were noti- fied today by word of mouth, that a secret meeting would be held in Lithuanian Hall at 8:00 P. M. to form an independent labor organization. Forty non'attended meeting, several departments were repro- sclited, but particularly chippers, caulkers, and shipfitters. This was followed by a list of the names and addresses of those em- ployees who had attended the meeting and the names of the officers who had been elected. In addition to the aforesaid report, Campbell, at the hearing, produced-a copy of another report referring to the activities of the Independent Shipyard Workers. This report dated December 7, 1938, read in part as follows: Regular meeting of the Independent Union meeting held. McCormick proposed swinging back to C. I. O. However, this proposal was amended on motion of McCarthy that Local #2 'first be felt out to see what sort of proposition they would tender the Independent. The report also stated: FRANK SUDOWSKI, alias King Kong #45-91. First-class fitter. Has always been known as a 100% outside Union man, and who has submitted to Appleby an application for a position for his son; has signed up with the Independent Shipyard Workers, the new independent union, during the week of December 5th. In my opinion neither this man nor his son are worthy of any consideration whatever. WRITE #59-688 Welder on second shift who can be identified as the man who won the $50 cash award in the Safety First drawing recently conducted. Also joined the outside independent Union during, the week of December 5th.21 21 Neither Sudowski nor white was discharged by the respondent, and the respondent did give the former's son a position. That the respondent did not in this instance act in accordance with Campbell's recommendation does not disprove collaboration with Campbell since, as shown below, the respondent did in other cases act upon Campbell's recommendations. SUN SHIPBUILDING AND DRY DOCK CO. 255 Campbell testified that these reports as well as other typewritten reports were given to Burke informing him "of conditions and of my• desire to have men considered for job employment." These reports were typed, according to Campbell, sometimes by Appleby and some- times by Harry Simon, Burke's secretary, and then either given to, Burke or placed on his desk in his absence. ' Campbell further testified that in November 1937, Appleby in- formed him that he had received a report from Nilon that the Union was going to start a drive the following month by distributing to the employees pledge cards designating the Union as their collective bargaining agent, and that Appleby and Campbell decided that if they could obtain the respondent's records of the names and ad- dresses of all hourly and piece workers and send them a card of the same nature through the mail, and do that before the union drive got under way, they would "beat -them to the punch." 22 The re- spondent admitted that the Association was given access to the Com- pany's records. After the names and addresses had been obtained, cards were sent to the employees which stated: I hereby apply for Membership in the SUN SHIP EMPLOYEES ASSOCIATION for the Year 1938 and appoint said organization to be my sole representative in collective bargaining with my em- ployer in matters pertaining to rates of pay, wages, hours of work and other conditions of employment for a period of One Year from above date. Members as well as new applicants ------------------------ SIGN HERE According to Campbell, he and Appleby informed Burke of their activities in printing and sending out the cards. This was not denied by Burke or Appleby. Campbell testified further without contradic- tion that after the signed cards were returned "We had run-down sheets which were furnished by the time office to us, and as. these cards came in we would check off behind the names of the ones that returned the cards." Burke denied that he received copies of the reports set forth-above. His secretary, Simon, did not testify. Appleby did not deny the incidents. Nilon admitted that he collaborated with Appleby but stated that it was solely for the purpose of determining "the extent of the communist control of the working men through Local 2 of the I. U. M. S. W. A." Nilon further testified that his collaboration with 22 Up to this time, the Association had not requested the respondent to enter into a written contract. According to Appleby, in addition to the above stated purpose, the Association sought "the application cards" in order to be able to reaffirm to the respondent that it still represented a majority of the employees, since Pew, before signing a contract, wanted to make certain that this was the fact. On December 31, 1937, the respondent and the Association entered into a written contract as to terms and conditions of em- ployment. On January 18, 1940, the respondent and the Association entered into a new written contract. This latter contract was for the term of 1 year, subject to automatic renewal unless notice was given by other party. Both contracts recognized the Association as the exclusive representative of the respondent's employees. 256 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appleby continued until October 2, 1940, when both men testified before the Dies Committee on un-American activities. The Trial Examiner, who was unfavorably impressed by the demeanor of Nilon as a witness and by his evasive and contradictory answers, rejected his testimony, as well as Burke's denials, and credited the testimony of Campbell. We likewise credit Campbell's testimony and find that Nilon spied upon the Union and the Independent Shipyard Workers and that his reports were conveyed to the respondent by Campbell and Appleby. The respondent in its brief argues that even if Burke had received the reports, there is no showing that they were not voluntarily sub- mitted to Burke without request. However, in the absence of any showing that Burke rejected the reports or otherwise indicated that they were not wanted, we conclude and find that the respondent ap- proved and ratified the foregoing activities of Campbell and Appleby. That the respondent likewise knew and indicated its approval of Nilon's participation in the formulation of the reports submitted by Campbell and Appleby, is revealed by the following incident. On September 2, 1938, Pew's son, John G. Pew, Jr., discovered Nilon asleep on a scaffold. He reported this to a welding leader and Nilon was either discharged, or suspended for 1 week.23 According to the respondent's rule, sleeping on the job was cause for dismissal, and according to its records, the respondent, between 1937 and 1940 discharged 19 employees for being "asleep on the job." Nilon, although not then a member of the Association, complained to Apple- by. Appleby testified that he was "a little burned up about the whole affair" and discussed it with Burke who referred him to Pew who was then out of town, that when Pew returned Pew sent for him and asked him about the incident, that Pew called in his son and told . . . young John that he had no authority to do what he had done and asked me how much money the man had lost by the time he was given off, which was exactly 44 hours, . . . and the amount of money involved was $41.36. Mr. Pew pulled the $41.36 out of his own pocket and gave it to me and I gave it to Nilon. Pew, Jr., testified that his father called him into his office and repri- manded him for discharging Nilon and that he replied that he had not discharged him but had merely reported him as being asleep and had not even known the man's name. Pew, Sr., testified that when he was informed'by the Association committee, which included Appleby, that his son had ordered the discharge of Nilon, he replied, "I never fired a man myself in the 23 According to the respondent 's records, Nilon was suspended for I week , but Campbell and Pew testified that Nilon was discharged. SUN SHIPBUILDING AND DRY DOCK CO. 257 shipyard since I have been in there. I have fired one leader because he was taking money from the employees. I do not want my son to do it. And under the circumstances he can come back to work tomorrow." Pew admitted paying Nilon for the wages he had lost for the week he had been out'of work. Under Pew's version, Pew later learned from his son that the latter had not discharged Nilon, but had merely reported that Nilon was asleep. Pew's testimony with regard to this incident clearly cannot be credited. It is inconsistent with, the testimony of Appleby who testified that Pew called in his son in his, Appleby's, presence. Further, Pew admitted that there was no doubt that Nilon bad been asleep, which according to the respondent's rules was an offense which justified discharge. We do not believe, nor did the Trial Examiner, that Pew, acting solely on Appleby's representation that his son had discharged Nilon, would not only have reinstated the latter, in spite of his unquestioned breach of the respondent's rules, but in addition have given him a week's salary. The only plausible explanation, in view of the fact that Appleby was submitting reports to the respondent based upon Nilon's spying activities, is that Pew reinstated Nilon because he knew that Nilon was Appleby's "stool pigeon" and spy, and we so find.24 7. Norton's assistance in organizing the shipways In June 1938, Campbell concentrated his efforts in an attempt to organize the employees on the shipways, who were strongly pro- Union and among whom the Association had been making little headway. Campbell testified that he asked Superintendent Norton, who had supervision of the shipways, "about cooperating with the organization in organizing, the men on the ways into the SSEA" and that the latter replied that if "I would come in the following Saturday he would have all his foremen meet in his office with me and we would go over the subject." The next Saturday morning, Campbell met with Norton and Supervisors Neary, George Petchel, and Frank Hoot, and -according to Campbell, ways and means of getting the men in the shipways to join the Association were dis- cussed. Campbell further testified, "This meeting was not much of a success We argued back and forth over four hours. Norton 24 Not only did Nilon receive favored treatment in this instance , but again in the latter part of 1938 when he was employed as a second -class welder. At this time, a lay-off of second- and third-class welders was to take place in the welding department and, according to Campbell , he asked Appleby whether "he had taken care of Nilon" and the latter replied that he had forgotten and was going to do it right away and went in to see Burke , and later in the afternoon told Campbell , "I got it fixed up," and had Nilon made a first-class welder Campbell stated that on the following day Foreman Adams of the welding depart- ment told him that word had come from the "office" to make Nilon a first-class welder This testimony was denied by Appleby , but not by Burke , Adams, or Nilon , nor by the respondent through its records. We find , as did the Trial Examiner, that Appleby successfully intervened in Nilon's behalf as testified to by Campbell. 4388131-42-vol 38-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD controls the whole construction [shipways] with an iron hand and they all waited for his say-so and we arrived, at the end of four hours, at no decision . . ." Campbell further testified that sometime later, Norton told him that there was going to be a lay-off in Depart- ment 51 but "word would be spread that if these men were members of the organization, the SSEA, they would be located on another job in another department." According to Campbell, there was in fact, a shortage of work in Department 51 and the employees of that department instead of being laid off, were transferred "elsewhere in the yard and this transfer came about only after the men came over to the Association and signed up in droves, in groups." Norton admitted that a meeting with his foremen and Campbell took place in his office, at which meeting Campbell stated that the foremen were afraid of the C. I. 0. men on the ways, that the Association could not make any'headway on the ways if the foremen continued to be afraid of the C. I. 0., and that the purpose of the meeting was to find out what could be done about that situation. Norton further admitted that in 1938 there was a curtailment of production in Department 51; that the Association had requested that the men in that department be transferred to other departments instead of being laid off; and that many of the men were so transferred. He denied the balance of Campbell's testimony, however, and averred that the transfer of employees from Department 51 was occasioned solely by considerations of seniority and ability and not by any considerations of union affiliation. Norton also gave the following testimony: Q. Isn't it a fact that whenever work got slack in 51-department before, the men were laid off and not transferred prior to this occasion in 1938? A. It is a fact that on a lot of occasions men were laid off instead of being transferred. That depended entirely on what was needed in other parts of the yard. We have never laid off men and hired in other men from the outside. We have tried to take care of them. Q. Now, what I want to know is can you fix for us when, prior to 1938 and since the timeyou were in charge of hull construction, you transferred a large number of men from 51-department instead of laying them off? A. I would have to look over the records. Q. You cannot recall any instance offhand without recourse to your records' A. That is correct. The respondent produced no records showing its previous practice in Department 51. The fact that Campbell did meet with great success SUN SHIPBUILDING AND DRY DOCK CO. 259 in organizing this department at this time, is revealed in the minutes of the Association of August 1, 1938, which state in part as follows: The secretary called on Campbell to report on the recent organi- zation drive in #51 Department.' Campbell stated that great progress had been made and that the Department was better than ninety % SSEA at the present time. We find, as did the Trial Examiner, that the events related above occurred substantially as Campbell testified. The respondent contends in its brief that since there is evidence showing that the Association previously had complained concerning alleged favoritism shown by foremen on the shipways to members of the Union, Campbell, as head of the Association grievance committee,25 was rightfully privileged to call a meeting of the foremen to discuss this complaint. As found above, however, the primary purpose of the meeting was not to settle a grievance, but to discuss the possible coop- eration of the respondent in organizing the men on the shipways. That the respondent agreed to and did extend such cooperation is evidenced by Norton's remarks to Campbell and the subsequent- action of the respondent in transferring employees during the lay-off. Such assistance pursuant to Campbell's request not only constituted direct support by the respondent to the Association, but confirms Camp- bell's testimony as to the privileged role he played as an organizer for the Association. 8. Discriminatory treatment accorded certain welders James Bailey was employed as a welder in that part of the welding department known as C-Shop. He was an intimate of Campbell and aided him in his Association activities. In the summer of 1938, Bailey was chairman of his department and reported to Campbell that he had met with no success in persuading approximately eight welders, members of the Union, to join the Association. Included among these were Chester Faunce, H. Barford, S. Perlowe, J. Boyd, H. Ziegler, and one Lorelli. Campbell testified that he told Burke about these welders and asked him to remove them from piece work and place them on day work. Welders working on piece work earned about $11 a day, whereas welders on day work earned about $7.50 a day. Campbell produced at the hearing a copy.of a report, which he testified was typed by Burke's secretary and placed on Burke's desk.26 It reads as follows: 22 As hereinafter stated, shortly after the creation of a strategy board by the Association in September 1937, Campbell as a member of such board was designated "Investigator of Grievances" for the entire plant. 26 The submission of reports to Burke by Campbell and Appleby is described above. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AUGUST 3, 1938 59-360 C. Faunce 193 H. Barford 204 S. Perlowe 291 J. Boyd 132 H. Ziegler Above list of names are those of the welders who have been working in "C" shop for the past couple of years (piece workers). The list is the one which I spoke to you a couple of days ago. The following list is the names of our boys who think they are entitled to an opportunity of working do piece-work: E. Lanza G. Gibson M. Senak Tuttle Peverrio I spoke to Butler and it is 0. K. with him. Mallen, Sabot and Rappe are the names of three riveters signed 21 up this morning and who got cards. Burke, his son, Dogcatcher #55-268, and young April are follow- ing suit. These men are all riveters. Thereafter, according to both Bailey and Campbell, Faunce, Per- lowe, Boyd, and Lorelli were trasferred to the boiler shop where they received the day instead of the piece rate. Within a day or two after the above transfers, the rest of the eight welders who had theretofore refused to join the Association became members, and remained on piece rate. Bailey testified that after Boyd was transferred to the boiler shop he joined the Association "and the next thing you know he was a shop steward for the welders over there and I think he kind of liked it over there. He was getting a lot of overtime and bonuses and I believe he is still there." Bailey could not recall whether Lorelli joined the Association or not but testified that Perlowe "got disgusted, I believe, and quit." With regard to Faunce, Bailey testified that after Faunce had been in the boiler shop for 6 months he "made a deal with Campbell," was thereupon transferred back to piece work and joined the Association a day or two thereafter. The respondent did not call any of the above-named welders as witnesses, although some of them were still in the respondent's employ at the time of the hear- ing. The Board called Faunce as a witness, and he corroborated the SUN SHIPBUILDING AND DRY DOCK CO. 261 testimony of Bailey. Faunce testified that he was employed by the respondent as awelder in the middle of 1936 and continued to work-on piece rate until December 1938, when he was transferred to the boiler shop; that he remained there on day rate until June 1939; that he was then retransferred to his original department on piece work; and that be joined the Association at about that time. The respondent did not deny that the above transfers took place nor did it produce the earning records of the individuals involved to show what they had earned before and after their transfer to the boiler shop. , Assistant Foreman Harry Butler, in admitting the transfers, stated that these men were needed in the boiler shop and that their transfers were not occasioned by their union affiliations. In view of the circumstantially persuasive facts set forth above, and the frank, consistent, and con- vincing testimony of Faunce - and Bailey, with whose demeanor as witnesses the Trial Examiner was equally impressed, we do not credit the denials made by the respondent in connection with this incident. We are convinced, and find, that the respondent effected the transfer of the above-named welders to day work for the purpose of coercing them to relinquish their membership in the Union and join the Asso- ciation. 9. The lay-off of Charles Knapp In the summer of 1937, Charles Knapp, who was employed in De- partment 60 as a burner, was president of the Union. Campbell testified that he and Appleby decided that with Knapp out of the yard, it "would just about break the morale or what was left of the morale, of Local No. 2," and that he "broached that subject to Mr. Burke from time to time and also once or twice in company with Appleby." Campbell further testified: Burke agreed with me but said at that time that they were following along the lines of seniority and in order to get Knapp he would have to lay off more burners than the yard could afford to lose at that time because of production. I visited Burke from time to time after that on the same subject and in the latter part of 1937 or the early part of 1938 I spoke to Burke again about that. He told me that he thought that he had found a solution for the Knapp situation.-Burke told me at that time that he was going to lay off burner [sic] down to Knapp and cut two or three deeper in order that it would not look so conspicuous. Burke denied the above testimony; Appleby did not. In February 1938, Knapp was laid off together with some other burners. The re- spondent produced evidence showing that in February 1938, produc- tion in the shipyard was in a period of decline and that a total of 266 employees were laid off in various departments. Its records also 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show that of 20 burners laid off with Knapp, 2 had greater seniority, 3 had equal seniority, and the balance had less seniority than Knapp. These figures are consistent with Campbell's testimony that the re- spondent intended to "cut two or three deeper." We believe Camp- bell's testimony,' as did the Trial Examiner, and find that the re- spondent laid off Knapp because of his union. affiliation and activities. Two or three months later, all the burners with the exception of Knapp were reinstated. The respondent- contended that it did not rehire Knapp because it learned that Knapp had stolen union funds. It appears that Knapp did in fact steal union funds, and under the circumstances his prior discriminatory lay-off does not persuade us that the respondent denied him reinstatement because of his union activities. We find, as did the Trial Examiner, that the respondent's refusal to remstate Knapp was not discriminatory. 10. The Discharge of Outten In October 1938, Eldridge Outten who was employed as a welder, yielded to the 'solicitations of his working partner, James Monroe, and agreed to join the Association. Monroe then brought Outten to Campbell and told him that Outten had agreed to join the Associa- tion. Upon Outten's statement that he had no money with him, Monroe volunteered to advance the necessary 50 cents for the yearly dues. Campbell then gave Outten a membership card, but the latter threw it out of the window. According to Campbell, "I was per- turbed over this and I told Outten we didn't leave members in the Association this way and gave Monroe back the fifty cents." Camp- bell testified that on the same day Assistant Foreman Adams re- marked to him that he had heard that Outten had thrown a card out of the window and said, "I will keep my eye on that man." Camp- bell testified that the next day, Adams told him, "Well, I got that man Outten . . ' . He did a job, a nasty job." Campbell also testified that he was present that afternoon with a group of super- visory employees when Adams sent for Outten and told him, "You put up a bad job up on that butt last night, didn't you," and that Outten replied, "It looked a little rough but it is a first pass," and that Adams then discharged Outten. Outten, called by the respond- ent, testified that the day before his discharge, he was finishing up his work and in order to reserve a particular weld for himself so that the following shift would not "get it," he welded what is known as a "first bead" and instead of "building up" this bead as is generally done, he "bridged it," but "thought it would get by until the next night." Outten further admitted that although this was not an un- common practice among the welders, they generally were not caught by their supervisors. He also testified that even though a poor first bead is put in a particular weld, after it is caulked and finished, SUN SHIPBUILDING AND DRY DOCK CO. 263 "you can't tell it from another job," and the result would be the same as if a good first bead had been made. Following his discharge , Outten asked Campbell to intercede for him with the respondent , but Campbell at first refused because Outten was not a member of the Association . However, according to Outten, his friend Monroe kept after the Association until it agreed to intercede for him. Shortly thereafter, Outten was reinstated and joined the Association . Campbell testified that it was he who finally agreed to take up the matter with Burke, and that he told Burke, "that I thought it would be a good policy to reinstate Outten ... He was a good welder, was well liked by the welders on his shift and would do the Association a lot of good among the other welders on the second shift." Burke, while in effect , denying the above conversation, ad- mitted that the Association had intervened for Outten and testified, "I thought that the man had been out long enough to have taught him his lesson and I agreed with the committee that we would rehire him, which we did." 27 The respondent conceded that Outten, prior to his discharge, had always done very good work . Prior to this offense, Outten had never been disciplined or warned because of faulty work or otherwise . Nor did the respondent show that any other welder had been discharged for an offense similar to that committed by Outten. The above facts are substantially undisputed except that Adams denied that he had any conversation with Campbell prior to Outten's discharge, or that he had learned that Outten bad thrown an Association card out of the window . In view of the evasive and con- tradictory nature of Adams' testimony, upon which we have com- mented above, we do not credit his denial. We find, as did the Trial Examiner, that the circumstances surrounding Outten's discharge were substantially as Campbell testified , and that the respondent in discharging Outten was motivated by the hostility he displayed toward the Association in throwing the Association membership card out of the window. ' 11. Further instances of Association support; other incidents signifi- cant of Campbell's relationship to the respondent In September 1937, the Association formed a strategy board "to take' up and plan all movements of the Association when such action is required immediately for the benefit of the Association." Camp- bell, Appleby, Robins, and others were members of this board . Accord- ing to Appleby, about a month after the creation of the strategy board it made Campbell "Investigator of Grievances" so that he would have a right to go into any department without restriction . From the date of such appointment until Campbell left the Association in August 27 Outten was reemployed by the respondent on January 4, 1939. 264 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1939, he spent practically all his working time on behalf of the Asso- ciation.28 According to Campbell, however, his efforts were spent not merely in investigating grievances, but in carrying on organizational and other work on behalf of the Association with the full knowledge of the respondent, and we so find. Joseph Rusek, a respondent's wit- ness and a leader in the welding department, admitted that he knew that Campbell was the "chief organizer" for the Association. In- stances of the nature of Campbell's activities have been cited above It was not disputed that Campbell effectively settled about 95 per- cent of all grievances. Campbell testified that shortly after the formation of the Associa- tion he organized a "strong-arm squad," selecting as members "the toughest, hardest hitting specimens in the shipyard." Its purpose, according to Campbell, was to intimidate the union members, many of whom "were sturdy specimens," and to insure "elimination of fisti- cuffs or physical violence." Campbell described several incidents in which the alleged "strong-arm squad" played a part. Physical vio- lence was not used on any of these occasions. According to Camp- bell, when the need for the squad arose he would either telephone or notify the supervisors of the several members of the squad during working hours and they would invariably be sent to him. Robins, Bailey, Labosky, Ryan, and Warner Holt, members of the squad, cor- roborated Campbell's testimony. Appleby testified that Campbell told him that he had selected certain friends of his who were "good boys with their fists," and if there was any trouble in the shipyard "we could call on" this group of "tough boys." Campbell further testified that he told Burke of the purpose of the squad but that the latter "did not commit himself on it. He said he didn't want to know about that." Burke in denying this testimony testified that lie only heard of the "strong-arm squad" by "general rumor, but it never functioned to my knowledge. I never heard tell of a fight or a man being struck in the plant." The respondent's supervisory employees and the Association members who testified at the hearing and who were questioned about this squad, with the exception of Appleby, denied having any knowledge of such a squad. From all the evidence we are convinced and find, as did the Trial Examiner, that Campbell did select a group of employees whom he termed his "strong-arm squad"; that Burke knew of its existence but voiced no objection; and that the respondent's supervisory employees believed that Campbell was acting with the backing of the respondent 'S The pay-roll records of the respondent show that starting in December 1937, shortly after Campbell was appointed by the Strategy Committee as "Investigator of Grievances ," and continuing until August 1939, Campbell's time was charged to a non -productive charge number Chetty , Campbell's foreman, testified also that during 1938 Campbell did "very little, if any" productive work, and that he never ques- tioned Campbell 's absence from the department because he knew that Campbell had been appointed "to the grievance board as chairman." SUN SHIPBUILDING AND DRY DOCK- CO. 265 and accordingly, with few exceptions, made no attempt to interfere with his activities on behalf of the Association. While the respond- ent's supervisors may not have been aware of the purpose for which Campbell summoned these men, they nevertheless permitted the members of the squad to leave their work at Campbell's request. It is clear that if the respondent had not approved the actions of Campbell this practice would not have prevailed. We find that, by thus giving Campbell free rein in the shipyard, the respondent helped to strengthen the Association at the expense of the Union.29 Evidence of Campbell's close collaboration with the respondent in matters affecting the Association is also to be found in Campbell's testimony that prior to an election conducted by the Board among the pattern makers on August 22, 1939,30 he talked to Burke concerning his prospective solicitation of those employees. Campbell testified that he and one John Begley solicited the pattern makers at their homes, and induced a majority of them to sign cards designating the Association as their collectiti e bargaining agency. , He further testified: These men were reluctant to sign and I told them that if they didn't sign with the Association that before we would let them interject a wedge into the solidarity of the Association, that we, the Association, would recommend to Mr. Pew very strongly that he get his patterns made elsewhere. Q. Did you discuss that statement with anyone before you made it? A. I did. Q. With whom did you discuss it? 29 One of the incidents in which the "strong-arm squad" took part, and which is illustrative of his rela- tionship to the respondent , was described by Campbell as follows In June 1937 , all of the employees of the riveting department went on strike because they refused "to sanction SSEA bargaining for them ." About JO a in of the morning of the strike Campbell was at home when one MacMorris , employed by the respond- ent as a chauffeur, appeared there and told Campbell that he was wanted in the shipyard at once because of a strike MacMorris then drove Campbell to the plant in a "company car " Upon Campbell's arrival at the yard Appleby informed him of the.strike and suggested that "it was a good idea to get the strong-arm squad together," in the event of a sit-down strike Campbell thereupon telephoned Foreman Butler and requested him to send Labosky and Robins to the yard cafeteria Campbell met them there and instructed them to meet at a pre-arranged place with as many employees "as they thought would be all right" in the event they heard the powerhouse whistle which Campbell proposed to pull Campbell also got in touch with the other members of the squad and made the same arrangements . Since no sit- down strike eventuated Campbell's plan was not placed into action Appleby'testified that when he heard of the strike he telephoned Campbell at his home and told him to come down to the yard at once, but denied suggesting to Campbell the use of the "strong-arm squad " In crediting, as did the Trial Exam iner, Campbell 's version of this incident , we set it forth primarily because of the part played by MacMorris, the respondent 's chauffeur MacMorris was not called as a witness nor was any explanation made for his failure to testify Furthermore , the respondent attempted no explanation as to who authorized MacMorris to call for Campbell and to chive him to the shipyard in a company car ii Matter of Sun Shipbuilding and Dry Dock Company and Pattern Makers' League of North America, 14 N L R B 292 The petition for investigation and certification of representatives was filed by the Pat- tern Makers League , and the election among the pattern makers was ordered by the Board to determine whether they wished to be represented by the Association or by the League . The Union, although a party to the foregoing proceedings , did not have its name placed on the ballot Neither the Pattern Makers League nor the Association received a majority vote in the election, and accordingly the petition was dismissed by the Board , id, 15 N L R. B 771 266- DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I talked it over with Appleby-I talked these things over with Mr. Burke. Q. Did you discuss with Mr. Burke the question of the pattern- makers? A. I did. Q. Did you tell Mr. Burke what you were going to tell the patternmakers? A. Yes, sir. Begley, who testified as an Association witness, admitted soliciting the pattern makers , but denied doing it at their homes. Appleby testified that Campbell and Begley did solicit pattern makers at their homes. Burke testified as follows with regard to this incident: Q. Campbell testified at page 286 of the record that he told you he had intended to tell the pattern makers to sign up with the S. S. E. A. and to vote S. S. E. A . in the election or else Mr. Pew would get his patterns made outside. Did he ever make that statement to you? A. I have no recollection of any such statement. 'Q. Did he ever make it? A. He did not to me. As a matter of fact Mr . Pew handled that pattern makers situation himself one hundred per cent. I was out of the picture . I had plenty to do in the yard and Mr. Pew handled that. In view of our previous findings with respect to Burke's collaboration with Campbell in promoting the interests of the Association , and for the reasons hereinafter set forth in reaching our conclusions with regard to Burke's and Campbell's general credibility , we find, as did the Trial Examiner, that Campbell consulted Burke prior to the pattern makers election as testified by Campbell. All the business and meetings of the Association took place in the shipyard ; in fact, the respondent set aside for it a portion of one of its buildings where the Association could meet and carry on its busi- ness. The departmental representatives and the officers of the Asso- ciation met in the shipyard once a month at 4:30 p. in., and until the early part of 1939, the representatives of the second shift who were scheduled to begin work at 4:30 p. in. suffered no loss of pay while attending meetings of the Association . Elections for officials of the Association also took place in the shipyard . At the election in one of the departments in the yard the ballots were placed in the time- card racks , employees voted as they came to work, and the ballots were counted during working hours. The annual organizational cam- paign of the Association was conducted in the various departments by the departmental representatives of the Association . We find, as did the Trial Examiner, that much of it was openly done during SUN SHIPBUILDING AND DRY DOCK CO. 267 working hours, without objection by the respondent. Although the evidence shows that some solicitation by the Union also took place on company time, it was carried on sporadically and more or less cov- ertly, and not in the open, bold manner or with the magnitude and intensity of the Association's activities. 12. Campbell's dismissal from the strategy board On August 22, 1939, the welders complained to Campbell about a new piece-work accounting system which the respondent had put into effect. The next day, Campbell, Appleby, and a committee of the welders met with Pew to discuss this grievance and it was satisfactorily adjusted. During the conference, according to Campbell, Pew stated ". . . where does Aggie [Campbell] fit in here-he is not a welder, he is a boilermaker." Campbell further testified: I had not said anything up to this time. I told Mr. Pew that I had been handling the affairs of the welding department for almost three years, along with the other departments, and I had settled grievances satisfactorily to both management and the employee. He again asked me what I knew about welding. I asked Mr. Appleby at this time to explain to Mr. Pew my status, and Appleby told me in front of Mr. Pew and in front of thirty-five welders in the committee that "This is not the time or place to define your status." Pew testified that on this occasion he objected only to Campbell's ability to judge a weld, since Campbell was a boilermaker and not a welder. Pew admitted that prior to this occasion he had never questioned Campbell's right to speak on behalf of the employees. This incident is set forth at length because it has an important bearing on the testimony of Andrew Reeder hereinafter discussed. Campbell's version of this incident is confirmed by the following letter from the Association to Pew dated August 29, 1939, signed by Appleby: At the conclusion of the meeting last Thursday in your office, a regrettable incident took place which was undoubtedly em- barrassing to all parties present. A question arose as to the office and duties of Lewis A. Camp- bell, a member of the SSEA. Although this may appear to be purely an affair of the Union, we believe that an explanation is in order inasmuch as the question concerned the handling of grievances. In 1937 the Strategy Committee appointed Campbell "In- vestigator of Grievances" to act in certain cases which appeared to be serious, and to report his findings to said committee. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since that time the Committee has continued to function, being re-appointed from year to year by the Board of Chairmen, with a few changes in the Committee membership. Due to lack of action to the contrary on the part of the Strategy Committee, Campbell has continued in his appointed position and has investigated many grievances which he rightfully assumed was his prerogative. The Strategy Committee has given this matter serious con- sideration and will undoubtedly take it before the Board of Chairmen. In the meantime, however, the Committee has dis- continued the office of "Investigator of Grievances" until such time as this office is clearly defined and confirmed by the Board of Chairmen. Trusting you will accept this explanation in the spirit in which it is given and assuring you of our desire for mutual under- standing, we are . On August 31, 1939, Appleby again acting for the Association, sent Campbell the following letter: You are hereby notified that you have been suspended asa member of the Strategy Committee as of this date. By a unanimous vote the Committee has acted in this matter due to your participation in a conspiracy to sabotage the SSEA and for your attempt to form a dual labor organization among the welders of the yard. Campbell denied that he had ever attempted to form a dual labor organization among the welders or had participated in any conspiracy to sabotage the Association. James Preston, a member of Inter- national Brotherhood of Electrical Workers, affiliated with the A. F. of L., testified that on several occasions in 1938 and 1939, Campbell discussed with him the possibility of organizing the respondent's em- ployees as an affiliate of the A. F. of L. Preston, who was a good friend of Appleby's and had at the latter's request testified as a witness for the Association, admitted that he had had similar conversations with Appleby. Appleby, who was the moving force in the expulsion of Campbell, was thus doing the same thing which allegedly caused him to bring about Campbell's suspension.31 In view of all the cir- cumstances, we believe, as did the Trial Examiner, that the Associa- tion did not suspend Campbell because of his talks with Preston but rather, because he was then in disfavor with the respondent as a result of the activities of Reeder more particularly set forth below. Campbell testified without contradiction, that shortly after his suspension, Burke told him "that I had better go back in the boiler ai Appleby resigned from the Association in December 1940, to become a member of the A. F. of L He appeared every day at the hearing, however , assisting counsel for the Association in defense of the charges herein. SUN SHIPBUILDING AND DRY DOCK CO. 269 shop and stay there because Mr. Pew was getting mad at me or I would be fired," and that he thereafter remained in his department. Campbell further testified without contradiction, that at about this time he asked Burke: . . . "do you think I am organizing for the A. F. of L." And he said: "Yes, I do, Lew." "Well," I said: "You are wrong." Mr. Burke stood up and said: "I have got the reports right here in my pocket that you are organizing for the A. F. of L. I said- "I would like to know who gave you them reports, I would make him hard to find." . . . I told Burke that I -had been fair with the Sun Ship-more fair than they have been with me all the way through right down the line. I told Burke-I said: "The day I go into any other union I will notify you first of all." And I did; . . .32 Paul Herman, a member of the strategy board, testified that he had been absent from the meeting at which Campbell had been suspended, and that he raised holy particular hell at the [next] meeting because this action had been taken. . . I felt from the previous work that Camp- bell had done and the man had worked hard day and night to organize the yard, . . . I took the stand that the man should be given an opportunity to resign instead of being ousted in this matter and I also felt kind of sore because it was done while I was not present. As a result of the intercession of Herman, Campbell was permitted to resign from the Association.33 As we have stated, the testimony of Andrew Reeder reveals the real reason for Campbell's being stripped of his influence and sent back to the boiler shop. Reeder testified, that as a result of answering an advertisement which appeared in a Philadelphia newspaper, he obtained an appointment with Harry N. Brown, of the Brown Survey Company. According to Reeder, Brown told him that he would give him a letter to a certain shipyard in the vicinity of Philadelphia and that upon presentation of that letter he would be given a position as 32 On December 11, 1939, Campbell joined the Union and notified Burke of his action 33 The minutes of the Association meeting of September 11, 1939, contain in part the following The resignation of Lewis (Aggie) Campbell from the SSEA has been received and accepted at a meeting of the board of officers Mr Campbell has resigned of his own free will to give his undivided attention to his work in the Boiler Shop. Mr Campbell's activities as a member and an officer have been entirely satisfactory and above reproach and we wish him all the luck in the world , 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a welder, and that in addition to getting his welding wages from that company he would receive $2 for a daily written report to be sent to Brown each day,' stating "what went on in the yard between the men and the foremen." On April 24, 1939 , Reeder presented the following letter to Pew: MY DEAR MR. PEW: This letter will introduce to you Mr. A. W. Reeder who is desirous of securing a position with your Company. I understand he is a first class welder and if you can do anything for him it would certainly be appreciated by the writer. Yours sincerely, ! 4 /s/ Judge BROWN. Pew told Reeder that he was to report to Brown concerning safety in the yard, the efficiency of the employees and the relationship between the supervisory employees and the workers . Pew further informed Reeder that from then on he was to have no communication with him and that all his future dealings should be "through Mr. Brown." Reeder carried out his orders and until June 1939 , was not asked to, nor did he make , any reports concerning union activities . However, in June, according to Reeder , at Brown's request he went to the latter's home, where Brown told him: "Everything was going along fine but one thing else he wanted me to do." . . . He wanted me to mingle with the men outside of the yard on the corner ., He said there was a certain element of radicals-two or three different groups-outside labor organiza- tions that would like to get in there and cause trouble and to pick the ringleaders out and get in touch with him at his home or his office and to report to him verbally .. I never was to write it down. And he in turn would get in touch with our friend. Q. Did he tell you who "our friend" was?' A. Meaning Mr. John Pew. "And he would deal with them from then on . ' ' ' ' " Q. Did you make any'verbdl reports to Mr. Brown?' A. I made approximately nine or ten verbal reports. Reeder, testified that all during this time he was a staunch union member, and that he therefore discussed the aforesaid instructions with Michael Shapiro, the local organizer for the Union , and that they agreed, "that in order for any legitimate labor organization to ever organize that yard a man by the name of 'Aggie Campbell would have to be removed from the head of that, organization . He held SUN SHIPBUILDING AND DRY DOCK CO. 271 that organization in his fist." Reeder testified that, in order to dis- credit. Campbell, he reported to Brown as follows: . . . that Aggie Campbell was agitating the welders; he had a strong arm squad and was discouraging the S. S. E. A.; that he is going into the welders meeting and telling the men they are ,not getting paid for what they are doing and that he was under- mining secretly the S. S. E. A. in order to bring an outside labor organization into the yard.34 According to Reeder, he made oral reports concerning Campbell over a period extending from June to August 1939, and also made oral reports as to Edmund Robins who was a close friend and associate of Campbell, as follows: This man was taking the men under him, the S. S. E. A. men, and giving them dangerous work, bad work on jobs where they could make no money in order to discourage them and to fall in line with him in Aggie Campbell's organizing a new union in the yard.36 Reeder further testified that the oral reports made concerning Camp- bell and Robins were in fact untrue. Brown, president of the Brown Survey Company, testified for the respondent and admitted all of Reeder's testimony except that he had ever asked the latter to report on union activities. The Trial Exam- iner was unfavorably impressed by the demeanor as well as the testi- mony of Brown. An example of some of Brown's testimony follows: Q. Mr. Reeder further testified at page -1136 of the record, that at a meeting in your home in June 1939, which was about a month after he had originally been employed, you told him that you wanted him to mingle with the men outside of the yard; that there was a certain element of radicals, two or three different groups, outside labor organizations that would like to get into the yard and cause trouble. Do you remember any such conversation? A. That is an untruth. ' ` Q. Did you ever tell him anything like that? A. Yes, sir; I did. ,Q. What did you tell him? A. I told him when he was off duty like Saturdays and Sundays and he was out of the yard, to knock around on the outside and 31 Note that in the Association 's letter to Campbell set forth above, it referred to Campbell 's alleged "participation in a conspiracy to sabotage the S S. E A." and his "attempt to form a dual labor organi- zation among the welders of the yard " 35 Similarly, on the same day that the strategy board dismissed Campbell it also dismissed Robins Its letter to the latter stated : "This action is due to the fact that you have not attended the meetings of the Committee for several months " 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mingle with the employees and to get what information he could from them because they all talk shop when they get out there. I said you may get some pointers out there to check back on and see whether these things are true. But as far as unionism, I didn't tell him that because that is something we don't do. Q. Did you want him to get information from the men on the outside about union activities? A. None whatever. In fact every time he sent me a report like that I would caution him afterwards about sending them in, but they would send them anyhow. They would have a conversation and put it in the report and start out on union stuff and I would cut it out. Q. When would you cut it out? A. As soon as I got the report. I would cut it out and hand it over to our people to rewrite and send Mr. Pew the copy that was edited. Q. What would you do when he started to orally to report to you about unionism? A. I told him to cut it out-I didn't want to hear it. Trial Examiner BOKAT. Did he ever make any oral reports to you, Mr. Brown? The WITNESS: Well, I don't know if you would call that an oral report-sitting in there while waiting for his money and he would talk over his work for the week.' He would probably bring out something there and he would probably ask little questions and I would say: "Yes," do this or that, but as far as unionism is concerned he has spoken of different ones-spoke of a man by the name of Campbell and so on- others . . . Trial Examiner BOKAT. But he did make some statements about Campbell? The WITNESS. Once or twice he did. Q. Did you ever report to him [Pew] orally on unionism in the yard? A. No, sir. I have talked with Mr. Pew on several things when we would bring out these different questions but never, never, about checking or anything of that kind. We have naturally said something about unions and so on, because of my long service with him and things of that kind but never a report on it. SUN SHIPBUILDING AND. DRY DOCK Co. . 273 Pew also denied receiving any written or oral reports from Brown concerning the union activities of his employees.36 In view of all the evidence we do not credit this -denial. ' To what extent Pew was familiar with the collaboration of Campbell and Burke is conjectural. But that Pew looked favorably upon Appleby is evidenced by the Nilon incident described above, and the fact that Appleby was the one that suggested to the strategy board that Campbell and Robins be dismissed is not without significance. There is evidence to indicate that several months prior to Campbell's resignation, Pew was becom- ing irked with Campbell. Pew, on August 24, 1939, for the first time questioned Campbell's authority at a grievance committee meeting. This was quickly followed by a letter of apology from the Association and Campbell's suspension as "Investigator of Grievances." The substance of Appleby's letter to Campbell is almost identical with the oral reports about Campbell made by Reeder. Finally, as set forth above, when Campbell asked Burke if the latter thought that he was organizing for the A. F.- of L., Burke replied "I have got the reports right here in my'pocket that you are organizing for the A. F. of L." The cumulative effect of the evidence permits little doubt as to the truth of Reeder's testimony. The Trial Examiner also found Reeder to be a credible witness, and we find, as he did, that the respondent, through Brown, requested Reeder to report on union activities. We further find that Reeder's reports were responsible for the hostility displayed toward Campbell by the respondent at the grievance meet- ing on August 24, 1939, that by such conduct the respondent made it evident to Appleby and the other members of the Association com- mittee then present that it deemed Campbell no longer acceptable as a representative of the Association, and that the respondent thereby in effect requested and was responsible for Campbell's subsequent dis- missal from the Strategy Committee. 36 Pew did in fact receive some written reports from Brown concerning Campbell The following is one dated July 22, 1939 "Today I was talking to a shipfitter by the name of Wm Wallace who works under Mr. Wilson This man was talking about Aggie Campbell and said he causes more trouble among the men in the yard than any other ten men and he is continually fighting outside the yard after working hours with a gang of men which are known as Aggie Campbell's strong arm gang. "From the way this man Wallace speaks and a few other men that I have heard in daily conversations, they think this man Campbell is put up to these things by the Company or at least has the Company's approval or has some influence with some of the foremen or the higher ups in the yard Most of the men say that Campbell does practically no work at all in the yard because all they ever see him do is walking around the yard during working hours. "This is about all the information I could gather today that would be of interest to the yard." In Reeders' report of August 11, 1939, appeared in part the following "After work I stopped in a tap room up the street where I saw Aggie Campbell talking with two welders but I could not find out what they were talking about. It seemed very important as they sat way off in the corner and kept watching every man that came in " In the report dated August 24, 1939, the following appeared. "At lunch time all the welders had a special meeting discussing piece work and Aggie Campbell was there speaking to them . The welders were complaining about the counting up of their work after they go home and not being allowed to carry work from one day to another." 438861-42-% of 38-19, 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13. The credibility of Campbell and Burke The Trial Examiner, who found Campbell to be a credible witness, specifically noted that Campbell's character and demeanor as exhibited on the witness stand was such as to render convincing his testimony as to the role he played in the respondent's shipyard. He gave full consideration to Campbell's possible motivation in testifying as he did. We also have considered the possibility that Campbell was moved by a desire for revenge against his former associates in the Association and against the respondent, but we do not believe that the possibility of such motivation destroys his credibility. The fact is that, in addition to its convincing character, Campbell's testimony in support of the findings made above was corroborated by undisputed facts, documentary proof, and the testimony of other witnesses whom we have found to be credible. Moreover, the respondent in many instances failed to call witnesses who were apparently able to throw additional light on the facts and many of the witnesses whom it did call made significant admissions or failed to deny material testimony.37 In its brief, the respondent cites numerous instances which allegedly show the general falsity and misleading nature of Campbell's testi- mony. An examination of the testimony referred to by the respond- ent, however, fails to reveal such falsification, if any, as would destroy Campbell's general credibility. In most instances, the respondent's contentions appear to rest upon an erroneous interpretation of Camp- bell's testimony, or upon the fact that Campbell testified as to certain facts which, without further explanation, might give rise to an in- ference prejudicial to the respondent. In some instances, the respond- ent elicited such explanation from Campbell on cross-examination; in others, it did, not. These "half truths," as the respondent refers to them, reveal no falsification, and the possibility of any unwarranted inference being drawn therefrom presumably could have been dispelled by further cross-examination of Campbell. Illustrative of the fore- going comment are the following examples of Campbell's testimony referred to by the respondent as supporting its contention that Camp- bell testified falsely and "distorted" and "misinterpreted" the facts. The respondent contends that Campbell was guilty of a "deliberate misstatement" of fact in testifying that none of the men who returned to work through the picket line on December 11, 1936, engaged in any productive work that day. Campbell in fact testified that so far as his department was concerned and "to the best of my knowledge," none of the men performed their regular tasks although they were paid their usual wages; that he went in to several other departments where he found "a little activity dotted here and there"; but that "there was actually no production that day because welders were mostly out and $7 Burke, in particular, made damaging admissions and at times either failed to deny pertinent testimony or was unable to recollect what had occurred. ,STUN S=BUTLDLNG AND DRY DOCK CO. 275 a lot of those in were afraid to strike an are, they didn't want to be identified as scabs." Campbell admitted that he did not go into all of the departments. While numerous witnesses called by the respond- ent testified that they and others in their department worked that day, such testimony is not so inconsistent with Campbell's testimony as to indicate that Campbell made a "deliberate misstatement." Moreover it was admitted by the respondent that there was a shortage of men in some of the departments, and in view of the general confusion which admittedly accompanied the breaking of the picket line, it is reasonable to infer that under such circumstances there was little or no productive work performed by those who entered the plant. As a further indication of Campbell's falsification, the respondent points to his testimony relative to taxi expenses prior to the Board's election, and specifically to his failure to account for the difference between the $200 which Campbell testified was given to him by Burke and the $123 -total on the memorandum which Campbell kept to show his expenditures in soliciting votes. Campbell testified that he received the $200 from Burke to defray expenses incurred by him in "the solicitation of votes from these absentee voters," and not that the money was to be used exclusively for taxicab fare, as the respond- ent's contention indicates. Nor did Campbell testify that he kept a complete account of all expenditures in order to account to Burke. He admitted that the memorandum did not include all expenses, and explained that some of the difference of $77 could be accounted for by additional expense incurred in making telephone calls. The fact that Campbell was unable to give a further accounu of his expenditures other than was shown by his memorandum is no serious reflection, if any, upon his credibility. Moreover, according to Campbell, Burke had refused his offer of an itemized statement and told him that he (Campbell) "knew how to spend the money." The respondent further points out in this connection that Burke lent money to em- ployees without regard to their union affiliation and that he lent money to Campbell even after he joined the Union., While it appears that Burke did endorse a note for Campbell on October 19, 1939, it was before and not after Campbell joined the Union. Campbell joined the Union on December 11, 1939. The respondent further contends that Campbell's testimony relative to advances made to him by Pew is a further example of his "deliberate distortion and falsification of an innocent fact." Camp- bell testified that in 1937 and 1938 he borrowed $100 on two occasions from Pew, explaining to Pew that he "was losing a lot of time, that I could not meet my obligations on the pay I was getting." The respondent contends that Campbell deliberately misstated the purpose for which he was given the money. While it may be inferred from Campbell's testimony that his loss of time was attributable to Associa- 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion activities, he did not testify as to the purpose for which he bor- rowed the money from Pew, other than is indicated by the above statement to Pew that it was to "meet obligations." Here again, the respondent was privileged to question Campbell on cross-examination as to his purpose in securing the loan, but instead preferred to intro- duce Pew's testimony that the money was advanced to Campbell for the treatment of his eyes. Moreover, Pew offered no explanation as to why Campbell was singled out for such generosity. Pew testified that he had "seen Campbell before in the yard just like any other man and spoken to him but I didn't know him by name," and that "When I first saw Campbell I found he had bad eyesight. I sent him to the first aid and at different times I saw Campbell and talked to him about his eyes." While Campbell may have used the money he received from Pew for the treatment of his eyes, as is evidenced by Pew's testi- mony and documentary proof that he received treatment at Johns Hopkins at about the time in question, his failure so to testify cannot be said to brand his testimony as to the loan a deliberate falsehood. The respondent also places considerable emphasis upon Campbell's testimony that be worked only 1 week from December 11, 1936, to August 31, 1939, referring to it as "one of the most perjured and false statements" made by Campbell during the hearing, and one which "alone should be sufficient to destroy the credibility of Camp- bell." Campbell testified that he did not do "a week's work in the boiler shop from December 15, 1936 until the latter part of August 1939," although he received his regular pay during that period. In refutation of this statement, the respondent introduced its pay-roll records to show that Campbell did work 62 weeks during that period. These records show that from January 1 to December 1, 1937, Campbell's time was charged to a productive charge number, but that starting in December 1937, shortly after Campbell had been appointed by the Strategy Committee as "Investigator of Grievances" and continuing until August 1939, Campbell's time was charged to a non-productive charge number. The respondent justified its pay- ment of wages to Campbell during this latter period of almost 2 years on the ground that it was in accord with its labor policy to pay for time spent in grievance work. Campbell, however, testified, and the record shows, that he also spent his time in organizational and other activities on behalf of the Association. As for the year 1937, Camp- bell testified that while the respondent "may have given" him 'a productive charge number on the pay roll for the period from April to August 1937 when he was in the welding school, his "job at the school was to sign up new applicants," and that other than "a spot here or there," such as chipping test plates, he engaged in no produc- tive work., Although Campbell's assertion that he worked only 1 week during the period in question may not tally with the respondent's SUN SHIPBUILDING AND DRY DOCK CO. 277 records, the discrepancy is considerably lessened if his explanation of the time spent in the welding school is accepted. In any event, the respondent's records do show that during a period of approximately 3 years, almost 2 years were spent by Campbell in Association activ- ities for which time he received regular wages. . Moreover, this is nothing to indicate that the respondent could not have charged Camp- bell's time to a productive charge number on the pay roll prior to his appointment'as Investigator of Grievances, despite the fact that, as Campbell testified, all of his time was devoted to Association activities. The fact that the respondent did not give Campbell a non-productive charge number until he was appointed Investigator of Grievances might well support an inference that he was not given such a number prior to that time, because there would have been no apparent justi- fication for so doing. In any event, Campbell's testimony in this regard reveals no such falsity as would warrant a finding, that he generally was. not entitled to credence.. The remaining examples of Campbell's testimony which the respondent cites in support of its contentions are equally devoid of any such element of falsification as would be destructive of his credibility. In view of all the evidence, we are convinced, and find, as did the Trial Examiner, that Campbell's description of the entire pattern of events is a substantially accurate, reflection of the events themselves. 14. Conclusions as to the Association As we have found, the respondent participated in the circulation of petitions disavowing the Union and requesting that the respondent "deal" exclusively with representatives to be chosen by the signatory employees. The circulation of these petitions was the initial step leading to the formation of the Association, and the effect of the respondent's participation therein, coming as it did during the strike period, was necessarily coercive. At its first meeting with the mem- bers of the Association, the respondent' voiced its approval of their "loyalty," promised to "deal" with the Association if it did what was "right," and expressed further an intention to bargain with its "own employees." No such approval or encouragement was ac- corded representatives of the Union when they met with the respond- ent a few days later to discuss the details of the strike settlement. While some inference of impartiality might have been drawn from the respondent's refusal to accord exclusive recognition to either the Union or the Association, such an inference is negatived by the respondent's conduct immediately preceding the consent election. In order to insure the defeat of the Union at the polls, the respondent connived with Campbell to garner votes for the Association. It supplied 'Campbell' with a list of the employees who had proved their 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "loyalty" to the respondent by returning to work through the picket line on December 11, 1936, authorized him to promise reemployment to those who had been discharged or laid off since the strike as an inducement to casting their votes for the Association, and provided him with sufficient funds effectively to engage in such solicitation. In view of the direct support thus given to the Association by the respondent, it cannot be said that the former's designation as the bargaining agent of the respondent's employees in the ensuing elec- tion was the free expression of choice contemplated by the Act. Following the election, the respondent retained Campbell in his collusive role in order to make certain the continuance of the Asso- ciation as the representative of its employees. Accordingly, Camp- bell and his associates were permitted without restraint to promote the interests of the Association throughout the shipyard; they were accorded active assistance by supervisory employees; and they were paid for time spent in conducting meetings and engaging in organizing work. Campbell especially, as Investigator of Grievances, was permitted to devote all of his working time for a period of over 2 years to the conduct of the Association's affairs and to the strength- ening of its membership. Thus, new employees entering the ship- yard were subjected to coercive solicitation outside the safety office, students in the welding school were forced to join the Association or be deprived of an opportunity to better their employment, welders in C-Shop were transferred to less remunerative work because of their adherence to the Union, and pro-Union riveters in Department 51 were transferred to other departments in lieu of being laid off during a slack period in the fall of 1938 only upon condition that they join the Association. The foregoing activities of the Association, as countenanced and abetted by the respondent, contrast sharply with the limited and covert solicitation by the Union during working hours. That the respondent was determined to destroy any trace of legitimate unionism in its plant is evidenced by the circumstances surrounding Campbell's ultimate dismissal from the Strategy Com- mittee. When the respondent learned through its espionage activi- ties that Campbell was endeavoring to effect affiliation of the Asso- ciation with an outside organization, it immediately effected his summary removal from the position of influence held by him in the Association since its organization. The dominant position held by the respondent in the administration of Association affairs is strikingly revealed by the foregoing incident. In refutation of the charge that it had taken part in the formation of the Association and thereafter supported and interfered with its activities, the respondent maintained that since 1919 it had adopted and practiced a policy of neutrality with regard to the organizing SUN SIUPBUILDING AND DRY DOCK CO. 279 efforts of its employees, and had so instructed its supervisory staff. Whatever the respondent's attitude-prior to the strike in 1936, it is clear, and we have found above, that thereafter it exhibited no such neutrality. While the evidence shows that on August 16, 1938, Pew advised the respondent's supervisory employees of "rumors" concern- ing their partiality toward "a certain union," and instructed them to remain neutral in regard to union matters generally, the Association by that time was firmly entrenched as the bargaining agent of the respondent's employees and, with exception of the pro-union employ- ees on the shipways, had almost 100 percent membership throughout the plant. Moreover, the respondent did not post Pew's letter on the bulletin boards, nor did it in any other manner inform its employees of a desire to maintain an impartial attitude toward the Union and the Association. Not only were such instructions not publicized or issued prior to that time, but they were in fact occasioned by com- plaints from the Association as to alleged favoritism shown by fore- men on the shipways to members of the Union, and were followed by Norton's subsequent cooperation with Campbell in coercing the employees on the shipways to join the Association or suffer a lay-off. Nor was Norton the only supervisory employee who after issuance of Pew's instructions discriminated against employees who either refused to join the Association or were members of the Union; Adams dis- charged Outten because he evidenced his reluctance to join the Asso- ciation by throwing a membership card out of the window; and Burke at the request of Campbell, transferred Faunce, Perlowe, Boyd, and Lorrelli from piece work in C-Shop to day work in the boiler shop because they adhered to the Union. Moreover, Pew personally engaged in discriminatory conduct thereafter by employing Brown and Reeder to report on union activities and by procuring Campbell's dismissal from the Strategy Committee. The foregoing further con- firms our conclusion that the respondent at no time material herein adopted or maintained an impartial attitude toward the union affiliation and activities of its employees. At the hearing the parties stipulated that every member of the Association, constituting a majority of the respondent's employees, if called, would testify that he preferred the Association as his collective bargaining agent above any other labor organization and that he had signed a membership card in the Association of his own free will. The respondent and the Association contend that the Trial Examiner committed serious error in disregarding the foregoing evidence in arriving at his conclusions concerning the Association. We find no merit in this contention. The Board has held on numerous occasions that evidence of this nature has little or no materiality in determining issues such as are presented here with respect to the Association. The 280' DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct of the Trial Examiner in according it no more, consideration than he did was entirely proper.38 The respondent further contends that the consent election conducted by the Board on March 19, 1937, precludes a consideration of the events occurring prior thereto, and the Association makes a similar contention with respect to both the election of March 19, 1937, and the pattern makers election conducted by the Board on August 22, 1939. In support of their contentions, the respondent and the Asso- ciation cite the decisions of the Board in Matter of Wickwire Brothers 39 and 1Matter of Hope Webbing Company.40 In the former case, and to similar effect in the latter, the Board stated: If the respondent had engaged in further unfair labor practices after the consent election, we would disregard the consent elec- tion agreement. Any such agreement obviously contemplates that the employer will not engage in any further unfair labor practices. If the respondent's conduct after the consent election showed a continuity with its conduct prior thereto, we would consider the whole of the respondent's conduct in determinating whether the respondent had engaged in unfair labor practices with regard to the Association. As we have found, and as we hereinafter find, unfair labor practices were committed by the respondent after as well as before both the consent election and the election among the pattern makers. Con- sequently, it is clear that the Board's consideration of the events pre- ceding such elections in determining the status of the Association is consistent with the principles enunciated in the cases cited above. Moreover, the principles set forth in the Wickwire and Hope Webbing cases do not imply that the Board is estopped in every instance from 38 See Bethlehem Steel Company, et at v N L R B , 120 F (2d) 641 (App D C ) enf'g Matter of Bethle- hem Steel Corporation , a Delaware corporation and Steel Workers Organizing Committee, 14 N L R B 539, American Enka Corp v N L R B , 119 F. (2d) 60 (C C A 4), enf'g Matter of American Enka Corporation and Textile Workers Union, No 22129, American Federation of Labor, 27 N L R B , 1057, N L R B v Brown Paper Mill Co , 108 F (2d) 867 (C. C A 5), Bert den 310 U S 651, enf'g Matter of Brown Paper Mill Company, Inc Monroe , Louisiana and International Brotherhood of Paper Makers, affiliated with the American Federation of Labor and International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, 12 N. L R B 60, Bethlehem Shipbuilding Corp v N L R B , 114 F (2d) 930 (C C A 1), enf'g Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Ship- building Workers of America, 11 N L R B 105; N L R B v Newport News Shipbuilding & Dry Dock Co , 308 U S 241, rev mod of Board 's order in 101 F (2d) 841 (C C A 4), enf'g as mod Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L R B 866, N L R B v Link-Belt Co , 311 U S. 584, rev mod of Board' s order in I10 F (2d) 506 (C C A 7), enf'g as mod Matter of Link-Belt Company and Lodge 1604 of Amalgamated Associ- ation of Iron, Steel and Tin Workers of North America through the Steel Workers Organizing Committee affil, ated with the Committee for Industrial Organization , 12 N L R B 854 Cf Donnelly Garment Company, a corporation v N L R B (C C A 8), decided November 6, 1941, setting aside and remanding Matter o1 Donnelly Garment Company and International Ladies' Garment Workers' Union and Donnelly Garment Workers Union, party to the contract , 21 N L R B 164 30 Matter of Wickwire Brothers and Amalgamated Ass'n of Iron, Steel & Tin Workers of North America, Lodge $1985, through S W. 0. C, affiliated with the C 1 0 , 16 N L R B 316 40 flatter of Hope Webbing Company and Textile Workers Organizing Committee of the C. I 0 , Local No. 14, 14 N L R. B. 55. SUN SHIPBUILDING AND DRY DOCK CO. 281 a consideration, of events prior to an election conducted under its auspices. Their application must be governed by the particular cir- cumstances involved in each case.41 In the instant case, most, of the evidence pertaining to the respondent's unfair labor practices was not available until Campbell had revealed his collusion with the respondent, and such disclosure did not take place until after both the consent election in 1937 and the pattern makers election in 1939. It is evident that under these circumstances the principles referred to above,would not in any case estop the Board from a consideration of the events occurring before and after the elections conducted by it in 1937 and 1939. We find that the respondent, by all the foregoing, and specifically by permitting,- endorsing, and participating in the circulation of the petitions in December 193 by the activities of Campbell and Burke prior to the consent election of March 19, 1937, by its surveillance of a union meeting on March 18, 1937, by the discriminatory activities of Campbell and the respondent's supervisory employees in the con- duct of the welding school, by assisting Campbell and his associates in their solicitation of new employees outside the safety office, by the spying and reporting activities of Nilon, Appleby, Campbell, and Burke with respect to the Union and ,the Independent Shipyard Workers, by Norton's transfer of men on the shipways, to assist the Association in securing their membership, by the discriminatory treat- ment accorded certain welders in transferring them to day work in the boiler shop, by the lay-off of Charles Knapp and the discharge of Eldridge Outten, by requesting and acting upon Reeder's reports on union activities, and by effecting Campbell's dismissal from the Strategy Committee, as described above, dominated and interfered with the formation and administration of, and contributed financial and other support to, the Association, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discriminatory discharges James Bailey. Bailey, with the assistance of Campbell, secured employment with the respondent as a third-class welder in March 1937. He was assigned to C Shop and within several months had progressed to the classification of a first-class welder. Campbell's relationship with Bailey 'and the latter's activities as Association Ii See N L R B '. McKesson & Robbins, Inc , etc . 121 F (2d) 84 (App. D. C ). cert. denied October 27, 1941, enforcing as modified Matter of McKesson & Robbins, Inc , etc. and International Longshoremen Warehousemen's Union, Local No 9, District 1, affiliated with the C I. 0 , 19 N L. R. B. 778. See also Matter of Hicks Body Company and Federal Labor Union No 22207, affiliated with the A F. of L., 33 N. L. B. B., No. 162 Matter of Interlake Iron Corporation, a corporation and Local Union No. 1657, Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations , 33 N. L. R B., No. 112. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chairman of his department have been described above.42 According to Bailey, he "had pretty well stuck with Aggie [Campbell] all the way through, even though he had been let down by the Association," and on one occasion in September 1939 had been warned by Leader Harry Gaskell that he would "get the works" if he continued "hang- ing around" Campbell. Bailey left the Association in December 1939 and joined the Union. On or about February 7, 1940, his name appeared as an organizer on a circular distributed by the Union to the respondent's employees. Shortly thereafter, Bailey was transferred to the boiler shop by Gas- kell, who, according to Bailey, told him, "You are next. Over in the boiler shop." Bailey testified that he complained about his transfer to Harry Butler, his foreman, and that the latter replied, "Well, you are a good welder and we need good welders and we are going to bring them all over from C Shop." The record shows, however, that while it was customary to transfer welders from C Shop to other depart- ments, their transfer was in most cases only temporary. Bailey was the only welder permanently transferred to the boiler shop during the remainder of his employment, and whereas he had earned approxi- mately $11.50 per day on piece work prior to his transfer, thereafter he earned less than $8.00 per day on the day rate. While in the boiler shop Bailey was assigned to tacking, work ordinarily performed by a third-class welder. About one month after his transfer, Bailey quit and, according to his testimony, informed Butler that he was doing so 'because he could no longer endure the way the respondent had been "riding" him. Gaskell denied warning Bailey about Campbell or telling him that he was "next" to be transferred to the boiler shop. Butler testified that he was unaware of Bailey's union affiliation, and that he had ordered Gaskell to transfer Bailey to the boiler shop because he wanted to make Bailey a code welder.43 Butler admitted, however, that he did not reveal such intention to Bailey. The following testimony of Butler on cross-examination not only reveals the evasive quality thereof, but contains admissions which fully corroborate the testimony of Bailey: Q. Don't you know, Mr. Butler, that Bailey was making more money in C Shop than he would have made in the boiler shop even if he had been a code welder? A. (No answer.) Q. Don't you know that? A. All right; probably I do. * * * 42 Section III, C-8, supra 42 Code welders performed a special type of work for which they generally received a higher rate of pay than the first-class welders. SUN SHIPBUILDING AND DRY DOCK CO. 283 Q. And when you sent Bailey to the boiler shop do you know what kind of work he was doing in the boiler shop? A. Yes, sir. Q. What? A. He was doing tacking and he was doing welding. Q. All right, and when you put him in there he was doing tacking jobs for Aggie Campbell on a boiler that Aggie Campbell was working on? A. Yes, sir. Q. Now, after you transferred Bailey- out of C shop into the boiler shop what other men from C shop did you transfer to the boiler shop? A. Well, they were coming down day in and day out, day in and day out all the time. Q. Can you name anybody for me that you transferred to the boiler shop from C shop after Bailey? A: No. I cannot but they were coming down after Bailey came down off and on. Q. Permanently? A. No. Q. Oh, they were just coming down to the boiler shop as they had done for years, for a day or two at a time? A. That is right., Q. But I want to know who you transferred permanently from C shop to the boiler shop after you transferred Bailey? A. I did not transfer anybody. * * * * * * * Q. And this Bailey was a good welder, wasn't he? A. _ Positively. Q. Good enough to become a first class welder in a very short time? A. That is right. Q. So you took him out of C shop and gave him a job tacking on a tank in the boiler shop? A. And he was welding in there. As we have bereinbefore observed, Bailey was a frank, consistent, and convincing witness, and in view of Butler's, admissions, as set forth above, we credit Bailey's testimony over that of Butler and Gaskell. Bailey's activity as chairman of the Union in C Shop, Gaskell's warning to Bailey concerning his close association with Campbell, and the discriminatory treatment which we have found the respondent accorded other welders in. C Shop who refused to join the Assoeiatio convince us, and we find, as did the Trial Exam- 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - iner, that the respondent transferred Bailey to the boiler shop and from piece rate to day rate because of his membership and activity in the Union . Bailey was not required under the Act to accept a transfer upon a discriminatory basis, and accordingly we find that, under such circumstances , his resignation was not a voluntary ter- mination of employment, but was tantamount to a discharge.44 Chester Faunce . As discussed above,45 the respondent, at the instance of Campbell , transferred Faunce from C Shop to the boiler shop in the latter part of 1938 because of his refusal to join the Asso- ciation, and restored him to piece work in C Shop 6 months later when he joined the Association : In the latter part of November 1939, the Union renewed its organizational campaign . Faunce then rejoined the Union and actively solicited members, particularly during lunch time and in the presence of Leader 'Gaskell. During cold weather, the respondent provided - warmth for its employees by maintaining fires in large metal ' cans distributed throughout the shipyard . On the afternoon of December 28, 1939, Faunce and two other employees, Henry Ziegler and one identified merely as Joe, had been standing around the fiie for about 5 minutes when Foreman Adams instructed them to return to work. Faunce thereupon left the fire and returned to his work. About a'half hour later he want to the lavatory and when he returned to his department, which lie testified was in about 5 or 10 minutes, Gaskell handed him a pink slip of paper stating: Dept. No. 59-360.' DATE 12-28-39 NAME OF EMPLOYEE, C. Faunce. You ARE HEREBY NOTIFIED THAT YOUR WORK Is NOT SATISFACTORY . Loafing around fire in C shop. UNLESS IM- PROVEMENT IS IMMEDIATELY SHOWN YOUR EMPLOYMENT WITH THE COMPANY WILL BE TERMINATED AT THE END OF ONE WEEK. SUN SHIPBUILDING & DRY DOCK Co., Signed (s) S. ADAMS, Supt. or Foreman: On the following morning Adams handed him another slip which stated that he was discharged, for the following reason: "Unsatis- factory not on the job." Adams testified that at about 2:30 p. in. on the afternoon of Decem- ber 28, he had observed Faunce and Ziegler standing around the fire for about 5 minutes and instructed them to return to work, and that Faunce while obeying his instructions turned around and gave him a 44 Matter of Continental Oil Company and Oil Workers International Union, 12 N. L . R. B. 789, modified in anothen respect and enf'd in 113 F. (2d) 473 (C. C. A. 10) rev'd in part on other issue, 61 Sup. Ct. 861; Matter of Waggoner Refining Company, etc. and International Association of Oil Field, Gas Well, and Refinery Workers of America, 6 N. L. R. B. 731. 45 See section III, C-8, 8upra. SUN SHIPBUILDING AND DRY DOCK CO. -285 "dirty look." 48. Adams further. testified that after obtaining author- ity from Burke, he instructed Gaskell to,.give a pink slip to both Faunce and Ziegler," and that upon returning to the department at about 4 o'clock that afternoon and inquiring of Gaskell whether he had given the slip to Faunce, the latter replied that he could not.find him. Adams stated that he waited about 25 minutes before Faunce made his appearfince and was handed the pink slip by Gaskell. Adams then reported to Burke that Faunce had been absent from work a second time, whereupon Burke authorized Faunce's discharge for being "off the job" twice in the same afternoon. Adams testified that, he did not give a warning slip to Ziegler because Ziegler denied that he had been standing near the fire at the time in question 48 Ziegler did not testify. The only conflict in the above testimony was whether Faunce had remained in the lavatory for 5 or 10 minutes as maintained by him, or for 25 minutes as alleged by Adams. The Trial Examiner was more favorably impressed by the credibility of Faunce than by that of either Adams or Gaskell, and accepted Faunce's version of the incident. We likewise credit Faunce's testimony. Moreover, re- gardless of whether Faunce was away from his work 10 minutes or 25 minutes, we are convinced that the respondent utilized the incident only as a pretext for his discharge. This conviction is borne out by 4 Concerning Faunce's reaction to his instruction to return to work, Adams testified on cross -examina- tion as follows Q. And was it a real dirty look? A Yes, sir Q Awful mean? A. Yes, sir. Q It hurt your feelings, didn't it? A. Absolutely. Q. So you ran to Mr Burke? A. I didn't run to Mr Burke I walked to Mr. Burke. Q Well, you walked to Mr Burke? A Yes Q And you went to Mr Burke, you, a general foreman in the yard, went down and told Mr Burke, the vice president of this shipyard, that an ordinary worker gave you a dirty look three times in a row? A Yes, that is right And Mr Burke,- Q What did Mr Burke say? A Told me to give him a pink slip Q What for? The dirty looks or loafing? A. Loafing at the fire 47 Not only-did Adams go to Burke, but, according to the testimony of Pew, Adams also came to him and wanted to discharge Faunce and Ziegler for loafing around the fire and he, Pew, told Adams not to discharge them but to give them a pink slip. 18 Adams testified as follows Q. You found out later it wasn't Ziegler? A That is what he told me-that it wasn't him. Q You took his word for it, didn't you? A That is right Q What did you say to him when he said it wasn't him around the fire? A. I couldn't say anything-what could I say? It is noted that Ziegler was one of the welders in C Shop whom Campbell in the fall of 1938 requested Burke to remove to day work because of their refusal to join the Association. Ziegler, however, joined the Association and was not transferred to the boiler shop, as were those who continued their adherence to the Union See Section III, C-8, supra 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following facts: Burke admitted that the day following Faunce's discharge he prepared a written memorandum covering Faunce's dismissal , which action it appears was contrary to his customary practice when discharging employees. In explanation , he testified that he "knew this was an important case" because he had heard "a lot about Mr . Faunce" and Faunce's "talk" when previously laid off, and that he felt it was "a good thing" to keep a memorandum in this instance . Burke further admitted that he had ascertained the temperature on the day Faunce was discharged so that it could be noted in the memorandum , and that it was 34 degrees above zero, cold enough to have fires burning in the salamanders . Faunce's conduct in warming himself at the fire does not appear to have been in violation of the customary practice in his and other departments, and the displeasure allegedly exhibited by him at the time Adams instructed him to return to work does not involve such a departure from good conduct as would normally evoke a threat of dismissal. As for Faunce's second absence from work on the afternoon in ques- tion, both Adams and Gaskell admitted that they did not ask Faunce where he had been. It was undisputed that an employee is permitted to leave his department in order to obtain tools or to use the lava- tories provided for him. In view of the respondent 's prior discrimina- tion against Faunce in transferring him to the boiler shop until he was persuaded by Campbell to join the Association , the admission by Burke that he was particularly interested in Faunce because of his "talk" during a prior lay-off, and the respondent's precipitate action in 'ordering Faunce's dismissal before it had ascertained whether or not his absence from work was justified, convinces us, as it did the Trial Examiner , that Faunce was discharged because of his membership and activity in the Union, and we so find. Frank Harris. The complaint alleged that the respondent dis- criminatorily deprived Frank Harris of employment and caused him to suffer a diminution of earnings . Harris was employed by the respondent in the early part of 1936, and throughout his employment was a member of the Union . He went on strike with the Union on December 7, 1936, and did not return until the strike was settled. In June 1937 , Harris was working as a bolter and reamer in Depart- ment 51, and through the intervention of his foreman , Neary, as described above, 49 became a student in the welding school. Harris testified that he was the only one in the welding school who wore a union button, and that one day, after he had received about 70 hours of instruction in the school, Foreman Briggs said to him, "What is them things you have got on your hat," and "How the hell did you ever get in the welding school ?"; and that when he replied that e See Section III, C-4, supra. SUN SHIPBUILDING AND DRY DOCK CO. 287 Briggs himself had approved his application, the latter said, "That is impossible." Harris further testified that this incident occurred in the presence of Campbell,60 Robins, and Albert Wagner, an in- structor in the welding school, and that after Briggs left, Wagner said to him, "You cooked your goose now." According to Harris, he received no further instruction or assistance from Wagner following this incident. Wagner did not testify. Harris' testimony in this regard was corroborated by Campbell, who testified, ". . . we re- tarded his progress in every way shape or form. Give him the works." After Harris had spent about 124 hours in the welding school, he took his test and was informed that he had passed with a mark of about 97 percent. According to Harris, other students entering the welding school after he did were assigned to tack-welding positions, but he was denied that opportunity at Harris testified that when he and only one other student remained in the school, he protested to Briggs concerning his failure to receive a welding assignment, to which Briggs replied that only first-class welding positions were available. Harris further testified that when he remonstrated that it would be difficult for a student to perform first-class welding, Briggs insisted that he accept such a position and told him, ". . . if you don't make the grade, . . . you are done." Robins, who on occasion acted as an instructor in the welding school, testified that: . . . He [Harris] had asked numerous times for chances and we all saw to it that he didn't get it. So, when it come time to close the welding school, it was a problem. We didn't know what to do with him. It was taken up with Mr. Briggs at that time and Mr. Briggs formed the solution that would help us all out: He told us, "All right. Send him over to my office. I will tell him I have no more openings for tackers but if he thinks he is good enough to take a job as a welder we will transfer him, but that if he can't do the work he will be discharged." On September 14, 1937, Harris was assigned to a first-class welding position, was unable to perform the work, and was thereupon dis- charged. Briggs denied substantially all of the above testimony of Harris, Campbell, and Robins, except to admit that he had seen Harris wearing union buttons on his hat. With further regard to Harris, Briggs testified as follows: Harris came over and wanted to go to the school and I told Harris at that time that we were practically filled up with tack 50 Campbell testified that it was he who called Briggs' attention to the C. I 0. buttons Harris was wearing. e1 When students passed their tests they were customarily assigned positions as third-class welders or tackers. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welders, but if we could go through the school and get to be a first-class or second-class welder, we could probably-use him. I told him to stay in there until he could do it. He went in there in the welding school and he came back to me after a while and be said: "All right; I think I can do it." I said: "All right; go ahead and go out and try it and see what you can do." Briggs also gave the following testimony: Trial examiner BOKAT. You say it was customary as soon as they came out of the welding school to do first-class welding? The WITNESS. A lot of second-class welding. Trial examiner BOKAT. The testimony in this proceeding has been, I believe, that men who came out of the welding school generally did tack welding. Is that correct, or is it not correct? The WITNESS. That is correct, tack welding but I told him we had no room for tack welders-we were filled up. * * Trial examiner BOKAT. Can you give the the name of any other student who went into the welding school and when he came out was given a first-class welding test? The WITNESS. No; I couldn't give you the names of any of the` men in the welding school. The respondent produced no records showing that any student other than Harris was limited solely to the opportunity of performing the work of a first- or second-class welder. Pew admitted that the re- spondent was badly in need of welders and tack welders during the time the welding school was in existence and that from 1937, to the date of the hearing it had employed hundreds of them. As' stated before, Briggs' testimony was evasive and contradictory. We there- fore reject his denials and credit the testimony of Harris, Campbell, and Robins as being in substantial accord with the facts. We find, as did the Trial Examiner, that Harris was refused a tack welding position, and was assigned to first-class welding in order to facilitate his dis- charge, because of his membership and activities in the Union. Harris testified without contradiction that when discharged he complained to Burke, who thereupon telephoned Vickers, the employ- ment manager, and told him that he was to disregard the discharge slip because Briggs should not have sent Harris out as a first-class welder. Burke then reinstated Harris to his former position in Depart- ment 51. Harris continued to work in that department from Septem- ber 15 to October 30, 1937, when he quit the employ of the respondent, allegedly because of the small amount of work he was receiving and his consequent inability to support his family on what he earned, SUN SHIPBUILDING AND DRY DOCK CO. 289 Harris' testimony that he was not given a normal share of available work was denied by Neary, his foreman, and was contrary to the respondent's records which showed that Harris lost considerable time either of his own accord or because of inclement weather. We find, as did the Trial Examiner, that subsequent to September 15, 1937, Harris was not discriminated against with reference to amount of work allotted to him. While Harris did not attribute his resignation on October 30 to the respondent's refusal to assign him a tack welding position upon completion of his course in the welding school, and while the respondent did not discriminate against him after he had been reinstated to Department 51, we nevertheless find that the respondent's prior dis- criminatory conduct was an important factor contributing to his leaving the respondent's employ. It is obvious that the discrimina- tory refusal of the respondent to give Harris a position as a tack welder, as found above, was not remedied by reinstatement to his regular position in Department 51. Nor can it be said that if the respondent had not discriminated against him, he nevertheless would have re- signed. The entire chain of events leading up to Harris' resignation must be considered as flowing from the respondent's prior discrimina- tion, since had Harris been given a tack welding position, there is every probability that he would still be in the respondent's employ. In view of such probability, and since Harris was not required, under the Act, to acquiesce in the respondent's discriminatory conduct and would have been justified,in resigning on September 14, 1937, or within a reasonable period thereafter'12 we find, as did the Trial Examiner, that the termination of Harris' employment is attributable to the respondent's discrimination against him because of his union affiliation and activities. Samuel Hall: The complaint alleged that the respondent discrimi- natorily transferred Samuel Hall from piece rate to day rate and to difficult, undesirable, and unremunerative work as a result of which he left the employ of the respondent. Hall was employed by the respondent as a welder in September 1938. He joined the Union in December 1939 and became a member of its organizing committee, wrote articles printed in the Union's newspaper under his name, and actively solicited memberships in the plant. Hall testified that prior to the distribution of handbills which bore his name as a member of the, "Organization Committee" in the early part of February 1940, he had for the most part received piece work, which was more remunerative, but that thereafter he did not receive his usual share of that type of work. According to Hall, on the day the above-mentioned handbills were distributed leader Frank Dillard after looking at the "CA. O. organizing button" that he wore on his lapel said, "So you are one of 52 See cases cited in footnote 44. supra. 438861-42-vol. 38-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them guys." Hall testified that on the following day Dillard removed him from the piece-rate work on which he was working and put him on the day rate. Further, according to Hall, he thereafter received the day rate until the latter part of April or May when he was assigned to work under a leader by the name of Rogeri. Hall testified that when so assigned he was not wearing his union button and was given piece work, but that on the following day when he wore his button Rogeri reassigned him to day work.53 Hall further testified that prior to the early part of February 1940, his average weekly earnings amounted to about $55 a week and thereafter his average weekly earnings amounted to only $39.60 a week. Hall quit the respondent's employ on July 12, 1940, because, as he testified, he "was discrimi- nated against to the extent of not being given the opportunity of earn- ing the same amount of money as the other first-class welders in the yard were earning," and because he was "continually sent on dirty work, mostly in the drydock." Hall further testified that prior to the distribution of the afore-mentioned handbill bearing his name he had never worked in the drydock. Dillard denied having any conversation with Hall about the Union and denied transferring Hall to day work because he was a member of the Union. Dillard's testimony was evasive and contradictory, and we do not credit his denials. We find, as did the Trial Examiner, that Dillard made the statement above attributed to him by Hall. Hall, according to the respondent's records, had spent the major part of his time during the last several months of his employment work- ing on a ship called the Seatrain New Jersey. The keel of this boat was laid on August 17, 1939, and it was completed on July 10, 1940. Superintendent Norton testified that whether welders were paid the piece or day rate depended to a large extent on the state of construe tion of the boat on which they were working, and that in the earlier part of the construction of the boat the welders received more piece- rate work but that as the vessel neared completion it gradually de- creased. He further testified that Hall had steady work on the piece rate in 1939 because the state of construction of the Seatrain in 1939 was such that piece work was the prevailing type, but that beginning in February as the boat neared completion there was a general decrease in the amount of piece work received by all the welders, which in turn accounted for the decrease in Halls' earnings. Norton admitted that prior to 1940, Hall did not perform any drydock work, but explained that all first-class welders take their turn at such work. The respondent introduced in evidence pay-roll records showing that of approximately 75 first-class welders who worked under the same leader as Hall during the period from January 1 to July 12, 1940, 63 According to the respondent 's records , Hall received 4 hours of piece work in March and 25 hours in June and July 1940 SUN SHIPBUILDING AND DRY DOCK , Co. 291 43 averaged more earnings than Hall and 31 less, which evidence the respondent contends completely rebuts Hall's charge of discrimination. The Trial Examiner found_`that the foregoing records permitted no meaningful comparison of Hall's earnings with those of the other welders, since they did snot disclose thatprior to 1940,the 3.1 welders who received less than Hall had received piece work to the same extent that he did. We find that both the Trial Examiner and the respondent erred in their interpretation of the pay-roll records introduced by the respondent. The line of demarcation for comparison is not to be drawn between the period of Hall's employment in 1940 and that in 1939, nor can the earnings averaged by Hall for the entire period from January 1 to July 12, 1940, be considered indicative of non-discrimi- nation. Hall testified that he was not discriminated against until early in February 1940, after the union circular bearing his name as an organizer had been issued. Consequently, the only significant com- parison that can be made must be between the relative proportion of piece work received by Hall prior to the first part of February 1940 and that which he received subsequent to that time. Such a com- parison is permitted by the pay-roll records which the respondent offered in evidence. These records show that from January 1 to February 9, 1940, at about which latter date the union circular was distributed, among approximately 76 first-class welders, Hall ranked 7th in a group of 13 54 who received 90 percent or more piece-rate work, and 14th among all the welders in average hourly rate of pay. For the six weeks' period subsequent to February 9, however, Hall's relative standing in the amount of piece work received fell abruptly from 7th to 42nd, and in average hourly rate, from 14th to 55th. On the other hand, during this same period, 8 of the remaining 12 welders who for the initial period prior to February 9 had received 90 percent or more piece work, continued to receive the same per- centage, and 3 received 50 percent or more; 1 quit 3 weeks after February 9. Hall's percentage of piece work during this •6-week period had fallen from 99.1 to 6.5 percent. While the records also show that starting in February there was a more or less general decrease in the amount of piece work received by the first-class welders, such decrease was not sufficient to afford a plausible explana- tion for Hall's assignment almost exclusively to day work. If there were any indication that the decrease in the amount of piece work assigned to Hall was only temporary, it would be possible to infer, though not probable, that the discrepancy in such assignment was attributable to the levelling off process of apportionment necessitated by the general decrease in piece work. However, such is not the case. Hall's relative proportion of piece work continued to decline, '4 Listed on the respondent 's records, Respondent's Exhibit No 115 , under pay roll Nos. 169, 213, 223, 244 [Hall] 252, 297, 321, 335, 352, 414, 665, 669, 722. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and for the entire 22-week period subsequent to February 9, at the end of which time he quit the respondent's employ, Hall ranked 53rd in the amount of piece work received and 69th in average hourly rate. Over the same period, of the group of 13 who had received 90 percent or more piece work prior to February 9, 2 continued to receive that amount, '8 received 50 percent or more, 1 received 33.4 percent, and Hall had fallen from 99.1 to 5.8 percent; as stated above, 1 quit shortly after February 9. We find it impossible to believe that Hall's sudden fall from his position as one of the comparatively few welders in the highest wage bracket to one in the lowest wage group, following as it did imme- diately after issuance of the union circular, was, as the respondent contends, attributable solely to a general decrease iii the amount of piece work available. In view of all the circumstances surrounding his transfer to day work, and in the light of the entire record, which reveals the existence of an anti-union bias on the part of the respond- ent, we find, as did the Trial Examiner, that the respondent dis- criminated against Hall in depriving him of his normal share of piece work.55 We further find that Hall resigned because he believed as we have found, that the respondent had so discriminated against him. Since Hall was not required under the Act to accept such discrimination, his resignation was not a voluntary severance of employment and was equivalent to a discharge.be We find that the respondent discriminated in regard to the hire and tenure of employment of James Bailey, Chester Faunce, Frank Harris, and Samuel Hall, and thereby discouraged membership in the Union, encouraged membership in the Association, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. The alleged discriminatory, discharges Walter Voytovich and Adam Polak. The complaint alleged that the respondent transferred Walter Voytovich to difficult, undesirable, and unremunerative work, and that it threatened the safety of Adam Polak, because of their activities and membership in the Union, thereby causing them to leave the employ of the respondent. The Trial Examiner found that the foregoing allegations were not sustained by the proof and recommended that the complaint insofar as it related to Voytovich and Polak be dismissed. The Union'filed no exceptions to the aforesaid finding and recommendation of the Trial Examiner. We have examined the record and find that it does not support the 5i This conclusion finds corroboration in the uncontradicted testimony of Adam Polak, that Joseph W Stewart, who had succeeded Campbell as chief organizer for the Association , stated concerning Hall, "You see that son b- going down there? He is next 56 See cases cited in footnote 44, supra. SUN SHIPBUILDING AND DRY DOCK CO. 293 allegations of the complaint with respect to Voytovich and Polak. We find- that the respondent,has not discriminated in regard to , the hire and tenure of employment of Walter Voytovich or Adam Polak. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, C and D, above, occurring in connection with the operations of the, respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and between the several States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find will effectuate the policies of the Act. - We have found that the respondent has dominated and interfered with the formation and administration, of the Association and has contributed financial and other support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such interference and domination and the effects thereof, which con- stitute a continuing obstacle to the exercise by its employees of the rights guaranteed them by the Act, we shall order the respondent to disestablish and withdraw all recognition from the Association as the representative of its employees for the purpose of dealing with it con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment.b7 We shall also order the respondent to cease and desist' from giving effect to its contract with the Association, and to any extension, renewal, or modi- fication thereof, or supplement thereof.18 Nothing in this Decision and Order, however, shall be taken to require the respondent to vary those wage, hour, seniority, and other substantive features of its relations with the employees themselves, which the respondent estab- lished in performance of its contract with the Association as extended, renewed, modified, supplemented, or superseded. 67 N L R B v. Newport News Shipbuilding and Dry Dock Company, 308 U . S. 241, N L . R. B. v Penn- sylvania Greyhound Lines, 303 U S 261 : N. L. R B v The Falk Corporation , 308 U S 453 ; of also, Consoli- dated Edison Co , Inc , et at v N L R B, 305 U. S. 197, at 236 (1938), wherein the Court said The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of a violation of the Act whose continuance thwarts the purposes of the Act and renders ineffectual any order restraining the unfair labor practices. 58 The contract entered into between the respondent and the Association on January 18, 1940, provided that such agreement was to be operative for a term of one year, and that thereafter it was to remain in "full force and effect until either party shall deliver to the other written notice of a desire to modify or terminate the same " 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent has discriminated in regard to the hire and tenure of employment of Chester Faunce, James Bailey, Frank Harris, and Samuel Hall. We shall, therefore, order that the respondent offer to Faunce, Bailey, and Hall immediate reinstatement to their former or substantially equivalent position, and to Harris a position of tacker or third-class welder, without prej- udice to their seniority and rights and privileges. We shall also order the respondent to make the foregoing employees whole for any loss of pay they have suffered by reason of the respondent's discrimination, subject to the following qualification. We find merit in the respond- ent's contention that because of the delay in the filing of charges, the Trial Examiner erred in recommending that the back pay be paid from the date of the respondent's discrimination. Since charges were not filed until January 13, 1941, approximately 1 year after the re= spondent's discrimination against Bailey, Faunce, and Hall, and over 3 years after Harris was discriminatorily refused a tack welding position, we shall order the respondent to make them whole only for the period from the date of the filing of charges to the date of the respondent's offer of reinstatement by payment to each of them of a sum equal to that which he normally would have earned as wages, less his net earnings during said period.bs Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. Industrial Union of Marine and Shipbuilding Workers of America and Sun Ship Employees Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Sun Ship Employees Association and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of, Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Chester Faunce, James Bailey, Frank Harris, and Samuel Hall, thereby discouraging membership in the Union and encouraging membership in the Association, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ' By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N. L. R. B , 311 U S. 7. SUN SHIPBUILDING AND DRY DOCK CO. 295 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not, by instigating and causing to be formed a back-to-work movement, engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of Walter Voytovich and Adam Polak within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Sun Shipbuilding and Dry Dock Co-., Chester, Pennsylvania, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the administration of Sun Ship Employees Association, or with the formation or administration of any other labor organization of its employees, and from contributing financial or other support to Sun Ship Employees Association or to any other labor organization of its employees; (b) Recognizing Sun Ship Employees Association as the representa tive of any of its employees for the purpose of dealing with the respond- ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to its contract of January 18, 1940, with Sun Ship Employees Association or to any extension, renewal, modifica- tion, or supplement thereof, or to any superseding contract with said Sun Ship Employees Association which may now be in force; (d) Discouraging membership in Industrial Union of Marine and Shipbuilding Workers of America, or in any other labor organization of its employees, by discharging, transferring, laying off, or refusing to reinstate, any of its employees, or in any other manner discriminat- ing in regard to their hire and tenure of employment or any term or condition of employment; - ' (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted 296, DECISIONS O1 NATIONAL LABOR RELATIONS BOARD activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Sun Ship Employees Association as the representative of any of its employees for the purpose of deal- ing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said Sun Ship Employees Association as such representative; ' (b) Offer to Chester Faunce, James Bailey, and Samuel Hall, immediate and full reinstatement to their former or substantially equivalent positions, and to Frank Harris a position of tacker or third-class welder, without prejudice to their seniority and other rights and privileges; (c) Make whole Chester Faunce, James Bailey, Samuel Hall, and Frank Harris, for any loss of pay they may have suffered by reason of the respondent's discrimination by payment to each of them of a sum of money equal to that which he normally would have earned as wages in such positions during the period from January 13, 1941, the date on which charges were first filed as to these employees, to the date of the respondent's offer of reinstatement, less his net earn- ings during that period; (d) Immediately post notices to its -employees in conspicuous places throughout its shipyard at Chester, Pennsylvania, and'main- tain such notices for a'period of at least sixty (60) days from the date of posting, stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (h), (c), (d), and (e) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that its employees are free to become or remain mem- bers of Industrial Union of Marine and Shipbuilding Workers of America, and that it will not discriminate against any employee because of membership or activity in said labor organization; (e) Notify the Regional Director for the Fourth Region in writing within ten (10) days from, the date of this Order what steps the re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent, by instigating and causing to be formed- a back-to-work movement, has engaged in unfair labor practices within the meaning of section 8 (1) of the Act, and by discriminating in regard to the hire and tenure of employment of Walter Voytovich and Adam Polak, has engaged in unfair, labor practices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.