Agwilines, Inc.

National Labor Relations Board - Board Decisions

Jul 3, 1936

2 N.L.R.B. 1 (N.L.R.B. 1936)

DECISIONS AND ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD
In the Matter of AGWILINES, INC. and INTERNATIONAL LONUSUORE-
MEN'S ASSOCIATION, LOCAL No. 1402
Case No. C-103.-Decided July 3, 1936
Water Transportation Industry-Interference , Restraint or Coercion: ex-
pressed opposition to labor organization , threats of retaliatory action ; espion-
age; surveillance of, questioning regarding organizational activity or meetings ;
attempt to bribe union leader; discrediting union organizer-Discrimination:
demotion ; discharge-Reinstatement Ordered-Back Pay: awarded-Unit Ap-
propriate for Collective Bargaining : eligibility for membership in only organi-
zation among employees ; community of interest-Representatives : proof of
choice: membership in union-Collective Bargaining: negotiation in good faith:
failure or refusal to make counter proposals ; meeting with representatives,
but with no intention of bargaining in good faith.
11Ir. Gerhard P. Van Ar1,el for the Board.
Mr. K. I. McKay and Mr. Howard P. MacFarlane, of Tampa, Fla.,
for respondent.
Mr. Fred. G. Krivonox, of counsel to the Board.
DECISION
STATEMENT OF CASE
On April 18, 1936, Local No. 1402, and, on April 21, 1936, Local No.
1408, of the International Longshoremen's Association, filed with the
Regional Director for the Fifteenth Region, charges that Clyde-
Mallory Lines (Agwilines, Inc.), New York City, New York (here-
inafter referred to as respondent), had engaged and was engaging
in unfair labor practices contrary to the National Labor Relations
Act, approved July 5, 1935 (hereinafter called the Act). On April
24, 1936, the Board, consolidating the two charges, issued a complaint
against respondent, said complaint being signed by the Regional
Director for the Fifteenth Region and alleging that respondent
had committed unfair labor practices affecting commerce within the
meaning of Section 8, subdivisions (1), (3) and (5), and Section 2,
subdivisions (6) and (7) of the Act. In respect to the unfair labor
practices, the complaint, as amended, alleged in substance :
1
2 NATIONAL LABOR RELATIONS BOARD
1. Respondent, by its officers and agents, terminated the employ-
ment, at Tampa, Florida, of John LaVell, Guss Harris, Michael
Lazarus, McKay McDaniel, Arthur Fisher, Perry Harvey and
W. J. Johnson, and terminated the employment, at Jacksonville,
Florida, of- Willie Owens, George- Davis and Noble Wright, all
employees of respondent, for the reason that they joined and assisted
the International Longshoremen's Association, a labor organization,
and, in particular, Local No. 1402 and Local No. 1408, at Tampa and
Jacksonville, respectively., - ,
2. At various times ,since March 26, 19,36, respondent, when so re-
quested by Local No. 1402 at Tampa, refused to bargain collec-
tively in good faith with Local No. 1402 as the exclusive representa-
tive of the longshoremen employed by respondent, said employees
constituting an appropriate bargaining unit.
.. The answer of respondent admits its 'corporate organization and
that it is engaged in interstate and foreign commerce to the extent
that it is engaged in the transportation of freight and passengers by
steamship between certain named ports on the East and Gulf Coasts
of the United States, but denies that its employment of longshore-
men occurs in interstate or foreign commerce; the,answer admits the
termination of employment of the persons named in the complaint,
avers that the employment of said persons was terminated for good
cause, and denies the reasons for the termination alleged in the com-
plaint; the answer further denies that respondent has .at any time
refused to bargain collectively with Local No. 1402.
'Pursuant to notice thereof, Charles A. Wood, duly designated by
the Board as Trial Examiner, conducted a hearing commencing May
7, 1936 at Tampa, Florida. Respondent appeared by its counsel,
Howard P. MacFarlane and K. I. McKay. The Board was repre-
sented by its Regional Attorney. Full opportunity to be heard, to
cross-examine witnesses and to produce evidence on all the issues was
afforded to all parties.
Respondent's written motion to dismiss the complaint, based upon
allegations of the unconstitutionality of the Act and upon the allega-
tion of failure of the complaint to allege acts constituting unfair
labor practices as defined by the Act, was denied by the Trial Ex-
aminer as to the allegations of unconstitutionality, and ruling was
reserved as to the allegation of failure to state a case under the Act.
Respondent's written motion to strike certain paragraphs of the com-
plaint was denied by the Trial Examiner. During the course of the
hearing the Regional Attorney moved to amend the complaint by
striking out Clyde-Mallory Lines and substituting therefor, as re-
spondent, Agwilines, Inc.; no objection was made; and this motion
was granted by the Trial Examiner, and the amendment allowed.
DECISIONS AND ORDERS e3
The Regional Attorney's motion to amend the complaint to, conform
to the proof, made at the close of the Board's ease, was reserved by
the Trial Exaniiner. Upon renewal of respondent's motion to dis-
miss the complaint, likewise at' the close of the' Board's ease, the Trial
Examiner denied the motion 'without further reservation. During
the presentation of respondent's case it was stipulated between coun-
sel that Willie Owens, George Davis and Noble' Wright, members of
Local No. 1408, should be reinstated upon application by, `them for
reemployment ; • tipoli motion 'thereupon' made by the Regional Attor-
ney to , dismiss the coihplaiiit as to these employees, the Trial
Examiner 'gi?anted' the ' motion. These rulings, are ' affirmed by the
Board, and the motion to amend the complaints to "conform to proof,
reserved by the Trial Examiner, is granted.
On May 28, 1936, acting pursuant to Article II, Section 37. of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, the Board ordered the proceeding to be transferred and
continued before it.
On June 22, 1936 respondent filed' a brief; and on June 25, 1936,
pursuant to Article II, Section 34 of said Rules and Regulations-
Series 1, as amended, oral argument on the record was held before this
Board in Washington, D. C. Upon the record made in the proceed-
ing conducted by the Trial Examiner, the stenographic report of
the hearing and all the evidence, oral and documentary, offered and
received at the hearing, and 'after consideration of the brief filed by
respondent on June 22, 1936 and argument of counsel before this
Board on June 25, 1936, the Board makes the following :
FINDINGS OF FACT
1. RESPONDENT AND ITS BUSINESS
1. Respondent, Agwilines, Inc., is a corporation organized under
the laws of the State of Maine on April 8, 1907, and has its principal
office and place of business at New York City, New York. Agwi-
lines, Inc., New York and Cuba Mail Steamship Company, and
Southern Steamship Company are operating divisions of Atlantic
'Gulf and West Indies Steamship Lines, the parent company. Control
of the Atlantic Gulf and West Indies Steamship Lines is vested in
the Chase National Bank of New York City as successor-trustee
under Atlantic Gulf and West Indies Steamship Lines Collateral
Trust Mortgage, dated December 9, 1908; the Chase National Bank
holds 147,153 shares of common stock as against 4,847 held by At-
lantic Gulf and West Indies Steamship Lines. Board's Exhibit No.
11 discloses that for the calendar year 1934, on the Atlantic and Gulf
Coasts of the United States, respondent, Agwilines, Inc., and its
5727-37-vol. it-2
4 NATIONAL LABOR RELATIONS BOARD
operating division, Clyde-Mallory Lines, represented the largest cap-
ital investment of any water carrier. Thus respondent, and its op-
erating division, Clyde-Mallory Lines, had an investment in real
property and equipment totalling $25,711,116 or approximately 20
per cent of the capital investment of all the water carriers operating
on the Atlantic and Gulf Coasts.
Under a consolidation agreement, dated November 15, 1934, and
filed with the Secretary of State for the State of Maine on Decem-
ber 1, 1934, the New York and Porto Rico Steamship Company and
Clyde-Mallory Lines took the name of Agwilines, Inc. Clyde-Mal-
lory Lines is merely a division of Agwilines, Inc., and the name
Clyde-Mallory Lines is retained merely as a trade name. Clyde-
Mallory Lines is engaged in the transportation of freight and pas-
sengers by steamship between the ports of Boston, Charleston and
Jacksonville; between New York City, Charleston and Jacksonville;
between New York City, Jacksonville and Miami; between New York
City, Charleston and Galveston; between Miami and Havana, Cuba;
between New Orleans, Key West, Miami and Jacksonville, and be-
tween New Orleans and Tampa. (Answer, paragraph 1.) Clyde-
Mallory Lines is likewise engaged between the ports of New York
and Tampa. Passengers and general merchandise are carried south-
bound from New York; passengers and fruit northbound. Substan-
tially the same kind of traffic is apparently carried on between New
Or and Tampa. One ship from New Orleans and one from New
York regularly arrive at Tampa each Monday, departing the follow-
ing day. At Tampa the company has a railroad siding which con-
nects with the adjoining property of the Seaboard Air Line. Freight
for water shipment from-Tampa arrives by rail and truck. Board's
Exhibit No. 4, a passenger and freight schedule, discloses that
agencies for Clyde-Mallory Lines are maintained in some 25 different
cities of the United States, in addition to Havana, Cuba.
The general agent of the Clyde-Mallory Lines division, at Jack-
sonville, is charged with supervision over the company's interests at
Jacksonville, Tampa and "the interior" of Florida, except Miami.
Matters of finances, credit and policy are handled exclusively from
New York City, the general agent reporting direct to New York as
to all matters within his territorial jurisdiction. "Matters of pol-
icy," testified the general agent, "always ahead of time are referred
t o New York, and they are kept closely posted as to what we have
in mind doing." This is true also of labor policy.
Respondent's operations occur in the course and current of com-
merce among the several States and with foreign countries, are an
integral part of the operations of the instrumentalities of such com-
merce, and constitute commerce among the several States and with
foreign countries.
DECISIONS AND ORDERS
II. THE UNFAIR LABOR PRACTICES
A. Interference and discrimination
5
2. Common labor at the Clyde-Mallory piers of Agwilines , Inc., at
Tampa is Negro. It is carried on an hourly payroll. It is paid
bi-weekly. The total number of such workers during the winter
peak season is 350 to 375. These workers are employed in groups
called gangs, of 11 to 22 men. Certain gangs are used in the load-
ing and unloading of ships, the so-called "ship gangs"; other gangs
work in and about respondent's warehouses and clock. Gangs that
are regularly employed when work is available are termed "regular"
gangs, others are "extra". The members of regular gangs are well
known to the white foremen and others acting in a supervisory
capacity. While the workers so employed tend to group themselves
behind one of their number, called a "gang header", who is their
leader , this is at sufference of respondent, and respondent at its
pleasure removes headers, replacing them with men of its own choice,
or refuses to work the entire gang. "Headers" are men who have
leadership ability, are more responsible men, men in whom responent
has come to place confidence and trust . They are workers of rela-
tively long experience. They receive five cents more than the hourly
rate paid other common labor. So too, "winclunen ", although nom-
inally subordinate to the gang header, nevertheless are deemed by
respondent to be in the same responsible and trusted category, and
also receive five cents more than do the other common laborers. Of
the employees herein alleged to be the subject of discriminatory dis-
charge. four were headers and two were winchmen ; as to the other,
who claims to have been employed in a comparable capacity , there is
q conflict of fact.
3. "Longshoremen" and "dockworkers", the two groups constituting
respondent's common labor, form a generic class, and will hereinafter
be referred to simply as longshoremen. Respondent's longshoremen
at Tampa receive 35 cents an hour, with a five cent an hour overtime
allowance between 7 p. m. and 6 a. In. Peak employment is offered
on Monday of each week, at which time the New Orleans ship and
one of the ships from New York arrive at Tampa. The longshoremen
then work more or less continuously until the ships depart the fol-
lowing day. According to respondent's witnesses , the longshoremen
wort: 15 to 16 hours, sometimes "around the clock", i. e., 24 hours ; 30
hours is "unusual". During these working periods, they are per-
mitted time out for lunch, but are "checked off" the payroll for that
period. Respondent's general agent explained that the men desire
long hours because they may not get any more work the rest of the
week. Average weekly pay, so far as payments made by respondent
6 NATIONAL LABOR RELATIONS BOARD
are concerned, is between eight and nine dollars a week. White
foremen are employed as supervisors; and the speed of loading and
unloading under their direction is the subject of an efficiency report,
based upon the number of tons moved per man per hour, and si b-
mittedeach month to the New York office. Discipline is maintained
by. the granting of "cooling off" periods, a euphemism meaning to
deprive. the emplpyee of his means of livelihood by temporary dis-
oharbe,lasting from one to three weeks.
These, hours, wages and working conditions were not considered
satisfactory by the longshoremen, dissatisfaction crept in, and, about
,August,-or Septe.inber;.1935., the men began to talk among them-
selves of the need for a union. About a month later, with the assist-
Unce ofary organizer named Henderson, organization began. Some-
time in. December the longshoremen received a charter as Local No.
102 of the International Longshoremen's Association (hereinaftei♦
referred to as the Union). The Union is a labor organization.
4.. Respondent's espionage system is of many years' standing and,
despite the. reticence of witnesses for respondent, apparently efficient.
The, cost of this service is included in the itemized accounts of the
Tampa office approved by the general agent at Jacksonville and for-
warded to respondent's auditors at New York.
This espionage system functioned to give respondent detailed
-reports on the progress of union activity among its employees at
Tampa. The substance of the detailed reports submitted to the local
'agent at Tampa, Gillett, was communicated to the general agent at
Jacksonville, Bartlett, who, acting at the request of the New York
office, kept that office advised of the progress of union organization.
Labor policy, Bartlett explained, is a matter subject to approval by,
New York.
5. Detailed spy reports were received as to the activities of or-
ganizer Henderson. Gillett, the local agent, also questioned his dock
superintendent about Henderson. Gillett, too, called in LaVell, a
header who was subsequently elected president of the Union, and
asked him to find out all he could about Henderson, go to Union
meetings, -and report to him or to the dock superintendent. Gillett
questioned LaVell at this time as to his feelings about a Union, and
asked him whether he "would stick with them" (meaning respond-
ent). Gillett admitted that he told LaVell on this occasion, '"As
long as you keep Mr. Rogers (the dock superintendent) informed
about this organizer, you will have a job."
6. About this same time, Gillett conferred with two other local
steamship agents, members of the Maritime Association of the Port
of Tampa, and together they went to the Chief of Police and asked
that he investigate whether or not Henderson was an "accredited
DECISIONS AND ORDERS 7
representative ." One of the reasons for this visit to the police,
Gillett testified, was : "If somebody was going to come in here and
call a strike on us, it would pretty seriously disrupt us , and I would
like to know it in as far in advance .as I could and keep our principals
informed." Gillett'later explained that Henderson might be a "fake"
organizer , preying upon the employees . In light of the first reason
given, however , such parternalistic concern is difficult to credit. So
also, Gillett 's apprehensions with regard' to a strike appear fabri-
cated, since cots for strikebreakers were not installed on the clocks
until nearly four months later . On the • other hand , this police in-
terview was had "sometime in October", concurrently . with the' first
efforts of the longshoremen to organize , and points to-the, conclusion
that this visit to the Chief of Police had for its sole purpose the
hope that Henderson might be driven from the city, thus crippling
and rendering ineffectual 'the desire 'of the longshoremen to - organize.
This conclusion is buttressed by Gillett "s confession : "We did not
avant to get our labor disorganized and upset."
7. Detailed spy reports continued to be' submitted to Gillett, regu-
larly on Wednesdays , two or three times' a week , or as the spies de-
veloped 'information . Gillett admitted that respondent, was inter-
ested in such facts "or they would not want the information". Be
further admitted that lie had been instructed' to furnish information
as to the status of union organization. - • . '
• The dock superintendent interrogated employees as to their union
affiliations . " Serious labor trouble" was apprehended . .,Gillett and
the general agent discussed the Union together , and, because of the
possibility that the-Union might ask for a change in wages and hours,
they considered the Union a threat to company efficiency.
8. The last week of November , a few days before LaVell?s dis-
charge, Gillett again interrogated' LaVell . • Gillett wanted to know
whether a strike was planned , and warned that in such an event
respondent would hire men to replace the strikers . LaVell was ad-
vised by Gillett that the longshoremen did not need a , union ; and
Gillett added, "If you get a union it is just going to cut out a lot of
men because we will put more machinery in." At the conclusion ;of
this interview Gillett blandly informed LaVell that the :members .of
the Union were - about to elect him president.
9. On December I a Union meeting was held, presided over by
organizer Henderson, and an election to -fill the office of president
took place . LaVell and Harris , both of whom were subsequently
discharged , were candidates for that ' office. LaVell was elected.
Election of other officers did not take place until the following Sun-
day, December 8. '
8 NATIONAL LABOR RELATIONS BOARD
10. On the day following the December 1 elections, LaVell was
discharged for inefficiency and slack work. LaVell's inefficiency,
according to respondent's witnesses, began as early as 1934. Ac-
cording to LaVell, no complaints were made about his work until
October, 1935-or about the time union organization began. The
local agent, Gillett, admitted that he had had no complaints about
LaVell's work until about October, 1935. In any event, LaVell had
never before been discharged, apparently not even for a "cooling off"
period. An incident arose between LaVell and his white foreman
shortly before his discharge, LaVell at the time complaining that
the foreman was "riding" him, and the foreman accusing LaVell of
slack work. As a result of this incident LaVell was warned that he
would have a two-week further trial. Respondent's witnesses date
this incident as about. a fortnight prior to LaVell's discharge on
December 2, 1935. LaVell, on the other hand, dates it as about one
month prior 'to his discharge; this would fix the time. of the incident
as two or three days after LaVell joined the Union on Hallowe'en
night, and a few days after Gillett had interrogated him in refer-
ence to spying upon Henderson, the Union organizer.
LaVell first worked at Clyde-Mallory Lines ten years before. In
1930,.he returned there in the capacity of "hold man." In 1931, he
was promoted to header and remained header until his discharge foil
inefficiency the day following the Union election of December 1,
1935.. LaVell applied for reemployment on the two succeeding
Mondays and was refused. Subsequently, the watchmen ordered him
to keep off company, property.
11. Harris was' dischar'ged' on December 2 for failure .to 'report
for duty. About November 19, Harris and his gang had been
"checked off" at 6 p. m. and ordered to report again for work at
1. a. m. the following morning. In that interval, Harris testified, he
was informed by telegraph that his mother's funeral -would take place
at Daytona,. Florida, the next day. There is a conflict of fact, which
we need not resolve, as to whether Harris promptly. informed his,
white foreman that he would be absent. According to respondent's
^vitnesses Harris. did not do so, and his absence caused a two-hour
delay of departure of the ship on which his gang had been working.
He was not immediately discharged for absence from duty; but was
requested to produce the telegram in substantiation of his story.
This he failed to do. According to Harris, the telegram had been lost.
He testified,: however, that, funeral 'arrangements. had been made
through a local undertaker at Tampa who could have verified hiss
excuse; that he had offered to submit to the dock superintendent other
proof of his story, but that the dock superintendent had not ap-
peared interested.
DECISIONS AND ORDERS 9
Harris was employed at Clyde-Mallory Lines in 1923 and worked
there until 1928. He returned to work in 1933 in the capacity of
winchman, and in June, 1934, was promoted to header of No. 6
gang. Harris joined the Union about the last of October. He had
been nominated for president of the Union, but failed of election on
December 1, when election to that office. was held. The following
day, December 2, he was discharged. Thereafter, Harris did not
apply personally to any white supervisor for employment, as claimed
to be necessary by respondent, but made himself available for em-
ployment by returning frequently to respondent's docks. -He was not
reemployed.
12. Lazarus was discharged on December 9, 1935, for insubordina-
tion and impudence. His foreman, a witness for respondent, testified
that the insubordination took the form of misdirecting freight. As
to the particular "impudence" complained of, the record is exceed-
ingly vague. According to respondent's witnesses, Lazarus had had
for several years a reputation for impudence; that impudence is a
grievous offence; that it leads to immediate and permanent severance
of employment. The inconsistencies in this testimony of respond-
ent's witnesses are clear even without noting the fact that, although
in 1934 Lazarus' employment was reduced from four days a week
to two for the reason that he was "smart", he never appears to have
been discharged.
Lazarus commenced work with respondent in 1923. He left that
employment in 1924 to work in a restaurant located on respondent's
property. In 1929 he returned to respondent's employ, and from
1929 until his discharge he was engaged' on the docks separating
freight. -Lazarus was apparently in charge of a gang of 16 men.
Thus, as stated by his foreman, a• witness for respondent, he was
"kind of at the head of that gang". Lazarus joined the Union about
November 4, 1935. At the general election of officers on December
8, he was elected secretary. The following day he was discharged.
Lazarus applied for work every Monday morning for about, two
months; and atone time was ordered by the watchman to keep off
company property. He was never rehired.
13. McDaniel (erroneously referred to in the complaint as..Mc-
Donald) was discharged on December 30, 1935, for substituting with-
out permission a new man in the gang of which he was header.
There is a conflict of fact as to whether headers of regular gangs
may substitute new men without permission, and whether McDaniel
had previously been warned not to' make substitution., The facts
found in foregoing and subsequent findings of fact make it unneces-
sary to resolve this conflict. It should be noted here, however,
that the new man whom McDaniel substituted ivas retained in re-
spondent's employ, though McDaniel was discharged. - -
10 NATIONAL LABOR RELATIONS BOARD
McDaniel was first employed by respondent in 1922, and worked
there ten years. From 1927 to 1932, he was header of a gang. In
the summer of 1932 he was discharged for having been seen near a
forbidden cafe. About November 1, 1935, he returned to respondent's
employ as header of No. 8 gang. About Hallowe'en, October 31,
1935, he joined the Union. In the Union he first acted as "inner
guard" and subsequently as "door man". During December he col-
lected Union clues on respondent's docks. After his discharge, on
December 30, 1935, McDaniel applied for work by presenting himself
at the place where the workmen habitually congregate when work
is available; but he was not reemployed.
14. Harvey, a winchman, was discharged on February 141 1936,
because of an accident resulting in damage to the ship on which he
was working. On the night before his discharge Harvey was en-
gaged at work on deck with two other members of the gang to which
he belonged, a "hatchtender", and a winclmnan named W. J. Johnson,
when the hook appended to the hoisting cable of the winch which
he was operating in conjunction with Johnson caught in the ship's
steering rod which runs in a slot longitudinally along the side of
the ship. As a result, the rod was bent. Although the two winch-
men, Harvey and Johnson, and the hatchtender were all three nom-
inally to blame for the accident, and the direct cause of the accident
was Johnson and not Harvey, the hatclitender was not discharged.
Harvey and Johnson, however, were discharged, the header of their
gang informing them that he had "orders" to lay them off.
Harvey was first employed by respondent in 1926. About 1930
he was promoted to -%vinclunan and remained in that capacity until
his discharge. He joined the Union on Hallowe'en, 1935, and, on
December 8, 1935, was elected vice-president. As previously noted,
Harvey was discharged on February 14. Despite personal applica-
tion on two occasions to the dock superintendent himself, one such
application apparently being made about two months after discharge,
Harvey was not rehired until the Board's hearing, at which time, the
record reveals, Harvey and Johnson both returned .to work, appar-
ently as a result of an understanding reached between the parties.
15. Johnson, the winchman who worked with Harvey, joined the
Union in October, 1935, and at the Union meeting on December 8
was elected treasurer. Johnson was first employed by respondent
about 1927 and continued in employment until his discharge on
February 14, 1936. Thereafter he applied several times to this
gang-header for reemployment, but was informed by his gang-
header that he had instructions not to work hum. Johnson, who re-
turned to work during the course of the hearing as did Harvey, was
not put back at his former job, but demoted to "stowing", as an
ordinary member of the gang.
DECISIONS AND ORDERS 11
16. Fisher was discharged on February 24, 1936, for absence -.from
duty. Ordered to report at 7 a. m. on Wednesday, February 19,
Fisher overslept and did not report until the ship on which he-worked
again docked on 'Monday of the following week. Upon, reporting for
work that day, the white foreman told Fisher that he had orders not
to reemploy him:
Fisher was first employed by Clyde-Mallory Lines in 1923, and
continued in employment until his discharge. For approximately
the last three months of his 13 years' employment with respondent he
was employed as a header. Fisher joined the Union about the middle
of December, 1935, and was active in advising men to join and in
speaking at Union meetings. Fisher testified that following his dis-
charge, he did : not reapply for his job, and explained that when
the white foreman stated that he had "orders" not to give him work
he simply saw no use to apply.
17. (a) The seven men who were discharged were men who had
risen to responsible positions, and apparently were men in whom re-
spondent-placed confidence and trust. All these men, except per,
haps for McDaniel whose prior ten-year period of employment was
terminated in 1932, had been regularly employed when work was
available over a relatively long term of years. If one. accepts ,the
fact that there was reason for discharge in each case, nevertheless,
the duration • of discharge is inconsistent with the normal "cooling
off" period and gives weight to the conclusion that the discharges
of -these men were not routine disciplinary discharges, as contended
by counsel for -respondent in, respect to six of the seven men upon
argument on the record at Washington, but were in. pursuance, of an
ulterior and controlling motive. Contrasting these discharges with
the 14 other discharges which. have taken place • since December. 1,
. 1935 (but not, made the subject of complaint to the Board), we find
that none of the other 14 men was a header.; although three. w.ere
winclunen, two were reemployed within three weeks after their dis-
charge, and one; discharged two or three weeks ,prior to the hearing
in this case, has not yet applied ; two men were. -discharged for .steak
ing, and did not, reapply; the remaining nine, with the exception
of one -tractor driver, for whom there was no place, were allreem-
ployed within • the normal "cooling off" period,, i. e., . two, or., three
weeks. Thus it will. be seen that instead of supporting. the conten-
tion of respondent that the, men named in, the complaint were dis-
charged for cause in the -normal course o£ disciplinary action, the
record serves to accentuate the fact that respondent did not,.accord
these cases routine disciplinary. action. The.case of Lazarus, which,
according to respondent's witnesses and ,counsel's argument. before
this Board,' required more than routine disciplinary action, . needs
no.comment here. (See, in particular, Finding No, 12, supra; Find-
12 NATIONAL LABOR RELATIONS BOARD
ing No. 17 (b) and (c), infra; and, in general, Findings Nos. 2-9,
supra).
(b) No individual efficiency or performance records were brought
-forward by respondent; and apparently no such records are kept.
But respondent introduced general, not personal, efficiency reports
showing drastic decreases in efficiency in the handling' of freight at
Tampa during November and December, 1935, and January, Feb-
ruary and March, 1936. There is no reason whatever to question
,this evidence, and it is supported by LaVell who admitted that the
employees, in order to better their economic position, had discussed
slowing up work. Respondent's purpose in offering this evidence
apparently was to show that the employees discharged since Decem-
ber 1, 1935, and particularly those named in the complaint, were
responsible for this decreased efficiency. 'Thus Gillett placed the
blame on these particular employees and further testified that after
the discharges efficiency increased. Gillett's testimony, however, is
in effect contradicted by` that of the general agent who ascribed- the
decrease in efficiency not to individual members but to all the Union
members as a group. This contradiction would suffice to reject this
evidence as support for respondent's contention that these employees
were discharged because, among other reasons stated, they were per-
sonally inefficient. 'On the other hand, the testimony of Gillett and
the general agent in this respect may be reconciled and the conclusion
reached that the employees named in the complaint, being officers
or otherwise active in the Union, were individually deemed respon-
sible by respondent for the decrease in efficiency caused by the Union
as a whole, and were discharged for the 'salutary effect their dis-
charges would have in increasing the efficiency of the longshoremen
as a group. Four of the men discharged were officers of the Union-
LaVell, Harvey, Johnson and Lazarus; McDaniel was a petty officer
`and active in collecting Union'dues; Harris had been nominated for
president of the Union but failed of election the day prior to his
discharge; and Fisher, although not an officer, apparently had been
an•active member: The finding of fact 'made in paragraph 7 above,
in conjunction with-the facts here set out, materially reinforces the
conclusion that the discharges complained of were in furtherance of
respondent's scheme to cripple and destroy the Union.
(c) In the early stages this scheme lacked subtlety. The crude-
ness of its execution is epitomized in the discharges of three men on
the day following Union elections. About December 16, however,
respondent took steps to pursue, with more finesse, its campaign
against the Union. Thus, upon the publication in a local newspaper
on December 16 of the names of the employees who had been elected
officers of Local No. 1402, Bartlett, general agent, instructed- that
all the white foremen be called together and informed by Gillett,
DECISIONS AND ORDERS 13
the local agent, that no man should be discharged without good cause,
and.that thereafter written reports should be submitted by the fore-
men giving the reasons for discharge.
Gillett admitted'that.he had been familiar with the -provisions. of
the National Labor Relations Act for several months; that he had
received no complaints that discharges were not for good cause; and
that he had no reason to apprehend that discharges might be made
without good cause. Gillett was able to give no convincing reason
as to why a special meeting to caution foremen should have been
called at this time, except that Bartlett had so instructed him. Bart-
let testified that it had occurred to him as early as October that he
might have to • discharge Union men; that he, apprehended- com-
plaints that discharges were discriminatory and for this reason called
the special meeting. As to why the meeting was called at this par-
ticular time, Bartlett stated that he had had no previous knowledge
of the formation of a union. This, however, is patent prevarication,
the character of which is little mitigated by this witness'- subsequent
attempt at explanation. The conclusion is fully warranted by the
record that the special meeting of foremen herein discussed had for
one of its purposes the temporary halting of discharges of active
Union 'members until "cause" fortuitously appeared. It was thus
that respondent bided its time.
(d) Upon the basis of all the foregoing findings of fact, we find
that the seven employees named in the complaint were discharged
and discriminated against in regard to hire and tenure of employ-
ment for the purpose of discouraging membership in the Union.
We further find that by the discharges of the said 'employees re-
spondent' has interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
We deem it advisable to state, in reference to the above conclusion
of fact, that it is not the purpose of the Act, or the intent of the Board
in the administration of the Act, to curtail the normal right of an
employer to discipline his employees. There is a duty, however, as
the Board sees it, to thrust subterfuge 'aside. Cause for discharge
is a valid answer to the charge of discrimination when, judged by all
the facts in the record, it is an honest answer. When cause, so
judged, is found wanting, it may well be discrimination within the
meaning of the law. To hold otherwise would be to put a premium
in the palm of speciousness.
B. Collective bargaining
18. The International Longshoremen's Association claims "j uris-
diction" over all men who work in and about the docks without dis-
tinction as to whether they are "longshoremen", i. e., working in
14 NATIONAL LABOR RELATIONS BOARD
and out of the ship, or whether they are "dockworkers", i. e., arrang-
ing freight, among other things, after it has been moved out of the
holds by the longshoremen. While in some ports the International
'Longshoremen's Association charters separate. locals for longshore-
men, dockworkers and other groups, in other ports the local em-
braces all "longshore" workers. Local No. 1402 at Tampa was an
,example of the latter. So far as a finding in the matter of an ap-
propriate unit is concerned, the distinction is unimportant and fic-
titious. Respondent's longshoremen and dockworkers at Tampa are
paid the same hourly wake, obtained from the same labor reservoir,
at times are used interchangeably by respondent, i, e., are long-
shoremen today and dockworkers tomorrow,, are members of the
same Local, and are otherwise homogeneous. We find, therefore,
that all the common labor employed by respondent, longshoremen
and dockworkers, constitutes a unit appropriate for the purposes of
collective bargaining.
19. Respondent's local officials do not question that the Union
-represents a majority of its common labor; indeed its witnesses ex-
pressed the- belief that practically all this labor has Union member-
ship. Testimony by the secretary, of Local No. 1402 likewise sup-
ports the conclusion that the Union, so far as respondent's workers
are concerned, is practically 100 per cent organized. We find,
therefore, that the Union does represent a majority of the employees
in the appropriate unit above described, and we further find, in view
of this unquestioned majority, that the Union was entitled to bargain
collectively with respondent as the exclusive representative of all
respondent's longshoremen. '
20. About March 26,.19,36, acting at the request of the Union and
organizer Henderson, Holt Ross,; special. representative of the In-
ternational Longshoremen's Association, came to Tampa to enter into
collective bargaining negotiations with representatives of Tampa
shipping interests: Soon after his arrival.a Union. meeting was held
and a resolution adopted designating Ross and the officers of Local
No. 1402: representatives, for purposes of collective bargaining. Un-
certain whether the employers preferred.to enter into an agreement
covering the whole port, or to enter into individual company agree-
ment's, the Union, on March, 26, sent a, notice to all steamship agents
and stevedore companies in Tampa, advising them.of the designation
of collective bargaining representatives by the Union;, and request-
ing that negotiations be opened.
21. Pursuant to this notice, the Maritime Association of the Port
of Tampa, an association of shipping interests, appointed a sub-
connmittee of five' to meet with the representatives of the Union.
The first conference. ' was held !April , 2, 1936, at which time Ross
DECISIONS' AND ORDERS. ' 15
read a prepared statement 'requesting an eight-hour day and-15 cents
per hour wage increase.: This prepared statement further, explained
that hourly wage rates. for coastwise longshore work "for ports in
the South and to the West of Tampa is therefore slightly in excess
of 70 cents per hour". The conference lasted from 15 to 20, minutes,
and concluded with the- assurance of the subcommittee that the
Union demands would be taken back to and considered by the Asso-
ciation members, and that an answer would be given promptly.
22. The next day, April 3, a second conference was held. The
subcommittee explained that the demands had -been discussed with
the Association members following the conference with the Union
representatives the day, ,before, and ' that the Association members
had decided that the demands of the Union could not be met.. It
was explained to the Union representatives that the competitive
position of the port of Tampa was such that any increase in • oper-
ating costs would result in a loss of traffic. At the request of the
Union representatives, the subcommittee then retired while the
former considered a modification of their demands. Upon recon-
vening, the Union representatives,. asked whether the subcommittee
had authority to make any counter-proposals. Upon being informed
that.it did not have such authority the Union representatives pro-
posed that no written agreement be entered into but that the com-
panies announce a five cent per hour wage increase, preference for
Union labor, recognition of the Union, and a provision whereby if
better rates were obtained in other ports, the "contract" might be
reopened. The subcommittee again expressed its readiness to take
these modified .demands back to the Association , f or consideration.
Thereafter Ross, having requested the Association subcommittee to
notify him of the answer to the modified proposals, left Tampa on
other business. '
o On April 7 the subcommittee sent a telegram to. Ross advising him
that the "employers' committee" had arranged' a meeting for noon
of the following day.'
23. Ross was absent, however, when on April 8 the subcommittee
again met with ,the Union representatives. As at the two previous
conferences, the subcommittee informed the Union representatives
that the Association could not accept any of the Union's proposals.
The Union representatives thereupon further modified their orig-
inal proposals to ask simply for "preference" and "recognition".
The.'spokesman for the subcommittee advised them, however, that
preference and recognition, was a matter which would have, to be
taken up with each company individually.
Before the conclusion of- this conference, which, incidentally,
ended the efforts of the Union to bargain collectively, one of the
16 NATIONAL LABOR RELATIONS BOARD
members. of the Assocation's subcommittee advised the representa-
tives of Local No. 1402 to let the Union alone, that they did not
need the Union and could get along without it. This bald attempt
to interfere with, restrain and coerce even the representatives of
the Union needs .no comment.
24. Gillett. was a member of the subcommittee and attended each
conference. Bartlett, general agent, was present at the two private
meetings of,the Association at which the Union demands were dis-
cussed, but was not a member of the subcommittee which actually
met. with the Union representatives.' The record leaves no doubt
that both Bartlett and. Gillett ratified, tacitly at least, the action
taken by the Association and its subcommittee.. Each expressed him-
self as in accord with what was done and said at these conferences-
the conferences with-the Union representatives' and the conferences
of the Association.
Neither Gillett nor Bartlett had any authority from their supe-
riors to enter into any agreement with the Union representatives.
Nor were they in a,position to be bound by any action agreed upon
by the Association. It was explained by these witnesses that the
making of any agreement was a matter of management policy for
respondent at New York to decide. Likewise, the spokesman for
the subcommittee admitted that he, too was without authority to
enter into an agreement for any of the lines which he represented.
Thus the implication is plain that no amount of consideration of the
proposals by the Maritime Association at Tampa could have re-
sulted in any agreement. So far as respondent is concerned, al-
though it was kept informed of the progress of negotiations by its
local officials, it nevertheless gave no instructions whatever. The
general agent admitted that he had not asked his home office for
authority to make any agreement, or to, make any offer that might
be used as a basis for an agreement; nor did he, acting on his- own
authority, make any -proposals or counter-proposals to the Union
representatives. Gillett testified substantially to ' the same effect.
These admissions lead us 'to conclude that the Association acted
merely as a blind to give pretense of bona fide negotiations.
25. Respondent attempted to evade the allegation of bad faith by
testimony about the competitive position of the port of Tampa, and
how that position would be imperiled were ' there changes made in
the wages or hours of its longshoremen. We are frankly of the
opinion, however, that this explanation was availed of, at the hear-
ing and at the "collective bargaining" conferences, not because it
was meritorious per se, but because it served as a solemn toga to
cloak respondent's unwillingness to enter into genuine negotiations.
DECISIONS AND ORDERS 17
At the hearing before the Trial Examiner.much was said as to
the effect of an increase in cost of operation on respondent's com-
petitive position; and the same point was argued by respondent's
counsel before this Board. But. in the record nothing appears as
to the point at which higher operating costs would necessitate a
change in freight rates. Prior to an increase in freight rates, com-
petition would not be affected. Furthermore, so far as concerns the,
Union's proposals at the April 8 conference-merely for recognition
and preference, without change in hours, without increase .in wages,
without written agreement-respondent's witnesses were silent. There
is no conclusion to be reached'from the above facts except that re-
spondent's collective bargaining negotiations were sham. From
beginning to end of this record of conferences there is no evidence
to give even colorable standing to respondent's contention that it
bargained collectively with the representatives of its employees.,
26. We find, upon the basis of all the foregoing findings of fact,
that respondent has refused to bargain collectively with the repre-
sentatives of its employees, and that by its conduct in this respect,
respondent interfered with, restrained and coerced its employees in
the exercise of the, rights guaranteed in Section 7 of the' Act.,
III. RESPONDENT'S CONDUCT IN RELATION TO INTERSTATE COMMERCE
27. The labor relations of respondent have been peaceful since
1925 in which year a strike took place which lasted 24 'hours, in- '
volved two ships, and delayed sailings. Respondent's witnesses tes-
tified that during the period of this strike the ships were neither
loaded nor unloaded. The cause of the strike was a demand for an
increase in wages. Board Exhibit No. 9, prepared by the Bureau of
Labor Statistics of the Department of Labor at'Washington, reveals
that during 1934, in the' water transportation industry, 1,069,642
man-days were lost because of strikes and lockouts; and that 229,-
552 man-days were lost in the period from January to July, 1935.
This exhibit discloses that the major issues of these strikes were
wages and hours and organization of the union, including recogni-
tion of the union, by the employer. In the Gulf ports during the
period October, 1935 to May, 1936, according to Ross, special repre-
sentative of the International Longshoremen's Association, approxi-
mately 2,000 ships were tied up because of strikes. The substantial
burden on interstate commerce resulting from disputes over issues
identical with the issues in this case is thus apparent.
Respondent admitted in its answer that' it is engaged in inter-
state commerce. Gillett and the dock superintendent admitted that
longshoremen are a vital part of the trafe movement, arid'that' a
18 NATIONAL LABOR RELATIONS BOARD
strike means the cessation of that movement. It is thus clear that
respondent's longshoremen are a vital part of this, interstate com-
merce .movement, that they are in a strategic position completely to
halt that movement, and that, on occasion, they have effectively
done so.
28. We find that respondent's conduct as set forth in all the fore-
going, findings of fact burdens and obstructs commerce among the
several States and with foreign countries and the free flow of such
commerce, and has led and tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce among; the
several States and with foreign countries.
CONCLUSIONS OF LAW
1. Local No. 1402 of the International Longshoremen's Association
is a labor organization, within the meaning of Section 2, subdivision
(5), of the Act.
-2. Respondent, by its discharge of John LaVell, Guss Harris,
Michael Lazarus, McKay McDaniel, Arthur Fisher, Perry Harvey
and- W. J. Johnson, because they joined and assisted a labor organ-
ization, discriminated in regard to their hire, and tenure of employ-
ment, thereby discouraging membership in a labor organization, and
by reason of such discrimination, has engaged and is engaging in
unfair labor practices, within the meaning of Section 8, subdivision
(3), of the Act.
3. The longshoremen and dockworkers employed by respondent
constitute a unit appropriate for the purposes of collective bargain-
i-ng,,within the meaning of Section 9(b) of the Act.
4., By yirtue of Section 9(a) of the Act, Local No. 1402, having
been designated by,substantially all the employees in a unit appro-
priate for the purposes of collective bargaining, is the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining.,
5. Respondent has refused to bargain collectively with Local No.
1402 as the representative, of, its longshoremen, and by reason of such
refusal has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (5), of the Act.
6. By the acts set .forth in conclusions 2 and 5 above, respondent
has interfered with, restrained and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, and has
engaged and is engaging in unfair labor practices; within the mean-
ing of Section 8, subdivision (1), of the Act.
7. The unfair labor practices in which respondent has engaged and
is engaging are unfair labor practices affecting commerce, within thel
meaning of Section 2, subdivisions (6) and (7), of the Act.
DECISIONS AND ORDERS 19
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c), of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
respondent , Agwilines, Inc., and its officers and agents , shall :
1. Cease and desist from in any manner discriminating against
any of its employees in regard to hire and tenure of employment or
any term or condition of employment for joining or assisting Local
No. 1402 or any other labor organization of its employees;
2. Cease and desist from in any other manner interfering with,
restraining or coercing its employees in the exercise of their rights to
self-organization , to -form, join or assist labor organizations , to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purposes of collective bar-
gaining or other mutual aid and protection , as guaranteed in Section
7 of the National Labor Relations Act;
3. Cease and desist from refusing to bargain collectively with,
Local No. 1402 as the exclusive representative of the longshoremen
employed by it in respect to rates of pay, wages , hours of employ-
ment and other conditions of employment.,
4. Take the following affirmative action, which the Board 'finds
will effectuate the policies of the Act :
(a) Offer to John LaVell, Guss Harris, Michael Lazarus, McKay'
?McDaniel , Arthur Fisher, Perry Harvey and W. J. Johnson imme-
diate and full reinstatement, to their former positions, without preju-
dice to any rights and privileges -previously enjoyed by them;
(b) Make whole each of the employees named in paragraph 4(a);
above for any loss of pay he has suffered by reason of his discharge,
by payment to him of a sum of money equal to that which he would
normally have earned in respondent 's employ from the date of his
discharge to thel date of the offer of reinstatement, computed at the
rate, normal and overtime , for the, same number of hours, normal
and overtime , equal to the average amount earned by those employees
of respondent doing similar work in similar positions since his
discharge ;
(c) Upon request , bargain collectively with Local No. 1402 as the
exclusive representative of the longshoremen employed by it in re-
spect to rates of pay, wages , hours of employment and other condi-
tions of employment;
(cl) Post notices immediately to its employees in. conspicuous type
and in conspicuous places, including a conspicuous place "on the
bricks" where the employees congregate for work, stating (1) that
respondent will. cease and desist in the manner aforesaid ; and (2)
that such notices will remain posted for a period of. at least thirty
( 30) consecutive days from the date of posting.
5727-37-vol. a-3