American Mail Line, Ltd.

National Labor Relations Board - Board Decisions

Jan 14, 1957

117 N.L.R.B. 53 (N.L.R.B. 1957)

AMERICAN MAIL LINE, LTD. 53
On the basis of the foregoing it appears, and we find, that on and
after January 1, 1957, the employee complement at the Employer's
plant will be a substantial and representative segment of the total
complement which the Employer anticipates employing by July 1,
1957, and that the timing of any further expansion beyond that date
is uncertain. Under such circumstances, and as this date has passed,
we find that the employees now employed are entitled if they so desire
to select a representative for the purposes of collective bargaining,
and we therefore find no merit in the Employer's contention that the
petition is premature.' We shall, accordingly, provide for an election
to be held on a date to be selected by the Regional Director; eligibility
to vote shall be determined by the payroll period immediately preced-
ing the issuance of a notice of election by the Regional Director.'
[Text of Direction of Election omitted from publication.]
4 Ppringfceld Body & Trailer Co., 112 NLRB 1287 , 1289 ; General Electric Company, 106
NLRB 364,365-368.
5 Armstrong Cork Company, 115 NLRB 1578 , 1580-1581.
American Mail Line, Ltd. and Joseph H . Edwards. Case No.
19-CA-1274. - Janu y 14,1957
DECISION AND ORDER
On July 2, 1956, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief, and the Respondent
filed a brief in support of the Trial Examiner's findings.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.'
[The Board dismissed the complaint.]
1 The General Counsel excepts to the alleged failure of the Trial Examiner to rule on
LeDoux's credibility. However, we have examined the record as a whole and find that
LeDoux's testimony supports the Trial Examiner 's ultimate factual findings , and that
certain minor discrepancies do not, in the light of all the testimony, affect his credibility,
nor the ultimate conclusions reached by the Trial Examiner. Accordingly , we find no
merit in the General Counsel 's exceptions.
117 NLRB No. 16.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Joseph H. Edwards , an individual , against American
Mail Line, Ltd., Seattle , Washington , herein called the Respondent , the General
Counsel of the National Labor Relations Board issued his complaint dated April 6,
1956 , alleging that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and
(7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
In respect to unfair labor practices the complaint alleges that on or about August
29, 1955, the Respondent discharged Joseph H . Edwards because he was not then
a member of Marine Cooks & Stewards , AFL-CIO, a labor organization.
Prior to the hearing , which was held May 1, 2, and 3, 1956 , before the duly
designated Trial Examiner in Seattle, Washington , the Respondent filed its answer,
admitting certain of the jurisdictional allegations of the complaint , but denying the
commission of unfair labor practices . The General Counsel and the Respondent
were represented at the hearing and were afforded opportunity to examine and cross-
examine witnesses and to introduce evidence bearing upon the issues . A brief from
counsel for the Respondent has been received and considered . A stipulation to
correct the record in certain particulars is approved and hereby made part of the
record.
Upon the entire record in the case , and from my observation of the witnesses,' I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Based upon the allegations of the complaint as conceded in Respondent's answer,
I find that American Mail Line, Ltd., is a corporation organized and existing by
virtue of the laws of the State of Delaware, having its principal office and place of
business in Seattle, Washington. Respondent is engaged in the operation of com-
bination freight and passenger vessels between ports located in the States of Oregon,
Washington, and California and ports located in Japan, the Philippine Islands, and
other places in the Orient. From the conduct of its business, the Respondent re-
ceives annual revenues in excess of $5,000,000. I find that Respondent's operations
affect interstate commerce within the meaning of Section 2 (6) and (7) of the Act.
H. THE ORGANIZATION INVOLVED
Marine Cooks & Stewards, AFL-CIO, herein called the Union , is a labor organiza-
tion affiliated with Seafarers International Union of North America, Pacific District,
admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Only the reason for the discharge of Edwards is at issue. There is no assertion
that any other conduct of the Respondent violated the Act. Edwards, a cook of long
experience, worked as second cook and baker aboard the Washington Mail, one of
Respondent's vessels, from October 1953 until his discharge in August 1955. At all
times Edwards was a member of a labor organization other than the Union. In
May 1955 the Washington Mail sailed from Seattle with Edwards in his accustomed
job in the stewards department, but with a relief master, Walter Dinsmore, and a
relief chief steward, Walter LeDoux. At the time of sailing, a question concerning the
representation of members of the stewards department aboard all of Respondent's
vessels had arisen and until its resolution an arrangement had been worked out
whereby replacements in stewards department ratings were obtained through a central
registration office without regard to union membership. Al Hambeau, the chief
steward regularly employed aboard the vessel, chose in May to stay ashore for a trip.
LeDoux was assigned to the vessel from the central registration office for the trip
that Hambeau did not make. He was then and at all times material herein a member
of the Union. LeDoux testified in his deposition that he and one Milton Berger
were the only 2 members of the Union in a stewards department consisting of 12 men;
the others were, in LeDoux's belief and in probable fact, members of a rival labor
organization. According to LeDoux he found the condition of the vessel in respect to
i The testimony of Dewey Paine and Walter C. LeDoux was taken pursuant to stipula-
tion by depositions prior to the hearing I had no opportunity to observe either of these
witnesses.
AMERICAN MAIL LINE, LTD. 55
those areas for which he was responsible to be deplorable . The dry storeroom was
filthy, discipline was lax, and some of the men were incompetent . On an occasion
shortly after the vessel left Seattle for Yokohama , according to LeDoux , he observed
that Edwards did not prepare an item which the published menu required. He up-
braided Edwards for this delinquency and thereafter had only occasional difficulty
with him in that respect . Throughout the voyage , however, LeDoux testified,
Edwards' baking , except for pies, was poor and frequently his baked preparations
were left untouched on the tables . When the vessel reached Singapore , LeDoux
learned that the Union had been successful in a Board-conducted election and had
become the certified representative of all unlicensed personnel in the deck and
stewards departments . He acquainted the master, Dinsmore , with this development.
Still later , when the vessel was proceeding to Los Angeles from the Philippines,
LeDoux prepared a report on all stewards department personnel which he showed to
the master . Over LeDoux 's signature and with the signed concurrence of the master,
this report was sent to Respondent 's head office in Seattle . It stated that seven of
the employees in the stewards department , including Edwards, had exhibited char-
acteristics which, in LeDoux 's opinion , made them unsuitable for further employment .2
The particular complaint concerning Edwards was that he refused to follow menus
and was uncooperative and surly. Among those recommended for dismissal was
Berger, the only member ( other than LeDoux ) of the Union . The remaining four
employees, and particularly the chief cook, George Foster , were praised as competent,
cooperative, and in almost every respect desirable employees . None of these last was
a member of the Union and all had some identification with the rival organization.
At about the time of the mailing of this report , LeDoux wrote a letter to the Union's
,office in Portland, which later was printed in the union publication on August 12,
1955, saying that he had 10 nonunion men aboard the vessel , that it took him about
2 months to get the ship cleaned up and "these guys" straightened out, but that most
of them were competent . When the vessel arrived in a Los Angeles harbor, patrol-
men of the Union boarded the vessel and told LeDoux that because Berger was the
only union member aboard Berger would have to be designated as a delegate to repre-
sent employees in the stewards department in such matters as might be in dispute
with the master. LeDoux replied that Berger because of his work attitude was not a
proper person to fill such a post. When the vessel arrived in San Francisco , another
representative of the Union boarded it and, telling LeDoux that there had been some
trouble with the United States Customs Service, recommended that all in the stewards
department be discharged as a "bunch of dope carriers ." 3 LeDoux referred him to
the master. The vessel next stopped at Longview , Washington . A port steward,
representing the Respondent , boarded the vessel and, in conference with the master
and LeDoux , the question of discharging members of the stewards crew was dis-
cussed . LeDoux recommended , he testified , that all seven whom he had denounced
in his report to the Company be let go, but no final decision in the matter was
reached in his presence . LeDoux left the vessel 4 days later when it arrived in Port-
land and the regular steward , Hambeau, returned to his job.
Walter Dinsmore , the master , testified that throughout the voyage he received
numerous complaints from LeDoux concerning individuals in the stewards department.
The complaint as to Edwards was that he failed on occasion to follow menus and that
his baking was not acceptable. When the vessel arrived in Los Angeles on August 16,
Dinsmore wrote what is known as a.voyage letter to the operating department of the
Respondent in Seattle , detailing the incidents of the voyage and, in comments con-
cerning personnel , saying that the stewards department was below average in quality.
Dinsmore expressed the opinion that the chief steward seemed to lose control of his
department after the news spread that the Union had won the election. He observed
that most of the men in the stewards department were members of the losing union
and that they probably assumed they would lose their employment at the end of the
voyage. Dinsmore testified that his signature on the chief steward's personnel report
was intended to indicate no more than the fact that he had read it before it was dis-
patched. However the single word approved appears over his signature and it is dif-
ficult for me to believe that Respondent 's officials in Seattle could have come to any
conclusion other than the indicated one, that the recommendations had the approval
of the master . Dinsmore explained that when he said in his voyage letter that members
of the rival union anticipated discharge he was of the opinion that such a result
would naturally flow from the lost election , but that before he took any action to
discharge anyone he learned that such a rule was not and could not be applied. In
2 Because the complaint alleges discrimination only as to Edwards , I have not considered
the reasons for the other discharges.
3 There is no assertion here that this accusation had substance.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Francisco , representatives of the Union asked Dinsmore to give immediate effect
to LeDoux 's recommendation of discharge . Dinsmore refused to do so. According
to Dinsmore , he listened in Longview to the chief steward's complaints about the 7
individuals concerning whom recommendation of discharge had been made and
decided that it was necessary to take such action only in respect to 3. Before dis-
charging Edwards, Dinsmore testified , he consulted with Foster, the chief cook. In
response to Dinsmore 's questioning , Foster said , "He had seen better and had seen
worse." Because 2 of the individuals affected by LeDoux's recommendations were
on for only 1 trip , it was unnecessary , according to Dinsmore , to do anything to get
rid of them except to permit them to leave the vessel as they were in any event
scheduled to do. Another, Berger, was let go because there no longer were passengers
aboard which required the service he was hired to give. A fourth was in the master's
opinion a good enough employee to retain if he could satisfy his employer that he was
in good physical condition.
Edwards testified that he had never heard complaints from anyone concerning his
baking or directed to his work performance in any respect until LeDoux came
aboard. On the only occasion when , according to Edwards , he was accused of
deviating from the menu, it was in a situation where it was physically impossible
to prepare the item which the menu advertised . Edwards agreed that he was criti-
cized sharply by LeDoux for this variance , but asserted that he could not have done
what LeDoux required of him. George Foster, a member of the same union as
Edwards and one whom it seemed to me was not disposed to exaggerate in his testi-
mony to favor either contention in this matter , testified that Edwards was a very
good cook and a "fair" baker . Foster testified that he had heard of some difficulty
between LeDoux and Edwards concerning a menu change, but had no firsthand
knowledge about it. It is inferable from his testimony that there was only one such
occasion and that LeDoux at no time complained to Foster about Edwards.
Al Hambeau, the regular chief steward , testified that Edwards worked under his
supervision for a couple of years and that he had no complaints about him.
Willard Baker was the purser during the voyage and in that capacity was some-
thing akin to a chief clerk to the master. Baker typed , at LeDoux 's request, the
report concerning stewards department personnel which has been referred to.
He had custody of what might be termed personnel cards for those working in
the stewards department and I suppose elsewhere on the vessel . These cards
remained aboard the vessel and in Baker's possession from the time that an indi-
vidual was hired until the time that he left, and showed the date of employment,
the date of leaving, and the reason for separation. As to Edwards , Baker noted
on the personnel card which he then sent in to the head office of the Respondent
that on August 28 , 1955, Edwards was taken off the vessel at Portland by the
Union at the steward's request . In his testimony Baker explained that no one told
him that this was so but that he knew of the letter report by LeDoux and assumed that
in consequence the Union had demanded that Edwards be discharged. Later in
his testimony he said that his assumption was that Edwards had lost his job because
of the recommendation of LeDoux to the Respondent.
Following his discharge, Edwards made application to the Employment Security
Department of the State of Washington for unemployment compensation, which
was granted him. The department reported to Edwards that, according to his
Employer, he was removed from the vessel by the Union at the request of the
chief steward in order to give other members of the Union employment.
William Rosene , Respondent 's labor relations representative , agreed that he
received a copy of this report but testified that the misstatement of reason for
discharge did not cause him concern. Edwards, he testified, was entitled to the
benefit which he received and whatever the reason found by the department for
the discharge, the tax liability of the Employer was not affected . Rosene explained
that in all probability the information reported by the department as coming from
the Employer was obtained by a telephone call to his office and supplied by some
clerical employee reading from the personnel card sent in by Purser Baker . LeDoux,
who recommended the discharge , and Dinsmore , who effectuated the recommenda-
tion, both denied that any consideration of union policy or membership entered
into the recommendation or decision.
If I understand the theory of the General Counsel in this matter correctly, it is
that LeDoux accomplished the discharge of Edwards because the latter was not a
member of the Union. It is clear enough, and I find, that LeDoux did not possess
authority to discharge but had to persuade the master to exercise the power to
that end The evidence is sufficient , however, to establish that LeDoux occupied
a supervisory status in regard to steward department personnel and that in the dis-
charge of his duties he was expected to inform the master of his opinions as to the
AMERICAN MAIL LINE, LTD. 57
competency of the crew which he directed with appropriate recommendations affect-
ing their tenure. Two questions then must be answered . Did LeDoux 's recom-
mendation as to Edwards derive from a desire to replace him because he was not a
member of the Union? If so, then a violation of the Act is described for a
recommendation by a supervisor upon such considerations designed to accomplish
a discharge is a restraint and coercion within the meaning of the Act. Next, did
the master discharge Edwards because of LeDoux 's recommendation ? If so, the
discharge was unlawful and the complaint must be sustained.
It is not contended and upon this record cannot be found that the selection of
LeDoux as chief steward was made upon any basis other than that he was next
in line at the central registration office for employment . The Respondent had no
opportunity to choose a man known to have any union predilection . But LeDoux
did turn out to be a stout believer in the Union and one convinced that union
members as opposed to those who were not were , in general at least, considerably
more competent and therefore more desirable in stewards department ratings. To
bring about the replacement of all who were not members of the Union, it is
impliedly argued , must have been LeDoux 's design
'I do not find that the evidence , upon a fair appraisal , supports the General
Counsel's contention in this regard . It is notable , of course , that LeDoux included
in his recommendations of discharge that Berger, the only member of the Union
in the crew, be let go . I consider it significant , also, that the chief cook , Foster,
and Stewards Mosely, Rasby, and Redditt, none of them a union member, were
highly recommended If LeDoux was attempting to replace all those in his depart-
ment with union members , it seems unlikely that he would have singled out for
praise any who were not members. But why was Edwards discharged at a time
when Foster, as an example , was highly praised?
The evidence does not persuade that Dinsmore would have discharged Edwards
without a recommendation to that effect from LeDoux . I think it probable that
Edwards' qualifications were most objectively appraised by Foster , the chief cook
under whom he worked Edwards had been good enough to hold the job for
nearly 2 years , and I consider it extremely doubtful that one whom Foster described
as a very good cook though only a fair baker, would have been discharged as he
was except for the recommendation of LeDoux . One comes back to LeDoux and
his motivation. I am unconvinced that it derived from considerations of union
membership or policy. It is my conviction , based upon the evidence , that LeDoux
was a strict disciplinarian ; that he demanded a quality of work performance which
may have been unreasonable ; and that he thus failed to endear himself to his crew.
The selection of Edwards for discharge seems to me likely to have been based upon
a perhaps unfair appraisal of Edwards ' work performance . Indeed, the Respondent
has since offered Edwards similar employment on another of its vessels. It may
well have been that he expected more of a second cook and baker than he had a
right to expect . Certainly , no other reason is suggested by this record to explain
why nonunion member Edwards was not acceptable to LeDoux at the same time
that nonunion members Foster , Redditt, Rasby, and Mosely were desirable.
Edwards' identification with another labor organization was no sharper than that
of the others.
The explanation of the entry on Edwards' personnel card attributing his discharge
to a union policy or request merits belief . Baker, who made the entry , was in no
manner concerned in the discharge, and his conclusion is but an opinion which the
record does not support.
The General Counsel has presented here some pieces of evidence which, viewed
separately , seem to indicate that they are fragments of a whole picture of discrimi-
nation , but when fitted together with other components they retreat into true
perspective.
I find that there was no discrimination , within the meaning of the Act, attending
the discharge of Joseph Edwards
CONCLUSIONS OF LAW
1. Marine Cooks & Stewards , AFL-CIO, affiliated with Seafarers International
Union of North America , Pacific Division , is a labor organization within the
meaning of Section 2 ( 5) of the Act.
2. The operations of the Respondent described herein are in commerce and
affect commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
The Respondent has not discharged Joseph H. Edwards in violation of Section
8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication.]