American Patrol Service

National Labor Relations Board - Board Decisions

Dec 29, 1947

75 N.L.R.B. 662 (N.L.R.B. 1947)

In the Matter of C. F. FELLOWS, DOING BUSINESS AS AMERICAN PATROL
SERVICE and SHIP CLERKS ASSOCIATION, LOCAL 34, I. L. W. U.-
C. 1. 0.
Case No. 20-C-1553.-Decided December 99, 1947
1lir. Thomas J. Davis , Jr., for the Board.
Mr. Harold Jackson , of San Francisco , Calif., for the respondent.
Gladstein , Andersen , Resner, Sawyer, and Edises , by Messrs. Nor-
man Leonard and Gerard Preston, both of San Francisco , Calif., for
the Union.
Messrs. Edward L. Turner and W. F. Lambertz , of San Francisco,
Calif., for the Seafarers.
DECISION
AND
ORDER
On March 13, 1947, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices I and recommending that he cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Seafarers filed
exceptions to the Intermediate Report insofar as it involved findings
of violations of Section 8 (1). No exceptions were filed by the
respondent.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the qualifications hereinafter set forth.
Like the Trial Examiner, we find that the respondent discriminator-
ily discharged six employees in violation of Section 8 (3) of the Act.
'Those Provisions of Section 8 (1) and (3) of the National Labor Relations Act which
the Trial Examiner found were violated, are reenacted in Sections 8 (a) (1) and 8 (a) (3)
of the Labor Management Relations Act, 1947.
75 N L. R. B , No. 79.
662
AMERICAN PATROL SERVICE 663
We also find that the respondent's conduct, detailed in the Intermedi-
ate Report, was violative of Section 8 (1) of the Act in that he granted
exclusive recognition to the Seafarers in the negotiation of a wage in-
crease during the pendency of w question concerning representation,
assisted the Seafarers in regard to the incident of Kavado's discharge,
and made certain coercive statements to its employees.2
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, C. F. Fellows,,
doing business as American Patrol Service, San Francisco, California,
and his agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Ship Clerks Association, Local
34, I. L. W. U.-C. I. 0., or in any other labor organization of his em-
ployees, by discharging or refusing to reinstate any of his employees,
or by discriminating in any other manner in regard to their hire
and tenure of employment or any terms or conditions , of their
employment ;
(b) Encouraging membership in Seafarers, Guards & Watchmen's
Union, affiliated with Seafarers International Union, A. F. of L.,
by acceding to any demands for the discharge of any employees, or by
negotiating with said labor organization as the exclusive representa-
tive of his employees concerning conditions of employment until said
labor organization is certified by the National Labor Relations Board
as the exclusive representative of said employees;
(c) In any other manner interfering with, restraining, or. coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Ship Clerks Association, Local 34,
I. L. W. U.-C. I. 0., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose 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 A.ct :
(a) Offer Carl B. Chilgren, Bernard Schmitz, Constantinos'Alex-
opoulos, Joaquin A. Arrieta, and J. E. Kavados immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
2 In this connection we rely only on Office manager Doll's and Sergeant Lambertz s
remarks to Schmitz and Sergeant Lambertz's interrogation of Aletiopoulos.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- (b) Make whole Abbey Mendia and the other employees listed in
2 (a), above, for any loss of pay they may have suffered by reason of
the respondent's discrimination against them, by payment to each of
them of a sum of money equal to the amount which he normally would
have earned as wages during the period from the date of the respond-
ent's discrimination against him to the date of the respondent's
offer of reinstatement, less his net earnings during said period, and in
the case of Abbey Mendia from the date of the respondent's discrimi-
nation against him to December 4, 1946, the date on which he testified
at the hearing;
(c) Withdraw and withhold all recognition from Seafarers,
Guards & Watchmen's Union, affiliated with Seafarers International
Union of North America, A. F. of L., as the exclusive representative
of his employees for the purpose of collective bargaining unless and
until said organization shall have been certified by the National Labor
Relations Board as the representative of such employees;
(d) Post at his place of business at San Francisco, California,
copies of the notice attached to the Intermediate Report herein marked
"Appendix A."' 3 Copies of said notice, to be furnished by the Re-
gional Director for the Twentieth Region, shall, after being duly
signed by the respondent, be posted by the respondent immediately
upon receipt thereof, and maintained by him for sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(e) Mail to all the employees who were on his pay roll from May 1
through September 5, 1946, at their last known address, postage pre-
paid, copies of the afore-mentioned notice;
(f) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the respondent discriminated in re-
gard to the hire and tenure of employment of C. E. Calkins.
TATember MURDOCK took no part in the consideration of the above
Decision and Order.
This notice, however, shall be, and it hereby is, amended by striking front the first
paragraph thereof the words "Recommendations of it Trial Examiner" and substituting in
lieu the,cot the words, "A Decision and Older" In the event that this Order is entorced
by decree of Circuit Court of Appeals, there shall be inset ted before the words 'A Decision
and Oider,' the words, "A Decree of the United States Circuit Court of Appeals Enforcing"
AMERICAN PATROL SERVICE ,
INTERMEDIATE REPORT
665
Mr Thomas J. Davis. Ji , for the Board
11Ir Harold Jackson, of Stan Francisco, Calif, for respondent.
Gladstern, Andersen, Reanei, Sa'aile) and Edtses, by Messrs Norman Leonard
and Gerard Preston,, both of San Francisco, Calif, for the C. I O.
Messrs Edical d L. Tin ner and W. F. Lambertz, of San Francisco, Calif., for
theA F.ofL
STATEMENT OF THE CASE
Upon a first amended charge duly filed on November 8, 1946, by Ship Clerks
Association, Local 34, International Longshoremen Worker's Union, C I. 0.,
herein called the Union, the National Labor Relations Board, herein called
the Board, by its Regional Director for the Twentieth Region (San Francisco,
California), issued its complaint dated November 14, 1946, against C F Fellows,
doing business as American Patrol Service; herein called respondent, alleging
that respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and amended charge, accompanied by notice of hearing thereon, were duly
served upon respondent, the Union, and Seafarers, Guards & Watchmen's Union,
affiliated with Seafarers International Union of North America, A. F. of L.,
herein called Seafarers
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged, in substance, that respondent: (1) discharged seven named
employees on various dates z because of their membership in and activity in behalf
of the Union; (2) disparaged and warned his employees not to join or remain
members of the Union, urged his employees to join the Seafarers, and on or about
November 25, 1946, negotiated with Seafarers to the exclusion of the Union in
granting a wage increase, with knowledge that a question of representation was
then pending; and (3) by the foregoing conduct engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act
Pursuant to notice, a hearing was held at San Francisco, California, from De-
ceniber 3 to 6, 1946, before Martin S' Bennett, the undersigned Trial-Examiner,
duly designated by the Chief Trial Examiner The Board and the Union were
represented by counsel, and respondent, the Union, and Seafarers by them rep-
resentatives. All participated in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
hearing upon the issues At the opening of the hearing, respondent, having pre-
viously filed no answer and refusing to file a written answer, orally denied the
allegations of the complaint, and counsel for the Board moved for judgment on
the pleadings in reliance upon Section 203i6 of the Rules and Regulations of the
Board Ruling was reserved and the motion is hereby denied Ruling was re-
served upon it motion by respondent's representative to dismiss the complaint
i Ameucan Patrol Service originally consisted of the partnership of Harold Jackson and
C F Fellows Se\eial weeks prior to the instant hearing, according to Jackson, who rep-
resented respondent herein, Jackson s interest was transferred to Fellows Jackson re-
mained as general manager and in all other respects the business continued as before
2 Their manes and the dates of discharge are. C B Chilgren, 5/2/46 ; C E Calkins,
8/8/46 A F Mendia, 8/24/46. Bernard Schmitz, 5/29/46, J W. Arrieta, 8/17/46, J. E.
Ka\ados, 8/5/46, C Alexopouloa, 8/6/46
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as it alleged the discharge of Bernard Schmitz to be discriminatory, and
is disposed of hereinafter. After the close of the hearing, a motion by counsel
for the Board for permission to file a brief was granted, and his brief has been
received
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
C. F Fellows, doing business as American Patrol Service,' has his office and
place of business at San Francisco, California, where he is engaged in the business
of supplying civilian watchmen and guards for ships, terminals, docks, piers,
warehouses and other shipping installations located in San Francisco Bay and
its tributaries Respondent renders this patrol service to numerous steamship
companies all of which are engaged in the transportation of cargo hetvi een States
of the United States and ports without the continental limits of the United States.
The annual gross receipts of respondent are approximately $500,000 4
II THE ORGANIZATIONS INVOLVED
Ship Clerks Association, Local 34, International Longshoremen Worker's Union,
affiliated with Congress of Industrial Organizations, and Seafarers, Guards &
Watchmen's Union, affiliated with Seafarers International Union of North
America, A. F. of L, are labor organizations admitting to membership employees
of respondent.
III THE UNFAIR LABOR PRACTICES
A Intel ter once, restraint, and coercion
1 Introduction
The record discloses no history of union organization among respondent's em-
ployees prior to the events set forth hereinafter. On or about April 2, 1046, the
Union commenced an organizational campaign among the employees of respondent
and a number of meetings were held. During the weeks that followed a number
of employees signed cards, and a petition for certification of representatives was
filed by the Union upon which a hearing was held on June 13, 19465 Seafarers
had also commenced an organizational campaign among the employees of re-
spondent shortly after May 26, 1946, and was represented at the hearing on June
13, 1946, subsequent to which, on August 9, 1946, the Board issued a Decision and
Direction of Election. On September 3, however, charges of unfair labor prac-
tices having been filed in the interim, the Board ordered the election indefinitely
postponed.
2. Subsequent events
Arthur Doll is office manager for respondent with authority to hire and dis-
charge employees and admittedly a supervisory employee During the latter part
of April or early May 1946, he summoned Guard Bernard Schmitz to the com-
pany office and stated that he desired to speak to Schmitz "about this union
3 See footnote 1. ,
4 The Board has previously taken jurisdiction over the operations of respondent (69
N. L. R. B. 1343).
5 Case No 20-R--1769.
AMERICAN PATROL SERVICE ' 667
business " ° He said that lie knew the employees had received letters from the
- C. I. 0 and suggested to Schmitz that the employees should hold off from joining
any union for the time being, that the C. I 0. was attempting to put respondent
out of business, and that the jobs of the guards "would be jeopardized." He tur-
ther suggested that the employees make a motion in a union meeting which was to
be held that they not belong to any union because there was no reason for them
to belong to a union and put respondent out of business.
During the latter part of May, Doll again spoke to Schmitz concerning the
Union. He told him that he had spent his dollar (initiation fee in the C. I. 0.)
foolishly and that he would have to join the A. F. of L. because it had been "all
fixed up "
Doll also spoke to another employee during May concerning the union cam-
paign. While hiring C. E Calkins as a guard, on or about May 19, Doll discussed
the matter of wages with Calkins and then informed him that both the C. I. 0.
and the A. F. of L. were organizing watchmen on the waterfront and that "he
would rather see it go' A. F of L
W. F. Lambertz was a sergeant of the guards and admittedly a supervisory
employee with authority to hire and discharge employees. He left respondent's
employ on May 28 to accept employment with Seafarers and,thereafter conducted
an organizational campaign for Seafarers among the employees of respondent.
A clay or two before May 28, 1946, Lambertz told Schmitz that he would "have
some dope on the new organizational drive of the A. F. of L. and that Jackson
wanted all the men to join the A. F. of L."
Sometime during May, Lanibeitz asked Constantinos Alexopoulos, a guard, if
he had 'joined the union " Alexopoulos replied that he had joined the C. I 0.
whereupon Lambertz stated that lie preferred the A. F. of L 8
Duung June, Jackson stiuck up a conversation with Guard Joaquin Arrieta,
who had entered respondent's employ during the previous month, and told him
that the employees had to join one or the other union. Arrieta replied that he
already belonged to the Union, whereupon Jackson stated that it was a C. I. 0.
union, that the C. I. 0. was infiltrated with Communists, and that Arrieta "had
better join the American Federation of Labor Union." 0
It will be i ecalled that on September 3, 1946, the Board indefinitely postponed
the election in which both the Union and Seafarers were to be represented on the
6 Insofar as the recoid indicates, the Union never communicated with respondent during
this period. Of couise, respondent was aware of the representation petition later filed by
the Union on May 17.
4 Findings herein are based upon the credible testimony of Schmitz and Calkins Doll
denied that lie made any statements deiogatoly of the Union. The undersigned was unfa-
voiabli impressed by Doll, who contradicted himself repeatedly on material Matteis
Furtheiniore, after claiming that he had no iecolIectidn conceining any of the discharges
discussed liereinaftei, his recollection was then refreshed by some cards and he then testi-
fied, purportedly from memory. Later, however, he was again unable to testify concerning
the discharges without inspecting the cards. Also, in attempting to portray conditions
aboaid ship in a manner most favorable to respondent's version of a discharge, he gave
testimony which was clearly false Again, after testifying that he regularly received
reports concerning union activity among respondent's employees, he reversed his testimony
and claimed that he knew nothing of this subject. His testimony here as elsewhere is
rejected
s Findings as to the activities of Lambertz are based upon the credible testimony of
Schmitz and Alexopoulos Lanibertz admitted that he spoke to Schmitz and supported
Schniiti' version of the incident in part, but denied that lie organized among respondent's
eniplu ^•r 'a l n a sergeant He did not deny Alexopoulos' testimony.
79ie clear and foitliiight testimony of Aructa Jackson did not testify
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballot On November 25, 1946, Jackson met with a negotiating committee from
the A F of L --Laabertz was present in his then representative capacity for
Seafarers,'but no representatives of the Union were invited At this conference,
the committee requested an increase in wages and•Jackson agreed to increase wage
rates to $1 per hour.
It is found that by urging and warning his employees not to become members of
the Union, and by urging therm to become members of Seafarers, respondent has
interfered with, restrained, and coerced his emplo3ees in violation of Section 8
(1) of the Act. It is further found that by granting exclusive recognition to the
Seafarers in the negotiation of a wage increase at a time when a question of
representation was pending, respondent has interfered in the free choice of repre-
sentatives and has further violated Section 8 (1) of the Act"
B The discharges
CaO Chilgi en commenced his employment with respondent in September 1944 as
a guard on ships and clocks in San Francisco as well as across the Bay in Alameda
In November 1945, having objected to assignments in the East Bay area," Chil-
gren was promised by Jackson that lie would no longer be sent to that section.
Thereafter, and until May 1, 1946, lie was not requested to go to the East Bay
and he worked regularly at assignments in San Francisco His work was never
criticized and he was in tact complimented by Jackson.
During April 1946, when the union organizational campaign started, Chilgren
was the first to join. He was extremely active in soliciting the membership of
a number of respondent's employees, attended union meetings. and wore a CIO
button on his clothes Sergeant Lambertz was informed by Chrlgren, in a con-
versation during April, that he had joined the C I O.
On May 1, Office Manager Doll telephoned Chilgren who had just returned
home from an assignment on a ship in San Francisco and instructed hymn to
report on the following day in Alameda. Chrlgren piotested that lie would have
to arise at 4 a. in to be at work at 7 a. in and also that there was additional
transportation expense He finally reminded Doll of Jackson's promise of the
previous November, that his assignment on the ship in San Francisco was still
open and had to be filled on the following day, and asked that the replacement
for him on that job be assigned to Alameda. Doll would not agree and Chrlgren
immediately telephoned back and spoke to Jackson, who was in the office with
Doll Jackson reiterated what Doll had said and told Chilgren that he was
discharged if he did not go and to turn in hi§ gear Clrnigren did not go
The following day, Chilgren requested employment from an official of a ship-
ping line on whose ship he had worked and told the latter, Sieck, of the events
of the previous day. Sreck suggested that Jackson might have had a reason for
assigning Chilgren to Alameda and telephoned Jackson who came over to Sieck's
office and stated to Chilgren, in Sieck's presence, "I gave you credit for being a
little smarter than most of the men joining the CIO . . If you joined the
A F. of L I would have no objection, but joining the CIO, I do object. Why,
you are affiliating yourself with a lot of damned niggers . . Before I will take
any orders from the CIO, I will buy myself a fishing rod and go fishing "'2
10 Mattei of Midwest Piping and Supply/ Co . Ine, 68 N L R B 1060 Matter of Phelps
Dodge Copper Products Corp . 63 N L It B 686
"Chilgien,lived in the noitheun side of San Francisco which necessitated a trip clear
across the city, then a street car i ide across the 7-mile Bar Bridge, and then another ride to
Alameda, i esulting in extra transpoi tation expense and a time-consuming trip
12 These findings are based upon the credible testimony of Chilgren Sreck (lid not testify.
AMERICAN PATROL SERVICE 669
It is obvious that the change in Chilgren's assignment, with its concomitant
hardships, was a material change in his employment of a most burdensome
mature. This fact had been recognized 6 months earlier by Jackson when he
granted Chilgren's request for relief from this lengthy and expensive trip, which
lie had then made over 100 times without complaint. No attempt was made for
e months to reassign Chilgren to Alameda until shortly after Sergeant Lambertz
learned that he had joined the Union. Furthermore, although someone had to
be sent to replace Chilgren in his assignment of the previous day, respondent was
unwilling to keep Chilgreu there, although his employment record was exemplary.
Finally, on the following (lay, Jackson, in explaining the discharge, did not even
make mention of the incident of the previous (lay, but stated his objection to the
Union and reviled Chilgren for joining it. In view of the above, and in view of
the clear attitude of opposition to the Union by Lambertz, Doll and Jackson, as
heretofore found, the undersigned is persuaded and finds that respondent was
motivated by discriminatory considerations in removing Chilgren from a San
Francisco assignment and assigning him to a job in Alameda, thereby discrimi-
nating with regard to the conditions of his employment inducing his resignation,
and thereby constructively discharging him
Beruurd Schmitz commenced his employment with respondent as a guard in
December 1945 or January 1946, and, insofar as the record indicates, his work
recorded was exemplary but for a violation of rules allegedly occurring one
day prior to Maj 29 when he was discharged by respondent.
He joined the Union in April, wore a C 1 0 button at work, attended the
union meetings, and also solicited the membership of the other employees. As
heretofore found, Office Manager Doll told Schmitz shortly after the start of the
union campaign that he knew the C. I O. was organizing among the employees of
respondent, attempted to persuade Schmitz to procure the withdrawal of re-
spondent's employees from the union, and told Schmitz that their jobs would
be "jeopardized " A short time before Schmitz' discharge, and after the A. F. of L
had entered the representation contest, Doll again spoke to him and stated his
initiation fee in the C I O. was wasted and that he would have to join the A F.
of 1, because it had been so arranged.
On of about May 26 or 27, Schmitz was approached by Sergeant Lambertz who
told hint that Jackson wanted the men to join the A F of L Finally, on the day
prior to Schmitz' discharge, and just after Lambeitz left respondent's employ
to work for Seafai ers, Lambeitz came on board the ship where Schmitz was
assigned He then attempted to sign up Schmitz in Seaferers but Shniitz
refused
Shortly thereafter, Sergeant Dye came to the ship and accused Schmitz of
inciting the longshoremen to "gang up" on Lambertz. When Schmitz denied
this," Dye then accused him of violating a company rule by eating in the ship's
mess hall Schmitz explained that the chief officer of the boat had invited him to
eat there and that, in addition, the rules of respondent did not forbid such conduct.
The following day, May 29, Schmitz was summoned to the company office and told
by Fellonis that lie was through. Two days later, he brought in his equipment
and asked Jackson why lie was flied The latter replied that his services had
been satisfactory but that he had violated a rule concerning eating in the mess
hall."
" Thei e is no evidence of any such activity on the pact of Schnitz
" This finding is based upon the testimony of Schnitz , which the undersigned credits.
Respondent called no uu itnesses other than Office Alanagei Doll
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rule referred to by Jackson reads as follows :
9. Under no circumstances are guards to expect or request meals aboard ship,
or to loiter in the mess hall.
It is apparent that, the rule forbade guards to request meals on ship or to
loiter in the mess hall, but it in no way precludes eating one's own lunch or eatoig
the? e upon invitation as was the case here. In addition, the record indicates
that it was customary for the guards to eat their lunches in the mess hall , and, as
Schmitz testified, Doll once told him to drink coffee there if the crew did not
object 15
In view of the unsuccessful attempt on the part of Doll to enlist the services
of Schmitz in breaking up the organizational campaign, the unsuccessful attempts
to persuade him to abandon the C. I O. for the A F of L, the clearly unsupported
allegation by Dye that Schmitz was responsible for "ganging up" on an A. F. of L.
organizer, and the apparent unreasonableness of respondent's position that
Schnitz violated a rule at best ambiguous, the undersigned is persuaded that re-
spondent availed himself of the first pretext which presented itself for eliminating
Schmitz from the organization It is found that Schmitz was discharged because
of his union affiliation and activities
Constantanos Alexopoulos commenced his employment with respondent on April
16, 1946, and insofar as the record indicates, his employment record was spotless
but for the incident relied on by respondent in effecting Alexopoulos' discharge
on August 6, 1946 In fact, he was, on one occasion, complimented by Jackson
on his work and was told, "You are a good man and we want to keep you."
Alexopoulos strongly advocated union organization to the employees of the
company, insisting that they were underpaid. Just before Sergeant Lambertz
left respondent's employ to organize for Seafarers, he questioned Alexopoulos,
as heretofore found, and asked him if lie had "joined the Union." Alexopoulos
replied that lie had joined the C. I. O. whereupon Lambertz stated that he
preferred the A F of L.
About 2 evenings prior to his discharge, Alexopoulos was assigned to night
guard duty upon a ship. At approximately 4 a in., lie went to the mess room for
a drink of water, but discovered two seamen drinking and quarrelling there and
attempted to pacify them. Just then Sergeant Kyle entered 1° and asked what
Alexopoulos was doing there. The latter explained what had happened and
Kyle told him to return to the deck, stating "it's all right."
The next day Alexopoulos telephoned in as usual, was told to report for work,
and the day passed without event. On the following day, August 6, Jackson
telephoned Alexopoulos at home during the afternoon and accused him of
"reading all night" in the mess room 2 nights before. Alexopoulos flatly denied
this accusation, but Jackson insisted that he was discharged nevertheless IT
Respondent adduced no testimony in support of the charge that Jackson levelled
at Alexopoulos, although the uncontroverted testimony of the latter shows that
he committed no such offense and that Sergeant Kyle knew this. And, assuming
that Jackson had received such an erroneous report from Kyle or some other
source, no evidence was introduced to show how or when such a report was
made, although Jackson and Kyle were both available as witnesses. In view of
15 This is further supported by the credible testimony of J B Kavados that when hired as
a guard, lie was instructed only not to drink or sleep on the lob
as Kyle had already been around earlier that evening , accoiding to Alexopoulos, this was
the first time that lie had ever dropped in on a ship more than once
17 These findings ale based upon the clear and forthright testimony of Alexopoulos Kyle
did not testify, although apparently available
AMERICAN PATROL SERVICE 1 671
the above, Alexopoulos' open advocacy of the C I O , the fact that his preference
of the C I 0 was discovered by Lambertz, and by contrast the fact that
Alexopoulos was an employee who in his short experience with respondent had
already been complimented on his work and told that respondent wanted to retain
him in his employ, the undersigned is persuaded and finds that Alexopoulos
was discharged by respondent because of his union membership and activities.
C E Calkins commenced his employment with respondent on May 19, 1946. He
joined the Union, paid dues therein, and informed Lambertz when solicited by
the latter in July to join Seatarers that he was already a member of the C. I. O.
On August 2, Jackson offered to promote Calkins to relief sergeant and the
promotion was made on :august 8
According to Calkins, while on his first day as sergeant, an admittedly super-
visory position, a guard named Condron asked Calkins if he belonged to the
Union and upon the latter's reply that he did, Condron stated that he also did
Condron then asked what to do about his overdue dues and Calkins made a
non-committal reply. Several hours later he was discharged by Jackson and
Doll who told him that Condron had turned in a report that Calkins had told
him to pay his union dues. It is respondent's position, as Doll alleged, that
Calkins, as a supervisor, was discharged for taking sides in a labor dispute
In the opinion of the undersigned, although he does not consider Doll a re-
liable witness, the evidence is insufficient to support a finding that Calkins
w.i. cii irged for a teason other than that advanced by respondent It is ac-
cordingly recommended that this allegation of the complaint be dismissed.
Joaquin i rieta commenced his employment with respondent in May 1946 as
a guard and there is no evidence of any criticism of his work at any time prior to
his discharge on or about August 17
As heretofore found, Jackson struck up a conversation with Arrieta some-
time during the month of June concerning unions and when informed by Arrieta
that he had already joined the Union, he disparaged it and advised Arrieta that
he "had better join" the A. F. of L. Arrieta, however, ignored the advice and
maintained his membership in the Union. In addition, during his employment,
Arrieta was approached by Lambertz, then organizing for Seafarers, on three
separate occasions On the first and second occasions, during June and July,
respectively, Lambertz urged him to join the A. F of L Arrieta replied that he
had already joined the Union and that lie could not break his word. On the last
occasion, about August 10, Lambertz told him that unless lie joined the A. F of L.,
the men would lose then jobs 18
About 2 clays after last being approached by Lambertz, Arrieta was taken
ill and notified Doll that he would be unable to report for work He reported for
work on or about August 17 with a letter from his doctor certifying his illness
with severe bronchitis. Doll then told him that he was through, but that he
would speak to Jackson about the matter. A day or two later, Arrieta called upon
Jackson who told hint that lie could not employ men who became ill
Doll alleged that this last absence by Arrieta was but one of several occasions
in which Arrieta had taken time off, ostensibly ill, and that upon checking tip,
he had learned that Arrieta was out on a business mission. Arrieta recalled that
on the first day of his illness in August, a telephone call had been received by
his wife, after Arrieta had left home to go to the doctor's office Arrieta's wife
speaks little English, however, and it is inconceivable, assuming she was able
to understand Doll, that she would wilfully place Arrieta any place other than
11 The clear and forthright testimony of Arrieta, who favorably impressed the under-
signed.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the doctor 's office. In the final analysis , had any legitimate doubt remained
concerning Arrieta 's whereabouts on that day , it should have been dispelled by
the certificate of treatment brought to Doll by Arrieta
Not only does the undersigned credit Arrieta 's testimony in full , but Doll's
testimony that he on several occasions found Arrieta otherwise engaged when
purportedly ill at home is rejected, as is his testimony elsewhere . Significant
rather is Doll's admission that he was kept informed by the various sergeants
and guards concerning the progress of the union organizational campaign."' In
the opinion of the undersigned it is further significant that Jackson personally
urged Arrieta to renounce the Union and warned him that he "better" join the
A F. of L, which was followed by Arrieta 's continuailce of his membership in
the Union . The conclusion is also inescapable that respondent ' s managerial per-
sonnel were acquainted with the repeated and unsuccessful attempts of Lambertz
to persuade Arrieta to change his union affiliations. in view of Jackson ' s demon-
strated assistance to the A . F of L . later in November , thus contributing to the
decision of respondent to inflict the extreme penalty of discharge upon Arrieta
It is accordingly found that the reason advanced for the discharge of Arrieta
is not the true reason therefor and that respondent availed himself of Arrieta's
illness as a pretext for his discharge , thus discriminating with respect to the
hire and tenure of his employement.
Abbey Mendia 20 entered respondent's employ during the latter part of May
1946. His work was, never criticized in any respect and in fact , when dis-
charged by Jackson on or about August 24 , no reason for his discharge was
given He joined the Union about 2 weeks after he began work and solicited the
membership therein of other employees.
On the day before his discharge , Mendia was approached by Lambertz who spoke
to him about the impending election Mendia, who had previously informed
Lambertz that he was a member of the C 1. 0 , expressed the belief that the
C. 1. 0 would win and that "Jackson was holding up the deal " The following
clay , August 24 , Jackson telephoned Mendia at his home and informed him that
he was discharged , giving no explanation therefor . Two days later , Mencha,
who could not understand why he had been discharged , asked a C I . 0. rep-
resentative , Johnson, to telephone Jackson and ascertain the reason Johnson
did so in Mendia's presence and told Mendia that Jackson claimed Mendia was
not dressed properly , that his clothes were old and dirty , and that - he appeared
at work unshaven R1
Mendia credibly testified that he shaved every day and that he woi:e neat
dark clothes to work every day, and, as noted above , be was never reprimanded
for his appearance by respondent. Furthermore , respondent offered no evidence
in support of the reasons admittedly given Johnson by Jackson Significant also
was the attempt of Doll , in his testimony, to introduce another factor, namely
that Mendia was frequently away from his post and that complaints had
been received from various sergeants ' concerning him, although this was never
mentioned to Mendia nor was it originally given as a cause for discharge.
In view of the fact that Doll admittedly kept in close touch with the progress
of union activity in the company , the fact that Mendia, known to be a C. I. 0.
1^ Later in his testimony, Doll contradicted himself on this point and contended that he
way not so informed
20 Findings herein are based upon the credible and uncontroverted testimony of Mendia
2i Neither Johnson nor Jackson testified herein Inasmuch as respondent stipulated for
the record that Jackson had said this to Johnson, the undersigned finds that it occurred
as related above
AMERICAN PATROL SERVICE 673
member. was discharged the day after he told Larnbertz that he believed the
C 1 0 would win the election and that Jackson was obstructing it, and that
patentl> false reasons were assigned for his discharge, the undersigned Suds
that DZendia was discharged for his union activities and membership, thus dis-
criminating with respect to the hire and tenure of his employment.
J 1 Kavados" entered respondent's employ in October 1945 and his record
was free of criticism until the day of his discharge. He joined the Union in
Api il, went to all meetings, and openly wore a C. I 0 button In May, during x
conversation with Jackson concerning the respective unions, he expressed his
belief that the C I. 0 had the upper hand
Early in the morning of September 5 a waterfront strike called by the seamen's
unions of the A. F of L. went into effect, and Kavados, before reporting for work,
obtained a clearance card from respondent's,oflice manager which permitted him
to traverse the picket lines . • He was' also instructed not to permit anyone to
board the ship without a written permit from its mate. Shortly thereafter, Kava-
dos prevented two men, claiming to be A F. of L. representatives, from boarding
the ship without permission from the mate. They inspected Kavados' clearance
card. took his name and departed
Later that morning, Kavados was relieved by another guard and instructed to
repo it to the office where Jackson accused him of messing things up "with the
union." and stated that the head of the A F. of I, seamen n had threatened to
put respondent's men off the waterfront. if he slid not discharge Kavados. He
instructed Kavados to report to the A F. of L office and apologize to then).
Kavados refused, claiming that he had done no wrong, and was thereupon
discharged.
Respondent attempted to show at the heating that Kavados was discharged
because lie i etused to obtain a clearance card ti oni the A. F -of L. strike committee
This is disproved by the uncontroverted testimony of Kavados that he obtained
the card at respondent's office before reporting for work in the morning, and
lnithemmore, as Doll testified, Kavados was discharged because he refused to
pei mit A F of L officials aboard the vessel It is thus clear that Kavados, an
open advocate of the C. I 0. and wearing a C. 1 O. button, was discharged at the
request of the A F of L because he followed orders in keeping all people off the
ship, and because he refused to accede to Jackson's demand that he apologize to
the A F of L as a condition of continui rig his employment It is therefore found
that his discharge constituted preferential treatment to a labor organization dur-
ing the pendency of a question concerning representation and is therefore dis-
cimiumtory It is further found that the above conduct by Jackson constitutes
assistance to a labor organization, thereby interfering with, restraining, and
coercing the employees of respondent in the exercise of the rights guaranteed in
Section 7 of the Act.
I\' 1HF. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of respondent set forth in Section III, above, occurring in con-
nection with the operations of respondent described in Section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among
the several States and foreign commerce, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
s Findings below are based upon the credible and uncontroverted testimony of Kavados
11 This was apparently the head of Seafarers International Union , A F of L , with which
Seafarers , Guards & Watchmen 's Union is affiliated
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V THE REMEDY
Having found that respondent has engaged in unfair labor practices, the under-
signed will recommend that he cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act
It having been found that respondent has discriminated in regard to the hire
and tenure of employment of the individuals whose names appear in Appendix
A attached hereto, it will be recommended that respondent offer each of them
except Abbey Mendia 2' immediate and full reinstatement to their former or sub-
stantially equivalent positions 22 without prejudice to their senior ity or other
rights and privileges, and make each of them whole for any loss of pay they may.
have suffered by reason of such discrimination by payment to each of them of a
sum of money equal to that which each would normally have earned as wages
from the date of the discrimination against him to the date of offer of reinstate-
ment,2' less his net earnings n during that period The dates of discrimina-
tion as to those named in Appendix A, all in 1946, are: Carl Chilgren, May 1;
Bernard Schmitz, May 23; Constantinos Alexopoulos, August 6; Joaquin Arrieta,
August 17, Abbey Mendia, August 24, and J B. Kavados, September 5.
, It has further been found that respondent has assisted Seafarers by urging
his employees to join it, by negotiating with Seafarers concerning a wage in-
crease, to the exclusion of-the Union, and by discharging Kavados at its request.
It will therefore be recommended that respondent cease and desist from recog-
nizing Seafarers as such exclusive representative unless and until it shall have
been certified by the Board
The undersigned finds that respondent by the anti-union statements and actions
of his officials and supervisors engaged in a campaign to defeat self-organization
of its employees These statements and actions demonstrate a clear attitude
of opposition to the Union and the purposes of the Act, and a determination
generally to interfere with the rights guaranteed in Section 7 of the Act Be-
cause this unlawful action appears to be bottomed upon an underlying opposition
to the purposes of the Act, it will be recommended that respondent be required
to cease and desist from in any manner interfering with, restraining, or coercing
his employees in the exercise of such rights."
A review of the record shows that the employees of respondent do not regularly
report to his place of business but generally receive their respective assignments
over the phone and then report to the particular vessel or dock to be guarded as
the case may be. In fact, respondent's place of business is in reality merely a
clearing house through which the employees are channelled out where needed
21 Mendia testified that he (lid not desire reinstatement
25 In accordance with the Board's consistent interpretation of the term, the expression,
"former or substantially equivalent position," is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of -The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N L R B 827.
22 In lllendia's case , it is recommended that back pay be awarded only to the date that he
testified at the instant hearing
21 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, Rhich would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere See Matter of
Crossett Lumber Company, 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 earn-
ings See Republic Steel Corporation v N. L. R B , 311 U S 7.
29 See N L R. B v Express Publishing Company, 312 U S. 426 ; May Department Stores
Co v N, L R B, 326 U. S 376
AMERICAN PATROL SERVICE 675)
via telephonic communication . As there is thus a likelihood that the notice here-
required to be posted by respondent will not come to the attention of hisinafter
employees , and in order to fully offset the effect of the unfair labor practices
hereinabove found, the undersigned will recommend that respondent mail to
each of the employees on his pay-roll from May 1 to September 5, 1946 , the dates.
between Which the unfair labor practices found herein were committed , postage
prepaid , a copy of the notice herein attached and marked "Appendix A "
It having been found that respondent has not discriminated in regard to the
hire and tenure of C. E Calkins , it will be recommended that the complaint be
dismissed as to him.
Upon the basis of the foregoing findings of fact and upon the entire record in,
the case , the undersigned makes the following :
CONCLUSIONS OF LAw
1 Ship Clerks Association, Local 34, I. L W. U , affiliated with the Congress of
Industrial Organizations, and Seafarers, Guards & Watchmen's Union, affiliated
with Seafarers International Union, A. F of L, are labor organizations within
the meaning of Section 2 (5) of the Act
2 By discriminating in regard to the hire and tenure of employment of Cart
Chilgren, Bernard Schmitz , Constantinos Alexopoulos, Joaquin Arrieta, Abbey
Mendia, and J. E. Kavados, thereby discouraging membership in a labor organi-
zation, respondent has engaged in and is engaging in unfair labor practices within,
the meaning of Section 8 (3) of the Act
3 By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is.
engaging in unfair labor practices within the meaning of Section 8 (1) of the Act.
4. The aforesaid labor practices are unfair labor practices within the meaning:
of Section 2 (6) and (7) of the Act.
5. Respondent has not discriminated with regard to the'hire and tenure of-
employment of C. E. Calkins.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon,
the entire record in the case, the undersigned recommends that respondent, C. F.
Fellows, doing business as American Patrol Service, his agents, successors and
assigns shall :
I Cease and desist from :
(a) Discouraging membership in Ship Clerks Association, Local 34, I. L W. U,
affiliated with Congress of Industrial Organizations, or any other labor organi-
zation of his employees, by discharging or refusing to reinstate any of his em-
ployees, because of membership in or activity on behalf of such organization ;
(b) Encouraging membership in Seafarers, Guards & Watchmen's Union, affil-
iated with Seafarers International Union, A F. of L, by acceding to any demands
for the discharge of any employees, or negotiating with said union as the ex-
clusive representative of his employees concerning conditions of employment
to the exclusion of any other labor organization, until said union is certified by
the National Labor Relations Board as the exclusive representative of said
employees ;
- (c) In any other manner interfering with, restraining, or coercing his employees
in the exercise of the right to self-organization, to form, join, or assist Ship
Clerks Association, Local 34, I L. W. U., affiliated with Congress of Industrial
766972-48-vol. 75-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Organizations, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees named in Appendix A of this report immediate
and full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges in the manner
set forth in the section entitled "The remedy" ;
(b) Make whole in the manner set forth in "The remedy" the persons whose
names appear in Appendix A of this report for any loss they may have suffered
by reason of respondent's discrimination against them ;
(c) Withdraw and withhold all recognition from Seafarers, Guards & Watch-
men's Union, affiliated with Seafarers International Union of North America,
A. F. of L, as the exclusive representative of his employees for the purpose of
collective bargaining unless and until said organization shall have been certified
by the National Labor Relations Board as the representative of such employees ;
(d) Mail to all the employees who were on his pay-roll from May 1 through
September 5, 1946, at their last known address, postage prepaid, copies of the
notice attached to this Intermediate Report and marked "Appendix A";
(e) Post at his place of business at San Francisco, California, copies of the
notice attached hereto and marked "Appendix A" Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall, after being
duly signed by the respondent, be posted by respondent immediately upon receipt
thereof and maintained by him for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by respondent to insure that said
notices are not altered, defaced, or coveted by other material;
(f) Notify the Regional Director for the Twentieth Region within ten (10)
days from the date of receipt of this Intermediate Report what steps respondent
has taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that respondent has engaged in unfair labor practices by discriminating with
regard to the hire and tenure of employment of C. E Calkins.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, respondent notifies said Regional Director
that he has complied with the foregoing recommendations, the National Labor
Relations Board issue an order requiring respondent to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of seivice
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D C , an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon' all motions or objections) as he
relies upon, together with the original and four copies of a brief in support thereof ;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party
AMERICAN PATROL SERVICE 677
or counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.&. As further provided in said Section 20339,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the date
of service of the order transferring the case to the Board.
MARTIN S. BENNETT,
Dated March 13, 1947. Ti ial Examiner.
APPENDIX A
NOTICE To ALI. EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without prej-
udice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
Carl Chilgren Constantinos Alexopoulos
Bernard Schmitz Joaquin Arrieta
J. E Kavados
WE WILL MAKE WHOLE the following named employee for any loss of pay
suffered as a Iesult of our discrimination against him.
Abbey Mendia
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist SHIP CLERxs ASSOCIATION, LOCAL 34,
I L W. U.-C. I 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection
WE WILL NOT recognize SEAFARERS' GUARDS & WATCHMEN'S UNION, affiliated
with SEAFARERS INTERNATIONAL UNION, A. F. OF L., as the exclusive repre-
sentative of our employees for the purpose of collective bargaining, unless
and until organization shall have been certified by the National Labor
Relations Board as the exclusive representative of our employees.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
C F. FELLOWS, n,/R/A AMERICAN PATROL. SERVICE,
Employer.
Dated------------ By ---------------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material