Black Diamond Steamship Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1937

3 N.L.R.B. 84 (N.L.R.B. 1937)

In the Matter of BLACK DIAMOND STEAMSHIP CORPORATION and
MARINE ENGINEERS' BENEFICIAL ASSOCIATION, LOCAL No. 33
Case No. C-174.-Decided July 21,1937
Water Transportation Industry-Unit Appropriate for Collective Bargaining:
craft; occupational differences; licensed personnel; established labor organiza-
tion in industry-Representatives:-proof of choice: election; prior certification
of union by Board-Collective Bargaining: employer's duty to bargain after
certification ; refusal to meet and bargain collectively with union certified by
Board as exclusive representative-Strike: prolonged because of employer's
refusal to bargain and to reinstate employees-Employee Status: during
strike-Discrimination: in reinstatement of strikers-Reinstatement Ordered,
Strikers: strike provoked by employer's refusal to bargain ; displacement of
employees hired during strike-Back Pay: awarded.
Mr. Philip Phillips for the Board.
Hunt, Hill & Betts, by Mr. John W. Crandall and Mr. Allen
Gordon Miller, of New York City, for the respondent.
Mr. Hyman A. Schulson, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by Marine Engineers' Beneficial Associa-
tion, Local No. 33, herein called the M. E. B. A., the National Labor
Relations Board, herein called the Board, by Elinore Morehouse
Herrick, Regional Director for the Second Region (New York, New
York), issued its complaint dated February 17, 1937, against Black
Diamond Steamship Corporation, New York City, herein called the
respondent. The complaint and notice of hearing thereon were duly
served upon the respondent and the M. E. B. A.
At the hearing the complaint was amended by striking three
names from paragraph eight and by adding the name of Carl
Kraigh.1 The complaint as amended alleged :
1. That the respondent is engaged in foreign and interstate com-
merce.
2. That the licensed engineers employed by the respondent consti-
tute a unit appropriate for the purpose of collective bargaining.
' The names of John Platt and Charles E. Smith were stricken from the allegation that
the respondent refused to reinstate them following the strike . The name of Frank M.
French was stricken from the allegation that the respondent reinstated him on or about
February 1, 1937.
84
DECISIONS AND ORDERS 85
.3. That since August 1935, a majority of the licensed engineers
have designated the M. E. B. A. as their representative for purposes
of collective bargaining with the. respondent by becoming members
thereof.
4. That in August 1935, and at various times thereafter, the
M. E. B. A. requested the respondent to bargain collectively but that
on all such occasions the respondent refused to bargain collectively.
5. That on December 11, 1936, the Board certified that a majority
of the licensed engineers on the respondent's vessels had designated
the M. E. B. A. as their representative for purposes of collective
bargaining with the respondent, and that pursuant to the provisions
of Section 9 (a) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act, the M. E. B. A. was the exclusive representa-
tive of all such employees for purposes of collective bargaining.
.6. That despite the certification, the respondent continued to refuse
to bargain collectively with the M. E. B. A.
7. That the above-described acts of the respondent constitute un-
fair labor practices within the meaning of Section 8, subdivision (5)
of the Act.
8. That "as a result of and because of the refusal of the respond-
ent to bargain collectively * * * approximately all of the em-
ployees of the respondent in said unit did strike on or about Novem-
ber 23, 1936., On and about December 31, 1936, said striking
employees did apply for reinstatement to their former positions."
9. That the respondent refused to reinstate 34 named employees
and has at all times since continued to refuse them reinstatement,
except that three of the employees named were reinstated on about
February 1, 1937, and one'w as reinstated on about January 15, 1937.
10. That the respondent refused to reinstate these employees for
the reason that they "joined and assisted the M. E. B. A. and en-
gaged in concerted activities with other employees of the respondent
for the purposes of ' collective bargaining and other mutual aid and
protection", thereby engaging in an unfair labor practice within the
meaning of Section 8, subdivision (3) of the Act.
11. That the respondent by refusing to bargain collectively and to
reinstate the employees named in the complaint is engaging in unfair
labor practices within the meaning of Section 8, subdivision (1) of
the Act.
12. That the alleged unfair labor practices occur in the course and
conduct of commerce, and are unfair labor practices affecting com-
merce within the meaning of Section 2, subdivisions (6) and (7) of
the Act. ,
The respondent filed an answer to the complaint admitting the
nature of its business and that its operations occur in the course and
49446-38-vol. m-7
86 NATIONAL LABOR RELATIONS BOARD
conduct of commerce between the several States and with foreign
countries. The answer alleged that on November 26, 1935, the re-
spondent entered into an agreement with the United Licensed Officers
of the United States of America, herein called the U. L. 0., as the
representative of all licensed officers, both deck and engineer, on the
vessels of the respondent, which agreement became effective Decem-
ber 1, 1935, and continued in force for one year. It admitted that
on about December 11, 1936, the Board certified that the M. E. B. A.
had been designated by a majority of the licensed engineers employed
on the respondent's vessels and that pursuant to the provisions of the
Act the M. E. B. A. was the exclusive representative of all such
employees for the purposes of collective bargaining. The answer
also alleged that between the time of the Board's decision directing
an election on September 24, 1936, and the resulting certification of
representatives on December 11, 1936, the M. E. B. A. instructed its
members aboard the respondent's vessels to support the strike of the
unlicensed personnel then in existence, and that on November 23,
1936, the M. E. B. A. called a strike of its members employed on
the respondent's vessels; that the respondent on December 4, 1936,
sought to have the engineers return to work, but the engineers re-
mained on strike; that vacant positions were then filled, and when the
M. E. B. A. requested the reinstatement of the striking employees,
the jobs were not available. The answer further alleged that the
Act is unconstitutional, and denied all the other allegations of the
complaint.
Pursuant to notice, a hearing was held in New York City com-
mencing on February 23, 1937, before Robert M. Gates, the Trial
Examiner duly designated by the Board. The Board and the
respondent were represented by counsel. At the hearing the respond-
ent moved to dismiss the complaint on the grounds that the members
of the M. E. B. A. named in the complaint are not employees of the
respondent and that the Board has no power under the Act to
order their reinstatement. Counsel for the respondent argued that
if the Board does have the latter power under the Act, it is an uncon-
stitutional delegation of power. The Trial Examiner denied the
motion. At the conclusion of the Board's case counsel for the Board
moved to amend the pleadings to conform to proof. The motion
was granted. Certain documents were submitted by stipulation fol-
lowing the hearing and were admitted by the Trial Examiner.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to produce evidence bearing upon the issues was afforded
to all parties. The parties were offered an opportunity for argu-
ment at the close of the hearing, which was declined. The respondent
filed a brief to which we have given due consideration.
DECISIONS AND ORDERS 87
Subsequently the Trial Examiner filed an Intermediate Report
finding that the respondent had committed unfair labor practices
affecting commerce within the meaning of Section 8, subdivisions (1)
and (5 ), and Section 2, subdivisions (6) and (7) of the Act. Al-
though the Trial Examiner recommended the reinstatement of the
employees alleged to have been refused reinstatement , he found that,
the respondent had not engaged in a violation of Section 8, sub-
division (3) of the Act. Exceptions to the Intermediate Report and
a brief thereon were thereafter filed by the respondent.
We find no error in the Trial Examiner's rulings upon the re-
spondent 's motions and objections , and such rulings are hereby af-
firmed. As set forth below , we also find that the evidence supports
the findings and conclusions made by the Trial Examiner in his In-
termediate Report that the respondent has engaged in unfair labor
practices affecting commerce, within the meaning of Section 8, sub-
divisions ( 1) and (5), and Section 2, subdivisions (6) and (7) of
the Act. However, for the reasons set forth below, we find that the
Trial Examiner has erred in finding that the respondent has not
engaged in a violation of Section 8, subdivision (3) of the Act.
We have fully considered the exceptions to the Trial Examiner's.
Intermediate Report and find no merit in them. They are hereby
overruled.
Upon the entire record in the case , the Board makes the following :
FINDINGS OF FACT
I. THE RESPONDENT AND ITS BUSINESS.2
Black Diamond Steamship Corporation is a corporation organized
and existing under the laws of the State of Delaware, and is and
has been at all times hereinafter mentioned, engaged in the general
cargo and passenger business with general offices in New York,
New York. It owns and operates eight vessels which sail accord-
ing to a fixed posted schedule from New York, New York, to Rotter-
dam, Holland; Antwerp, Belgium; Boston, Massachusetts; Phila-
delphia, Pennsylvania; Baltimore, Maryland; Norfolk, Virginia;
Newport News, Virginia; Portland, Maine; and return.3 Each of
the respondent's vessels docks at Pier K, Weehawken, New Jersey,
and each is regularly engaged in both outport and foreign sailings,
transporting primarily freight and mail, and affording a limited pas-
2 The findings of fact as to the respondent and its business are taken from Board's
Exhibit No. 2, which is the decision of the Board, Matter of Black Diamond Steamship
Corporation and Marine Engineers' Beneficial Association, Local 33, Case No. R-107,
decided September 24, 1936, 2 N L R B. 241.
3 The names of the vessels are as follows : Black Eagle, Black Gull, Black Hawk, Black
Falcon, Black Tern, Black Heron, Black Condor, Black Ospray.
88 NATIONAL LABOR RELATIONS BOARD
senger service. The respondent accepts through bills of lading to
Europe. It employs the customary means of advertising for cargo
and passengers. Victor J. Sudman is president and Michael J. Han-
lon is vice-president and general manager of the respondent.
We find, therefore, that the respondent is engaged in trade, traffic,
commerce, and transportation among the several States and between
the United States and foreign countries, and that the licensed chief
and assistant engineers employed on the vessels of the respondent
are directly engaged in such trade, traffic, commerce and trans-
portation.
II. THE UNION
Marine Engineers' Beneficial Association, Local No. 33, is a labor
organization whose membership is limited to licensed marine engi-
neers. Approximately 1100 members operate out of the port of
New York.
III. TILE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
Upon the basis of the Board's decision in the, representation case,4
which is part of the record in this case, and for the reasons there
stated, we find that a unit composed of all licensed chief and assistant
engineers employed as engineers on the vessels operated by the re-
spondent would insure to these employees the full benefit of their
right to self-organization and to collective bargaining, and otherwise
effectuate the policies of the Act, and constitutes a unit appropriate
for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of em-
ployment.5 -,
2. Representation by the union of the majority in the appropriate
unit
It is clear from the Board's, Decision and Direction of Election in
Matter of Black Diamond ,Steamship Corporation and Marine Engi-
neers' Beneficial Association, Local 33, Case No. R-107, decided Sep-
tember 24, 1936 (supra), and from the record in this case, that for
over a period of two years the M. E. B. A. had been unsuccessfully
attempting to bargain collectively with the respondent. Because of
the M. E. B. A.'s abortive endeavors to induce the respondent to enter
4 Board's Exhibit No. 2; Matter o f Black Diamond Steamship Corporation and Mat the
Engineers ' Beneficial Association , Local No. S4 ; Case No R-107 ( supra):
5 The decision of the Board in the representation case also included licensed junior engi-
neers employed as engineers within the appropriate unit found by the Board. . The evi-
dence at this hearing indicated that there were no such individuals In this classification.
It is, therefore , unnecessary to Include them in the unit.
DECISIONS AND ORDERS 89
into an agreement, Joseph F. Lahey, business manager of the
M. E. B. A., on July 2, 1936, filed with the Regional Director for the
Second Region a petition for an investigation and certification of
representatives pursuant to Section 9 (c) of the Act. After a hear-
ing, the Board directed an election, and as a result thereof, certified
on December 11, 1936, that Marine Engineers' Beneficial Association,
Local No. 33, had been designated by a majority of the employees
in the appropriate unit as their representative for purposes of col-
lective bargaining, and that, pursuant to Section 9 (a) of the Net,
the M. E. B. A. is the exclusive representative of all such engineers
for purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
On about October 27, 1936, all the maritime unions on the Pacific
Coast, constituting the Maritime Federation of the Pacific, called
their members out on strike, which completely tied up American
shipping on that Coast. On October 29, the rank-and-file of the
International Seamen's Union, herein called the rank-and-file, went
out on strike against the respondent and other steamship lines on the
Atlantic Coast in support of the Maritime Federation of the Pacific.
As a result the respondent had great difficulty in obtaining competent
crews for its vessels. On about November 10, 1936, the members of
the M. E. B. A. refused to sail unless the respondent obtained com-
petent crews.
On November 12, 1936, Edward Patrick Trainer, business manager
of the M. E. B. A., called Hanlon to request that the respondent
negotiate an agreement with the M. E. B. A. Hanlon replied, "I ani
too busy to bother much with an agreement * * * I am having
a strike." Trainer did not press him further at that time. On
about November 15, a letter dated November 13, on a letterhead of
the national M. E. B. A., was mailed to New York City over the
signature of William S. Brown, the national president, to all com-
panies on the Atlantic and Gulf Coasts, and to the American Steam-
ship Owners Association, herein called the Association, with the
request that the "Association meet with the representatives of our
organization in the hope that we will be able to reach an agreement
that will be to our mutual advantage".e A form of a proposed agree-
ment was also enclosed.7 R. J. Baker, president of the Association,
replied that he had no authority to negotiate an agreement for the
individual steamship lines. The respondent, however, did not reply
to the letter.
6 Respondent's Exhibit No. 8.
7 Respondent 's Exhibit No 9.
90 NATIONAL LABOR RELATIONS BOARD
Trainer testified that he telephoned Hanlon again on November
17, and repeated his request to negotiate an agreement. Hanlon
denied that he talked with Trainer at any time during November
except on the 12th. The national M. E. B. A. declared a strike effec-
tive November 23, 1936, against the respondent and some other ship
lines. It is clear that the reason the strike was declared was the
failure of the steamship lines to respond satisfactorily to the letter
of November 13, requesting them to bargain collectively with the
M. E. B. A.
On December 4, 1936, after the ballots had been counted by the
Board and it was known that the M. E. B. A. had won the election,
Hanlon called a meeting of about 24 of the striking engineers and
deck officers at the respondent's office at Pier K, Weehawken, New
Jersey. Twenty-six of 32 engineers employed by the respondent
were out on strike at this time. Hearing of the meeting, Trainer
dispatched George M. Molloy, an organizer of the M. E. B. A., to
attend the meeting. He introduced himself to Hanlon and asked
if he might stay, but also added that he would leave the room if
Hanlon so wished. Hanlon replied that he would like to have Molloy
leave the room "because the meeting was only of a friendly get to-
gether sort, nothing official". Molloy left. At the meeting Hanlon
told the engineers that "we are going to endeavor to sail ships, and
if we go out and get men to take your positions it is going to be
too bad for we will have to promise the men permanent jobs and
we will be morally obligated to keep them on permanent jobs. The
door is still open and the opportunity is here. Let's get together."
The engineers replied that they would have to consult the M. E. B. A.
about the matter. During the week of December 6, 1936, the
respondent sailed two of its vessels with other engineers.
On December 12, 1936, the day after the Board certified the
M. E. B. A., the respondent wrote letters to its engineers urging them
to return to their vessels." Paul Stewart was the only engineer who
replied to this letter, stating, "My own self respect as well as instruc-
tions from the engineers association prohibit me from taking em-
ployment on a vessel which is manned by strikebreakers." 9
Trainer testified that on December 14, three days after the Board's
certification, he telephoned Hanlon and told him that "we are desig-
nated as representatives of the marine engineers in your company.
Now we are willing to go ahead and bargain with you." According
to Trainer, Hanlon replied : "All of the engineers, or most of the
engineers are out of this company now. You represent no engineers;
we are not going to bargain with you."
s Board's Exhibit No 11.
e Respondent's Exhibit No. 6
DECISIONS AND ORDERS 91
Hanlon denied that he had a telephone conversation with Trainer
on December 14. Certainly Trainer's testimony is more consistent
with the realities. It would be only reasonable and natural for
Trainer, upon being notified that the M. E. B. A. had been certified,
to renew his request that the respondent bargain with the M. E. B. A.;
it cannot be supposed that this victory, coming after such a long
struggle to achieve collective bargaining status, would find the
M. E. B. A. sleeping on its rights. In view of the conflicting testi-
mony, we give credence to that version which appears reasonable.
Accordingly, we find that Trainer's request to bargain and Hanlon's
refusal took place on December 14, 1936, three days after the
certification.
On December 31, 1936, when the vessels of the respondent began
to sail with more regularity, a committee of two members of the
M. E. B. A., consisting of Anderson and French, called upon Hanlon
requesting reinstatement of all the engineers and an opportunity to
negotiate an agreement. Hanlon told the committee that they were
unfortunately too late, that no vacancies existed on the respondent's
vessels, but as the vacancies did occur the engineers who had been on
strike would be reinstated. On January 4, 1937, Trainer telephoned
Sudman and told him that the M. E. B. A. wanted reinstatement of
its men and an agreement with the respondent. Sudman replied that
he would let him know in a few days. When Trainer called again
on January 7, 1937, Sudman told him that any negotiations would
have to be conducted with the American Steamship Owners Associa-
tion. Thereupon Trainer talked to R. J. Baker, president of the
Association, who told him : "I am signing no contract with you or
no other steamship company will sign a contract with you, Mr.
Trainer." On January 9, 1937, Trainer filed his charge with the
Board. On about January 16, Trainer sent letters to the respondent
advising that the strike had been called off as of January 14, and
enclosing the applictions of the engineers for reinstatement.10
We find that on December 14, 1936; December 31, 1936; January 4,
1937; and January 7, 1937, the respondent refused to bargain col-
lectively with the Marine Engineers' Beneficial Association, Local
No. 33, as the representative of the respondent's engineers.
B. Refusal to reinstate
As already set forth in connection with the discussion of the re-
spondent's refusal to bargain collectively, applications for reinstate-
ment on behalf of all of the striking engineers were made by
Anderson and French on December 31, 1936, and by Trainer on
January 4, 7, and 16. The respondent can find no refuge in the
fact that the applications for reinstatement may have been cou-
10 Board's Exhibits Nos. 21a, 21b, 21c, 22, 23.
92 NATIONAL LABOR RELATIONS BOARD
pled with demands for collective bargaining. Such demands the
M. E. B. A. was entitled to make, and the respondent was required
to heed under the Act.
The respondent refused and continues to refuse reinstatement to
the members of the M. E. B. A: who went on strike, except eight
men who have been reinstated. It is clear that the only basis upon
which the respondent has refused to reinstate the men is that they
were on strike. Most of the men had worked for the respondent a
considerable number of years. They were regarded as thoroughly
competent, satisfactory, permanent, and regular employees. Hanlon
readily admitted that as a group they were more competent than the
engineers hired to replace them during the strike. He also stated
that as vacancies occurred among the new men the respondent would
rehire the old employees.
The strike of the engineers, commencing on November 23, 1936, and
terminating on January 14, 1937, constituted a labor dispute. By
striking the engineers did not sever their status as employees of the
respondent, since they had ceased work as a consequence of and in
connection with a current labor dispute. The continuance of the
strike after the Board's certification on December 11, 1936, was
caused by the respondent's refusal to bargain collectively with the
M. E. B. A. thereafter, and its refusal to reinstate the strikers.
Hence the strikers thereafter maintained their status as employees
for two reasons : their work had ceased as a consequence of and in
connection with a current labor dispute, and the strike was prolonged
because of unfair labor practices on the part of the respondent.
Since they had not obtained any other regular and substantially
equivalent employment, the engineers were entitled to reinstatement
when they applied for their jobs after the Board's certification.
We find, therefore, that by its refusal to reinstate the engineers
who applied for reinstatement on December 31, 1936, and January 4,
7, and 16, 1937, the respondent has discriminated in regard to hire
and tenure of employment, and has thereby discouraged membership
in a labor organization.
We find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes
of collective bargaining and other. mutual aid and protection as
guaranteed in Section 7 of the Act.
We find that the refusal of the respondent to bargain collectively
and to reinstate the engineers has led to and tends to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
DECISIONS AND ORDERS
THE REMEDY
93
We have found that the strike of the respondent's engineers on
November 23, 1936, was prolonged because of the respondent's con-
tinued refusal to bargain on December 14, 1936, three days after the
Board's certification. Since the strike was prolonged by the re-
spondent's unfair labor practices, the strikers were entitled to rein-
statement to their former positions after the respondent's refusal to
bargain on December 14. In order to restore the status quo as it
existed prior to the time the respondent committed the unfair labor
practices and in order to enable the processes of collective bargaining
to function, we will order that all strikers be reinstated to their
former positions, dismissing if necessary all engineers employed for
the first time since December 14, 1936, the date of the first refusal
to bargain after the Board's certification."
The first request for reinstatement of the strikers was made on
December 31, 1936. The respondent's refusal to reinstate the strikers
on December 31, 1936, constituted a discriminatory discharge. They
are, therefore, entitled to back pay from the date of the first sailing,
after December 31, of the vessel upon which each of the engineers,
respectively, was employed on November 23, 1936, to the date of the
respondent's offer of reinstatement. 12 Since engineers "sign articles"
and are paid only for such voyage they make, we choose the first
sailing date after December 31, 1936, as the date from which back pay
is to commence.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board finds and concludes as a matter
of law :
1. Marine Engineers' Beneficial Association, Local No. 33, is a labor
organization, within the meaning of Section 2, subdivision (5) of
the Act.
2. The strike of the licensed chief and assistant engineers em-
ployed on the vessels operated by the Black Diamond Steamship
Company was a labor dispute, within the meaning of Section 2,
subdivision (9) of the Act.
3. James Anderson, Eugene Topping, Geo. Pyne, Benj. R. Castles,
Henry K. Berry, Charles Steffenson, Wm. Serviss, Herbert O'Sulli-
van, Ernest Peterson, John Eiler, (Frederick) Oscar Schwartz, Paul
a Matter of Columbian Enameling and Stamping Company and Enameling and Stamping
Mill Employees Union, No. 196911, Case No C-14, decided February 14, 1936 (I N. L. R. B.
181).
' Matter of Elbe File and Binder Co., Inc. and Bookbinders, Manifold and Pamphlet
Division, Local Union No 119, International Brotherhood of Bookbinders, Case No. C-158,
decided June 2, 1937, 2 N. L R B. 906
94 NATIONAL LABOR RELATIONS BOARD
Stewart, Walter Hasenfus, James M. Lamb, John B. Fetzer, Henry
L. Mosher, Homer Lohse, S. M. Elonka, H. Gonzales, William Hodg-
kiss, Clarence Ackershock, William J. Scott, Willard L. Davis, Frank
French, Carl Nilson, A. W. Pryde, George J. Portvliet, Edward
Hoefner, Jack Peelen, Theodore R. Ender, Erie J. Green, Merlin
LaFleur, Herman Mellema, B. Pearson, and Carl Kraigh were em-
ployees of the respondent at the time of the strike, and are still
employees of the respondent, within the meaning of Section 2,
subdivision (3) of the Act.
4. The respondent, by discriminating in regard to hire and tenure
of employment, and thereby discouraging membership in a labor
organization, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8, subdivision (3) of the Act.
5. The licensed chief and assistant engineers employed as engi-
neers on vessels operated by the respondent constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act.
6. Marine Engineers' Beneficial Association, Local No. 33, having
been designated by a majority of the licensed chief and assistant
engineers employed as engineers on vessels operated by the respondent
as their representative for purposes of collective bargaining, is, by
virtue of Section 9 (a) of the Act, the exclusive representative of all
such engineers for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
7. By refusing to bargain collectively with the M. E. B. A. as
the representative of its engineers, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8, subdivision (5) of the Act.
8. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
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
the respondent, Black Diamond Steamship Corporation, and its
officers, agents, successors, and assigns shall :
DECISIONS AND ORDERS 95
1. Cease and desist from interfering with, restraining, or coercing
its employees in the exercise of their rights of self-organization, to
form, join, or assist labor organizations, 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 and protection, as guaranteed in Section 7 of the National
Labor Relations Act;
2. Cease and desist from refusing to bargain collectively with
Marine Engineers' Beneficial Association, Local No. 33, as the ex-
clusive representative of its licensed chief and assistant engineers
in respect to rates of pay, wages, hours of employment, and other
conditions of employment;
3. Cease and desist from discouraging membership in Marine
Engineers' Beneficial Association, Local No. 33, or any other labor
organization of its employees, by refusing to reinstate the engineers
named below in paragraph 4 (a), or otherwise discriminating in
regard to hire and tenure of employment or any term or condition
of employment, or by threat of such discrimination;
4. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
a. Offer to James Anderson, Eugene Topping, Geo. Pyne, Benj.
R. Castles, Henry K. Berry, Charles Steffenson, Wm. Serviss, Her-
bert O'Sullivan, Ernest Peterson, John Eiler, (Frederick) Oscar
Schwartz, Paul Stewart, Walter Hasenfus, James M. Lamb, John
B. Fetzer, Henry L. Mosher, Homer Lohse, S. M. Elonka, H. Gon-
zales, William Hodgkiss, Clarence Ackershock, William J. Scott,
Willard L. Davis, Frank French, Carl Nilson, A. W. Pryde, George
J. Portvliet, Edward Hoefner, Jack Peelen, Theodore R. Ender,
Eric J. Green, Merlin LaF'leur, Herman Mellema, B. Pearson, and
Carl Kraigh immediate and full reinstatement in their former posi-
tions, without prejudice to their seniority and other rights and
privileges, dismissing if necessary engineers employed for the first
time since December 14, 1936;
b. Make whole the engineers who, individually or through their
representatives, applied for and were refused reinstatement for any
losses of pay they have suffered by reason of the refusal of the
respondent to reinstate them by payment to each of them, respec-
tively, of a sum of money equal to that which each of them, respec-
tively, would normally have earned as wages from the date of the
first sailing of the vessel after December 31, 1936, upon which each
of them, respectively, was employed on November 23, 1936, to the
date of the respondent's offer of reinstatement, less any amount
earned by each of them, respectively, during such period;
96 NATIONAL LABOR RELATIONS BOARD
c. Upon request, bargain collectively with Marine Engineers' Bene-
ficial Association, Local No. 33, as the exclusive representative of
all its licensed chief and assistant engineers, for the purpose of col-
lective bargaining in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment;
d. Post notices at a conspicuous place on each of the respondent's
vessels stating (1) that the respondent will cease and desist in the
manner aforesaid, and (2) that said notices will remain posted for
at least thirty (30) consecutive days from the date of the posting;
e. Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.