Broward Marine, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1955

112 N.L.R.B. 1443 (N.L.R.B. 1955)

BROWARD MARINE, INC. 1443
constitute an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
Broward Marine , Inc. and District Lodge No . 40 and Local Lodge
No. 1535 of the International Association of Machinists, AFL.
Case No. 10-CA-1860. June 29,1955
DECISION AND ORDER
On October 5, 1954, Trial Examiner George Bokat issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
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, the briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
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, Broward Marine,
Inc., Fort Lauderdale, Florida, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in District Lodge No. 40 and Local
Lodge No. 1535 of the International Association of Machinists, AFL,
or in any other labor organization of its employees, by discriminating
in regard to the hire of employees.
1Our dissenting colleague , in disagreeing with our finding of discrimination , places
emphasis on the fact that the Respondent recalled or rehired a number of the striking
employees , including the vice president of the Local Union, McDonald, and several of the
union stewards . We have given this fact careful consideration in weighing all the other
facts and circumstances surrounding the Respondent 's failure to recall the individuals in
question and are nevertheless persuaded that the Respondent discriminated against them.
The Board and the courts alike have recognized that the mere fact that an employer does
not discriminate against all union adherents does not preclude a finding of discrimination
against some union adherents . For example , see N. L. R B. v. Shedd-Brown Mfg. Co., 213
F. 2d 163 (C. A. 7) ; N. L. R. B. v Nabors Company, 196 F. 2d 272 (C. A. 5), cert. denied
344 U. S. 865.
112 NLRB No. 175.
369028-56-vol. ]]2-92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
join, or assist District Lodge No. 40 and Local Lodge No. 1535 of
the International Association of Machinists, AFL, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the ex-
tent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer Arthur Roslewski, Leonard Boland, and John Schepp
immediate employment in the positions they would now occupy had
the Respondent not discriminated against them, without prejudice to
their seniority or other rights and privileges.
(b) Make whole Arthur Roslewski, Leonard Boland, and John
Schepp, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay each may have
suffered as a result of the Respondent's discrimination against him.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze and compute the amount of back pay due
under the terms of this Order.
(d) Post at its shipyard at Fort Lauderdale, Florida, the notice
attached to the Intermediate Report and marked "Appendix."'
Copies of said notice, to be furnished by the Regional Director for
the Tenth Region, shall, after being signed by the Respondent's rep-
resentative, be posted by it immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for the Tenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent (a) discriminatorily refused to hire Viggo Lar-
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by decree of a United States Court of Appeals , there shall be substituted for the
words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United
States Court of Appeals , Enforcing an Order."
BROWARD MARINE, INC. 1445
sen and ( b) discriminatorily suspended James McDonald in viola-
tion of Section 8 (a) (3) and ( 1) of the Act , be, and it hereby is,
dismissed.
MEMBER RODGERS, dissenting :
I do not agree with the results achieved by my colleagues of the
majority. Accordingly, I would dismiss the complaint.
Notwithstanding the fact that the Trial Examiner states that "the
evidence in this case [does not] reveal any oral manifestations of anti-
union sentiment on the part of the Respondent," and that there is no
evidence in the record of any interference, restraint, or coercion on
the part of the Respondent, he nevertheless finds that the Respondent
has discriminated against the employees named herein because of
their union activity. With this incongruous result my colleagues of
the majority apparently agree.
I am convinced, in looking at the record as a whole, that no finding
of discrimination is justified in this case. In the first place, 253 em-
ployees of the Respondent engaged in an economic strike. During the
course of that strike, 110 employees were legally replaced by the em-
ployer. In this connection, it is interesting to note that in making
his replacements, the employer adhered to seniority, that is, he re-
placed those with the least seniority, first. This surely is not the atti-
tude of an employer bent upon reprisal. Ultimately, 187 of the 253
strikers were rehired, including a considerable number of those who
had been legally replaced during the course of the strike, none of
whom the employer was legally required to rehire. Thirty of the
strikers were not reemployed because they had obtained employment
elsewhere. Finally, of the total of 253 economic strikers involved,
only 5 3 alleged any discriminatory treatment whatsoever.
And now the majority, notwithstanding the fair and reasonable
attitude displayed by the Respondent in recalling and reinstating
these striking employees, and notwithstanding the findings of the
Trial Examiner that the record is totally devoid of any interference,
restraint, coercion, or any manifestation of antiunion sentiment on
the part of the Respondent, concludes that three of these complain-
ants are the victims of a campaign of reprisal on the part of the
employer.
In reaching its finding of discrimination the majority, like the Trial
Examiner, relies heavily on the alleged role of "prominence" which
these complainants played in the affairs of the Union by reason of
their holding the positions of recording secretary, welfare commit-
3 Actually, discriminatory failure to rehire was alleged only as to four . The fifth,
McDonald , vice president of the Union , was among the 187 rehired Thereafter, he was
laid off for a period of 1 week , under circumstances alleged to be discriminatory . But the
allegations as to him were dismissed by the Trial Examiner , and he is presently working
for the Respondent
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teeman, and shop steward, respectively. In reaching this conclusion,
however, the majority apparently gives no weight at all to what hap-
pened to other strikers who were, if anything, more prominent in the
affairs of the Union.
For example, the Trial Examiner found no discrimination as to
McDonald, the vice president of the Union. He also concluded that
Larsen, chairman of the welfare committee, had not been discrimi-
nated against. In addition, the record shows that the Union's presi-
dent, Simpson, was in complete charge of the picket line, but no alle-
gation nor finding of discrimination is made as to him. Similarly,
the record reveals that at least one other welfare committeeman, Thor-
sen, is presently working for the Respondent, as are a substantial
number of the original shop stewards.
In view of the foregoing, the conclusion of the majority that the
three complainants herein were discriminated against for their
"leadership" in union affairs, notwithstanding the reemployment by
the Respondent of the top officials of the Union and the real leaders
of the picket line, contains, in my opinion, a self-defeating; contradic-
tion. As I view it, the union and strike activity of these complainants
constitutes, at most, a fortuitous circumstance which the Trial Ex-
aminer and the majority have seized upon to establish an untenable
inference.
Nor can I agree that there was any transparency in the reasons
given by the Company for not rehiring these employees. Once I
accept the Trial Examiner's basic finding that there is no independent
evidence of unlawful conduct, I have no alternative but to assume
that the Company's personnel policies were determined in conform-
ance with sound business practice. To conclude otherwise, as the
majority does, with respect to the three employees involved here,
simply means that the Board is once again placing itself in the posi-
tion of substituting its own ideas of business management for those
of the employer. This the Board is not permitted to do.4
Apart from the speculative nature of the elements upon which the
majority bases its finding of discrimination, I am constrained to view
the majority's conclusion as a derogation of our basic procedural
requirements. After first noting the complete absence of any evi-
dence of unlawful conduct on the part of the Respondent, the ma-
jority proceeds to pyramid a series of speculations into a finding of
inferred illegality. In so doing, it places upon the Respondent the
complete burden of extricating himself from the web of speculation
that has been woven about him. Contrary to the findings adopted in
this case, the law requires that the burden be and remains upon the
General Counsel to establish as a fact that each of the three indi-
viduals was refused rehiring because of his union membership and
4 N. L. R. B v. Blue Bell, Inc, 219 F. 2d 796 (C. A. 5).
BROWARD MARINE, INC. 1447
activity. Since I atn convinced that the General Counsel has failed
to meet his burden in this respect, I would dismiss the complaint.
MEMBER LEEDODM took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act (61 Stat 136), herein called the Act, against the Respondent, Broward Marine,
Iric . upon charges filed by Distiict Lodge No 40 and Local Lodge No 1535 of the
International Association of Machinists, AFL, herein called the Union, and upon
complaint and answer, was heard, puisuant to due notice, in Fort Lauderdale, Florida,
on March 31 and April 1, 2, and 5, 1954 The allegations of the complaint, denied
by the answer, are that the Respondent disciiminated against five named individuals
within the meaning of Section 8 (a) (3) and (I) of the Act.
All parties were repicsented at the hearing, participated therein, and were
afforded full opportunity to present and meet evidence, to engage in oral argu-
ment, and to file briefs loth the General Counsel and the Respondent filed
briefs. Motions by the Respondent to dismiss the complaint are disposed of by
the following findings and recommendations
From my observation of the witnesses, and upon the entire record in the case,
I make the following
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF 1HE RESPONDENT
Broward Marine, Inc , is a Florida corporation with its principal office and
place of business at Fort Lauderdale, Florida, where it is engaged in the con-
struction, maintenance, repair, and conveision of boats, ships, and other marine
vessels During 1953 the Respondent was engaged, pursuant to contract, in the
construction of minesweepers for the United States Navy, of an annual value in
excess of $500,000.
Since the marine vessels constructed by the Respondent relate directly to the
national defense and are made under Government contract in excess of the amount
set forth above, I find that not only is the Respondent engaged in commerce within
the meaning of the Act as it concedes, but that the Board will exercise jurisdiction
under its recently announced new standards
It THE LABOR ORGANIZATION INVOLVED
District Lodge No. 40 and Local Lodge No 1535 of the International Asso-
ciation of Machinists, AFL, are labor organizations within the meaning of Section
2 (5) of the Act.
III 1HE UNFAIR LABOR PRACTICES
A Background
Prior to July 1952 the Respondent had been engaged primarily in the main-
tenance, repair, and storage of pleasure boats and yachts, and its complement of
employees averaged about 40. In about July 1952 the Respondent obtained a
contract from the United States Navy to build seven minesweepers to be con-
structed entirely of wood with some aluminum fittings As a result, in about a
year's time the average employment of the Respondent jumped from about 40 to
more than 300 employees and not long after October 19, 1953, reached a peak
of about 470 employees In April 1953 the Union won a National Labor Rela-
tions Board election although it was not until June 10, 1953, that the Union was
formally certified as the collective-bargaining representative of the Respondent's
employees After 6 or 7 bargaining sessions 253 employees went on strike on
September 1, 1953, in an attempt to enforce the Union's bargaining demands.
The strike continued until October 19, 1953, when William H. White, business
representative of the Union, presented to the Respondent a letter signed by many
of the strikers stating their willingness to return to work "unconditionally." During
the strike, the Company hired 110 replacements and sent discharge or replacement
letters to the displaced strikers who happened to be the youngest in seniority in the
job and classification grade for which the replacement worker was hired. When the
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union indicated its willingness to call off the strike, William M. Powell , the Re-
spondent 's official in charge of personnel and production since July 1, 1953, and
whose sole and unreviewed determination not to hire four of the strikers is the
principal issue herein , told White that in order to make up for production time
lost during the strike the Company was going to put on a night shift, and that he
saw no reason why all the strikers should not eventually be called back to work.
The evidence shows that the Respondent eventually took back 187 of the strikers
including apparently many who had received displacement notices, leaving 66 strikers
not rehired . About 30 of the 66 strikers obtained employment elsewhere during
the strike and did not seek reinstatement . Of the remainder only 13 strikers filed
applications for reemployment and none of them have been rehired by the Re-
spondent . Among the 13 are the 4 complainants herein and they, along with the
others not given jobs, continued to picket for some time after October 19 despite
the fact that their fellow workers had abandoned the strike and gone back to work.
All of the strikers who had not received replacement notices i were immediately
returned to work , the others were told that they were being treated as new em-
ployees and would have to apply for work as such . They were told to place their
names and addresses on a new application for employment but not their qualifica-
tions since the new one would be attached to their original employment application
which contained their history of prior employment and experience . These strikers
were then informed that as soon as the Respondent had a vacancy for them they
would be notified The evidence also shows that the Company did hire, as new
employees , a number of the strikers who had received discharge or replacement
notices.
Subsequent to October 19, 1953, the Respondent , during the periods described
below, continued as it had during the strike to advertise for new employees and
hired a substantial number of them. For example , the Respondent ran the follow-
ing advertisements in a local newspaper of daily publication:
(1) From October 11 to October 21 or 22, 1953
*
* BROWARD MARINE
* INCORPORATED *
* v.
* 1601 S. W. 20th Street Phone 1701 *
* *
* FORT LAUDERDALE
* *
* NOW HIRING *
* DAY AND NIGHT SHIFT ** *
YACHT and BOAT
* PRODUCTION *
* *
* WORKERS! *
* *
* O Carpenters 0 Brazers *
O Machinists 0 Arc Welders
* 0 Pipe Fitters 0 Joiners *
* 0 Sheet Metal 0 Riggers *
* 0 Metalsmith 0 Millwright X.
* O Electricians 0 Laminators *
* 0 Power Ways 0 Helpers *
* (All Crafts)
* *
1 This notice in the case of Leonard Boland , one of the claimants heiein , dated October
9, 1953, reads "Your position has been filled You aie therefore , discharged " Three of
the other claimants not taken back , Arthur Roslewski , John Schepp , and Viggo Larsen, also
received similar notices prior to October 19, 1953 The fifth claimant , James McDonald,
received no such notice and was reinstated to his old position The General Counsel con-
tends that McDonald was discriminatorily suspended for a 1 -week period . H is case falls
into a separate category than the other four.
BROWARD MARINE, INC.
*
(2) From November 19 to 25, 1953:
1449
*
* Part Time Crane Operators for day or night shift. *
First Class Yacht Carpenters *
* First and Second Class Boat Builders for day or *
* night shift. *
*
BROWARD MARINE, INC., 1601 S. W. 20th St. *
M Ft. Lauderdale, Fla. *
(3) From December 3, 1953 to January 6, 1954:
* SHIP CARPENTERS *
* *
* YACHT CARPENTERS *
o *
* BOAT BUILDERS *
o *
* PLUMBERS WITH *
o *
* MARINE EXPERIENCE *
o *
o ONLY *
o *
o ELECTRICIANS WITH *
o MARINE EXPERIENCE *
o *
o SHEET METAL MEN FOR *
a ALUMINUM DUCT *
WORK *
a *
o BROWARD MARINE, INC. *
* *
* 1601 S . W. 20th St. *
o *
* Ft. Lauderdale, Fla. *
o *
In his brief, counsel for the Respondent argues that the "purpose of the ads was
to get applications for permanent employees in the files so that production would
not lag during the off season months." This was based on testimony of Powell that
from October through March there was a large influx of labor in the area which he
described as "snow-birds" which was seasonal and not permanent labor. This
explanation, counsel says, "is logical, sensible and unrefuted and must therefore be
accepted." While Powell's explanation may have furnished one of the reasons for
the advertisements, the record, and indeed Powell's own testimony, refutes counsel's
suggestion that it was the sole reason. The evidence demonstrates that the Respondent
needed and hired new employees and this was another and important reason for
the advertisements.2
Now long after the main strike was called off on October 19, Powell indicated
that it did not look as if 4 or 5 of the strikers would be recalled, this despite his
earlier and more optimistic prognostication that there would be enough jobs for
all of the strikers. This came about when McDonald, vice president of the Union,
asked Powell on three occasions for a list of those men who faced no early prospect
i Powell testified, "I don't say the ads were run entirely to fill our files, there were some
departments that really were weak," and "we needed boat builders mainly." The term
"boat builders" which appeared in the advertisements is a term meant to apply to all crafts
such as carpenters , electricians, welders, etc, experienced in the building of boats.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of being recalled by the Company so that these men could then look elsewhere for
employment. It was on the second request for this information that Powell indicated
that there appeared to be no vacancies for 4 or 5 strikers but he did not name them.
About a week later when McDonald again asked Powell for the names, Powell at
the moment could only recall the names of two of them, to wit, Schepp and Larsen.
These two individuals plus Roslewski and Boland are claimed to have been discrimi-
natorily refused employment as new employees because of their union activities
The General Counsel makes no contention that these employees were improperly
selected for discharge when they were permanently replaced during the economic
strike in which they were among the most active participants He does contend,
however, that after these 4 strikers had indicated their willingness to go back to work
as new employees the Respondent hired many new employees for jobs which the 4
strikers were qualified to fill.
The Respondent, while admitting that it did hire many new employees after the
strikers made application, denies that it hired any new employees to fill vacancies,
with one possible exception, for the precise classification of employment held by
the claimants at the time they went on strike. To illustrate the Respondent's position
I will quote what it says about Schepp. "Schepp was employed as a second class
carpenter in the Planking department and that there have been no second class
carpenters hired in the Planking department since October 19, 1953." As shown
above, the Respondent advertised for carpenters and hired new employees classified
as third-class carpenters who received a lesser rate of pay per hour than did the
second-class carpenters
With this general background applicable to all four claimants and with an under-
standing of the general nature of the respective contentions of the parties in regard
to them, it is now in order to examine the facts as to each one of them separately.
Before doing so, however, it should also be borne in mind that the complaint neither
alleged, nor does the record show, any acts of interference, restraint, or coercion
Nor does the evidence reveal any oral manifestations of antiunion sentiments on the
part of the Respondent.
B. Arthur Roslewski
Roslewski was hired by the Respondent on January 13, 1953, as a first-class sheet
metal layout mechanic and was assigned to work in the sheet metal department.
A type of welding known as heli-arc welding was a necessary step in the fabrication
of the metal in the sheet metal department. In order to avoid sending this work
over to the welding department where it had previously been done, the Company
decided to install a welding machine in the sheet metal department. Since Roslewski
had previous experience in general welding work he was selected to do this work.
After some instructions by Foreman Pete Cavalier of the welding department
Roslewski passed a navy test and thereafter, until he went on a strike a few months
later, spent 50 percent of his time doing welding and 50 percent doing sheet metal
work
Roslewski was shop steward of his department, and a union bulletin containing
the names of all the shop stewards was posted on two company bulletin boards
about June 11, 1953. Roslewski was also the Union's acting financial secretary.
Sometime in August 1953, after the Union and the Respondent had already met in
2 or 3 bargaining sessions, Roslewski was named to succeed another employee on the
negotiating committee. At his first appearance on this committee when it met with
the Company, Frank Denison, Respondent's president, asked him who he was and
Roslewski identified himself as an employee in the sheet metal department 3 Ros-
lewski sat on this committee on the several subsequent occasions it met with the
Company prior to the strike. He joined in the strike of September 1 and about
September 28 received a letter from the Respondent stating that his position had
been filled and that he was replaced During the strike Roslewski was 1 of 2
picket captains in charge of the Union's 2 picket lines at the shipyard and spent
several hours a day supervising the pickets He and the other strike officials wore
committeemen badges which distinguished them from the rank-and-file strikers.
Roslewski, who was a signer of the petition asking for reinstatement, continued
to picket in an effort to gain reemployment despite the fact that most of the strikers
returned to work about October 19.
Since Roslewski was one of the strikers whose positions the Respondent states
had been filled during the strike, he followed the required procedure on October
3 Denison also asked Pei sonnel and Production Manager Powell about Roslewski Powell
testified lie first heai d of Roslewski when "Mr Denison came back one day and asked me
who Roslewski was "
BROWARD MARINE, INC. 1451
19 by signing an application for employment as a new employee.4 After doing so
he ran into Foreman Cavalier outside the employment office. Cavalier, who was
now foreman of both the welding and sheet metal departments having assumed fore-
manship of the latter department during the strike, asked Roslewski if he was ready
to go back to work. Upon Roslewski's reply that he could go to work the next morn-
ing, Cavalier said he would check with the employment office to see if it could be
arranged. Cavalier then went into Powell's office and Roslewski, who was waiting
outside, overheard Cavalier say, "He's ready to go back to work in the morning,"
but could hear no more. Cavalier evidently did not get Powell's approval because
when he emerged from the office he told Roslewski, "Well, you'll be hearing from
us pretty soon." 5 Later in the same day Cavalier again spoke to Roslewski saying
he would like to have him "back, bad." Cavalier took Roslewski's written notation
of a telephone number where Roslewski could be reached and said he would give it to
Powell
On October 21, 2 days later, Roslewski asked Powell about his chances of getting
back to work and reminded Powell that he was certified as a heliarc welder as well
as being able to do sheet metal layout work. Roslewski also pointed out to Powell
that in view of his experience in the fabrication of heavier metals he could "fit in
very . well" in "the new shop they were opening up for the fabrication of the
funnels," where heavier metals were to be used. Powell replied that he "should
be back to work soon." However, Roslewski heard nothing from the Respondent
until December 22 when he received a message stating that Cavalier wanted to see
him. When he saw Cavalier the next day the latter said, "I'd like to have you back
bad" and went on to say that he had spoken for Roslewski the night before and that
very same morning and then wound up by stating, "I just can't do a damn thing
for you."
Powell was the only witness called by the Respondent. It was Powell who made
the final determination not to hire Roslewski. The Respondent made no expla-
nation of its failure to call Cavalier who did not testify at the hearing While the
evidence reveals no substantial conflicts in testimony I still feel it necessary to set
forth my appraisal of Powell's credibility based on my observation of his demeanor
and conduct because Powell's motivation and good faith, in the light of the prima
facie case made out by the General Counsel, are in issue. If I were to believe the
reasons asserted by Powell in not rehiring Roslewski, that would result in a dis-
missal of his case so far as I am concerned. On the other hand, if I were persuaded
that his professed reasons were not the true ones then I would have to seek the real
motivation. While I found Powell to be an affable and friendly witness his answers
at times were somewhat vague, obscure, and contradictory. I had the definite im-
pression that he was not entirely frank and straightforward and had to be pressed
before he would reveal some clarifying details My impression of Powell's de-
meanor and conduct is borne out by a careful analysis of the record. For example,
Powell's answers on one vital incident concerning Roslewski were definitely mislead-
ing and unless I had asked some clarifying questions I would have been left with
an erroneous conception of the true facts.
In examining Powell's reasons for not hiring Roslewski I will first quote from an
affidavit submitted by Powell in response to a request for certain statistical infor-
mation concerning job openings after October 19, 1953:
Arthur V. Roslewski was employed as a first class sheet metal lay-out man,
and since October 19, 1953, there has been only one employee employed as a
first class sheet metal lay-out man in the department. This occurred on Decem-
ber 28, 1953. Other employment of first class sheet metal lay-out men have
4 Roslewski was told upon his inquiry in the personnel office on October 21 that he had
been replaced as a sheet metal man and not as a welder Since Roslewski had been per-
forming half of his time in each capacity this would seem to indicate that the replacement
for Roslewski was able to do only the sheet metal work Whether this is so or not the
inference seems clear that Roslewski's capacity to do both the sheet metal and welding
work was unusual and that Roslewski was deemed to be a highly desirable employee is
evidenced by the attempts of Foreman Cavalier to reline him as hereinafter related
6 Powell testified that the procedure in considering a displaced striker for reemployment
was to send his "application to the foreman to see if there was it vacancy If there
was a vacancy he [the foreman] would make a notation on the application, 'There is a
vacancy This man to be hn ed ' It would come back to payroll and to me and we would
get in touch with the individual " At another point Powell testified "that the application
would be taken and processed and if there was a vacancy in any of the departments, they
[the applicants] would be informed of such " While it foreman could select an applicant,
the hiring and classification glade were subject to Powell's approval
1452 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
been old striking employees who returned to jobs which they held prior to the
strike.
There have been no new employees hired as first class welders in the welding
department since October 19, 1953.
The Respondent hired new employees as second- and third-class welders subse-
quent to Roslewski's application for work as a new employee. These welders are
paid somewhat less per hour than a first-class welder. Presumably, too, the Re-
spondent hired second- and third-class sheet metal workers for it advertised after
October 19 for sheet metal workers without specifying first, second or third class
There is no indication whatsoever in Roslewski's testimony that he was limiting his
application for employment as a new employee to first-class work or that he would
not consider a lesser grade, rather it indicates complete acceptance of the Re-
spondent's condition that he apply as a new employee. While Powell testified that
he "understood" that when Roslewski reminded him on October 21 that he could also
do welding work Roslewski was interested only in the first-class grade, nevertheless
Powell himself quotes Roslewski as using the following language: "He said, `I used to
weld and used to do quite a bit of welding, and if there is an opening in welding I
would like to be put on there, sir.' " Although there appears to be no qualification in
this language, nevertheless, when I asked Powell why he did not offer a second-class
welder's job to Roslewski, Powell replied, because "He had not indicated he would
take one, sir."
Powell himself was inconsistent on this point because he testified that when Ros-
lewski reminded him on October 21 that he could also do welding work
I went back in to check to see if there was an opening and if we could fit him
into the second or third class or even helper at that point, but at that time we
had only one welding machine, if I may make myself clear, and lust so many peo-
ple can weld on one machine and we were having to run two shifts and we were
hoping to get another machine. [Emphasis supplied.] 6
Just before making this answer Powell had testified that when Roslewski applied for
reemployment the Respondent did have vacancies for "Some second and third-class
and some helpers in the welding shop, the arc welding," which type of welding he
admitted Roslewski was qualified to do. If Powell was correct in his understand-
ing that Roslewski was not interested in any grade less than first class then I cannot
conceive of why Powell would check to see if he could fit Roslewski into a lesser
grade
At the express direction of the Respondent, Roslewski applied for employment as
a new employee. The record is clear that Roslewski was not limiting his applica-
tion to his old position. Obviously, therefore, he was an applicant for any vacant
position he was qualified to perform. Nevertheless, the Respondent takes the
anomalous position that while it considered the displaced or discharged strikers as
applicants for new employment, yet when it came to filling vacancies it considered
these applicants as if they were old employees who were seeking and were entitled
to reinstatement only if there were a vacancy in the very job and classification grade
they held at the time of their discharge. The term "reinstatement" as developed under
the Act also includes restoration to former rights Respondent, within the meaning
of the doctrine established by N. L. R B v. Mackay Radio & Telegraph Co., 304
U S 333, could, as it intended to do here, deny reinstatement rights to economic
strikers whose jobs had been permanently filled. Evidently the Respondent wanted
to have its cake and eat it too. While it is possible that the Respondent might have
in fact acted on such an illogical position, unfortunately for it, the record demon-
strates the contrary to be true.
What I have said about Roslewski in this respect applies equally to claimants
Boland, Schepp, and Larsen as well Since the Respondent had discharged these
employees and had required them to apply as new employees their applications
could not reasonably be taken to mean that they were claiming specific identifiable
jobs to which they regarded themselves still entitled. They capitulated to the
Respondent's terms and imposed none of their own. They were willing to come
back to work for the Respondent as new employees either in capacities for which
past employment with the Respondent qualified them or in any other capacity
they were qualified for by their experience, whether previously utilized by the
Respondent or not. In other words, they had no reason to expect that their
O Later in his testimony Powell testified, "We were trying to find some more machines
whereby we could have some more first-class welders to put on " Powell never indicated
whether the Respondent did get more machines But since additional second- and third-
class welders were hired I assume that even they had to have welding machines.
BROWARD MARINE, INC. 1453
applications for new employment would be treated less favorably than applications
for employment from individuals seeking work for the first time
I am persuaded and find that Roslewski applied for a sheet metal and/or welding
position without qualification as to class and that it was so understood by Powell.
I find that Powell saw fit not to hire Roslewski for second- or third-class vacancies
in these positions that existed then and later for reasons other than those asserted
at the hearing by Powell
I am also persuaded and find that Foreman Cavalier wanted to hire Roslewski
about December 23, 1953, for a vacancy that existed then for a first-class sheet
metal layout man and it was only after Powell disapproved of Cavalier's choice
of Roslewski that Cavalier suggested another applicant who was hired, as the
Respondent concedes, on December 28, 1953 It will be remembered that on
December 23 Cavalier told Roslewski that he had been unsuccessful in his efforts
to hire Roslewski and that he could not do "a damn thing" for him It was when
Powell was questioned about the circumstances of the hiring of the new first-class
sheet metal man on December 28 that his answers were demonstrably misleading,
a factor adverted to above Powell testified
The WITNESS We had one vacancy, and Cavalier was trying to spread him-
self a little too thin between all his departments and we were trying to get a
lead man in the sheet metal department and he came in one day, Pete Cavalier,
with an application and he said he felt that he might have the lead man for the
depailinent and at the time I think the man's name was Measel and I said,
"If you think you have got the lead man, go ahead, Pete, because we have
to have a lead man in that department "
TRIAL EXAMINER Well, a lead man is a first-class sheetmetal. layout man,
isn't hey
The WITNESS Yes, sir, plus the fact that he has to know how to handle men.
TRIAL EXAMINER Had this man Nleasel as far as you know or as far as
the foreman Cavalier told you had any prior experience in the handling of
men')
The WITNESS Yes, sir, he did
TRIAL EXAMINER And that is the job that you stated, in your affidavit, known
as Trial Examiner's Exhibit No. 1, this man Measel is the man you referred
to as having been hired as a first-class sheetmetal man
The WITNESS: That's right That is the man, sir
TRIAL EXAMINER. I would like to ask you whether you considered Roslewski
for that job.
The WITNESS We discussed it, yes, sir, and it was determined, the fact is,
that we didn't think he was able to handle men because it is a separate depart-
ment removed from the welding and we didn't think Roslewski could handle
the men in the department That was the discussion we had. [Emphasis
supplied.]
While Cavalier apparently initiated the hiring of Measel, Powell did not make
clear that Cavalier did so only after failing to get Powell's approval to hire Roslewskr °
Furthermore, Powell indicates in using the word "we" that Cavalier joined with
Powell in making the determination that Roslewski was not qualified in handling
men Further questioning, however, developed that Powell made the determination:
TRIAL EXAMINER' I understand that Roslewski did welding, heliarc welding.
The WITNESS: Yes, sir. He also did sheetmetal work and split up the work
about50-50.
TRIAL EXAMINER: But I couldn't understand why you say he wouldn't be
suited for it because of the welding.
Mr. BOWDEN. He didn't finish. I know what he meant to say.
TRIAL EXAMINER' I would like for him to finish it.
Mr. BOWDEN. Yes.
The WITNESS- Because I think what I was saying about the welding is the
fact that the man that we had hired to be the lead man was a first-class sheet-
metal and layout man, and we felt like he could handle men by his application
and then Pete Cavalier would be removed more or less, or be relieved more
"Earlier in his testimony , Powell stated that Cavalier did tell him that he wanted to
hire Roslewski and although lie was not quite sure of the date believed the request occurred
around December 1 Powell testified that Roslewski was not hired then because there was
no vacancy for hum In reconstructing what occurred I find that Cavalier spoke to Powell
about hiring Roslewski on about December 22 for the lead man's position in the sheet metal
department which was vacant , and failed to get Powell ' s approval.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or less of having to keep his fingers on all of the jobs in the sheetmetal and go
back to the welding where his primary foremanship is
TRIAL EXAMINER: I understand now. What I was trying to get at is, if you
felt or if Cavalier felt that Roslewski didn't have the qualifications of a lead
man although he was an able first-class sheetmetal layout man
The WITNESS: That's correct, sir
TRIAL EXAMINER. Do you know who made that deteiniinalion2 Did )ou
make it or did the Foreman Cavalier make it2
The WITNESS. No, sir, I believe I made it. I feel sure I made that deteimma-
nation. [Emphasis supplied.]
I am persuaded and find that Foreman Cavalier wanted to hire Roslewski for the
lead man vacancy, a position which he believed Roslewski was qualified to fill, and
only after failing to get Powell's approval of his recommendation did he suggest that
the new applicant named Measel be hired.
I have found that vacancies existed for second- or third-class lobs which Roslewski
was qualified to fill, as well as for the lead man first-class sheet metal position I
have also found that Foreman Cavalier attempted on a number of occasions to hire
Roslewski. As mentioned above, Roslewski did not abandon his picketing on
October 19 when the main body of strikers returned to work. He was an active mem-
ber of the negotiating committee and did not hesitate to express his views, as the
evidence clearly indicates. He was also shop steward of his department and acting
financial secretary. I also find that his activity as a picket captain in charge of I of
the Union's 2 picket lines was also known to the Respondent
In arriving at a determination of Powell's true motive in not hiring Roslewski I gave
very careful consideration to the complete absence of any overt hostility to the
Union In other words, I have judged his conduct against a background tree of em-
ployer hostility to the Union. Nevertheless, I cannot ignore the plain meaning of the
piuna facie case of discrimination made out by the General Counsel as to Roslewski
despite the absence of direct evidence of antiunion motivation. The facts adduced by
the General Counsel give rise to what appears to me to be a fair and reasonable infer-
ence that Roslewski's prominent union and picketing activities were the basis for
his not being hired. And in the absence of persuasive evidence refuting of dispelling
this inference, I must conclude that the refusal to hire him was discriminatorily mo-
tivated. I have examined Powell's testimony with great care, an examination con-
firming my appraisal of his demeanor. He has failed to come forward with a con-
vincing explanation to dispel the clear inference of discrimination established by the
General Counsel's prima facie case.8 I am persuaded that the General Counsel has
sustained his burden of proof upon the preponderance of all of the evidence that
Roslewski was discriminated against within the meaning of Section 8 (a) (3) of
the Act.9
C. Leonard Boland
Boland was hired on December 2, 1952, as a third-class marine electrician and
was assigned to, and continued to work in, what was known as the degaussing gang
until the September 1 strike. About the middle of March 1953, Boland was promoted
to the position of second-class electrician Of the 6 men who were doing degaussing
work at the time of the strike 4 were classified as first-class electricians and 2, Boland
included, were second-class.
On October 10 Boland received a letter stating that his position had been filled
and he was therefore discharged. Apparently 2 others in the same degaussing gang
of the 5 who joined the strike received similar notices, but all except Boland were
taken back by Respondent. According to Boland, there were about 33 electricians
in all working on navy ships at the time of the strike and most of them joined in it.
Boland knew of 10 electricians who received replacement or discharge notices who
were called back to work for the Respondent after the termination of the strike.
Boland was recording secretary of the Union and his name and title appeared on
numerous union notices posted on the company bulletin boards. Boland and
Roslewski were in charge of the two picket lines before the shipyard during the strike.
Boland was on the committee that accompanied Business Representative White when
the latter handed the reinstatement letter to President Denison Boland also continued
to picket until about November 2, 1953, and attended the last bargaining session with
8 Where the record shows a prima facie case of discrimination , the employer may propel ly
be called upon to explain his conduct N L R B v Remington Rand, 94 F 2d 862 (C A
2) , Montgomery iVaid & Co v N L R B , 107 F 2d 555, 560 (C A 7)
It is well settled that a refusal to hue on account of union membership or activity is
a violation of the Act See Phelps Dodge Corp v N. L R B , 313 U. S 177.
BROWARD MARINE, INC. 1455
the Respondent that took place sometime in the same month. I find that Boland's
prominent union and picketing activities were known to the Respondent.
Boland's original employment application to the Respondent listed the 23 years'
experience he had in marine electrical work which included United States Navy
experience in radio equipment and its installation. It is clear that Boland was a
capable employee and was considered as such by the Company, his foreman having
praised his work. As pointed out earlier, the Respondent treated Boland's request
for reinstatement as an application for new employment and tailed to hire him
despite the fact that it continued to advertise for "electricians with marine experience."
The reason it did not do so, the Respondent states, is because "Boland was employed
in the degaussing department as a second-class degausser and that no person has
been employed as a degausser second-class since Boland was replaced and dis-
charged . [and] that no one has been employed as a second-class electrician
since October 19, 1953."
It is clear, however, that subsequent to the strike the Respondent had vacancies
for. and hired, third-class electricians and knew that Boland was fully qualified to
do this work. The reason Powell asserted for not offering such a job to Boland is
because Boland "made no indication that he would take third-class":
TRIAL EXAMINER: If he had so indicated you would have-
The WITNESS- Definitely, sir.
TRIAL EXAMINER: -taken him back as a third-class electrician?
The WITNESS- Yes, sir.
TRIAL EXAMINER: You knew he was looking for work?
The WITNESS Yes, sir.
TRIAL EXAMINER: I believe he testified he either spoke to you or Mr. Edwards
about it, that he would like to go back to work and filed a new application.
The WITNESS. Yes, sir.
TRIAL EXAMINER: Do I get it that the company would not on its own initiative
seek to hire back a man in a classification if there was a vacancy in a lower
classification unless the man first told the company or you or someone else
who had the responsibility that he would come back in a lower classification;
you wouldn't attempt to communicate with him?
The WITNESS: No, sir.
TRIAL EXAMINER: Continue, please.
Q. (By Mr. Hancock.) Do you mean to say that you did that in every instance?
A. Practically every instance, yes, sir. [Emphasis supplied.]
In my discussion of the Roslewski case, I referred to Powell's inconsistency on
this point and for the same considerations there expressed I cannot give credence
to it in the case of Boland. In order to get the full flavor of Powell's equivocal
answers to questions that go to the very nub of this case I am again compelled to
resort to quotations from the transcript.
TRIAL EXAMINER. Were painters classified as first and second-class?
The WITNESS. Yes.
TRIAL EXAMINER: Suppose you had a vacancy for a second-class painter and
you looked in your files and you found a man who was a first-class painter.
Would you get in touch with him to find out whether he might possibly want to
take a little less and take a job as a second-class painter?
The WITNESS' It would depend some time upon the urgency of it. If it was
urgent-if it was not urgent, in other words, the production was not being
pushed, we would go to our second class.
TRIAL EXAMINER: Suppose you did not have a second class available but you
had on file a man who was working for you before and he had worked for you
as a first-class painter and you needed a second class and you knew he was a
good painter except that he was getting a little higher rate. Would you try to
get in touch with him to find out if he wouldn't take a second class job if you
didn't have a first class job available?
The WITNESS: Not always, we didn't sir. In some instances we might.
[Emphasis supplied.]
TRIAL EXAMINER: Under what circumstances would you and under what
circumstances would you not?
The WITNESS: Where we had painters-painters are very, if I may say so,
very easy to get.
Powell never did make clear to me under what circumstances he would and under
what circumstances he would not consider a replaced striker for a lower classified
position than the one held by him at the time of the strike. Of one thing this
record does persuade me and that is if it were not for the prominence and type
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Boland's union and picketing activities that the Respondent would have offered
him a position as a third-class electrician just as it did in the case of applicant
Fred Kirk who answered the Respondent's advertisements for electricians with
marine experience.
Kirk, who had never previously worked for the Respondent, was hired as a third-
class electrician on October 27, 1953, 8 days after Boland was instructed to apply
as a new employee. He was assigned to the degaussing gang and up to the day he
testified at the hearing had worked 75 percent of the time teamed up with first-class
electrician Frank McGill. Boland, over a period of about 2 months just prior to the
strike, had been working with McGill. While there were only 6 men in the de-
gaussing gang at the time of the strike, there were about 9 in the gang when Kirk
was hired and about the same number on the day he testified.
I find that the Respondent discriminatorily failed to offer Boland a position as a
third-class electrician in violation of Section 8 (a) (3) and (1) of the Act.
D. John Schepp
Schepp was hired as a second-class carpenter in November 1951 and did "rough"
carpentry work such as framing of the boats, building scaffolds, and various main-
tenance work. At the time of the September 1 strike, there were about 70 car-
penters, about 25 to 30 of them being "rough" carpenters. At least two of the
carpenters who received replacement notices during the strike, as did Schepp, were
hired after they filed applications for employment as new employees. While Schepp
also applied he was not hired and continued to picket until about the middle of
January.
Although the Respondent maintains that "there have been no second-class car-
penters hired in the Planking Department since October 19, 1953," it advertised
for "ship carpenters" and had vacancies for and hired third-class carpenters in the
ensuing months following October 19 Again, as in the case of Roslewski, Powell
contends that Schepp "indicated to me that he wanted his job back at the same
classification" as justification for not offering Schepp one of the third-class carpenter
vacancies. No such qualification appears from the testimony of Schepp. In a con-
veisation Schepp had with Powell early one morning in November or December
1953, while Schepp was still picketing the shipyard, he asked Powell, "How's chances
for a job," and when Powell said, "Why don't you come in?" Schepp replied,
"0. K., this afternoon."
Schepp did not go in to see Powell as a result of a rumor he had heard Refer-
ence has been made earlier to McDonald's request of Powell for the names of those
strikers who faced no prospect of recall by the Company. McDonald testified that
Powell finally told him that Schepp and Larsen "just weren't wanted in the yard " 10
I find that this information in some way reached Schepp and caused him to believe
that it was futile to accept Powell's invitation.
It will be remembered that Powell testified that he did not offer a third-class
electrician's position to Boland because Boland had made no express indication
that he would take a lower classification Powell's basic inconsistency in not con-
sidering Boland for a lower-ranking job becomes apparent when he maintains that
he answered Schepp's oral request for a position, adverted to above, by inviting
him in to his office for the purpose of ascertaining whether Schepp would be inter-
ested in considering a third-class carpenter's vacancy This, despite Powell's asser-
tion that Schepp, unlike Boland, had already indicated that he only wanted the
higher-ranking job. Again, I believe it illuminating to quote Powell:
TRIAL EXAMINER: I just happened to take painters as an example in order to
keep away from some of the people in the categories that we are interested
in but I would like to get to Mr. Schepp, to be frank with you, and find out if
he was out there looking for a job and you had a third-class carpenter job and
he was a second class, and he had applied for the job, what I want to know
from you is why you didn't offer him a third-class job.
30 Powell's version has an entirely different thrust. Admitting that McDonald sought
information about the prospect for jobs for these men who had not been recalled after the
strike was called off Powell testified that he told McDonald "there is not a vacancy at
the present time for Larsen and Schepp " He mentioned no other names McDonald's
version is credited Corroborative indication that the Company did not want to hire Schepp
and Larsen is contained in a letter that Respondent' s counsel sent to a Board representative
on January 28, 1954. Further reference will be made to this letter later.
BROWARD MARINE, INC. 1457
The WITNESS: In the instance of carpenters , sir, in that department the
woodworking department we are full in the employment. We didn't have oc-
casion to have that come up, sir.
TRIAL. EXAMINER. That is what I want to know. You mean you didn't have
any vacancies at the .time Mr. Schepp applied for a job? He was a carpenter,
I believe.
The WITNESS. Yes, sir, he was, sir.
TRIAL. EXAMINER: He was a second-class carpenter?
The WITNESS • Yes, sir.
TRIAL EXAMINER: All right. You had no vacancies then, you are telling me,
from the time he applied for his job, for a job as second-class carpenter, you had
no classification for a third-class-you had no vacancy for a third-class car-
penter there; is that the fact?
The WITNESS: We had some.
TRIAL. EXAMINER: During the next month or two or three?
The WITNESS: Yes, sir. We had some people come in and apply for third
class.
TRIAL. EXAMINER: Did you need any third-class carpenters and did you hire
any.
The WITNESS: Yes, sir, we did.
TRIAL, EXAMINER: What I want to know is, since you knew that Mr. Schepp
was looking for a job, why wouldn't you get in touch with him and ask him
whether he would be interested in taking a third-class carpenter's job
The WITNESS. That was one of the reasons why I wanted to talk to Mr
Schepp at that time, sir.
TRIAL, EXAMINER: You so indicated and that is the reason I asked the question.
The WITNESS: Yes, sir, because the way he indicated to me that he wanted his
job back at the same classification.
TRIAL. EXAMINER: In other words, you wanted to talk to him to find out
whether he would take it, and you would say, "Well, Schepp, I don't happen to
have at the moment a job open for a second-class carpenter but I am pretty sure
within the next week or so," or "Now I need a third-class carpenter, would you
be interested9"
The WITNESS: Yes, sir, that is exactly what I wanted to talk to John about.
TRIAL. EXAMINER: And that is what you meant when you spoke to him on the
picket line and said, "Come to see me, I want to talk to you?"
The WITNESS: Yes, sir.
It must be remembered that Schepp continued to picket the shipyard until about the
middle of January 1954, but other than Powell's invitation to Schepp on the one oc-
casion described no other attempt was made to communictae with him. Powell ex-
plained the procedure it followed when the Company decided to fill a vacancy:
and we had a man on file, . in other words if a form was taken from a
first, second or third-class, we would get in touch with them either by phone or
send a messenger or write them a letter, whichever way we could get hold of them.
Sometimes we would get them by phone. Sometimes we couldn't and we would
send a messenger and if the messenger couldn't find them we would write a
letter.
Since the Respondent told Schepp that if and when it had a vacancy it would com-
municate with him it was unnecessary for Schepp to make an additional request for a
position when he did so in December 1953 The method and manner of the Re-
spondent's communicating with an applicant for new employment whose application
was on file has just been described in Powell's own language. The issue, as I see it, is
whether the Respondent had a vacancy for a position that Schepp was qualified to fill
and whether it failed to communicate with Schepp in its normal manner and method
of communication, assuming such vacancy existed, for reasons other than his union or
picketing activities.
The Respondent did have vacancies for third-class carpenters that Schepp con-
cededly was qualified to fill. I am satisfied from the entire record that Respondent
failed to offer this position to Schepp as it would normally have done even before
Schepp made his additional oral request because it did not want Schepp in the shipyard.
I am also persuaded that Schepp did not inform Powell that he would only be interested
in a second-class carpenter's position. In the letter referred to earlier, Respondent's
counsel wrote to a Board representative after the charges in this case had been filed
and during its investigative stage before the complaint issued, as to its "position" on six
individuals allegedly discriminated against. We are concerned with only 2 of them, to
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wit, Schepp and Larsen, since the other 4 are not in issue in the case at bar. The
Company's position on Schepp as set forth in this letter follows.
This man was in the carpenter gang and one of the main reasons for dissention
[sic] in the carpenter gang inasmuch as he was overclassified. Prior to the
strike most of the adjustments within his group were handled by a foreman and
it developed that Schepp was classified higher, by way of wages, than first class
cabinet makers. He was not a mechanic. Further it was called to the attention
of company officials that Schepp and his family engaged in activities during the
current strike by threats and otherwise which would not create a healthy condi-
tion in the yards should he be rehired.
This position was not advanced during the trial as a basis for refusing to hire Schepp.
Apparently, if the implications of this letter are to be accepted at face value then
Schepp was not wanted in the shipyard, and McDonald, Schepp's authorized repre-
sentative, had been correctly informed and it would have been futile for Schepp to
have seen Powell.
Business Representative White described Roslewski, Boland, Schepp, and Larsen as
being the most active on the two picket lines in front of the shipyard. Schepp was a
member of the welfare committee which consisted of three employees elected to it
shortly after the Union came into being in May 1953. The chairman of this com-
mittee was Viggo Larsen whose case is considered next. Respondent's counsel
makes a noteworthy observation that when Schepp was questioned as to who served
with him on the welfare committee during the stiike he did not mention Laisen but
named two other strikers who assisted him. However, both White and Larsen agree
that Larsen was chairman of this committee. White testified that Schepp was in
charge of the food distribution on the picket line while Larsen handled the raising
of money for the strike fund. It is clear that during the strike Schepp did have two
helpers in the type of strike work he was doing, who, according to Schepp, "just made
up the lists as to how the funds were to be distributed to the needy." Larsen ap-
parently concentrated on the raising of funds and giving "pep" talks to the men.
So when Schepp was questioned as to who served on the welfare committee during the
strike I am satisfied that he was thinking in terms of those who helped him in his par-
ticular function. I am satisfied and find that the Respondent was aware of Schepp's
prominent picketing activities. While unlike Roslewski and Boland in that Schepp's
membership on a union committee was probably unknown to the Respondent prior
to the strike, I credit White's testimony that Roslewski, Boland, Schepp, and Larsen
constituted with McDonald the five employees most prominent during the strike.
They were not, as Respondent contends, "run-of-the-mill" or "garden variety union
members." Since these activities to a large degree occur red in open view on the three
picket lines maintained by the Union, I find that Respondent was aware of them.
I have also weighed the fact that Respondent did reemploy the two strikers who
assisted Schepp. One of them was also a second-class "rough" carpenter who
received a dismissal notice during the strike. Since the Respondent avers that it
hired no second-class carpenters since October 19, 1 can only infer that this replace-
ment striker was hired as a third-class carpenter and as a new employee The
circumstances of his hiring are not set forth in the record The Respondent argues
in part that any alleged discrimination is disproved by its taking back so many
of the strikers. However, of the 5 strikers named in the complaint 4 were per-
manently replaced during the strike and the fifth, McDonald, who was reinstated
to his old position, was not. Furthermore, the Respondent added a night shift and
was in need of experienced employees since it was increasing the number of its
employees and its policy was to take back all the stiikers not replaced. The record
does not reveal how many of the replaced strikers were hired, although it does
show that some were. It will be recalled that when the strike was called off Powell
expressed the belief that all of the replaced strikers would also be hired I find
no merit to Respondent's contention. A discriminatory motive otherwise estab-
lished is not disproved by an employer's showing that he did not weed out every
adherent of the Union. N L R B. v. W. C. Nabois, 196 F. 2d 272, 275-276
(C. A 5), cert. denied, 344 U. S. 865.
While I do not find the facts as to Schepp to be as persuasive as those relating
to Roslewski and Boland there are factors already discussed common to all three
I consider Powell to be a capable executive well aware of his Company's need
of experienced manpower and I have attempted to appraise his actions in the light
of realistic standards of human conduct His failure to consider these claimants
for job vacancies they were qualified to perform in view of all the circumstances
herein discussed is a common denominator in all three cases. If I had a lingering
BROWARD MARINE, INC. 1459
doubt at all concerning my decision as to Schepp that doubt has been resolved
by the entirely different reason given for not hiring Schepp revealed in Respondent's
counsel 's letter of January 28 1 find that the Respondent has discriminatorily
refused to hire Schepp in violation of Section 8 (a) (3) and (1) of the Act.
E. Viggo Larsen
Larsen was employed by the Respondent on January 8, 1953, after applying for
a position as a ship rigger. In filling out his application for employment, Larsen,
who had also had considerable experience as a maintenance engineer in residential
and loft buildings, only listed his prior experience as a first-class ship rigger. The
Company decided to hire Larsen even though it was not ready for ship-rigging
work and use him in another capacity in view of the scarcity of ship riggers in
that locality. Larsen was assigned to the rigging gang and listed as a carpenter
although he was not called upon to do any caipentry work and had no prior
carpentry experience After about 2 weeks in the rigging gang Larsen was trans-
ferred to the pipefitting department and was put to work making brackets securing
the pipes already installed by the pipefitters, although he had no prior experience
in this type of work. He continued in this job until he joined in the September 1
strike
During the strike Larsen received a notice saying that his position had been
filled. As a discharged employee Larsen applied for employment on about October
19 as a new employee. Unlike the other applicants who merely signed a new
application form, Larsen listed all of his prior experience since he had not done
so in his original employment application. This was done, Larsen testified, so
that the Respondent would have full knowledge of his qualifications and if it did not
have an opening "in one particular field" the Company "might offer me some other
kind of lob " Larsen, however, received no offer despite the fact that he continued
to picket until about December 6 and made several inquiries of both his foreman
and Powell for a job.
The Respondent's position as to Larsen is that "before the strike there were three
men employed in the bracket department of the pipe shop and that two of these three
returned to their old positions and that Larsen was replaced with another worker.
That no one has been hired in the bracket department since Larsen was replaced."
Larsen testified that when, on an occasion several weeks after the strike ended, he
spoke to Foreman Mahoney of the pipe shop about a job, the latter replied that
there were then six men doing the bracket work. Mahoney did not testify. Al-
though this throws some doubt on Powell's implication that no new employees were
hired in this department, nevertheless, in view of the General Counsel's inability
to obtain the original records of the Respondent showing what jobs had been
filled after October 19 and the testimony of both Powell and McDonald that only
2 men were doing bracket work at the time of the hearing, I credit Powell's asser-
tion that the Company's records show that no one has been hired in the bracket
department since Larsen was replaced.
I have already described Larsen's union activities and his role as chairman of
the welfare committee. I have also indicated my belief that Powell did not want
either Schepp or Larsen back in the shipyard. Reference has been made to the
Respondent's counsel's letter of January 28, 1954, setting forth reasons different
from those asserted at the hearing for not hiring Schepp. The same is true as to
Larsen. As to him the letter states.
This employee was not rehired by the Company due to previous experience
with him and from the fact that he is a walker, talker and disciplinary problem.
No such reasons were advanced at the hearing for not hiring Larsen.
If the General Counsel had been able to establish to my satisfaction that subse-
quent to October 19, 1953, the Respondent had a vacancy for a position that Larsen
was qualified to fill, I would find a discriminatory refusal to hire him as I did in the
case of Schepp. However, I do not believe that the General Counsel has sustained
his burden in this respect. I have already found that there were no vacancies for
bracket men. Nor was there any proof that the Respondent hired any ship riggers.
The only advertisement listing riggers covered the latter period of the strike and
ran from October 11 to 21 or 22. The strike was called off on October 19. None of
the subsequent advertisements mentioned riggers. On this basis I cannot find, in
the absence of further proof, that the Respondent had vacancies for ship riggers sub-
sequent to October 19. Although Larsen had experience as a maintenance engi-
369028-56-vol 112-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neer there is insufficient proof that the Respondent had vacancies for maintenance
men. Although the Company used maintenance men it advertised for none subse-
quent to October 19. Nor am I able to infer on the basis of this record that being
a maintenance engineer necessarily qualified Larsen for jobs the Respondent did
advertise for such as plumbers or electricians.
I will therefore recommend that the complaint be dismissed as to Larsen.
F. James McDonald
The case of McDonald is unlike the others. The General Counsel contends that
he was laid off for 1 week because of his union and strike activities. McDonald
was hired on January 22, 1953, as a pipefitter and has worked in that capacity since.
He became shop steward of his department and when he joined in the strike of Sep-
tember 1 he was vice president of the Union. McDonald did not receive a replace-
ment notice and returned to work about October 28.
On November 18, 1953, McDonald was informed that he was laid off for a week.
When he asked his foreman, Tom Mahoney, for the reason, the latter replied, "No
tools." When McDonald said that Mahoney knew that his tools had been stolen,
the foreman replied, "Well, that's it. You'll have to take a week off."
It was a requirement of the Respondent that employees working as skilled crafts-
men, such as the pipefitters, supply their own basic hand tools McDonald admitted
being aware of this requirement and of supplying his own tools. Early in August,
however, McDonald's tools were stolen and McDonald informed Mahoney of the
theft. Instead of buying a complete set of tools McDonald purchased only a hack-
saw, a file, and a pair of pliers. Just a few days before the strike the hacksaw was
stolen. After the strike McDonald did not purchase additional tools, those that he
needed in his work he borrowed from other pipefitters. Evidently this was not an
uncommon practice and not all men had complete sets of the required tools How-
ever, that McDonald knew that he had been remiss and lax in his obligation to acquire
a complete set of tools is clear from the following testimony-
TRIAL EXAMINER: Did you have any tools at all at the time you were laid off')
The WITNESS. When I was laid off?
TRIAL EXAMINER: Yes, at that time
The WITNESS • Outside of a file; no sir.
TRIAL EXAMINER' Did you expect then to continue working without having the
required tools?
The WITNESS: No, sir.
TRIAL EXAMINER: You intended to get the tools at some time?
The WITNESS: Yes, sir.
I cannot hazard how long McDonald would have continued to procrastinate since he
acquired the necessary complement of tools when laid off for the week.
Not only was McDonald vice president of the Union but he was also in charge
of the Union's picket line at Port Everglades, an aiea some miles from the Re-
spondent's shipyard where the minesweepers received their final fittings before
completion. McDonald's prominent union activities were without question known
to Respondent and also to Foreman Mahoney who, so far as the record shows,
independently and without consultation with any other official of the Respondent
made the decision to suspend McDonald for I week At this time Powell was on
a trip to the west coast and only learned of Mahoney's action upon his return
The General Counsel contends that the Respondent wanted to make an example
of McDonald because of his union activities, otherwise it would have at best merely
given him a warning for his violation of the requirement concerning tools On
this state of the record I cannot agree with the General Counsel He failed to show
that the Respondent had knowledge that other pipefitters lacked the required tools
or that any of them had attempted to get by for 6 or 7 working weeks without them
as McDonald had done. Mahoney had been made aware of McDonald's loss of
tools back in August when their theft was reported to Mahoney by McDonald
himself. Having this knowledge, Mahoney was placed on notice and undoubtedly
kept an eye peeled to see if McDonald replaced the stolen tools. True, he did
not warn McDonald but was under no obligation to do so. However, he did wait
several working weeks before deciding that McDonald had been given sufficient
tiem to acquire the necessary tools. No antiunion sentiments or expressions were
ever attributed to Mahoney or indeed to any official of the Respondent There
is no substantial evidence warranting the inference that Mahoney was motivated
by union considerations in suspending McDonald.
BROWARD MARINE, INC. 1461
The General Counsel has failed to sustain his burden of proving by a prepond-
erance of the evidence that McDonald was discriminated against because of his
union activities . I will therefore recommend that as to him the complaint be dis-
missed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent violated Section 8 (a) (3) and (1) of the
Act by refusing to employ Arthur Roslewski, Leonard Boland, and John Schepp
subsequent to October 19, 1953, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminated in regard to the hire of Roslewski,
Boland, and Schepp, I shall recommend that the Respondent offer to each of them
immediate employment with such seniority or other rights and privileges each
would have enjoyed had each been employed on the dates when, absent the Re-
spondent 's discrimination against them , the Respondent would have employed
them It is further recommended that the Respondent make them whole for any
loss of pay each may have suffered as a result of the Respondent's discriminatory
refusal to hire them from the respective dates of discrimination against the dis-
criminatees to the dates when each is offered employment The date from which
back pay shall run in favor of each discnminatee shall be determined upon com-
pliance with this recommended order, by fixing the date on which each would
have been employed by the Respondent in accordance with nond scrimmatory hiring
practices. In fixing the back pay due Roslewski it is specifically noted that absent
discrimination Roslewski would have been promoted on about December 23, 1953,
from any second-class position he should have been holding then to a first-class
sheet metal worker's position.
The computation of back pay shall include a deduction of the net earnings of
each discrimmatee to be computed on a quarterly has s in the manner established
by the Boaid in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings
in one particular quarter shall have no effect upon the back-pay liability for any
other quarter. It is also recommended that the Respondent make available to the
Board, upon request, payroll and other records to facilitate the checking of the
amount of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, and disclose a
propensity on its part to continue, although not necessarily by the same means, to
defeat self-organization of its employees, it will also be recommended that the Re-
spondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. District Lodge No. 40 and Local Lodge No. 1535 of the International Asso-
ciation of Machinists, AFL, are labor organizations within the meaning of Section
2 (5) of the Act
2. By discriminating in regard to the hire of Arthur Roslewski, Leonard Boland,
and John Schepp, thereby discouraging membership in the Union, the Respondent
has engagec in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act, and has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed by Section 7 of the Act thereby engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices as alleged in the
complaint by reason of its refusal to hire Viggo Larsen and by reason of its dis-
ciplinary suspension of James McDonald.
[Recommendations omitted from publication I
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL 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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in District Lodge No. 40 and Local
Lodge No. 1535 of the International Association of Machinists, AFL, or any other
labor organization, by discriminating in regard to the hire of employees.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join the aforesaid labor organization 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, or to refrain from any and all such activities, except to the ex-
tent that such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE WILL offer Arthur Roslewski, Leonard Boland, and John Schepp immediate
and suitable employment with such seniority or other rights and privileges as
each would have enjoyed but for the discrimination against them, and make them
whole for any loss of pay suffered as a result of the discrimination.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate
in regard to the hire or tenure of employment or any term or condition of employ-
ment against any employee because of membershp in or activity on behalf of any labor
organization.
BROWARD MARINE, INC,
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.
Glauber Water Works and United Steelworkers of America, CIO,
Petitioner . Case No. 1'7-RC-194.9. June 29,1955
SUPPLEMENTAL DECISION AND DIRECTION
On March 7,1955, the Board issued a Decision and Direction of Elec-
tion I in the above-entitled case, in which it found appropriate a unit
of all production and maintenance employees at the Employer's
Omaha, Nebraska, plant, excluding office clerical employees, watch-
men, and supervisors as defined in the Act.
An election was held in the aforementioned unit on March 23, 1955,
and a tally of ballots issued and was furnished the parties on that
date. The tally revealed that 57 of the approximately 60 eligible
voters participated in the election. Of the 57 ballots cast, 26 were for
and 18 were against the Petitioner. Ballots of 13 voters were chal-
lenged. On March 29, 1955, Petitioner filed objections to the conduct
of the election.
1 Not reported in printed volumes of Board Decisions and Orders.
112 NLRB No. 189.