Calmar Steamship Corp.

National Labor Relations Board - Board Decisions

Dec 1, 1939

18 N.L.R.B. 1 (N.L.R.B. 1939)

DECISIONS AND ORDERS OF THE NATIONAL LABOR'
RELATIONS BOARD
In the Matter of CALMAR STEAMSHIP CORPORATION and NATIONAL
MARITIME UNION OF AMERICA
In the Matter of CALMAR STEAMSHIP CORPORATION and MARINE ENGI-
NEERS BENEFICIAL ASSOCIATION No. 5
Cases Nos. C-417 to C-421, inclusive, C-423 to C-406, inclusive,
C-4.'8,1 and C-422, respectively.Decided December 1, 1939
Water Transportation Industry-Employee Status: not ended merely by
termination of voyage ; discontinuance of, where extensive repairs are made-
Discriminations : charge of, not sustained : ( 1) where strike not caused by unfair
labor practices of employer , employer may hire individuals to fill places of
striking employees and need not discharge employees hired during strike when
striking employees seek reinstatement ; (2) employees hired during such a
strike to fill vacancies resulting from strike or other causes need not be mem-
bers of union which ordered general sit-down strike , where employer reasonably
believed union members would sit down if hired, since general sit -down strike
.order of union applying to its members on all the boats of company was not
rescinded at time of hiring, and the union members on several boats had in
fact sat down ; ( 3) under circumstances of case, where general sit -down strike
order of union for employees on all boats of company was not rescinded and
employees on several boats had sat down, employer 's action in replacing
union employees with persons who were not union members held not dis-
criminatory , because such action was reasonable attempt by employer to con-
tinue operation of business during a sit -down strike situation and to avoid
sit-downs reasonably believed imminent and not caused by unfair labor prac-
tices-Complaint : dismissed.
Mr. Charles Y. Latimer, for the Board.
Cravath, De Gersdorff, Swaine and Wood, by Mr. Bruce Bromley,
Mr. John H. Morse, Mr. Harmon Duneombe, and Mr. Joseph C.
France, Jr., of New York City, for the respondent.
Mr. I. Duke Avnet, of Baltimore, Md., and Mr. Max Lustig, of
New York City, for the N. M. U.
Mr. Ernest McCallum, of Baltimore, Md., for the M. E. B. A.
Mr. Paul S. Kuelthau, of counsel to the Board.
'A charge was filed by National Maritime Union of America in regard to each ship
here involved . The ships and their corresponding case numbers are:
Oakmar-------------------- C-417 Pennmar------------------- C-423
Flomar-- ------------.------ C-418 Portmar-------
-
------------- C-424
Losmar--------------.------ C-419 .Yorkmar-------------------- C-425
Calmar--------------------- C-420 Texmar-------------------- C-426
Massmar------------------- C-421 Vermar -------------------- C-428
18 N. L. R. B., No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by National Maritime Union of America,
herein called the N. M. U., and by Marine Engineers Beneficial Asso-
ciation No. 5, herein called the M. E. B. A., the National Labor
Relations Board, herein called the Board,' by the Regional Director
for the Fifth Region (Baltimore, Maryland), issued its complaints,
dated November 27, 1937, against Calmar Steamship Corporation,z
herein called the respondent, alleging that the respondent had en-
gaged in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint based on the charges filed by the N. M. U.,
accompanied by notice of hearing, were duly served upon the re-
spondent and the N. M. U.; and copies of the complaint based on
the charges filed by the M. E. B. A., accompanied by notice of
hearing, were duly served upon the respondent and the M. E. B. A.
On November 19, 1937, the Board, acting pursuant to Article II,
Section 37 (b), of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered the cases consolidated for
purposes of hearing.
In regard to the unfair labor practices, the complaints in sub-
stance alleged that the respondent discharged and refused to rein-
state certain named individuals employed on eight of its ships be-
cause of their union affiliations, thereby discriminating in regard to
their hire and tenure of employment and discouraging membership in
the N. M. U. and the M. E. B. A., and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act. The respondent filed answers, dated De-
cember 4, 1937, denying the alleged unfair labor' practices.
Pursuant to notice, a hearing was held at Baltimore, Maryland,
from December 6 to 17, 1937, and on January 10, 1938, and at New
York City from January 20 to 26, 1938, before Mapes Davidson,
the Trial Examiner duly designated by the Board. The Board, the
N. M. U., and the respondent were represented by counsel ; the
M. E. B. A. was represented by its assistant business agent. in
Baltimore; and all participated in the hearing.
2 Incorrectly designated Calmar Steamship Company in the complaint in Cases Nos.
C-417, C-422, and C-424,
CALMAR STEAMSHIP CORPORATION 3
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to produce evidence bearing upon the issues was afforded
all parties. During the hearing, counsel for the Board made motions
to insert additional names in the complaints and to add new para-
graphs to the complaints based on charges duly filed, alleging unfair
labor practices by the respondent in the removal of crews from two
of the respondent's ships not included in the original complaints.
The Trial Examiner granted, without objection, the motions to add
new paragraphs to the complaints and also granted some of the other
motions, but reserved ruling on others. The rulings of the Trial
Examiner granting the motions are hereby affirmed. At the close of
the Board's case, counsel for the respondent moved to dismiss the
complaints as to all persons alleged therein to have been discrimina-
torily discharged by the respondent, but who had failed to appear and
testify. Ruling was reserved on the motion. At the close of the hear-
ing the Trial Examiner granted a motion by counsel for the Board
to dismiss the complaints without prejudice as to all persons alleged
therein to have been discriminatorily discharged by the respondent
and who had not testified at the hearing.3 In view of the Board's
decision and order, set forth below, this ruling was not prejudicial.
However, a motion to dismiss the complaint as to persons who do not
testify is not proper, and should not ordinarily be granted by the
Trial Examiner when made by any party, where, as here, all the per-
sons named in the complaint are alleged to have been discharged
together, under the same circumstances, and for the same reasons. At
the close of the Board's case, counsel for the respondent moved to
dismiss the complaints on the ground that they were not sustained by
the evidence. The Trial Examiner denied the motion and his ruling
is hereby affirmed. Regardless of the action subsequently taken by
the Board in its decision, a Trial Examiner may deny such a motion
to dismiss made during or at the end of the hearing or may defer
ruling on it until after consideration of the entire record. During
the hearing the Trial Examiner made rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
They are hereby affirmed.
On January 14 and 15, 1938, the respondent took the depositions of
certain witnesses in Seattle, Washington, and on February 14, 1938,
took the depositions of other witnesses in New York City. The Board
3 On February 2, 1938, counsel for the Board and counsel for the respondent entered
into a stipulation regarding the specific persons as to whom the complaints had not been
dismissed and the specific persons as to whom the complaints had been dismissed without
prejudice . Although he testified at the hearing , Godfrey D . Sweet was named in the
stipulation as a person as to whom the complaint had been dismissed. The error is
immaterial in view of the Board 's findings below.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was represented by counsel at the taking of the depositions and full
opportunity to examine and cross-examine the witnesses was accorded
both parties. The depositions were incorporated in the record in these
cases by agreement between the respondent and counsel for the Board.
Objections to the admission of evidence were made during the taking
of the depositions. The Board has reviewed the testimony and finds
that the admission of the evidence is not prejudicial. The objections
are hereby overruled.
On February 23, 1938, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered the cases to be transferred to and
continued before it.
On March 14, 1938, the counsel for the respondent filed an applica-
tion to reopen the record for the purpose of presenting newly dis-
covered evidence. The application was accompanied by an affidavit
of Bruce Bromley, counsel for the respondent, reciting the additional
evidence sought to be adduced 4 On March 22, 1938, counsel for the
N. M. U. filed an answer opposing the application of the respondent
to reopen the record. The Board takes judicial notice of the prior
convictions of certain persons as set forth in the affidavit of counsel
for the respondent, and, therefore, its application to reopen the record
is hereby denied.
On April 2, 1938, counsel for the respondent filed with the Board a
motion to set aside its order of February 23, 1938, transferring the
cases to the Board, and to remand the cases to the Trial Examiner for
an Intermediate Report. On April 5, 1938, the Board denied the
motion.
Pursuant to notices duly served upon all parties, oral argument
was had before the Board in Washington, D. C., on April 7,1938. The
respondent and the N. M. U. were represented by counsel and par-
ticipated in the argument.
The respondent and the N. M. U. filed briefs which the Board has
considered.
On September 3, 1938, the Board issued, and thereafter duly served
upon the parties, an order directing that Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order be issued, and that
the parties have the right within 10 days from the receipt of said
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order to file exceptions, to request oral argument before the
Board, and to request permission to file a brief with the Board.
4 The affidavit recited prior convictions of Charles Hansen and Patrick Whalen, wit-
nesses called by the Board at the hearing and leaders of the N. M. U. In Baltimore, and
of Jesse F . Suttka, who did not testify at the bearing but was referred to at the hearing
as one of the leaders of the N. M. U. in Baltimore.
CALMAR STEAMSHIP CORPORATION 5
On November 8, 1938, the Board issued and duly served upon the
parties Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order. Thereafter the respondent and the N. M. U. filed
exceptions and briefs which the Board has considered. On December
22, 1938, oral argument was had before the Board in Washington,
D. C. The respondent and the N. M. U. appeared by counsel and
participated in the argument. The Board has considered the excep-
tions to the Proposed Findings, Proposed Conclusions of Law, and
Proposed Order, and hereby overrules the N. M. U.'s exceptions and
sustains the respondent's exceptions in so far as they are directed at
the Proposed Findings, Proposed Conclusions of Law, and Proposed
Order in regard to the crews of the Pennmar, Yorkmar, Portmar,
Texmar, and Vermar.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIME RESPONDENT
The respondent, Calmar Steamship Corporation, is incorporated
under the laws of Delaware. All its capital stock is owned by Bethle-
hem Steel Corporation. The respondent is engaged in the transpor-
tation of freight, principally steel and lumber, between ports on the
Atlantic coast of the United States and ports on the Pacific coast of
the United States. The chief ports of call on the Atlantic coast are
Baltimore, Maryland; Philadelphia, Pennsylvania; New York City;
and Boston, Massachusetts. The chief ports of call on the Pacific
coast are San Pedro and San Francisco, California; and Seattle,
Tacoma, and Aberdeen, Washington. The respondent operates 11
ships in this intercoastal trade. Ten of these ships are involved in
these proceedings.
We find that the respondent is engaged in trade, traffic, commerce,
and transportation among the several States, and that the licensed
officers and crews employed on the respondent's ships are directly
engaged in such trade, traffic, commerce, and transportation.
II. THE ORGANIZATIONS INVOLVED
National Maritime Union of America is a labor organization admit-
ting to membership all unlicensed seamen. The Baltimore branch
of the N. M. U. was organized in May 1937 by seamen who seceded
from the International Seamen's Union of America, herein called the
I. S. U. The Baltimore branch is affiliated with the Baltimore Indus-
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trial Council , which is chartered by the Committee for Industrial
Organization.5
Marine Engineers Beneficial Association No. 5 is a labor organiza-
tion admitting to membership licensed engineers on ships operated by
the respondent . It is affiliated with the Committee for Industrial
Organization 6 and with National Marine Engineers ' Beneficial Asso-
ciation, which is its parent organization.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the alleged unfair labor practices
Although the complaints charge no unfair labor practices prior to
September 1937, a knowledge of the events prior to that time is essen-
tial to an understanding of the events occurring in September 1937 and
thereafter. Prior to October 1936 the unlicensed personnel of the
respondent's crews was recruited chiefly from the members of the
I. S. U. In October or November 1936, a strike of seamen employed
on the West Coast of the United States was called and immediately
spread to the East Coast. The strike on the East Coast was not au-
thorized by the I. S. U., but was carried on by an insurgent group
known as the "Rank and File." On the West Coast the seamen were
supported by International Longshoremen's Association, herein called
the I. L. A. This strike, known as the "100-day strike," was settled
in February 1937 by agreements between the West Coast operators
and the West Coast maritime unions. Thereafter, the West Coast
unions refused to load or unload ships or to furnish crew replacements
on ships operating between the East and West Coasts unless the ves-
sels were manned by "Rank and File" seamen or by members of the
West Coast maritime unions . Consequently, as a practical matter, the
East Coast steamship companies operating ships between the East
and West Coasts sought to employ "Rank and File" seamen. Fur-
thermore, a large number of former I. S. U. men on the East Coast
had joined the "Rank and File" and it was virtually impossible to
obtain a crew from any other source. In May 1937, the N. M. U. was
organized by the "Rank and File" group. From that time until
September 1937 the N. M. U. enjoyed the complete support of the
West Coast maritime unions . In September 1937, disputes arose
among the West Coast unions, and they ceased to support the N. M. U.
The respondent is an East Coast operator. Its ships, whose home
port is Baltimore, Maryland, were tied up during the 100-day strike
and when they were recommissioned after the strike the crews were
largely members of the "Rank and File." During the summer of 1937,
6 Now the Congress of Industrial Organizations.
6 See footnote 5, supra.
CALMAR STEAMSHIP CORPORATION 7
95 per cent of the members of the crews on the respondent's ships were
members of the N. M. U. The N. M. U. contends that the respondent
was operating under an oral closed-shop agreement with it in the sum-
mer of 1937 . The evidence does not support that contention. How-
ever, the relations between the N. M. U. and the respondent during
that period appear to have been friendly , and negotiations in regard
to living and working conditions aboard ship were carried on between
them. During that period the N. M. U. obtained many improvements
in living and working conditions on the respondent 's ships.
At the hiring hall maintained by the N. M. U. in Baltimore the
rotary system of hiring is used. The members register as unemployed
when they leave a ship . As the requests for seamen come in, the
persons at the top of the lists are sent to fill them. The N. M. U.
hiring hall in Baltimore was used by members of Marine Cooks and
Stewards Association of the West Coast; Marine Firemen , Oilers,
Watertenders and Wipers Association ; and Sailors ' Union of the
Pacific. These unions had a working arrangement with the N. M. U.
during the summer of 1937 and a few of the men involved in these
proceedings belong to one of those unions . For the sake of con-
venience , however, we shall refer to all of them as members of the
N. M. U., which filed charges in their behalf.
Prior to the advent of the N. M. U., the respondent hired its un-
licensed personnel through Manuel Sanchez, whom it employed as
shipping master in Baltimore . After the organization of the N. M. U.
and because of the unfriendly relations between . Sanchez and the
N. M. U., the respondent 's officers in Baltimore usually called the
N. M. U. hall directly for replacements . However, Sanchez was still
paid by the respondent and, after September 1937, supplied most, if
not all , of the respondent 's seamen.
B. Continuity of employment
Seamen employed by the respondent sign shipping articles for the
duration of a voyage to the Pacific Coast and return to Baltimore.
The respondent contends that when the articles are completed and
the crew have signed off, they are no longer its employees and it has
no obligations toward them . Since the respondent urges this as a
defense for its action in removing N. M. U. crews from many of the
ships here involved , we shall consider this defense at the outset before
proceeding to an examination of the circumstances in connection with
each ship.
The evidence shows that although the signing of articles is a for-
mality observed at the beginning and end of each voyage , seamen
employed by the respondent are continuously employed from voyage
to voyage , unless they are discharged by the officers or leave the ship
283029-41-vol. 18-2
$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voluntarily. Many of the seamen involved in these proceedings had
made two successive voyages on the same ship, being employed on
the port crew between voyages, and some had made three or four voy-
ages in succession. Captain Oscar Kullbom of the Texmar testified
that usually 50 per cent of the crew remained for the next voyage,
while Patrick Whalen, N. M. U. port chairman in Baltimore, testified
that 80 per cent of the crew were retained. The usual custom on the
respondent's ships is for the officers to ask most of the crew to remain
as members of the port crew and to sign for the next voyage. Toward
the end of a voyage, often after the vessel has arrived in port and
the crew are ready to be paid off, the deck officers and the engineers
ask members of the crew whose work has been satisfactory to sign
for the next voyage. The procedure is informal and sometimes the
officers in charge merely asl the crew's delegates to ascertain how
many wish to sign for the next voyage. Oscar Hillstrom, chief
officer of the Yorkmar, testified :
Q. By 11: 00 o'clock had the men been paid off, or hadn't they?
A. They were paying off, because at 11: 00 o'clock, I remember
that, I went in the forecastle to find out how many men were
going to stay, and there was five men then that had made up their
mind they were going to make another trip.. .
This testimony and the testimony of many other witnesses shows
that, although seamen sign on and off articles, their employment, in
the absence of other circumstances, does not terminate with the voyage
but continues from voyage to voyage, as a matter of course, unless
their work is unsatisfactory or they leave the ship voluntarily.
C. The ships and crews involved
The complaint, as amended, alleges that the respondent discharged
certain seamen who were members of the crews of 10 of the respond-
ent's ships because of their membership and activities in the N. M. U.
The testimony at the hearing revealed that the entire N. M. U. crew
on each ship was removed, but only those who were able to appear and
testify at the hearing are named in the complaint as amended.
At the hearing of these cases, the respondent introduced evidence to
show that certain individuals were discharged because they personally
were incompetent. The evidence shows that several seamen were
discharged during the voyage for which they had signed because
of incompetence or insubordination, but the individuals involved in
this proceeding, if they were discharged, were discharged together
with all the members of the crew to which they belonged; and it is
clear that none here involved was singled out and discharged because
of his incompetence. Therefore, we have treated each crew separately
CALMAR STEAMSHIP CORPORATION
as an entity, and have not discussed the individual discharge of each
member.
S. S. Oakmar
The Oakmar arrived in Baltimore on August 17, 1937. The crew
signed off the articles on August 20, and a number of them remained
on the ship as a port crew. Before the end of the voyage demands for
the improvement of the crew's quarters had been presented to the cap-
tain, and he had promised to present them to the respondent's officers.
By September 2 there was a full unlicensed crew of'26 men aboard
the Oakmar. None of them had signed articles for the next voyage,
but the ship was preparing to sail and, if the usual routine had been
followed, articles would have been signed within a day or two. The
usual routine was broken by a sit-down strike on September 2 at 1: 30
p. in. The strike was voted by the crew because of their claim that
the respondent had not fulfilled all their demands in regard to im-
provement of living conditions aboard snip and because of alleged
unfair labor practices with respect to the crews on the ships of the
Ore Steamship Company, another subsidiary of the Bethlehem Steel
Corporation, one of whose ships, the Marore, was lying near the
Oakmar in the shipyard. On September 3, the captain offered to
pay off the crew, but they refused to accept their wages and leave the
ship. Thereupon, the respondent ordered the steward's department
to stop preparing meals, and the food was either locked up or removed
from the ship. The steward, Noel A. McIntosh, who had been serv-
ing meals until that day, then joined the sit-down strike. On Sep-
tember 4, McIntosh was frightened off the ship by guards posted by
the respondent.
On September 6, at the respondent's request, Hansen and several
other union delegates conferred with John F. Gillen, assistant super-
intendent of the respondent, Daniel E. Donovan, the respondent's port
engineer in Baltimore, and Thomas J. W. McClelland, the respond-
ent's superintendent with offices in New York, at the respondent's
office in Baltimore for the purpose of ending the strike. Hansen,
shore delegate for the engine division of the N. M. U., offered to end
the strike and have the men on the Oakmar go back to work if the
respondent would cause certain men to be reinstated by the Ore Steam-
ship Company. The respondent pointed out that it had substantially
complied with the demands for improvement of living conditions on
the Oakmar and requested Hansen to end the strike on the Oakmar
before discussing other demands. Hansen refused and left the con-
ference to consult the men on the Oakmar. Before leaving, however,
he threatened to call a general sit-down strike on all the respondent's
ships.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 7 Hansen sent telegrams to all the respondent's ships
calling a general sit-down strike.7 Since Hansen did not know the
whereabouts of the respondent's ships, the telegrams had no immediate
effect. On September 13, in reply to a telegram from the Portmar in
Tacoma, Washington, which had just received the September 7 tele-
gram, Hansen sent another telegram :
General sit-down strike all Calmar and Ore steamships sit-
down immediately contact any other Calmar ships on the coast
for same action.
After receiving this telegram, the crew of the Portmar sat down on
September 14, and their delegates informed Captain Simmons of the
Portm.ar that the crew had received orders to strike from Baltimore.
Captain Simmons immediately applied to the respondent's agent in
Seattle for instructions. The respondent's New York office learned
of the strike and the manner in which it had been called the same
day. The crew refused to move the ship until September 17, when
they received instructions from Joseph Curran, national president of
the N. M. U., to return the ship to Baltimore.
On September 13, counsel for the respondent applied to the District
Court of the United States for the District of Maryland for an order
to show cause why the sit-down strikers should not be removed from
the Oakmar. At the suggestion of United States District Judge Cole-
man a conference between the respondent and the N. M. U. for the
purpose of settling the controversy was arranged for September 14.
The September 14 conference was attended by Hansen and Whalen,
N. M. U. port chairman in Baltimore, who had been away on vacation
until September 13, representing the N. M. U., and Donovan and Mc-
Clelland representing the respondent." The conference came to naught
because the respondent, pointing out that it had substantially com-
plied with the demands of the Oak-mar crew for improved conditions,
refused to discuss any matters other than the removal of the men from
the Oakmar and would not promise to replace them with N. M. U.
men if they left the ship. Whalen, although he thought the strike ill-
advised and so testified at the hearing, refused to remove the men from
the Oakmar under these circumstances. The telegrams sent by Han-
sen calling a sit-down strike on the respondent's ships were not men-
tioned.
7 The telegrams were sent at the direction of the N. M. U. port committee and its action
was ratified by an N. M. U. meeting in Baltimore. Although the telegrams were sent on
September 7, there is no evidence that any ship received one before September 13, when
the crew of the Portmar was informed of the strike by a representative of American
Radio Telegraphists' Association. The respondent did not learn of this general sit-down
strike call until September 14.
8 Representatives of the M. E. B. A., National Organization Masters, Mates, and Pilots
of America, and American Radio Telegraphists' Association were also present, as well as
other unidentified persons representing the N. M. U.
CALMAR STEAMSHIP CORPORATION 11
On September 17 a hearing on the respondent's order to show cause
was held before Judge Coleman, who directed the United States
marshal to remove the men from the Oakmar.0 The men left the ship
upon the marshal's request.
Thereafter, the respondent obtained a new crew and the Oakmar
sailed on or about September 21. The members of the new crew be-
longed to the Seamen's Division of the International Longshoremen's
Association, herein called the Seamen's Division.10 Since at that time
the respondent had learned of the sit-down on the Portmar in Tacoma
and that it had been called by a telegram from Baltimore, its officials
obtained a new crew from the Seamen's Division, which was the only
available source in view of the general sit-down strike called against
the respondent by the N. M. U.
The complaint proceeds on the theory that the respondent engaged
in an unfair labor practice by discriminating in regard to hire and
tenure of employment to discourage membership in the N. M. U. by
removing the N. M. U. crew from the'Oakmar and replacing it with a
crew from the Seamen's Division. The respondent contends that its
action was not an unfair labor practice. We agree with the respondent.
The striking crew ceased work in connection with a current labor
dispute. They remained employees under Section 2 (3) of the Act,
which provides "The term `employee' shall include ... any indi-
vidual whose work has ceased as a consequence of, or in connection
with, any current labor dispute or because of any unfair labor prac-
tice . . ." Within this definition the strikers remained employees
for the purposes of the Act and were protected against the unfair
labor practices denounced by it." The respondent did not engage in
any unfair labor practices prior to the strike or during the negotia-
tions looking towards its settlement. Nor was it an unfair labor prac-
tice to remove the striking employees from the ship by a court order
and to replace them with others in an effort to operate the ship. As
the Supreme Court of the United States has said in National Labor
Relations Board v. Mackay Radio cC Telegraph Company, 12 "although
Section 13 provides `Nothing in the Act shall be construed so as to
interfere with or impede or diminish in any way the right to strike,'
it does not follow that an employer, guilty of no act denounced by the
statute, has lost the right to protect and continue his business by sup-
9 The Oakinar (D. Md. 193 7). .20 F. Supp. 650.
"Later the American Federation of Labor formed a Seamen's Reorganization Com-
mittee which took over the I. L. A. seamen's organization. For the sake of convenience
we shall refer to both as the Seamen 's Division . For further developments see Matter
of American France Line et at . and International Seamen's Union of America, 7 N. L.
It. B. 439.
11 National Labor Relations Board v. Mackay Radio & Telegraph Company, 304 U. S.
333, 58 S. Ct. 904 (1938).
12 304 U. S. 333, 58 S. Ct. 904 (1938).
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plying places left vacant by strikers. And he is not bound to dis-
charge those hired to fill the places of strikers, upon the election of
the latter to resume their employment, in order to create places for
them."
The respondent did not engage in an unfair labor practice in re-
placing the striking crew only with men from the Seamen's Division,
at a time when the crew of the Losmar, asset forth below, were sitting
down, and when the N. M. U. order of a general sit-down strike on all
the respondent's ships was still unrescinded. We find that the re-
spondent did. not discriminate in regard to the hire and tenure of em-
ployment of Leslie Asher, James Barnes, Raoul Garcia, Hjalmar
Gullicksen, Walter Lyman, Noel McIntosh, Eustocio Rios, and Harold
Winter, members of the crew of the Oakmar. The complaint in so far
as it alleges unfair labor practices with respect to these men will be
dismissed.
Francis J. Duffy was employed on August 30,1937, as third assistant
engineer on. the Oakmar. He was a member of the M. E. B. A. Dur-
ing the strike, Duffy did only such work as was necessary for the
safety of the ship in order to protect his license. Since the N. M. U.
crew was having difficulty getting food aboard the ship, Duffy brought
chocolate and cigarettes to them during the strike. He also turned
on the sanitary and water pumps for the convenience of the crew.
Duffy testified as follows in regard to his discharge on September 18:
Q. Now, what happened between that time and the 18th, the
day of your discharge?
A. Well, things went along smoothly until the morning of the
18th, when I came aboard the ship the morning of the 18th, why
the chief engineer told me that Mr. Donovan wanted to see me
right away, and I asked the chief where he was and he said, "He
is up amid ship," and I went up amid ship and I saw Mr. Donovan,
and he told me good morning, and I said good morning, and he
said, "You are not going to stay aboard this ship, we are going to
put an I. S. U. crew aboard here and you cannotwork with them."
I told him that I would work with any crew as long as it was a
union crew regardless. He said, "No, you better go to the cap-
tain's room and get your money." I said, "All right." So I went
to the captain's room and got my money . . .
Duffy testified further that after he was paid off in the captain's
room, "Mr. Donovan came in and we were ready to walk out and he
told us that. we couldn't work with an I. S. U. crew and that the only
thing that he could do was to pay us off and he said, `In the meantime
when this labor trouble gets straightened out, why, we will call you.' "
CALMAR STEAMSHIP CORPORATION 13
. Donovan testified that when lie informed Duffy on September 18
that a crew from the Seamen's Division was coming aboard, Duffy
declared that he would not work with them and that he desired to be
paid off.
At the time Duffy left, the first and second assistant engineers, mem
bers of the M. E. B. A., also left under practically identical circum
stances. Neither of them testified at the hearing. The second assist.
ant was named in the original complaint but was not available at the
time of the hearing, and his case was dismissed. In accordance with
the respondent's usual custom, the three vacancies were filled with
members of the M. E. B. A.
Duffy's activities during the sit-down strike, during which, accord-
ing to his testimony at the hearing, he communicated nightly with
Hansen of the N. M. U., lend credence to Donovan's testimony that
Duffy refused to sail with the new crew. We find that the respond-
ent did not discriminate in regard to the hire and tenure of employ-
ment of Francis J. Duffy. The complaint, in so far as it alleges un-
fair labor practices in regard to Francis J. Duffy, will be dismissed.
S. S. Losmar
The Losmar arrived in Baltimore on August 30, 1937, and went to
the shipyard for minor repairs. The crew signed off the articles, and a
port crew was hired. The port crew consisted of members of the crew
who wished to make the next voyage and several seamen obtained from
the N. M. U. hall in Baltimore. By September 13 there were 15 un-
licensed seamen in the port crew and the. Losmar, which had been
scheduled to remain in the shipyard for a few days only, was still
there because no loading berth was available. The port crew was
working and had been instructed by the N. M. U. to continue to work,
since the Losm,ar was tied up in the shipyard and a strike was
unnecessary under such circumstances.
On September 13 the officers of the Losmar asked the port crew if
they would sail on the next voyage. The members of the port crew
agreed to sail under the same "west coast articles" they had had on the
previous voyage. "West coast articles" were the articles agreed upon
by the West Coast unions and operators after the 100-day strike and
under which the respondent had been operating since that strike.
Those articles provided for additional pay for overtime and. certain
minimum standards of food and living quarters. West Coast articles
do not provide that all unlicensed men shall be members of the N. M. U.
Thereafter the captain informed Donovan that the port crew would
sail the ship. The respondent decided to obtain the necessary addi-
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional seamen from the Seamen's Division, hoping in this way to insure
the operation of the ship and avoid a repetition of the Oakmar
situation.
On September 14, at approximately 10 a. m., the port crew signed on
the articles for the next voyage. Shortly thereafter 9 or 10 replace-
ments from the Seamen's Division were brought on board and signed
on the articles. The steward's department refused to feed them, and
the port crew refused to work with them. The Losmar was sched-
uled to move from the shipyard that afternoon, but the N. M. U. men
refused to man the lines, and the ship could not be moved. Imme-
diately thereafter the replacements left the ship, and the N. M. U.
men resumed work. The next morning the replacements returned,
and the N. M. U. men again stopped work. The captain assembled
them and ordered them to work, but they refused to do so unless they
were assured that the Seamen's Division men would be replaced by
N. M. U. men.
The N. M. U. men also protested that the number of aliens among
the replacements brought the percentage of aliens among the unli-
censed crew above. the 25 per cent permitted by law. It is apparent,
however, that the real reason for their refusal to sail was the fact that
the replacements were not obtained from the N. M. U. hall.
On September 16 the captain filed with the Bureau of Marine In-
spection and Navigation of the United States Department of Com-
merce charges against the crew for breaking the articles. A hearing
on the charges was held in Baltimore from September 17 to Septem-
ber 24.13 The N. M. U. men attended the hearing and returned to
the ship each night. No work was done by the crew during that pe-
riod. Thereafter they refused to leave the ship, and the respondent
filed a libel with District Court of the United States for the District
of Maryland to have the crew removed from the ship. On September
29 the men left the ship under the impression that an order to show
cause which had been served on them on September 27,, was an order
of the United States District Judge ejecting them from the ship.
Counsel for the N. M. U. and the respondent then agreed that the
strikers would not return to the Losmar except to secure their be-
longings.14 Thereafter the respondent obtained a new crew from the
Seamen's Division, and the Losmar sailed.
The N. M. U. contends that the respondent discriminated against
its members by recruiting replacements for the Losmar from the mem-
bers of the Seamen's Division and by ejecting the N. M. U. men from
the Losmar on September 29. The respondent's position is that it re-
'a The charges were later dismissed. See Order of R. S. Field , Director of the Bureau
of Marine Inspection and Navigation in re S. S. Losmar, dated March 5, 1938.
14 The Losmar ( D. Md. 1937) 20 F. Supp. 887.
CALMAR STEAMSHIP CORPORATION 15
cruited replacements from the Seamen's Division because it had no
assurance that the N. M. U. would sail the ship and it was afraid that
the N. M. U. men would strike the moment the Losmar tried to leave
the shipyard. In view of the fact that the crew on the Oakrraar had
engaged in a sit-down strike and that all of the respondent's N. M. U.
crews had been ordered by Hansen to sit down, we cannot say that the
respondent's fears were unfounded and that it should have disregarded
them and hired members of the N. M. U. The respondent, therefore,
did not discriminate against the N. M. U. in obtaining members of the
Seamen's Division as replacements in order to operate the vessel. Nor
did the respondent discriminate against the N. M. U. crew by its con-
duct after the sit-down occurred, for the reasons stated by us in con-
nection with the Oakmar.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of Oscar Larsen, Frederick L. Walter,
and Peter White, members of the crew of the Losmar. The complaint,
in so far as it alleges unfair labor practices with respect to these men,
will be dismissed.
S. S. Flomar
The Flomar arrived in Baltimore on September 4, and immediately
went to the shipyard for overhauling. The crew was paid off on
September 8, and approximately 20 of them were retained as a port
crew. The Flomar was detained in the shipyard until September 21,
because no loading berth was available. During that time five or six
members of the port crew left and were not replaced. On that clay
Captain Englund of the Flornar asked the members of the port crew
if they wished to sign for the next voyage. They agreed to sail with
a "union" crew.
On September 27 Donovan brought the replacements to the ship.
They were members of the Seamen's Division. Daniel Portee and
Frank J. Gisa, the only members of the unlicensed crew who testified
at the hearing, testified that a full crew of Seamen's Division "goons"
were brought aboard the ship by Donovan on September 27 and that
these "goons" forced the members of the N. M. U. to leave the ship
under threat of physical injury. Portee and Gisa also testified that
the port crew sent a delegation to the captain to protest against the
actions of the "goons" and that the captain advised them to take their
pay and leave the ship. Gisa testified that he would not have sailed
with the Seamen's Division men if he had been given the opportunity.
Harold B. Lapp, Deputy United States Shipping Commissioner
for the port of Baltimore, who was aboard the Komar at the time
the replacements were brought on board, testified that he saw the
Seamen's Division men and that they appeared to be unarmed. He
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also testified that when he asked that the crew be brought together
to hear the articles read, the N. M. U. men refused to come and in-
stead sent a delegate to say that they would not sign on as long as
the Seamen's Division replacements remained aboard. Lapp further
testified that since the N. M. U. men refused to sign, there were not
enough seamen aboard to complete the crew and it was necessary
for him to return the next morning to sign on additional men.
Donovan, Captain Englund, the chief engineer, and the chief
officer denied at the hearing that a larger group of Seamen's Division
men was brought to the Flomar on September 27 than was necessary
to make up a full crew. • The officers of the Flomar testified further
that the N. M. U. men told them they would not sail with the Sea-
men's Division men and wanted to be paid off. The captain denied
receiving a delegation from the port crew protesting the actions of
the Seamen's Division men and testified that the port crew informed
him that they would not sign articles and wished to be paid off.
Donovan testified that at the time he was getting replacements
for the Flomar he felt that the Seamen's Division was the only avail-
able source, since the N. M. U. had called a general sit-down strike
on all of the respondent's ships and that he had been informed by
Captain Englund that the port crew would sail with the members
of any union.
The respondent's action in obtaining replacements from the Sea-
men's Division was not discriminatory. The respondent could not
have been expected at this time to apply to an organization whose
members had sat down on three of its ships and which had called a
general sit-down strike against it, which call had not yet been
rescinded, for replacements for its crews. We find that the N. M. U.
men on the Flomar left the ship voluntarily after the Seamen's Di-
vision men came on board and signed the articles.
We find that the respondent did not discriminate in regard to
the hire and tenure of employment of Daniel Portee and Frank J.
Gisa, members of the crew of the Flomar. The complaint, in so far
as it alleges unfair labor practices in connection with the crew of
the Flomar will be dismissed.
S. S. Calmar
The Calmar arrived in Baltimore on September 27. On the fol-
lowing day the crew was paid off. On September 30 a crew from
the Seamen's Division was signed on, and the vessel sailed on Octo-
ber 2.
Although the respondent introduced evidence to show that the
crew of the Calmar was removed from the ship because of misconduct
CALMAR STEAMSHIP CORPORATION 17
during the voyage, we are satisfied that the respondent removed
them to prevent the tying up of its ship by a sit-down strike.
As long as the general sit-down strike order remained unrescinded,
we must regard the situation as a strike situation. In the case of the
Oakmar and the Losmar, sit-downs actually occurred, and the re-
spondent resorted to the court to secure the removal of the N. M. U.
crews from those two ships. In the case of the Calmar, with the
general sit-down strike call still in effect and the crew of the Losmar
still sitting down, the respondent avoided the necessity of applying
to the court by preventing a sit-down. Under the particular cir-
cumstances of this case, we are of the opinion that its action in this
respect was a measure to insure the operation of the ship during the
strike and was not an unfair labor practice. By so holding we do
not mean to imply that under other circumstances an employer may
discharge employees because he fears they will engage in a sit-down
strike.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of Robert Albarraci, Frederick
Douglas, James Hawkins, Dwight Humphrey,'-' Francisco Martinez,
Tivurcio Martinez, and Juan San Martines, members of the crew of
the Calmar. The complaint, in so far as it alleges unfair labor
practices with respect to these men, will be dismissed.
S. S. Massmar
The Massmar arrived in Baltimore on the evening of October 1,
1937, and anchored in the stream. The crew was paid off the next
morning after she docked at Sparrows Point. After docking, the
Massmar was laid up in the shipyard for about 3 weeks for extensive
repairs costing approximately $22,000. In accordance with the usual
practice when such extensive repairs are made, no port crew was
maintained aboard her during that period.
On or about October 20, 1937, a new crew made up entirely of
men from the Seamen's Division was obtained through Sanchez, the
respondent's shipping master. At that time the respondent was
under no obligation to the members of the crew laid off on October 2.
The continuous employment rule which, as pointed out above, is in
effect on the respondent's ships, is not applicable in this situation.
That rule arises from the practice on the respondent's ships when
one voyage starts in due course after the end of the previous voyage
and when a port crew is maintained during the interval. The evi-
dence shows that it is not customary for the respondent to maintain
'a Referred to in the stenographic report of the hearing and the ship 's articles as Dwight
Pumphrey.
is DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a port crew on a ship which is to be in the shipyard for an extended
period undergoing extensive repairs." In such a case the usual
practice is to discharge the crew and recruit a new crew after the
repairs are completed. That custom was followed by the respondent
in the discharge of the Massmar's crew on October 2. Thereafter
they were not employees of the respondent and it was not discrimina-
tory for the respondent to recruit a new crew of Seamen's Division
men on October 20 through its shipping master, for the reasons
stated below in regard to the Pennmar, Yorkmar, and Portmar.
We find that the respondent did not discriminate in regard to the
hire and tenure of employment of Gabino Carrillo, Joseph Reddick,
Edward Ridgell, Andres Rocco, and Michael Vially, members of the
crew of the Massmar. The complaint, in so far as it alleges unfair
labor practices with respect to the crew. of the Massmar, will be
dismissed.
S. S. Pennmar, S. S. Yorkmar, and S. S. Portmar
The Pennmar arrived in Baltimore on October 11, 1937, and the
crew was paid off on October 12. On October 16, a new crew of
unlicensed seamen ' from the Seamen's Division signed on and the
ship sailed.
The Yorkmar arrived in Baltimore on October 26, 1937, and the
crew was paid off on October 27. The same day a new crew from the
Seamen's Division was hired and the vessel sailed the next day.
The Portmar arrived in Baltimore on October 28, 1937, and the crew
signed off the articles the next day. As they left the ship, replace-
ments from the Seamen's Division came on board. Thereafter, the
Portmar sailed on her next voyage. As stated above, on September 13,
1937, when. the Portmar was in Tacoma, Washington, the crew re-
ceived Hansen's telegram calling the general sit-down strike. After
an exchange of telegrams with Hansen, the crew refused to. sail the
ship on September 14. The strike lasted until September 17, when
it was ended by a telegram from Curran, in New York, telling the crew
to return the ship to Baltimore. During this strike the firemen main-
tained steam, the steward's department worked, and the loading of
the ship was completed. The crew only refused to sail the ship.
We think that the considerations set forth above in regard to the
Calmar are also applicable to these three ships. While it is true that
1e Daniel Donovan, respondent 's port captain in Baltimore, testified that it was cus-
tomary for the respondent to lay off the entire crew if the ship was going into drydock
for more than 10 days and to retain the crew if it was to be in for less. His testimony
was not contradicted . Cf. Matter of Waterman Steamship Corporation and National
Maritime Union of America, Engine Division, Mobile Branch, Mobile, Alabama, 7 N. L.
R. B. 237, in which the evidence showed that crews had remained on ships for several
weeks while they were being repaired , and the respondent admitted that it was not cus-
tomary to lay off the entire crew.
CALMAR STEAMSHIP CORPORATION 19
no sit-down strikes were in progress at the time the crews of these
ships were removed, we do not feel that the situation had so far
changed that the respondent was not warranted in removing these
crews to insure the operations of its ships. The general sit-down strike
order had not been rescinded and the situation was still a strike situ-
ation. On October 6, prior to the removal of the crews from these
three ships, Whalen had written to the respondent asking that the men
who had been removed from ships prior to that date be reinstated 17
We have again reviewed the evidence in this respect and, contrary to
the finding in our Proposed Findings, think that under all the circum-
stances of this case this was not sufficient to notify the respondent
that the strike was over and that no further sit-downs would occur.
Under all the circumstances, we fund that the removal of the crews
from these three ships is governed by what we said in respect of the
removal of the crew from the Calmar.
We find that the respondent has not discriminated in regard to the
hire and tenure of employment of Babbino Cuento, Owen Price,
Charles Rogall, Dewey Wright, and Daniel Voss, members of the crew
of the Pennmar; of John McFayden, Elvin Krihn, Gerardo Lon-
guierro, and Charles Shaffer, members of the crew of the Yorkmar;
and of Jack Augins, Thomas F. Bowser, Aubrey Cole, Anton Cramer,
Howard McJilton, Floyd Williams, Jr., Anton J. Sousa, and Otto J.
Writesman, members of the crew of the Portmar. .
S. S. Texmar and S . S. Vermar
The Texmar docked at Erie Basin, Brooklyn, New York, on the
evening of November 3, 1937. After the Texmar docked, some of the
crew went ashore to the N. M. U. hall and were told what had hap-
pened on the other ships upon their arrival in Baltimore. The next
morning before 8 o'clock the crew held a meeting and voted to strike
as a protest against the respondent's removal of N. M. U. crews in Bal-
timore and so informed the captain. Later the crew asked McClelland
for a written statement that they would not be discharged in Balti-
more. The respondent refused to give them any statement and the
men refused to work or leave the ship. Thereafter, the respondent
stationed watchmen and policemen aboard the ship.
On November 5, Captain Kullbom, master of the Texmar, convened
the crew and ordered them to go to work or leave the ship. They re-
fused to obey the captain's order. The captain, in the presence of the
17 At some date after October 6, Whalen talked to Donovan on the telephone about
the reinstatement of the N. M. U . seamen. Donovan stated that he had no objection to
reemploying them as openings occurred and that employees desiring reemployment should
apply through Sanchez, the respondent 's .shipping master, and the respondent would give
the applications "due consideration ." However, we are unable to find that this conver-
sation took place prior to the removal of the crews from these three ships . The N. M. U.
members did not make application through Sanchez.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
police and watchmen, took the arm of the deck-department delegate
and led him off the ship. Thereupon the other members of the crew
left the ship without resistance. They signed off the articles and re-
ceived their pay in the shipping commissioner's office after leaving the
ship. A new crew was thereafter recruited from the Seamen's Divi-
sion, and the Texmar sailed on or about November 9.
The Vermar docked at Erie Basin, Brooklyn, New York, on Novem-
ber 22, 1937. The N. M. U. shore delegate did not board the ship and
that evening a member of the crew went to the N. M. U. hall in New
York. He was told that the respondent was discharging all N. M. U.
men and replacing them with men from the Seamen's Division. The
next morning, the N. M. U. launch came alongside, and the shore dele-
gates told the crew to have a meeting to decide whether they would
take any action. The crew met at noon and decided to refuse to work,
but to leave the ship, on request, if the respondent would allow an
N. M. U. shore delegate aboard while they were being paid off. At 1
o'clock the crew refused to return to work. McClelland refused to
allow the shore delegate to come aboard while the men were being paid
off. Consequently, the crew at first refused to leave the ship. How-
ever, after the captain and a police sergeant had talked to them and
advised them to leave, they agreed to do so. Before leaving, the crew
signed off the shipping articles and received their pay from the ship-
ping commissioner. Thereafter, a new crew was recruited from the
Seamen's Division, and the Vermar left Erie Basin on November 26,
1937.
Since the strikes on these two ships were not caused in whole or in
part by any unfair labor practices of the respondent, the respondent,
as we have pointed out above in connection with the Oakmar, was free
to have the striking crews of these two ships removed and to replace
them with other crews in an effort to operate its ships. We find that
the respondent has not discriminated in regard to the hire and tenure
of employment of the members of the crews of the Texmar and Verrnar
named in the complaint, as amended.
Inasmuch as we have found that none of the allegations of the
complaint in regard to the commission of unfair labor practices are
supported by the record, we shall dismiss complaints against the
respondent.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The respondent, Calmar Steamship Corporation, is engaged in
trade, traffic , commerce, and transportation among the several States
within the meaning of Section 2 (6) of the Act, and the licensed offi-
CALMAR STEAMSHIP CORPORATION 21
cers and crews employed on the respondent's ships are directly engaged
in such trade, traffic, commerce, and transportation.
2. National Maritime Union of America and Marine Engineers
Beneficial Association No. 5 are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (1) and (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaints against Calmar Steamship Corporation be, and they
hereby are, dismissed.
MR. EDWIN S. SmiTn, concurring in part and dissenting in part :
I concur with the majority of the Board in regard to the Oakmar,
Losmar, Komar, and Calmar. I am of the opinion, however, that
by October 6, 1937, when the N. M. U. wrote to the respondent asking
that the men removed from ships prior to that date be reinstated,
the situation had so far changed that thereafter there was no reason-
able ground for expecting further sit-downs and that the respondent
in fact had no such expectation. It seems plain both from the re-
quest of the N. M. U. on October 6 for reinstatement and from the
fact that the crews on the last three ships docking in Baltimore
prior to that date had not sat down; that the strike had been wholly
dissipated and that the N. M. U. was seeking both to resume its
former relations with the respondent as to the ships docking in Balti-
more prior to October 6 and to preserve its relations with the re-
spondent as to the remaining vessels. Under these circumstances a
strike situation no longer existed and further removals of crews from
ships docking in Baltimore after October 6 could not reasonably be
justified by fear of sit-downs. Hence, I would find, as was found in
the Proposed Findings, that the crews of the Pennmar, Yorkmar,
and Portmar, all of which docked in Baltimore after October 6,
were discharged by the respondent, not as a reasonable measure to
insure the operation of its ships, but because the members of those
crews were members of or connected with the N.. M. U. whom the
respondent desired to replace with members of the Seamen's Division.
This constituted discrimination in regard to their hire and tenure of
employment within the meaning of Section 8 (3) of the Act. I
would also find that the respondent discriminated against members
of the N. M. U. by hiring only members of the Seamen's Division for
the crew of the Massmar on October 20, 1937. Such hiring was a
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of its discriminatory practice of ridding itself of N. M . U. mem-
bers during the same period on the Pennmar, Yorkmar, and Portmar.
With respect to the Portmar the respondent urges an additional
defense, contending that it discharged the crew of that ship because
they had refused to sail the ship in Tacoma. The record convinces
me that the members of this crew were discharged because they were
members of the N. M. U. and not because they had refused to sail
the ship in Tacoma. The record shows that little importance was
attached to the strike in Tacoma both at the time it occurred and
at the time the ship docked in Baltimore and that the officers of the
ship fully expected to have most of the crew sail on the next voyage 18
In regard to the Texmar and Vermar , which docked in New York
on November 3 and 22, respectively , it is plain from the record that
their crews struck in New York because of the respondent 's practice
of discharging N. M. U. crews when the ships docked in Baltimore,
and in the case of the Texmar, also because the respondent refused
to give the crew assurance that it would not be discharged in Balti-
more. Since in my opinion the discharge of the crews of the Penn-
mar, Yorkmar , and Portmar , and the hiring of only Seamen's Divi-
sion members for the crew of the Massmar on October 20, were
unfair labor practices within the meaning of Section 8 (3) of the
Act, it follows that the strikes on the Texmar and Vermar were
caused by the respondent 's unfair labor practices , and members of
the crews of these two ships would ordinarily be entitled to reinstate-
ment. Under this view the question arises whether , under the hold-
ing in the Fansteel case,13 the Board, in remedying the unfair labor
practices which brought on the strike , would have the power to order
the reinstatement of members of the crew of the Texmar whose
refusal to leave the ship lasted for about a day , and members of the
crew of the Vermar whose refusal to leave the ship lasted at most
for only a few hours . Since the disposition made of this case by
the majority did not necessitate a discussion of the application of the
Fansteel decision to a set of facts such as is here presented , I shall
not discuss the problem.
18 Another fact showing that membership in the N. M. U. was the reason for the dis-
charge is that eight seamen, members of or connected with the N. M. U., who were hired
after the strike in Tacoma and had had no part in it were nevertheless discharged in
Baltimore with the rest of the crew.
" National Labor Relations Board v Fansteel Metallurgical Corporation, 306 U . S. 340.