Cape Cod Trawling Corp.

National Labor Relations Board - Board Decisions

Apr 25, 1940

23 N.L.R.B. 208 (N.L.R.B. 1940)

In the Matter of CAPE COD TRAWLING CORPORATION and AMERICAN
COMMUNICATIONS ASSOCIATION, AFFILIATED WITH THE C. I. O.
In the Matter of BOOTH FISHERIES CORPORATION and AMERICAN
COMMUNICATIONS ASSOCIATION, AFFILIATED WITH TIIE C. I. O.
In the Matter Of MASSACHUSETTS TRAWLING Co. and AMERICAN
COMMUNICATIONS ASSOCIATION, AFFILIATED WITH THE C. I. O.
Cases Nos . C-1421, C-1422, and C-1423, respectively.Decided
April 25, 1940
Fishing Industry-Interference, Restraint, and Coercion-Employee Status:
fishermen claim to be joint entrepreneurs found to be employees; person
hired but whose services were terminated -before commencing work, as-
Dtiscranrination: discharges : discriminatory removal of union members from
their jobs, upon demands of rival union ; employers not relieved of obligations
under Act merely by showing economic pressure from one of rival unions and
consequent probable loss; employees' right to strike as protected by Act, not
interfered with by application of Act to circumstances of this case; (Leiserson,
dissenting) employers, acting under economic pressure of rival union, did not
violate Act as matter of fact, in absence of showing of collusion between em-
ployers and rival union-Reinstatement Ordered-Back Pay: awarded to dis-
charged employees; to include reasonable value of maintenance on shipboard-
Remedial Order: (Leiserson, dissenting) even if employers violated Act as matter
of law, in the exercise of its discretionary power the Board should not order
reinstatement with back pay.
Mr. Bernard J. Donoghue, for the Board.
Mr. Edward H. Cooley, of Boston, Mass., for the respondents.
Levinson, Becker, Peebles dl Swiren, of Chicago, Ill., for respond-
ent Booth.
Mr. Richard J. Golden, of Boston, Mass., for the A. C. A.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On October 24, 1938, and on March 9, 1939, American Communica-
tions Association, herein called the A. C. A., affiliated with the
23 N L. R B, No. 18.
208
CAPE COD TRAWLING CORPORATION 209
Congress of Industrial Organizations, filed charges and amended
charges, respectively, with the Regional Director for the First Region
(Boston, Massachusetts), alleging that Cape Cod Trawling. Corpora-
tion, herein called respondent Cape Cod, had engaged in unfair labor
practices within the meaning of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On December 21, 1938, and on March 9,
1939, the A. C. A. filed charges and amended charges, respectively,
with the Regional Director alleging that Booth Fisheries Corpora-
tion, herein called respondent Booth, had engaged in unfair labor
practices within the meaning of the Act. On February 16, 1939,
and on March 9, 1939, the A. C. A. filed charges and amended charges
with the Regional Director alleging that Massachusetts Trawling
Company, herein called respondent Massachusetts, had engaged in
unfair labor practices within the meaning of the Act. On Febru-
ary 28, 1939, the Board, acting pursuant to Article III, Section 10 (c)
(2), and Article II, Section 37 (b), of National Labor Relations
Board Rules and Regulations-Series 1, as amended, herein called
the Rules and Regulations, issued an order and on March 11, 1939, an
amendment to the order, consolidating the three cases for all pur-
poses. Upon the charges and amended charges, the Board, by its
Regional Director, issued separate complaints dated March 14, 1939,
against each of the respondents alleging that they had each engaged
in and were engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act.
In respect to the unfair labor practices, the complaints alleged,
in substance, that respondent Cape Cod, respondent Booth, and
respondent Massachusetts, herein collectively called the respondents,
had discriminated and were discriminating with regard to the hire
and tenure of employment of J. Irving McIntyre,' Eliot V. Matthews,
and Jacob L. Fishbein; respectively, because of their membership in
the A. C. A. and their refusal to resign therefrom and join the
Commercial Telegraphers Union, Marine Division, herein called the
C. T. U., affiliated with the American Federation of Labor, and that
each of the respondents had thereby interfered with, restrained, and
IOn November 2. 1938, the Board ordered that this case be consolidated with Matter of
Trawler Maris Stella, Inc ., and American Communications Association (C. I. 0 ) (Case
No. I-C-901) and with Matter of Federated Fish4ng Boats of New England and New York,
Inc. and American Radio Telegraphists Association of the C. 1 0. (Case No I-R-240),
for all purposes On February 28, 1939, the Board ordered that the two latter cases be
severed from the former case and that the former case be continued as a separate
proceeding.
20n March 22, 1939, the A. C. A. filed amended charges against respondent Cape Cod
alleging in the alternative a discrimination either in refusing to hire McIntyre or in
discharging him On the same day the Regional Director issued and served upon re-
i3pondent , Cape Cod, an amendment to the complaint to the same effect. Respondent,
Cape Cod, waived 5 days' notice and the hearing began on March 23 with its consent
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act. Each respondent was duly served with a copy
of the complaint against it together with a notice of hearing and a
copy of the charges and amended charges which had been filed against
it. Copies of all the complaints together with notices of hearing
and copies of the charges and amended charges were duly served on
the A. C. A. and upon the Federated Fishing Boats of New England
and New York, Inc.3
Thereafter, on March 21, 1939, each of the respondents filed an
answer to the complaint against it denying that it had engaged in
the alleged unfair labor practices. Respondent Booth admitted that
it was engaged in interstate commerce as alleged in the complaint
against it, but respondent Cape Cod and respondent Massachusetts
denied that they caused their products to be distributed in interstate
and foreign commerce as alleged in the complaints against them.
Pursuant to notice, a consolidated hearing was held in Boston, Mas-
sachusetts, on March 23 and 24, 1939, before C. W. Whittemore, the
Trial Examiner duly designated by the Board. The Board, the
A. C. A., and the respondents were represented by counsel or other
representatives and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the con-
clusion of the hearing counsel for the Board moved to amend the
complaint to conform with the proof. This motion was granted by
the Trial Examiner. During the course of the hearing the Trial
Examiner made several other rulings on motions and on objections
to the admission of evidence. The Board has reviewed all the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
Thereafter, on November 21, 1939, the Trial Examiner issued his
Intermediate Report, copies of which were duly served upon all the
parties. The Trial Examiner found that the respondents 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 Act,
and recommended that the respondents cease and desist therefrom
and take certain specified affirmative action. Exceptions to the
Intermediate Report were filed by the respondents on December 8,
1939. On January 23, 1940, pursuant to notice, a hearing for the
purposes of oral argument on the exceptions and record was held
before the Board in Washington, D. C. Counsel for the respondents
at the original hearing appeared and participated in the argument;
3 This is an association of employers at the Boston Fish Pier engaged in the business
of catching and selling fish Although served with notice of the hearing , as hereinabove
stated , the organization did not appear at the hearing and is not a participant in the
proceedings
CAPE COD TRAWLING CORPORATION 211
however, he confined his argument to the cases concerning respondent
Cape Cod and respondent Massachusetts.'
The Board has considered the exceptions to the Intermediate
Report and in so far as they are inconsistent with the findings, con-
clusions, and order set forth below finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Respondent Cape Cod and respondent Massachusetts, both Massa-
chusetts corporations, have their principal offices and places of busi-
ness in Boston, Massachusetts. Respondent Booth, a Delaware corpo-
ration licensed to do business in the Commonwealth of Massachusetts,
has its principal office in Chicago, Illinois, but also maintains an
office in Boston. The respondents are engaged in the business of
catching, transporting, and selling fish. These fish are caught by
the respondents in the Atlantic Ocean outside the 3-mile limit to a
distance not exceeding 700 miles and transported to the Boston Fish
Pier. From mid-October 1938 until the end of that year, respondent
Cape Cod, with its trawler, the "Lark," landed about 500,000 pounds
of fish which sold for approximately $15,000. During the year
1938,6 respondent Massachusetts with its three trawlers, the "Tri-
mount," "Shawmut," and "Boston," landed about 8,594,000 pounds
of fish which sold for approximately $163,462. During the fiscal
year ending April 30, 1938, respondent Booth with its three trawlers,
the "Maine," "Illinois," and "Delaware," landed about 13,394,335
pounds of fish which sold for approximately $331,331. All the fish
landed by the respondents were sold at the Boston Fish Pier through
the New England Fish Exchange which also sells the fish landed by
a number of other fishing companies. About 80 per cent of such fish
sold are shipped from Massachusetts to other States. Counsel for the
respondents stated in effect at the hearing that this meant that about
80 per cent of the fish sold for the respondents by the said Exchange
were shipped from Massachusetts to other States.
The respondents contend in their exceptions in effect that the fisher-
men are joint entrepreneurs with the respondents and as such have
participatory rights as employers in the selection of radio operators.,
4 Prior to the hearing for oral argument respondent Booth filed supplemental excep-
tions and a beef and advised the Board that it desired to waive oral argument The
Board has considered the supplemental exceptions and the brief filed by respondent Booth.
5 The "Lark" (lid not begin fishing operations until the middle of October 1938
G The record does not disclose whether this is the calendar year or respondent Massa-
chusetts ' fiscal year
'The respondents state in their exceptions that since "the fishermen receive no wages,
for they iiork on shares, and participate in the money received from the sale of the fish:
that they as share-holders in the venture assume the right to determine the conditions
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondents rest this contention on the fact that the fishermen
work on shares. The record shows that the fishermen are paid in
proportion to the selling price of the catch after various expenses,
including the radio operator's salary, are deducted," but they invest
no money in the enterprise, and are guaranteed a minimum sum in
the event of an unprofitable trip. The radio operators are not hired
and discharged by the crew members but by the respondents, and
they are only subject to the orders and direction of the owner, except
at sea when they receive their orders from the captains or the mates,
acting in the captains' stead. Moreover, the fishermen are hired
and discharged by the respondents, they hire and discharge no one,
issue orders to no one, and receive their orders from the captains or
mates. The fishermen are not employers or joint entrepreneurs, but
are employees of the respondents.
We find that the fishermen here involved are employees, not em-
ployers, within the meaning of the Act and that the "lay" settlement
is primarily a method used in determining the amount of wages to
which' fishermen are entitled." However, even if contrary to our
finding, the fishermen were not employees of the respondents' but
coemployers of the radio operators with the respondents, that fact
would not relieve the respondents from their obligations under the
Act, nor in any manner affect our findings with respect to the unfair
labor practices, except to make the fishermen equally liable with the
respondents for the commission of the unfair labor practices, here-
inafter discussed.
We find that each of the respondents is engaged in trade, traffic,
transportation, and commerce among the several States, and that the
radio operators employed by each are directly engaged in such trade,
traffic, transportation, and commerce.
II. THE ORGANIZATIONS INVOLVED
American Communications Association, Marine Division, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to its membership radio operators employed on trawlers
at the Boston Fish Pier, and at other piers.
Commercial Telegraphers Union, Marine Division, is a labor or-
ganization affiliated with the American Federation of Labor, admit-
ting to its membership radio operators employed on trawlers at the
Boston Fish Pier, and other piers.
under which they will work and under what conditions the boat must sad" ; and state
that "when certain parties to a venture refuse to accept conditions and thereby prevent
the operation , those preventing such operation should be held responsible in the event
there is an infraction of laws or rules."
8 This is known as the " lay" settlement
O'I-Iara admitted at the hearing that the method used by the respondents to pay the
fishermen was merely "a convenient method of determining their wage."
CAPE COD TRAWLING CORPORATION 213
Atlantic Fishermen's Union, Local No. 21455, is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to
its membership fishermen, mates, engineers, cooks, and lumpers em-
ployed on trawlers on the Atlantic Coast.
III. THE DISCHARGES OF J IRVING McINTYRE AND JACOB FISHBEIN
The complaint, as amended, against respondent Cape Cod, alleged
that on or about October 22, 1938, it refused to hire or, if it hired,
discharged and thereafter refused to reinstate, J. Irving McIntyre
because of his membership in the A. C. A. and his refusal to join
the C. T. U.; the complaint against respondent Massachusetts alleged
that on or about February 16, 1939, it discharged and thereafter re-
fused to reinstate Jacob Fishbein for the same reason. The com-
plaints also alleged that the respondents by said acts interfered with,
restrained, and coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act.
McIntyre, a radio operator with 12 years' experience, has been, a
member of the A. C. A. since about 1933.11 In April 1938, after
respondent Cape Cod had assigned Captain Ernest Parsons to be
in command of a trawler then under construction and scheduled to be
completed within a month, McIntyre learned that Parsons needed
a radio operator and applied to him for the position. After they
had discussed McIntyre's qualifications, Parsons hired McIntyre and
instructed him to keep in touch with Parsons so that he could inform
McIntyre when to report for duty. Thereafter, the trawler's con-
struction was delayed and it was not completed until October 1938.11
During this period McIntyre continued to communicate with Par-
sons and finally on October 10, 1938, Parsons instructed him to report
for duty on October 14. McIntyre immediately resigned the position
he then had with another company and, on October 14, reported to
Parsons for duty. placed some of his personal property aboard the
trawler, which had been named the "Lark"; and was shown the radio
room and its equipment by Parsons. The "Lark" failed to sail that
clay, however, because of mechanical trouble and foggy weather so
McIntyre returned ashore to await further instructions. On Octo-
ber 21 McIntyre received a telegram from P. J. O'Hara, president
of respondent Cape Cod, instructing him to communicate with
O'Hara. McIntyre then telephoned O'Hara who asked him if he was
a "C. I. O. man," and when McIntyre replied affirmatively, O'Hara
instructed him to communicate with Parsons. McIntyre then tele-
1O Prior to July 1038, the A. C A. was known as the American Radio Telegraphers'
Association.
n Alclntyre testified without contradiction that the construction company, which was
building the trawler, "went bankrupt" while the trawler was under construction and that
it was necessary for another company to complete the job.
283034-41-vol 23-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phoned Parsons who also inquired if lie belonged to the "C. I. 0.,"
and when McIntyre replied that he did, Parsons stated that the crew
had refused to sail with a "C. I. O. man" and told McIntyre to be
present at a meeting to be held the next morning in O'Hara's office
to consider the matter. McIntyre attended the conference' as in-
structed. Among those present at this meeting, besides McIntyre,
O'Hara, and Parsons, were Patrick McHugh, secretary-treasurer of
the Fishermen's Union, and Andrew Anderson, representative of the
C. T. U. During this conference McHugh told O'Hara and Parsons
that the "Lark" would not be permitted to sail with a C. I. O. radio
operator on board, and Anderson informed O'Hara and Parsons
that a C. T. U. radio operator was available and ready to sail 13
Parsons protested that he had hired McIntyre and did not desire
to discharge him and O'Hara stated that he thought McIntyre
"should have" the job, but McHugh refused to reconsider and finally
Parsons told McIntyre that he was sorry, but that he would have to
use the "A. F. L. operator".13 On October 23 the "Lark" sailed with
a C. T. U. radio operator aboard. Subsequently, McIntyre sought
reinstatement through a representative of the A. C. A. and although
respondent Cape Cod expressed willingness to reinstate him, it
claimed that it was unable to do so because the Fishermen's Union
would tie up the "Lark" if such action was taken.
Fishbein, a member of the A. C. A. since 1937,14 was employed by
respondent Massachusetts as radio operator on its trawler "Boston,"
from July 29, 1938, to February 16, 1939. It is admitted that he was
a competent operator and that his services were satisfactory to respon-
dent Massachusetts. Prior to February 1939 Fishbein was advised
several times by Anderson, the C. T. U. representative, and by Augus-
tus Landry and John Powers, who served as mate on the "Boston"
at different times, to join the C. T. U., but he refused to do so.
On February 2, 1939, when Fishbein reported for duty he was told
by Mate Powers that the crew refused to sail with hint. Fishbein
then went to the office of Harrison I. Cole, treasurer and general
12 During this conference the question was raised as to whether or not DIcIntyre would
he permitted to sail with the "Laik" if he joined the C T U . Anderson , the C. T U.
representative , informed McIntyre that he could not belong to both the A C A and the
C T TJ. and that even if he joined the latter he could not sail on this trip since the
1' T TJ had other radio operators entitled to a preference and "i ( Anderson ) could not
let you ( Mclntvie ) go out tomorrow , as I (Andcison ) would lose face " There the matter
ended
11 At the hearing O'Hara testified that McIntyre had not served on the "Lark " nor had
lie contiactod with McIntyre to serve on it, thereby implying that McIntyre ' Dever entered
i espondcnt Cape Cod' s employ The recoi d shows, however , that McIntyre was hired by
Parsons . who had full authority to hire and discharge members of his crew . Respondent
Cape Cod state, in its answer that McTntyrc ', s services were "terminated" and re-
spondents ' counsel admitted at the hearing for oral argument that McIntyre had been
hired by Parsons We find that McIntyre was an employee of respondent Cape Cod within
the meaning of the Act when his services were terminated.
11 See footnote 10
CAPE COD TRAWL1NG CORPORATION 215
manager of respondent Massachusetts, where he was accused by Ander-
son of sending "anti-fishermen broadcasts on the air," which Fishbein
denied.15 During the conference Cole assured Fishbein that his serv-
ices had been satisfactory and that he had no intention of dis-
charging him and that the "Boston" would remain tied up until "the
matter was straightened out." Thereafter, the trawler was .tied up until
February 16, when it appeared that a compromise had been reached
by the Fishermen's Union and respondent Massachusetts whereby the
crew agreed to sail with Fishbein. However, when Fishbein reported
for duty on the morning of February 16 the crew still refused to
sail with him. Finally the Captain told Fishbein that he would have
to sail without him and later that clay the trawler sailed without a
radio operator. Fishbein telephoned Cole and asked if he was to
be paid while the trawler was out, to which Cole replied that he was
not and that he could take any action he saw fit to take. Fishbein
then filed charges with the Regional Director. On March 2, when the
"Boston" had returned to port, Fishbein reported to Cole who told
hire that he was discharged because the crew refused to sail with him.
Fishbein offered to resign in favor of another A. C. A. radio operator,
but Cole replied that only a C. T. U. operator could "save the situa-
tion." Fishbein was replaced on the next trip and thereafter by a
C. T. 17. operator.
It is plain and we find that McIntyre was discharged by respond-
ent Cape Cod on October 22, 1938, and that Fislibein was discharged
by respondent Massachusetts on February 16, 1939, because of their
membership in the A. C. A. and refusal to join the C. T. U. Respond-
ent Cape Cod and respondent Massachusetts urge that they were
.compelled -to discharge tMeIntyre and Fishbein at the insistence of
the Fishermen's Union's crew on the "Lark" and-the`"'Boston,'respec-
tively, and that the only alternative was to discontinue fishing opera-
tions. The existence of the Fishermen's Union's pressure upon
respondent Cape Cod and respondent Massachusetts to effect the
discharge of the A. C. A. radio operators under threat of a stoppage
of operations is established beyond question. However, the record is
equally clear that McIntyre and Fishbein were discharged by respond-
ent Cape Cod and respondent Massachusetts respectively solely be-
cause of their membership in the A. C. A. and refusal to join the
C. T. U. when respondent Cape Cod and respondent Massachusetts
capitulated to that pressure."' We have heretofore held and we now
''The significance of th„ chaice is not further explained in the record
" The complaint as amended alleged that respondent Cape Cod either refused to hire
of discharged Mclntyie because of his union affiliations and activities We have berein-
above found that Mclntyie had been hired by Captain Parsons and was an employee of
respondent Cape Cod within the meaning of the Act. However , even if, contrary to our
finding, McIntyre had never enteied respondent Cape Cod' s employment , we find that
respondent Cape Cod dlscnn inated against him as an applicant for employment and that
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hold that the Act, which is paramount , prohibits such discrimination
for union - activity without exception predicated upon the circum-
stances or considerations which here induced the discrimination.17
The dissenting opinion urges that, "in the absence of any showing
of collusion between the respondents and the fishermen , and with
affirmative proof showing losses because of refusal to discharge the
employees ," the Board should not make a finding of unfair labor
practices . To make an exception to the clear mandate of the Act
under such circumstances , however, would virtually nullify the Act
in any situation where rival labor organizations were involved. It.
would mean that an employer would be relieved of all obligation
under the Act merely upon a showing of pressure and consequent
probable loss, from one of the rival organizations . The result would
be that the rights supposedly guaranteed under the Act, whether of a
majority or a minority group, would be at the mercy of the employer
and of rival groups in any case where the rival group chose to exert
pressure and the employer chose to take advantage of it.
For these reasons we are in accord with the language of the Cir-
cuit Court of Appeals for the Ninth Circuit in the Star Publishing
case, which involved a very similar set of facts :
The respondent further contends that it was necessary to
make the transfer , and thus engage in the unfair labor prac-
tice because its business would otherwise be disrupted, and
therefore , under all the facts , the transfer was excusable. We
think, however , the act is controlling . The act prohibits un-
fair labor practices in all cases. It permits no immunity be-
cause the employer may think that the exigencies of the
moment require infraction of the statute. In fact, nothing
in the statute permits or justifies its violation by the employer.is
We find that respondent Cape Cod, by discharging and refusing
to reinstate J. Irving McIntyre , discriminated in regard to his hire
and tenure of employment , thereby discouraging membership in the
A. C. A. and encouraging membership in the C. T. U ., and inter-
sucli discrimination under the circumstances heieuiabove discussed falls within the
prohibitions of Section 8 (1) and ( 3) of the Act Hatter of TVaumbec MIN , Inc and
United Textile Ttiorkers of America, 15 N L R B. 37
'Matter of Star Pablishinq Company and Seattle _l'ea,spapei Mold Local No 82, 4
N. L R. B 498 enf'd in N L It 1f v Star PublisNuiq Company. 97 F (2d) 465 (C. C. A
9) ; Hatter of Trau lei Ma) is Stello, lnc and I merit an Con,sauu cations Association
(C 1 0 ). 12 N. L R B 415
19 It is sugvested in the disoentnig opinion that a finding of unfair labor practices in
this case impairs the right of emnlotiees "to agree among thmuselics to refuse to work
with an employee who aas not a uicinber of thee: organization " We do not believe that
the holding would have such an efleet The Act exprossly provides in section 13 that,
"Nothing in this Act shall be construed so as to inteifore with or inipede or diminish in
any way the right to strike ' Under this piovision the application of the Act to the
circumstances of this case could not be to ken as grounds foi interfering with the right
ti the respondents' employees to stake in any situation aheie that light already exists
CAPE COD TRAWLING CORPORATION , , 217
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We find that respondent Massachusetts, by discharging and re-
fusing to reinstate Jacob Fishbein , discriminated in regard to his
hire and tenure of employment , thereby discouraging membership in
the A. C. A. and encouraging membership in the C. T. U. and inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Since his discharge on October 22, 1938, McIntyre has received
but 12 days' temporary employment for which he received $60. He
'desires to be reinstated . - Fishbein has been unable to secure employ-
ment since his discharge on February 16, 1939, and desires
reinstatement.
1V. THE DISCHAICE OF ELIOT V. AIATrHLWS
Matthews, a iuember of the A. C. A since January 1936,19 was em-
ployed as radio operator on respondent Booth's trawler "Illinois"
from March 16, 1937, to December 21, 1938. It is admitted that he
was an efficient operator. In October or November 1938. representa-
tives of the C. T. U. solicited Matthews to join the C. T. U., but Mat-
thews refused to do so and finally one of the represeniativas-warned
Matthews that he would not be permitted to work on the trawler
unless he joined the C. T. U. On December 17, 1938, when Matthews
reported for work the crew refused to sail with him because of his
A. C. A. membership and Matthews reported this fact to Ralph Os-
borne, respondent Booth's resident manager. Matthews told Osborne
that he believed he had a right to retain his job regardless of his
union affiliation , whereupon Osborne assured Matthews that he had'
no intention of discharging him and that respondent Booth was "go-
nig to keep out of" the controversy. Osborne asked Matthews, how-
ever, if under the circumstances he "wouldn't ... be a little nervous
about sailing with the crew" and Matthews replied that he would
not. On December 18 and 19 Matthews reported for duty aboard
the "Illinois ," but the trawler failed to sail. On December 19 Han-
sen, one of the fishermen, accosted Matthews and asked him why he
was "keeping the bread out of the mouths of 16 families " by refusing
to resign, to which Matthews replied that he thought that he had
"every right to stay" on the job. Hansen then threatened Matthews
with the possibilities of what might happen to him on a dark night
at sea, if he insisted upon lemaming aboard. In the meantime, Os-
borne had reported the situation to respondent Booth's inain office
in Chicago and had received orders from that office "to abide by the
law but to get leer [the `Illinois '] out." Thereafter , Osborne "was
1B See footnote 10, supra.
'218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very nervous" and conferred with the Captain and with Anderson
several times in an effort to comply with these instructions. Finally,
on.Deaember 20 Osborne offered Matthews a week's pay if he would
resign his position; but Matthews declined the offer. Osborne their
told Matthews 'that one of the representatives of the Fishermen's
Union had asked for permission to "throw" Matthews "off the boat,"
but that respondent Booth refused to be "a party to anything like
that." About half an hour later Matthews went aboard the "Illinois"
where he was met by Hansen who demanded to know why Matthews
insisted upon keeping the "families of 16 men starving'' to which
Matthews replied that he was ready to sail at any time and asked
Hansen if there was any reason why the crew would not sail with
him other than the fact that he did not belong to the American Fed-
eration of Labor to which Hansen replied, "Yes, this," and then
struck Matthew's in the face. Matthews, a much smaller man than
Hansen, fled to the engine room, followed by Hansen, and picked np
a file with which to defend himself. Hansen picked up a wrench.
Matthews then appealed to Chief Engineer Slade who ordered Han-
sen to leave the engine room. Hansen thereupon left the engine
room and the incident ended. Slade, a member of the Fishermen's
Union, immediately reported the incident to Osborne, who then com-
municated with Carl Gill, a United States Department of Labor Con-
ciliator stationed at the Fish Pier, "discussed the whole situation with
him," and told him that he proposed to discharge both Hansen and
Matthews. Osborne believed that Gill "thought that was a good
course of action." Gill did not testify. 'Osborne also communicated
with McHugh and told him that he intended to discharge Hansen
and Matthews'for fighting and McHugh-stated that'he had no objec-
tion' -und-. assured, Osborne, that if he:cliseharged Hansen "it wouldn't.
make any difference." The following day Osborne summoned Han-
sen and, Matthews to his office. Matthews opened the conference by
stating that he had no intention of pressing charges against Hansen
because he thought that Hansen was drunk when the incident oc-
curred. Osborne then asked Hansen to give his version of the inci-
dent and Hansen claimed that he struck Matthews because Matthews
called him "out of name." 20 Matthews denied this. Osborne then
told Matthews and Hansen that since it was against respondent
Booth's policy to have fighting on the boats they were both dis-
charged. Matthews protested that. he had been attacked by Hansen
and that the only blow struck had been delivered by Hansen; how-
ever, Osborne refused to reconsider his decision. Osborne then of-
fered to pay Matthews $25 for the time the "Illinois" had been tied
up, but the offer was rejected by Matthews. A C. T. U. operator
then replaced Matthews on the "Illinois" and it sailed.
2D The record does not Show what Hansen meant by the expression " out of name"
CAPE COD TRAWLING CORPORATION 219
Respondent Booth contends that Matthews was discharged for
fighting. The evidence, however, fails to support this contention.
At the time of the discharge Osborne was under considerable pres-
sure. Matthews' membership in the A. C. A.. and his refusal to join
the C. T. U. had'resulted in the "Illinois" being tied up and there
was every indication that unless Matthews resigned from the A. C. A.
and joined the C. T. U., or resigned his position, or was discharged,
the trawler would remain at the pier indefinitely.21 Matthews had
refused to resign from the A. C. A. and had also refused to resign
his position, so it was apparent to the respondents that Matthews'
discharge was the only method by which the boat would be enabled to
sail. Respondent Booth's Chicago office had ordered Osborne "to
get" the "Illinois" "out," although it had cautioned him "to abide by
the law." Moreover, other facts lead us to conclude that when Slade
reported the incident to Osborne he decided to use it as an excuse for
Matthews"dismissal. Hansen was solely responsible for the fight,
inasmuch as Hansen picked the quarrel, and struck the only blow
delivered, whereas Matthews simply sought to protect himself. Os-
borne knew these facts when he effected the discharge. It seems
unreasonable and hence incredible to us that Osborne would have
discharged Matthews for defending himself under the circumstances
disclosed.22 Further, although Osborne discharged Hansen, he' im-
mediately contacted McHugh after the incident was reported to him,
and received McHugil's assurance that Hansen's discharge "didn't
make any difference." 2;;
We find that the altercation between Matthews and Hanson was
the occasion and not the cause of Matthews' discharge. We further
find- that- respondent Booth discharged Matthews because of his
membership in the A. C. A. and his refusal to join the C. T. U.24
We find that respondent Booth, by discharging and refusing to re-
instate Eliot V. Matthews, discriminated in regard to his hire and
nEach day the trawler remained at the pier respondent Booth lost approximately $300
22 Osborne stated that he (lid not permit fighting on the boats , but made no claim that
the existence of such a rule had been made known to the employees Osborne further
stated that no similar incidents had occurred on the boats We find that no rule, which
the respondent had publicized to the employees, existed against fighting on the boats
particularly where an employee 's participation in such an altercation was solely a matter
of self defense Even assuming the existence of a rule against fighting which was known
to the employees , it would not alter our conclusion , hereinabove stated, concerning its
alleged application under the circumstances here discussed
22 After their discharges , Hansen secured employment as a fisherman on another
trawler , but Matthews has been unable to secure other employment and desires reinstate-
ment.
24 While respondent Booth does not urge that the discharge was effected because of the
refusal of the Fishermen ' s Union 's crew to sail with an A C . A. radio operator, we have
found that consideration entered into the discrimination committed However, for reasons
heretofore stated the existence of such considerations does not take the discrimination
without the prohibitions of Section 8 (1) and ( 3) of the Act.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment, thereby discouraging membership in the
A. C. A. and encouraging membership in the C. T. U. and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III and IV above, occurring in connection with the operations of
,the respondents 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 ob-
structing commerce and the free flow of commerce.
VI. THE REMEDY
We have found that the respondents have engaged in certain unfair
'labor practices. In order to effectuate the policies of the Act, we
shall .order them to cease and desist therefrom and to take certain
specified affirmative action to remedy the effect of such unfair labor
practices. Since we have found that J. Irving McIntyre, Jacob
Fishbein, and Eliot V. Matthews were discriminatorily discharged,
we shall order the respondents to offer them reinstatement without
prejudice to their seniority and other rights and privileges. We shall171
further order the respondents to make them whole for any loss of
pay they have suffered by reason of their discharges by payment to
them of a sum equal to the amount which they normally would have
earned as wages from the date of their discharges to the date of the
offers of reinstatement, less their net earnings 25 during said period .21
26 By "net earnings " is meant earnings less expenses , such as` for tiansportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Catpentcrs and Joiners of
America, Lumber and Saioinill Workers Unton , Local 2590, 8 N. L. R. B . 440 Monies
received for work performed upon Federal , State , county , municipal , or other work-relief
projects are not considered as earnings but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal, State, county , municipal , or other goveinment
or governments which supplied the funds for said work -relief projects
20 Respondent Cape Code contends that it should not be held responsible for the payment
of back pay to McIntyre after the date upon which Captain Parsons left its employ on the
theory that The incoming Captain might have replaced McIntyre by a radio opeiator "who
followed him through the Industry as lie changed from boat to boat ." Although there
is some indication in the record that some captains preferred to hire their own radio
operators , there Is no showing that this was always true and we see no reason for depriv-
ing Mclntyie of any back pay because of a mere possibility that lie might not have
been retained by the Captain who replaced Parsons . Furthermore , the fact that the radio
operator who was hired by Parsons to replace McIntyre was retained by the new Captain
and was still in respondent Cape Cod's employ at the time of the hearing tends to negate
respondent Cape Cod's contention that the new Captain "might have had " a radio operator
"who followed him through the industry," •
CAPE COD TRAWLING CORPORATION 221
The record shows that the radio operators, in addition to monetary
wages, receive from the respondents their maintenance on shipboard.
Accordingly, in determining the amount of back pay to be awarded
McIntyre, Fishbeiii, and Matthews, we shall order that the reasonable
value of their maintenance on shipboard be added to the amount of
their monetary compensation from the respondents.27
The dissenting opinion takes the position that, even if the respond-
ents have engaged in unfair labor practices by the discharge of
McIntyre. Fishbein, and Matthews, the Board in the exercise of its
discretion should not order reinstatement or back pay for these
employees. In our opinion such a disposition of the matter would
not only be unfair to the employees but would not assist in the solu-
tion of the respondents' basic problem.
Conceding that the pressure from the Fishermen's Union placed
the respondents in an unenviable position, the issue that we must
face is whether the respondents, who have violated the law, or the
three employees in question, who are blameless, should bear the bur-
den of the respondents' actions. We can see no valid reason for
shifting the loss caused by the respondents' unfair labor practices,
even though the unfair labor practices in turn arose out of matters
beyond the respondents' control, from the respondents themselves
to the victims of their unlawful acts, who are certainly less able to
bear the burden.28
On the other hand, the abandonment of reinstatement with back
pay by no means avoids the dilemma which the dissenting opinion
seeks to escape. The Act provides that, if the Board finds that any
person has engaged in any unfair labor practice, the Board "shall
issue . . . an order requiring such person to cease and desist from
such unfair labor practice." Thus the issuance of a cease and desist
Matter of Trawler Mails Stella , Inc. and American Cotnmuntcations Association
(C 1. 0 ), 12 N. L R B. 415; Matter of Waterman Steamship Corpoiation and National
Maritime Union of i4inertca, Engine Division, Mobile Branch, Mobile, Alabama, 7 N. L.
R. B 237, enf'd as mod. Waterman Steamship Coip v N L R B 103 F (2d) 157
(C. C A 5 ) enf'd in its entirety N. L R B v Waterman Steamship Company, 309
U. S 206 (U. S Sup Ct.).
'Analogies from other fields of law support the proposition that an individual, faced
with a probable loss arising out of circumstances beyond his control , is nevertheless not
relieved of liability for damage to third parties caused by his efforts to avoid the loss
See Vincent v Lake Erie Tiansportation Company, 109 Minn 456, 124 N. W. 221 (1910)
(defendant liable for injury to clock where defendant's boat, tied to the dock to avoid a
storm , pounded against the dock and damaged it ) ; Regina v Dudley, 14 Q B. D. 273
(1884), 15 Cox C C 624 (accord United States v Holmes, Federal Case No. 15383, 1 Wall
Jr. 1 CC, 1842) ( members of a shipwrecked crew, though threatened with imminent starva-
tion, held not privileged to kill one of their number irrespective of whether the person
killed would, together with his murderers, have died of starvation had he not been sacrificed
to their needs) See also Restatement of The Law of Torts (Amer Law Inst ) Vol. IV, p.
477. In some cases there is a privilege of acting but only at the risk of paying for the
haim caused by the action Thus a person is privileged to enter the land of another
to escape serious harm to himself but is subject to liability for harm caused by his
entry.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order is mandatory. In the present case the Board's order requires
the respondents to cease and desist from "discouraging membership
in American Communications Association and encouraging member-
ship in the Commercial Telegraphers Union . . . by discharging ,or
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment .. .
because of membership or activity in American Communications As-
sociation or any other labor organization of their employees." Under
this order the respondents are clearly bound not to persist in the
policy of refusing employment to members of the A. C. A. or giving
employment only to members of the C. T. U. by reason of member-
ship in those organizations. Upon approval by a Circuit Court of
Appeals the respondents would be in contempt of court if they
pursued such a policy. Consequently, exercise of the Board's dis-
cretion to deny reinstatement and back pay would only cast the
burden upon the three employees who have been deprived of their
jobs as a result of the unfair labor practices without solving the
basic dilemma facing the respondents.
It should be pointed out, also, that the position taken by the dis-
senting opinion gives rise to grave administrative problems. The
necessity under which a respondent purports to act in cases such as
the present, one is always relative in the degree of compulsion in-
volved. If we are to permit considerations of the sort here advanced
to constitute a defense to our usual order of reinstatement with back
pay, it might well become impossible for the Board to sift out the
cases where such a defense would be justified from those where it is
merely a pretext to escape liability under the Act.29
Upon the basis of the above findings of fact and upon the entire
record in the cases, the Board makes the following :
CONCLUSrONS OF LAIN'
1. American Conununications Association, Marine Division; Coni-
niercial Telegraphers Union, Marine Division; and Atlantic Fisher-
men's Union, No. 21455, are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of em-
ployment of J. Irving McIntyre, Jacob Fishbein, and Eliot V.
Matthews, thereby discouraging membership in the American Com-
munications Association, and encouraging membership in the Com
mercial Telegraphers Union, respondents Cape Cod, Massachusetts,
^ The dissenting opinion also argues that application of the remedy of reinstatement
with back pay in this case would "make ineffective to that extent the provision in the
Act regarding the right to strike" The remedy ordered by the Board does not interfere
with the right to strike-in fact does not change the existing situation in that respect.
See footnote 18, sepia
CAPE COD TRAWLING CORPORATION 223
and Booth, respectively, have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondents have engaged in and are .engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor `Relations Act,
the National Labor Relations Board hereby orders that respondents
Cape Cod, Massachusetts, and Booth, and their officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Communications Asso-
ciation or encouraging membership in the Commercial Telegraphers
Union, or encouraging or discouraging membership in any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees, or in any other manner discriminating
in regard to their hire and tenure of employment or any term or
condition of employment because of membership or activity in Amer-
ican Communications Association or any other labor organization;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
'concerted activities for the purposes -,of.collective bargaining or other
-mutual aid-or protection, as gua anteed in `Section 7 -of cthe-National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Respondents Cape Cod, Massachusetts, and Booth shall offer
J. Irving McIntyre, Jacob Fishbein, and Eliot V. Matthews , respec-
tively, immediate and full reinstatement to their former positions
without prejudice to their seniority and other rights and privileges
and make them whole for any loss of pay they have suffered by reason
of the respondents' discrimination in regard-to their hire and tenure
of employment, by payment to them of a sum of money equal to that
which they would normally have earned as wages, including therein
the reasonable value of their maintenance on shipboard, during the
period from the date of such discrimination against them to the date
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the offers of reinstatement, less their net earnings during said
period; deducting, however, from the amount otherwise due them,
monies received by them during said period for work performed upon
Federal, State, county, municipal, or other work- relief projects, and
pay over the amount, so deducted, to the appropriate fiscal agency
of the Federal, State, county, municipal , or other government or
governments which supplied the funds for said work- relief projects;
(b) The respondents shall each post immediately in conspicuous
places on their trawlers, and maintain for a period of at least 60
consecutive days from the date of posting, notices to their employees
stating: (1) that the respondents will not engage in the conduct
from which they are ordered to cease and desist in paragraphs 1
(a) and (b) of this Order; (2) that the respondents will take the
affirmative action set forth in paragraph 2 (a) of this Order; (3)
that the respondents' employees are free to become or remain mem-
bers of the American Communications Association and the respond-
ents will not discriminate against any employee because of member-
ship or activity in that organization;
(e) The respondents shall each notify the Regional Director for
the First Region in writing within ten (10) days from the date of
this Order what steps the respondents have taken to comply therewith.
MR. WILLIAM M. LEISERSON, dissenting :
The facts in this case are very simple. The crews of three fishing
boats represented by the Atlantic Fishermen's Union refused to sail
unless the radio operator on each of the trawlers, members of the
A. C. A., were discharged. The companies did discharge the three
inen, and as stated in the majority opinion, "the existence of the
Fishemen's Union's pressure upon respondent to effect the discharge
of the A. C. A. radio operators under threat of a stoppage of opera-
tions is established beyond question."
The fishermen on each boat were within their legal rights in re-
fusing to work with A. C. A. radio operators. "Dismissal by an
employer of all employee is a proper object of concerted action by his
employees if the employee * * * refuses to become or remain a
member of a labor union satisfactory to them, or has been legally
suspended or expelled from such union." (Restatement of the Law
of Torts, American Law Institute, Chapter 38, p. 132, paragraph
790.) 3e As far back as 1842 the Supreme Judicial Court of Massa-
chusetts ruled in Coianionwealth v. Hunt, 4 Metcalf (Mass.) 111,
that in the absence of contracts the members of a union were free to
slgree among themselves to refuse to work with an employee who was
80 The majority of the Boaid apparently relied upon this authority in the Matter of
Pittsburgh Standard Envelope Company and Pittsburgh Printing Pressmen and Assistants
Union, No 40, 20 N L R B 516
CAPE COD TRAWLING CORPORATION 225
not a member of their organization. And the National Labor
Relations Act provides that nothing in the Act "shall be construed
so as to interfere with or impede or diminish in any way the right to
strike."
In view of this provision. I cannot believe that Congress intended
the employer to be held guilty of an unfair labor practice when he is
forced to dismiss an employee by a strike or by other legal concerted
activities of union members. It has, however, been decided by the
Circuit Court of Appeals for the Ninth Circuit in National Labor
Relationzs Board v. Star Publishing Company, 97 F. (2d) 465, that,
"The Act prohibits unfair labor practices in all cases. It permits
no immunity because the employer may think that the exigencies of
the moment require infraction of the statute. In fact, nothing in
the statute permits or justifies its violation by the employer." If,
iir)der this authority, the action of the respondents in the present
case must be held to constitute technical unfair labor practices, the
Act (Section 10 (c)) still leaves to the discretion of the Board the
determination whether the affirmative remedy of reinstatement
with or without back pay would effectuate the policies of the Act.
In the absence of any showing of collusion between the respond-
ents and the fishermen, and with the affirmative proof showing
losses because of refusal to discharge the employees, I cannot say,
as a matter of fact, the respondents committed unfair labor practices-
Whatever may be the conclusion of law, I am unwilling to exercise
the discretionary power of reinstatement with back pay and make
ineffective to that extent the provision in the Act regarding the right
to strike.