Cities Service Oil Co.

National Labor Relations Board - Board Decisions

Jun 23, 1941

32 N.L.R.B. 1020 (N.L.R.B. 1941)

In the Matter Of CITIES SERVICE OIL COMPANY and NATIONAL
MARITIME UNION OF AMERICA
Cases Nos. C-1798 and 0-1799.-Decided June 23, 1941
Jurisdiction : water transportation industry.
Unfair Labor ' Practices
In General: employer held responsible for activities of its "shipping master"
found to occupy a position commonly known in industry as "employment
master" and to be a representative of management.
Interference, Restraint, and Coercion: questioning applicants for employment
concerning their union affiliations ; soliciting and accepting reports concerning
membership in the "outside" union and "inside" union.
Company-Dominated Unions: representative of management held to have been
"motivating force" behind the formation and administration of a predecessor
dominated organization by : selecting its active chairman ; issuing pledge
cards ; soliciting membership in behalf of ; collecting dues ; and assisting in
drawing up tentative agreement ; indicia of domination : absence of oppor-
tunity by elected delegates or members to elect their own officers or formulate
their own program ; inactivity following its establishment-successor organiza-
tion found dominated in view of arrangement whereby membership was trans-
ferred from predecessor; the absence of dissolution or disestablishment of
predecessor; and the similarity between it and its predecessor as evidenced
by : the absence of a constitution, bylaws, or bank account ; the absence of
meetings and collective bargaining since its inception.
Discrimination: discharges for union membership and activities and failure
to join dominated organizations.
Remedial Orders : employer ordered to refuse to recognize both the predecessor
and successor; disestablishment of, not ordered inasmuch as predecessor has
become dormant and since the employer has never recognized either the
predecessor or successor ; reinstatement and back pay awarded ; as to em-
ployee found by Trial Examiner not to have been discriminatorily discharged
back pay awarded from date of discrimination to date of Intermediate Report
and from date of Order to offer of reinstatement ; reasonable value of
maintenance on shipboard added to back pay.
Evidence : notice taken of the general practice in the shipping industry that a
part of the compensation paid by the employer•to its seamen consists of main-
tenance on shipboard.
Mr. Shad Polier, for the Board.-
Hatch d Wolfe by Mr. Carver N. Wolfe, of New York City, for the -
respondent. '
Mr. William L. Standard, by Mr. Abraham Weisberg and Mr. Max
Lustig, of New York City, for the N. M. U.
Mr. Joseph F. Wilderbush, by Mr. G. H. Moziar, of New York City,
for the Association.
Mr. Bliss Daffan, of counsel to the Board.
32 N. L. R. B., No. 165.
1020
CITIES SERVICE OIL COMPANY
DECISION
AND
ORDER
1021
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by National Mari-
time Union of America, herein called the N. M. U., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Second Region (New York City), issued its com-
plaint dated July 27, 1940, against Cities Service Oil Company, New
York City, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (2), 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, accompanied by
notice of hearing, were duly served upon the respondent, the N. M. U.,
Unlicensed Employees Collective Bargaining Agency of Cities Service
Oil Company, herein called the Agency, and American Tankermen's
Association, herein called the Association.
In respect to the unfair labor practices, the complaint, as amended,2
alleged in substance that the respondent : (1) initiated and sponsored
1 The original charge in Case No. C-1798 was filed on February 17, 1939, alleging viola-
tions of Section 8 (1) and ( 2) of the Act . An amended charge was filed on April 15,
1939, alleging violations of Section 8 (1), (2), and ( 3). The original charge in Case No.
C-1799 was filed on June 4, 1940 ; an amended charge was filed on June 12, 1940; and
a second amended charge was filed July 18, 1940, alleging violations of Section 8 (1)
and (3 ). On July 18 , 1940, pursuant to Article II, Slction 36 (b), of National Labor
Relations Board Rules and Regulations-Series 2 , as amended, the Board ordered the
above cases consolidated.
2 The complaint issued on July 27, 1940 , contained an allegation that since April 1,
1940, the Agency had been known as and administered under the name of the Association.
The hearing was opened on August 2, 1940, for the purpose of taking the testimony of one
witness , and was then adjourned until August 12, 1940. Upon resumption of the hearing
on August 12, the Trial Examiner granted a motion on behalf of the Association to inter-
vene. At that time counsel for the N. M . U. stated that amended charges would be filed
in the case alleging that the Association was company dominated . Counsel for the Board
stated that when such amended charges were filed the complaint would be amended to
conform. Accordingly , a motion to file a second amended charge ( erroneously designated
as third amended charge ) in Case No . C-1798 and a third amended charge in Case No.
C-1799 was granted by the Trial Examiner on August 13 , over the objection of the re-
spondent and the Association . On August 14 a motion by the Board 's counsel to amend
the complaint to 'contain , in addition to the allegations already contained therein relative
to the Association , allegations that on about April 1, 1940 , the respondent initiated and
sponsored the Association , and caused the Agency to be thereafter continued and admin-
istered under the name of the Association , was also granted by the Trial Examiner over
the objections of both the respondent and the Association. At the time of such ruling
the Trial Examiner stated that he would recall any witness desired by the respondent
or the Association whose testimony had preceded the granting of such amendment, and
would, at the close of the Board 's case, give the parties an opportunity to present evidence
upon the issues raised by such amendment if any desired to do so. Although the respondent
now contends that its rights were prejudiced by reason of the amendment to the complaint,
it made no request during the hearing to recall any of the witnesses whose testimony
preceded such amendment , nor did it request any additional time to meet the issues raised
thereby. The same is true of the Association. Under the circumstances , it does not appear
that the respondent or the Association was prejudiced by the amendment of the complaint,
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Agency on or about January 19,1939, and thereafter dominated and
interfered with the Agency and contributed support to it; (2) on or
about April 1, 1940, cause the Agency to be transformed into. and
continued and administered under the name of the Association; (3)
discharged five employees on or about specified dates 3 because they
joined and assisted the Union and opposed or refused to join or assist
the Agency or the Association ; and (4 ) from on or about January 1,
1939, vilified , sought to discredit , and expressed hostility toward the
Union, warned employees against the Union and threatened to dis-
charge them if they joined and assisted the Union and refused to join
or assist the Agency or the Association , interrogated employees and
applicants for employment as to their affiliation with the Union:, and
solicited and accepted reports concerning membership in and activity
in behalf of the Union by employees and applicants for employment
and concerning their refusal to join or assist the Agency or the Asso -
ciation'.
In its answer the respondent admitted the allegations concerning
the nature of its business , denied that it had engaged in any of the
alleged unfair labor practices , and affirmatively averred that the
persons hereinabove named were discharged for cause .4
Pursuant to notice , a hearing was held on August 2, from August
12 to 17, and from October 28 to 30 ,' 1940 , at New York City before
Webster Powell , the Trial Examiner duly designated by the Chief
Trial Examiner . The Board , the 'respondent, the N . M. U.; and
the Association were represented by counsel and participated in the
hearing. - Full opportunity to be heard ; to examine and cross-ex-
amine witnesses , and to introduce evidence bearing upon the issues
was afforded all parties . At the conclusion of the Board 's case and
again at the conclusion of the hearing , motions by counsel for the
Board to conform the complaint to the proof adduced were granted
by the Trial Examiner without objection . During the course of the
hearing the Trial Examiner made numerous other rulings on mo-
tions and on objections to the admission of evidence .. The Board
has reviewed the' rulings of the Trial Examiner ' and finds that no
prejudicial, errors were committed . The rulings are hereby affirmed.
During the course of the hearing the Trial Examiner reserved
ruling upon several motions by counsel for the respondent to strike
' John S . Brandoiph and John R. Dickey on April 7 , 1939, Claude Baldwin on April 16
and May 28 , 1940, Ralph J. Denayer on June 6, 1940 , and Thomas Mack on June 7, 1940.
4 In a letter dated July 10 , 1940, addressed to counsel for the respondent , the Regional
Director set forth her understanding of the respondent 's explanation for the discharge of
the five complainants. On July 12, 1940 , counsel for the respondent replied, stating that
"the explanation ..-. as set forth in your letter, is substantially correct, so far as it goes,"
but reserving the right to advance other reasons if discovered . These letters were intro-
duced in evidence by counsel for the Board , without objection . The respondent 's explana-
tion for the discharges will be examined in Section III C, infra, dealing with the discharges.
CITIES SERVICE OIL COMPANY 1023
certain testimony. Likewise, ruling was reserved by the Trial Ex-
aminer on motions by counsel for the respondent and counsel for
the Association, made, at the conclusion of the Board's case and at
the conclusion of the hearing, to dismiss the complaint and certain
allegations thereof.
On January 29, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he denied the motions upon which ruling had been reserved by
him in all respects except as to the respondent's motion to dismiss
the allegations of the complaint concerning the discharge of Thomas
Mack. The Trial Examiner found that the respondent had engaged
in' and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2), and' (3) and Section 2
(6) and (7) of the Act. He recommended that the respondent cease
and desist from the unfair labor practices so found and take certain
affirmative action of remedial nature. He also recommended that
the complaint be dismissed - in so far as it alleged discrimination
with respect to the hire and tenure of employment of Thomas Mack.
Exceptions to the Intermediate Report were filed by the respondent,
the Association, and, as to the portion of the Intermediate Report
recommending dismissal of the complaint as to Thomas Mack, by
the N. M. U. The respondent and the Association also filed briefs.
Pursuant to notice duly served upon all parties, a hearing was
held on April 10, 1941, at Washington, D. C., before the Board for
the purpose of oral argument. The respondent, the Association,
and the N. M. U. were represented by counsel who participated in
the argument.
The Board has considered the exceptions and the briefs filed and,
save as the exceptions are consistent with the findings of fact, con-
clusions of law, and order, set forth below, finds them to be without
merit.
Upon the entire record in the .case, the Board makes the follow-
ing :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Cities Service Oil Company, is a Pennsylvania
corporation with its principal office in New York City. It is a sub-
sidiary of Cities Service Company, a Delaware corporation.
The respondent is engaged in the production, refining, marketing,
and transportation of petroleum and petroleum products and op-
erates refineries in the States of Massachusetts, New Jersey, and
Pennsylvania. Branch sales offices of the respondent are located in
14 States of the United States. It operates a fleet of 14 ocean-going
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tank vessels which transport - approximately 20,000,000 barrels of
petroleum and petroleum products annually. The majority of the
voyages made by these vessels are between United States ports in
the Gulf of Mexico and' Atlantic Coast ports in various States of
the United States. These vessels occasionally transport cargo be-
tween the United States and foreign countries. The total number
of, persons employed on each of the respondent's vessels normally
varies from 37 to 39 and the total number of the unlicensed personnel
normally varies from 28 to 30. ,
The present proceedings are concerned only with the tanker vessel
operations of the ,respondent.
', We find that Cities Service Oil Company, in the operation of its
tanker vessels, is engaged, in traffic, transportation, and commerce
among the several States of the United States, and that its em-
ployees thereon are directly engaged in ' such traffic, transportation,
and commerce.
II. THE ORGANIZATIONS INVOLVED
National Maritime Union of America, is a labor organization, af-
filiated with the Congress of Industrial Organizations, admitting to
membership unlicensed personnel employed on the respondent's oil
tankers.
Unlicensed Employees Collective Bargaining Agency of Cities
Service Oil Company is an unaffiliated labor organization, admitting
to membership unlicensed personnel on the respondent's oil tankers.r,
American Tankermen's Association is an unaffiliated labor organi-
zation, admitting to membership unlicensed personnel on the re-
spondent's oil tankers.
III. TIIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Sometime in 1937 the N. M. U. began its organizational activities on
tankers of the respondent. In December 1937 after an election con-
ducted by the Board, the Board certified the N. M. U. as the bargaining
agent of the unlicensed personnel on board the respondent's ships." In
the latter part of 1938 or early 1939 Joseph Hamilton and Louis Prieto
on three occasions, went to the respondent's employment office seeking
work. On the first visit Prieto and Hamilton were first interviewed by
John Powers, shipping master, in Powers' office. After they had filled
The evidence discloses ` that the Agency is now inoperative and that the membership
of,the Agency was transferred to the, Association in a number of instances. There is no
evidence that the Agency was ever formally dissolved.
U Matter of American France Line et al. (Cities Service Oil Company) and International
Seamen 's Union of America, 4 N. L. R. B. 465.
CITIES SERVICE OIL COMPANY 1025
out application forms they waited the rest of the day there to see if
any job3 were then available. While they were in the office, where a
number bf men were congregated, the N. M. U. was mentioned at least
once and Powers referred to it as "those lousy rank and filth." 7 Ham-
ilton heard- Powers use the expression "rank and filth" three or four
times that day. According to Prieto, while Hamilton and. he were
being interviewed by Powers in the latter's office, Powers noticed that
Hamilton was wearing an N. M. U. button and immediately "asked Ham-
ilton whether he was a member: Hamilton replied in the negative.
Either Hamilton or Prieto then asked Powers if that made any differ-
ence. Thereupon Powers characterized Joseph Curran, president of
the N. M. U., as a "rum pot, drunkard," and stated that he did not want
any "rank filth in here." Sometime in April or May 1939 John J.
White applied for employment. White testified that while he was
waiting in Powers' office to be interviewed he heard Powers, who was
about 3 feet away from him, talking to other applicants. The perti-
nent part of White's testimony, which was undenied and which we
credit, as did the Trial Examiner, as to what he saw and heard follows :
"The usual procedure was for them to show their papers, discharges,
and so forth. On at least two occasions I saw men standing at the desk
while they applied for employment, took [take] out their papers '. . .
and among their papers were their union books and picket cards for
the strike that was . . . on at that time. And Mr. Powers . ... in
thumbing their papers he saw these picket cards and union books,
N. M. U. books, and he remarked at the time that it was more or less
useless for them to seek employment with the Cities Service." 8 At this
time these men did not fill out applications for employment.
In June 1939 Hugh Alexandra Connington applied for work. Be-
fore he was given an application blank Powers asked Connington if
he belonged to any union. Conning ton replied in the negative and was
then allowed to fill out a blank. The conversation took place in Powers'
office. While this question was being asked and answered, one of ' the
seamen sitting in the office said, "Powers don't 'like :the Unions,". to
which' Powers replied, "Damn right'I don't like the Union: It is just
a damn bunch, of thugs." In July 1939 Charles H. Smith was inter-
viewed by Powers and was asked whether or not he belonged to the
N. M. U. Smith replied in the negative, whereupon Powers,said in
substance that it was good that he did not belong because he could get
a job sooner if he did not belong to the N. M. U. In March'1940, while
Smith was working on the S. S. Cities Service Hadnot, First Assistant
Engineer Max Wend a noticed a copy of the N. M. U. paper, the Pilot,
The N. M. U. was known as a rank and file union among seamen on the east coast.
The strike referred to by white was the strike conducted by the N. Al. !U against several
tanker companies , not including the respondent , which began on April 1939. '
9 Sometimes erroneously referred to as wind in the transcript,
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Smith's bed and asked Smith where he had obtained it. Wend went-
on to say that he did not like the unions "especially the N. M. U.,' It was
mostly Communists and Reds, in the Union." Wend did not testify.
According to the testimony of Raymond: Hamilton, brother of Joseph,
between January 10 and 15, 1940, while he was in the "standby room", 10
talking to three other men about the N. M. U., he noticed Powers listen-
ing to what he was saying and heard Powers say that he "wasn't hiring
any N.' M. U. men."
On February 28, 1940, Glenn Harry Casner was interviewed by
Powers in the latter's office .- He denied belonging to the N. M. U. and
testified that thereupon Powers advised him that he "would most likely
be approached by union fellows on the ship and he told me that if that
happened, why, to tell them what could the Union get me that I couldn't
get myself." Sometime between May 13 and 21, 1940, Francis Atwood,
who had been working on the Oklahoma as a maintenance man, was
replaced at the end of a voyage at Boston by another person. He tes-
tified that he returned to New'York and asked Powers why he had not
been allowed to ship out again and also told Powers that he had heard
rumors from the cook that the reason he had not been allowed to ship
out "was due • to the steward reporting the office that I had talked
N. M. U." Powers then told Atwood that he could not organize the
respondint's ships, and that if he did so he, Powers would "look out"
for Atwood.. Subsequently, Atwood was given a job as utility man on
the Missouri.
Powers did not testify and the above. testimony of Board witnesses
as to his anti-union remarks stands uncontradicted in the record. Al-
though there is some vagueness as to the dates when some of the remarks
were made, and there are-slight divergencies between the testimony of
witnesses relative to the same incident as to the exact words used b3
Powers, the testimony of the various witnesses as to Powers' conduct
presents a credible picture of Powers' very definite hostility to the
Union. We accept, the testimony, hereinabove set forth, of, Joseph
Hamilton, Prieto, White, Casner, Connington, Smith, Raymond Ham-
ilton, and Atwood, as did the Trial Examiner , as a substantially, correct
account of Powers ' activities against the N. M. U. during the period in
question. .
During the course of the hearing, a number of employment applica-
tion forms which were filled in by employees of the respondent between
November 10, 1938, and.the date of the hearing, were introduced in evi-
dence. From an examination of these documents and from the testi-
mony hereinafter set forth regarding this matter, we find that prior to
11 Sometime in 1939 a room known , as the "standby room" or "hiring hall" was set up
by the respondent as a waiting room for job applicants , who had previously had to wait
in Powers ' office across the hail to be interviewed.
CITIES SERVICE OIL COMPANY 1027
January or February" 1939 all applicants for, employment in the clas-
sification of unlicensed personnel on the respondent's tankers were
required- to state their union affiliation, if any, in the space provided
therefor on the application.
-' John.Braridolph, one of the employees named in the complaint, tes-
tified that on about April 3, 1939, his supervisor, the steward on board
the Oklahoma, told him,- "You know that on each of these ships there
is one man that sends reports in of all union activities to the Cities
Service main office at Wall Street.?' On April 7 Brandolph was dis-
charged, as hereinafter set forth. When he asked the steward why he
was being discharged, the steward replied, "I don't know a thing about
it. They are the orders from the New York office." Claude Baldwin,
another employee, testified that on April 16, 1940, Max Wend, first
.assistant engineer on the Hadnot, informed him that he was not to sign
on for the next 'voyage of the Hadnot, and that when he asked Wend
the reason therefor" Wend replied, ."Well, something rotten in Den-
mark, I don't. know what it is." Baldwin's immediate superior, Second
Assistant Engineer Long, and Captain G. C. Finn both denied any
knowledge of his discharge. Finally, Baldwin asked Chief Engineer
John Betch the reason for his discharge. Betch then asked Baldwin,
"Have you been busy with some union business on here?" When Bald-
win stated that he had,-Betch said, "Well; that was why you were fired."
During the voyage of the Denver between May 28 and June 5, 1940,
Ralph Denayer, one of the employees named in the complaint, heard
George Rickards,!" the- first assistant engineer, discussing the Associa-
tion with John Morganstern, a pumpman. Rickards asked Morgan-
stern, who was the Association representative on board the Denver,
how many new members he had enrolled that day. Morganstern re-
lilied that he was doing fairly well. On another occasion during the
same voyage Denayer overheard Morganstern tell Rickards that he
had the ship "pretty well organized." We credit, as did the trial
Examiner, Denayer's testimony as to.these occurrences. We find that
the respondent solicited and accepted reports concerning membership
in the N. M. U. and in the Association.,
The respondent contends that John Powers had no supervisory au-
thority; that he was merely the individual who accepted applications
for employment and passed them on to Captain Deshler for final ap-
proval; that, therefore, the respondent was not responsible for the
acts of Powers, and the uncontradicted testimony concerning his anti-
union activities, hereinabove set forth, and his activities in connec-
tion with the Agency and the Association, as hereinafter set forth,
is incompetent and not binding on the respondent. Powers did not
testify. According to the testimony of Board witnesses and of the
n Variously spelled Reichert and Rickards in the transcriDt.
448692-42-vol. 32--66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's sole witness, Captain Deshler, in charge of the respond-
ent's personnel in its marine operations, Powers occupied an office
which was next to that of Deshler. Powers, who bore the title of ship-
ping master, was the first man with whom applicants for work on
the respondent's tankers came in contact. Powers interviewed practi-
cally, all applicants for unlicensed personnel jobs on the respondent's
tankers. After a man was informed by Powers that he had been as-
signed to a ship, he was in many instances taken to that ship by
Powers. While Deshler testified that after an applicant for employ-
ment was interviewed by Powers he was also interviewed by Deshler,
several Board witnesses testified without contradiction that they were
hired by Powers and went to work on one of the respondent's vessels
without seeing Deshler. When in Powers' opinion a man was not
qualified for a position which was open or for any work on the tankers,
Powers refused the applicant work without consulting Deshler, at
least in cases where the applicant had not previously been at sea or
his seaman's papers were not in due form. The applications of men
whose qualifications did not appear to fit them for work available at
the time of application were filed by Powers, and the men were either
told to come back at a later date or were told that Powers would get
in touch with them if their services were needed. The respondent
contends that Powers did not have authority to hire or discharge.
There is no testimony in the record that Powers ever discharged any-
one, although there is testimony hereinafter set forth, which we accept
as true, that on one occasion he threatened Brandolph with the loss
of his job. In his capacity as shipping master,12 interviewing appli-
cants for employment and • deciding who would be given an oppor-
tunity to be considered for employment, Powers occupied the position
commonly known in industry as employment manager and as such
he was clearly a representative of management and appeared as such
to employees,'both those applying for jobs for the first time and those
seeking reemployment. In dealing with the question of the employer's
responsibility for the acts of subordinate employees, the Supreme
Court of the United States in its opinion in the Serrick case 13 stated :
Petitioner's argument is that since these men were not super-
visory their acts of solicitation were not coercive and not attribu-
table to the employer.
The employer, however, may be held to have assisted the forma-
tion of a union even though the acts of the so-called agents were
n Powers became shipping master in October 1938. From 1930 to 1936 Powers worked
for the respondent on various ships. During this period Powers' last job was that of
boatswain on the S S Cities Service Denver A boatswain is a petty officer with immediate
supervision over the unlicensed deck personnel.
13 International Association of Machinists , Tool and Die Makers Lodge No. 35, etc. v.
National Labor Relations Board, 311 U. S. 72; see also The Atlas Underwear Company v.
National Labor Relations Board, 116 F. (2d) 1020 (C. C. A. 6).
CITIES SERVICE OIL COMPANY , 1029
not expressly authorized or might not be attributable to him on
strict application of the rules of respondent superior. We are
dealing here not with private rights (Amalgamated Utility Work-
ers v. Consolidated Edison Co., 309 U. S. 261) nor with technical
concepts pertinent to an employer's legal responsibility to third
persons for acts of his servants, but with a clear legislative policy
to free the collective bargaining process from all taint of an em-
ployer's compulsion, domination, or influence. The existence of
that interference must be determined by careful scrutiny-of all
the factors, often subtle, which restrain the employees'- choice
and for which the employer may fairly be said to be responsible.
Thus where the employees would have just cause to believe that
solicitors professedly for a labor organization were acting for
and on behalf of the management, the Board would be justified
in concluding that they did not have the complete and unhampered
freedom of choice which the Act contemplates. ,
Even accepting as correct, therefore, the respondent's contention, that
Powers had no authority to hire or discharge, we find that Powers
was, nevertheless, a trusted employee in an important supervisory
position for whose activities the respondent is responsible.
In its exceptions and brief the respondent contends that it had no
knowledge of any anti-union activities -on the part of Powers until
January 30, 1939, and that when it gained such knowledge it "dis-
avowed any alleged anti-union activities of the said Powers" by "the
letter of February 9, 1939." No such letter as that described by the
respondent appears in the record nor is there any other evidence of
any disavowal by the respondent of Powers' anti-union activities.
However, even had the respondent issued a letter or notice on February
9, 1939, disavowing Powers' anti-union activities, as claimed, our
findings relative to its responsibility for Powers' acts would be the
same since it was the respondent's duty to make its disavowal effec-
tive.14 This it did not do since Powers remained in his position of
shipping master after the claimed disavowal and continued to engage
in anti-union activities.
We find, as did the Trial Examiner, that by the activities and the
statements of Powers and the statement of Wend hereinabove set forth,
by the questioning of applicants for employment concerning their
union affiliations, and by soliciting and accepting reports concerning
membership in the Union and the Association, the respondent dis-
couraged membership in the Union and interfered with, restrained,
"See National Labor Relations Board V. Swift & Co., 106 P. ( 2d) 87 ( C. C. A. 10)
enf'g as mod . Matter of Swift & Company , a corporation and Amalgamated Meat Cutters
and Butcher Workmen of North America , Local No. 641, and United Packing House
Workers Local Industrial Union No. 300 , 7 N. L. R. B 269.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Domination of and interference with the formation and adminis-
tration of the Agency and the Association
1. The Agency
In January 1939 the Agency came into existence. James C.
Hanaway, who was a fireman on the S. S. Cities Service Empire on
November 21, 1938, when he quit his job temporarily for personal
reasons, testified as follows concerning the formation of the Agency :
Beginning on December 27, 1938, after filing an application for
employment,15 Hanaway paid a regular daily visit to the respondent's
employment office to see if work was available for him. In January,
on one of these visits, John Brady, then 'an oiler on one of the
respondent's tankers, stated that he had been told by Powers to ask
Hanaway whether he was interested in the "organization being
formed within the company for the men." When Hanaway replied
that he was interested, Brady took Hanaway to see Powers,. and
Powers, a few days later, on or about January 25, 1939, asked Hana;
way to be acting chairman of the organization.1' During the second
conversation, Powers informed Hanaway that Carlos Kernodle, then
employed as boatswain on the S. S. Cities Service Denver, would be
his assistant.17- Powers at this time also showed Hanaway pledge
cards already printed which stated that the person signing the card
desired to have the "Unlicensed Employees Collective Bargaining
Agency" as his sole representative for the purpose of collective bar-
gaining with the respondent. On January 30, 1939, Kernodle ad-
dressed a letter to Thorwald Jensen, marine superintendent of the
respondent, stating in substance that he had been secretly organizing
the personnel of the respondent's ships into the Agency and inform-
ing Jensen that Hanaway was acting as chairman and he himself
was acting as secretary and treasurer and that they had received
the consent of the employees of the respondent's ships to act in the
above capacities and desired to place a ballot on said ships immedi-
ately. Soon thereafter Jensen asked Hanaway whether he knew
Kernodle and whether he had seen the above letter. Hanaway re-
15 At the end of each period of employment, employees were required to fill out new
application blanks.
16 Hanaway first testified that sometime in the latter part of January he became acting
2hairinan of the Agency "by request of some of the men that thought they wanted to form
a company union, a union within the company by the men on the [Cities Service] ships."
He also testified that Brady appointed him acting chairman of the new organization. In
the light of all the evidence, we credit, as did the Trial Examiner, Hanawway's testimony
that lie became acting chairman upon Powers' request
11 Kernodle's title in the Agency was acting secretary-treasurer.
CITIES SERVICE OIL COMPANY 1031
plied that he had not yet met Kernodle, but expected to meet him
before long. A few days later Powers introduced Hanaway to Ker-
nodle. Hanaway and Kernodle took up residence at 315 West Street,
New, York ^ City, and maintained an office for the Agency at that
address.
During the latter part of January and the early part of February,
Powers solicited the unlicensed personnel on the ships and Powers,
Kernodle, and Hanaway solicited men applying for work at the em-
ployment office to sign Agency pledge cards. Hanaway signed up
approximately "100 'of the men in the employment office while they
were waiting to-be shipped out. Kernodle likewise obtained signa-
tures on company property.
From time to time Powers discussed with Hanaway on the respond-
ent's property during working hours how Hanaway and Kernodle
should organize the Agency. About 3 weeks after Hanaway and
Kernodle began organizing, Hanaway asked Powers how he and
Kernodle were going to live while organizing the Agency and how
they were going to get on the ships to organize the men there.
Powers then agreed to pay them $45.00 per week. Actually Hanaway
and Kernodle only received $30.00 per month during the period they
worked for the Agency. In reply to Hanaway's query about con-
tacting the men on the ships, Powers instructed, him to ask Jensen
for ship passes. • Jensen refused to issue passes to Hanaway and
Kernodle. ' When Hanaway communicated this refusal to -Powers,
the latter then took over the task of signing up the men on the ships.
Sometime during January or February Powers informed Hanaway
that he was collecting money from the men on board the ships and
showed Hanaway the membership cards which he was getting the
men to sign. Eventually, Powers turned over about 250 signed mem-
bership cards to Hanaway. Powers never informed Hanaway, of the
number of persons from whom he had collected dues, but stated on
one occasion that he had collected $200.00. Powers never turned any
money over to Hanaway. When Hanaway inquired as to what was
being done with the money, Powers replied that it was being used
for organizational purposes. At the end of the first month Hana-
way had in his possession about 351 signed pledge and membership
cards out -of approximately 390 employees then employed as fin-
licensed personnel on the respondent's ships, all or most of which
had been secured through the efforts of Powers, Kernodle, and him-
self. At that time, it was their intention, according to Hanaway,
to request designation from the Board as bargaining agent for the
unlicensed personnel.
During the fourth week of January 1939 Powers called Brandolph,
a former mess boy on the S. S. Cities Service'Hadnot, into his office.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brandolph was at that time waiting for reemployment. Powers
asked Brandolph to sign an Agency pledge card. Brandolph asked
what the card was for. Powers replied that "It was a company union
being formed by the unlicensed personnel of the marine department
of Cities Service." Brandolph did not sign the card at the time but
did sign a pledge card 2 or 3 days later. Powers informed Bran-
dolph that he could pay the $5 initiation fee at the end of his first
trip. After Brandolph had signed the card, Powers took him to
Deshler's office saying, "This is the mess boy for the Cities Service
Oklahoma." A few minutes later Powers told Brandolph to report
with his gear on the following morning to go abroad the Oklahoma,
and on the following morning, February 2, Powers took Brandolph
down to the ship where the latter reported to the ship steward in
charge of the steward department in which the mess boys worked.
About 11: 30 a. m. on the same day, Powers walked into the mess
room followed by several seamen, while Brandolph was going about
his duties in preparation for luncheon which was to be served about
12 o'clock. Powers there informed the men that the unlicensed per-
sonnel were organizing the Agency and that 90 per cent of the men
on the other ships were signed up, and then asked those present to
sign- pledge or membership cards in the Agency. Several of the
men' signed the cards furnished by Powers, who collected a, $5 initia-
tion fee from six or seven of them. Others promised to pay the fee
at. the end of the trip. Powers also instructed the men that as soon
as they were at sea, they should call a meeting and elect department
'delegates and a ship delegate to represent the ship as a whole and
also told the men that it was up to them to send the ship's delegate
to New York on the return voyage at their own expense. Powers
promised to meet the ship when it reached its northern destination,
Boston.
On February 2, 1939, while on board the Oklahoma, John Dickey,
an oiler on the Oklahoma, was approached.by Powers who told him
that he wanted an experienced union man to act as a delegate and
organizer on that ship. Dickey then asked whether Powers was re-
ferring to the N. M. U. Powers said that he was not and Dickey
then asked him whether the ' respondent knew anything about the
union to which Powers was referring. Powers replied that it did.
A little later on the same day Dickey again met,Powers, this time
in the fireman's forecastle, and Dickey and three other men then
joined the Agency. Dickey paid his $5 initiation fee.
Pursuant to the instructions which Powers had given in the mess
room of the Oklahoma on February 2, Brandolph called a meeting
of,the unlicensed personnel by posting a notice signed by himself
on the bulletin board in the mess room of the 8. S. Cities Service
CITIES SERVICE OIL COMPANY 1033
Oklahoma giving the time and place of the meeting. At the meet-
ing delegates were elected from the engine department and the
steward's department. Brandolph was elected delegate of the
steward's department and also ship's delegate. The men attending
the meeting also voted to allow the ship's delegate, while represent-
ing the ship, $5 per day to be paid by the men. On the return
trip north, a second meeting was held shortly before arrival of the
Oklahoma at Boston on February 24 at which Dickey turned over
a proposed agreement to Brandolph, which the latter was instructed
by the unlicensed personnel to take ashore with him to the con-
ference in New York. On February 24, when the ship arrived in
Boston, Powers failed to meet the ship as he had agreed. Instead
Brandolph received an envelope from Powers, enclosing a tentative
agreement.
On February 25 Kernodle and Hanaway sent a letter to Jensen,
the respoildent's marine superintendent, containing an explanation
of the tentative agreement received by Brandolph from Powers and
enclosing a copy of the same agreement received by Brandolph. This
letter reads as follows:
Enclosed you will find a complete copy of the Tentative Agree-
ment that has been placed aboard all of the Cities Service Oil Co.
ships.
This Agreement has been drawn up by a committee consist-
ing of five Members of the Unlicensed Personnel from the Cities
Service Ships.
We are sending you this copy for Your approval if, said
Tentative Agreement meets with your satisfaction which we
hope it shall.
This Association has been formed and to date had met with
the approval of more than Seventy five percent of the unlicensed
Personnel aboard the present ships.
We should like to have yc,u voice your opinion on the enclosed
copy of the Tentative Agreement.
There is no evidence as to whether or not Powers was one of the
persons who helped in the actual drafting of the agreement. Powers
brought ashore two men named Renner and Parks from ships of the
respondent for 3 weeks and 1 week, respectively, to help Kernodle
and Hanaway draft the tentative agreement. Renner was paid.by
Powers, and Parks was paid by Hanaway for the time so spent.
We find that said agreement was drafted by men brought to New
York for that purpose by Powers and that had it not been for
Powers,, no agreement would have been prepared at that time.
The tentative agreement contained provisions with respect to the
shipping of employees, living conditions, grievance procedure, over-
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time pay, holidays, and the hours, of work and duties of engine de-
partment personnel. In addition, it provided for the election of
delegates from each ship to act as representatives of the men, a mat-
ter which would seem not to be proper subject for inclusion in a
collective agreement but rather one with which only the labor organ-
ization and its members would be concerned. The tentative agree-
ment also provided that the shore representatives, who had been
selected by Powers, "will see that the men aboard all ships who are
members of the * * * Agency, be given preferential employment
aboard all ships in the event that said members are in good standing
and satisfactory employees." Hanaway' discussed this proposed
agreement with Jensen and Atkins, but the respondent did not agree
to any of its provisions.
On February 25 the Oklahoma again left Boston on its way south
to the Gulf of Mexico. A few days later Brandolph held a meeting
of the unlicensed personnel to consider the tentative' agreement.
Again Brandolph posted a notice bearing his signature on the ship's
bulletin board. Brandolph told the men at the meeting that the
agreement was "an insult to their intelligence" and suggested that
they "throw the whole proposed agreement overboard and finish up
and not pay any more initiation fees or dues in this Bargaining
Agency." Dickey also attended the meeting and told those present
that he agreed with the position taken by Brandolph. Dickey pro-
posed that when the ship returned to a northern port, the men who
had already paid their initiation fees should demand the return
thereof. These proposals were adopted at the meeting. Brandolph
then suggested that letters be written to the other ships explaining
what action had been taken by the men on the Oklahoma, and that
a letter to Powers be written, stating that the unlicensed personnel
on the Oklahoma did not care to have any further relationships
with the Agency. There is no evidence that any of the ship's officers
attended this meeting. Brandolph wrote a letter to the other ships,
dated March 1, 1939, and a letter to Powers, dated March 8, 1939,
pursuant to the above instructions. In the letter to Powers, Bran-
dolph stated that the crew of the Oklahoma found the proposed agree-
ment "entirely unsatisfactory," asked who had elected the officers and
why the membership had not been consulted on the tentative agree-
ment, and warned Powers that unless steps were taken to draw up an
agreement satisfactory to the general membership, the crew would
renounce their membership and take steps "to protect our paid dues
and fees."
On March 17 the Oklahoma arrived in Boston. Powers immedi-
ately came on board and approached Brandolph, who was working
in the mess room, and asked him, "Who the hell are you that I have
CITIES SERVICE OIL COMPANY 1035
to see you in reference to union business?" Brandolph replied that
he was the ship's delegate. Powers then took a letter out of his
pocket and asked Brandolph if this was the letter he had written.
Brandolph identified it as the letter he had mailed to Powers from
Galveston, Texas, with the approval of the general membership on
board the Oklahoma. Powers then said, "I'll clean the whole crew
out in an hour," and then asked Brandolph for his $5 initiation fee,
at the same time handing Brandolph his membership card. Bran-
dolph handed the card back to Powers saying that the members 'had
decided to have nothing further to do with the Agency. Powers
then remarked to Brandolph, "Your job isn't any too secure on this
ship," ' and walked out of the mess room. Dickey testified that on
March 17 he heard Powers tell Brandolph, "Your job isn't any too
secure, so you better watch your, step." Brandolph never-spoke to
Powers about the Agency after the above incident.
On March 18 the 'Oklahoma again sailed for Gulf ports. Shortly
thereafter Brandolph again posted a notice signed by him of a meet-
ing to be held on the aft deck of the ship. According to Brandolph,
he urged the men at this meeting to join the N. M. U. and offered to
make arrangements for them to sign up with the N. M. U. when the
ship reached the Gulf port. Thereafter, Dickey called a second
meeting by a notice bearing his signature which he posted 'on the
bulletin board. Dickey also at this time urged the ' men to join the
N. M. U.• and gave them directions as to where the N. 'M. U. repre-
sentative might be contacted. In accordance with these directions,
approximately 12 of the unlicensed personnel met an N. M. U. rep-
resentative- at Houston, Texas. Nine of the 12, including Dickey,
joined the N. M. U. after an interview with said representatives, and
3 others paid their lapsed dues.
The foregoing findings concerning the activities of Brandolph
and Dickey in the Agency and the N. M. U. is based upon their un-
contradicted testimony which we credit, as did the Trial Examiner.
Although there is no evidence that the meetings of the crew on
the Oklahoma or the notices pertaining' to them were attended or
seen by anyone serving on the vessel in a supervisory capacity, it is
reasonable to infer from the public character of such 'meetings and
notices, and we find, that the various meetings held by Brandolph
and Dickey between February 2 and March 25 dame to the attention
of the supervisory personnel on board the Oklahoma.
Sometime in March Kernodle left the rooming house occupied by
Hanaway and himself, and Hanaway testified that he did not know
whether or not Kernodle thereafter engaged in any activities on
behalf of the Agency. According to Hanaway's testimony, he had
asked Powers on a number of occasions what he was doing with the
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
money he had been collecting and Powers replied that he was using
it for organizational purposes. This, according to Hanaway, made
him believe that something "phoney" was occurring in the orgt.niza-
tion. On or about April 20 Hanaway notified Powers that he had
turned over the key to the office of the Agency to the landlady with
instructions that the bill for the rental of the office would be paid by
Powers. Hanaway testified that he had no knowledge of any activi-
ties on the part of anyone on behalf of the Agency after May 1939.
The Agency never adopted any constitution or bylaws. The tentative
agreement which was discussed between representatives of the Agency
and representatives of the respondent was never entered into. From
all the evidence, we find that sometime during the spring of 1939 the
Agency, having been abandoned by its two acting officers, became
dormant. There is no evidence, however, that it was ever formally
dissolved.
From the evidence hereinabove set forth, we find that Powers was
the motivating force behind the formation and administration of the
Agency. Powers selected Hanaway as Acting Chairman of the
Agency, issued pledge cards to Hanaway, and discussed the organiza-
tion of the Agency with him. Powers solicited membership in the
Agency and collected dues on the respondent's ships. On at least
one occasion this activity occurred during working hours. Powers
also gave instructions to some of the unlicensed personnel to hold a
meeting on the Oklahoma and elect Agency delegates. It was under
Powers that the tentative agreement was drawn up. Powers had
exclusive control of the funds of the Agency. At no stage in the
active existence of the Agency were the elected delegates or the mem-
bers afforded an opportunity to elect their own officers or.formulate
their own program. Although Jensen was told that the Agency was
being organized at the time of its formation, refused to issue ship
passes to acting officers of the Agency, and discussed a tentative
agreement with its acting officers, there is no evidence as to whether
Jensen or any other officer of the respondent was directly informed of
Powers' active participation in the Agency's formation and admin-
istration. Nevertheless,, as we have found in Section III A, supra,
the respondent is responsible for the acts of its shipping master,
Powers. Without his activities, there would have been no Agency.
We find that the respondent by the above-described course of con-
duct dominated and interfered with the formation and administra-
tion of the Agency and contributed support to it and that the re-
spondent thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
CITIES SERVICE OIL COMPANY
2. The Association
1037
Sometime between September 3 and 12, 1939, while employed on
the S. S. Cities Service Missouri, Smith, Powers, and the chief cook
had a conversation about unions. The chief cook asked Powers what
he' was going to do about "this little card of paper he had paid $5
for," showing Powers his membership card in the Agency., Powers
then told the cook that "they were going to organize in the American
Tankermen's Association" and that the cook would be given credit
for the $5 already paid. Powers also advised Smith to join the As-
sociation. Smith testified that he could not remember whether
Powers said that the Association was being organized, was to be
organized, or was already organized. ..
According to the testimony of Frederick Saar,18 the Association
came into being in May 1940 following a conference between two
employees, R. H. Kiehn and Louis Reichert, possibly other employees
whose names he could not remember, and himself. Although the
evidence is vague as to the reason these men met to discuss the forma-
tion of the Association, the general purpose appears to have been
to provide an organization which would give unlicensed personnel
something in exchange for the $5 initiation fee which many of them
had paid to the Agency, from which they had never received any
benefits.19 Saar, Kiehn, and Reichert agreed that Saar should act
as port representative of the Association and that Kiehn and Reichert
should organize the men on the ships. Saar was also to secure repre-
sentatives of the Association on the various ships. Saar acted as chair-
man and secretary-treasurer of the organizing committee of the Asso-
ciation. At the date of the hearing, the Association had no constitu-
tion or bylaws and no officers other than Saar, who continued in the
above capacities from the inception of the Association to the date of
the hearing.
Shortly after the Association was organized , Saar had a conversation
with Jensen concerning it. Jensen wanted to know who had started the
Association and who had given Saar authority to start it. According
to Saar, Jensen "raised particular devil and he said I had no business to
start it without anybody knowing anything about it." At the end of
the above conversation Jensen told Saar to "stop this nonsense." Saar
is Sometimes spelled Saars in the record . Saar acted from time to time, beginning
I. February 1939, as night watchman on a contractual basis for the respondent at several
of its north Atlantic ports. Substantially all the time Saar worked was spent. in the
employ of the respondent from that date until the date of the hearing. He worked, how-
ever, on a few odd jobs elsewhere during this period.
m Saar testified that Kiehn and Reichert told him at the above-described conference
that "the men were not satisfied that anything was being done for them by the Agency,
that they had paid their $5 and had not gotten anything out of it." Saar testified that
in addition he, Kiehn, and Reichert believed that if the N. M. U . organized the respondent's
employees "the men would never be sure of getting back to the same company."
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that it was too late as he already had more than half the ships
organized . Saar testified that prior to his conversation with Jensen
he had kept the fact that he was organizing as quiet as possible, inter-
viejving the men about joining the Association without letting anybody
in a supervisory capacity see him. Jensen made no further attempt
to' interfere with Saar 's activities.
Early in May, shortly after the above conversation , Saar had mem-
bership books in the Association printed and distributed them-to
Reichert, Kiehn, and other representatives . In June 1940 while on
board the S. S. Cities Service Boston , then docked at East Braintree,
Massachusetts , Saar told Hanaway that he was reorganizing the
Agency, and that he had been told that Hanaway was to have nothing
to do with it. On this occasion Saar, who-was carrying a brief case,
stayed on board the ship only a short time . Immediately after Saar's
'visit to the Boston ', membership books of the Association appeared in
the possession of ,John Winslow ,- an orderly on board the ship. Wins-
low informed Hanaway that he had obtained the books from Saar.
Although other members of the crew were asked to join and did join
the Association subsequent to this conversation , Hanaway was never
asked to join.
According to the records of the Association , 78 persons who were
members of the Association at 'the time of the hearing were persons
who had been given credit for $5 payments made previously to the
Agency, $2 being applied to pay the Association initiation fee and $3 to
pay for 6 months ' dues in the Association . Saar testified that the
Agency cards ( of the above persons ) in his possession were "taken in
as' exchange through the American Tankermen 's Association." New
books were then issued to these men by the Association . In addition
to the 78 men whose payments to the Agency were thus credited to the
Association , over 130 persons joined the Association in May , June, and
July by the payment of an initiation fee of $2 per person.
We have 'found above that the Agency was a labor organization con-
trolled and dominated by the respondent . , The Agency was organized
at the instance and under the constant guidance of Powers , the, re-
spondent's shipping master. • A few months after the Agency became
inactive , Powers informed an employee who belonged to the Agency
that the Association was to be organized and that he would be given
credit for the $5 he had previously paid the,Agency., Thereafter, on
about May 1, 1940 , the Association came into' being and between May 2
and July 1, 1940, in accordance with Powers' promise , 78 members of
the Association "received membership books in the Association in ex-
change for membership cards in the Agency , and the money which
they had previously paid into the Agency was credited on the books of
the Association , in, payment of initiation fees and dues in the Asso-
ciation.
CITIES SERVICE OIL COMPANY 1039
In view of this arrangement whereby membership was transferred
from the Agency to the Association, the employees in general could
hardly have considered the Association as other than the successor to
the Agency, and.since the respondent at no time had dissolved or dis-
established the Agency, the Association, as its successor, obtained the
benefit of the respondent's apparently continued favor.20 Furthermore,
although the evidence is vague on some points as to the origin of the
Association, Powers' connection therewith, though perhaps not as
extensive as his connection with the Agency, is clear and undisputed.
Like the Agency, also, the Association had no constitution, bylaws, or
bank account, and conducted no meetings among its members from its
inception to the date of the hearing. Nor did the Association make
any attempt to engage in collective bargaining on behalf of its
members. ,
We find, as did the Trial Examiner, that the respondent, by the
above-described course of conduct, dominated and interfered with
the formation and administration of the Association and contributed
support to it and that the respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
C. The discriminatory discharges
The complaint as amended,' alleged that John S. Brandolph, Joliii
R. Dickey, Claude Baldwin, Ralph' 'J. Denayer, and Thomas Mack
were discharged because'of their activities on behalf of the N. M. U.
and their refusal to join or cooperate with the Agency or the Associa-
tion. - -
John S. Brandolph was first employed by the respondent as a mess
boy on the S. S. Hadnot from July 16 to August 4, 1938. Thereafter,
he served as a wiper on the same ship from August 5 to December 27,
1938, and as a mess boy on the Oklahoma between February 2 and
April 7, 1939. On April 7, when he attempted to sign on for the next
trip of the Oklahoma, he was told by the shipping commissioner. that
his place was'already filled.
As hereinabove set-forth, Brandolph joined the Agency in January
1939, at the solicitation of Powers, the shipping master. There fol-
lowed his activities above set forth as ship's delegate for the Agency on
the Oklahoma. On March 17, after having expressed his opposition
20 See National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co.,
308, U S. 241, reversing 101 F. (2d) 841 (C. C. A. 4), enforcing as modified Matter of
Newport Newi Shipbuilding and Dry Dock Company and Industrial Union of Marine and
Shipbuilding Workers of America, 8 N. L. R. B 866 ; Westinghouse Electric & Mfg. Co. v.
National Labor Relations Board, 312 U S. 660, alarming 112 F. (2d) 657 (C C. A 2),
enforcing as modified Matter of Westinghouse Electric & Manufacturing Company and
United Electrical Radio & Machine Workers , of America, Local # 410, 18 N. L. R. B. 300.
1040 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
to the Agency, Brandolph was told by Powers that his job was none
too secure. On the last trip he made for the respondent, from March
18 to April 7, 1939, the date of his discharge, Brandolph openly advo-
cated that the personnel of the Oklahoma join the N. M. U. On or
about April 4, Brandolph's immediate superior, the steward on board
'the Oklahoma, told him, "John, if any of you boys get fired it won't
be my fault . . . You know that on each one of these ships there is
one man that sends reports in of all union activities to the Cities Service
main office at Wall Street." We find, on the basis of undisputed
evidence, that Brandolph was the leader in the movement among the
unlicensed personnel to undermine the confidence of the men in the
Agency and that this opposition to the Agency came to the attention
of the respondent. Brandolph was also one of the two leaders in
the movement to organize the unlicensed personnel into the N. M. U.
during March and April 1939 and his activities in this respect also
came to the attention of the respondent.
After being told by -the shipping commissioner on April 7 that
his place had been filled, Brandolph asked the steward why he had
been discharged. The latter replied, "Jack, I don't know a thing
about it . . . They are the orders . . . from the New York office."
On April 8 F. J. Block, master of the Oklahoma, made his report to
the respondent concerning the men leaving the Oklahoma at the end
of the voyage on April 7. Block listed Brandolph as "discharged,"
with no explanation. Brandolph was not given any reason for his
discharge by anyone connected with the respondent in a supervisory
capacity.
From the exchange of correspondence between the Regional Director
and counsel for the respondent, referred to in footnote 4, supra, it
appears that the respondent claims that at least one of the reasons
for the discharge of Brandolph was a report received from the chief
steward that Brandolph's work was unsatisfactory. Brandolph testi-
fied, however, that no complaints had been made by the, steward re-
garding, his- work and the respondent adduced no evidence in support
of its claim in that respect. In fact, no explanation whatever was
advanced by the respondent at the hearing for Brandolph's discharge.
In view of Brandolph's open activity in behalf of the N. M.,U., the
threat by Powers as to the insecurity of Brandolph's job after Bran-
dolph had expressed opposition to the Agency, the steward's state-
ment a few days before the discharge in effect warning Brandolph
that his union activities would result in dismissal, and the-failure _of
the respondent to advance any reason for the discharge, we find that
the respondent discharged Brandolph, on April 7, 1939, because of
his opposition to the Agency and his activities in behalf of the N. M.
U., and that by thus discriminating in regard to his hire and tenure
CITIES SERVICE OIL COMPANY 1041
of employment the respondent discouraged membership in the N. M.
U. and encouraged membership in the Agency, and thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
John R. Dickey was first employed on the S. S. Citiei3 Service
Hagood as a wiper on November 16, 1937. He served as a wiper
during two trips and on February 28, 1938, was promoted to the job
of oiler. He continued in that capacity on the Hagood and two other
of the respondent's tankers until April 7, 1939, when he was dis-
charged. Except for two periods of about a month each, he worked
continuously from October 1938 until his discharge. On the Okla-
homa, on which ship he was employed immediately prior to his dis-
charge, Dickey had the 8 to 12 watch, which was under the supervision
of John Gietek, third assistant engineer. Gietek had previously been
a fireman on the Hagood during the period when Dickey was serving
as a wiper, had become third assistant engineer on the same day that
Dickey was made an oiler, and had supervised Dickey on the Hagood
from February to May 1938.
On the voyage of the Oklahoma which began on February 25 and
ended on March 17, 1939, Dickey had a conversation with Gietek con-
cerning the meeting of the unlicensed personnel at which it was de-
cided that the men would demand that the $5 paid into the Agency be
returned to them when they reached Boston. Dickey told Gietek
that the men were "washed up with the company union." Gietek
then volunteered that "he didn't believe in any unions at all .. .
I positively don't believe in it [the N. M. U.]." Toward the latter
part of March, during Dickey's last voyage, which began from Boston
on March 18, Dickey joined the N. M. U. and engaged in the union
activities hereinabove set forth.
According to the correspondence between the Regional Director
and counsel for the respondent, referred to above, the respondent ex-
plained Dickey's discharge on the ground that he "would not take
Gietek's orders and was argumentative in his attitude toward Gietek."
The respondent did not adduce any evidence in support of this or any
other reason for the discharge. However, from Dickey's testimony
it does appear that, he had had some differences with Gietek. On one
occasion during Dickey's next-to-last voyage, Gietek told him that
he was "carrying too much water in the boilers and using up too much
fuel oil." Dickey replied, "Johnny, they have been carrying .. .
three to four inches of water on this ship on all the other watches,
and naturally I did the same. Furthermore, the 12 to 4 watches has
to blow tubes and they need a little extra water for that purpose."
Following this conversation, Dickey reduced the water down to about
2 or 21/2 inches. Gietek made a second complaint to Dickey on the
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same voyage when the ship was coming into the harbor at Boston.
Dickey had turned the extra feed on, as was the practice when coming
into 'port, because the water was low in the boilers . Gietek turned
it off. Dickey testified that he then said, "Mr. _Gietek, I don't want
to be rude to you . or anything , but I would rather handle that water
myself. That is my job." Then Gietek said, "Well , I told you not
to carry so much water in the boilers ." Dickey explained to Gietek
that the water in the boilers was below the level to which he had re-
duced it following Gietek's previous complaint and that the ship was
coming into port . An argument followed, in which Dickey suggested
that the fireman was responsible for any excess fuel consumption.
Dickey reported the incident to Lawrence , the first engineer , who told
him that he would speak to Gietek about the matter and indicated
that Dickey was right in telling Gietek that he (Dickey ) alone should
be responsible for the water in the boilers, , Thereafter , Dickey told
Gietek that , if Gietek thought that he was incompetent and unable
to attend to the water and look after his job, Gietek should have Dickey
removed from the watch or discharged from the vessel . Gietek
replied that he was thoroughly satisfied with Dickey's work.
Dickey thereafter was permitted to make another trip on the
Oklahoma before he was discharged . The respondent did not con-
tend that Dickey was incompetent or unable to perform the work
of an oiler and neither Gietek nor Lawrence was called to testify
with respect to the incidents discussed above. The Trial Examiner
found Dickey to be a credible witness. In view of all the evidence
we also accept the testimony of Dickey as to the disputes which arose
between Gietek and himself as a true account of what occurred on
the occasions in question . No other evidence was introduced of inci-
dents involving Dickey's alleged refusal to take Gietek's orders or
arguing with Gietek.21 With respect to the differences which devel-
oped between Dickey and Gietek, Lawrence supported Dickey, and
Gietek himself told Dickey that his work was satisfactory.
On April 7, when the Oklahoma reached Boston, Lawrence came
down to the oiler's forecastle , where Dickey was preparing to go
ashore, and informed Dickey that he was being discharged. He
stated that he did not know why Dickey was being discharged and
that the order must have come from the office. The report of Chief
Engineer Norman, dated April 7, merely recited that Dickey had been
discharged as "undesirable." On or about April 9 Dickey talked to
Deshler, who denied knowing anything about the discharge, but
stated, "Well , there must be something wrong with you or you would
"It appears that Dickey nad received two minor complaints , prior to - his last voyage,
from First Engineer Lawrence. It is clear, however, that they were of no consequence,
mid the respondent made no contention that they played any part in Dickey's discharge.
CITIES SERVICE OIL COMPANY 1043
not be discharged from the ship . . . I can't do anything about
it until I hear from the ship.'.' Dickey had no further conversation
with Deshler concerning the reason for his discharge from that date
to the date of the hearing.
We find that although Dickey and Gietek had some arguments on
the Oklahoma, Dickey did not refuse to obey Gietek's orders and
that the explanation offered by the respondent for the discharge of
Dickey was but a pretext. On the other hand, Dickey was a leader,
together 'with Brandolph in the opposition to the Agency which
developed after the tentative agreement had been sent to Brandolph
without an opportunity for its discussion by any of the representa-
tives of the men on the various ships other than the, shore com-
mittee, whose members had been handpicked by Powers. Dickey
was also equally prominent with Brandolph in his efforts to' interest
the unlicensed personnel of the Oklahoma in the N. M. U. after the
men had decided to have nothing further to do with the Agency.
We find, as did the Trial Examiner, that the respondent discharged
Dickey on April 7, 1939, because of his union activities and his op-
position to the Agency,-and that, by thus discriminating in regard
to Dickey's hire and tenure of employment, the respondent dis-
couraged membership in the N. M. U. and encouraged membership
in the Agency, and interfered with, - restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Claude Baldwin was first employed by the respondent on January
28, 1940, as, a wiper on the S. S. Cities Service Hadnot. His first trip
on the Hadnot ended on February 17. He again signed on as a wiper
and made a second trip from February 18 to March 9. From March
10 to March 28 and from March 29 to April 16, 1940, Baldwin made
two additional trips on the Hadnot as fireman. He was first dis-
charged on April 16, 1940.
On January 18, 1940, when Baldwin applied for a job with the
respondent, he talked to Powers and then was interviewed by Deshler.
Deshler asked him for his discharge papers, which showed that he
had not worked since April' 1939. When Deshler inquired what he
had been doing since April 1939, Baldwin replied that he had been
out on strike and that during the last 3 months he had been taking
a steam course at Hoffman's Island and had obtained a fireman's first
class discharge. Deshler asked Baldwin whether he was still affil-
iated with the N. M. U. Baldwin replied in the negative, whereupon
Deshler said that he- did not "need to belong to the N. M. U. to sail
in this company."
On January 28 Powers took Baldwin and three other men to
Linden, New Jersey, to meet the Hadnot. During the trip,-,there wa,,
448692-42-vol 32-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some conversation about the N. M. U. and Powers remarked, "as
soon as I find out they are N. M. U. I get rid of them." On his
second trip out on the Hadnot, Baldwin brought copies of the
N. M. U. paper, the Pilot, on board ship and discussed the N. M. U.
with the unlicensed personnel. Likewise, on the third and fourth
trips, he distributed copies of the Pilot openly to members of the
crew. On his last trip on the Hadnot he had a conversation relating
to unions with the second assistant engineer, Long, while standing
the watch over which Long had authority. Long stated that he
did not understand "how so many N. M. U. men got aboard the ship,
that it was the company's policy to fire them the first possible chance
they got or as soon as they found that out." Baldwin then informed
Long that during the voyage he had enrolled about 75 per cent of
the crew in the N. M. U.
On the 4 to 8 p. in. watch each day during part of the last voyage,
Baldwin obtained the permission of Max Wend, the first assistant
engineer , to observe the work done by the oilers in the engine room.
Wend also promised Baldwin the next oiling job, which paid more
than that of a fireman.
About 30 minutes before the time to be paid off at Boston on
April 16, Wend informed Baldwin that he was not to sign on for the
next voyage of the Hadnot. When Baldwin asked the reason for
this, Wend replied, ,"Well, something rotten in Denmark, I don't
know what it is." 22 Baldwin then asked Long, the second assistant
engineer, whether he had made any complaints about his work, and
why he had been' discharged. Long replied that he had not made
any complaints and knew nothing of the discharge. Baldwin likewise
made inquiry of Captain G. C. Finn, who stated that he knew noth-
ing of the discharge. Finally Baldwin went to see John Betch, chief
engineer, and asked him why he was being discharged. Betch replied,
"Have you been busy with some union business on here?" When
Baldwin replied in the affirmative, Betch said, "Well, that was why
you were fired."
Sometime between April 17 and 22, a conference was held between
Jensen and Atkins, representing the respondent, Pat Lawrenson and
Ralph Hawks, both organizers for the N. M. U., and Baldwin, con-
cerning the discharge. Baldwin's claim that he had been discharged
because of his union activities and the remarks of Second Assistant
Engineer Long regarding the respondent's policy of eliminating men
who belonged to the N. M. U. were discussed. Jensen stated that
perhaps Baldwin had used force or violence in obtaining union mem-_
22 Wend told Leslie Cooper , an oiler, on the day Baldwin was discharged , that he had
been informed by someone he did not care to reveal "that Baldwin was to be discharged
apparently for union activities"
CITIES SERVICE OIL COMPANY .1045
berships. Baldwin denied this. -Regarding the statements made by
Long, Jensen averred that Long "was just a big bag of wind" and
was unaware of the respondent's policies . No adjustment was made
at the conference, but Jensen stated that he was going to Mobile,
where the fHadnot was to go into drydock, to investigate. Neither
Jensen nor Atkins advanced any reason during the conference for
the discharge. Neither of these men testified. -
In the exchange of letters between the Regional Director and counsel
for the respondent, referred to in footnote 4, supra, the respondent
alleged that Baldwin was discharged on April 16, 1940, because he had
spread rumors that the entire crew of the Hadnot was to be discharged
when the vessel arrived at Mobile on its next trip south. Baldwin
denied that he had spread such a rumor, and his testimony in this
respect was corroborated by three members of the crew-Glenn C'asner,
Leslie Cooper, and Lester Russell. The only evidence in support of
the claim that Baldwin had spread such a rumor was a written state-
ment made by Casner on June 18, 1940, to counsel for the respondent 23
At the hearing, Casper repudiated the statement and testified that he
had made it at the instance and upon the promise of Powers that he
would be given a job if he did S0.24 The Trial Examiner, from his
observation of Casner as a witness, credited Casner's testimony with
respect to the circumstances under which he made the statement of
June 18. We also credit his testimony, particularly since it is cor-
roborated by that of Baldwin himself, Cooper, and Russell.
We find, in view of the respondent's knowledge of Baldwin's union
activities, its opposition to such activities-as expressed by Powers,
Long, and Betch, and the lack of any credible evidence in support of
the alleged reason advanced for the discharge, that the respondent dis-
charged Baldwin on April 16, 1940, because of his activity in behalf
of the N. M. U., and that the respondent, by thus discriminating in
regard to Baldwin's hire and tenure of employment, discouraged mem-
bership in the N. M. U. and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On May 8 Baldwin again applied for employment with the re-
spondent and was interviewed by Atkins, who had in the interim
succeeded Jensen as marine superintendent. Atkins told Baldwin
that, although the respondent was still awaiting word from the cap-
tain on the Hadnot relative to his discharge, Baldwin would in the
meantime be assigned to another ship. On May 11 Baldwin was hired
za Baldwin was reemployed on May 11 and again discharged on May 28. Charges with
respect to the April 16 and May 28 discharges of Baldwin were filed on June 4, 1940.
24 Casner quit the Hadnot on April 16, 1940; he applied for reemployment on May 24.
He testified that he thought he made the statement on,the day he applied . We find, how-
ever, that the statement was in fact made on June 18
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the S. S. Cities Service Denver as a fireman on First Assistant
Engineer George Rickards' watch. He made one trip to the Gulf, of
Mexico and back to Boston; on May 28, 1940, he was again discharged.
After signing on the Denver, Baldwin continued his union activities.
He enrolled at least two employees, Thomas Mack and Ralph Denayer,
as N. M. •U. members; he posted copies of the Pilot on the bulletin
board and, openly distributed the Pilot and other union literature to
members of the crew; on behalf of the N. M. U. he solicited signatures
to a petition addressed to Congressman Bland, chairman of the Mer-
chant Marine and Fisheries Committee of the House of Representa-
tives, requesting the latter's cooperation with respect to a maritime
unemployment insurance bill and, with the permission of Captain
Saxon; sent a radiogram to Congressman Bland urging support of the
bill.
When-the Denver arrived in Boston on May 28, and after everyone
else had been paid off, Rickards told Baldwin to go up and get his
money, adding, "I guess you know you're fired because you let carbon
form in the combustion chambers." Baldwin replied, "Well, I had
an idea I was getting fired, that is, I was told when I came aboard the
ship that you had orders to fire me at the first possible chance."
Rickards merely shrugged his shoulders and smiled. Baldwin refused
to "sign off," a customary procedure when a seaman is leaving his ship.
One McDermott, shore representative of the respondent, then told
Baldwin to sign off and get his money. Baldwin again refused and,
upon McDermott's inquiry as to what was wrong, replied, "There's
nothing wrong. I believe I'm being discriminated against because of
my union activities aboard this ship, that when I came aboard this
ship I was told that I was to be fired the first possible chance they got,
the first assistant had his instruction." Baldwin added that he had
been told that a man named McDermott had given Rickards instruc-
tions to discharge him. Up to this point, Baldwin did not know to
whom he, was talking. At this juncture, McDermott disclosed his
identity but did not deny that he had given said instructions to
Rickards. McDermott then ordered Baldwin off the ship and Baldwin
left after being told by Second Assistant Engineer Huut that his work
had been satisfactory.
The respondent, in the letter of its counsel to the Regional Director,
referred to above, took the position that Baldwin was discharged by
Rickards on May 28 for the following reasons : (1) he failed on four or
five occasions to shut off the steam line after blowing the boiler tubes;
(2) he failed to keep the carbon cleaned out of the combustion cham-
bers; and (3) he continued to light the burners off the "hot plates" or
fire bricks, instead of using a torch, although he had been warned that
such practice was contrary to safety regulations. The respondent did
CITIES SERVICE SOIL COMPANY 1047
not adduce evidence in support of the foregoing contentions. How-
ever, Baldwin related in some detail his experiences with Rickards con-
cerning each of these allegations.
With respect to his alleged failure to close the steam valve after
blowing tubes, Baldwin testified that on his first watch he forgot to
close the valve and was informed of that fact by Thomas Mack, the
fireman on the next watch. On Baldwin's next watch, Rickards
cautioned him not to leave the steam valve open again. Baldwin was
positive in his testimony, and in this he'was corroborated by Mack,
that he did not thereafter fail to close the valve after blowing the
boiler tubes. However, Rickards on several' occasions during the
voyage questioned Baldwin as to whether he had closed the valve. As
to the accumulations of carbon in the fire boxes, it appears that the-
deposits were excessive, due, apparently, to the use of an inferior grade
of fuel oil. 'Baldwin called Rickards' attention to the matter, and the
latter told Baldwin to punch the carbon and to keep punching it.
Baldwin said that he had done so and testified that he continued to do
so. Mack, the fireman on the next watch, testified that when he came
on watch the carbon in the fire boxes had been removed. Nevertheless,
Rickards continued to inquire of Baldwin as to whether he had
punched the carbon. Concerning the third allegation, Baldwin ad-,
mitted that Rickards twice had reprimanded him for lighting the
burners off the "hot plates" or fire bricks, instead of using the kerosene
torch. It also appears that such practice is contrary to safety regula-
tions. However, the undenied testimony of Baldwin and several other
witnesses establishes that it is customary for firemen, when changing
burners or when the ship is maneuvering, to use the hot walls of the
combustion chamber instead of the kerosene torch to light the burners.
That the practice was condoned by the respondent seems clear, since
Baldwin and Mack testified that fires had been lit in that manner in
1 he presence of an engineer, without complaint. Except for the two
occasions for which he was reprimanded by Rickards, Baldwin used
the kerosene torch in lighting the fires during the voyage. Mack, how-
ever, continued to use the other method, and testified that, except in
the case of Baldwin, he had never heard of a fireman being reprimanded
for not using the torch.
It is significant that the respondent did not call on Rickards or any
other witness to substantiate the reasons it had advanced'prior to the
hearing for the discharge. From all the evidence respecting Baldwin's
experiences with Rickards during the voyage,. the inference is clear,
and we find, that Rickards was seeking to discover a pretext for dis-
charging Baldwin. We find- that the respondent discharged Claude
Baldwin on May 28, 1940, because of his union membership and
activity and that by thus discriminating in regard to his hire and
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment, the respondent discouraged membership in the
N. M. U. and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
Ralph J. Denayer joined the crew of the Denver on May 11, 1940, as
an able-bodied seaman. The ship sailed on the following day. The
first voyage ended on May 28. The ship again sailed on May 29 and
arrived in Baltimore on June 4. On June 6, 1940, Denayer was dis-
charged. While on the first voyage, Denayer signed a preliminary
membership book in the N.M.U. after being solicited to do so by
Baldwin. On May 28, following Baldwin's discharge, Denayer met,
Baldwin, McGowan, and Hawks, the latter two being N.M.U. repre-
sentatives, in a tavern just off the dock at East Braintree, Massachusetts.
At that time Baldwin turned five preliminary N.M.U. membership
books over to Denayer, who became the N.M.U. representative on the
Denver. While this conversation was taking place, Scotty Leeds, a
boatswain on the Denver, was standing in the tavern about 3 feet away.
When Denayer returned to the ship, he brought with him membership
books and 25 issues of the Pilot which he distributed in the different
forecastles on the ship. Denayer testified that during his last voyage
on the Denver, several men came to him, without being solicited, to
inquire about the N.M.U.
When the Denver arrived at Baltimore on June 4, she was placed
in drydock. While in drydock, the crew ordinarily worked from
8:00 a.m. to 5: 00 p.m. with an hour off for lunch. According to
Denayer, on the morning of June 5 he had a conversation a little after
7:30 a.m. with the boatswain about getting the day off. The boatswain
advised Denayer to see Chief Mate Lassen. Denayer saw Lassen and
explained that some leave was due him in return for overtime he had
worked and that he wished to have his teeth checked, to do some shop-
ping, and to visit some friends. Lassen,gave Denayer permission to
leave for the day. Denayer returned to the ship about midnight.
When Denayer reported for work on the morning of June 6, the boat-
swain told him to report to Lassen. The mate asked Denayer where
he had been on the previous day and stated that he thought that
Denayer would only take a few hours off, rather than the whole day.
Denayer reminded Lassen that he had received permission to be off the
entire day. Lassen then said, "You don't have to turn to. Go up to
the Captain and get your money." Although Denayer told the captain
that Lassen had given him the day, off and that he felt that he was
being discharged for union activities, the captain upheld Lassen who,
so the captain told Denayer, had reported that Denayer had been
authorized to be off only a few hours.
Denayer's account of his absence and his conversations with Lassen
on June 5 and 6, hereinabove set forth, is at considerable variance with
CITIES SERVICE OIL COMPANY 1049
the recital contained in the above-mentioned correspondence with the
Regional Director. In his letter, counsel for the respondent claimed
that Denayer was discharged because Denayer, having been given per-
mission to go ashore to have a tooth pulled, stayed ashore all day con-
trary to instructions and the next morning, when asked why he had not
returned to work on the previous day, stated that he had not felt like
working. At the hearing Lassen did not testify, nor was any evidence
introduced by the respondent in support of the contention it had made
concerning Denayer's discharge. Denayer specifically denied that he
had on his shore clothes at the time he spoke to Lassen on June 5 or
that there was any conversation between Lassen and himself regarding
this alleged fact, as the respondent claimed in its letter. Denayer also
denied that he had ever told Lassen that he had not returned on June
5 because he did not feel like working. Denayer testified, on cross-
examination, that he did not go to the marine hospital about his teeth
because the mate had not given him a hospitalization slip entitling him
to treatment at the hospital, but instead went to the first dentist he saw
on the Key highway. Denayer denied that any mention had been made
of his teeth by Lassen on the morning of June 6 and testified that Lassen
at no time set a specific hour when he should return to the ship. We
credit, as did the Trial Examiner, the.testimony of Denayer, herein-
above set forth.
Denayer succeeded Baldwin as the representative of the N.M.U. on
board the Denver. He was active on the ship in this capacity. From
Denayer's previous association with Baldwin and from his activities on
the ship as a union man, it is reasonable to infer, and we find, that the
respondent had knowledge of Denayer's union connections. In the
absence of any affirmative evidence in support of the respondent's con-
tention as to the reason for Denayer's discharge and in view of all the
evidence, we find, as did the Trial Examiner, that Denayer was dis-
charged on June 6, 1940, because he joined and assisted the N.M.U. and
that the respondent, by thus discriminating in regard to his hire and
tenure of employment, discouraged membership in the N.M.U. and
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
'Thomas Mack was first employed by the respondent on December
22, 1937, and worked continuously on the S.S. Cities Service Watertown
from that date until January 19, 1939, as a mess man. He worked on
the Empire for 2 days in February 1939 and then was transferred to
the Denver, where he continued his employment as a wiper or as a
fireman until his discharge on June 7, 1940.
His last trip on the Denver began on May 28, 1940. On that day,
before the ship sailed from East Braintree, Massachusetts, Mack had
a few drinks at a bar just off the dock. Mack admitted at the hearing
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was drunk when he came on board the Denver and that as a
consequence he was unable to stand his regular 8 to 12 watch- or to
relieve Irving Frazier, the fireman on the 4 to 8 watch, while the latter
had supper. However, Mack stood Frazier's watch on 'the morning of
May 29, thereby repaying Frazier, as was the custom among the' crew
when one man stood another's watch. Rickards, the first assistant
engineer, reprimanded Mack on May 29 for missing the watch on the
previous day. The question at issue is whether Mack was discharged
because of this failure to stand his watch and relieve the other fire-
man while the ship was at sea, as claimed by the respondent, or because
of union activities and his refusal to join the Association.
Mack joined the N.M.U. at the solicitation of Baldwin, during the
voyage that ended on May 28, 1940. On his last voyage, Mack was
twice asked to join the Association by a new pump man.25 On both
occasions Mack refused to join the Association. - On May 28, while at
the tavern previously referred to, Mack engaged in a conversation with
Baldwin, who had just been discharged, and Denayer. Mack was
accompanied by Scotty Leeds, the boatswain. During the course of
the conversation between Baldwin and Mack, which took place in the
same room where Leeds was drinking, Baldwin asked Mack to sign a
statement regarding Baldwin's discharge. On the morning of June 7,
the day of Mack's discharge, prior to the time when he was informed
that he was being paid off, Baldwin attempted to get in touch with
Mack. He walked alongside the Denver which lay in the dock, called
up to Parkman, one of the seamen, and asked him to tell Mack that
Baldwin wanted to see him. According to Baldwin, the first mate,
Lassen, and the third assistant engineer were standing 3 or 4 feet away
when this incident occurred.
About 3: 00 p.m. on June 7, Rickards told Mack that "he was finished"
and would be paid off by the captain for missing a watch at sea. On
June 9, 1940, Howard Priestly, chief engineer on the Denver, sent a
letter to the respondent with respect to crew changes, which stated that
Mack had been discharged "for being intoxicated at sea and unable to
stand his watch."
The record reveals that it was not an unusual occurrence for sea-
men to miss a watch because of intoxication, particularly when the ship
left port. Several witnesses testified to a number of such instances,
none of which had resulted in the discharge of the seaman in question.
We credit this testimony, as did the Trial Examiner, and find that the
respondent did not have a settled policy of discharging seamen who
missed a watch because of drunkenness.
25 Mack did not know the name of this new man but from the testimony of Edward S.
Gallo and of Frederick Saar it is clear that the name of the new pump man was Morgan-
stern , one of the representatives of the Association appointed by Saai
CITIES SERVICE OIL COMPANY , 1051
As hereinabove set forth, Mack worked for the respondent almost
continuously from December 22, 1937, until June 7, 1940. No evidence
was introduced to show nor was any contention made that Mack's work
was unsatisfactory. It was not unusual for men to miss their first
watch at sea after leaving port because of their intoxicated condition.
No evidence was introduced to show that the respondent had dis-
charged any other employees for such an offense. Moreover, Mack
was allowed to work in drydock nearly 2 days after the end of the voy-
age on which he had missed his watch. Mack had twice refused to join
the Association, a labor organization favored by the respondent, at the
request of Morganstern from whom, as we have found in Section III
A, supra, the respondent received reports regarding the Association's
membership among the employees, instead had joined the N. M. U., a
labor organization to which the respondent was opposed, and had been
seen in the company of Baldwin and other prominent N. M. U. men
by a supervisory official of the respondent. Finally, 2 ,days after the
Denver had completed the voyage upon which he had missed his watch,
Mack was discharged within a few hours after being publicly called
for, in the presence of the respondent's supervisory employees, by Bald-
win, who had himself been discharged by the respondent a few days
previously for N. M. U. activities. In view of all the evidence, we find
that Mack was discharged by the respondent on June 7, 1940, because
he'joined and assisted the N. M. U. and because he refused to join the
Association and that, by thus discriminating in regard to his hire and
tenure of employment, the respondent discouraged membership in the
N. M. U., encouraged membership in the Association, and interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in-Section 7 of the Act.
We find that the respondent's conduct described above tends to lead
to labor disputes burdening and obstructing commerce and the free
flow of commerce.
IV. THE REMEDY
Having found that the respondent has engaged in and is engaging
in unfair labor practices, we shall order it to cease and desist therefrom
and to take certain affirmative action necessary to effectuate the policies
of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of and contributed support to the
Unlicensed Employees Collective Bargaining Agency of Cities Service
Oil Company and the American Tankermen's Association. We fur-
ther find that the effects and consequences of such domination, inter-
ference, and support by the respondent constitute obstacles to the free
exercise by its employees of the rights guaranteed in Section 7 of the
Act. Inasmuch as the Agency has become dormant and' as the 're.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has never recognized either the Agency or the Association as
bargaining representative of its employees, we shall not order the re-
spondent to disestablish them. However, we shall order the respond-
ent to refuse to recognize the Agency and the Association as represent-
atives of any of its employees for the purpose of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of John S. Brandolph, John R. Dickey,
Claude Baldwin, Ralph J. Denayer and Thomas Mack. In order to
effectuate the policies of the Act, we will order the respondent to rein-
state said employees to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and privi-
leges. We will further order the respondent to make Brandolph,
Dickey, Denayer, and Mack whole for any loss of pay they have suf-
fered by reason of the discrimination against them by payment to each
of them of a sum of money equal to the amount he would normally have
earned as wages from the date of the discrimination against him to the
date of the offer of reinstatement, less his net earnings 20 during said
period. However, inasmuch as the Trial Examiner recommended the
dismissal of the complaint as to Mack, the respondent shall not be re-
quired to pay him back pay from the date when it received the Inter-
mediate Report to the date of the Order herein.21 In the case of Bald-
win we shall order the respondent to make him whole for any loss of
pay he has suffered by reason of the discrimination against him by
payment to him of a sum of money equal to the amount he would nor-
mally have earned as wages from April 16, 1940, the date of his first
discharge, until the date of his reemployment on May 11, 1940, and
from May 28, 1940, the date of his last discharge, to the date of the
offer of reinstatement, less his net earnings 28 during said periods.
While it does not affirmatively appear that a part of the compensa-
tion paid by the respondent to its seamen consists of maintenance on
shipboard, we will take notice of the general practice in the shipping
industry in this respect. Moreover, the evidence shows that during
voyages between the Atlantic Coast and Gulf ports, which take about
17 days for the round trip, the seamen are fed and housed on board
26 By "net earnings" is meant earnings less expenses , such as for' transportation, room,
and board, incurred by an employee in connection with obtaining work and working 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 Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590 , 8 N. L R B 440 Monies received
for work performed upon Federal , State , county, municipal , or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
27 Matter of N. R. lieffelfinger Company, Inc. and United , Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R B. 760. -
28 See footnote 26, supra.
CITIES SERVICE OIL COMPANY 1053
ship. Accordingly, we will order that in determining the amount of
back pay to be awarded the complainants, the reasonable value of their
maintenance on shipboard be added to the amount of their monetary
compensation from the respondent'"
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. National Maritime Union of America, Unlicensed Employees
Collective Bargaining Agency of Cities Service Oil Company, and
American Tankermen's Association" are labor organizations within
the meaning of. Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. 'By dominating and interfering with the formation and admin-
istration of Unlicensed Employees Collective Bargaining Agency of
Cities Service Oil Company and American Tankermen's Association,
and contributing support to them, the respondent has engaged in and
is engaging in-unfair labor practices within the meaning of Section
8 (2), of the Act.
4. By discriminating in regard to the hire and tenure of employ-
ment of John S. Brandolph, John R. Dickey, Claude Baldwin, Ralph
J. Denayer, and Thomas Mack, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engag-
`iug in unfair labor practices within the meaning of Section 8 (3)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon 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 the re-
spondent, Cities Service Oil Company, and its officers, agents, suc-
cessors, and assigns, shall:
=9 Waterman Steamship Corp v N. L R. B, 309 U S. 206, rev'g 103 F. (20) 157
(C. C. A. 5) and enf'g. Matter of Waterman Steamship Corp. and National Maritime Union
of America, Engine Division Mobile Branch, Mobile, Alabama, 7 N. L. R. B. 237; Matter
of Mooremack Gulf Lines, Inc. and Commercial Telegraphists ' Union, Marine Division.
affiliated with the A F. of L, 28 N. L R B. 869.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Dominating or interfering with the administration of Un-
licensed Employees Collective Bargaining Agency of Cities Service
Oil, Company or American Tankermen's Association, or the forma-
tion or administration of any other labor organization of its em-
ployees and from contributing financial or other support to said
Agency or Association, or to any other labor organization of its
employees;
(b) Discouraging membership in National Maritime Union of
America and encouraging membership in Unlicensed Employees Col-
lective Bargaining Agency of Cities Service Oil Company and Amer-
ican Tankermen's Association, or in any other labor organization of 'its
employees, by discriminating in regard to the hire or tenure of
employment of its employees or any term or condition of their
employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their 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 purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the National
Labor Relations Act;
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Refuse to recognize Unlicensed Employees Collective Bargain-
ing Agency of Cities Service Oil Company and American Tanker-
men's Association as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
(b) Offer to John S. Brandolph, John R. Dickey, Claude Baldwin,
Ralph J. Denayer, and Thomas Mack immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges;
(c) Make whole John S. Brandolph, John R. Dickey, and Ralph J.
Denayer for any loss of pay they may have suffered by reason of the
respondent's discrimination against them by payment to each of
them of a sum of money equal to that which he normally would have
earned as wages-including therein the reasonable value of his main-
tenance on shipboard-during the period from the date of such dis-
crimination against him to the date of the offer of reinstatement, less
h:s net earnings 30 during such period;
su See footnote 26, supra.
CITIES SERVICE OIL COMPANY 1055
(d) Make whole Thomas Mack for any loss of pay he may have
suffered by reason of the respondent's discrimination against him
by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages-including therein the reasonable
value of his maintenance on shipboard-during the period from the
date of such discrimination against him to the date when the re-
spondent- received the Intermediate Report herein and the period
from the date of this Order to the date of the respondent's offer, of
reinstatement, less his net earnings 31 during such period.
(e) Make whole Claude Baldwin for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which he
normally would have earned as wages-including therein the reason-
able value of his maintenance on shipboard-during the periods from
April 16, 1940, to May 11, 1940, and from May 28, 1940, to the, date
of the offer of reinstatement, less his net earnings 32 during said
periods.
(f) Post immediately in conspicuous places on each of its ships
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees, stating: (1) that
the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and
(3) that the respondent's employees are free to become or remain
members of National Maritime Union of America and that the re-
spondent will not discriminate against any employee because of
membership or activity in that organization;
(g) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
31 See footnote 26, supra
st See footnote 26, supra.
l