Delaware-New Jersey Ferry Co.

National Labor Relations Board - Board Decisions

Mar 31, 1941

30 N.L.R.B. 820 (N.L.R.B. 1941)

In the Matter of DELAWARE-NEW JERSEY FERRY COMPANY and UNITED.
MARINE DIVISION, LOCAL No. 333, AFFILIATED WITH THD A. F. L. AND
THEI.L.A.
N
Case No. C-1758.-Decided March 31, 1941
Jurisdiction : water transportation industry. -
Unfair Labor Practices
Interference, Restraint, and Coercion: warning employees against joining or
participating in the outside union or engaging in concerted activity.
Company-Dominated Union: creation of two "Committees" at the direct sug-
gestion of the respondent for the purpose of defeating the attempts of the
"outside organization" to organize the employees-support to : 'granting wage.
increases, ostensibly as the result of collective bargaining, and written con-
tracts, which it drafted and later modified with but slight consultation with the
"`Committees"-inactivity of "Committees" after "outside organization" suc-
cessfully replaced-"Committees" revived to defeat another attempt made by
"outside organization" to organize and to break a strike which had-been called;
wage increases granted at the behest of the "Committees" without ascertaining
its majority status.
Collective Bargaining: majority established by membership applications; alleged
revocations executed after employer's refusal- to bargain in violation of the
Act not to affect majority-refusal to deal with union's representative ; refusal
to discuss with the, union the matter of union recognition.
Remedial Orders : ordered to bargain collectively: order based on majority at
date of refusal to bargain ; company-dominated union disestablished ; contracts
with company-dominated union abrogated ; reinstatement of unfair labor prac-
tice strikers upon application, ordered
Unit Appropriate for Collective Bargaining : all captains, mates, engineers,
deckhands, oilers, firemen, bridgemen, and watchmen on one of the employer's
lines, including seasonal employees in those categories.
Practice and Procedure : Trial Examiner's denial of employer's request for sub-
penas which sought to procure evidence which was immaterial and irrelevant,
sustained; Trial Examiner's refusal to issue a subpena when the employer
refused to comply with the Board's Rules and Regulations, sustained.
Mr. Geoffrey J. Cunniff , for the Board. -
Lewis, Wolff,'Gawley ct Hemphill, by Mr. Otto Wolff, Jr., of Phila-
delphia, Pa., for the respondent.
Mr. Timothy J. McElroy and Mr. William V. Bradley, of, New York
City, for the Union.
Mr. Theodore W. Kheel, of counsel to the Board.
30 N. L. R. B., No. 120.
820
DELAWARE-NEW JERSEY FERRY COMPANY - 821
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed July 30, 1940, by the United
Marine Division , Local No. 333, affiliated with the A. F. L. and the
I. L. A., herein called the Union, the National Labor Relations Board,
herein called the Board , by the Regional Director for the Fourth
Region ( Philadelphia , Pennsylvania ), issued its complaint dated Sep-
tember 6, 1940, against Delaware -New Jersey Ferry Company, Wil-
mington, Delaware, herein called the respondent , alleging that the
respondent had engaged -in and was engaging in unfair labor prac-
tices affecting commerce , within the meaning of Section 8 (1), (2),
and (5 ) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 •Stat . 449, herein called the Act. Copies of the complaint ac-
companied by a notice of hearing were duly served upon the respond-
ent, the Union, the Engineers and Engine Department Committee,
herein called the Engine Committee , and the Captains and Deck
Department Committee , herein called the Deck Committee. ,
With respect to the unfair labor. practices , the complaint alleged in
substance that: ( 1) the respondent , commencing in November 1935,
caused the formation of 'and interfered with, dominated , and contrib-
uted support to the Engine Committee and the Deck Committee; (2)
that in or about April 1936, the respondent entered into contracts with
said Committees , and that in or about April 1937 the respondent re-
newed said contracts and made provisions for further automatic re-
newals thereof , and that said contracts are still in effect; ( 3) that the
captains , mates, engineers , deckhands, oilers, firemen , bridgemen, and
watchmen on the respondent 's New Castle -Pennsville line constitute an
appropriate bargaining unit; that since on or about June 28, 1940, the
Union has represented a majority of employees in said alleged appro-
priate unit ; that on or about June 29, July 5, , 8, and 9, 1940, and at
other times the Union requested the respondent to bargain with it,
and that the respondent has refused ; (4) that the respondent has
urged, persuaded, and warned its employees not to join the Union,
criticized them for union membership and,activity , maintained sur-
veillance over the union activities of its employees , and has thereby'
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act; and (5 ) that as a
result of the foregoing activities the Union declared a strike on July
15, 1940.
• Thereafter the respondent. duly filed its answer , dated September
17, 1940 , together with "Exceptions", which were, in effect, a motion
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to dismiss the complaint. Iii its answer the respondent denied that
it had committed any of the alleged unfair labor practices and
denied the appropriateness of the bargaining unit specified in the
complaint.
Pursuant to notice, a hearing was held on October 21, 22, 24, 25,
and 28, 1940, at Wilmington, Delaware, before James C. Paradise,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the respondent, and the Union were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties.
The motion to dismiss filed with the answer was based -upon the
contention that the portions of the complaint which relate to the
formation of the Engine Committee and the Deck Committee are a
reiteration of charges disposed of iri a prior case which the United
States Circuit Court of Appeals for the Third Circuit refused to
enforce,' that the issues concerning the formation of these Commit-
tees have been adjudicated, and that the portions of the complaint
relating to them are merely intended to harass the respondent and are
in contumacy of the order of the Circuit Court of Appeals. This
motion, discussed in Section III-A-1, below, was denied by the Trial
Examiner. I
At the close of the hearing, a motion by counsel for the Board
that the pleadings be conformed to the proof "in so far as they affect
immaterial things, such as dates, names and so forth, and not . . .
going to the essence of the case," was granted by the Trial Examiner.
Decision was reserved on motions by the respondent that the com-
plaint be dismissed. During the course ' of the hearing, the Trial
Examiner made various rulings on other motions 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. His rulings are hereby affirmed.
On December 13, 1940, the Trial Examiner filed his Intermediate
Report, finding that .the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1),-(2), and (5),and Section 2 (6) and (7)
of the Act, and recommending that the respondent cease and desist
therefrom and take certain specified affirmative action. The Trial
Examiner also denied the motions to dismiss the complaint on which
he had reserved rulings during the hearing. On January 6, 1941,
the respondent filed exceptions to the Intermediate 'Report, and on
January 28, 1941, a brief in support of its exceptions.
i N. L. R. B v. Delaware-New Jersey Ferry Company, 90 F. (2d) 520 (C. C A. 3), setting
aside Matter of Delaware-New Jersey Ferry Company and Marine Engineers' Beneficial
Association No. 13, 1 N. L. R. B. 85, as reaffirmed in 2 N L. R. B. 385.
DELAWARE-NEW JERSEY FERRY COMPANY 823
In its brief, the respondent contelids that the Trial Examiner was
"biased and partisan" and thereby "deprived the respondent of due
process of law." As relief, it asks the Board to reject, the Inter-
mediate Report and order a new hearing before another Trial Exam-
iner. Five reasons are assigned in support of the charge that the
Trial Examiner was "biased and partisan": (1) his refusal to issue
certain subpoenas requested by the respondent;'a (2) his rejection
of evidence that 23 employees did not desire the Union to, represent
them; 3 (3) his frequent "off the record" instructions to the official
reporters, "which/thereby deprived the Board of a full and complete
transcript of the proceedings before him"; (4)• his "searching"
examination of witnesses "who appeared to be favorable to the
respondent" and 'his "extreme activity in questioning and in ampli-
fying the testimony of witnesses for the Board"; and (5), his rejec-
tion of evidence of "lawless methods" pursued by the Union in its
organizational drive:4 Of these. five charges, three (the first, second,
and fifth charge) are rulings which, allegedly, resulted in preventing
the respondent from introducing evidence it deemed relevant and
material. If these rulings had, in fact, deprived the respondent of
substantial evidence, we would direct an additional hearing to enable
the respondent to complete its proof.5 We have fully reviewed these
rulings, however, and find the respondent's contentions. to be without
merit." With respect to the third and fourth charges, it is suff icient
to state that the respondent did not object at any, time during the
hearing to "off the record" instructions or- to the Trial Examiner's
examination' of witnesses. The respondent was advised at the com-
mencement of the hearing that the Trial Examiner might go "off
the record" to hear arguments on motions and objections to the admis-
sion of evidence. And only once during the hearing did the respond-
cut comment upon the Trial Examiner's questioning of witnesses and
that occurred on the last day -of the hearing, in connection with the
Trial Examiner's rejection of certain evidence which the respondent
2 The Trial Examiner ' refused to issue a subpoena requiring the attendance of the Re-
gional Director for the Fourth Region after the respondent had declined to specify, as
required by Section 21- of Article II of the Board 's Rules and Regulations , the nature of the
facts sought to be proved by this witness . Although the respondent indicated that it would
appeal to the Board from this ruling, no appeal was taken . In its brief, the, respondent
specified , for the first time, the evidence it intended to obtain from the Regional Director.
The evidence and the Trial Examiner ' s ruling are discussed in Section III-B-3, infra.
The Trial Examiner also refused to issue subpoenas for the president , the secretary, and
the secretary of the Executive Board of the Union and the minutes of all meetings of the
Executive Board for June and July 1940 and any and all resolutions of the Executive Board
providing for an increase or decrease in initiation fees or dues This ruling,is discussed in
SectionfITI-B-2, infra.
B This ruling is discussed in Section III-B-2, infra
A This ruling is discussed in Section III-B-2, infra , and in the Section entitled "The
Remedy." -
5 Cf. N. L R. B. v. Ed, Friedrich, Inc., decided January 4 , 1941 (C. C. A' 5), enf'g as
mod. Matter of Ed Friedrich,. Inc, and Mill Workers ' Local 1764 , 17 N. L. R. B 387.
6 As noted , these rulings are discussed in other portions of this decision.
824 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
offered to introduce. The Trial' Examiner ol;served quite ' correctly
at this point that the respondent had not objected when he elicited
testimony from a witness for the Board which was prejudicial to
the Board's case. , Subsequently, while questioning a witness, the
Trial Examiner inquired of counsel for the respondent, "Mr. Wolff,
if you have any objection to any of the questions I would like to
have your objection. If you think I am taking advantage of the
witness or trying to build up the Board' s case in asking these ques-
tions I would like to have you so indicate." Counsel for the respond-
ent replied, "I would appreciate it if you would inquire into every
phase of this matter." Moreover, we have reviewed the Trial Exam-
iner's conduct of the hearing and find that his examination of wit-
nesses was neither excessive nor prejudicial. In view of these facts,
we reject as unfounded, the respondent 's assertion that the Trial
Examiner was "biased and partisan" and that the respondent was
deprived of due process of law.
Pursuant to notice duly served on all the parties, a hearing for
the purpose of oral argument was had before the Board of Wash-
ington, D. C., on January 28,'1941. Only the respondent, repre-
sented by counsel, participated in the hearing.
The Board has considered the exceptions to the Intermediate
Report filed by the respondent and the brief submitted in support
thereof and, in so far as they are inconsistent with the findings,
conclusions, and order set forth below, finds them to be without
merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT ,
The respondent is a Delaware corporation having its principal
office and place of business in Wilmington, Delaware. It is engaged
in the operation of ferry boats on two routes, one between New
Castle, Delaware, and Pennsville, New Jersey, and the other between
Wilmington, Delaware, and Pemisgrove, New Jersey. Both pas-
sengers and vehicles are transported on these routes. In 1939, 2,712,-
946 persons and 1,214,636 vehicles were transported on the New
Castle-Pennsville line, while 210,650 passengers and 46,813 vehicles
were transported on the Wilmington-Pennsgrove line. These vehicles
travelled from, through, and to various States other than Delaware
and New Jersey. The respondent admits that it is engaged in inter-
state commerce within the, meaning of the, Act.7
7 The facts in this section are derived from a stipulation entered into by counsel for the
respondent and counsel for the Board. -
DELAWARE-NEW JERSEY FERRY COMPANY 825
II. THE ORGANIZATIONS INVOLVED
United Marine Division , Local No. 333 , of the I. L. A., is a labor
organization which admits to membership captains, mates, pilots,
engineers ,- oilers, firemen , deckhands , cooks, bridgemen , and watch-
men on inland vessels .8 It is affiliated with the International Long-
shoremen's Association , which, in turn , is affiliated with the' Amer-
ican Federation of Labor.
- Engineers and Engine Department Committee is a labor organiza-
tion in which the licensed engineers and unlicensed personnel in the
engine department on the respondent 's boats participate . Captains
and Deck Department Committee is a labor organization in which
the captains and the licensed and unlicensed personnel in the deck
department on the respondent 's boats participate . Both of these
Committees deal with the respondent with regard to wages, hours,
and, conditions of employment of the groups of employees which
they respectively represent.
III. THE UNFAIR LABOR PRACTICES
A. ,Domination of and interference with the Engine Committee and
the Deck Committee
1. Background
It appears that prior to 1935, the employees of the respondent
were unorganized. In that year, the Marine Engineers' Beneficial
Association, herein referred to as the M. E. B. A., organized the
licensed engineers on the respondent's ferry lines . On October 3,
1935, the M. E. B. A. filed a charge with the Board alleging that it
represented the engineers, and that the respondent had, on September
27 of that year, refused to bargain with it. On October 18, the Board
issued a complaint upon the charges alleging violation of Section 8
(5) by the respondent. On December 30, 1935, after a hearing, the
Board issued its decision in which it found that the licensed engineers
employed by the respondent constituted an appropriate bargaining
unit, and that the respondent had refused to bargain with the
M. E. B.- A. as the representative of, said employees .9 On April 25,
1936, the Board petitioned the Circuit Court of Appeals for the Third
Circuit for an order of enforcement. On October 29, 1936, the re-
spondent petitioned said Court for leave to adduce additional evi-
dence for the purpose of proving that subsequent to the date of the
issuance of the Board's order, the Engine Committee had superseded
8 This finding is based upon the evidence adduced during the hearing and is somewhat
broader than the membership provision of the Union' s constitution and bylaws.
9Matter of Delaware-New Jersey Ferry Company and Marine Engineers ' Beneficial Asso-
ciation No . 13, 1 N. L. R. B. 85.
I
i
826, DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
the M. E. B. A. as the bargaining representative of the licensed
engineers, and that, therefore, the enforcement of the Board's order
no longer presented an issue for determination by the Court. The
Court thereupon remanded the cause for further hearing on the issues
raised by the respondent's petition, and said further hearing was held
before a Trial Examiner of the Board. On November 20, 1936, the
Board issued a Supplemental Decision 10 in which it found that after
the issuance of the Board's order on December 30, 1935, the respond-
ent had entered into a written contract with said Engine Commit-
tee; that this Committee had not been freely chosen by the respond-
ent's engineers, but had been designated as a result of interference
and coercion by the respondent; and that the Committee had not,
therefore, superseded the M. E. B. A. as the bargaining representative
of the licensed engineers. On June 18, 1937, the Circuit Court
issued its decision in which it declined to enforce the Board's order
on the ground that by reason of the agreement between the respond-
ent and the Engine Committee, there was no longer any controversy
or any need to enforce the Board's order.- The Court did not over-
rule any of the findings of fact which the Board had made. The
Board's-petition to the Supreme Court for a writ of certiorari was
denied on November 8, 1937.12
As noted above, the respondent contends that the allegations in the
complaint that it dominated-and interfered with the formation and
administration of the Engine Committee and Deck Committee have
been "reviewed and adjudicated" by the Circuit Court as set forth
above. However, it was not charged in that proceeding that the re-
spondent had dominated the Committees in violation of Section 8 (2)
of the Act. The issue, on the remanded proceeding, was whether or
not the M. E. B. A. continued to represent a majority of the employees
in the appropriate unit.13 It is now charged for the first time that
the respondent dominated and interfered with the formation and
administration of both the Engine Committee and Deck Committee
within the meaning of Section 8 (2) of the Act.
2. Formation and administration of the Engine Committee and the
Deck Committee
Lehman H. Garrison, general manager of the respondent, testified
that his position in 1936 was that he would not bargain with anyone
not acceptable to the respondent, and that he would not deal with
10 2 N. L. R. B. 385.
11 90 F. (2d) 520 (C, C. A. 3).
12 302 U. S. 738.
12 Since the M. E. B. A. sought to represent only the engineers, the Deck Committee was
in no way involved in the remanded proceeding
DELAWARE-NEW JERSEY FERRY COMPANY 827
the M. E. B. A. because Warren Evans, its organizer, was not accept-
able to him. He further testified :
Q. And is that the reason why these committees were formed?
A. Well, I made the statement and the committees were formed.
Q. I am asking you now, is the reason why the committees
were formed in March and April, 1936, due to the fact that your
position was that you would not deal with any representative
of your workers who was not acceptable to you?
A. That is correct.
Edgar Russell, Sr., one of the respondent's chief engineers who
testified as a witness for the Board under subpoena, stated that in
1935 after the M. E. B. A. had filed its charge, Wilson Trundle, then
the respondent's marine superintendent, told the men that they could
obtain a wage increase if they sent a committee to the respondent.
This complements the testimony of Lehman H. Garrison who stated
that prior to the organization of the Committees in 1936, he had been
told by his marine superintendent that the men were restless' and
wanted more money, and that he had told the marine superintendent
that "if they would form a committee among themselves to negotiate
with the company, that we would negotiate." Oscar Garrison, a
brother of Lehman H. Garrison and a captain on one of the ferries,
testified that in the early part of 1936 he had heard numerous
complaints from the deck personnel concerning wages and working/
conditions; that he had asked Ludolph Josendale, who had succeeded
Trundle as marine superintendent,14 what to do about the complaints,
and that Josendale had replied : "Why, not form a committee, the
same as the engineers have, and have a committee," and, Garrison
testified, "That is exactly what I done." From the foregoing uncon-
tradicted testimony, it is clear that the organization of the Com-
mittees resulted from the direct suggestion of the respondent and as
a consequence of its refusal to deal with labor organizations which
were "not acceptable" to it.
The next step taken to bring the Committees into being was the
preparation of two authorization petitions, one bearing the names of
the three senior engineers and one bearing the names of three cap-
tains to represent the engine and deck personnel respectively. The
composition of the Engine Committee was suggested by Josendale.
The latter testified that he suggested to some of the employees that
the three senior engineers be 'designated as the Committee, and he
admitted that the petition for the designation of the Engine Com-
mittee was typed at his suggestion and in his presence by Joseph P.
McAndrew, the paymaster and superintendent in charge of opera-
1+ As marine superintendent, Josendale was in charge of enginerooni personnel , repairs,
and maintenance
828 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions.16Edgar Russell, Sr., also testified as he had at the Board's
hearing in 1936 that Josendale chose the Engine Committee without
any previous discussions of the matter with the men.
As for the Deck Committee, Oscar Garrison stated that after Josen-
dale had suggested to him that such committee be organized he spoke
to various deck department employees, in some cases while the men
were, at work, and recommended the designation of himself' and
Captains Farrow and Dougherty, Garrison and Dougherty being the
senior captains, and that the men acquiesced. The petition which the
deck personnel signed was virtually identical with-that which was
used for the designation of the Engine Committee."
The signatures of the employees to the petitions designating the
Committees were obtained in the first week of April 1936. Edgar
Russell, St., testified, and we find, that Josendale "carried the names
around, for the approval of the employees." Paul A. Gibbons, an
engineer named to the Engine Committee, was on leave of absence
when that Committee was selected. He first learned of his selection
when, upon his return, Josendale showed him the petition which had
already been signed by the employees and asked him to sign it. This
was admitted by Josendale, who statedi: "Yes, after everybody else
had signed it, they handed it to me, then of course Mr. Gib-
bons, as -he testified, was out of town, and I had the paper in my
office, and I wanted everybody's signature on it that was willing to
sign, and when he signed he was the last, I -believe." [Italics sup-
plied.] ,Josendale also admitted that he took the petition to the
Wilmington-Pennsgrove line where he delivered it to one Strecker,
an engineer, with instructions that he take it around to the employees
on his boat and also that he leave it to be signed by the employees
cn the other shift; and that he told Strecker that he would be back
in a day or two to pick it up. Josendale first stated that he had noth-
ing to do with the circulation of the Deck Committee petition, then
admitted that Oscar Garrison gave him the petition and asked him
to "take it up when I made my rounds," and to obtain the signatures
of the employees on the Wilmington-Pennsgrove line. He further testi-
fied that he took the Deck Committee petition, but that he could not
recall speaking about it to anyone on that line excepting Captain
Van Hest. The latter testified that Josendale came aboard his boat
while he was on duty, and that he received his first intimation that
the Deck Committee was being organized when Josendale asked him
"McAndrew exercised the same authority with respect to deck personnel as did Josen-
dale with respect to engineroom personnel.
' Oscar Garrison could not recall whether McAndrew prepared the Deck Committee peti-
tion. In view of the similarity of language used in the two documents , the fact that
McAndrew was in charge of deck personnel , and the admitted fact that he typed the Engine
Committee petition at Josendale 's suggestion , we find that the petitions had a common
authorship
DELAWARE-NEW JERSEY FERRY COMPANY 829
I
to sign ' the petition ; that he thereupon stated that it was unfair for
the respondent to, have appointed the Committee, to which Josendale
.replied: - "Here it is"; and that he signed because the others had
already signed . Wd credit -this testimony as did the Trial Examiner.
Frank F. Armstrong, an engineer , testified , and we find, that Josen-_
dale brought the petition to him for signature while he was on duty
in the engineroom . Josendale 's explanation that he took the petitions
to the Wilmington -Pennsgrove line, because it, was more convenient
for him to do so than it was for the employees who were working,
and "they didn't have the opportunity to travel around like Idid,"
while ingenious, serves only to emphasize his complicity in the
organization of the Committees.
The testimony of Oscar Garrison establishes that the Deck Com-
mittee petition was presented by him for the signatures of many
employees while they were on duty , Garrison going from boat to boat
for that purpose . The manner in which this petition was presented
to the men was described by Herbert Garrison thus : The captain of
his boat, James Gullo, handed the paper to Herbert Garrison and
asked him to sign , saying, "It was sent down by the company"; "You
have to sign this or else ." Herbert Garrison is a nephew of Lehman
H. Garrison , but is one of the striking employees . Gullo denied the
testimony of Herbert Garrison and stated that the petition had been
sent to him, that he called his crew together during -working hours,
asked them to read , the ,petition and to sign it or not as they ' pleased.
Although Gullo's testimony, if true, would also be indicative of inter-
ference and coercion by the respondent , Gullo, as the Trial Examiner
observed , was a confused and unreliable witness. We credit the
testimony of Herbert Garrison . Oscar Garrison testified that he ob-
tained most of the signatures to the Deck Committee petition , and that
"when I went aboard a boat, if I could not get the signature, I left
the paper with the captain for him to get the balance ," and that all
the signatures were obtained either by him or by other , captains.
.
After the petitions had been signed , they were delivered to Leh-
man H . Garrison who, on April 11 , 1936, notified both Committees
that he would meet with them on April 14 to discuss wages and-
general working conditions . On the appointed day, the meeting took
place, but nothing . was accomplished because, according to Lehman H.
Garrison , the Committees had nothing to present . The meeting was
adjourned , and the Committees were asked to submit "concrete" pro-
posals. Both Committees then submitted proposed wage scales, and a
second meeting was held on May 28, 1936 , at which agreement was
reached on , wages. - The wage scales agreed to conferred an increase
upon all employees in the engine and deck departments . The re-
spondent then ,drafted contracts and sent them to the respective com-
mittee members on June 2, 1936. Lehman 's brother , Oscar, of the
830 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
t
Deck Committee and Gibbons of the Engine Committee made identi-
cal comments to the effect that Rule No. 4 of the contract relating to
overtime pay be clarified . This rule was revised , contracts were,
drafted in final form, and were signed. By their terms ,, they were
effective as of April 1, 1936. The wage scales contained in the con-
tracts are those which the respondent proposed to the Committees at
their second meeting. Edgar Russell , Sr., a member of the Engine
Committee , testified that he discussed the terms of the contract with
every engine department employee during working hours , going from
boat to boat for that purpose when he was off watch .- He stated :
"They were all on watch with the engineers, and I consulted
them . . . I discussed it with the-engineer, and he always called the
oiler and fireman in.':
On February 20, 1937, while the Circuit Court of Appeals was
still considering the Board 's petition for enforcement, papers were
prepared for the signatures of the deck department employees read-
ing as follows : "We , the undersigned Deck Personnel , hereby author-
ize the same Committee to act for us as in 1936-37 and accept the
agreement , as is ' for another year to April , 1, 1938." On the same
date, a similar paper was prepared for the signatures of the engine
department employees , reading as follows : "The men in engine room
department are satisfied with working agreement as of April 1, 1936,
to April 1 , 1937, and are willing to enter into a new year as to same
agreement plus while in shipyard to have legal holidays off with
'pay." Edgar Russell , Sr., of the Engine Committee , testified that the
men had been speaking among themselves of the desirability of ob-
taining holidays off with pay while their vessels were in shipyard
and that this was the reason for the preparation of the engine room
paper in February 1937. The testimony on this point convinces us
that the matter of holidays with pay while in shipyard was no real
problem at -'that time. In fact, it appears that it had never been raised,
before February 1937 , and there is considerable - doubt as to whether
it has ever arisen since . At any rate , the engine department persoli-
nel were approached to sign the 1937 paper during working hours,
Russell making the rounds of the ships . Similarly , Oscar Garrison
and other Deck Committee members obtained the signatures of the
deck department employees . It was testified by Herbert Garrison,
and we find, that he signed the deck department paper in the wheel-
house of one of the boats where the captain and others were signing
it.
After the aforesaid papers had been signed, they were submitted
to Lehman H. Garrison who sent the respective Committees new
agreements signed by the respondent , which the Committees then
signed. The only change to be found in the 1937 agreements was a
clause inserted by the respondent providing for automatic renewal
'DELAWARE-NEW JERSEY FERRY COMPANY 831
each year in the absence of notice to the contrary by either party.
Provision for holidays with pay while in shipyard, which had alleg-
edly been the sole revisibn sought in 1937 by the engine department,
employees, is not to be found in the contract signed by their Com-
mittee. None of the witnesses, including Lehman H. Garrison, could
explain this omission. None of the parties has ever given notice of
termination of the contracts, and they remain in full force and effect
subject to oral wage and vacation agreements'made in September 1940
which are more fully discussed below.
The Committees relapsed into a state of dormancy after the 1937
contracts had been signed. No meetings of employees have ever
been 'called by either of them. During the 41/2 years of their ex-
istence, they have made feeble gestures at presenting grievances in
a few instances with no effort made in any one of them to press for
a favorable disposition. There is no evidence that the employees
were made aware of the automatic renewal provision by the Committees
with the result that, as several witnesses testified, they' did not know
that there were subsisting contracts with the respondent until the
fact was called to their attention shortly before the strike of July 15,
1940.17 From April 1936 until after the commencement of the strike
in 1940, the Committees neither sought nor received any increase in
pay or, improvement in working conditions. However, just as the
respondent had created the Committees and granted a wage increase
in 1936 in order to defeat the organizational efforts of the M. E. B. A., -
so it revived the Committees and granted another substantial wage in-
crease together with increased vacation privileges after the Union had
struck in July 1940, in order again to defeat the attempt of the em-
ployees to organize under a labor organization which was "not'accept-
able" to the respondent.
The strike occurred on July 15, 1940. About 60 employees in all
classifications participated. On July 23, 1940, the Engine and Deck
Committees sent identical messages to Lehman H: Garrison request-
ing a conference "in reference to an adjustment of wages." He-re-
plied on July 29, 1940, assuring the Committees "it will be agreeable
to us to make any adjustment agreed on effective as of August 1,
1940," a favor which the Committees had not even suggested. He
asked-the Committees to prepare and submit proposed wage scales.
On July 30 the Engine Committee submitted its_ proposed scale to-
gether with a request for time and one-half for overtime instead of
the time and one-third theretofore paid, and 2 weeks' vacation with
pay in place of the.8 days for employees with 2 or more years of
service granted in the 1937 contract. On July 31 the Deck Com-
mittee submitted its proposed wage scale.
17The strike, is discussed in Section B, infra.
I
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the fact that the Union had, prior to the strike, called on
the respondent to bargain with it and had claimed to represent 85
percent of the employees, and despite the fact that 60 employees had
struck,on July 15 and that more than 3 years had elapsed since the
Committees had last given evidence that they represented the em-
ployees, the respondent dealt with the'Committees in July 1940 without
questioning their authority.
Nothing further was done about the "demands" of the Committees
for about 6, weeks or until after Labor Day of 1940. At that time,
the strike was still in progress with about 49 men still out, and picket
lines were active. The two Committees met with Lehman H. 'Gar-
rison, who agreed to their demands for the licensed employees, but
stated that their proposed wage scales for the unlicensed men were
too high, and he submitted his-own scale. Agreement was reached on
wages at this meeting. Wages of captains were raised from $45 to
$51.84 per week; of licensed mates from $28.85 to $35.04; of mates
from $23.07 to $31.20; and of `deckhands from $18.46 to $24.00. The
wages of engineers were increased from $45 to $51.84; of licensed
oilers froln $28.85 to $35.04; and substantial increases were granted
unlicensed oilers and firemen.18 The average of the wages increased
thus granted to all deck and engineroom employees was $5.98 per
week or about 20 per cent above the wage scales established in the
1937 contract. The respondent also agreed to increase vacation priv-
ileges for all classifications of employees. The overtime demands
presented by the engineers were apparently overlooked completely.
It is also significant that, although no demands had been presented
on behalf of employees outside the engine and deck departments
and although said employees had, in fact, not designated any bar-
gaining representatives other than the Union, the respondent volun-
tarily granted them wage increases effective as of August 1, 1940,
the wages of bridgemen and watchmen being raised from $19.61 to
$24 per week.19
After the Committees had reached an agreement with the- re-
spondent in September 1940, papers were prepared for the purpose
of having the individual employees in the engine and deck depart-
ments signify their approval of the acts of their Committees. The
signatures of the deck and engine department employees to these
18 Under the 1937 agreement , there was no classification of unlicensed oilers and firemen.
That agreement provided for wages of $28.85 for coal firemen and $23 07 for oil firemen,
while the 1940 scale provided for wages of $31 20 to unlicensed oilers and $28 80 for
firemen.
18 The obvious explanation of this apparent generosity on the part of the respondent is
to be found in the fact that included among the strikers were many employees outside the
engine and deck departments, and that the Union sought also to bargain for them as well,
as for the engine and deck employees . In 1936, when the respondent last granted wage
increases at the behest of the Committees , only the employees represented by these organi-
zations received raises
DELAWARE-NEW JERSEY FERRY COMPANY 833
documents were solicited by Oscar Garrison and other , committee
members, for the most part , on the boats during working hours.
In view of all the surrounding circumstances , the granting of
these wage increases ostensibly as a. result of bargaining with the
Committees appears to have been nothing more than a strikebreak-
ing measure , calculated at once to wean the strikers back to work
and to undermine the Union by enhancing the prestige of the Com-
mittees. This- impression is not altered by the testimony of Oscar
Garrison . He stated that it was his idea to ask for a wage in-
crease in July 1940, after the strike had commenced , and that he
mentioned it to the other Deck Committee members as well as to the
Engine Committee . Asked why he had determined upon such a
request after 41/2 years during which no effort had been made to
obtain a wage increase, he replied that he thought that it was an
opportune time for such a request and then testified as follows : .
Trial Examiner PARADISE . Are you able to give me any reason
why you thought that the latter part of July 1940, was an oppor-
tune time to ask for a wage increase?
The WITNESS . Well, I thought it was the opportune time. It
must have been, because we got it. ,
Trial Examiner PARADISE . " I do not want to press you, Cap-
tain, but is that your best answer to my question?
The WITNESS. Yes, sir ; I thought it was an opportune time.
Despite Oscar Garrison 's denial that he had consulted with his
brother, Lehman H. Garrison , or any other company official before
instigating the request for a wage increase , we are convinced from
the record that, in this instance , as in 1936 and 1937 , he would not
have taken any step calculated to embarrass the respondent , and that
he was well aware that his request for an increase would be favor-
ably received . We find that in this instance, as in 1936 and 1937,
Oscar Garrison acted in the interest of the respondent for the pur-
pose of defeating outside union organization and promoting the
Comn-nittees.
3. Conclusions with respect to the Engine and Deck Committees
The record establishes that the two Committees were created at
the direct suggestion and with the assistance of the respondent for
the purpose of defeating the attempts of the M. E. B. A. to organize
the employees . And to attract and retain the employees as members,
the respondent granted wage increases , ostensibly as the result of col-
lective bargaining, and written contracts which it drafted and later
modified with but slight consultation with the Committees. With
the Al . E. B. A. successfully replaced, the Committees became dor-
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mint. In 1940, when another strong attempt was made by the
Union to organize the employees, and a strike was called, the Com-
mittees were revived by the respondent for the purpose of defeating
the Union and breaking the strike. Once more, wage increases were
granted at the behest of the Committees and without any effort to
ascertain, although the Union claimed 85 per cent of the employees
as members and 60 employees had responded to the strike, whether
these Committees continued to represent a majority in an appropriate
unit. In granting these wage increases, we find, 'the respondent sup-
ported the Committees and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.20 The Committees, it is apparent, have never served as
genuine collective bargaining agencies, but have existed and now
exist solely as instrumentalities whereby the respondent may defeat
the attempts of its employees at self-organization, and thus avoid
its obligation to bargain with the freely chosen representatives of
its employees. Upon the entire record, we find that the respondent
has dominated and interfered with the formation and administration
of the Engine Committee and the Deck Committee and contributed
support to them and that, it has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. We also find that the contracts executed with
the Committees in 1937, which continue in existence by virtue of the
automatic renewal clauses, constitute an illegal interference with
,the rights guaranteed employees in Section 7 of the Act.21
B. The refusal to bargain
1. The appropriate unit
The complaint alleges as appropriate, and the Union seeks, a unit
composed of the captains, mates, engineers, deckhands, oilers, firemen,
bridgemen, and watchmen employed by the respondent on its New
Castle-Pennsville line. The respondent contends: (1) that in the
prior proceeding, the Beard noted that "In the operation and main-
tenance of its ferry boats, respondent employs three classes of per-
sonnel between which sharp distinctions exist, namely : pilots, en-
20 Matter of International Harvester Company and Local Union No. 57, International
Union, United Automobile Workers of America, 2 N. L. R B. 310; Matter of Metropolitan
Engineering Company and Metropolitan Device Corporation and United Electrical and Radio-
Workers of America, Local No 1203, 8 N L R. B 670; Matter of Beloit Iron Works and
Pattern Makers League of North America, et at , 7 N L R B 216
21 Cf. National Licorice Company v N L R. B, 309 U S 350 , aff'g as mod. 104 F (2d)
655 (C. C. A 2), enf'g as mod. Matter of National Licorice (Tompany and Bakery and Con-
fcctionery Workers International Union of America, Local Union 405, Greater New York
and Vicinity, 7 N. L. R B. 537; N. L. R B. v. J. Greenebaum Tanning Company, 110 F.
(2d) 984 (C. C A 7), cert. denied 311 U S 662, enf 'g as mod Matter of J. Greenebancm
Tanning Company and National Leather Workers Association , Local No. 43, affiliated with
the C 1 0, 11 N L. R B. 300.
i
DELAWARE-NEW JERSEY FERRY COMPANY 835
gineers and unlicensed personnel or crew" 22 and that "the reasons
upon which this Board based its conclusions . . . that these three
classes constitute separate, distinct and unrelated bargaining units,
are as convincing and determining today as they were when declared
by the Board in 1935"; (2) that the unit should include another line
owned and operated by the respondent, the Wilmington-Pennsgrove
line, situated about six miles from the New Castle-Pennsville line;
(3) that the bridgemen and watchmen should be excluded or the
ticket collectors and standmen included in the appropriate unit ; and'
(4) that 17 temporary employees should be excluded. • We will dis-
cuss these contentions seriatim.
The Board did not find in the prior proceeding that the pilots,
engineers, and unlicensed personnel constitute "separate, distinct and
unrelated bargaining units." It held, merely, that these three classes
of employees were sufficiently distinct to justify a unit composed
solely of the engineers. At that time, the engineers were the only
organized group among the respondent's employees and their organ-
ization, the M. E. B. A., did not admit any other class of employees
to membership. The M. E. B. A. was supplanted by the Engineers
Committee in 1936 and does not now-seek to represent any of the
respondent's employees. The Union is the only bona fide labor or-
ganization presently active among the respondent's employees and its
membership embraces employees of every type concerned with the
operation of the ferries, including the engineers- and licensed deck
officers. If separate units were required at the present time, an
unwarranted and unnecessary obstacle would be placed in the path
of collective bargaining.
Arthur T. Olsen, the Union's organizer testified during the hearing
that he had not solicited the employees on the Wilmington-Penns-
grove line as he was under the impression that that line was owned
by a different company than the New Castle-Pennsville line. In
fact, the two lines are operated by the same management with iden-
tical personnel policies and wage rates. A common relief crew is -
used for both lines and employees are shifted from one line to the
other in case of illness-or other emergency. At the present time,
however, we do not believe that they should be combined in one
unit. These two lines are sufficiently 'distinct so that they can
operate as separate units. And under such circumstances, the Board
has repeatedly restricted the unit to the organized divisions or plants
22 Matter of Delaware-New Jersey Ferry Company and Marine 'Engineers Beneficial Asso-
ciation No. 13, 1 N. L. R. B. 85.
440135-42-Vol 30-54
i
836
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of one company, permitting the inclusion of additional divisions or
plants as organization progresses.23
As noted, the respondent would exclude the bridgemen and watch-
men unless the ticket collectors and standmen are included in the
unit. The bridgemen raise and lower the bridge, a movable plat-
form which extends from the end of the wharf to the prow of the
boat. Since the level of the boat varies with the changing tides, it
is necessary, in order to permit ingress to and egress from the boat,
that the bridge be raised or lowered to meet the prow of the boat
when it enters the slip. It appears that the respondent employs only
one watchman. He is engaged in watching the ferry offices, collec-
tors' booths, and the wharf properties as well as looking out for
accidents. The ticket collectors, as their name implies, collect the
tickets for passage on the ferry boats. And the standmen sell re-
freshments on the boats. None of these employees, with the excep-
tion of the bridgemen, are engaged, as the captains, mates, engineers,
deckhands, oilers, and firemen, in the actual operation of the ferry
boats although all work with or in the vicinity of the employees on
the ferry boats. The Union, as noted, seeks to include in the appro-
priate unit and has organized the bridgemen and watchmen, and to
exclude the ticket collectors and standmen. Since the Union herein
is unopposed by any other bona fide labor union, we shall, at' its
request, include the bridgemen and watchmen, whom it has organ-
ized and enrolled as members, and exclude the ticket co Jectors and
standmen.24
There remains the contention that the so-called seasonal employees
should be excluded. It appears that each year commencing about May
30 and continuing through the month of June, the respondent employs
additional men in anticipation of the heavy summer traffic. These
men are retained until about the middle of October or after the regular
crews have taken their vacations following Labor Day. The seasonal
employees include deckhands, firemen, and bridgemen as well as stand-
men and ticket, collectors. Of the deckhands, firemen, and bridgemen
in the respondent's employ on July 1, 1940, 17 were classified •as, sea-
sonal employees. Four of these were hired in February and March,
1940, but it was testified by Joseph McAndrew, superintendent in
charge'of production, that-this was done only because several of the
2a Matter of Burroughs Adding Machine and Boston Lodge No. 264, Intei national Asso-
ciation of Machinists, American Federation of Labor, 14 N L R B 329 , Matter of South-
ern Aggregates Corporation and Quarry Workers International Union of North America,
Locals Nos 293, 294, 295, 23 N L R B 736 ; Matter of 'Nebel Knitting Company and
American Federation of Hosiery Workers, 2 N L R B 1155.
24 Cf Matter of The Kentucky Fire Brick Company and Local No 510, United Brick d
Clay Workers of America, 19 N L R B 532 , Matter of Atmour and Company and
United Packing House Workers Industrial Union Local 153, affiliated with the C 1. 0 ,
et al., 14 N L it. B. 682.
DELAWARE-NEW JERSEY FERRY COMPANY 837,
respondent's boats had to be laid up for repairs, that these four men
-were hired only for the period during which the repairs were being
made, and that they too would normally have been released after the
end of the vacation season.
It appears from McAndrew's testimony that the seasonal employees
are usually local residents who are relatives or friends of the regular
employees. They file applications for employment starting "as soon
as the snow stops falling," andzaccord,ng to-McAndrew, "When we
are putting on more men, we will look them up and tell them to come
in to work." Other things being equal, preference in employment is
given to men who have worked for the respondent in previous years,
but there is an annual turnover of seasonal employees of about 80 per
cent. When vacancies occur in the jobs, of regular employees, they
are filled from the ranks of these.seasonal employees. The wage rates
of the seasonal employees are the same as those of the regular ones,
and the wage increases granted by the respondent in 1936 and 1940
extended to the seasonal employees as well ail to the others. Seasonal
employees do precisely the same type of work as do the regular em-
ployees. An overwhelming majority of the seasonal employees (ex-
cluding standmen and ticket collectors) signed union membership
cards and participated in the strike. Although these employees work
for only 4 or 5 months during the summer, they are vitally concerned,
during the tenure of their emplo`yme it, with rates of pay, wages, hours
of employment, and other condition's of employment. We do not be-
lieve that they should be denied the benefits of collective bargaining
because their status is a seasonal one. They are nonetheless employees
'within the meaning of the Act.25 -
We find that all captains, mates, engineers, deckhands, oilers,- fire-
men, bridgemen, and watchmen employed by the respondent on its New
Castle-Pennsville line, including seasonal employees in those cate-
gories, at all times material herein constituted and that they now con-
stitute a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that said unit insures to the employees
of the respondent the full"benefit of their right to self-organization
and to collective bargaining and otherwise effectuates the policies of
the Act.
2. Majority representation
As of July 1, 1940, the pay-roll date nearest July 9, 1940, the re-
spondent employed 106 employees within the appropriate unit.2e
u See Matter of Southern California Gas Company and Utility lVorkers organizing Com-
mittee, Local No 132, 10 N. L. R. B. 1123; Matter of Kawncer Company and Local 92,
United Automobile Workers of America, A. F. of L, 22 N. L R B 995.
26 This number, which is one in excess of the number the Trial Examiner found were in
the unit, includes Edward Gott, a watchman, whom the Trial Examiner excluded from the
appropriate unit.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union offered in evidence 83 membership applications. The re-
spondent availed itself of an opportunity to compare the signatures
on these cards with those of the employees which it has in its files and
conceded that all the signatures appeared to be genuine. The union
organizer testified, and we find, that all the cards were delivered to
him, and by him to the union offices, prior to July 4,1940. The authen-
ticity of the cards was further established by the production by the
Union of its original receipt books showing receipts issued in the reg-.
ular course of business to applicants for membership for payment of
initiation fees and also by the production of the original reports of
collections made by the organizer to the Union in the.regular course of
business. Both the receipts books and the reports were examined and
checked by the respondent and were received in evidence.
Of the 83 cards, one was a duplicate, another was unsigned, two
were signed by ticket collectors, and two more by employees who had
left the respondent's employ prior to the refusal to bargain. The
Trial Examiner eliminated these cards and we affirm his rulings. An
additional three employees who signed applications do not appear on
the pay-roll list of July 1, 1940, which was submitted in evidence.
Two of these three employees, Joseph F. McCormick and Joseph Clif-
ford, it appears from the testimony of Joseph P. McAndrew, superin-
tendent in charge of operation, were on the respondent's pay roll at
this time. However, the respondent has asserted in a brief filed with
the Trial Examiner that these two employees and John lononni,
"although originally employed as deckhands, were not assigned to
work on any of the respondent's ferry boats, and for that reason do not
appear upon the crew list." Since there is some doubt as to whether
these employees occupied jobs covered by the unit found appropriate,
we shall exclude them from our computation of the Union's majority.
The respondent urges, in addition, that David E. Tompkins' card
was not signed and that William Jordan had left the respondent's
employ. Tompkins' card was in fact signed on the line whereon his
name was Co be printed and omitted from the line for his signature.
Moreover, his card bears the union organizer's notation, "Pd." at the
bottom, and -the record shows that a receipt for payment toward his
initiation fee was issued to Tompkins on July 5, 1940. We find that
Tompkins' application for membership in the Union was sufficiently
proved. Jordan worked for the respondent until,July 10, 1940, when
he left under circumstances which are discussed below.28 Since he
was on the pay roll prior to the-alleged refusal to bargain, his name
should be included in determining the Union's majority. As to an
additional 5 employees, the receipts furnished by the Union indicate
27 Joseph F. McCormick, Joseph Clifford , and John McHugh
28 See Section III-C, infra.
DELAWARE-NEW JERSEY FERRY COMPANY 839
that they have not 'made any payment on account of their initiation
fee.29 Since the authenticity of the signatures on their cards was not
questioned, we shall include them among those who have designated
the Union as their bargaining representative.
There are, then, 106 employees within the appropriate unit and the
Union has produced valid membership cards signed by 74 of these
employees. The respondent contends, however, that 23 employees
would have testified, if permitted by the Trial Examiner, that "they
no longer desired" the Union to represent them. It is clear from the
record that the respondent intended to prove that the revocations
occurred after the dates on which the refusal to bargain was alleged
to have taken place. Thus, in excluding this evidence, the Trial
Examiner remarked that "the case would stand or fall on the question
of whether or not the company [respondent] refused to bargain with
the union when the union wanted to bargain with the company, and
anything which transpired after that, in my opinion, does not alter
the picture." The respondent did not then or at any other time indi-
cate that the revocations occurred prior to the refusal to bargain.
Moreover, there is no evidence'that any of these 23 employees ever
attempted to rescind the membership cards which they had signed.
Since these revocations took place, if at all, after the refusal to bargain,
they cannot be considered in determining whether or not the Union
possessed a majority within the appropriate unit at the time of the
refusal to bargain.30
In a brief filed with the Trial Examiner, the respondent asserted
that "an application for membership in a labor union is not of itself
a designation by the applicant of that union as his bargaining repre-
sentative." However, Section.9 (a) of the Act provides that "Rep-
resentatives designated or-selected" by a majority in,the appropriate
unit "shall be the exclusive representatives of all the employees in
such unit.," An application `for--membership is a sufficient designation
or selection of a bargaining representative.31
To ascertain whether or not "any of the respondent's employees
have been admitted to membership" in the Union, the respondent re-
quested a subpoena for the president and secretary of the Union
22 The five are John A . Peden, William Megginson , Charles Langley, Gilbert Wilhelm,
and Paul Harris . The testimony of Wilhelm and Langley at the hearing removes any
possible doubt that they desired that the Union represent them
ii See the Section entitled "The Remedy " for a discussion of the effect of a loss of
majority after the refusal to bargain.
n See N. L. it. B . v. Chicago Apparatus Company, decided December 13, 1940 (C C A 7),
enf'g Matter of Chicago Apparatus Company and Federation of Architects , Engineers,
-Chemists and Technicians , Local 107 , 12 N. L. R . B. 1002; N L. it. B v' Bradford Dyeing
Association ( U S A ), 310 U. S 318, rev'g 106 F. (2d) 119 ( C C A 1) and enf ' g Matter
of Bradford Dyeing Association ( U. S. A.) (a Corporation ) and Textile Workers ' Organiz-
ing Committee of the C. 1. 0 ., 4 N. L. R. B. 604 ; N. L it. B v. Somerset Shoe Company
and United Shoe Workers of America , 111 F ( 2d) 681 ( C. C A 1 ), enf'g as mod and
remanding Matter of Somerset Shoe Company and United Shoe 1Voriers of America, 5
N. L R. B 486 and 12 N L. R. B. 1057
840 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
and the secretary of the Executive Board of the Union and any and
all resolutions of the Executive Board providing for an increase in
initiation fees or dues. As noted previously,, the Trial Examiner
denied this request; he then asked counsel for the respondent to make
an offer of proof. Counsel for the respondent replied that he in-
tended to impeach the testimony of Captain Bradley, a witness for
the Board, who had alleged that the Union considered and accepted
the afore-mentioned applications for membership. The respondent
now urges that the Trial Examiner was'"biased and partisan' because,
inter alia, he refused to issue these subpoenas. However, the evidence
the respondent sought to procure was immaterial and irrelevant
since, as we have found, an application for membership in a labor
union is sufficient designation by the applicant of that union as his
bargaining representative. Nor do we believe that the respondent
was unfairly limited or prejudiced because it was prevented from
attempting to impeach the testimony of Captain Bradley on a col
lateral matter, not relevant to the issues of the proceeding, by inquir-
ing into the internal affairs of the Union.32
The respondent also offered to prove that ,a ,number of employees
signed union cards "under fear that they would lose their jobs if
they did not do so, inasmuch as they had been informed by the per-
sons soliciting their applications that it was -the intention of the
Union to have a closed shop, [and] unless they signed on or -before
a certain date, which was -liked," tli'eir dues 'and initiation fees would,
be raised to $100 or $200, as the case may be." The constitution
and bylaws of the Union provide for initiation fees in the amounts
of $100 and $200, but it was testified that the Union waives this re-
quirement and accepts a nominal initiation fee during organiza-
tion drives. The Trial Examiner also excluded the proffered proof,
but for the purposes of this decision we, will, arguendo, accept it as
true. Alleged coercion of this type was considered in National
Labor Relations Board v. Dalhstrom Metallic Door Company 33
wherein the Circuit Court of Appeals stated :
The Board was clearly correct in holding the statements of
union organizers unavailable as a defense to respondent. These
"threats" were persuasive arguments -addressed to the employees'
self-interest. We do not doubt their effectiveness, but union
organizers are quite free to explain the legitimate consequences
of joining or remaining aloof. Had the threats been of phys-
sa Bradley testified primarily about his efforts to bargain with Lehman Garrison on July
10, 1940. As appears below, we base our findings concerning these efforts on the testimony
of Garrison and another witness called by the respondent , both of whom gave substantially
the same account as Bradley.
sa 112 F. ( 2d) 756 (C. C. A. 2), enf'g Matter of Dahlstrom Metallic Door Company and
United Electrical, Radio & Machine Workers of America , Local No 307 , 11 N L. R B 408.
i
DELAWARE-NEW JERSEY FERRY COMPANY 841
ical violence, the case would be different, as the Board itself
conceded. But it would have been in no way improper for the
Union to raise its dues or demand a closed shop ; consequently,
it could not have been improper to "threaten" to do so.
In addition, the respondent sought to establish that the Union's
majority was coerced by introducing proof of alleged "violent, in-
timidating, coercive and lawless methods pursued by the Union, and
its sympathizers, in its 'organization drive." ' The Trial Examiner
'refused to' entertain such- evidence in so far as it related to mat-
ters that occurred after the refusal to bargain.34 No other evidence
of "lawless methods" was offered by the respondent. We believe
that the Trial Examiner's ruling, which is urged by the respond-
ent as proof of "bias," was eminently correct. If the Union's ma-
jority was uncoerced at the time of the alleged refusal to bargain,
it is immaterial, in seeking to determine whether the respondent
had refused to bargain collectively with the majority representative,
that the Union thereafter pursued "lawless methods." 35 Nor can
the respondent employ such evidence in support of the proposition
that the Union acquired its majority unlawfully when it has failed
to introduce evidence to substantiate this premise.
We find, accordingly, that on July 4, 1940, and at all times there-
after; the Union had been designated and selected by a majority of
the respondent's employees in the appropriate unit.313 Pursuant to
'Section 9 (a) of the Act, it was, therefore, on that date, and at all
times ' thereafter,37 the exclusive representative of all- the employees
in such unit for the purposes of collective bargaining with respect'
to rates of pay, wages, hours of employment, and other conditions of
employment.
3. The refusal to bargain and the strike
The complaint alleges that "on or about June 29, 1940, July 5, 1940,
and July 9, 1940, and at various other times," the Union requested
the respondent to bargain and that the respondent " on or about said
dates" and at all times thereafter refused to bargain with the Union.
The Trial Examiner inquired of counsel , for the respondent , before rejecting evidence of
alleged "lawless methods" : "Can you say whether it was subsequent to- the -commencement
of the strike?" And then explained that "the point I am making is this-and I want it to
be very clear-that the Examiner has no desire to curtail the respondent in any attempt
to prove that any of these men signed their applications for union membership as a result
of threats and intimidation . If you have any threats proof, you are at liberty to put It on."
81 As noted in the Section entitled "The Remedy ," counsel for the respondent admitted
during oral argument before the Board that the respondent did not seek to introduce evi-
dence of "lawless methods " to prove that the strikers had disqualified themselves for
reinstatement . And during the bearing , Lehman H. Garrison , general manager, admitted
that the respondent would reinstate every striker upon application
It is to be noted that the Union would have a majority in the appropriate unit even if
the seasonal employees were excluded and the Wilmington -Pennsgrove line included'
17 See the Section entitled "The Remedy "
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer , verified by its president, George 'B . Junkin , the re-
spondent admits that these allegations are substantially correct.' At
the hearing it was testified by the union president that he mailed a
letter to the respondent on June 29 , 1940 , enclosing a proposed agree-
ment and asking for a conference before July 6, to which letter the
respondent Aid not reply ; that on July 5 he mailed a second letter
enclosing a copy of a proposed agreement and requesting a confer-
ence at the earliest possible date. On July 8, the respondent , acknowl-
edged receipt of the second letter, but stated that it had not received
the proposed agreement mentioned therein, and stated further, "We
are not aware that you represent any of the employees of the Dela-
ware-New Jersey Ferry Company as their bargaining representative
and are therefore precluded from recognizing you as such." The
union president further testified that he mailed a reply to this letter
on July 9 advising the respondent that the Union had organized 80
per cent of its employees , and stating that if the respondent refused
to grant recognition , the matter would be referred to the Board,
and ,that he enclosed another copy of the proposed agreement men-
tioned in the previous letter . Lehman H. Garrison , to whom all
these letters were directed , testified that he never received either the
letters of June 29 or July 9 or the proposed agreement mentioned in
the letters . The union president produced the original carbon copies
of all these letters which he testified he obtained from the files of
the Union.
In view of the specific admission contained in the respondent's
answer , referred to above, which admission the respondent has in no
way modified or retracted , we find that ,the respondent received all
the letters even though Lehman H. Garrison may have been unaware
of the fact.
There is no dispute that on July 10 , 1940, Bradley and Olsen, the
union president and organizer , respectively , went to the respondent's
offices at New Castle and sought to confer with Lehman H. Garrison.
They met him as he came upon the dock at New Castle, in the com-
pany of Harry Johnson, an insurance broker, after having been un-
able to meet him, at the office. We accept the testimony of Garrison
and Johnson , as did the Trial Examiner , concerning the conversation
which occurred at that time. Garrison testified that Olsen identified
himself as a representative of the Union and introduced Bradley
whose official capacity was known to Garrison from, prior corre-
spondence which he had had with the Union. Olsen asked whether
Garrison had received the Union 's letter. Garrison replied that he
had, and asked whether the Union had received his reply, to which
Olsen answered in the affirmative . Olsen then asked, "Is that all
you have got to say a bout it?" 'and Garrison answered , "That is final
DELAWARE-NEW JERSEY FERRY COMPANY 843
with me." Olsen asked whether Garrison would reconsider and
stated that the Union had 85 per cent of the men signed up, and
that Garrison might avoid difficulty by negotiating with the Union.
Garrison said that his refusal was final and according to his own
testimony , "You can't negotiate with me, and you have got to go
ahead and do anything you have got in mind." Garrison testified
that he refused to have anything to do with the Union, still refuses,
and has always refused to have anything to do with an outside
union.
On July 15 , 1940, the Union declared a strike because of the refusal
of the respondent to bargain with it. About sixty employees joined
in the strike which was still in progress at the time of the hearing.
At that time 49 employees were still on strike.
It is evident that by its refusal to deal with the Union's representa-
tives or even to discuss with them the matter of union recognition,
the respondent foreclosed the possibility of even preliminary discus-
sions concerning the appropriate unit and majority representation,
which would have afforded a basis for recognition. and thereby pro-
voked its employees into striking. It is also evident that the same
determination which Garrison had expressed in 1936 not to deal with
unacceptable, i. e., outside, unions still controlled his conduct in
July 1940.
These conclusions are reenforced by the fact that, as found above,
on July 23, 1940, the respondent commenced negotiations w-ith• the
Engine and Deck Committees without even questioning their right
to represent the employees and granted substantial wage increases
to its employees through the Committees , thereby reaffirming its
refusal to bargain with the Union . The fact that the respondent
negotiated with its company-dominated. committees without ques-
tioning their right to represent the employees, in the face of the
pending claims made by the Union, the pendency, of the strike, and
of the fact that the employees had not been asked to signify their
support of the Committees for about 31/2 years, is a clear indication
that the respondent's statement that it was unaware that the Union
represented any of its employees , and thht it therefore could not
recognize the Union was not made in good faith . The respondent
has at no time receded from its refusal to deal with the Union.
In a brief filed with the Trial Examiner , the respondent argued,
in explanation of its refusal to bargain , that it was obligated to ob-
serve the separate unit of engineers which the Board held appro-
priate in the prior proceeding against the respondent 38 and that any
determination of a different unit can operate only prospectively, for
' Matter of Delawarg -New Jersey Ferry Company and Marine Engineers Beneficial Asso-
ciation No 13, 1 N . L R B 85, as reaffirmed in 2 N L R B 385.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise the respondent would be subjected "to punishment for an'
act which was innocent when done in contravention of the constitu-
tional prohibition against ex post facto laws." The Trial Examiner
answered this argument in his Intermediate Report, and we adopt
and incorporate his statements herein, as follows :
if the- respondent had, in good faith, questioned the appro-
priateness of the unit sought to be represented by. the Union
when the Union attempted to bargain, there might be some
merit in its present contention. However, the respondent did
not predicate its refusal to bargain upon any professed doubts
concerning the unit. In its attempts to initiate discussions with
the respondent, the Union did not define the unit in specific
terms. There was, therefore, no dispute concerning the unit
between the respondent and the Union; but merely a flat refusal
by the respondent to deal with the Union. In addition, the
respondent has never paid the slightest heed to the Board's
order which it now seeks to use as a shield. The very company-_
dominated Committees which it has organized and with which,
it has dealt have represented departmental units rather than the
craft units which the respondent now contends are appropriate.
Even after its refusal to bargain with the Union in July 1940,
the respondent ' continued to deal" with the Committees. Since
the respondent destroyed the craft organization of its employees
which the Board's order sought to protect and refused to comply
with that order; since the Circuit Court of Appeals declined
to enforce that order; and since the respondent did not, in good
faith rely upon the Boards, order in refusing to bargain with
the Union, it may not successfully argue that its refusal to
bargain with the Union should be excused because it was bound
by the order of the Board.
In a brief filed with the Board, the respondent now claims :
The Trial Examiner's assertions that "the respondent did not
predicate its refusal to bargain upon any professed doubts con-
cerning the unit" and that there was "no dispute concerning the
unit between the respondent and the Union, but merely ,a frank
refusal by the respondent to deal with the Union"-are in direct
contradiction to what the evidence would have shown, had the
Trial Examiner presented its case in full. The true facts of
the matter are that before the Regional Director for the Fourth
Region filed his complaint against the respondent, three con-
ferences were held in the Regional Director's office, between rep-
resentatives of [the Union] and representatives of the respond-
ent, at all of which the respondent urged the Regional Director
to conduct a secret election, in accordance with the Rules and
DELAWARE-NEW JERSEY FERRY COMPANY 845
Regulations of the Board, for the purposes of determining
whether the respondent's employees in the appropriate bargain-
ing unit, of which the Regional Director, would have been the
judge, did or did not desire [the Union] to represent them. The
respondent was at all times prepared to agree to such a consent
election and so advised the. Regional Director for the Fourth
Region in writing, but [the Union] flatly refused. It was the
respondent's intention to put these facts in evidence by the testi-
mony of the Regional Director himself, and accordingly requested
the trial Examiner to issue a subpoena for his appearance. The
Trial Examiner; however, refused to issue the subpoena, upon
the ground that the respondent had not complied with Rule 21
[of the Board's Rules and Regulations], by stating the nature
of the facts to be proved by the witness, and upon the further
ground that "upon the present state of the record, the testimony
of the witness seems to be in no way relevant or material, or
in any way germane to the issue."
As noted- previously, the respondent-maintains that the Trial Ex-
aminer's refusal to issue this subpena is proof that he was "biased
and partisan." While we believe that the Trial Examiner was fully
justified in declining to issue this subpoena so long as the respondent
refused to comply with the Board's Rules and Regulations, we shall
assume, arguendo, that the respondent introduced this evidence of
its three conferences with the Regional Director. Although the re-
spondent does not state in its brief when these conferences took place,
it is clear that they, were held after the refusal to bargain and the
consequent strike on July 15, 1940. The brief explains that these
conferences were conducted "before the Regional Director for'the
Fourth Region filed his complaint against the respondent" and
charges were -not filed by the Union until July 20, 1940. Since the
respondent admits in its answer that it refused to bargain with the
Union on the dates specified in the complaint, and the evidence in
the record, as detailed above, amply supports this admission, and
since the respondent did not predicate its refusal to bargain on any
asserted doubts concerning the appropriate unit,39 we cannot see
that the respondent's offer to hold an election, after it had committed
its unfair labor practices, mitigates in any respect its unqualified re-
fusal to bargain with the Union.
We find that on July 8, 1940, and at all times thereafter, the re-
spondent has refused to bargain collectively with the Union as the
So Cf.-N. L. R. B.'v. Dahlstrom Metallic Door Co, 112 F. (2d) 756 ( C C. A. 2 ), enf'g
Matter of Dahlstrom Metallic Door Company and United Electrical, Radio h Machine Work-
ers of America, Local No. 307 , 11 N. L R. B. 408; N. L. R B . v. Remington Rand, Inc,
94 F. (2d ) 862 (C. C. A. 2 ), cert denied 304 U. S. 576 and 585, enf 'g as mod Matter of
Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council
Office Equipment Workers, 2 N. L. R B 626.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of its employees in an appropriate -unit, and
that it has thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act.
We also find that the strike of the respondent's employees which
began on July 15, 1940, and which was still current at the time of the
hearing, was caused and prolonged by the respondent's refusal to
bargain and that the strikers remained employees within the meaning
of Section 2 (3) of the Act.
C. Interference, restraint, and coercion
Several days before the strike, Josendale, marine superintendent,
approached Frank F. Armstrong in the engine room of his boat.
Armstrong had been designated as shop steward for the Union. Ac-
cording to Armstrong, whose testimony was not denied, Josendale
referred to him as being a "big shot" in the Union,,and said, "You
know, by joining this Union, it might be a possibility of some of you
fellows losing your jobs." 'Josendale added that the respondent would
not discharge Armstrong, but that the insurance company would,
the reference being to an accident which Armstrong had had a long
time before. We find, as did the Trial Examiner, that Josendale made
the statements attributed to him by Armstrong, and that they were
calculated to discourage further union activity by him.
On July 10, 1940, Deckhand`William Jordan, a union member, while
working on one of the respondent's boats, was asked by its captain,
Albert Palmer, "How do you stand on this Union?" When Jordan
replied that he was a union man, Palmer said, "You are through."
Jordan then asked, "Do you mean to tell me if I join this union I
can't work here," to which Palmer replied in the affirmative. Jordan
thereupon quit the boat. Jordan's testimony as to this incident was
corroborated by Gilbert Wilhelm and was not denied by Palmer. The
Trial Examiner credited Jordan's testimony and we accept it as true.
Charles J. Langley testified, and it was not denied, that on July 4,
1940, Francis Sentman, the respondent's dock superintendent who also
exercises supervisory authority on the boats, spoke to him in the fire-
room of the "Washington," and said : "That was a helluva',trick you
done to me," referring to Langley's having joined the Union; that
Sentman then reminded Langley that he had been instrumental in
getting Langley his job and rebuked Langley for having said unpleas-
ant things about him and for being a "ring leader" and soliciting other
employees' union memberships. We credit this testimony, as did the
Trial Examiner.
Howard Porter testified that he and two other employees went to
see Lehman H. Garrison after the men had started to talk about strik-
ing to tell Garrison that they had made a mistake in joining the Union
I
DELAWARE-NEW JERSEY FERRY COMPANY 847
,Ind to find out how he felt about the-Union and about a strike. Gar-
rison told them that any man who walked off his job, i. e., struck,
would lose his job. Edgar Russell, Sr., a chief engineer, testified that
Lehman H. Garrison and Josendale made similar statements to him
shortly before the strike. Russell had informed Josendale that his
men were going to strike, and Josendale stated: "Everybody who
goes off their boat is through." Russell relayed these threats to the
men who-worked under him. Josendale did not deny having made
this statement. Garrison testified that he merely told Josendale and
Russell that if any man violated the contracts between the respondent
and the company-dominated Committees, he would lose his job, mean-
ing that "if a man did not report for duty when he was supposed to,
he •would certainly lose his job." There is no provision in the Com-
mittees' contracts barring strikes. Russell denied that Garrison men-
tioned the contracts to him. We credit the- testimony of Russell, as
did the Trial Examiner.
Langley testified that when he and a number of other strikers
went to the respondent's offices on July 19, 1940, after the strike had
started, to obtain pay which was still due them, McAndrew, the pay-
master and superintendent in charge of'operations, said to them, All
right, you God damn fifth columnists, come and get your money.
You sold out the company,and joined a bunch of New York gang-
sters to -get a new- union." Although McAndrew testified at the
hearing, he did not deny this testimony, and we accept it as true.
We find that by threatening and warning employees against join-
ing or participating in the Union or in engaging in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, as detailed above, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
states and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
I
Since we have found that the respondent has engaged in unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act. -
848 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that the respondent dominated and interfered with
the formation and administration of the Engine Committee and the
-Deck Committee and contributed support to them. We shall order
the respondent to withdraw all recognition from said Committees as
representatives of its employees for the purposes of dealing with the
respondent concerning grievances,' labor disputes, rates of pay,
wages, hours of employment and other conditions of employment and
disestablish them as such representatives.
We have also found that on or about April 1, 1937, the respondent
executed agreements with the Engine Committee and the Deck Com-
mittee which, by iirtue of the automatic renewal provisions therein
contained, are still in effect. We shall order the respondent to cease
and desist from giving effect to said agreements or to any extension
or renewal thereof, without prejudice, however, to the assertion by
the employees of any legal rights acquired under such agreements.40
We have found that the respondent has refused to bargain collec-
tively with the Union as the representative of a majority of its eni-
,ployees in an appropriate unit. We shall, in consequence, order the
respondent to bargain collectively with the Union. The respondent
maintains, however, that 23 employees, who had previously designated
the Union as their representative, no longer desire the Union to repre-
sent them. We find, however, that these revocations, if made, were
executed after the respondent had refused to bargain with the Union
in violation of the requirements of the Act, and were caused by the
respondent's unfair labor practices and cannot operate to change the
employees' freely chosen bargaining representative.41
We have also found that as a result of the respondent's unfair labor
practices, the respondent's employees struck on July 15, 1940, and that
the strike was current at the time of the hearing. Although the re-
spondent offered to introduce evidence of "violent, intimidating, co-
41 National Licorice . Company v.-N. L. R. B., 309 U . S. 350, aff 'g as mod 104 F. (2d) 655
(C. C A. 2), enf'g as mod Matter of National Licorice Company and Bakery and Confec-
tionery Workers International Union of America , Local Union 405, Greater New York and
Vicinity , 7 N L R. B. 537
41N. L R B. V. Bradford Dyeing Association (U S A.), 310 U S 318, rev 'g 106 F. (24)
119 (C C A 1) and enf 'g Matter of Bradford Dyeing Association (U S A.) (a Corpora-
tion) and Textile Workers ' Organizing Committee of the C. 1. 0., 4 N L R B 604 , wherein
the Supreme Court stated that "the Board properly concluded that `the unfair labor prac-
tices of the respondent cannot operate to change the'bargaining representative previously
selected by the untrammelled will of the majority ' and, accordingly , the Board was justified
in its finding `that on April 4, 1937, and at all times thereafter , the T. W ' o C., pursuant
to Section 9 (a) of the Act, was the exclusive representative of all the employees in the
appropriate unit for purposes of collective bargaining . . " See also International As-
sociation of Machinists ; Tool and Die Makers Lodge No. S5, etc. v. N. L. R. B , aff'g 110
F (2d) 29 (C. A: for D C ), and enf'g Matter of The Serrick Corporation and International
Union , United Automobile Workers of America, Local No 459, 8 N L R B 621 , wherein
the Court observed that "It cannot be assumed that an unremedied refusal of an employee
to bargain collectively with an appropriate labor organization has no effect on the develop-
ment of collective bargaining." See also John J Oughton, et al v. N L. R. B., decided
February 26, 1941 (C C. A. 3), enf'g as mod . Matter of John J Oughton et al and Textile
Workers Organizing Committee ( C 1 0 ). 20 N L R B 301.
DELAWARE-NEW JERSEY FERRY COMPANY 849
ercive and -lawless methods" by the Union and its sympathizers after
the strike had been called, counsel for the respondent admitted at oral
argument before the Board that the respondent did not offer such evi-
dence in order to establish that the strikers had disqualified themselves
for reinstatement and Lehman H. Garrison, general manager, ad-
mitted during the hearing that the respondent would reinstate all the
strikers upon application. Under the circumstances, we shall order
the respondent upon application to reinstate all striking employees who
have not been reinstated. The reinstatement shall be effected in the
following manner : All employees hired after July 15, 1940, 'the date
of the commencement of the strike and who were not in the respondent's
employ on that date, shall, if necessary to provide employment for
those who are to be reinstated, be dismissed. If, however, by reason
of a reduction in force there are not sufficient jobs immediately avail-
able for the remaining employees, including those who are to be re-
instated, all available positions shall be distributed among such re-
maining employees in accordance with the respondent's usual method
of reducing its force, without discrimination against any 'employee
because of his union affiliation or 'activities, following a system of
seniority to such extent as has heretofore been applied in the conduct
of the respondent's business. Those employees thus laid off, for whom
no employment is immediately available, shall be placed upon a prefer-
ential list prepared in accordance with the principles set forth in the
previous sentence and shall, thereafter, in accordance with such list, be
offered employment as it becomes available and before other persons
are hired for such work. We shall also order the respondent to make
these employees whole for any loss of pay they may suffer by reason
of the respondent's refusal to reinstate them or place them on a pref-
erential list as set forth above by payment to each of them of a sum
of money equal to that which he would normally have earned during
the period from (5) days after the date of his -application, for rein-
statement to the date of offer of employment or placement on a pref-
erential list, less his net earnings 42 during said period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
42 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 Amer-
ica, Lumber and Sawmill Workers Union , Local 12590 , 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 , decided by
United States Supreme Court , November 12, 1940
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Marine Division, Local No. 333, affiliated with the
A. F. L. and the I. L. A., Engineers and Engine Department Com-
mittee, and Captains and Deck Department Committee, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Engineers and Engine Department Committee and
Captains and Deck Department Committee, and by contributing
support thereto, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of
the Act.
3. The captains, mates, engineers, deckhands, oilers, firemen,.
bridgemen, and watchmen employed by the respondent on its New
Castle-Pennsville line at all times material herein constituted and
now constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
4. United Marine Division, Local No. 333, affiliated with the A. F.
L. and the I. L. A., was on July 4, 1940, and at all times thereafter
has been, the exclusive representative of all employees in such unit
for the purposes of collective bargaining, within the meaning of Sec-
tion 9 (a) of the Act.
5. By refusing to bargain collectively with United Marine Divi-
sion, Local No. 333, affiliated with the A. F. L. and the I. L. A., as the
exclusive representative of its employees in an appropriate unit, the
respondent has engaged in and is engaging in unfair labor prat-
within the meaning of Section 8 (5) of the Act.
6. 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,
withii the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2\(6) and (7) of
the Act.
I 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
respondent, Delaware-New Jersey Ferry Company, Wilmington,
Delaware, its officers, agents, successors, and assigns shall:
1. Cease and desist froiV:
'(a) Dominating or interfering with the formation or the admin-
istration of the Engineers and Engine Committee and Captains and
Deck Hands Committee or contributing support to the Engineers
DELAWARE -NEW JERSEY FERRY COMPANY 851
and Engine Committee and Captains and Deck Hands Committee,
or any other labor organization of its employes; 4 1 -
(b) Giving effect to any agreement with the Engineers and Engine
Department Committee or the Captains and Deck Department Com-
mittee, or to any extensions or renewals thereof; without prejudice,
however , to any rights or benefits conferred upon any individual
employee under said- contracts;.
(c) Refusing to bargain collectively with United Marine Division,
Local No. 333, affiliated with the A. F. L. and the I. L. A. as the
exclusive representative of the captains , mates, engineers , deckhands,
oilers, firemen, -bridgemen, and watchmen of the New Castle-Penns-
ville line in respect to rates of pay, wages , hours of employment, and
other conditions of employment;
(d) 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 and other mutual
aid and protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Engineers and Engine Depart-
ment,Committee and Captains and Deck Department Committee as
representatives of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment or other conditions of employment
and completely disestablish said Committees as such representatives;
(b) Upon request bargain collectively with United Marine Division,
Local No. 333, affiliated with the A. F. L. and the I. L. A., as the
exclusive representative of the captains , mates, , engineers , deckhands,
oilers, firemen , bridgemen, and watchmen employed by the respondent
on its New Castle-Pennsville line in respect to rates of pay, wages,
hours of employment, and other conditions of employment;
(c) Upon application , offer to the employees who struck on July
15, 1940, and who have not already been reinstated, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
such offer to be effected in the manner provided for in the Section
entitled "The Remedy," placing those employees for whom no employ-
ment is immediately available upon a preferential list in the manner
set forth above and thereafter in said manner - offer them employment
as, it becomes available;
(d) Make whole said employees for any loss of pay they may suffer
by reason of the respondent 's refusal to reinstate them or place them
440135-42-Vol. 30-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a preferential list pursuant to the terms of our Order by payment
to each of them of a sum of money equal to that which he would
normally have earned during the period from five (5) days after the
date of his application for reinstatement to the date of offer of em-
ployment or placement on a preferential list, less his net earnings 43
during said period :
(e) Post immediately notices to its employees in conspicuous places
on each of its ferry boats and maintain such notices for a period of
at.least sixty (60) consecutive days from the date of the posting,
stating : (1) that the respondent will not engage in the conduct from
which it has been ordered to cease and desist in paragraphs 1 (a),
(b), (c), and (d) of the Order, and that it will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order;
(f) Notify the Regional Director for the Fourth Region, in writing
within ten (10) days from the date of this Order 'what steps the
respondent has taken to comply therewith.
41 See footnote 42, supra.