Franque A. Dickins

National Labor Relations Board - Board Decisions

Nov 14, 1945

64 N.L.R.B. 797 (N.L.R.B. 1945)

In the Matter of FRANQUE' A. DICKINS, JAY MARSEIALL DIcKINS, AND
T. C. DICKINS, CO-PARTNERS, DOING BUSINESS UNDER THE TRADE NAME
AND STYLE OF FRANQUE A. DICKINS, ENGINEER and NATIONAL COUN-
CIL OF MARINE DRAFTSMEN
Case No. 2-C-5420.-Decided November 14, 1945
DECISION
AND
ORDER
On May 28, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondents had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto.
None of the parties has filed exceptions to the Intermediate Report,
or briefs, or requested a hearing before the Board for the purpose of
oral argument.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case; as noted above, no.
exceptions have been filed. Accordingly, the Board hereby adopts
the findings,' conclusions, and recommendations of the Trial Examiner,
with the additions hereinafter set forth.
We find, as did the Trial Examiner, that Gondell was discharged
on February 1, 1944, because of his activity on behalf of the Union.
By such conduct, the respondents discriminated in regard to the hire
and tenure of employment of Gondell, discouraged membership in the
Union, and interfered with, restrained and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act. Hav-
ing found that the respondents thus have violated Section 8 (1) and
(3) of the Act, we must order the respondents pursuant to the mandate
1 In his discussion of the respondents ' contention ( b) with respect to Gondell's discharge,
the Trial Examiner inadvertently found that the affidavit filed by Gondell stated that
"Dickens'" average weekly pay amounted to $150 50. The record shows , and we find,
that the affidavit stated that Gondell's weekly pay amounted to $150.50.
64 N L. R. B., No 141.
797
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 10 (c), to cease and desist therefrom. We also predicate
our cease and desist order upon the following findings : The respond-
ents' conduct in discriminatorily discharging Gondell because of his
union activity discloses a purpose to defeat self-organization and its
objects. As the Circuit Court of Appeals for the Fourth Circuit has
stated, the "discriminatory discharge of an employee . . . goes to
the very heart of the Act." 2 Because of the respondents' unlawful
conduct and its underlying purpose, we are convinced that the unfair
labor practices found are persuasively related to the other unfair
labor practices prescribed and that danger of their commission in the
future is to be anticipated from the respondents' conduct in the pasta
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order therefore, to make effective
the interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby to minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of
the Act, we shall order the respondents to cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the
Act. As recommended in the Intermediate Report, we shall also
order the respondents to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Franque A. Dickins, Jay
Marshall Dickins, and T. C. Dickins, co-partners, doing business under
the trade name and style of Franque A. Dickins, Engineer, New York
City, and their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in National Cotancil of Marine
Draftsmen, or in any other labor organization of their employees, by
discharging or refusing to reinstate any of their employees, or by dis-
criminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist National Council of Marine
Draftsmen, or any other labor organization, to bargain collectively
2 N. L. R. B. v. Entwistle Manufacturing Company, 120 F (2d) 532, 536 (C. C. A. 4) ;
see also, N . L. R. B. v. Automotive Maintenance Machinery Company, 116 F. (2d) 350, 353,
(C C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed: "No
more effective form of intimidation nor one more violative of the N L. It. Act can be
conceived than discharge of an employee because he joined a union. .. .
3 N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
FRANQUE A. DICKINS , ENGINEER 799
through representatives of their own ' choosing , and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Peter Gondell immediate and full reinstatement to
his former or a substantially equivalent position , without prejudice
to his seniority or other rights and privileges;
(b) Make whole Peter Gondell for any loss of pay he may have
suffered by reason of the respondents ' discrimination in regard to his
hire and tenure of employment , by payment to him of a sum of money
equal to the amount which he normally would have earned as wages
from the date of his discharge to the date of the respondents' offer
of reinstatement , less his net earnings during such period;
( c) Post at their place of business at New York City, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the respondents ' representative , be posted
by the respondents immediately upon receipt thereof, and maintained
by them for sixty ( 60) consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondents to insure
that said notices are not altered , defaced, or covered by any other
material;
(d) Notify the Regional Director for the Second Region in writing,
within ten ( 10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
MR. GERALD D. REILLY took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE To ALL EIVIPLoYEEs
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations , to join or assist National Council of
Marina Draftsmen or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Peter Gonde]1
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of mem-
bership in or activity on behalf of any such labor organization. ,
FRANQUE A. DICKINS, JAY MAR-
SHALL DICKINS, AND T. C. DICK-
INS, co-partners, doing business
under the trade name and style
Of FRANQUE A. DICKINS, ENGI-
NEER
-------------------------------
(Employer)
By ----------------------------
(Representative ) ( Title)
Dated ------------------------
NOTE.-Any of the above-named employees presently serving iii the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted-for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Cyril W. O'Gorman, for the Board.
Mr. Solomon Pearlman, of New York, N. Y., for the respondent.
Neuberger, Shapiro & Rabinowitz, of New York, N. Y., appearing for Peter
Gondell.
STATEMENT OF THE CASE
Upon a charge dated February 9, 1944, duly filed by National Council of
Marine Draftsmen, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Second Region
(New York, New York), issued its complaint dated Maich 9, 1945, against
Franque A. Dickins, Jay Marshall Dickins and T. C. Dickins, co-partners,
doing business under the trade name and style of Franque A. Dickihs, Engineer,
Borough of Brooklyn, City and State of New York, herein called the respondents,
alleging that the respondents had engaged in and were engaging in unfair labor
practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
FRANQUE A. DICKINS, ENGINEER 801
of the complaint and notice of hearing thereon were duly served upon, the
respondents and the Union. With respect to the unfair labor practices the
complaint alleged in substance: (1) that the respondents on or about February
1, 1944, discharged Peter Gondell and on and since that date have refused to
reinstate him to his former or substantially equivalent position for the reason
that he joined or assisted the Union or engaged in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection;
(2) that from on or about January 1, 1944, to date of the complaint, respondents
have disparaged and expressed disapproval of the Union; and (3) by the acts
described above the respondents have interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the
Act. On or about March 21, 1945, the respondents filed their answer to the
complaint denying that they had engaged in the unfair labor practices alleged.
Pursuant to due notice a hearing was held in New York, New York, on April
10, 11 and 12, 1945, before Peter F. Ward, the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the respondents and Peter Gondell,
claimant herein, were represented by counsel and each participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses
and to introduce evidence bearing upon the issues was afforded all parties. At
the close of the Board's case counsel for the respondents moved for dismissal,
of the complaint. The motion was denied At the close of the hearing counsel
for the Board made a motion to conform the complaint to the proof in formal
matters The motion was granted. The parties argued orally at the conclu-
sion of the hearing. While the parties were afforded an opportunity to file
briefs with the undersigned, no briefs have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF TILE RESPONDENTS
Resjondents are a co-partnership composed of Franque A. Dickins, Jay
Marshall Dickins, and T. C. Dickins, doing business under the trade name and
style of Franque A. Dickins, Engineer. It has its principal office and place of
business located in the borough of Brooklyn, City and State of New York. During
all times material herein the respondents have engaged in rendering marine
engineering and drafting services in connection with the construction of sea-
going vessels, approximately 98 percent of the total work performed by the
respondents is done for sea-going vessels owned and operated by the United
States Navy, United States Maritime Commission, and other governmental
agencies in connection with the war effort. During the same period the re-
spondents employed approximately 100 draftsmen to whom it paid in excess
of $30,000 per month. The undersigned finds, contrary to the contention of
the respondents, that they are engaged in commerce within the meaning of the
Act'
II. THE ORGANIZATION IN\ OLVED
National Council of Marine Draftsmen is a labor organization admitting to
membership employees of the respondents.
I N. L. R. B. v. Baltimore Transit Co ., 140 F. ( 2d) 51 (C. C. A 4) ; N. L. R B. v Jones
Laughlin Steel Corp ., 301 U. S. 1.
670417-46-vol 64-52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory discharge of Peter Gondell
1. Events leading up to the discharge
Prior to the latter part of 1942, there was no labor organization or activity
at the respondents' plant. At that time one, Fred Spedel, an employee, dis-
cussed the formation of a labor organization with Jay Marshall Dickins.2 In
this connection Dickins testified :
Fred came to the desk and told me that they would like to form an asso-
ciation. He wondered if we had any objections. I said, "What kind of an
association?" He said, "Well, some of the boys that have been with other
companies are here now. We're getting a group together and there's a lot
of activity and a lot of entertainment, a lot of dancing, and we would like
to form an association. What do you think of it?" I said, "Well, it doesn't
make any difference to me what you do. It's all right. Go ahead." His
answer to that was, "Well, the reason we want to do it is to sort of break
up the monotony of all these hours. It will give us a chance to get together
and meet some of the boys from the other organizations." I said, "I don't
see anything wrong with that."
No mention was made that such association was being formed to obtain wage
• ;increases, improved working conditions, or the handling of grievances. The
.association was however formed as an affiliate of National Council of Marine
Draftsmen under the title of Marine Draftsmen's Association of Franque A.
Dickins, Engineer, herein called MDA, and elected officers together with a
grievance committee. From the time of its inception to the date of the hearing
herein not more than four grievances were submitted to management. Prior to
.December 10, 1943, all of the MDA officers with the exception of Gerald A.
Sayers, councilor for the MDA and Secretary Dodd, resigned their positions.
Prior to the resignations of the MDA officials in the fall of 1943, the 1\IDA made
no real effort to bargain collectively with the respondents concerning wages, hours
or working conditions.
Peter Gondell was employed by the respondents as a draftsman on December
10, 1943. At the time of his employment he was interviewed by Winston Wil-
liams, a "chargeman" who had supervision over the hull structural department.
"Wililams informed Gondell that his rate of pay would be $175 per hour for a
40-hour week or $70 per week, plus overtime. While Williams did not guarantee
the amount of overtime that Gondell would be permitted to work, he informed
the latter that it was common practice in the fall of 1943 for the draftsmen to
work as much as 68 hours per week, "possibly more "
Gondell was a member of the National Council of Marine Draftsmen and had
held office in the Marine Draftsmen's Asociation at the East Coast Shipyards, also
an affiliate of the National Council of Marine Draftsmen Shortly after his
employment with the respondents he sought inforinatioh on the MDA and was
advised that practically all the officials had resigned in a body. He then
became active in an effort to reanimate the MDA. He first got in touch with Henry
Kilzer, former president of MDA, and asked him to call a meeting of the asso-
ciation. This, Kilzer refused to do. Gondell then asked Henry Koehnken, a
2 Jay Marshall Dickins will be referred to hereinafter as Dickins . At the time of
Dickins' conversation with Spedel the former was not a partner of Franque A. Dickins,
Engineer, but was an office manager in charge of personnel matters.
FRANQUE A. DICKINS, ENGINEER 803
former officer of MDA who had also resigned, and requested him to call a meet-
ing of the employees. Koehnken did so and a meeting was held about the third
week of December 1943, at which 12 employees including Gondell were present.
Gondell expressed his disappointment at the number who turned out at this first
meeting and suggested that on the next meeting that each of those then present
net as a committee of one to bring two additional employees to the next meeting.
Gondell then suggested that a proposed form of contract be prepared in order
to revive the Union and to better certain working conditions Gondell was ap-
pointed a member of the committee selected to draft the proposed contract.
Gondell, with the assistance of employee Gatti, started preparation of a draft
of the proposed contract about January 5, 1944, and by January 12, 1944, had a
proposed draft prepared and about 150 copies mimeographed The copies were
then distributed to the draftsmen throughout the respondents' plant On Janu-
ary 19, 1944, a meeting of the MDA was held at the St George Hotel in Brooklyn
for two purposes, (1) to reelect officers, and (2) to ratify the first draft for a
proposed contract At this meeting Gondell was elected pi esident of the MDA.
The proposed draft of contract was revised and agreed to. Under-date of Janu-
ary 28, 1944, Gondell forwarded a copy of the proposed contract to the respondents
with a letter on the letterhead of the MDA to Franque A Dickins, Engineer.'
On February 1, 1944, Dickins called Sayers on the telephone during the fore-
noon and told him that he had received an agreement or contract from Gondell
and that he did not think Gondell was the proper party to negotiate with, as
he was under "suspicion" and requested Sayers to let Gondell know that Dickins
had called Sayers in this connection" Within an hour after receiving the in-
structions from Dickins, Sayers talked to Gondell and informed him of what
Dickins had said with reference to Gondell being an improper party to negotiate
a contract.
Gondell then counseled with Lewis Quick, who had been elected vice president
at the January 19 meeting, and asked his opinion as to whether he should drop
out of the negotiations or not. Quick, after talking to employee Stone, the
newly elected secretary of the Union, telephoned Gondell and recommended that
he talk directly with Dickins and ask "point blank" why Dickins would not deal
with him. Gondell telephoned Dickins and asked him why he would not deal
with him Dickins replied in substance that he held an important and respon-
sible position and "could have no dealings with anyone whose patriotism was in
doubt." When Gondell asked what he meant by his patriotism being in doubt,
Dickins referred to a remark which Gondell had made during the first 2 weeks
'of his employment, to which Gondell replied, "Wouldn't I be some kind of a jerk to
3 Gentlemen : Enclosed is the draft of a proposed agreement between the,firm & the
MDA In keeping with the spirit as well as the letter of the National Labor Relations
Law, we believe you will agree, an early conference can serve to iron out what few differ-
ences of opinion there may exist.
We trust that you are as anxious as we are to arrange some amicable agreement between
us in order to improve morale for all out war production. May we suggest , therefore, a
meeting next Friday, February 4th, after working hours , naturally, for this purpose
Very sincerely
/s/ PETER GONDELL.
* This finding is based on Sayers' testimony . Sayers was called as a witness by the re-
spondents . Dickins in his version of this conversation stated that he said to Sayers in
part, "Mr Gondell is under suspicion and I don't think he's the proper party to negotiate
a contract . Speak to the boys and let me know what they think about it," and thus is in
conflict with Sayers ' testimony that he was to inform Gondell that Dickins had called.
Dickins admitted that he wanted to convey the idea to Sayers that he would not deal
with Gondell The undersigned credits Sayers version.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make a crack like that, and really mean it?" 6 Dickins answered, "Well, it is
perfectly alright for you to deny making it now. Naturally I would expect you to
c eny it." When Gondell responded "What you are saying now is tantamount to
calling me a liar" Dickins said, "That is exactly what I mean to do. I mean to
call you a liar." After which Gondell said, "What do you take me for?" and
hung up the receiver
Immediately thereafter chargeman Williams, Gondell's supervisor, informed
him that he had orders for Gondell to report to Dickins' office and when Gondell
suggested that he postpone the visit until after lunch in order that he might
"cool off" Williams said "No, you better go down right now." Gondell, whose place
of work was about a mile from Dickins' office, went to the office on foot and
consumed about a half an hour in so doing. Upon entering the office Gondell
stated to Dickins in substance that he had a very important job that he was
working on and if Dickins had called him down to the office for the purpose of
firing him , "Alright," but if not he would like to get back to his work Dickins
replied in substance that he had no intention of discharging him and if he had
thought otherwise he would have never asked for his draft deferment and stated
that Gondell was a very capable worker doing a good job.. Dickins indicated his
resentment at Gondell's having hung up the receiver during their telephone talk,
whereupon Gondell said that he was "sorry" and "if that was all" he would return
to work. Dickins invited him to sit down for a little talk and stated that he was
glad to hear that he had been elected president of the Union and offered his "con-
gratulations." Gondell suggested that if they were going to discuss union mat-
ters that the committee be invited in, to which Dickins replied that they would
have "an unofficial chat" to which Gondell agreed. During this "chat" Dickins
informed Gondell that when the men first decided to organize the association
the employees came to him and asked for his permission Dickins said he dis-
cussed the matter with high naval officers, and despite their warning that he would
some clay have to bargain with the men, he nevertheless gave permission for
the employees to organize. Dickins then produced a letter which had been writ-
ten to the respondents by Philip Salaff, at that time Executive Vice-president of
the National Council, with reference to the payment for the preceding Christmas
and New Year's holidays which the MDA was interested in having paid' Dickins
criticized the grammatical construction of the letter and made other comments.
Gondell, whom the record shows collaborated in the preparation of the letter, then
asked Dickins if he intended to answer the letter, to which Dickms replied, that
was his business Gondell said, "Don't you care whether the men get paid for
those holidays or not," to which Dickins again replied, that was his business.
Gondell responded, "No, it's not just your business alone, it's our business as well."
Diekins then said "Peter, are you aware that you're becoming very impudent?"
When Gondell replied "Jay, are you aware that you are insulting my intelligence?,"
Dickins informed him that he was discharged.'
Gondell returned to his work room and reported to other employees that he
had been discharged A number of them then proposed that they go on strike but
were persuaded not to do so by Gondell after approximately 2 hours discussion.
' The alleged unpatriotic conduct is discussed in detail below
8 Dickins denied that he had ever seen such a letter. Upon the iecord , Gondell's credible
testimony , and the stipulation of the parties that Salaff , if called as a witness , would have
testified that he mailed such a letter to the respondents and a copy thereof to Gondell, the
undersigned is convinced that Dickins had received and produced the letter referred to, as
related above.
These findings are based on Gondell's credible testimony: Diekins was not a credible
witness Much of his testimony was neither consistent nor plausible . His credibility is
discussed further below.
FRANQUE A. DICKINS, ENGINEER 805
(2) Contentions and testimony of the respondents as to the discharge
The respondents contend in substance and effect : ( a) that, as a result of
GGondell 's conduct in connection with his application for deferment from the
draft, Dickins believed and had reason to believe that Gondell was disloyal to the
United States ; ( b) that he had served in the Army of a foreign country and in
the Spanish Revolution ; ( c) that prior to on or about January 29 , 1944, Dickens
had no knowledge of Gondell 's union activity or of his election as president of
the Union ; ( d) that since the record discloses the commission of perjury by
Gondell, all of his testimony herein should be disregarded ; and (e ) that Gondell,
having become personally obnoxious to Dickins , was discharged for his impudence
and not by reason of his union activity.
As to contention ( a) the credible testimony shows that during the first week of
his employment Gondell, a married man with one child and a pregnant wife was
concerned about his draft status He was to appear before his draft board in
connection with his reclassification , and asked Dickins to request his occupational
deferment . At this interview Dickins told Gondell how to conduct himself before
the draft board. He indicated that he was interested in "the various rami-
fications of deferments ' 'and "enjoyed figuring out" ways of getting around new
rules announced by the draft board. Gondell suggested that such procedure on
Dickins' part placed the employees in the position of pawns to be manipulated
for his pleasure , and that at a future time he would like to discuss Dickins' atti-
tude on a man -to-man basis. While both were "a bit tense" at the close of this
discussion , Dickins agreed to file an application for Gondell 's deferment with
his draft board. Before doing so, however , Dickins had Gondell furnish certain
data covering his past occupations . The data submitted disclosed that Gondell
had been employed at the Hayden Planetarium . When Dickens asked the nature
of his work at the Planetarium , Gondell replied that it was of a technical nature
and could make no difference "as far as his draft deferment was concerned "
Subsequently and on or about December 17, 1943, Gondell and Dickins met at
the water cooler. Gondell asked if Dickins had any news on his request for
draft deferment . Dickins replied that the request had been forwarded to the
draft board but no further word concerning it had been received . Gondell then
stated in substance , that he was getting "terribly worried" about it and that if
he was not deferred , he would be "likely to skip the country " and go to Mexico.
The record clearly indicates that the "skip the country " remark was made face-
tiously. Dickins did not discuss such remark thereafter with Gondell until
February 1, 1944, when Dickins, as set out above , referred to such remark as
justification for concluding that Gondell 's "patriotism was in doubt ," and that
he was an improper person with whom to deal or negotiate on behalf of the
Union.'
8 These findings are based on Gondell 's credited testimony . Dickins testified that he
discussed Gondell 's draft status with him about a week after his employment and that
he discussed additional data with Gondell at a second meeting . He testified however,
that on his last occasion Gondell had said that he "Wasn't too particularly interested in
the Army anyhow ," and that Dickins bad replied that he did not "approve that remark."
The parties are agreed that a conversation took place at the "water cooler" and that
Gondell made a statement to the effect that he would "skip the country" If drafted.
Dickins first contended that the "water cooler" talk occurred after January 17 , 1944, and
that Gondell said :
That he didn 't give a God damn what I did about the draft ; that he wasn 't interested ;
they would never get him in the army ; that his wife was sick ; that he had made all
reservations and arrangements to go to Mexico.
Dickins further testified that his suspicion was first raised by Gondell 's attitude towards
Selective Service on the occasion when Gondell submitted the extra data referred to above
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that Gondell's wife was not only pregnant but ill at this
time. 'It is unlikely that after making a request for Dickies' aid in procuring
an occupational deferment from the draft that Gondell would, within a week's
time and while the request for deferment was progressing favorably, use the
language attributed to him by Dickins. The undersigned is convinced and finds
that apart from the facetious "skip the country" remark, Gondell made no state-
ments derogatory of the Selective Service Act or to the effect that he would refuse
to serve in the Army if drafted. This contention is without merit and it is so
found.
As to contention (b) Dickins testified that, when he became "suspicious" of
Gondell he asked Williams, the latter's chargeman, on or about January 15
to keep him under observation and that on this occasion, Williams informed
Dickins that Gondell had served in the army of a foreign country and had fought
in the Spanish Revolution. Williams testified in substance that when Dickins
informed him that Gondell's patriotism was in doubt that he [Williams] volun-
teered the information that Gondell had served in some army other than the
Army of the United States, and that Gondell had "inferred" that it was in the
Spanish Revolution. Gondell denied that he had served in the army of any foreign
country or in the Spanish Revolution. On February 17, 1944, Williams at the
solicitation of Dickins signed a statement in which he stated that Gondell had
"inferred" to himself and Dickins that he had served in the Armed Forces of
some other country." Gondell testified without contradiction and the under-
signed finds that on or about the first week of January 1944, he and Williams had
a general discussion, first with reference to the fact that the wives of both were
expecting their second child, after which Williams stated "That it would be
tough" if Gondell were drafted at that time. Williams then mentioned the fact
that he had met a man who had served in the "Lincoln Battalion" (in the Span-
ish Revolution) who went around "shushing it, hushing it; he did not want it
known." Gondell then said, that had he been a member of the Lincoln Battalion
be would not hush it but would "shout it from the roof tops." From the fore-
going and the record it is clear that Gondell did not serve in the army of a foreign
country or in the "Spanish Revolution." Contention (b) is without merit, and
it is so found.
As to contention (c), the record discloses that Gondell prepared and caused 150
copies of a proposed contract to be distributed throughout the plant; that he
was elected president of the Union on January 19, 1944; that Williams learned
of such fact within 4 days thereafter ; and that Williams informed Dickins of
and that "some time during the first 2 or 3 days of January" (1944) he discussed such
suspicions with an officer of Naval Intelligence. He was unable to identify such officer.
Dickins then testified that the "water cooler" conversation occurred prior to his talk
with Naval Intelligence officer and that he had informed such officer of Gondell's "skip the
country" remarks. Dickins contended that he discussed Gondell's draft status with him on
or about January 1S or 19, at which time he informed Gondell that the draft board had
asked for "Form 42-A which is an occupational request" on Gondell. In this connection
Dickins testified :
His (Gondell's) answer was that he didn't give a God damn what they did; that he
wasn't going to serve in the Army anyhow ; that he wouldn't serve in it . . .
On the above and the record the undersigned is convinced that Gondell did not make
either statement quoted next above, or the statement attributed to him as having been made
at the time additional data was supplied
6I, Winston Williams, wish to go on record as saying that Mr Jay Marshall Dickins, on
or about January 15th, 1944, suggested to me as Mr. Peter Gondell's superior, to observe
his (Mr. Gondell's) actions closely in that he had mentioned that he would not serve in the
United States Armed forces if drafted, and that he had inferred to Mr. Dickins and myself
that at one time or another he had served in the Armed Forces of some other country.
FRANQUE A. DICKINS, ENGINEER 807
Gondell's election as such president10 It is clear that Dickins learned of Gon-
dell's union activities and of his election as president at least a week before his
discharge. Contention (c) is without merit, and it is so found.
As to contention (d), the record discloses that after the charge was filed herein
Gondell filed an affidavit in support of a claim for back pay, to be paid in the
event an informal settlement was reached. The affidavit stated that Dickins'
average weekly pay amounted to $150 50, whereas the record shows that during
the time he worked there, there was but 1 week in which he earned $150."
The record further shows that during his employment Gondell took time off to
work on the proposed union contract; that the respondents refused to pay for
the Christmas and New Year's holidays not worked ; and that on occasion Gon-
dell was out due to the illness of his wife. The record further shows that had
Goodell been able to work or had worked all the regular and overtime expected
of him he would have averaged $150 50. While his affidavit is technically in-
correct since he did not "average" $150.50 per week it does not indicate that he
intentionally swore to a false statement and the undersigned so finds. On the
foregoing and the record the respondents are not entitled to have Gondell's testi-
mony disregarded. Contention (d) is without merit, and it is so found.
As to contention (e), as found above, Gondell on January 28, 1944, submitted
a copy of a proposed contract between respondents and the Union; that on Feb-
ruary 1, 1944, Dickins called Sayers, told him that Gondell was under "suspicion"
and riot a proper person to negotiate a contract, and requested Sayers to so notify
Gondell ; that when Gondell called Dickins and asked why he was not considered
a proper person to represent the Union, Dickins recalled the "water cooler" con-
versation and he expressly implied that he considered Gondell to be a liar. From
all of which it appears that Dickins sought to anger Gondell to induce "impudent"
conduct on Gondell's part in order to justify his discharge. Contention (e) is
without merit, and it is so found.
(3) Conclusions
From the aboye and the record it appears that the respondents wanted no active
union in their plant ; that shortly after his employment, Gondell succeeded in
animating what, up to that time, had been more of a social club than a labor
organization, into an aggressive union ; and that Dickins in seeking a plausible
pretext upon which to base Gondell's discharge seized upon the "skip the country"
remark, set forth above, grossly exaggerated it and attempted to show that Gondell
had iterated such remark on other occasions. These conclusions are further
supported by the fact that on February 8, 1944, Dickins wrote a letter to Lt. Comdr.
E. J. A. Murphy, Navy Yard, New York, wherein he made many statements
30 While Williams denied discussing Gondell's "union activities" with Dickins he admitted
telling Dickins that he had heard of Gondell's election as president of the Union. The
undersigned does not credit Dickins' testimony that he had not heard of Goodell's election
until after January 29.
11 Omitting formal parts the affidavit reads as follows :
PETER GONDELL, being duly sworn, deposes and says : On or about the 1st day of
February, 1944, I was discharged from the employ of Franque Dickens. During the
period of my employment there I was paid at the rate of $1.75 an hour. However,
as a result of a great deal of overtime, my average weekly pay amounted to $150.50.
I was unemployed until the week of February 21, 1944, at which time I was hired by
the Bethlehem Steel Corporation. There, I was employed at the rate of $1.70 an hour.
My weekly pay, including overtime, amounted to $88.40. The difference therefore,
in the weekly income at the two places of employment was $62.10.
I am still employed at the Bethlehem Steel Corporation.
/s/ PETER GONDELL.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning Gondell that were at a variance with or inconsistent with his testimony
herein.'2
The evidence adduced by the respondents' witnesses does not support their
contention that Gondell was discharged because they believed he was disloyal to
the country or that he served in the armed forces of a foreign country or in the
Spanish Revolution. The undersigned finds that Gondell discharged on February
1, 1944, because of his activity on behalf of the Union.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above , occurring in
connection with the operations of the respondents described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and foreign countries, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow, of commerce.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor prac-
tices, the undersigned will recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
ii DEAR SIR : I deem it advisable to notify you of a recent occurrence at this office.
We recently hired an individual by the name of Peter Gondell to perform the services
of a draftsman in our Hull Structural Department . As is our custom , we immediately set
about attempting to secure a deferment for the subject gentleman Shortly after the com-
mencement of these efforts , the subject gentleman notified the undersigned that , because of
the fact that his wife was with child, he would not serve in the United States Army. On three
other occasions the subject gentleman repeated his statement that he would not serve in
the Army regardless of the fact that he might be notified to report for induction. The under-
signed notified the chargeman supervising the subject gentleman 's work to observe his actions
closely Shortly before the receipt of a 2B classification running until April 15th, 1944, Air.
Gondell notified the undersigned by way of an oral statement, that he would not serve in the
Army of the United States and that the undersigned need not worry about it because lie,
Air Gondell had secured reservations necessary to conduct himself and his wife to Mexico
In view of the difficulty of securing the necessary manpower at this time, the undersigned
attempted to reason with the subject gentleman to the extent that, when the 2B classification
was received , the undersigned called the subject gentleman into the office and prevailed upon
him to change his state of mind and to give the undersigned proof of the fact that lie was
loyal to his country.
The subject gentleman was then put on a probationary period but was not notified of
same. The purpose of this period was to ascertain whether or not the loyalty of the subject
gentleman was above reproach . During this probationary period, Mr. Gondell became the
president of the local union, the Marine Draftsman 's Association . The undersigned notified
the Marine Draftsman 's Association here that, under the conditions , i e, questionable
loyalty of the subject gentleman loyalty to the United States, he, the undersigned, did not
feel that Air. Gondell was in a position to arbitrate or discuss matters pertaining to the
function of the Marine Draftsman 's Association and management here.
The subject gentleman shortly thereafter took the undersigned to task on this statement
asserting that he, Mr. Gondell, had been a "jerk" to have uttered a statement such as that,
pertaining to a refusal to serve in the Army and that, since becoming the president of the
local branch of the Maiiie Draftsman's Association, he had had a change of heart It was
the subject gentleman 's contention that the management here should accept his statement
as to his change of heart and let bygones be bygones The management still being doubtful
as to the reliability of the loyalty of the subject gentleman refused to accept a mere
statement as sufficient assurance that the subject gentleman * * * change of heart
and mind with regard to his loyalties
At a discussion in the office of the undersigned on this same topic, the subject gentleman
forgot himself completely and ceased to act as a gentleman with the result that, all things
being totaled , the subject gentleman was discharged.
This information is sent to you, Sir , for whatever disposition you may think best.
* *
(Omitted in exhibit.)
FRANQUE A. DICKINS, ENGINEER 809-
The undersigned has found that the respondents discriminated in regard to the-
hire and tenure of employment of Peter Gondell, thereby discouraging membership-
in the Union. In order to effectuate the policies of the Act, it is recommended
that the respondents offer him immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges and that they make him whole for any loss of pay he may have
suffered by reason of the discrimination practices against him, by payment to him-
ef a sum of money equivalent to that which he normally would have earned as
wages from February 1, 1944, to the date of offer of reinstatement, less his net
earnings 13 during said period.
Upon the basis of the above findings of fact and upon the entire record, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. National Council of Marine Draftsmen is a labor organization, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the tenure of employment of Peter Gon-
dell, thereby discouraging membership in a labor organization, the respondents
have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have en-
gaged in and are engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
4. The aforesaid -unfair labor practices are unfair labor practices within
the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents, Franque A. Dickins, Jay Marshall
Dickins, and T. C. Dickins, co-partners, doing business under the trade name
and style of Franque A. Dickies, Engineer, of the Borough of Brooklyn, City
and State of New York, their agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouring membership in the National Council of Marine Draftsmen,
or any other labor organization of their employees by discharging and refusing
to reinstate any of their employees or in any other manner discriminating in
regard to the hire and tenure of employment or any terms or conditions of their
employment ;
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the riglits to self-organization, to form labor organiza-
tions, to join or assist National Council of Marine Draftsmen, or any other
labor organization, to bargain collectively through representatives of their own.
choosing and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
13 By "net earnings " Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies received for
work performed upon Federal , State, county , municipal , or other work -relief projects , shall
be considered as earnings . See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Offer to Peter Gondell immediate -and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges previously enjoyed;
(b) Make whole the said Peter Gondell for any loss of pay lie may have
suffered by reason of the respondents' discrimination against him by payment
to him of a sum of money equal to the amount which he normally would have
earned as wages during the period from February 1, 1944, to the date of the
offer of reinstatement, less his net earnings" during said period ;
(c) Post at its place of business in the Borough of Brooklyn, City and State
-of New York, copies of the notice attached hereto, marked "Appendix A." Copies
of such notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the respondents' representative, be posted by
the respondents immediately upon receipt thereof, and maintained by them for
sixty (60) consecutive days thereafter in conspicuous places, including all
-places where notices to employees are customarily posted. Reasonable steps
.shall be taken by the respondents to insure that said notices are not altered,
defaced or covered by other material.
(d) Notify the Regional Director for the Second Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps` respondents have taken to comply therewith.
Itlis further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective July 12, 1944, as amended,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, 25, D C, an original and four copies of a statement in
-writing setting forth such exceptions to the Intermedate Report or to any other
part of the record or proceeding (including rulings upon all motions or objections)
-as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the Board.
PETER F. WARD,
Trial Examiner.
Dated May 28, 1945.
14 See footnote next preceding
FRANQUE A. DICKINS, ENGINEER
APPENDIX A
NOTICE To ALL EMPLOYEES
811
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist National Council of Marine Draftsmen or any
other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Peter Gondell
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
FRANQUE A. DICKINS, ENGINEER
(Employer)
By ------------------------------
(Representative) (Title)
Dated------------------------
NoIE.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.