Houston Shipbuilding Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1944

56 N.L.R.B. 1684 (N.L.R.B. 1944)

J
,In the Matter of HOUSTON SHIPBUILDING CORPORATION and UNITED
BROTHERHOOD OF WEI:DORS, CUTTERS, AND HELPERS OF AMERICA , (LOCAL
5 (UNAFFILIATED )
Case No. 16-C-968.-Decided June 27, 1944
DECISION
AND
ORDER
On March 29, 1944, the Trial Examiner issued.his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain af-
firmative action as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter the respondent filed exceptions to the
Intermediate Report, and a brief in support of the exceptions.
Neither party has requested a hearing before the Board for the pur-
pose of oral argument.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following exceptions and additions :
On February 4, 1943, the Board certified Local 5 as the exclusive
bargaining representative of the welders, burners, helpers, and welder
leadermen in the respondent's welding department. Thereafter, on
May 1, 1943, the respondent and Local 5 negotiated a collective agree-
ment for the duration of the war.' Local 731, a rival`to Local 5, was
-chartered in February or March 1943. Among its charter members
were Superintendent Zipprian, General Foreman Franklin and Fore-
man Gernade. As soon as Arthur Stout, the respondent's president,
learned of the activities of these supervisory employees, he warned
them 'that they would be discharged if they took part in the activities
of Local 731.
' The terms of the agieement were placed informally in effect pending approval of the
Shipbuilding Commission of the National War Labor Board This approval was obtained
on October 14, 1943, whereupon the contract formally became effective.
56 N. L. R B., No. 302.,
1684
HOUSTON SHIPBUILDING CORPORATION . 1685
Local 731 embarked upon an organizational campaign among the
welders in the unit for which Local 5 had been certified. - Certain su-
pervisory employees of the respondent actively supported this cam-
paign. Thus, in April 1943, employees E. T. Davis and Turner, who
had been promoted to leadermen, were refused their wage increases by
General Foreman Kelly and Foreman Fred Thomas because they were
not members of Local 731. As soon as Thomas and Kelly received
proof of their membership in Local 731, the wage increases were forth-
coming . 'On several occasions during the period from May to July
1943, General Foreman Kelly and Foreman Thomas, at the behest of
Kelly, made membership in Local 731 a condition for the promotion of
employees to leaderman and for the retention of -their jobs as leader-
men.
On July 9 there appeared on the respondent's bulletin boards a no-
tice signed by the respondent's president and addressed to all foremen
,and supervisory employees. The notice directed all supervisory, em-
ployees to adhere to the respondent's practice of permitting employees
to decide for themselves as to what union they wished to join, and
warned that any supervisory employee who solicits, advises, encour-
ages, or promises advancement to any employee for joining or not
joining-any -labor organization will be promptly disciplined upon
proof -thereof. During the same month the respondent posted an-
other notice in which, after quoting the Board's certification of Local
5, it advised that the respondent was complying with the certification
and was continuing to recognize Local 5 as the exclusive bargaining
representative. Thereafter, as a result of a complaint by Local 5
and Foreman Snow that Kelly had told Snow to sign up his leadermen
in Local 731 or it would '%e hard" on Snow, the respondent's presi-
dent on July- 19 wrote Kelly a letter in which, after advising Kelly
that no disciplinary action would be taken against him because of lack
of sufficient proof, he instructed Kelly to'"maintain perfect neutrality
on all union questions."
The neutrality instructions, however, continued to be violated.
Thus, on August 1, 1943, Kelly ordered Foreman Thomas to permit
employee Bramlett to organize Thomas' way for Local 731 and to
advise the leadermen to the same effect. These instructions were
carried out and Bramlett spent several days organizing for Local 731.
Kelly required Leaderman Still in August and Leaderman Shinn in
September to join Local 731 in order to retain their classifications as
leadermen. In September Kelly refused to promote employees' Ben-
iiett and Davis to leadermen until they had joined Local 731. On
another occasion Kelly told Foreman Burkham that it was a part of
Burkham's job to get his boat "lined up" for Local 731. On Novem-
ber 15, Kelly discharged Foreman Davis because of his refusal to
1686 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
join Locall31. Superintendent Zipprian on one occasion indicated to
employee Foster, a Welder, that Foster would have to get on the right
side of the fence by joining Local'731 if he wanted a promotion.
The Trial Examiner found that the respondent, by the above-out-
lined conduct'of its supervisory employees, violated Section 8 (1) and
(3) of the Act. The respondent contends that it did all that 'could
be done to inform the employees of its neutral policy and hence is
not liable for its supervisory employees' conduct in violation of its
announced neutrality policy.
'We agree with the'Trial Examiner that the respondent's president,
Arthur Stout, evidenced a desire and intention that management
representatives refrain from advising or encouraging_ employees to
join or not to join any labor organization.. Whenever Stout's atten-_
tion was called to any infraction of his neutrality policy, the super-
visory employees involved were forthwith reprimanded by him. ° On
July 9, 1943, President Stout posted on the bulletin boards a notice
in which he openly admonished supervisory employees to remain neu-
tral on penalty of being disciplined. During the same month he
posted' another notice, advising the employees that the respondent was
recognizing Local 5 as the exclusive bargaining representative of the
welding employees in conformity with a prior Board 'certification.
At the same time, Stout refused to deal with Local 731. In our opin-
ion, President Stout's conduct, adequately brought home to the em-
ployees the respondent's neutral position so that the employees had
no just cause to believe that supervisory employees, who thereafter
violated this neutrality by making statements hostile to Local 5 or
favorable to Local 731, were acting for Iand on behalf of management.
Under these circumstances, we hold, contrary to the Trial Examiner,
that ' after the posting of the July 9, 1943, 'notice,. the respondent did
not violate the Act by the anti-Local 5 and pro-Local 731 statements
of its supervisory employees.
We take a different view, however, of the conduct of the supervisory
employees, following the posting of the July 9 notice, in conditioning
promotions to leaderman or retention of employment or-retention of
a preferred classification upon membership in Local 731. In these
instances we are confronted not-with mere words and statements, .but
-with an actual change in conditions or tenure of employment directly
dependent upon the employees' willingness to' accept membership in
Local 731. The respondent had delegated to these supervisory em-
ployees final authority to discharge, promote, and demote. The em-
ployees were confronted with the ultimatum of complying with the
discriminatory conditions imposed by their superiors upon penalty of
loss of employment or advancement. Failure to 'comply with, these
discriminatory conditions resulted in economic reprisals, as is shown
HOUSTON SHIPBUILDING CORPORATION 1687
by the withholding of promotions and the discharge of Davis. Like
the Trial Examiner, we find that by the conduct of the supervisory,
employees in withholding promotions from employees because they
were not members of Local 731, in requiring employees to join Local
731' in•order to= obtain promotions, and in requiring other employees
to secure membership in Local 731 on penalty of demotion, the
respondent interfered with, coerced, and restrained its employees in
the exercise of the rights guaranteed in Section 7 of the Act in viola-
tion of Section 8' (1) of the Act.'- We find further, like the Trial
Examiner, that the respondent discharged Davis because of his refusal
to abandon Local 5 and join Local 731, thereby discouraging member-
ship in Local 5 and encouraging membership in Local 731 in violation
-of Section 8 (1) and. (3) 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 respondent, Houston Shipbuilding Cor-
poration, Houston, Texas, and' its officers, agents , successors, and
assigns, shall : '
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Weldors,
Cutters, and Helpers of America, Local 5, (unaffiliated), and encour-
aging membership in International Brotherhood of Boilermakers,
Iron Shipbuilders, Welders and Helpers of America, Local 731, affili-
ated with the American Federation of Labor,,or any other labor or-
ganization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire or tenure of employment, or any term or condition
of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join, or assist United Brotherhood of- Weldors,
Cutters, and Helpers of America, Local 5 (unaffiliated), or any other
labor organization, to bargin collectively through representatives of
their own choosing, and to engage in concerted activities, for the pur-
poses of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2 The complaint alleged this conduct only as a violation of Section 8 (1) of the Act. ' i
I In Section C-1 of the Intermediate Report the Trial . Examiner found that the boat on
which Davis worked was launched on September 13, 1943, and that Davis was summoned to
Kelly's office on, September 15. The record shows, and we find, that these events occurred
on November 13 and 15, 1943, respectively. t ,
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative-action, which the Board finds will,
effectuate the policies of the Act :
(a) Offer E. C. Davis immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges; '
.(b) Make whole E. C. Davis for any loss of pay, he has, suffered by
reason of the respondent's discrimination against him by payment
to him of a sum of mon'ey' equal to the amount which he normally
would have earned as wages during the period from November 15,
1943, the date of his discharge, to the date of the respondent's offer of
reinstatement, less his net earnings during said period;,
(c) Post immediately in conspicuous places throughout its plant in
Houston, Texas, and maintain for a period of at, least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b) of
this Order; (2) that it will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's
employees are'free to become and remain members of United Brother-
hood of Weldors, Cutters, and Helpers of America, Local 5 (unaffili-
ated), or any other labor-organization, and that the respondent will not
discriminate against any, employee because of his membership in or
activities on behalf of any such organization, or because of his failure
to become a member or be active in any such organization;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within-ten (10) days from the date of this Order, what steps
the 'respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent has discriminated against J. C. Wharton, Ed
Dawley,,M. B. Beazley, and W. M. Owen, within the meaning of Sec-
tion 8 (3) of the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Robert F. Proctor, for the Board.
Messrs. Sam H. Benbow, I. S. Ashburn and Arthur Stout, of Houston, Tex.,
for the respondent.
Mandell d Wright, by Mr. Herman Wright, of Houston, Tex., for Local 5.
STATEMENT OF THE CASE
-Upon an amended charge duly filed on December 16, 1943, by United Brother-
hood of Weldors, Cutters, and Helpers of America, Local 5, unaffiliated, herein
called Local 5, the National Labor Relations Board, herein called the Board, by
its Regional Director for the Sixteenth Region (Fort Worth, Texas ), issued its
complaint dated December 23, 1943, against Houston Shipbuilding Corporation,
herein called the respondent, alleging that the respondent had engaged in, and'
I
HOUSTON SI±IPBUILDING `CORPORATION 1689
,was 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 of the complaint and notice of hearing were duly
served upon the respondent and,the Union. _
With respect to the unfair labor practices the complaint alleged, in substance,
that the respondent, by its officers and agents: (1) discouraged membership in
Local 5, and encouraged membership in a rival labor organization known as inter-
national Brotherhood of Boiler Makers, Iron Ship Builders, Welders and Help-
ers of America, Local 731, affiliated with the American Federation of Labor,
herein called Local 731, by, among other acts assisting in the circulation of a
petition in support of Local 731 ; permitting employees to solicit members and
collect dues in Local 731, on the respondent's time and property; permitting
Local 731 stewards to represent employees in the adjustment of grievances, not
withstanding the fact that Local 5 was the duly certified bargaining representa-
tive of the employees ; advising a foreman to persuade employees working under
him to refrain from affiliating with Local 5 and to support Local 731; sponsoring
a meeting ostensibly to encourage the buying of United States War Savings
Bonds, which was, in fact, an organizational meeting of Local 731; and threat-
ening employees with discharge if they supported any union other than Local
731; and (2) discharged John Wharton, Edward Dawley, Ivan Kellogg, Everett
Davis, M. B. Beazley, and W. M. Owen, and 'demoted Louis Peters, and, there-
after failed or refused to reinstate any of them, because they joined or assisted
Local 5.
On January 7, 1944, the respondent filed with the undersigned Trial Examiner
an answer admitting some of the allegations of the complaint, but denying that
it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held at Houston, Texas, from January 7
to January 13, 1944, before Horace A. Ruckel, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The Board, the respondent, and
Local 5, were-represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties.
Upon the close of the Board's case the undersigned granted a motion, by the
Board's attorney to dismiss certain allegations of the complaint, and a motion
by counsel for the respondent to dismiss certain other allegations of the com-
plant.' Ruling was reserved on a motion by counsel for the respondent to dismiss
the allegation that Ross W. Copeland, works manager and vice-president of the
respondent engaged in anti-union activities. The motion is hereby granted.
At the close of the hearing the undersigned granted a motion by the Board's
attorney to ggnform the complaint to the proof in formal matters, and to dismiss
that portion of the complaint which alleged that the respondent discriminatorily
demoted Louis Peters
At the close of the hearing the parties were advised that they might argue
orally before the undersigned, and might file briefs with the undersigned within
These allegations were that Elkins and Locklin, alleged to be foremen, encouraged Local
731 and discouraged Local 5 ; that V. L Kelly, a foreman, stated to another supervisory
employee that he was being discharged because of his membership In Local 5; and that
the respondent discriminatorily discharged Ivan Kellogg.
8 These allegations were : 4 (d) that the respondent gave a dinner for welder trainees at
which they were advised that they would receive advantages by becoming members of
Local 731; 4 (e) that the respondent sponsored a meeting ostensibly to encourage the
buying of United States War Savings Bonds, which was, in fact, an organizational meeting
of Local 731 ; and 4 (j) that E. C. Paine, assistant master welder, gave a list of welder
leadermen to an instructor, stating that such Ieadermen should join Local 731.
1690 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14 days from the close of the hearing None of the parties argued orally-, On
January 29, 1943, Local•5 filed a brief.
Upon the entire record in the case-and from his observation of the witnesses,
the undersigned makes the following: '
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent , Houston Shipbuilding Corporation, is a Delaware corporation,
having its principal office and place of business on Irish Bend Island in Harris
County, Texas, near Houston, Texas. The respondent, under contract with the
United States of, America, acting by and through the United States Maritime'
,Commission, is engaged in building ships for use,in the war. -Since July-1941,
-the respondent has used in ship construction raw' m'aterials' valued in excess
of $5,000,000, of which more than 80 percent has come to the shipyard from
points outside Texas. Approximately .92 percent of the raw materials are sup-
,plied to the respondent by the United States Maritime Commission, to which
the respondent delivers completed ships. The respondent admits that it is
engaged in commerce or in a business operation affecting commerce within the
meaning of the Act. - -
The Todd Shipyards Corporation is the parent corporation of the respondent.
II. THE ORGANIZATIONS INVOLVED
-United Brotherhood of Weldors, Cutters, and Helpers of America, Local No. 5,
is a labor organization_ admitting to membership employees of the respondent. It
is unaffiliated with any national labor organization'
International Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and
Helpers of America, Local 409, and International Brotherhood of Boiler_ Makers,
Iron Shipbuilders , Welders and Helpers of America, Local 731 are labor organiza-
tions affiliated with, the American Federation of Labor, admitting to membership
employees of the respondent.
Houston Metal Trades Council ; herein called the Council , is an organization
composed of representatives of American Federation of Labor unions in Houston
and vicinity , and represents Local 469 and Local 731 as their agent for purposes
of collective bargaining.
III. THE UNFAIR LABOR , PRACTICES
1. Background
Local 469 and Local 5 began organizational activities in the respondent's ship-
yard tsometimes 'during' 1942: On February, 4, 1943, pursuant to an election held
on January 13, the Board certified' Local 5 as the collective bargaining agency
for "all welders, burners, their helpers,-and leadermen of the welding depart-
ment, but excluding all foremen and supervisory employees above leadermen "
At the same time the Boai•d certified the Council as the exclusive representatives
for certain other categories of employees, including welders and burners em-
ployed in departments other thaiithe welding department.`
3 Previously , and at the time of the - election hereinafter referred to, Local 5 was affiliated
with the United Brotherhood of Welders , Cutters, and Helpers of America, a national labor
organization . During the summer of 1943 , Local 5 withdrew from the national
organization. - „ - -
4In the Matter of Houston Shipbuilding Corporation , etc, Cases R-4402 and R-4403
6 Houston Metal Trades Council, affi liated with the Metal Trades Department of the
American Federation of Labor, was certified as the 'bargaining representative for "all
production and maintenance employees , including clerks, checkers , and tool room clerks of
HOUSTON SHIPBUILDING CORPORATION 1691
Following the election the respondent signed exclusive bargaining contracts
with the Council and Brotherhood of Railroad Trainmen, covering employees in
the units for which those organizations had been certified, and entered, into
contract negotiations with Local 5 for the employees in the welding department°
In March 1943, International Brotherhood of Boiler Makers, Iron Shipbuilders,
Welders and Helpers of America chartered Local 731 and gave, it jurisdiction
over the welders and burners employed by the respondent, including those in the
welding department? Thereupon, Local 731 began an intensive organizational
campaign in the welding department, in spite of the fact that such employees,
were represented for purposes of collective bargaining by Local 5. This cam-
paign met with considerable success,' and, on August 26, 1943, the Council filed a
petition for investigation and certification of representatives in the welding de-
-partment. 9
2. Acts of interference, restraint and coercion
a. The attempts of Local 731 to supplant Local 5 in the welding department
The complaint alleges that certain supervisory employees encouraged member-,
ship in Local 731, and discouraged membership in Local 5.
The names of C. R. 7ippr•ian, superintendent of the welding department,i0 M. C.
Franklin, general foreman of the slab shops,' Gernade,12 and other supervisory
the production depaitnient, and leadermen, but excluding all employees engaged in the
operation of dinky engines (the yardmaster, swing foremen, dinky engineers, dinky
foicinen or conductors, and dinky switchmen), welders, buiners, their helpers, and leader-
men of the welding department, all supervisory employees above leaderinen, clei ical office
employees, porters inside offices, chauffeurs, technical employees, plant-protection and
safety employees (guards and fire fighters), and instructors" The Board certified Brother-
hood of Railroad Trainmen for "all employees engaged in the operation of dinky engines,
including dinky engineers, 'dinky, foremen or conductors, dinky switchmen, and swing
foiemen but excluding the yardmaster."
0 The respondent's welding department employs approximately 4,200 first, second, and
third class welders, working in three shifts, in addition to approximately 300 leadermen
and 60 foremen i
7 The jurisdictional line between Local 469 and Local 731 is not clear in the record J M.
Gutiidge, international vice president of the Boilermakers, testified that nonsupeivisory
employees and leadermen weie eligible for membership in both organizations, but that
Local 469 was restricted to "employees of the Houston and Brown yards or shipyards me
this vicinity,"- and that Local 731 "is restricted to shipyards in Harris County," in which
county the respondent's shipyard is located Foremen were not eligible, according to Gut-
ridge, unless they have previously been members, in which event they retained their member-
ship but could not vote at meetings As is hereinafter found, however, Kelly, general
foreman of the swing shift, first joined Local 731 in June 194:3, while holding that position
E Gutiidge testified that Local 731 "tiemendously increased in membership . since the
ignung of the Metal Trades agreement " It is clear that such increase took place for the
most part among the welders in the welding depa i talent, and was at the expense of Local 5
5Houston Shipbuilding Corporation etc, Case No. 16-I1-711 A hearing on the petition
set for November 29, was, on December 1,-postponed indefinitely by the Regional Director
for the Sixteenth Region
10 Zipprian, superintendent' of the welding depaitnient, occasionally -referred to in the
record as master welder, had supervision over all three shifts of the welding department,
numbering, as has been previously stated, approximately 4,200 employees He was re-
sponsible directly to Copeland,,the respondent's vice president and general manager Di-
rectly under Zippuan were three geneiail shift foremen, each of whom had charge of a
shift numbering approximately 1,400 welders These general foremen were Kelly. Paine,
and Befeld. Kelly and Beteld became members of Local 731 , Under the general shift
for'nnen were a number of quarternien each with three ways under his, supervision, and
under them several foremen. each, in elnaige of one was Under each toienunh were
it number of leadermen, each supervi,nig the work of tioni 20 to 30 welders
11 In such capacity Franklin had approximately 400 employees working under him
r" Gernade•s exact supervise y status is not clear in the record Zipprian testified that
when lie first came to work in the shipy-aid Geinade was it foreman and that lie became
Gernad's assistant.
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees appeared on the charter creating Local 731. The new local, chartered
in March, and the part played in its formation. by supervisory employees first
became known to Arthur Stout, the- respondent's president, in April or May 1943.
Stout called Zipprian, Franklin, Gernade, and others to his office, asked them what
part they had played in organizing Local 731, and told them that if they took any
part in its'activities they would be discharged.'
On July 27, 1943, the Council wrote the respondent referring to the "Inca-
pacity" n of Local 5 "to function as a bargaining agency under the certification is-
sued by the National Labor Relations Board" for employees in the welding de-
partment ; requesting the respondent not to execute a contract with Local 5, and
claiming for itself the right to represent the employees in the welding depart-
ment. The respondent, over Stout's signature, answered the council's letter on
July, 20, stating that "under the present circumstances, and particularly in view
of the existing certification,' we, cannot recognize your claim " Instead, the
respondent continued negotiations with Local - 5 An agreement on the terms
of n contract was reached sometime during the late spiiug or early simnimer, and
ii'Stout's testimony as to the circumstances attending this meeting was as follows
Q When did you first hear of Local 731? _
A Well I would say it must have been somewhere around in Apii1 or May . and I
made iiiquity, what was 731, and I was told that a charter had been graiited• a group of
welders as an auxiliniy.or extension of some part of 469, and I got after the boys about it,
and I was told that they had heard that there was a charter in existence .. . and finally
a charter was hi ought in to me, a charter of this 731 Union, that I saw . And it just so
happened that when I first saw a copy of that charter Mr Sanford, the Regional Director
of the Maritime Comnussion, was in may office when it cane in, and I showed it to him
and told him that if this thing did not stop we were never going to get any peace is the
yard And I had a photostat made of that charter and gave it to Mr Sanford and asked
'him to take every step he could possible take through the labor office of the United States
Maritime Commission to go over and get this charter squashed or withdrawn or revoked
because I could see it was going to give us trouble It was a rating (sic) of the certified
.agent and I could not see anything but trouble And Mr Sanford agreed with me, and
I know that lie made eves y effort to have something done about that charter, bur- be nedei•
was able to get any definite-action taken.
Q Had you any conversation with any member of Local 5 about it up to that time?
A I do 'not iemember of Local 5 ever saying anything to me about this charter. I
heal d it in the office and I demanded to see this charter. I remember telling one of
our supeivisois down there that by God somebody in this place knew what this charter
was and I wanted to see a copy of it.
Q When you saw the charter did you see the names of any supervisors In the yard
on it's
A Yes.
Q What did you do about it?
A I immediately called a meeting, Gernade, Zipprian and everybody whose name was
on that charter . . . and I very forcefully told them that If they took any part in this
uilovement at all every one of them would be summarily discharged. The only reason they
were not discharged right there was because it would have interfered with the work in
the hard
Q Did you ask them at that time whether they were taking any part in promoting that
union in the yaid? '
A Yes . . and I remember what Zipprian said and one or two of the other boys,
that their names had been used on that charter because they were members of long
standing in 469 and, when the petition was made for the new local that the names of all
the members of 469 who weie welders were automatically transferred over to the new
welders local and that was the reason the 469 names were used on the charter . . .
- Trial Examiner RUCKEL Did these men say it was without their permission?
A Zipprian was very sure it was without his permission The other boys had said it
was with-their permission that this was done . . .
`"This Alas a reference to a contention of the Council that Local 5 was not a proper
haieainin, ageoev because, subscqu^.nt to certification. Local' 5 withdrew from United
Brotherhood of Welders, Cutters and Helpers of America, the national organization whose
mane mad appeared on the ballot
HOUSTON SHIPBUILDING CORPORATION 1693
submitted to the'Shipbuilding Commission of the National War Labor Board for
approval., Upon obtaining approval, the contract was executed on October 14,
1943." Pending approval, the respondent, by agreement with Local 5, put into
effect the'provisions of the contract with respect to the handling of grievances,
including the following : , -
The Union shall designate'and maintain the following units on each shift:
(a) A craft employee on each way, on each ship on the dock, and in each
of the ships in the yard, who shall be designated as "job steward" ;
''(b)"One'craft employee for each shift who shall be known as the "Chief-
Steward" ;
(c) A "Shift Committee" composed of the Chief Steward and two other
craft employees ; _
(d) A "general committee"' composed of the three (3) Chief Stewards
and the Local Business Representative of the Union. -
In the case of any complaint, dispute or grievance involving an individual'
(sic) may be required by either party at all consultations or hearings thereon,
and such individual shall be allowed to attend on company time if such
hearing falls on his working shift. All stewards and committeemen shall
be allowed time from their regular shifts for the necessary performance
of their duties as outlined herein 16
The number of stewards permitted Local 5 under its arrangement with the
respondent was approximately 40, of which number approximately 25 were ac-
tually appointed.
The contract with the Council similarly contained provisions concerning the•
handling of grievances in the units represented by that organization. No rec--
ognition„ however, was ever accorded stewards whom Local 731 subsequently,
designated in the burning and welding department. One or two attempts by
Local 731';stewards to, discuss grievances- of 'members working in that depart-
ment were rejected by Ashburn, the respondent's director of industrial and
public relations." Nor was Local 731 permitted to use the bulletin boards main-
tained by the Council in other departments, on the ground that it was not one
of the organizations represented by the Council A surreptitious posting of a
notice by Local 731 on the Council's bulletin "boards was taken up with 'that
organization by Ashburn in a letter dated October 6, 1943:
I am enclosing copy o'.letter I have written to the Houston Metal Trades
Council with reference to their bulletin boards. I am also sending you
copy of the notice, the placing of which in these -bulletin boards was-a viola-
tion of instructions given to you.
These are official bulletin boards and we recognize only those unions that
are included in the A. P. of L. group, for which the Metal Trades Council
"The contract was to continue in effect "until the termination of the national emer-
gency and thereafter until thirty (30) days after written notice from either party."
° It contained a maintenance of inenibeiship clause and provided for a system of handling-
grievances Wage scales were set forth, and a system of seniority established. The re-
spondent agreed to provide bulletin boards for the posting of union notices and to give access
to the yard to business repiesentative of Local 5.
10 The failure of the contract to specify more definitely how much time stewards should'
be permitted to spend in the handling of grievances gave rise to controversy. The respond-
ent defended the discharges of certain of the employees named in the complaint on the
ground that they spent too much time in adjusting grievances and too little time at their
jobs.
" He has held such position since April 1, 1943
587784-45-vol 56-108
I
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been certified as the bargaining agent. I expect you and 'the repre-
sentatives of No. 731 to respect these agreements.
Ashburn's 'letter to the, Council read, in part, as follows :
I am enclosing copy of notice which has been posted in the bulletin boards
assigned to the Houston Metal Trades Council, which posting is a ,violation
of the spirit of our agreement for your utilization of that board by the Metal
Trades` Council.
Although no'reference is made to A. F. of L. Union No 731, the notice is
addressed to A. F. of L. Welders and Burners and has no right to be included
in your bulletin board or posted elsewhere in the yard.
In carrying out the grievance provisions of the contracts with the Council and
'with Local 5, the respondent accorded the grievance committees time each week
to discuss pending grievances among themselves. A demand of Local 731 that its
representatives be permitted to attend Council committee meetings,'was'refused.
In December, after the filing of the Council's petition for another hearing on
the question of representation, and subsequently to the indefinite postponement
by the Board of a hearing thereon, the Council caused to be circulated'in the yard
copies of a printed petition addressed jointly to the 'respondent and the Board,-
reading, in part, as follows:
This will serve as notice to you of my, revocation and withdrawal of consent
to be further represented by the purported bargaining agency, whether known
as Local 5, United Brotherhood of Independent Welders, or United Brother-'
hood of Welders, Cutters and Helpers of America, Local'N6 5; which was"
certified by the NLRB on March 4, 7343, as the bargaining agency in behalf
of the employees designated as welders, burners, their helpers and leadermen
in the welding department of the Houston Shipbuilding Corporation.
My reasons for revocation and withdrawal of authority for this purported
bargaining agency are the following : I
(1) Because the name of said Local 5 did not appear upon the official
election ballot and said Local,' therefore,' could not be elected as the bargaining
agency:
s * a s * s s
(5) Because I ain not satisfied with the, character . of representation '-
offered me by Local No. 5 (independent), and the manner iii which its officers
and representatives have conducted themselves since their certification, an
almost complete change having occurred in the official personnel of said
Local No. 5. '
(6) BECAUSE I DESIRE ANOTHER ELECTION AND AN.OPPORTU-
NITY`TO VOTE FOR A PROPER BARGAINING AGENCY REPRESENTA-
TIVE OF THE WISHES OF A MAJORITY. [Emphasis in original.]
John McGraw, a member of Local 5, testified without contradiction, and the
undersigned finds, that on about December 14 Stevens, his leaderman, distributed
copies of the above petition to members of his gang, many of whom signed the
petitions. K. A. Walls, a member of Local 731, a witness called by the respond-
ent, testified that, while a leaderman on slabs Nos. 1 to 6, he assisted in the
distribution of these petitions and obtained the signatures of men working
under hun ; and that, although ordered by Stovall, his foreman, to stop this
activity, he continued .with it when Stovall was not present 16 After joining'
18 Walls' further credible testimony was to the effect that prior to his joining T.ocnl
731 in June, he had, while a leaderman and a member of Local 5, solicited membership
in that organization whenever he had the opportunity. At that time Wilson and Cheek,
I
HOUSTON SHIPBUILDING CORPORATION 1695
Loca1 731 Walls, in addition to obtaining signatures to the petition above
described, signed up "some few hundred" inembers,in Local 731 He testified
that solicitation by both unions was general in'the yard, and that they were
having "a,pretty nice fight."'9
Two members of Local 731, Martin La Bouve, a leaderman, 'and Isaac Miller,
were discharged for circulating copies of the above petition in the y ard.20
b. The activities of General Foreman Kelly and other supervisory. employees on,
the swing shift; in support of Local 731
At the time of, the events complained of, V. L Kelly, general foreman of the
swing shift,21 •had approximately 24 foremen, 125 leadermen, and 1,300 welders .
under his supervision. Kelly joined Local 731 in June 1943 22 There is much
credible; testimony in the record byforemen and leadermen, themselves members
of Local 731, and by other witnesses, that Kelly assisted the campaign of that
organization on the swing shift by urging foremen to line up their leadermen
as members , by withholding promotions until evidence of such membership was
forthcoming, and by other acts. The question of whether the respondent, in
view of certain affirmative action taken by it, including. the discharge of most
of the foremen and leadermen in question, bay properly be held responsible for
.their actions, is hereinafter discussed.
Burkham, a foreman on the swing shift from March 1943 to November 1943,
when he was discharged, had for 15 years belonged to the American Federation -
of Labor. He joined Local 469.in January 1942, while ,a leaderman, and joined
Local 731 about February 1943. Shortly afterward, but prior to March, he
joined Local 5 23 In March he was promoted to foreman.
Burkham testified that in July 1943, Kelly called him to his office and told him
that the, boat on which he was working was "not lined up just right," and that
some of Burkham's men were "on the ' wrong side of the fence," by which he
understood Kelly to mean that he should get employees working under him to
join Local 731. A few-days later Kelly, according to Burkham, again told the
latter that his boat was "not lining up 'right," and `went on to say, "So far you
have got the job done and I would like to keep you. But the boat has, got to
line up right . . . that is as much a part of your job as getting the boat out
on time."
After the work stoppage on September 6, 1943, hereinafter related, Burkham
conferred with Kelly about promoting two meri to' jobs as leadermen. Burkhain
respectively business agent and assistant business agent for Local 5 told him that he could
solicit whenever and wherever he wanted , but to "be careful with it " Guy , a steward for
Local 5 who worked under Walls, obtained membership applications in and collected dues
for Local 5'on the job , with Wall's knowledge.
10 Walls was discharged by Foreman Stovall on the morning of the day he testified. The
reason does not appear in the record.
20 According to the uncontradicted and credible testimony of Ashburn supported, in the
case of La Louve, by the latter 's own testimony . ' La Bouve testified that his discharge
took place on, December 13 following an investigation by the respondent and upon his
admission that he had assisted in circulating the petition.
21 The swing shift , or second shift , worked from 3, 30 p in. to 11 : 30 p m
29 Kelly testified , and the undersigned finds, that he had never previously belonged to a
labor organization See footnote 7
23 Although Burkham testified on cross-examination that he could not recall whether he
first joined Local 731 or Local 5, the undersigned thinks it is more probable that lie first
joined Local - 741 Ile,testified that lie-did not pay dues in either organization , but that
lie "fell like" ,lie 1•elanged to Local 731 , and was sympathetic to it, because he'had belonged
to the .lnierican F'cderation of Labor fox 15 years
1696 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended W. L. Bennett and F. S. Davis, and, according to Burkham, Kelly
asked him "which side of the fence" they were on. Burkham offered to find out:,
... So when I'talked to W. L. Bennett I asked him. "Bennett, what
union do you belong to?" and he told me he didn't belong to either one.
And I told him : "Here is the way the cards are stacked. If you are going
to take the job, it is not my orders but it is the orders, from Mr. Kelly, that
you are going to have to belong to Local 731.
Well, Bennett told me he didn't know. He said he would-l& me know in
a few days.
Q. What was Bennett?
A He was first class welder. In the meantime I sent Bennett to talk to
Davis. I said "You just go talk to Davis and see what Davis has to say."
Trial Examiner RUCKEL. Who was Davis?
A. He was a boy I was fixing to make a leaderman. And Bennett couldn't
get anything out of him much. He told Davis about it-and Davis would
not commit himself one way or the other. And Bennett told me about it
and so I went to Davis myself personally, about two days later and talked
to him ...
Q. What did you say to him?
A. I told him how the deal was, that he had to join 731 before he-could
be a leaderman. He said: "It'looks& like, a kind of a shame a man has to
be forced into something like that before he can have a job, that his work
could not stand for the job."
So about three days later he came to me and showed me his receipt where
he had joined 731. And I went to Kelly's office and told Kelly that Davis
was all right, that he had joined 731. And then the following Monday the
boy was set up as a leaderman.
* * * * * * *
Q Did the man named Bennettt'ever'become a leaderman?
A. Yes, sir-he did.
Q Can you relate what was done and said by you and Mr. Kelly to him
with regard to being made a leaderman?
A. Well, there was not much said by me and Mr. Kelly about Bennett being
made a leaderman. In the meantime the quarterman for Ways, 4, 5, and 6,
Evans,' came to me and told me that Bennett was all right, and I presumed
by that that the man beldnged to 731 or had the right qualifications thereof
to, be made a leaderman ... The following Monday Bennett was set
up as a leaderman.
Q. Did you ever advise i{r. Kelly that Mr. Evans had so informed you?
A. Yes, 'sir I called Mr. Kelly on the telephone and told him-that Mr. Evans
had told me that Bennett was all right. And he said, yes he is. And he
said : "Wait I will have to look up his record." And he went away for about
three or four minutes and when he came back he said Bennett was all right.
Burkham testified as follows with respect to a leaderman Still :
Q Did you at another time have any conversation with Mr. Kelly relative
to leadermen . . . ?
24 Although Burkham testified that Evans was his "general foreman," this title more
properly belonged to Kelly Evans was a quarterman As quarterman Evans had three
ways under his supervision and was over Burkham, who supervised one way, and under
Kelly. The undersigned, disregards Burkham's presumption as to Evans' meaning, inas-
much as there is no substantial evidence in the record that Evans assisted Local 731.
Sometimes referred to in the record as Steele.
t
HOUSTON SHIPBUILDING CORPORATION 1697
A: Yes, there was a boy by the name of Still that came off the third shift.
He was already a leaderman.
Q. Did he (Kelly) send for you to come to the office . . . ?
A. I went to the office . ... he asked me why I had taken Still as a
leaderman. He said the-foreman on way five had refused to take him, which,
was Mr. Cooper, and he said the man was not recommended by the third
shift, general foreman, Mr. Thompson.
+ * * * a s m
Q. That was before he came over to you?
A. Yes, sir. And I told Mr Kelly that was all I had to say about the
man, and that I believed he was getting his job done.
He said: "Well be is not right. He doesn't belong to 731 and be has been
talked to three or four times and he is so hard headed they can't do any-
thing with him."
I said, well, he didn't seem that way to me, and that I would go talk to
him.
And he said: "You had better talk to him and see if you can't straighten
him out, or there will have to be something done."
So in the meantime, I went back and talked to Still, and Still told me-
Q. Just tell us what you said to him.
A. I told Still exactly how the, cards lay. I said: "If you are going to
stay as a leaderman on here you will have to join 731."
And he said: "Well I don't know whether I will stay or not. -The Army
is about to get me." `
And I said: "I will tell you bow it is from out of the office. I have got
nothing to do with it. If you don't join up they can find some excuse to
get rid of me and you both." 2'
Burl.ham promoted another welder, Shinn, to take Still's place. Burkham
testified as follows concerning this replacement: S
i
Q. Did you subsequently make a leaderman?
A. Yes, ..., Shinn . . . he had once been a leaderman on the graveyard
shift . . .
Q. Was he working on your shift?
A. Yes, sir; he had transferred to my shift.
Q. And what classification was he working at there?
A. Well, he was working, supposed to be first class welder. But his rate
had never been changed. He was still classified as leaderman.
Q. And drawing the pay of leaderman?
A. Drawing the pay as a leaderman. S
Q. Did you have any conversation with Kelly regarding the making
of Shinn a leaderman?
A. Yes, sir . . . I went over to Mr. Kelly's office and told him I had
a man that I wanted to recommend for leaderman . . . I talked with Mr.
Kelly about it, and he asked me how the man stood, what side of the fence
he was on: And I said, Well, I didn't know that I would find out .. .
S'o I went back and talked to Shinn and asked him what union be belonged
to. First I told him just how the cards were stacked, how it had to be
for him to be a leaderman.
s s o s s a s
0 Still did not join Local 731, and shortly left for the Army.
L
1698 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
I didn't know at the time that his rating was still leaderman. I just
thought he was a first class welder. I told him he had to join 731 to say a
leaderman. -He wanted to know what in the heck was going on, that a man's
work couldn't qualify him for the job ....
Burkham, according to his,testimony, then'suggested that Shinn seed%Iorris,
a steward for Local 731, who was a leaderman, and sign up. The next day Shinn
displayed to Burkham a receipt for dues and Burkham told Kelly that Shinn
had joined Local 731 , whereupon Shinn went to work as a leaderman.
On November 8, about 2 months after the Shinn incident, and while Kelly
was on his vacation, Evans sent for Burkham :
Q. What occurred when you got back to Mr. Evans' office?
A. . . . he said, "Well, Burkham, I have got bad, news for you."
I said: "how. is that?" -
He said: "I am going to have to move you off the boat." -
I said: "What do you mean,
He said : "I am going to have
I turned then and I was kind
move."
to let you go."
of,shocked. It startled me and I said :
"Why?"
And he said: They are putting the pressure on me and L have got to do
something." He said : "It ain't just you." He said: "I have got to make a
change."
I asked him then : "Well, I want to know why you are letting me go." I
said hasn't my work been satisfactory? -
- He said : "Well, you know how it is." He wouldn't give me a direct
answer. He said: "You know' how it is. They are putting the pressure on
me. This boat is not lined up right," and he said: "Maybe we have been
a little slack." -
Of course I knew what he meant in my mind. I knew that I had not lined
up that boat into 731, which I do not believe I ever mentioned to any men on
-the job outside of leadermen, about this union."
Kelly denied all of Burkhain's testimony relating to the promotions of Ben-
nett and Davis and the retention of Still' and Shinn as leadermen, and denied
asking Burkham how his men were lined up or urging Burkham to line them up.
The undersigned does not credit Kelly's denials and finds that he made, in sub-
stance, the statements attributed to,him by Burkham, and engaged in the activi-
ties testified to by Burkham.
M J. Snow is shift foreman In the union melt department. In July 1943, this
department was put under Kelly's supervision. Snow testified that on this
occasion Kelly called him aside and told him that there was "a little trouble
Y7 The decision to discharge .Burkham did not originate with Kelly , who Burkham ad-
mitted was on his vacation , and, apparently not with Evans , for Burkham went on
to testify that, on his suggestion , he and Evans went to Kelly's office and talked to Elkin,
Kelly's assistant and that Evans asked Elkin "what are they letting him go for, do you
know'," Elkin did not know . The undersigned concludes that Bukhardt 's discharge,
and that of others discharged along with him, were determined higher up, for reasons
having to do with faulty work on the boat; that •Burkham knew this ; and that his state-
ment that, he "knew what he (Evans) meant in my mind . . . I had not lined up that
boat in 731 ," was a purposeful misreading of Evans' mind , and was designed to depict
the witness as the victim of an unlawful discharge In fact, according to Burkham's own
testimony, he had done quite'well in lining up employees in Local 731 . Burkham's name
appears, on the first amended charge filed with the Board by Local 5, pursuant to which
the complaint was issued . It was omitted from the complaint . While this portion of
Burkham's testimony unfavorably impressed the undersigned, it does not serve to destroy
the credibility of other portions , supported , as they are , by evidence that Kelly similarly
urged other foremen to assist Local 731.
HOUSTON SHIPBUILDING CORPORATION 1699
arising from the union business" in the- yard, that he wanted to get Snow -
"straight on it," and that if Snow did not get his leadermen to join Local 731 it
might "be bard" on him. He asked Snow if he had been responsible for any pro-
motions to leadernien, and suggested to him that such leadermen should be the
first whom Snow should ask to join Local 731, inasmuch-as Snow was 1n+a.posi-
tion to demand something in return for their promotion. Kelly named Proder
and Heazley, union melt foremen on the other two shifts, as ones who "could help
Snow in the undertaking, and added that getting the leadermen.to sign up with
Local 731 would "look good" to •Zipprian. Snow's further testimony was as
follows : -
... Well he didn't know what I knew. The Company told me when I
went out there, or gave me my-white badge's rather, that I was not sup-
posed to talk union. I think they put a letter out on it. So I just kept it to
my own business not to talk union.
Q Did you tell Mr. Kelly that at the time he was asking you?
A. No, but I got hold of Mr Zipprian about a week later and told him Mr.
Kelly had put me on the spot out there, and I said it was a pretty hard task
,for me, to get, out, there and, work against •the.Company, although Mr,., Kelly
was my boss.
Q Did he make any reply? - ,
A. Yes, he assured me it would not happen anymore." So I. did not hear -
anything about any of this until a couple of weeks later Art Heazley was
made general foreman,30 and DIr. Kelly said if I had got on the right side I
might have had the job Art Heazley had 61
Q. During your conversation there with Mr. Kelly did he mention any-
thing about going to see Mr. Copeland 32 over problems you had run into,
soliciting your leadermen? -
A. Well, lie said he had been to Mr. Copeland's office several time. (sic)
. . If I did the right'thing I would not be fired because they had it pretty
well' down and understood with Mr. Copeland."' The only reason I didn't
do,anything, about it was because the Company had'put out a letter stating
that any white badge foreman should not have anything to do with any union.
Q. At that time did you belong to 731?
A. No. I did belong to 469 when I first went out to the yard, but not 731.34
Q. Any mention made during your talk with Mr. Kelly about stewards on
the job? I
A. Yes, and it was the' independent steward working on my job, and he
told me I•would not have to worry about the steward . . . that there would
not be anything we could do about it, that the only thing would be to get
out there and beat him to the draw signing up 731'
* * * * * * *
Q. Did you follow his instructions, and see some of your leadernien?
28 A white badge and a white hat were the inaicia of a foreman.
21 So far as the record reveals, however, Zipprian did not call Kelly to account
81 Over the union melt department, since Kelly was general shift foreman.
31 That Kelly was bluffing is apparent from Snow's conversation with Heazley and
Proder, hereinafter related
33 Copeland was vice piesident and works manager He was separated from the re-
spondent's employment in December 1943' '
"There is no other evidence that there was any such understanding with Copeland',
84 Nor did Snow join 731.
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B
A. No, I didn't get hold of any of my men. I got hold of Art Heazley;
the day foreman,95 that night when he got off and told him what had hap-
pened, and asked him if he was in any spot like that, because' I figured I
was in a spot. And the next evening I got hold of Proder and asked him
the same thing. So we all kind of got together and nobody did anything
trying to get anybody to sign up, not that I know of.
Kelly, while admitting that he had a conversation with Snow in the cafeteria,
denied while testifying that he suggested that Snow "line up" his department. He
- did not specifically deny making other statements attributed to him by now,
but testified that he told Snow that lie did not care what union Snow's men
belonged to. Treating Kelly's testimony as intending to deny all of the state-
ments and activities attributed to him by Snow, the undersigned accepts the
testimony of Snow as true. I '
Snow, and representatives of Local 5, complained of Kelly' s statements to
Stout, the respondent's president, and Kelly was called into Stout's office where
Kelly told Stout and Copeland-substantially the same story he told on the wit-
ness stand. On July 19 Stout wrote Kelly, in part, as follows :
I have decided to take no definite action in this matter since it is simply
another case of one man's word against another's.
However, I must take this opportunity to remind you that in view of the
conflicting interests in the welders group in this yard you must conduct your-
self in'the most circumspect manner possible . . . because as a foreman you
are classed as part of management and we are definitely responsible for
your actions.
It is my honest desire . . . and my positive instructions to you that you
use every effort possible'to maintain perfect neutrality on all union questions.
I do not in any way deny you the right of being a member of whatever
organization you choose to join, but on Company property and during work-
ing hours your labor affiliations must not color any of your actions as
supervisor.
On July 9, Stout signed and caused the following notice to be posted.ori the
respondent's bulletin boards:
TO ALL FOREMEN AND ALL SUPERVISORY EMPLOYEES :i
ANY EMPLOYEE IN A SUPERVISORY CAPACITY, WHETHER HE BE
GENERAL FOREMAN, FOREMAN, SUPERVISOR, INSPECTOR, ETC.,
WHO DIRECTLY OR INDIRECTLY SOLICITS. ADVISES OR ENCOUR-
AGES ANY OF THE EMPLOYEES OF THIS COMPANY TO JOIN OR NOT
TO JOIN ANY LABOR ORGANIZATION OR' PROMISES ANY ADVANCE-
MENT FOR JOINING> OR NOT JOINING ANY LABOR ORGANIZATION,
UPON PROOF THEREOF, WILL BE PROMPTLY DISCIPLINED.
THE MANAGEMENT GIVES NOTICE TO ALL SUCH SUPERVISORY
EMPLOYEES TO ADHERE STRICTLY TO THE COMPANY'S PRACTICE
OF PERMITTING EACH EMPLOYEE TO DECIDE FOR HIMSELF WITH-
OUT ANY FEAR OR FAVOR FROM THE MANAGEMENT OR ANY OF'
ITS EMPLOYEES IN THE SUPERVISORY CAPACITY AS TO WHAT
UNION HE MAY DESIRE TO 'JOIN OR DESIRE NOT TO JOIN.
During the same month the respondent posted. another notice which, after
quoting the Board's order certifying Local 5, went on to state :
This was prior to Heazley's promotion to general foreman of the union melt department.
HOUSTON SHIPBUILDING CORPORATION 1701
You are, therefore, advised that the Houston Shipbuilding Corporation
is complying with the order of said Board in recognizing the United Brother-
hood of Welders, Cutters & Helpers of America, Local No. 5, as the exclusive
representative of all such employees for the purposes of collective bargaining
with respect to rates of pay, wages, houis of employment and other con-
ditions of employment.
Ashburn testified that the above notice was posted as the result of complaints
made by Local 5 concerning activity by Local 731, and to "clarify the atmosphere
as to the representation of the welding and burning department by Local No.. 5." se
Fred Thomas, another foreman 37 under Kelly, a member of Local 731, and for-
merly a member of Local 469, testified that about April 1, 1943, Kelly asked him if
the men under him were "lined up" in Local 731 and particularly inquired as to
the union affiliations of Thomas' leadermen. Kelly produced a chart and marked
down the affiliations of several leadermen as Thomas gave them to him 3e Two
or three weeks later, according to Thomas, Kelly- asked him how his men were
"lining up." About April 30 Thomas promoted E. T. Davis, a welder, to a posi-
tion as leaderman. After Davis had worked about 4 weeks as leaderman Davis
asked-Thomas why he had not yet received,leaderman's pay, and Thomas went
to see Kelly about it. Kelly asked Thomas if Davis was "right." Thomas prom-
ised to find out, and Kelly warned him not to -"stick (his) neck out." Thomas
reported this conversation to Davis, and asked Davis what union he belonged to.
Upon Davis' replying that he did not belong to either union, Thomas told him
that he had not received his wage raise because lie was not a member of Local
731, and told him to join 'that organization and show Thomas a receipt for his
dues, which Davis did. Thomas gave the receipt to Kelly, and Davis got his
raise.
Thomas testified that he also got leaderman's pay for Turner, after the latter
had worked for a while as leaderman, and after'a consultation with Kelly during
which Kelly asked "what side of the fence" Turner was on. Thomas, in turn,
inquired of Turner. Finding that Turner did not belong to Local 731, Thomas
got E . L. Smith,°9 one of his leadermen, to sign Turner up in that organization.90
J. D. Kirk, a leaderman under Thomas testified without contradiction, and the
undersigned finds, that at the time of his promotion to leaderman by Thomas,
Thomas told him that he would have to join Local 731. Kirk did so on.the fol-
lowing day and a few days later was made leaderman.41
E. T. Smith, another leaderman, similarly testified without contradiction, and
the undersigned finds, that in June, at the time when he was not a member of
any labor organization, Thomas told him that he "had better get on the right
side of the fence" if he wished to keep his leaderthaii's job, and that shortly
afterward Thomas again approached him, this time with Martin, a foreman under
"In November , a similar notice was posted at the request of the Board 's, Regional
Director.
i Thomas' employment was terminated on September 6.
39 Kelly admitted that he kept a chart of foremen and leadermen on which he indicated
their union affiliations by symbols , and that he supplemented such information whenever
possible . lie testified that lie kept this record so that 'he might apportion "dirty work"
equally between members of Local 731 and Local 5 in order to avoid-complaints of dis-
crmunation , and that he avoided when possible, placing a leaderman member of 731 over
welders who were preponderantly members of Local 5, and lice versa.
Smith 's own solicitation by Thomas is hereinafter related.
4o Thomas ' testimony was confirmed on this point by that of Turner. Turner ' s further
testimony was that Martin , another foreman told him that all new leadermen would have
to join Local 731. Turner was discharged September 7, following the work stoppage on
September 6
11 Kirk was discharged as a result of the work stoppage on Labor Day.
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD-
whom Smith,had previously worked, and renewed this suggestion. Following
the talk with Thomas and Martin, Smith joined Local 731,"
Thomas' further activities,, undertaken at the behest of Kelly, included the -
transfer to the swing shift of a welder named Bramlett.
Thomas testified, and the undersigned finds, that Kelly introduced Bramlett
to Thomas saying, "He is the man to do some organizing for 731. Take him out
on slab 6-and tell the leaderman "'what he is to do." Bramlett remained on
the shift for 3 days spending part of his time soliciting members in Local 731.
Among employees solicited by Bramlett was Wilcox, a leaderman and a mem-
ber of Local 5. Wilcox complained to Foster, chief steward for Local 5 on the
shift, and Foster and other representatives of Local 731 took the matter up
with Kelly and Thomas, who instituted a search for Bramlett who was not to
be found on his job. Thomas advised Kelly to discharge Bramlett because
he was "causing too much trouble there," and Kelly did so.94
Kelly denied the substance of the matters testified to by Thomas. The under-
signed does not believe Kelly's denial, and, credits the testimony of Thomas
supported as it is, by other testimony and by the record-as a whole.
J. W. Long, a leaderman under Foreman Thomas, above mentioned, testified
that he joined Local 731 in May, shortly after being told by Thomas that he
he had been instructed by Kelly to talk'to the leaderman about affiliating them-
selves with that organization. In July, while Long and Adams,4' another lead-
erman, were making out reports in Kelly's office Kelly asked them if, they had
welders whom they could recommend for jobs as instructors. Long recom-
mended Gaylor and Adams recommended Mulzey. Kelly asked them if the
,two men were "right," and when Long professed not to know what Kelly meant,
Kelly turned to 'Adams and asked Adams to inform Long. Adams asked Long
if Gaylor belonged to Local 731,9° and Long replied that he did.41 Adams stated
that Mulzey had joined that day. Long told Gaylor of his conversation with
Kelly, and Gaylor promised that he would join Local 731. Both Gaylor and
Mulzey obtained jobs as instructors shortly afterward48
Kelly denied the testimony of Long 98 and, Adams respecting Gaylor and
Mulzey. The testimony of Long and Adams is mutually corroborative and
the undersigned does not credit Kelly's denial.
Kelly's activities on behalf of Local 731, while for the most ,part -directed to ,
foremen and leadermen, were on at least one occasion centered on a non-super-
- 48 Later, in September , Smith joined Local 5. He,was discharged as a .result,of" the
Labor Day stoppage Martin was separated from his employment at about the same time.
48 E. L. Smith previously mentioned
44 But not until Kelly, according to his own testimony , had received a telephone call from
Copeland , the respondent 's vice-president and works manager , telling him that the com-
plaint concerning Bramlett has come to his (Copeland 's) attention , and asking Kelly if,
be knew where Bramlett was. Kelly informed Copeland that he was looking for Bramlett
and Copeland told him to discharge Bramlett when he was found.
^ Adams testified that he joined Local 731 after being told by Thomas that he would
have to do so or go back to welding Thereafter he solicited for Local 731. W. H. Brown,
a welder, and a member of Local 5, testified that Adams, in July, told him that the welders
had to join Local 731 and get on the "right side of the fence"` if they expected to continue
working in'the yard Accordingly, Brown joined that organization. Brown was discharged
as a result of the work stoppage on Labor Day
48 Adams, in his testimony, stated that he phrased the question : "Does he belong to the
right church?"
"Long testified that he knew that, in fact, Gaylor did not belong toLocal. 731, and that
he "lied" to Kelly. -
98 Both Long and Adams were discharged as the result of the work stoppage on Labor
Day ,
4° According to the record Kelly was asked if he had such a conversation with Thomas.
It is clear that counsel inadvertently used Thomas ' name in place of Long's, and that Kelly
meant to deny the conversation as testified to by Long and Adams.
HOUSTON SHIPBUILDING CORPORATION 1703,
visory employee, Foster, mentioned above as chief steward for Local 5 on Kelly's
shift. Foster testified that upon leaving a conference with Kelly and Ashburn
pertaining to Kellogg's discharge 60 Kelly remarked to Foster that the latter
was "not making enough money." Upon Foster's asking Kelly to clarify his
statement , Kelly, according to Foster,, said that Foster was capable of being
a leaderman'if'he had the "right affiliations." Foster told Kelly that he believed
that he did have the right affiliations, whereupon Kelly rejoined: "If you fellows
win maybe you can give me a job as leaderman." Foster further testified that
on various occasions when discussing grievances with Kelly the latter referred
to Local 5 as "you" and to Local 731 as "we."
Kelly's version of his conversation with Foster at the time of Kellogg's dis-
charge' was that he told Foster that he admired the work he was doing in
representing Local 5, inasmuch as, according to the provisions of the contract
with Local 5, his holding a position as steward prevented him from becoming a
leaderman. The undersigned credits Foster's version of the conversation as
against that of Kelly, and finds that Kelly made substantially the statements
attributed to him by Foster.
It has heretofore been found that Kelly was bluffing when in effect he told Snow
that he, Kelly, "had it pretty well down and understood" with Copeland that
organizational efforts in behalf of Local 731 would not be interfered with. There
Is credible evidence in the record; however,>that Kelly had the support of Zipprian,
superintendent of the welding department, and Kelly's immediate superior.
Foster, chief steward for Local 5 on Kelly's shift, testified that 2 or 3 weeks after
his conversation with Kelly, above related, Zipprian asked him why he was not
wearing a white hat 61 in the yard. Foster's further testimony was as follows :
A.... I told him that the management had not seemed particularly enthu-
siastic about making a foreman out of me. And he said that could be easy
enough arranged.
And I said: "What kind of strings are attached to it?"
And he said : "You know I imagine you and Kelly have talked about this
haven't you?"
And I said : "You mean about getting on the right side of t lie fence, the old
story?"
And be said : "That is what I mean."
And he said that since we were engaged in an unwitnessed conversation on
it that his word, was as good as mine and that any subsequent statement I
might care to make he would vigorously deny."
Zipprian admitted knowing Foster, but denied that he had ever had any con-
versation with him 5' The undersigned found Foster to be a credible witness and
finds that Zipprian made the statements attributed to him by Foster.
no Ivan Kellogg, included in the complaint, but dismissed therefrom on motion by the
Board's attorney. (See footnote 1, supra)
61 As previously stated, a white hat was the mark of a supervisory employee.
12 Foster was discharged on September 14, presumably as the result of the Labor Day
stoppage.
•51 Zipprian's denial took the following form :
Q. Do you recall that conversation with Mr. Foster?
A. I have had no such conversation ,with Mr. Foster . I never have carried on a
conversation with him. -
The latter part of Zipprian's denial discredits the preceding part. Foster, as chief steward,
had several conferences in Kelly's - office concerning the activities of J. G. Smith , a member
of Local 731, at one of which Zipprian was present. It is improbable that Zipprian took
no part in the conversation. Moreover, Zipprian's credibility Is adversely affected by his
testimony with respect to his signing the application for a charter for Local 731. Zipprian
admitted , while testifying, that he signed the application. Stout, however, as has previ-
1704 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Kelly resigned his employment with the respondent on January 4, and Zipprian's
employment with respondent ended on January 2, 1944. He is noiv employed by
the Todd Shipyards Corporation, the parent corporation of the respondent. Cope-
land, vice-president and works manager, the record as to whom contains no sub-
stantial evidence of interference with the"'organizational-efforts of the respond-
ent's employees, left the respondent's employment in December 1943.4
Nearly all of the foremen and leadermen who appeared as witnesses for the
Board, most of them, by'their own admission, active on behalf of Local 731, were
discharged by the respondent subsequently to the time of, the events testified to
by them 65 Most of these were among more than 49 leadermen and an undeter-
mined number of foremen discharged during the early part of September 1943,
as a result of the work interruption on, September 6, Labor Day. The circum-
stances attending this stoppage are not fully revealed by the record. It was
stipulated, however, and the undersigned finds, that approximately 600 of the 1300
employees on the swing shift went on a 2 or 3 hour strike, and milled about the
yard. The strike was not called by either Local 5 or Local 731, but was partici-
pated in by adherents of both organizations. The principal causes of the stop-
page were the transfers of certain employees to the wet dock, the doubling of
leadermen on overtime work, the claimed failure of some employees to receive
overtime work, and agitation for the discharge of Kelly as general foreman of the
swing shift. -
ConclusiouR
It has been found that Local 731 was created for the purpose of supplanting
Local 5, the certified union, as the representative of the employees, in the burn-
ing and welding department. Its charter was signed by several of the highest
ranking supervisory employees, themselves members of Local 469 from which
Local 731 sprung. This circumstance, in view of the right of supervisory em-
ployees to join labor organizations, membership in both Local 731 and Local 5
of-foremen and leadermmen, and the fact that leadermen were within the unit
found appropriate by the Board in its certification of Local 5, would perhaps not
alone be sufficient to support a finding of interference by the respondent with the
organizational efforts of the respondent's: employees. However, -in, their rela-
tionships with non-supervisory employees, these supervisors were representatives
of (he respondent and were bound to maintain neutrality as between competing
labor organizations and as between employee members of such organizations:
President Stout expressly' recognized this principle in his, remarks to Zipprian,
Franklin, and other supervisors who signed the charter of Local 731; i'n his letter
to Kelly on July 19 ; and in the notice posted on the respondent's bulletin boards
on July 9.
Kelly and other supervisors frequently violated the principle of neutrality as
expressed by Stout. The record leaves no doubt that Kelly, particularly with the
ously been stated, testified that Zipprian "was very sure it (the use of his name as a
,charter member of Local-731) was without his permission although the other boys had
said it was with their permission," and that Zipprian explained the use of his name by
the fact that he had been a member in long standing of Local 469, and that the names of
such members of Local 469 had been "automatically transferred" to Local 731.
54 Kelly testified that his resignation was voluntarily tendered because he "had one union
on one side giving me hell from one side, and I had another union from the other side
giving' me bell from one side, and I had the Company on top of me trying to keep me
from taking sides, and it was jusf worth more than $500 00 a month to try to stay out
there with such a big fight as was going on." The record contains no evidence as to the
reasons for Zipprian's and'Copeland's separation from employment.
55A conspicuous exception was Foreman Snow, who., as has been found, failed to solicit
the leadermen under him, though pressed to do so by Kelly.
HOUSTON SHIPBUILDING CORPORATION 1705
acquiesence of Zipprian, sought to establish Local 731 in place of Local 5 -as the
bargaining representative of the employees in the burning and welding depart-
ment. With this end in view, Kelly initiated a campaign from above to organ-
ize the second shift employees into Local 731. The foremen, and through the fore-
men the leadermen, and through the leadermen the welders, were given to under-
stand that promotions to and the retention of positions as foremen and leader-
men were dependent upon their affiliation with Local 731.
It is true that the respondent, acting through Stout, officially repulsed the de-
mands of Local 731 to discuss grievances for their members, and to use the bulle-
tin boards maintained' for the use of Local 469. Stout affirmed publicly the re-
spondent's recognition of Local 5 as the sole bargaining agent for its employees in
the burning and welding department, warned its supervising employees to refrain
from aiding Local 731, and discharged two employees for distributing a petition
on'behalf of that organization" That these measures were not without some ef-
fect is seen by the resolve of Snow, Heazley, and Proder to rely upon,the instruc-
tions of President Stout, rather than to comply with the directions given by Kelly,
their immediate supervisor. So far as other foremen and leadermen were con-
cerned, however, Stout's instructions were ineffectual in stopping encourage-
ment of Local 731.6° Most of these supervisors, including those who appeared as
witnesses, have been separated from the respondent's employment, but for rea-
sons other than their activities in behalf of Local 731 and in opposition to Local
5. Kelly, the worst offender, was permitted to resign, and there was nothing in
the circumstances attending his resignation which could have connected it, in
the minds of either supervisory or`T'iba-supe'rvisory'eniptoyees, with'his previous
unlawful conduct, or which could have been construed as a warning that the
respondent would not tolerate interference such as Kelly had engaged in. Other
supervisory employees were discharged on account of the Labor Day work stop-
page, and not as a penalty for assisting Local 731
There is some evidence in the record that Local 5 solicited members during
working hours. But even if some such solicitation occurred, it was negligible as
compared with• thesolicd'ation engaged in by .members of,Local 731. In addi-
tion, the record does not show that the respondent knew or approved of such
solicitations. `
It is clear that the activities which have been described above had the effect
of'strengthening Local 731, and of undermining the status of Local 5, the exclu-
sive bargaining representative certified by the Board.
The respondent, by the acts of supervisory employees set forth above, inter-'
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C.' The discharges
1. E. C. Davis"
Davis came to work in the respondent's shipyard in January, 1942 as a second
class welder. Thereafter he was promoted to leaderman, and in March, 1943, he
became a foreman, a position which he held until his discharge on November 15.
He joined Local 5 in 1941, prior.to his employment by the respondent. While a
leaderman lie served as a steward for that organization.. Upon becoming a fore-
6' See Heitz Co , H J v. A L R. B , 311 U. S 514, affirming 110 P. (2d) 843 (C. C. A. 6),
enforcing 10 N L R ii %., .
57 The Trial Fxaininer denied a,motl0n by the respondent' s counsel to dismiss the com-
plaint as to Dais on t'e ground that Davis, a foreman, was not protected by the Act
against discharge for uniin'niembership or activity Davis' name appears in the complaint
as Everett Day is, I
I
.i
1706, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man he ceased to be a steward and ceased attending union meetings, but continued
to pay dues. I , '
In June, 1943, according to Davis' testimony, he had a conversation with Kelly
in the latter's office during which Kelly stated that all foremen on the swing
shift on which Davis was working, with the exception of himself and one other
foreman, were members of Local 731, and that he believed that "to promote har-
mony" and to "make it one happy family" Davis should also join that union.
Davis told Kelly that he would think about it. Some time afterward Kelly asked
Davis if-,he had yet made up his mind' and=Davis told him that-he had not. , Kelly*
then suggested that he see Zipprian and talk the matter. over with him. Davis
did not do so, nor did he subsequently join Local 731.,
In August, Davis was transferred to way 1 where lie was in charge of welding
on a liberty boat. The boat was launched on September 13 On September 15
Davis was summoned to Kelly's office where Kelly told Davis that he had had
complaints about the boat, and that he was going to have to let Davis go. Accord-
ing to Davis' uncontradicted testimony Kelly did not specify the nature, of the
complaints or with whom they originated, though asked to do so by Davis. Davis
also testified without contradiction that he had never previously been reprimanded
for faulty work.
Kelly testified that Paine, general foreman of the, first shift, reported to him
that inspectors for the United States Maritime Commission had complained about
faulty work on the boat on way 1, where Davis was working, specifying Kelly's
shift as the one responsible. Paine, according to Kelly, said that Kelly "shoulddo
.something about it." Kelly further testified that Zipprian confirmed Paine's
statement as to the complaint of the Commission. Kelly admitted, however, that
he himself did not know.the name of the inspector who complained, and-that the
complaint was merely oral. Although Kelly stated that some welding work on
the boat had to be cut out, there is no evidence in the record as to the amount.
Kelly admitted that complaints from the Commission were not infrequent, and
that Davis had not previously been more at fault than other foremen in connec-
tion with faulty work on other boats. ,
Kelly denied ever telling Davis that, with the exception of Davis and one other
foreman, all foremen were members of Local 731, although he admitted that he
knew this to be the case. The undersigned does not credit Kelly's denial, and
finds that he made, in substance, the statements attributed to him by Davis.
Paine was not called as a witness, and Zipprian, while testifying, was not asked
concerning the circumstances surrounding Davis' discharge. -
Kelly's testimony as to the alleged faulty work is vague and unsatisfactory; and
without other support in the record. There is no evidence as to just what work
,was complained of, or as to Davis'.'responsibility,for it. Nor is there any evi-
dence of other foremen having been discharged by reason of faulty work, on other
boats. Admittedly, there had not been any previous similar complaint. as to
Davis.' The undersigned believes that had there been, in this instance, faulty
work serious enough to warrant the discharge of a foreman, there would also
have been a complaint of a more formal character than an oral declaration of an
inspector, particularly in view of the public nature and importance' of the re-
spondent's business, and that some record would have been made. No such
record was offered in evidence. As has been found, Kelly was engaged' iii a
campaign to supplant Local 5 by Local 731, and with this end in view had granted
promotions to and threatened demotions of foremen and leadermen, based upon
their union allegiance. He had previously, without success, attempted to per-
suade Davis, whom he admitted knowing was one of only two foremen who did
not belong to Local 731, to affiliate with that organization. , The undersigned be-
HOUSTON SHIPBUILDING CORPORATION 1707
lieves and finds that Kelly discharged Davis because of his allegiance to Local 5
and his refusal to join Local 731, and used the alleged faulty work on. Davis' boat
as an excuse. In so doing, the respondent discouraged membership in Local 5
and interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. J. C. Wharton and Ed Dawley
Wharton was , first employed by the respondent in May 1942 At the time of his
discharge "on June ' 2, 1943 he was a first class welder on Kelly's shift. He be-
came a job steward for Local 5 in January.
Dawley was first employed by the respondent - in September 1942 . At the time
of his discharge on June 3 he was working as a first class welder on the third
shift,` and was chief steward for that shift. '
During the latter part of February Wharton and Dawley were chosen -by
T{ocal 5 to represent the local in contract negotiations with the respondent. For
this purpose they obtained leaves of absence from the respondent . They returned
to work in April or May and Wharton became chief steward on his shift, while
Dawley continued to act as chief steward on the third shift.
As has been related , the grievance procedure provided for in the contract was
put into operation about May , pending the signing of the contract , and the re-
sponderit 'set aside one day a week when, for an hour or two, the stewards might
meet to discuss grievances among themselves No exact understanding was
reached, however, on how much time the stewards might otherwise take off from
work for the handling of grievances60 Wharton admitted while testifying that
this question eventually was left, by verbal understanding to the good faith of the,
stewards . He further admitted that Local 5 representatives , himself and Daw-
ley, had originally demanded that stewards receive the pay of leadermen without
specific work assignments , a demand which the respondent refused. It is clear
from the record that stewards tended , to put in more time handling grievances
and less time on their jobs than their foreman believed they should After
several controversies with foremen , Wharton, on May 11, obtained from Cope-
land, respondent 's vice -president and works manager, a letter which stated that-
Wharton was "to be permitted to handle grievances " for Local 5, but left still
undetermined the question of the amount of time which he and other stewards
might take for that purpose . Wharton admitted that thereafter he was repri-
manded several times about devoting too much time to the affairs of the local,.
and that he "might have" said on one occasion that if necessary he would spend'
, 8, hours a day handling grievances.
On June 2 Wharton was called to the office of his foreman, , and told that'he was-
being discharged that afternoon 60' He was handed a discharge slip giving as the,
reason : "Will not stay on job " Wharton took the matter up with Copeland and_
with Wilson , business agent for Local 5, and on June .5 Local 5 filed the original
charge in the-instant matter , at the Board ' s Regional Office. On June S Wharton,
was reinstated upon the condition , imposed by Copeland , that he would not there--
after function as a steward for Local 5 On June 28 WVharton, voluntarily left
the respondent 's employment and devoted all his time to representing Local 5.
as its business agent.
08 The third shift worked from 11 : 30 p m to 7 : 30 a. m.
69 The contract provided . "All stewards and committeemen shall be allowed time from-
their regular shifts for the necessary performance'of their duties as outlined herein."
00 Wharton admitted that Slaughter, a steward for Local 731, was discharged at approxi-
mately the same time that he and Dawley were, because of a complaint of Wharton that-
Slaughter was soliciting for Local 731 in the yard.
-1708 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD -
Dawley's controversies with his foreman over taking time off to handle griev-
ances on the third shift, were similar 'to those of Wharton on the second shift.
Dawley, however, testified that he had been informed by, Wilson and Wharton'
that they had made an arrangement with Cope] and, whereby stewards might take
two hours on each shift to "establish the grievance" apparatus. There' is no
substantial evidence in the record that any such definite arrangement.was made "
Five or six days prior to Dawley's discharge be was caught off his job by Befeld,
shift foreman, who reprimanded hint. Dawley mentioned the purported arrange-
ment with Copeland and asked Befeld if lie had received a letter from Copeland
verifying it. Befeld replied that he had not and stated that Zipprian, super-
intendent of the welding department, would decide the matter, and Dawley
demanded that Befeld send'Zipprian to him.
Dawley was in the habit of wearing a white hat, similar to that worn by most
employees in the yard, except that Dawley s hat was painted white, (the insig-
nia of a foieman) with "Third Shift Steward Local No. 5" in green lettering.
Five nights prior to his discharge Burchick, Dawley's leaderman, or orders from
.Befeld, told Dawley to go to the paint shop and have his hat repainted. It is
apparent that Dawley was so ordered that he might not be mistaken for a super-
visory employee Accordingly, Dawley asked the shift painter to, repaint the hat
green, with white lettering 63
Dawley absented himself without permission from work during the entire
night of June 2, to attend.to the affairs of Local 5. On the following night,
upon reporting for work, Burchick told him he was to be discharged. and that
,`Befeld-wanted 'to see him. Dawley's testimony as- to- his conversation. ,:ith
Befeld was as follows :
Q All right, when you got to see Mr. Beefeld (sic), what did,you'say or
what did he say?
A. I went over to him and I said, "Beefeld, I understand you are looking
for me to fire me."
He swung around on me. He said "'What is the idea of leaving that hot
job last night?"
I said, "Why Beefeld you know what the score is on that. I thought you
were going to get in touch with Copeland," and I reminded him of the fact
that he told me Z;ppii.an was going to be there and Zipprian had never showed
up on the other night I was telling you about. I told him that it seemed to
me, since I was under his orders that that was a matter for him to straighten
out between himself and his superiors . . .
Burchick says,63 "Well I am going to give you your ticket." . .
Dawley filed a charge with the Board's Regional Office at Fort Worth,along
with Wharton, was reinstated'on June 8, with Wharton, and continued with his
duties as chief steward on his shift.
Four or five days after his reinstatement, Dawley, according to his testimony,
"found it necessary" to go to Corpus Christi, Texas, as a preliminary to attend-
ing a union convention in St. Louis, Missouri. Dawley's testimony as to his
leaving, and as to his failure to return to the yard was as follows : ,
61 Wharton's testimony contains no refeience to any such ari angement
62 In fact, however, the painter, who was a steward for Local 731, returned Dawley's
hat with the simple legend "steward" superimposed on it, to Daiuley's obvious annoyance
This incident is related only because of the light it throws on Dawley's conception of his
privileges as an employee and as a steward for Local 5
6a Dawley's inadvertent substitution of Burchick's name for that of Befeld was corrected
by his later testimony.
HOUSTON SFIIPBfIILDIIVG COE.PORATIO}V 1709
Q. What I mean is : did you voluntarily quit or did you get discharged
again?
A. No, there was a mixup there, Mr. Proctor. . . . We understand that
our Business Agent, Mr. Wilson, was to inform the company that it was neces-
sary for me to, go on leave' again on union business to attend a convention
that was being held in St. Louis, and I went on in the good faith that that
had been done. I was later informed that Mr. Wilson had never undertaken
to take care of that, obtaining that leave, I had to leave in a rush. It was an
emergency, and Mr. Wilson never attended to that.
* * * * * * *
Trial Examiner RuoxEL. You didn't try to go back to work?
A. No, sir-I didn't see any purpose.
Trial Examiner RuaKI. Well, why do you say you didn't see any,
purpose in going back to work? _
A. Well, because . . . I had been ouf to go to work for Local 5 and I
balanced the two together and decided I would be more service to Local 5
than to the Houston Shipyard.
Trial Examiner Rucxut. You had already been reinstated after this
former separation. Didn't it occur to you that you might be reinstated after
this mistake' was straightened out?
A. Oh, I could have got reinstated I imagine , but the previous reinstate,
ment was not satisfactory .. .
The undersigned finds that the manner and sequence of Dawley's testimony were
designed to leave the impression that he was discharged as a result of his going to
St. Louis, and affects his credibility as a witness. His testimony as a whole
reveals his irresponsibility as an employee and his dominating'interest in the
affairs of Local 5, and substantiates the respondent's contention that Dawley was
discharged on June 2, because of his repeated absences from his job, and not by
reason of his legitimate activities on behalf of Local 5. The undersigned con-
cludes and finds, also, that Wharton was discharged on June 3 because he devoted
too much time to the affairs of Local 5 when he should have been at work, and
not because of his legitimate activities on behalf of Local 5.
3. M. B. Beazley and W. M. Owen
Beazley came to, work for the respondent in November or December 1941. At .
the time of his discharge on December 2, 1943, he was working as a first class.
welder on slab 4, on the first shift."' At that time his foreman was Stovall and
his leaderman, Young. .- The general foreman of the slabs was Franklin. Young,
Stovall and -Franklin were all members of,Local 731. Beazley joined Local 5
in December 1942, and became a steward in March or April, 1943 In June, 1943,
he was appointed chief steward for the first shift.
Beazley testified that on one occasion Franklin, who was then Beazley's leader-
,man, told him,that if he "ever caught anyone talking anything but A. F. of L."
he would, discharge him. On a later occasion, while attempting to adjust a-
grievance with Zippriau, Zipprian, according to Beazley's testimony, asked the
latter why he "took the attitude" he did toward union organization, and Beazley
repeated what Franklin had told him,' and stated to Zipprian that if he, like
14 The first shift worked from 11 : 30 a. in to' 7 p. in. A slab is an area built up on piling
behind a way . Sections of 'a boat are fabricated on the slab , prior to being moved by a
-crane to the way.
587784-45-vol. 56-109
1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beazley, had "been kicked around a little bit" and had been told not to talk
about any union other than the A. F. of L. under penally of discharge, he, Zipprian,
would, feel the same way Beazley did. Zipprian replied, that he did not blame
Beazley "in a way", and reminded him that he, Zipprian, had not been superin-
tendent when Beazley's conversation with Franklin had taken place.
Franklin denied the conversation testified to by Beazley. Zipprian, while
testifying, was not asked concerning Beazley's repetition to him of Franklin's
statement to Beazley. The undersigned finds that Franklin made to Beazley
substantially the statement testified to by the latter.
,On a later occasion, but prior to June 1943, when Beazley was off his job talking
to his chief steward, he was seen by Franklin who had by then become general
foreman of the slabs. Franklin reprimanded Beazley for absenting himself from
work and Beazley claimed that he had the right to do so Franklin then asked
Beazley, according to the latter's testimony, which the undersigned credits, why
he belonged to Local 5, and Beazley reminded him of his former warning not to
talk about any_ union but the A F. of L and told Franklin that that incident had
"sold" him on Local 5
i Beazley testified that in March or April 1943, when he was working on way
No. 9, and when Befeld, at that time. a way foreman on way No. 5, was trans-
ferred to way No 9, Befeld stated to a group which included Beazley that he
was "going to break up that Local 5 on way 9" Befeld, while testifying, denied
making this statement. ' The undersigned credits Beazley's testimony on this
point and discredits that of Befeld.
Beazley was discharged on December 2 allegedly for violating a rule requiring,
welders to turn in their rod boxes 65 to the tool room ° at the end of their shift.
This rule was of long standing and known to every welder.' On occasion, how-
ever, welders would place these rod boxes in their own lockers under the slabs,
obviously so as to save the time required to check them in at the toolroom. As
a result, the respondent occasionally found it necessary to demand that foreman
and leaderman obtain a more strict observance of the rule..6'
Stovall testified without contradiction, and the undersigned finds, that in Sep-
tember, when Beazley was working under another foreman, Stovall asked him,
as chief steward, to speak to Owen, who was working under Stovall, about check-
ing in his rod box. Stovall told Beazley that Owen, though a good welder, was
careless about turning in his rod box, and that he was going to give Owen one
more warning, but that if Owen and other welders were not more careful in this
respect they were going to be discharged.
'At a regular meeting of foremen and leadermen on December 1 Stovall issued
them copies of the following order.
There is entirely too much loss of time at the change of shifts. All welders
are to weld up to the 11 o'clock whistle and be back on the job and ready to
go to work at 11:30 See that all welders stay on the job and work up to
3:25, and do not cross the railroad track encircling the main office building
before the last whistle.
The rules will be enforced and the leadermen will be held responsible.
(",The rod boxes contained welding rods and other equipment . Frequently the box and
the rods would be used,by a welder on the following shift.
66 The tool room where Beazley was required to turn in his box was approximately 100
yards from the slab where lie worked.
67 For example , on June 28, Zipprian circulated an ,order among the foremen which
stated among other things that :
"No welder or helper will leave the job before the Five Minute quitting whistle. Each
weldei must turn in his own individual rod box to the tool room.
HOUSTON SHIPBUILDING CORPORATION 1711.
At the same time Stovall again warned the foremen and leaderman to see that
all tool boxes were checked in at the tool room.68 Accordingly, Young, Beazley's
leaderman, over his own signature, wrote the following warning at the bottom
Starting today, Dec. 1st, each welder will remain on the job until the 3:25
p. m: whistle blows and will not roll up his lead until that time. You must
check your box in the tool room each and every day. You must number aiad
clean every weld' you make. [Italics in original.]
Young obtained the signatures of Beazley and the other welders to Stovall's
and Young's order.
On the morning of December 2, when he went off duty, Beazley, instead of
turning in his rod box at the tool room as ordered by Stovall and Young, placed
it in his own tool box under the slabs. He testified as follows as to his1reasoa
for doing so :
. . . The primary reason why I placed my rod box in my own tool box in-
stead of placing them (sic) in the tool room, as the company had this old'
obsolete rule on it, was for the reason, being chief steward, it was neces-
sary for me at times during the day to communicate with Mr. Zipprian and'
the various foremen on the job, which would necessitate my leaving the job
a number of times during the day, and I simply made it a policy whenever F
was going to be gone any length of time to put them in my own private tool
box. [Italics supplied ] -
Stovall called Beazley to his office, reminded Beazley of the rule and of the order
which Beazley had acknowledged the previous day, and asked him why he had
not checked his rod box at the tool room. Continuing his direct examination.
Beazley testified that he replied to Stovall as follows :
I told him that I had not put it up for the reason that after working
those sixteen hours' two days it just simply slipped my mind and I was
so worn out and I wanted to get home, and it was not intentional whatsoever."
[Italics supplied.]
Stovall took Beazley to the office of the personnel director where they talked
to McQuay,' Ashburn's assistant. Stovall stated that so far as he was concerned
Beazley was discharged. Beazley called Wharton, then business agent for' Local
5, to the office, and Wharton asked McQuay for the names of other welders dis-
charged along with Beazley for violating the rule. Stovall, according to Beazley's
testimony, replied that there "would be" others, and Beazley admitted that six or
seven other welders, including Owen, were discharged the same 'day for the same
reason, some of whom were not members of Local 5'0 Wharton, on leaving the
personnel office, took up the matter of Beazley's discharge with President Stout,
but the discharge remained in effect.
The fact that Beazley was a chief steward for Local 5, that Stovall, Young, and,
Zipprian were all members of Local 731, and that Stovall on a previous occasion
63 The matter of working until the whistle blew was closely related to checking in rod'
boxes at the tool ioom. If welders complied with this rule they of necessity had to stay
on the job until the end of the shift. On the other hand, if boxes were placed under the
slabs the welders could leave a few minutes earlier.
66 Beazley had worked a double shift on the two previous days.
,°Beazley testified that these others were discharged an hour or two after he was,
and that their names were on a list which Stovall gave Stout in the latter's office . Beazley
was not present in Stout 's office, and Wharton did not testify on the point . The inference
that the discharge of the other welders was determined upon only after and because of
Wharton's request for their names , is not warranted by the evidence.
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had said, that he was "going to break up" Local 5 , raise the suspicion that Beazley
was discharged on Stovall 's recommendation because of his union membership.
and activity , rather than because he admittedly violated a rule of the respondent.
Stovall's statement ,' however, was made 6 months prior to Beazley 's discharge.,
In the meantime the respondent had signed a contract *ith, Local 5, and there
is no 'evidence in the record of any encouragement of Local 731 'or 'discourage-
ment of Local 5 subsequent to that event . Beazley admitted that when Young
obtained his signature to Stovall 's order he said, in substance , that it was "a
bunch of foolishness " This, taken with his testimony , noted above , that he
made a practice of violating the rule so as to facilitate the handling of grievances
for Local 5, renders it fairly clear that Beazley's violation of the rule was
deliberate.
Owen came to work for the respondent in April, 1942 At the time of his dis-
charge on December 2, 1943, along with Beazley and others , allegedly for viola-
tion of the rule relating to checking in rod boxes , he was employed ' on the first
shift, under Foreman Stovall and Cominiski , his leaderman . He was a member
of Local 5 , but the record does not disclose that he was active in its affairs. He
testified that in July 1943, John Franklow , then his leaderman , told him that he
would like to see Owen made a inspector , but that he, Owen, was "on the wrong
side of the fence ," which Owen understood had reference to his membership in
Local 5. Franklow was not called as a witness , and the undersigned accepts
Owen 's testimony on this point as true.
'Owen admittedly did not turn his rod box in at the tool room after finishing
his work on December 1. He advanced no excuse for not doing so, and admitted
that during the previous July, when he had similiarly failed, he had been warned
about the rule.71 Cominiski , on the morning of December 2, asked Owen42 if he had
turned in his box, and when toold that he had not directed Owen to report to Zip-
prian's office . Zipprian 's clerk told Owen that he was discharged for failing to
obey orders . Wharton and Owen appealed the discharge to Stout who told them
that although the respondent needed welders it was necessary " to make a sacrifice
of a few to set an example."
The undersigned believes and finds that neither Beazley nor Owen was selected
for discharge because of his membership in Local 5, but that they were dis-
charged because of their violation of a rule of the respondent.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES'UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with its operations 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.
V. THE REMEDY
Having'found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and that it
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
71 It is not clear whether that was the* occasion , previously mentioned, when Stovall
requested Beazley to warn Owen.
72 The record shows that leadermen, in the enforcement of the rule, frequently obtained
the names of welders who had not turned in their rod boxes from the tool room foremen.
HOUSTON SHIPBUILDING CORPORATION 1713
.'The undersigned ,has found that the respondent has discriminated against E.
0. Davis in regard to the hire and tenure of his employment. He will therefore
recommend that the respondent offer Davis immediate and full reinstatement to
,his former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges. He will further recommend that the respondent
make whole Davis for any loss of pay he may have suffered by reason of the re-
spondent's discrimination against him by payment to Davis of a sum of money
,equal to the amount which he normally would have earned as wages during the
period from November 15, 1943, the date of his discharge, to the date of offer of
reinstatement, less his net earnings n during said period.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Weldors, Cutters, and ,Helpers of America, Local 5
(unaffiliated) ; International Brotherhood of Boilermakers, Iron Shipbuilders,
Welders, and Helpers of America, Local 469; International Brotherhood of
Boiler Makers, Iron Shipbuilders, Welders-and Helpers of America, Local 731;
and Houston Metal Trades Council, are labor organizations within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of E. C.
Davis, thereby discouraging membership in United Brotherhood of Weldors, Cut-
ters and Helpers of America, Local 5, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section' 8 (3) of the
Act.
3. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Houston Shipbuilding Corpora-
tion, Houston, Texas, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Brotherhood of Weldors, Cutters,
and Helpers of America, Local 5, and encouraging membership in International
Brotherhood of Boiler Makers, Iron Shipbuilders, Welders and Helpers of
America, Local 731, by discharging or refusing to reinstate any of its'employees
18 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.
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or by otherwise discriminating in regard to their hire or tenure of employment,
or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
United Brotherhood of Weldors, Cutters, and Helpers of America, Local 5, or•any
.other labor organization, to bargain collectively, through representatives of
their own choosing, and to engage in concerted activities for' the purpose of col-
lective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2 Take the following affirmative action, which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to E. C. Davis immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
(b) Make whole E. C. Davis for any loss of pay lie may have suffered by
reason of the respondent's discrimination against him by payment to him of a
sum of money equal to that which he would normally have earned as wages
during the period from November 15, 1943, the date of his discharge, to the date
of the respondent's offer of reinstatement, less his net earnings during said
period ;
(c) Send letters to all of its supervisory employees, stating that the respondent
will not perniit anti-union declarations or activities directed against membership
in United Brotherhood of Weldors, Cutters, and Helpers of America, Local 5, or
any other labor organization of its employees, and instructing them that promo-
tion to or retention of positions as leadermen and foremen will not be made con-
tingent upon membership in any labor organization, and take effective action
to enforce its instruction ; '
(d) Post immediately in conspicuous places throughout its plant in Houston,
Texas, and maintain for a period of not less than sixty (60) consecutive days
from the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a) and (b) hereof; (2) that it will take the affirmative
action set forth in paragraph 2 (a), (b), and (c) hereof; and (3) that the
respondent's employees are free to become or remain members of United Brother-
hood of Weldors, Cutters, and Helpers of America, Local 5, and that the
respondent will not discriminate against any of its employees because of member-
ship in or activities on behalf of that organization ;
(e) Notify the Regional Director for the Sixteenth Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that unless on or, before twenty (20) days from
the receipt of this Intermediate`Report the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid. ,
It is further recommended that the allegations of the complaint as to the dis-
charges of J. C. Wharton, Ed Dawley, M. B. Beazley and W. M. Owen be
dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, 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
HOUSTON SHIPBUILDING CORPORATION 1715
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D. C. an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate 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 other 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 within
ten (10) days from the date of the order transferring the case to the Board.
HORACE A. Ruc*Er,,
Trial Examiner.
Dated March 29, 1944.
I