Keystone Ship Engineering Co.

National Labor Relations Board - Board Decisions

Aug 11, 1955

113 N.L.R.B. 596 (N.L.R.B. 1955)

596 DECISIONS OF NATIONAL LABOR RELATIONS,BOARD
Thomas Winters, Herman Kosove and Aisik Brener , Co-Partners
d/b/a Keystone Ship Engineering Company and Edward J.
Hollins. Case No. 4-CA-1061. August 11, 1955
DECISION AND ORDER
On February 15, 1955, Trial ,Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exception and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has' considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the Respondents' exceptions.
The Trial Examiner found that the Respondents unlawfully dis-
charged the complainant, Edward J. Hollins. The Respondents ex-
cepted to this finding on two grounds: (1) That Hollins was dis-
charged for his "blackmail" threat to Respondent Winters and that
for this reason the discharge was for "cause"; and (2) that the Gen-
eral Counsel did not sustain the burden of proof that Hollins was dis-
charged for engaging in protected activities.
Hollins was elected a shop committeeman for the riggers at noon on-
March 18, 1954. At that time, Richards, who was the union steward'
for the whole yard, informed Hollins that his duties as shop com-
mitteeman would consist of reporting the riggers' grievances to Rich-
ards for presentation to the Respondents. In the absence of Richards
from the yard on March 22, Hollins met Respondent Winters, a partner
in charge of personnel and operations, and asked him if he knew that
Hollins had been elected shop steward for the riggers. Winters re-
plied that he did not. Hollins then submitted to Winters a list of
grievances. The list included grievances with respect to "filthy
'toilets," delay in delivering paychecks, and the failure to pay machin-
ists for half an hour time which they claimed to have spent at work.
Winters asked Hollins a few questions about these grievances, said
that he "would take care of this" and would let him know, and walked
away. Winters at once sought out a pipefitter in the yard, whose duty
was to maintain the toilet facilities, and asked him to examine them.
Winters also telephoned Union Agent Loughney and informed him of
'his conversation with Hollins. Loughney assured Winters that Hol-
lins had no official status and told him not to take grievances from
Hollins. Winters did not inform his partners of Hollins' presentation.
113 NLRB No. 64.
KEYSTONE SHIP ENGINEERING COMPANY 597
of grievances until after his second meeting with Hollins the same
afternoon.
At 3: 30 p. m: that same day Hollins again approached Winters and
inquired about the grievances. Winters replied that the Respondents
would have to hire another girl to expedite the distribution of pay-
checks and that he would advise Hollins on this matter later. Hollins
then called Winters aside beyond the hearing of nearby workers and
said to him, "You better be a good boy or else." Winters asked,
"What do you mean [by] or else?" Hollins replied, "Or I'll tell your
partners about you and that droop [Winters' brother] stealing the
boiler scrap down on that Carter Street job." Disturbed by Hollins'
threat Winters at once sought out his partners. At a conference among
the partners, which took place at about 3: 45 that afternoon, Winters
informed his partners of Hollins' threat and the partners reached the
decision to discharge Hollins. Hollins was discharged the next day,
March 23.
The Trial Examiner found that Hollins' threat to Winters to inform
his partners of his brother's alleged participation in the theft of the
boiler scrap was "a motivating factor" in Hollins' discharge, and that
since it was a "form of insubordination" the discharge would have been
justified even though Hollins at the time of making the threat was,
acting in the capacity of shop committeeman. However, the Trial
Examiner also found that Hollins' threat was not the sole motivation
for the discharge, but that Hollins' collection and presentation of
grievances as shop committeeman "loomed at least as important, if
not more so than the threat of March 22 in the [Respondents] decision
to discharge him." He concluded therefore that because one of the
motivating causes of the discharge was based on an unlawful reason,,
the discharge was in violation of Section 8 (a) (3) of the Act.
In arriving at the conclusion that Hollins' presentation of grievances.
was a contributory cause of his discharge, the Trial Examiner relied
primarily upon : (a) His finding that although this matter was not
discussed by the Respondents at their March 22 conference until after
they had reached the decision to discharge Hollins for his threat to
Winters, the Respondents, or at least Winters, was aware of Hollins"
election as shop committeeman for the riggers and his subsequent ac-
tivities in that capacity, and therefore the fact that he presented
grievances directly to Winters must have entered as a factor in the
Respondents' decision to discharge Hollins; and (b) his conclusion
that Winters' and Brener's reference to Hollins' conduct in the shop
as "pulling his weight" among riggers, "agitation," "buzzing" around,
and inciting complaints against the Respondents, and reliance by the,
Respondents upon such conduct as an additional reason for the dis-
charge, warrant a finding that it was Hollins' collection and presenta-
tion of grievances which in their minds branded him an "agitator."
We do not agree.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming that all the partners knew of Hollins' election as,,shop
committeeman and his subsequent activities in that capacity before
they reached the decision to discharge him, it does not follow that
Hollins' protected activities furnished additional motivation for his
discharge. Hollins' misconduct was serious enough to foreclose any
speculation that it was used as a "pretext" to get rid of Hollins be-
cause of his protected activities or because the Respondents needed any
additional motivation for the discharge. Indeed, the Respondents
took a very serious view of the incident. Winters reported to his
partners that Hollins was trying to hold the scrap deal and Winters'
brother's part in it as a club over his head. Respondent Kosovo
observed that whether or not Winters' brother sold the scrap and failed
to account for the money was beside the point, that they did not want
any employee around who would talk to his Employer that way, and
that they must get rid of Hollins. Questioned at the hearing by the
Trial Examiner as to what it was about the incident that "perturbed"
him so much, Winters testified that Hollins was "trying to bully [him]
the employer, and that it was more than [he] can stand," and further :
"I, as his employer . . . don't want no employee to speak to me along
the lines that I had better be a good boy for himself or anybody else.
And when he told me that I had better be a good boy or he would
speak to my associates to try and get my brother and I in trouble, as
he thought, that is all the pressure I need to discharge any man in
my employ."
Nor does the record indicate that the Respondents were unduly
disturbed by Hollins' collection and presentation of grievances so as
to warrant an inference that Hollins' discharge might have been in
retaliation for his protected activities, or that they in fact, interfered
with, or denied him, his right to engage in such activities. When
informed by Hollins that he was elected shop committeeman for the
riggers, Winters not only accepted Hollins as a spokesman for the
group and dealt with him concerning these grievances, but took im-
mediate steps to satisfy one of them. Winters continued to deal with
Hollins as a spokesman for the group even after he was informed by
Union Agent Loughney that Hollins had no official status, and was
told not to deal with him. When Hollins approached Winters for
the second time and asked Winters what he was going to do about
the grievances and particularly the request for earlier payments,
Winters said that they would have to hire another girl to expedite
such payments, and he would let Hollins know. Thus, there was
nothing in Winters' behavior in dealing with Hollins to suggest that
the subsequent discharge of Hollins was in retribution for his pro-
tected activities. While it may be true that the Respondents were
annoyed by Hollins' activities as a spokesman for the riggers, yet,
this would not be entirely unjustified. The Union had already desig-
nated Richards as steward for the whole yard, and Loughney ad-
vised Winters that he need not deal with Hollins.
KEYSTONE SHIP ENGINEERING COMPANY 599
Moreover, contrary to the Trial Examiner, we find no sufficient
basis for equating Hollins' "agitation," to which Respondents Winters
and Brener referred in their explanation for the discharge, with
Hollins' protected activities. There is nothing in the record to show
that Hollins had engaged in any protected or union activity prior to
his election as shop committeeman for the riggers. Yet there is
evidence, credited by the Trial Examiner, that Respondents Winters
and Kosove looked upon him as an "agitator" even before his election
to that position. Hollins' election as shop committeeman took place
a few hours after his reinstatement following his layoff the day before
for alleged drinking and sleeping on the job. Although the charges
were not proved, Winters and Kosove opposed Hollins' reinstatement
on the ground that he was a "troublemaker" and "agitator." They
finally gave in to Brener's insistence on- reinstatement -because of his
contention that Hollins would profit by his experience. However,
they consented with the reservation that they would watch his behavior.
We also note that Hollins testified that he was informed by Brener
on March 19, apparently following the partners' discussion of Hollins'
reinstatement, that Winters had called him "an agitator." That
Winters' and Kosove's references to Hollins' "agitation" at the con-
ference at which the decision was reached to discharge Hollins, were
intended to describe Hollins' unsatisfactory behavior as an employee
rather than his collection and presentation of grievances is indicated
also by Superintendent Kirchoff's uncontradicted testimony as to
Hollins' conduct before March 18. Kirchoff testified that on one oc-
casion when he ordered Hollins and other employees engaged in an
argument to leave the ship on which they were working, Hollins said :
"What you need is a punch in the nose" ; that on another occasion
when he told Hollins and others to 'calm down, "break up the group,"
and go back to work, Hollins swore at him and told him to "scram";
that still on another occasion Hollins said that he would throw him
(Kirchoff) off the drydock; and that on several occasions he asked
Winters to discharge Hollins.
As we'•agree with the Trial Examiner's finding that Hollins' threat
to Respondent Winters to' expose to his partners his brother's alleged
participation in a theft was a motivating reason for his discharge and
as we find that the record fails to establish that Hollins' collection and
presentation of grievances was an additional reason for his discharge,
we do not adopt the Trial Examiner's finding that Hollins was dis-
charged in violation of Section 8 (a) (3) of the Act.
Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
3 7 9 2 8 8-5 6-v of 113--39
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The sole issue in this case is whether or not Thomas Winters, Herman Kosove
and Aisik Brener, Co-Partners d/b/a Keystone Ship Engineering Company, herein
called the Respondents, discharged Edward J. Hollins on March 23, 1954, because
he engaged in concerted or union activities, in violation of Sections 8 (a) (3) and
(1) and 2 (6) and (7) of the National Labor Relations Act, as amended,'61
Stat. 136, herein called the Act. The issue arises on a complaint issued-October
6, 1954, by the General Counsel of the National Labor Relations Boafd, herein
called General Counsel and the Board, through the Board's Regional Director for
the Fourth Region (Philadelphia, Pennsylvania), on the basis of a charge duly
filed by Edward J. Hollins, and the answer of Respondents which denied the com-
mission of any unfair labor practices and contended that they discharged Hollins
for good cause.' Pursuant to notice a hearing was held in Philadelphia, Pennsyl-
vania, on November 10, 12, 18, and 19, 1954, before the duly designated Trial
Examiner, at which all parties were represented by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, and to make oral argument and file briefs. At the
close of General Counsel's case-in-chief, the Trial Examiner denied Respondents'
motion to dismiss the complaint for lack of proof. At the close of the General
Counsel's rebuttal testimony, the Trial Examiner denied Respondents' offer of cer-
tain proof in sun ebuttal. The Trial Examiner reserved decision on Respondents'
final motion to dismiss the complaint on the merits; that motion is disposed of by
the findings and conclusions in this report. Both parties presented oral argument
on the merits, but did not file written briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
J
1. THE BUSINESS OF RESPONDENTS AND STATUS OF THE UNION
At all times material herein, Respondents Thomas Winters, Herman Kosove, and
Aisik Brener have been copartners duly existing and doing business und'er-the name
and style of Keystone Ship Engineering Company in accordance with the laws' of
Pennsylvania, with their principal office and place of business in Philadelphia, Penn-
sylvania, where they have been and are engaged in the repair and maintenance of
ships, including ships of the United States Navy. During the 12 months' period
since September 1953, when the partnership was created, Respondents have per-
formed repair and maintenance work on United States Navy ships amounting in
value to more than $300,000. I find from these facts that Respondents have been
and are engaged in commerce within the meaning of the Act.
Local 803, International Brotherhood of Boilermakers. Iron Shipbuilders, Black-
smiths, Forgers and Helpers of America, AFL, herein called the Union, is a labor
organization within the meaning of Section 2 (5) of the Act, which admits to
membership employees of Respondents?
II. THE UNFAIR LABOR PRACTICE
At the time of his dischage in March 1954, Edward J. Hollins was employed as
a rigger in Respondents' shipyard. He was a member of the Union, which repre-
sented employees of all crafts in the yard. Anthony J. Loughney , also known as
"Whitey" Loughney, was the business' agent of the Union, and Myles W. Richards,
a machinist employed by Respondents and known among the men as "Smokey"
Richards, was the union-shop steward for the whole yard.
Respondents contend that Hollins was discharged for various reasons connected
with his work, which will be considered in detail below. General Counsel contends
that he was discharged because he processed grievances as shop steward or commit-
teeman for the riggers and other crafts on March 19 and 22, 1954, following his
election to that job on March 18, 1954. A subsidiary issue is, whether that election
was legal and Hollins' subsequent processing of grievances was legal, bona fide,
and protected union activity, as claimed by General Counsel, or was illegal and un-
protected because it was contrary to the terms of a collective-bargaining agree-
ment with the Union which Respondents claim was in existence and controlling
at the time of discharge. These issues require a review of Hollins' entire employ-
"The charge, complaint, and notice of hearing thereon were duly served on Respond-
ents and the Charging Party.
2 The name of the Union is stated as it appears in documentary evidence in the record.
KEYSTONE SHIP ENGINEERING COMPANY 601
ment , but as the bulk of the testimony and main arguments of the parties center
on his activities between March 18 and 22, inclusive, I shall consider the events
of that period first.
A. The discharge and events preceding it
On March 16 , 1954, Respondents were engaged in repair and maintenance work
on the Cefalu , a cargo vessel tied up at a pier in another part of Philadelphia. In
the course of the work, Respondents had removed a broken steam generator casing
from the vessel and repaired it in their yard . On the 16th the casing was ready for
reinstallation , and on the late afternoon of that day , Thomas Winters selected a
crew of three machinists and Riggers Hollins and George V. Bochanski , to do the
job. Winters placed Machinist Irving Larsen in complete charge of the job and
told the riggers he would be their supervisor . The machinists went to the Cefalu
after supper and in the meantime the two riggers hoisted the casing onto a truck
at the yard . Thereafter Hollins rode to the vessel in the truck with Al Winters,
the truckdriver and brother of Thomas Winters; Bochanski drove down in his
own car . While en route, the truck was stopped by Robert Kirchoff , Respondents'
yard superintendent , who told Hollins that when the riggers had moved the casing
into the engineroom their work was done , they should leave the ship, and that the
machinists would handle the job from there on. When Hollins arrived at the ship,
he told Bochanski and Larsen of Kirchoff 's instructions . Larsen had already received
word from another man that he would have to do the job with three machinists
already on the boat .3 Dissatisfied with this , he called Thomas Winters on the phone
about 7 p . in. and told Winters he wanted to use the two machinists he had brought,
as they had the proper tools, and to keep the riggers on the job to help out as long
as he felt it necessary , to complete the job . Winters agreed to this, and Larsen
then returned to the crew and informed them they would stay on the job. Bochanski
then mentioned Kirchoff 's order regarding the riggers , and Larsen told him he was
in complete charge of the job and would release the riggers when he saw fit. The
riggers then transferred the casing from the truck to the deck of the ship and
thence down to the engineroom . It took them about 3 hours to do this ; the cas-
ing was a heavy , bulky piece , weighing over 500 pounds and measuring about 3
feet high by 3 feet wide and 41/2 feet long; the riggers had to move it on a dolly
along the deck to a passageway, and then move it long 2 passageways , through
2 doors, and down 1 flight of stairs into the engineroom by means of chain hoists
and falls; in the engineroom , they lowered it into position on a foundation. Then,
they had to raise and lower it several times while the machinists filed and checked
the bearing surfaces to insure a proper seat and tight fit; after fitting , both riggers
and machinists worked together to fasten down the casing with bolts; the riggers
then lowered heavy cylinder tops into place with falls and helped the machinists
bolt them down , assisted the machinists in replacing and fitting pistons with bearings,
replacing other components , and in refitting piping and other connecting items to
the unit . The- job was completed about 7 : 30 a. in . on the 17th ; the crew re-
turned to the shipyard about 9 a. in. and then went home . The riggers worked
at all times under the direct supervision of Larsen.
When Hollins and Bochanski reported for work the morning of March 18, Thomas
Winters discharged both, claiming they had been sleeping and drunk while on the
Cefalu job . Both men denied the accusations and Hollins immediately sought out
the union business agent , Loughney, who was at the yard , and asked him to inter-
cede with management . Loughney gathered together Hollins, Bochanski , Larsen,
and, several other members of the crew on that job , and took them to the yard of-
fice, where he asked Respondent Brener to reinstate the riggers . Thomas and Al
Winters were present during the discussion . Brener charged that the two- riggers
had been drunk and sleeping of the job, but they again denied it, saying they had
worked all night . Larsen supported them, telling Brener neither man had been
drinking or asleep , and Loughney indicated he believed the riggers . Brener then
asked those present to tell him who was drunk or asleep on that job, and he would
fire him , he did not care who it was. None of the men answered him? Brener then
3 These machinists had worked on the boat during the day and had been left on the job
by Kirchoff when he left the boat at the end of the day.
* Later that day, Larsen told Winters privately that Al Winters had been the only one
asleep and drinking on the job . The same day , Hollins also told Brener privately that
Respondents had the wrong information about the job, that Al Winters was the culprit,
that Thomas Winters was trying to " take it out on me" instead of his brother , and thus
trying to cover up for his brother. I find from uncontradicted testimony of Larsen and
Bochanski that Al Winters fell asleep on the ship during the job and appeared to have
been drinking.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed the matter with his partners and they finally agreed to reinstate the rig-
gers, which was done about 9 a. m. that morning. The above findings are based on
credible and mutually corroborative testimony of Hollins, Bochanski, and Larsen,
which is supported in part by testimony of Kirchoff and admissions of Brener, Win-
ters; and Kosove; other testimony of the three partners and Kirchoff in conflict there-
with is not credited because none of them were present during the operation, and
their testimony on it was mostly opinion and conclusions not supported by facts or
testimony of officers of the vessel on whose reports they relied in charging Hollins
with misconduct.
About 10 a. in. the same morning, Bochanski and Hollins approached Shop Stew-
ard Richards in the yard and asked if a meeting could be held for the election of
a shop committeeman for the riggers. Richards agreed to hold it, saying he would
get the men together in the washroom at dinnertime. Richards then notified all the
riggers, painters, and a sandblaster of the time and place of the election. Seven
riggers, two 'painters, and a sandblaster gathered in the washroom at 11:30 a. m.
with. Richards. Charles. Kirby, a rigger foreman, was present but was not allowed
to take part in the election. Richards conducted the meeting. He announced that
there would be an election of shop committeeman for the riggers, and said 9 rig-
gers, 2 painters, and 1 sandblaster were eligible to vote. When he called for nomi-
nations, Rigger Joe Sigovich was nominated by Rigger Paul Peterson, but declined
the nomination. Hollins was then nominated by Riggers Bochanski or William
Nolen. There being no other nominations, Richards asked the men if they wanted
a written or oral vote, and they requested an oral vote. When he called for the
vote, there was a chorus of "ayes" for Hollins and none opposed. Richards declared
Hollins elected and the men returned to work. Richards at once outlined to Hol-
lins his duties as shop committeeman, stating that he was supposed to make note of
any grievances that came up among the riggers, bring them to Richards, and then
they could "iron it out with the company." These findings are based on credited
and mutually corroborative testimony of Hollins, Bochanski, and Richards; other
testimony of these witnesses at variance therewith is not credited.
Hollins took no action as shop committeeman that day or the next. However,
on the evening of the 19th, he and Rigger Nolen were paid off about 5:10 p. m. in-
stead of at 4:30 p. m., their usual quitting time, due to some delay in the preparation
of their particular checks. On Monday, March 22, 1954, while the riggers were in
the lockerroom before 8 a. m., preparing to go to work, Nolen mentioned to Hol-
lins the delay in receiving their checks on Friday and suggested that Hollins take up
the matter with management for the riggers. Hollins said he would write it down
and tell Shop Steward Richards about it when he saw him. Rigger Bochanski also
suggested that Hollins speak to Respondents about the filthy condition of the toilets.
Hollins noted both complaints on a slip of paper as follows: "Pay at 3 o'clock on
Friday" and "Filthy toilets." All the riggers were present during this discussion.
Hollins went to work on an aircraft carrier then in the shipyard. When he got
aboard, he was stopped for 4 machinists, 1 of whom, Palisca, told him of a discus-
sion he had that morning with Respondent Kosove about the machinists' hours of
work 1 day the previous week, in which Palisca had claimed he had worked 4r
hours, but Kosove disagreed, saying he had worked only 4 hours and would be paid
for 4. Palisca told Hollins that Respondents were trying to "do" him out of a half
hour's pay. Hollins told Palisca to see Richards about it. Palisca replied that
he did not see Richards around and had heard that he would not be at work that,
day. Palisca also said he had heard that Hollins was a shop committeeman, and
thus asked him to take care of the complaint for him. Hollins then noted the names
of four machinists (Palisca, Jankevics, Taylor, and Hurd) on the paper containing
the riggers' complaints, and told Palisca he would turn them over to Richards.
When Hollins went to lunch about 11:30 a. in., three other machinists (Hogan,
Dietson, and Faunce) came to him and voiced the same complaint as Palisca had
made. 'Hollins added their names to the paper, saying he had the same complaint
from other machinists, and that he would give all their names to Richards. He
noted opposite the seven names "4' hours Monday." During lunch period Hollins
inquired for Richards, was told by other workers that he was absent that day, and
that they had heard he was going to North Jersey to look for another job. Richards
was in fact absent from work the entire day. After lunch, Hollins met Frank
Grubiak, a member of the Union's executive board who did not work at the yard,
and asked him to tell Business Agent Loughney that Hollins wanted to see him. The
above findings are based on uncontradicted and credited testimony of Hollins, Bo-
chanski, and Richards and General Counsel's Exhibit No. 2.
About 1:30 p. m. Hollins went to the machine shop for tools and met Respondent
Thomas Winters there. Hollins mentioned that Richards was not at work that day
KEYSTONE SHIP ENGINEERING COMPANY 603
and Winters affirmed it. Hollins asked if Winters knew he had been elected shop
steward for the riggers. Winters said he did not, and Hollins said he was elected
Thursday. Then Hollins said he had a few things to show Winters and showed him
the list of grievances. He stated the men were paid after 4:30 p. in. on Fridays and
would like to get paid before that time; Hollins suggested that Respondents might
pay them around 3 p. in. Winters looked at the paper and asked what "filthy toilets"
meant . Hollins said he would come to that and reiterated the pay grievance, relating
his own tardy payment on the previous Friday, and saying the men would like to get
paid before 4:30 p. in. As to the "filthy toilets," Hollins said the men complained
that they were so dirty they could not be used and even the sailors from the aircraft
carrier refused to use them. Winters then asked what the names on the paper meant,
and Hollins related Palisca's complaint about his pay and Kosove's statement that
the machinists would be paid only for 4 hours. Winters took the paper from Hollins'
hand, said to him that he "would take care of this" and would let him know, and
walked away. Winters at once sought out a pipefitter in the yard, who had the duty
of maintaining the toilet facilities, and asked him to check on their condition. These
findings are based on credited testimony of Hollins which is corroborated by that of
Winters in substantial part.
I find from testimony of both Hollins and Winters that Hollins accosted Winters
on the carrier about 3 or 3:30 p. in. that day and asked him what he was going to
do about the grievances, particularly the request for earlier payments. Winters re-
plied that Respondents would have to hire another girl and he would let Hollins
know .5 Hollins then called Winters to one side beyond the hearing of nearby workers
and said to him, "You better be a good boy or else." Winters asked, "What do you
mean , or else?" and Hollins replied, "Or I'll tell your partners about you and that
droop stealing the boiler scrap down on that Cater Street job"; on cross-examination,
Winters stated Hollins' reply thus: "That your brother and the gang that worked on
this boiler at 15th and Cater had stole the scrap iron." Winters asked Hollins who
worked on that job, and Hollins named them, including Al Winters.6 About 3:45
p. m., Winters talked to his partners about Hollins' remarks and other activities. This
conference will be considered in detail below.
About 8 a. in. on the morning of March 23, Thomas Winters told Steward Richards
that Hollins had brought him a list of grievances, and was quite angry about it, ask-
ing Richards who was the proper person to give him the list. Richards told him
Hollins had been elected shop committeeman for the riggers. Winters asked if
grievances were not supposed to "go through" Richards as shop steward and Richards
affirmed that they were. Winters then told Richards he was going to "leave it up to
you" and suggested that he talk to Union Agent Loughney about it. Hollins came
to work at the usual time Tuesday morning. After Richards finished talking with
Winters he approached Hollins and mentioned his presentation of grievances to
Winters. Hollins admitted he had done so. Richards asked Hollins why he had
not waited and given them to him when he came in. Hollins replied he had waited
for Richards until noon on Monday, but had learned he was out looking for another
job, that he did not know what to do, had tried unsuccessfully to contact Loughney,
and had then presented the grievances to Winters when he ran into him. Richards
6I do not credit Winters' testimony that he said nothing in reply to Hollins, for it is
clear from credible testimony of Richards, which will be discussed in more detail below.
that Richards had been discussing this grievance with Respondents for at least a week
before Hollins' election, and Respondents have since hired another girl to take care of the
whole payroll it is inferable that Winters was already conversant with the grievance
when Hollins spoke to him, and probable that Respondents were even then contemplating
hiring another girl to take care of it.
6 I do not credit Hollins' denial, on rebuttal, of the "or else" statement, or of any threat
to Winters based on his brother's connection with the boiler job. The credited admissions
of Winters and Kosove indicate that late in 1953 Kosove had sent some yard employees,
including Al Winters, to replace a boiler in a building owned by him elsewhere in Phila-
delphia, and that the crew had sold the old boiler for scrap and pocketed the money. The
testimony of Hollins and Richards indicates that Hollins knew about this episode and
mentioned it to Brener in a discussion with Brener the afternoon of March 23 just before
his discharge, in which Hollins complained to Brener that Winters did not like him,
thought he was "no good," and that he was "pretty burnt up" about Winters' attitude. It
is clear from these facts, and from the nature of Winters' testimony about Hollins' con-
duct generally, that there was no love lost between the two men, and that Hollins men-
tioned the boiler episode to Brener as a sort of "defensive" or "counter" accusation aimed
at the man he knew would discharge him shortly. In these circumstances, it is more
likely than not that Hollins mentioned the scrap deal involving his brother to Thomas
Winters the day before.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that Hollins should not have done that but should have waited to see him.
Hollins replied that he did not know whether Richards was "ever going to come in."
Richards said that Winters was "pretty hot about it." Hollins replied that it was
already done and that he had not known what else to do. Just before lunch, Richards
again told Hollins that Winters was "pretty hot" about the list of grievances Hollins
had given him. Hollins suggested that he and Richards "straighten it out" by having
a meeting with Loughney and Partners Brener and Winters. Richards agreed and
said he would try to locate Loughney. Richards tried to contact Loughney by phone
twice during the afternoon but without success. Hollins then suggested that Richards
and he have a meeting with Brener and Winters, saying he did not want to talk with
Winters in the absence of Brener. Richards said he would try to arrange a meeting.
These facts are based on credited testimony of Hollins and Richards.
Shortly before 4 p. m., Winters asked Richards to send Hollins to Respondents'
office, saying Hollins was being discharged and his checks were being made out.
Richards sought out Hollins in the yard and told him what Winters had said. Hollins
told Richards he would not go to the office without Brener. As they went to the
office, they met Brener. Hollins told Brener that Winters had called for him.
Brener said he knew about it and that Winters was going to lay him off. Hollins
asked why, and Brener asked Hollins if he had not given Winters a paper listing
grievances on Monday. Hollins admitted that he had, saying he had given it
to Winters as representative of a group of employees, and that he had been elected
shop "steward" of the riggers. Brener said that Winters had said Hollins was
an agitator. Brener asked about Hollins' seniority in the yard and Hollins told
him he had the most seniority among the riggers.? Brener repeated that Winters
was going to lay him off and asked Hollins to "take" the layoff. Hollins said he
did not mind "taking" it if he had done something wrong, but did not think he
had, done anything wrong and desired to stay at work. He also told Brener that
he was "pretty burnt up" about Winters' attitude toward him, that Winters did
not like him and said he was no good, and he then told Brener that Al Winters,
Thomas' brother, had participated in the sale of the scrap boiler from the Cater
Street job on which he had worked for Kosove. Brener said he would have to see
Winters about that. Richards then told Hollins that "we" would bring Loughney to
the yard in the morning and would talk the matter over then. Hollins then went
into the office about 4:30 p. in., where Winters tendered him two paychecks, saying
he -was discharged. Hollins asked why he was discharged and Winters said "we
don't want you around here any more." Hollins refused to accept the checks,
saying he would wait to see Loughney before doing so. The next day, March 24,
Hollins tried to get his job back with the help of Loughney, but Respondents re-
fused to reinstate him. These findings are based on credited testimony of Hollins,
which is corroborated in substantial part by that of Richards, admissions of Brener
and Winters, and payroll records of Respondents. Testimony of Brener, Kosove, and
Winters in conflict therewith is not credited.
B. Respondents' defenses
Respondents' answer sets forth three basic reasons for discharge: (1) That Hollins
was not a qualified rigger, though employed as such, and could not properly perform
a rigger's work; (2) that he "persistently" loafed and slept on the job and was a
safety hazard, in that on one occasion he almost caused a fatal accident; (3) and
that he "persistently" caused disturbances, disrupted work schedules, and intimi-
dated fellow employees. At the final argument, Respondents also claimed that
the proximate and immediate cause of his discharge was his attempt on March
22 to blackmail Winters by the threat to expose his brother's defalcations, and
that this threat was characteristic of his "weight-throwing tactics" and "part and
parcel of his general demeanour, attitude, loafing and refusal to work." They argue
that the discharge was in nowise based on Hollins' election as shop committeeman
or presentation of grievances in that capacity. The question of motivation thus
raised requires at the outset a consideration of Respondents' conference of March
22 at which the discharge decision was reached. Thomas Winters testified that:
He was perturbed by Hollins' threat on the afternoon of the 22d to expose, to
his partners, Al Winters' part in the scrap deal, so he at once sought out his partners
and related Hollins' remarks to them; he also mentioned to them "actions that
have been occurring for the past week or so," saying he could not work with Hol-
lins any longer; Kosove asked what these "actions" were, and Winters said Hollins
9I find from Hollins' uncontradicted testimony that at this time he had the third highest
seniority among the riggers, only Sigovich and Rigger Foreman Kirby having longer
service.
KEYSTONE SHIP ENGINEERING COMPANY 605
was "agitating all over the yard , especially in the rigging gang , where he had
it in a turmoil " and that he would not tolerate "these conditions" any longer . Brener
and Kosove agreed that Hollins should be discharged and told Winters to do so
immediately. Kosove corroborates Winter's report about Hollins' remarks and
threat, adding that Winters told them Hollins was trying to hold the scrap deal
and his brother's part in it as a club over Winters' head, and that he (Kosove)
told his partners that, whether or not Al Winters sold the scrap and failed to account
for the money was beside the point, that they did not want any employee around
who would talk to his Employer that way, that Hollins was "not good for them,"
that they must get rid of him, and that all three agreed. Kosove does not corrobo-
rate Winters' recital of the alleged prior "actions" and "agitation" by Hollins. Brener
did not testify about this conference except to say he ordered Winters that day to
get rid of Hollins at once because he "doesn't produce, doesn't work," but Winters
wanted to wait until Tuesday. This testimony, of course, is not contradicted by any
of General Counsel 's witnesses . Winters testified that Hollins ' threat to him was
one of the reasons for discharge. He also admitted he learned from Richards the
morning of March 23 that Hollins had told both Richards and Brener about his
brother's part in the scrap deal. Kosove testified that Respondent had not been
"generally" pleased with Hollins, and that these remarks were the "last infraction"
which led them to the decision to get rid of him. It is clear from the above testi-
mony, and I find , that Hollins ' threat to Winters was a motivating factor in his
discharge.
If Hollins' threat to Winters, its effect on Winters, and Respondents' decision
to discharge him after discussion of that threat, were the sole facts in the case,
there is no question that Respondents' discharge of Hollins for that threat, which
was a form of insubordination, was justified, even if Hollins was at that time a
legally constituted shop committeeman. See B. B. Crystal Company, 70 NLRB
985, 986; and compare The Bettcher Manufacturing Company, 76 NLRB 526, 527.
However , the issues raised by the pleadings , Hollins' recent union activity, and
Respondents ' consideration of that activity at the same conference , raise the further
question whether Hollins' threats, either alone or combined with other activities
cited by Respondents, were the sole motivation for the discharge, or at least weighed
more heavily in the decision to discharge him than did his union activities. Discrimi-
nation may be inferred if it is shown that one reason for his discharge was his
union or protected activity. It need not be the only reason, but it will be sufficient
to base a finding of violation of the Act if it is a substantial or motivating reason,
despite the fact that other reasons may exist. N. L. R. B. v. Whitin Machine Works,
204 F. 2d 883, 885 (C: A. 1) enfg. 100 NLRB 279; Kingston Cake Company, Inc.,
97 NLRB 1445, 1451, affd. on this point, but enforcement denied on other grounds,
206 F. 2d 604 (C. A. 3).
I have found above that Respondent Winters became cognizant of Hollins' election
and activity as shop committeeman in their first conversation on March 22, when
Hollins presented the grievances outlined above. I further find from uncontra-
dicted testimony of Winters and Kosove that : Immediately after the partners reached
the decision to discharge Hollins, Winters, very agitated, pulled Hollins' list of
grievances from his pocket and showed them to his partners, saying "That isn't all,
look at this statement he gave me this , morning." 8 The partners read over the list
and Kosove commented there was nothing wrong with the list and the grievances
should be "looked into" and corrected , except one which he said "had no bearing."
Winters and Kosove further testified , in substance , that Kosove asked what right
Hollins - had to present grievances , and Winters said , "None ," as Richards was the
shop steward . Kbsove suggested Winters call -Loughney to ascertain Hollins' exact
status, stating that if they discharged him and he was a union official, they might have
a strike on their hands. Winters said he had already talked to Loughney that morning
and the latter told him Hollins had no official status or authority. Both partners
also testified that the decision to discharge Hollins was made before Winters men-
tioned his presentation of grievances , and that neither the question of his status as
shop committeeman nor his presentation of grievances entered into that decision.
While the sequence of the discussion at the discharge conference affords some support
for this contention , their testimony on this point is belied by other testimony and
circumstances . First, it is clear that all Respondents knew of Hollins' purported
° On cross-examination , Winters said be told them "Not only that , look at this" ; Kosove
testified on direct examination that Winters said, "And what do you think of this?"; on
cross-examination he states it : "Look what else this guy gave me ," and then professes not
to recall Winters' exact words, but states their substance as : "Look at the nerve of this
guy giving me this, too "
606 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
election and presentation of grievances before his discharge of March 23, 1954.
Winters knew of it at least from about 1:30 p. in. on March 22, and it was certainly
in his mind when he talked to his partners about Hollins' threat, although he says
he did not bring it out until after the decision to discharge was made. Second,'on
cross-examination Winters admitted that he felt "definitely" that "when he [Hollins]
presented or got these grievances, he was aggravating and pullmg his weight among
the riggers," and that this was the "agitation" he was making among "the entire
rigging gang and half the plant"; he also described the "agitation" by saying Hollins
was not doing his work, was never with his rigging gang, and "would -be over here
with a couple of men, over there with a couple of men, and what have you," in
the week or so before his discharge. Brener testified that after the first discharge
and reinstatement of March 18_1954, he saw Hollins "quite often" talking with
groups of riggers, machinists, and other craftsmen, and that he was discharged
for not doing his job and because he was busy "buzzing around, telling workmen
complaints against us, instead of doing his job." As I have already found that
Hollins discussed grievances with other employees on three occasions on March 22,
1954, it is clear from Winters' and Brener's testimony that this activity was part
of the "agitation" and failure to do his job which Respondents had in mind when
they decided on the discharge. From Winters' admission alone, it is inferable that
the collection and presentation of grievances loomed at least as important, if not
more so, than the threat of March 22 in the decision to discharge; this inference is
strengthened by the admissions of Winters and Kosove as to Winters' remarks in
bringing up the grievances, which clearly indicate that Winters at least considered
their presentation to be additional, rather than incidental, reprehensible conduct of
Hollins. That this conduct still loomed large in Winters' mind on the day of the
discharge is also evident from Winters' discussion at 8 a. in. with Richards about
Hollins' presentation of grievances and Richards' subsequent comments to Hollins
that Winters was "pretty hot about it." As against the above testimony, the mere
fact that Winters mentioned the grievances after the discussion of the threat in the
same conference loses significance. I am convinced from all the above facts
and circumstances , and find, that Hollins ' collection and presentation of grievances
as shop committeeman was a motivating factor in his discharge to at least the same
degree as his "blackmail" threat to Winters.
Respondents attack the legality of Hollins' election and propriety of his presenta-
tion of grievances on several grounds. They say the election was illegal under the
Union's constitution and likewise contrary to the terms of a purported collective-
bargaining agreement with the Union, that the grievances Hollins presented were
without substance and "fanciful," that under these circumstances Hollins was im-
properly assuming the mantle of authority of shop committeeman, especially where
the employees were already represented by a shop steward, and that this conduct was
"part of the general picture of a man who wants to become some type of union
official so that he won't have to do an honest day's work."
The argument that the grievances presented were "fanciful" is deprived of all force
by the: (1) Credited testimony of Kosove that, after the partners examined the list,
Kosove commented that there was nothing wrong with the requests (except one)
and that they should be looked into and corrected; (2) credited testimony of Brener
and Steward Richards that in the past employees had at times been paid after their
quitting time, due to the unavailability of Winters who had to sign all paychecks, that
employees had complained in the week before the election about tardy payments,
that Richards had been trying in that period to persuade management to advance the
time of payment to 3 p. in. or lunchtime on Fridays, and that Respondents had since
that time hired another girl to take care of the payroll, had arranged to have pay-
checks signed earlier in the week, and at the time of the hearing were paying the
men at lunchtime on Fridays; and (3) credited testimony of Richards that employees
had complained before March 18, 1954, about dirty toilets, that Respondents had
had them repaired and assigned men to keep them clean, but occasionally the cleaners
"skipped a day." 9
The contention that Hollins' election and subsequent conduct is contrary to the
union constitution and bylaws is based solely on the uncontradicted facts 10 that the
union business agent has always appointed shop stewards and committeemen in the
9 Even if the grievances had been without substance in fact, the fact that the employees
still presented them indicates that in their minds the complaints were justified, and their
presentation through Hollins in that belief, though mistaken, was still a protected con-
certed activity. See Firth Carpet Company v. N. L. It. B., 129 F. 2d 633, 636 (C. A. 2).
10 They appear in the testimony of Loughney and the union constitution and minutes of
membership meetings.
KEYSTONE SHIP ENGINEERING COMPANY 607
shipyards of Respondents and other employers under authority granted him by the
membership of the Union in January 1952, which grant was consonant with authority
given subordinate lodges (including Local 803) by the constitution of the parent
International Brotherhood, adopted in July 1953, to either elect or appoint shop
stewards and committeemen. It is also clear from the record that Respondents had
always recognized and dealt with Shop Steward Richards, Loughney's appointee, as
the sole legitimate union representative in their yard. While there is some question
as a matter of union constitutional law whether the action of the membership in
1952 legally waived their constitutional right to elect their own committeemen
granted by the 1953 constitution, in the absence of a new grant of the appointment
power to the business agent following the adoption of that constitution, I deem it
unnecessary to decide that point or to judge the legality of Hollins' activity by the
constitution, bylaws, or internal practices of the Union." The Board has held that
the right guaranteed to employees by the Act to engage in concerted activities for
purposes of collective bargaining and other mutual aid or protection cannot be limited
or proscribed by the internal regulations of the union whose members have engaged
in the concerted activity. Cape Arago Lumber Company, 69-NLRB 572, 586, and
cf. Republic Steel Corporation, 62 NLRB 1008, 1029, 1030. Furthermore, Section
9 (a) of the Act, which gives exclusive bargaining status for all employees in an
appropriate unit to the representative chosen for that purpose by a majority of em-
ployees in the unit, at the same time preserves the right of individual employees or
groups of employees generally to present grievances to their employer and to have
such grievances adjusted, without intervention of the bargaining representative.12
I am of the opinion that Hollins' presentation of grievances to Respondents on behalf
of himself and a group of employees, whether of his own craft or otherwise, was
concerted activity which falls' clearly within the protection of the first proviso of
Section 9 (a).
However, Section 9 (a) places two limitations upon the exercise of the right of in-
dividual presentation and adjustment of grievances: First, that the adjustment of
such grievances "is not inconsistent with the terms of a collective-bargaining contract
or agreement then in effect," and, two, that the "bargaining representative has been
given opportunity to be present at such adjustment." The first limitation appears
to be the basis for Respondents' main contention-that Hollins' collection and presen-
tation of grievances was contrary to the terms of a collective-bargaining agreement
existing between Respondents and the Union, and was thus unprotected activity.13
At the very outset, however, their argument runs afoul of the established facts that
Hollins' activity as shop committeeman involved only a partial exercise of the right
protected by Section 9 (a). He did no more than note grievances of employees, make
them known to management, and state what correction of working conditions the
employees desired. Winters listened to his recital of grievances, and said he would
"take care of them." There is no proof that Hollins had any further discussion with
management about the merits of the grievances, nor that he took part in an actual
"adjustment" or settlement of the grievances, before his discharge.14 Although the
record does not show the exact dates when Respondents corrected the grievances, the
credited testimony of Brener and Richards indicates that any adjustments, at least
in the pay, procedures, were put into effect following Hollins' discharge. There is
no proof that Hollins was present after that event at any conferences between man-
agement and the Union (if any were in fact held) about the grievances, nor at the
actual "adjustment" thereof. Thus it cannot be argued that Hollins in fact partici-
pated in any "adjustment" or settlement of grievances which might be inconsistent
with the terms of a collective-bargaining agreement, assuming one existed. In other
words, his handling of grievances never reached the stage of bargaining, "adjustment,"
or settlement which would make it subject to the limitations on which Respondents
rely. Considering the wording and meaning of Section 9 (a) and its provisos, I am
u For this reason, I make no findings on testimony of Loughney or Respondents relating
to the legality or propriety of Hollins' election and subsequent conduct, from the stand-
point of the Union's internal rules and practices in handling grievances with employers.
12 See N. L. R. B. v American. Mfg Company of Texas, 203 F. 2d 212 (C. A. 5).
'a Although Respondents do not specifically mention Section 9 (a) or its limitations in
their arguments, their vigorous efforts to prove the existence and terms of a specific col-
lective-bargaining contract, and that Hollins acted contrary thereto, make it clear that
they rely upon such contract to show the alleged illegality of his conduct
14 I do not consider Hollins' casual inquiry of Winters in their second talk on March 22,
as to what Respondents intended to do about the grievances, or Winters' reply, or Hollins'
threat to Winters, as substantial evidence that Hollins was engaged in "adjustment," as
contrasted with presentation , of grievances.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impelled to the conclusion that the limited character of Hollins' concerted activity is
fatal to Respondents' argument. Section 9 (a) of the original Wagner Act provided
that any individual employee or group of employees should have the right at any time
to present grievances to their employer. Section 9 (a) was changed by the amend-
ments of 1947 to enlarge that right by permitting them also to settle grievances
with their employers without the intervention of the bargaining representative, subject
to the two limitations noted above. The evolution of the section points,.iip, two
significant things: first, the statute has always recognized the right of individual'pres-
entation of grievances, independently of the rights of the bargaining representative
and, second, the section as it now stands clearly distinguishes between the "presen-
tation" and the "adjustment" of grievances, in that it leaves the long-recognized right
of individual presentation of grievances unfettered, while it places limitations only
on the employees' right of actual adjustment of their own grievances, in order to pre-
serve the basic bargaining rights and status of the statutory bargaining representative.
The legislative history of the present Section 9 (a) makes it clear that Congress in-
tended thereby to reassert and clarify the right of employees to present grievances
independently of the rights of the bargaining representative, and at the same time
grant them the right to settle such grievances by themselves, provided that in so
doing they did not run counter to any existing collective-bargaining agreement or ex-
clude the bargaining representative from attendance at such settlement, which might
tend-to weaken the collective-bargaining process and the status of the statutory bar-
gaining representative.15 Viewed in the light of the section and its legislative history,
I am of the opinion and conclude that Hollins' presentation of grievances for him-
self and other employees was merely an exercise of the basic right recognized and
protected by the Act since its inception, and never reached the point which would
require a determination whether his activity was inconsistent with a collective-bar-
gaining contract, if any existed, or whether he acted in, anywise in derogation, of, the
rights of the Union as collective-bargaining representative.
However, in view of the extent to which the parties litigated the question of the
existence of a bargaining contract, I shall consider this defense as though it had been
specifically pleaded, and for that purpose shall assume that Hollins' presentation
of grievances was in fact part of the negotiation and adjustment thereof and in law
subject to the first limitation in Section 9 (a). Respondents rely on a document
(Respondents' Exhibit No. R-3) which on its face purports to be a collective-bar-
gaining agreement between Respondents and the Union, executed by Respondents
and Loughney on December 21, 1953, and operative from January 1, 1954, to Jan-
uary 1, 1955, and from year to year thereafter, unless sooner terminated by the
parties. Article (9) thereof, entitled "Grievance Pay," provides:
The Grievance Committee shall comprise of the Shop Steward and two em-
ployees when necessary appointed by the Business Agent and the. time lost by
the Grievance Committee during regular working hours in the settlement of
grievances on or off Company property, shall be paid for by the Company at
the regular hourly rate (base rate) of the employees involved this article shall
not be abused.
Article 14, "Grievance Procedure," provides in effect that all disputes and grievances
shall be adjusted (1) between the aggrieved employee, his foreman, and the shop
steward; if necessary, (2) between the shop steward, grievance committee, and man-
agement; and if a satisfactory adjustment is not reached by these representatives
within 7 days of presentation to management, (3) either party can refer the griev-
ance to arbitration before a board comprised of a representative each from the
Union and management and an impartial chairman chosen jointly by both. Re-
spondents contend, and it is patent from the facts, that Hollins' election as shop
committeeman and handling of grievances thereafter was not in accord with the
above provisions. However, certain testimony of Respondents and their own wit-
nesses afford substantial basis for the conclusion that at the time of Hollins' dis-
charge, neither the above contract, nor any other definite collective-bargaining
agreement, was in existence or operative between Respondents and the Union. On
the first day of the hearing, Respondents produced an unsigned, undated mimeo-
graphed form of contract in response to a subpena served on them by General Coun-
sel, calling for production of the collective-bargaining agreement in existence .be-
tween them and the Union on March 22, 1954; by stipulation that document was
placed in evidence (General Counsel's Exhibit No. 3) as the contract in existence
on that date. This document makes no provision for the manner of selection of
ie See the analysis b the Court of Appealsby for the Second Circuit of the legislative his-
tory of Section 9 (a) in Douds v. Local 1250, etc., 173 F. 2d 764, 768, 769.
KEYSTONE SHIP ENGINEERING COMPANY ' 609
members of the local grievance committee , although article VIII thereof contains
substantially the same grievance provisions as the signed document on which Re-
spondents now rely. When Business Agent Loughney of the Union testified for
Respondents , he produced the signed document , claiming it is the original contract
signed by both parties on December 21, 1953, and disclaiming knowledge of the un-
signed document . When General Counsel pointed out differences between the two
documents , Respondents still represented on the record that the unsigned contract
was the only one in their files; and Kosove, the partner who handles the adminis-
trative end of the business and has custody of all contracts, testified that, when the
subpena was served, he searched for the contract and found only copies of the un-
signed General Counsel's Exhibit No. 3 in the office file marked "union contracts,"
and thus assumed that it was the existing contract. From the stipulation and
Kosove's testimony, General Counsel and the Trial Examiner had a right to assume
that the document produced by Respondents in response to subpena, although un-
dated and unsigned, was the authentic contract. However, after Loughney produced
and testified about the signed document, Kosove changed his story, testifying that
he received a copy of that document in 1953, but that he does not now have the
copy or know where it is; and although he identified his signature on Loughney's
copy, and saw the date, December 21, 1953, written in ink on the first page, he refused
to testify that it was executed on that date, at first professing a lack of recollection
of the exact date, and later admitting only that it was signed during December 1953;
he then repudiated the unsigned document produced by Respondents. Kosove's
change of story in palpable support of the signed document, his haziness as to the
date of execution, and his admission that Respondents do not have a signed copy
of an all-important document governing labor relations with their employees, all
raise a strong doubt as to the authenticity of Loughney's document. Furthermore,
only Loughney and Winters testified that that document was signed on the date writ-
ten into it ; Brener did not testify on that point . Winters' testimony is obviously col-
ored by Respondents' interest in proving the illegality of Hollins' grievance activity
to support the discharge; his testimony regarding that activity, particularly his re-
peated disparagement of it by expressions of opinion and volunteered statements,
clearly indicates his personal animus toward Hollins and further weakens his credi-
bility on this subject. Loughney's testimony is similarly suspect: his constant at-
tempts to belittle Hollins' actions as committeeman and to shrug off his election as
an event beneath notice and illegal under union regulations and Loughney's own
practices; his single-handed effort to highlight this by testimony that he gave im-
mediate notice to the riggers and Respondents of the illegality of the election on the
day after the event, which story is categorically denied by Winters, Kosove, and
Bochanski, weakened by his own equivocation and self-contradictory testimony as
to his movements on March 19 and 22, and not supported by testimony of any of
his-own union members whom he placed at his alleged meeting with riggers on the
19th; his incredible failure to seek out and advise Hollins himself at any time of
the claimed illegality of his election ; and finally his own testimony as to his argu-
ments with Hollins after the discharge and his biased presentation of Hollins' case
to the Union 's executive board , all clearly demonstrate his personal animus toward
Hollins and his resentment of the challenge to his power and status as union business
manager represented by Hollins' election and activity pursuant thereto . It is fairly
inferable from Loughney's entire testimony that he was motivated by personal in-
terest in trying to secure an adjudication in this case of the illegality of Hollins'
election which might serve to remove possible future threats to his authority within
the Union as its business manager.
The doubts raised by the above testimony are magnified by the credible testimony
of Steward Richards that he knew from discussions with Loughney and Respondents
that they were negotiating a contract from December 1953 to a time after Hollins'
discharge , that during this period he worked steadily for Respondents without a
collective-bargaining contract , and that in the same period there was a general strike
in the industry along the riverfront . He also testified that he had never seen the
signed contract produced by Loughney , nor had been told of its existence by the
latter . This testimony is persuasive because it was clearly contrary to the interests
of his Employers and his Union . It also derives support from the admission of
Loughney that he did not know how much Richards knew about the purported
contract , and from his failure to testify that he had ever brought or shown it to
Richards . If a contract had in fact been executed before Hollins ' discharge, it
is incredible that the only union -shop steward in the shipyard would not have been
apprised of its existence or its terms, for a knowledge of its pay provisions and
grievances procedure, at the very least , would have been a necessity for his proper
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day-to-day handling of grievances with management. Under the circumstances,
Richards' ignorance of the contract is forceful evidence of its nonexistence.
Another indication of the lack of a contract lies in Richards' credible testimony
that, when he explained the duties of shop committeeman to Hollins on March `18,
he was speaking from his knowledge of the Union' s constitution ; and his explanation
of the grievance procedure prevailing in Respondents' yard indicates clearly that he
derived his understanding of that procedure from the constitution, not the terms of
Respondents' Exhibit No. 3; the procedure he outlined contemplated the existence
of one or more standing shop committeemen who would collect grievances in the
first instance, which is more consistent with article XII, section 1 , of the Subordinate
Lodge Constitution (Respondents' Exhibit No. 1, page 96), than with the grievance
procedure in articles 9 and 14 of the purported contract, and Loughney's testimony
on that subject, which contemplate the creation and intervention of a "local grievance
committee" only in the second phase of the procedure, after an impasse is reached
between the shop steward and management. Furthermore, Richards' testimony is
supported by admissions of Loughney, Winters, and Kosove, from which I find
that: In November 1953, the Union began negotiations for a new collective-bar-
gaining contract with the Association of Master Contractors (an organization com-
prising most of the ship repair concerns along the waterfront). When a contract
was not signed by mid-January 1954, employees of Association members went on
strike in February and stayed out until March 29, 1954, when the new contract was
signed following ratification of its terms by the union membership the day before.
The new contract gave Association members' employees a basic wage increase from
a $2 an hour minimum rate to $2.14. Respondents are not a member of the Associa-
tion and are classed as an "independent" ship repair concern. Respondents' prior
contract with the Union expired on December 21, 1953, the same as the Association
contract. At that time, Respondents were paying a $2 minimum rate to all crafts
and occupations in their yard, except janitors. When they began negotiations with
the Union for a new contract, the Union demanded the same basic minimum rate of
$2.25 that it was seeking from the Association members. During the negotiations, Re-
spondents reached an understanding with the Union that when the general strike
was over and contract terms had been settled with the Association, Respondents
would agree to the same general terms and pay the same rates as their competitors
in the Association, and on that basis Respondents' employees continued to work
during the strike, receiving the existing minimum $2 rate until the week of March 21,
1954, when, after discussions with Loughney, Respondents gave a general 25-cent
wage raise to all employees, thus raising their minimum rate for all crafts to $2.25
an hour. Loughney also admitted that collective-bargaining contracts with the "inde-
pendent" concerns follow closely the terms of the main Association contract, and
that he deems it important that all the contracts be uniform. I do not credit testimony
of Winters, Kosove, and Loughney to the effect that the new contract (Respondents'
Exhibit No. 3) was fully negotiated and signed in December 1953, and that the
parties verbally agreed at the time merely to withhold actual payment of an agreed
$2.25 an hour minimum rate until such time as the Association members signed their
contract: for their testimony on this subject (particularly that of Winters) contains
so many self-contradictions and contradictions of each other, and their reasons for
withholding for nearly 3 months an allegedly agreed wage increase (which was in
fact more than the Association employers finally agreed on) are so varied and
implausible that I am compelled to reject their stories except to the extent that they
are consistent with the straightforward and credible testimony of Richards noted
above.
Another circumstance militating against the existence in March of a contract in the
form of Respondents' Exhibit No. 3, is the fact that the wage rates listed in it do not
conform to rates actually paid to various crafts at the time. Thus, the testimony
of Kosove and Loughney indicates that during 1954 Respondents employed only
first-class craftsmen in the 13 classifications (blacksmiths to riggers, inclusive) listed
in the wage classifications in Respondents' Exhibit No. 3, and that Respondents had
no second-class craftsmen in those occupations in its employ; yet, the wage provisions
list a $2.25 minimum rate for first-class craftsmen, and a $2 rate for second-class
workmen. Kosove admitted the $2 rate was the minimum which the 13 basic crafts
received from December 1953, up to the week of March 21, 1954, but as none of its
employees were second-class craftsmen, there is no explanation for the listing of the
$2 rate for that grade, except Loughney's statement that it was inserted to recognize
Respondents' right to use workmen of that grade or to start new men at that rate.
However, his explanaion is not supported by Respondents, and it is at variance with
the admitted fact that Respondents have only first- class craftsmen in their employ and
do not use men of the lower grade, and with Winters' repeated assertion that all
KEYSTONE SHIP ENGINEERING COMPANY 611
Respondents' employees were doing a fine job and deserved the $2 .25 minimum
rate. Again, truckdrivers received the same general 25-cent wage increase to $2.25 an
hour given to all other crafts in March 1954, but their basic rate is still listed as $2
in the purported contract; Respondents give no explanation for the discrepancy.
Sandblasters are listed at a $2.50 minimum rate in the purported contract, but Kosove
testified they are now receiving, and have received for years past, a minimum rate
of $3 an hour; there is no explanation as to why the Union, which must have known
the going rate in the yard for this occupation, did not insist upon inserting it in the
contract to protect its members, but permitted a lower minimum rate to be inserted.
Finally, the purported contract lists a $1.75 minimum rate for helpers, which
appears incredible in the light of Winters' testimony that Respondents had been
paying $1.88 an hour minimum for that craft under prior contracts, that they raised
helpers to $2 an hour in 1953, that Loughney knew that they did not pay less than
$2 an hour to any employees, except janitors, and that during the negotiations over
rates, Loughney demanded a raise in rates for all crafts listed in the document. I do
not credit Winters' various flimsy explanations for the lower rate, such as that that
rate "means nothing," that he did not know Respondents were thereby agreeing to
pay less to helpers than under prior contracts, that he did not go over this portion
of the contract, "it slipped by me." On the other hand, the admissions of Kosove
and Loughney as to the single pay rate and single top grade of the basic craftsmen
in the yard in March is more consistent with the wage provisions of General Counsel's
Exhibit No. 3, the repudiated document, than Respondents' Exhibit No. 3. This
circumstance further destroys the authenticity of the latter document. Finally,
perusal of Respondents' Exhibit No. 3 discloses that numerous provisions are inartisti-
cally worded: article 6, relating to discharge of employees, appears to be so garbled
as to be unintelligible, and the crucial sentence in article 9, providing for appointment
of grievance committee members by the "Business Agent," appears in a clause pro-
viding for payment of committee members for time lost in settlement of grievances,
rather than in the article relating to grievance procedure, which would seem to be
its proper place. Article 9 is also crudely worded. All of this makes Loughney's
document appear to be more of a rough draft of contract which would ordinarily
be submitted for discussion in the course of collective bargaining, rather than the
finished document completely and clearly setting forth the final understanding of the
parties. In this respect, the repudiated General Counsel's Exhibit No. 3 has many
more of the indicia of a finished, carefully drafted and intelligible contract in a form
which the parties would be likely to sign, than Respondents' Exhibit No. 3. After
careful consideration of all pertinent testimony relating to the alleged contract, I am
satisfied that Respondents have not sustained the burden of going forward with evi-
dence sufficient to establish the existence of a collective-bargaining contract in March
1954, which by its terms would invalidate Hollins' election as shop committeeman
and his handling of grievances in that capacity.
The contention that Hollins' election and grievance activity was an attempt to
avoid doing his work by an illegal •usurpation of the authority vested in the regular
shop steward, is untenable for several reasons. I have found his presentation of
individual grievances for himself and others was protected concerted activity within
the purview of Section 9 (a). It is immaterial whether he acted as an elected shop
committeeman or as a spokesman chosen otherwise; his activity would still have
been protected if he had presented grievances as a mere employee for himself, or
as part of a group, or as their informal spokesman. In the second place, whether
or not the election was legal, it is clear that he acted in good faith as a shop com-
mitteeman : his election occurred under the supervision of the regular shop steward,
who thought at the time that he was acting legally under the Union 's constitution
in holding the election, and clearly Hollins and the employees who thereafter dealt
with him as committeeman assumed that his election under the auspices ;of: the
shop steward was legal; and his own handling of grievances thereafter as found
above indicates that he was trying to follow the instructions as to his duties which
Richards had outlined to him, for he did not attempt to present the complaints
to management until he learned that the steward was absent and was unable to
locate the union business manager. Such conduct can hardly be characterized
as an attempt to bypass the union steward or usurp his authority. Nor can it be
said that Hollins avoided his regular work by handling grievances, for the record
shows that his election , and all but one of his short discussions with employees
about grievances on March 22, occurred outside of working hours; and there is
no substantial proof that he lost any appreciable time from work in his brief dis-
cussion with several machinists on the carrier that morning, or in his talks with
Winters later that day. Furthermore, the bona fides of Hollins' election and ac-
tivity thereafter is indicated by credible testimony of Bochanski and Richards, and
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admissions of Respondents and Loughney, from which I find that: Shortly after
Hollins and Bochanski were discharged and then reinstated on March 18, Loughney
told Bochanski that there seemed to be trouble among the riggers, that operations
were "getting a little big," and he was going to make Bochanski shop committee-
man for the riggers, sandblasters, and painters. However, Loughney did not carry
out the appointment by notifying those craftsmen or Respondents, and Bochanski
never acted as committeeman; and when Bochanski indicated to other riggers the
same morning that he might be their committeeman, one disagreed, saying there
would have to be an election for that job. Richards gave up his job as shop
steward for the whole yard in April 1954, because complaints from the workers
had become so numerous that he could not handle them and decided to resign
rather than "ruin his reputation as shop steward." He complained to Loughney
about it, and sometime after Hollins' election, Loughney told him he intended to
put a shop steward in every department in the yard. Thereafter, Loughney ap-
pointed separate shop stewards for at least five separate departments or crafts
(riggers, machinists, painters, truckdrivers, and ironworkers, welders and shipfitters).
Each of these stewards now has equal status in the yard. This testimony clearly
indicates that Hollins' election and handling of grievances in this period was not
a "bizarre" or suspicious chain of events, engineered by Hollins for his personal
aggrandizement, as Respondents claim, but was rather the outgrowth of discontent
among the riggers and their desire for separate representation for presentation of
grievances and protection of their interests.
The claim that Hollins was discharged because he lacked the qualifications of
a rigger and could not properly perform that work, is based mainly on the testi-
mony of Winters that Hollins was hired initially as a laborer to do odd jobs, that
he was rehired in September 1953, as a matter of "compassion" at the request
of the Union because he needed the work, and was put on painting work and
other odd jobs because of, an injury to his hand. This testimony is overweighed
by the preponderant, credible, and mutually corroborative testimony of Hollins,
Samuel Sykes, and Kosove, supported by admissions of Winters, from which I
find that: Hollins was first hired by Respondents in May 1953 (prior to formation
of the present partnership) as a rigger at $2 an hour, the basic pay of riggers
at the time, and worked until June 1953, when he was laid off with other employees
for lack of work. In this period, he at first performed various jobs, such as paint-
ing, truckdriving, etc., and was then assigned to the rigging gang as a helper.
He also performed other jobs as required by Respondents, in accordance with their
policy of transferring men to other work as business required. The fact that Hollins
received from the outset the basic pay of a rigger, plus the admission of Winters
that he was qualified at least as a rigger's helper, is some indication that Hollins
was hired and paid as a rigger and was considered qualified for that work. Kosove's
testimony that he observed Hollins and concluded he was "not the kind of em-
ployee they wanted," is not substantial, for he could not point out any specific
acts or omissions of Hollins which would indicate lack of qualification; he could
only say that he saw Hollins "standing in one particular place doing no particular
job" on "numerous occasions"; however, there is no proof that Respondents warned
or disciplined Hollins, although Kosove states he reported Hollins' alleged inaction
'to`Winters the first time he noticed it. Further, Kosove's observations are not cor-
roborated by Winters, the partner in direct charge of personnel and operations in
the yard and presumably in the best position to observe the conduct of employees.
That Hollins' work during his first employment was acceptable is also inferrable from
the facts, established by credited testimony of Hollins and Sykes, and admissions
of Winters and Kosove, that he was reemployed in September 1953 on his own
application and placed in the rigging gang, where he worked steadily thereafter
(except for absence for sickness and 1 or 2 normal layoffs) at the same rigger's
pay as formerly.ls There is no proof of Hollins' lack of qualifications during
his second employment and up to his discharge; the only substantial proof is to the
contrary. Respondents' records show that he continued to receive the rigger's base
pay of $2 an hour until he was raised to $2.25 an hour in March, as part of the
general 25-cent wage raise. Winters admitted that Respondents felt, as early as
December 1953, that their craftsmen, including riggers, were doing good work and
deserved more money; and Kosove and Loughney admitted that during 1954 Re-
spondents had only first-class craftsmen.in the yard.'? Further, Rigger Bochanski,
who worked as an assistant rigger foreman, or "pusher," over the riggers from
Ie I do not credit testimony of Winters and Kosove at variance with these findings.
14 Kosove described a first-class rigger as one with sufficient experience in handling heavy
materials to do it safely and "properly." ,
KEYSTONE SHIP ENGINEERING COMPANY 613
November 1953 to about June 1954, testified credibly that he observed Hollins'
work up to his discharge and that Hollins did a good job and was "the best
that I had in the gang." 19 It is also noteworthy that Respondents did not mention
his alleged lack of qualifications when they finally discharged Hollins on March 23.
I conclude that Respondents have failed to establish by substantial evidence that
Hollins lacked the qualifications of a rigger and was unable to do that work, and I
am convinced that his deficiency, if any, in this respect was not a motivating factor
in his discharge, and that this claim has been advanced by Respondents as an after-
thought to conceal the true motive for the discharge.
The, contentions that Hollins persistently loafed and slept on the job, and thereby
became a safety hazard on one occasion, and continually caused disturbances, dis-
rupted work schedules, and intimidated fellow employees, can be considered together,
as they all involved alleged misconduct. The charge that he once was a safety hazard
obviously refers to his alleged sleeping on the Cefalu job.19 It is untenable in view
of my finding above that Al Winters, not Hollins, was the culprit on this occasion, and
that Respondents reinstated Hollins immediately after his discharge on March 18,
upon learning from other employees that he was not the malefactor. Respondent
Winters and Yard Superintendent Kirchoff also testified that the installation of the
"piston" on the Cefalu job should not have taken more than 3 hours of work, and
Respondents' testimony intimates, in effect, that one reason for the discharge of
Hollins and Bochanski was that they slept and loafed on that job, thus stretching out
their hours of work at double-time pay longer than necessary, and that the owner of
the Cefalu threatened to refuse payment for time during which the riggers slept and
loafed, because the job did not require them to stay on the boat all night. This
corollary claim is untenable, however, in the face of (1) credible testimony of Larsen
and Bochanski which indicated the work involved and time required to do the job,
as found above, and that the assistance of the riggers was necessary at all times in
order to complete the job expeditiously, (2) the additional credible testimony of
Larsen that when he told Thomas Winters on the 18th that his brother had been
the sleeper, Winters made no complaint that the riggers had loafed on the job or that
he'kept them on the job too long, and that Larsen was never reprimanded or criticized
by Respondents for his handling of the job, (3) the credible testimony of Bochanski
that Kirchoff questioned him on the 17th or 18th about the progress of that job,
asking why the riggers stayed on the job all night, and when Bochanski replied that
he had taken orders on the job from Larsen, on instructions of Winters, Kirchoff
never criticized him about the job, (4) Kirchoff's admission that he saw Hollins in the
yard the day after the job, but never spoke to him about it, and (5) the fact that
Respondents never charged Hollins and Bochanski at the time of the discharge on
the 18th with wasting money or stretching out their worktime unnecessarily, or gave
that reason to Hollins on his final discharge on March 23.
With respect to other misconduct, the three Respondents testified that: They had
been displeased with Hollins for some time because he was not doing his work and
was "agitating the entire rigging gang and half the plant "; they often saw him talking
with groups of riggers and other craftsmen, and they received reports that he was
"buzzing around, telling workmen complaints against us," finding fault with manage-
ment, and,aggravating and intimidating the men. This testimony is not impressive,
however, because the partners gave no details of times, places, or specific instances
of misconduct, nor did they name or produce the persons who reported the alleged
misconduct, except Kirchoff, whose testimony will be considered below. Respondent
Brener, alone placed his observation of Hollins' "agitation" in the period of 3 working
days between his first discharge (also the date of his election as shop committeeman)
and his final discharge, but his testimony of receipt of reports that Hollins was "finding
fault with management" in this period indicates he was referring to Hollins' three
discussions as shop committeeman with other employees about their grievances, as
found above; there is no proof that Hollins had other specific talks with employees
before his discharge. To the contrary, Bochanski, Hollins' immediate superior in
this period, testified credibly that between his election and final discharge, Hollins per-
formed his work satisfactorily, leaving it only for normal reasons, and did not stand
around talking with other employees. The only support for Respondents comes from
Superintendent Kirchoff who testified that from the first week in February 1954 to
March 18, 1954, he saw Hollins a "half-dozen times" standing with groups of men, not
doing any work, that he complained to Winters several times that he did not know
Is It is also significant that Robert Kirchof2, yard superintendent who testified regard-
ing alleged misconduct of Hollins , did not give testimony indicative of his lack of quali-
fications or inability to do the work of a rigger.
'a There is no proof that he slept on the job at any other time.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what was the matter with Hollins and could not do anything with him, and,that he
recommended to Winters several times that Hollins be discharged. This testimony
is deprived of substantive force by (1) Kirchoff's admission that the alleged shirking
had been going on for nearly 2 months, (2) the lack of proof that Winters ever ad-
monished Hollins about it, or acted on Kirchoff's recommendations of discharge, (3)
the fact that such shirking was not mentioned to Hollins at his first discharge, other
than his alleged sleeping on the Cefalu, which I have found without basis in fact,
(4) Hollins' immediate reinstatement on the 18th, which is indicative of condonation
of any past loafing, if it in fact existed,20 and (5) Brener's admission that the work-
men often gather in groups to talk while drinking coffee.or using the washroom, that
they at times leave their work on a ship with others to smoke, and that riggers often
stand around while waiting for machinery to be put in place on a job, which in-
dicates that occasional periods of idleness for a coffee break, smoking, or-,other
reasons was not uncommon nor prevented by Respondents. Kirchoff also testified
that once in 1954, before Hollins' first discharge, he came upon a group of machinists
engaging in a "fracas" aboard a Navy ship. Hollins and Steward Richards were also
in the argument. Kirchoff told all the men to leave the ship to iron out any dispute.
Hollins told him "what you need is a punch in the nose." Kirchoff reported the
fracas to Winters, who boarded the ship and straightened it out in some manner.
On several other occasions in this period, Kirchoff talked to Hollins in a group of
men, to "calm him down and break up the group," telling him to go back to work,
and Hollins swore at him each time, telling him to "scram." On a few occasions,
Hollins told Kirchoff he would throw him off the drydock. I do not consider this
substantial evidence of misconduct for several reasons. Neither Winters nor Richards
supported Kirchoff's account of the "fracas." Kirchoff does not state what caused
the disturbance or that Hollins instigated it; and Hollins' mere presence and even
participation in the argument, which did not appear to be violent or serious, is-weak
evidence of "agitation," particularly in the absence of proof that Winters reprimanded
or even spoke to Hollins about it. Nor can Hollins' offers to punch Kirchoff in the
nose, or throw him off the dock, or use of profanity toward him, be considered any-
thing more than instances of the rough banter common among shipward workers,
for Kirchoff testified that such remarks did not frighten or even bother him, that he
had often heard them during his 40 years of work along the riverfront, and was used to
them, and paid no attention to them, that such remarks were common shipyard talk,
and he did not think employees meant anything in making them. There is no credible
proof that Hollins' activities, as recounted by Kirchoff, or even his recent handling
of grievances, intimidated fellow-workers, disrupted work schedules, or kept the
"riggers gang and half the plant in a turmoil," as Winters put it. I conclude that
Respondents have failed to adduce substantial evidence that Hollins was guilty of
serious or unusual agitation or other misconduct which might, or in fact did, serve as
a motive for his final discharge, other than his activities on March.22, 1954; ,,found
above. It is clear from the testimony of Winters and Brener noted above'that'the
only "agitation" which they discussed and had in mind when they decided to discharge
him, was his presentation of grievances as shop committeeman on that date, which
they considered illegal.
From a consideration of all of the above facts and circumstances, particularly
the timing of the discharge the day after Hollins had engaged in protected con-
certed activity, and the lack of factual and legal support for Respondents' various
defenses, I am impelled to the conclusion, and therefore find, that Respondents dis-
charged Edward J. Hollins on March 23, 1954, and refused thereafter to,-,reinstate
him, because of his presentation of grievances to management the day..before as
spokesman and representative of a group of employees, which they considered
improper and illegal conduct by a union member in the light of the Union's practice
in designation of employee representatives in their yard. I conclude that by such
discharge Respondents discriminated against Hollins in violation of Section 8 (a) (3)
21 Respondents ' testimony indicates that they disagreed strongly among themselves
about reinstatement of Hollins on the 18th; Winters and Kosove were against it on the
ground that he was a troublemaker and agitator, but they finally gave in to Brener's
insistence on reinstatement, because of his contention that Hollins would profit by his
reinstatement and be a better worker ; however, they consented with the reservation that
they would watch his future behavior. Hollins admits that on the 19th, Brener told him
Winters had called hint an agitator, but Brener had disagreed and felt Hollins was a good
worker, and told Hollins to go back to work and "mind your own business." While this
testimony might support an inference that Hollins was reinstated on probation, the record
does not show that he violated the "probation" by engaging in subsequent " agitation,"
except for his handling of grievances on the 22d, which was a protected activity.
KEYSTONE SHIP ENGINEERING COMPANY 615
of the Act, for his discharge under the circumstances found above tended to en-
courage membership in, the Union by indicating to union members the advisability of
compliance with the Union's rules and policies.21 At the same time, his discharge
tended to discourage union members from exercising their guaranteed right of
presentation of individual grievances to their employer, and of refraining from
assisting the Union by compliance with its rules and, policies, and thus interfered
with, restrained, and coerced them in the exercise of rights guaranteed by Section 7
of the Act, in violation of Section 8 (a) (1) of the Act 22
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section II, above, occurring in connection
with their activities described in section I, above, have a close, intimate, and sub-
stantial 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.
IV. THE REMEDY
Having found that Respondents have engaged in certain unfair labor practices,
I shall recommend that they be ordered to cease and desist therefrom, and take
certain affirmative action designated to effectuate the policies of the Act.
Having found that Respondents unlawfully discriminated against Edward J. Hollins
in violation of Section 8 (a) (3) and (1) of the Act, I shall recommend that Respond-
ents offer to Hollins immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other. rights and privileges,
and make him whole for any loss of pay he may have suffered by reason of
Respondents' discrimination against him, by payment.to him of a sum equal to
the amount that he would normally have earned as wages from the date of the
discrimination against him to the date of a proper offer of reinstatement, less his
net earnings in that period. His back pay shall be computed in accordance with
the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289.
I shall also recommend that Respondents make available to the Board payroll and
other records to facilitate computation of the amount of back pay due.
Aside from the discriminatory discharge of Hollins, the record discloses no
other conduct of Respondents violative of the Act or indicative of antiunion
animus or a disposition to deny the lawful rights of employees. However, the
Board is primarily concerned with protection of the rights of individual employees
guaranteed to them by the statute, News Printing Co., Inc., 110 NLRB 1265; and
the Board has held that a single discriminatory discharge "goes to the very heart of
the Act" and is sufficient to warrant a broad cease and desist order. Virtue Bros. Mfg.
Co., 87 NLRB 1518, 1519. I shall therefore recommend that Respondents be
ordered to cease and desist from in any manner infringing on rights of employees
guaranteed by the Act.
Upon the foregoing findings of fact, and the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Edward J.
Hollins, thereby encouraging membership in a labor organization, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
3. By the above discrimination, thereby interfering with, restraining, and coercing
employees in the exercise of rights guaranteed by Section 7 of the Act, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
21 See The Columbus Show Case Company, 111 NLRB 206, and Radio Officers,, Union etc.
v N. L R. B., 196 F 2d 960 (C. A. 2), affd. 347 'U. S. 1,7, enfg. 93 NLRB 1523, 1527.
re In view of the above findings and conclusions, I consider Immaterial to the issues, and
make no findings on, testimony relating to the Union's negotiations with Respondents over
the discharge after the event or Its internal actions on that subject.
379288-56-vol. 113-40