Mooremack Gulf Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1941

28 N.L.R.B. 869 (N.L.R.B. 1941)

In the Matter Of MOOREMACK GULF LINES, INC. and COMMERCIAL
TELEGRAPHISTS' UNION, MARINE DIVISION, AFFILIATED WITH THE
A. F. OF L.
In the Matter of MOORE-MOCORMACK LINES, INC. and COMMERCIAL
TELEORAPHISTS' UNION, MARINE DIVISION, AFFILIATED WITH THE
A. F. OF L.
Cases Nos. C-1392 and C-1393.-Decided January 3, 19.4.1
Jurisdiction : water transportation industry. r
Unfair Labor Practices
In General
An employer is not justified in discharging employees an the ground that
it did so because of threatened sit-down strikes by a rival labor organization
and that its only alternative was to discontinue operations.
Discrvmtnation: discharges because of membership in charging union and refusal
to join rival union
Remedial Orders : reinstatement and back pay awarded including reasonable
value of maintenance on shipboard ; employer no longer operating any vessels
ordered to place einployee'on a preferential list and to offer him reinstatement
in the event that it resumes operations in the future.
Neither reinstatement. nor back pay barred by fact that approximately
a year elapsed between commission of unfair labor practices and filing of
charges where the delay was occasioned by attempts to arrive at a
settlement.
Definitions : employees held not to have obtained regular. and substantially
equivalent employment.
Practice and Procedure -
Motion to dismiss on ground charges not filed in good faith denied, for
motive of party filing charges is immaterial, the only question being whether
unfair labor practices have been committed as alleged.
Mr. Daniel Baker, for the Board.
Wood, Malloy d France, by Mr. Melville J. France and Mr. Albert
T. Chrystal, of New York City, for the respondents.
Mr. Charlton Ogburn, Mr. C. C. Johnson, Mr. Louis J. Kleinkkaus,
and. Ornstein & Silverman, by Mr..Henry H. Silverman, of New York
-City, for the C. T. U.
Boudin, Cohn di Glickstein, by Mr. Sidney E. Cohn, and Mr. Irving
.I2. Feinberg, of New York City, for the A. C. A.
Mr. Allan Lind and Mr. David H. Karasick, of counsel to the
Board.
28 N. L. R. B., No. 133.
869
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon -charges and amended, charges duly filed by Commercial
Telegraphists' Union, Marine Division, herein called the C. T. U.,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Second Region (New York City), issued its
separate complaints; dated February 6, 1939, against Moore-McCor-
mack Lines, Inc,' herein called the respondent Moore-McCormack,
and Mooremack Gulf Lines, Inc., herein called the respondent Moore-
mack, and, when referred to collectively, herein called the respond-
ents, alleging that each of the respondents had engaged in and
.was engaging in unfair labor practices affecting commerce within the
meaning of Section 81(1) and (3) and Section 2 (6) and (7) of the _
'National Labor Relations Act, 49 Stat. 449, herein called the Act.2
Copies of the complaints accompanied by notices of hearing were duly
served upon the respondents, the C. T. U., 'and the American Com-
munications Association, Marine Division, Local No. 2, herein called
the A. C. A.8
With respect to the unfair labor practices, the complaint against
the respondent Mooremack, as amended during the course of the hear-
ing, alleges in substance that said respondent discharged Joseph Davis
on or about July. 8, 1937, and has since refused to reinstate him because
he joined the C. T. U. and engaged in other concerted activities for
the purpose of collective bargaining and other mutual' aid and pro-
tection and for the reason that he was not a member of the A. C. A.
Concerning the unfair labor practices of the respondent Moore-
McCormack, the complaint, as amended during the course of the hear-
ing, alleges in substance that said respondent discharged eight named
1 Designated in the original complaint and charges as American Scantic Lines; Inc. 'In
September 1938 _the,name American Scantic Lines , Inc., was changed to Moore -McCormack
Lines , Inc. This change was made In the title of this proceeding by ' an order of the Board
-dated February 3, 1939. -
2 On January 30, 1939, the Board ordered that the two instant cases be consolidated
with Matter of Mooremack Gulf Lines , Inc. and American Radio Telegraphists ' Associa-
.taon, Local - No. 2 (Case No . II-R-1027 ) and-with'Matter of Moore-McCormack Lanes, Inc.,
and Ameraeaa Radio Telegraphis
'
ts ' Association , Local No .2 (Case No . II-R-1034) for
all purposes . On April 5 , 1939, the Board ordered that the two latter cases be severed
from the ' present proceedings and be continued as a separate 'consolidated proceeding.
At the same time the Board also ordered that'the two instant cases be continued as a
consolidated proceeding
2 Prior to July 1938 the A. C. A. was known as the American Radio Telegraphists'
Association and is so referred to in the record in many_ instances we shall refer to
both orgumzations as the A C. A
-M00REMACK GULF LINES, INC. 871
,employees 4 on divers dates between August 4 and September 1, 1937,
and has since refused to reinstate said employees because they had
joined and assisted the C. T. U. and engaged in other activities for
the purpose of collective bargaining and other mutual aid and pro-
tection and for the reason that they were not members of the A..C. A;
During the course of the hearing the- respondents filed separate
answers to the complaint against them denying the alleged unfair
labor practices but admitting that they were engaged in interstate
and foreign commerce. -
Pursuant to notice, a hearing on the consolidated cases was held
in New York City on various dates beginning March 20 and ending
on July 26, 1939, before Charles W. Whittemore, a Trial Examiner
duly designated by the Board, and on various dates from July 28
to August 18, 1939, before John T. Lindsay, another Trial Examiner
duly designated by the Board. The Board, the C. T. U.,, and the re-
spondents were represented by counsel and participated in the hear-
ing. At the opening of the hearing on March 20, 1939, the A.C. A.
moved to intervene in the proceeding. Ruling upon this motion
was reserved by the Trial Examiner, who, however, allowed the
A. C. A., by its counsel, to participate in the hearing. - On May 25,
1939, the Trial Examiner granted the motion to intervene.- Full
opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties.
During the course of the hearing the Trial Examiner granted the
Board motion to conform the pleadings to the proof. At the con-
clusion of the Board's case and at the conclusion of the hearing coun-
sel for the respondent Moore-McCormack moved to dismiss the com-
plaint as to Chester Croft. The Trial Examiner did not rule upon
this motion. Croft did not appear to testify at the hearing, nor is
there any evidence in the record with respect to him. The motion is
hereby granted. Also at the conclusion of the Board's case the
A. C. A. and the respondents made several motions to'dismiss the
complaints in their entirety. Trial Examiner Whittemore denied
the motions. At the conclusion of the hearing the A. C. A. and
the respondents renewed their motions to dismiss. Trial Examiner
Lindsay reserved ruling upon these motions. The motions are here-
by denied. During the course of the hearings the Trial Examiners
made several rulings on other motions and on objections to the ad-
mission of evidence. The Board has reviewed the rulings of the
Trial Examiners. The rulings, excgpt as modified herein, are hereby
affirmed.
* Curry Musser, Joseph Galen, Caleb Cope, Lester Rodman, David Leys, Cheater Croft,
Mathew Camillo , and Joseph Bocuzzo.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 20, 1939, the Board, ,in accordance with Article II, Sec-
tion 36, of National Labor Relations Board Rules and Regulations-
Series 2, ordered that these cases be transferred to and continued
before the Board for action pursuant to Article II, Section 37, of said
Rules and Regulations . The Board also ordered that no Interme-
diate Report be issued by the Trial Examiners and that pursuant to
Article II, Section 37 (c), of said Rules and 'Regulations , Proposed
Findings of Fact, Proposed Conclusions of Law, and a Proposed
Order be issued in the consolidated cases. The Board 's order further
provided that the parties herein should have the right within twenty
(20) days from the receipt of said Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order to file exceptions, to
request oral argument before the Board , and to request permission
to file a brief with the Board."
On December 18, 1939, the Board, deeming that certain evidence
excluded by the , Trial Examiners should have been admitted , ordered
that the record in this proceeding be reopened and, remanding the
case to the Regional Director , authorized her to serve notices of a
further hearing for the purpose of introducing evidence relating to
the matters excluded by the Trial Examiners and such other evidence
as might be relevant to certain issues of the case.
Pursuant to notice duly served upon the respondents , the C. T. U.,
and the A. C. A., a further hearing was held before Joseph L. Ma-
guire, the Trial Examiner duly designated by the Board, on various
dates beginning on March 18, 1940, and ending on May 17, 1940.
During the course of the hearing the Trial Examiner made certain
rulings on motions and on objections to the admission of evidence.
The Board has reviewed all'of the rulings of Trial Examiner Maguire
and finds that. no prejudicial errors were committed. The rulings
are hereby affirmed. At the conclusion of the hearing the A. C. A.
and the respondents renewed their motions to dismiss the complaints.
The Trial Examiner reserved decision on these motions . The mo-
tions are hereby denied.
At the close Of the hearing on May 17, 1940, the parties agreed
that, upon the obtaining of certain information called for in the
Board's order of December 18, 1939, a stipulation incorporating such
information would be signed by all parties and forwarded to the
Trial Examiner for inclusion in the record. The Board having been
advised that no such stipulation had been entered into, gave notice
on August 5, 1940, that the record in the matter would be closed on
5 The Board 's Rules and Regulations-Series 2, as amended, now in effect, provide that
the parties may, as a matter of right , file briefs with the Board and that they shall have
thirty ( 30) days from the date of the Proposed Findings of Fact, Proposed Conclusions of
Law, and Proposed Order within which to file such briefs we deem the Board's order
of October 20 to be modified to' the extent that it is inconsistent, with said Rules and
Regulations.
MOOREMACK GULF LINES, INC. 873
August 13, 1940, and granted the parties until August 12, 1940, to
incorporate such a stipulation in the record. No such stipulation
has been entered into by the parties."
On October 19, 1939, and on September 6, 1939, the respondents
and the C. T. U., respectively, submitted briefs in support of their
positions, which the Board has considered?
On September 11, 1940, the Board issued its Proposed Findings
of Fact, Proposed Conclusions of Law and Proposed Order, to which
exceptions, and briefs in support thereof, were filed by the respond-
ents and the A. C. A. Pursuant to notice, a hearing for the purpose
of oral argument was held on November 14; 1940, before the Board in
Washington, D. C. The respondents, the A. C. A., and the C. T. U.
each appeared by counsel and all participated in the oral argument.
The Board has considered the briefs and the exceptions filed by the
respondents and the A. C. A. to the Proposed Findings of Fact,
Proposed' Conclusions of Law and Proposed Order and, in so far as
the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondent Moore-McCormack Lines, - Inc., is a Delaware
corporation with its principal place of business located in New York
City. At the time of the alleged unfair labor practices it was
engaged in the operation of vessels transporting passengers and
freight between ports on the North Atlantic coast of the United
States of America and ports in the Baltic Sea and Scandi-
navian countries. For the year 1938 the respondent Moore-McCor-
mack carried a' total of 522,422 tons of freight. On or about April
1, 1940, the European service above described was discontinued
because of the European War and a proclamation of the President
of the United States forbidding the sailing of any American vessels
to ports which had been served by the respondent. However, the
respondent Moore-McCormack is still engaged in the operation of
vessels in coastwise and foreign service. The extent of such service
is not revealed in the-record."
8In view of the evidence presented at the further hearing and in the light of our
findings set forth below the information called for in the stipulation becomes of no
material importance. The closing of the record, therefore, is not prejudicial to any of the
parties.'
7 See footnote 5, supra
8 The respondents, in their brief, state that the five vessels on which the employees
herein concerned were engaged at the time of the unfair labor practices alleged were sold
to the Brazilian Government on various dates from November 21, 1939, to May 6, 1940,
and that in 1938 the respondent Moore-McCormick, by purchase from the United States
874 DECISIONS . OF NATIONAL, LABOR RELATIONS BOARD
The respondent Mooremack Gulf Lines, Inc., is also a Delaware
corporation with an'office and place of business located in New York
City. At the time of the alleged unfair labor practices it was
engaged in the operation of vessels transporting freight between
coastwise ports on the Atlantic coast and -ports in the Gulf of
Mexico. For they year 1938 the respondent Mooremack carried a
total-of 548,150 tons of' freight. On February 9, 1940, respondent
Modremack sold the last of its ships and since that time has had
no vessels and is no longer engaged in operating any coastwise
service. - -
We find that each of the respondents was engaged in trade, traffic,
transportation, and commerce among the several States and foreign"
countries and that the radio operators employed by each of them
were directly engaged in such trade, traffic, transportation, and -com-
merce. We also find that the; -respondent Moore-McCormack and
the radio operators employed by it are still- engaged in such trade,
traffic, transportation,, and commerce.
II. THE ORGANIZATIONS INVOLVED
Commercial Telegraphists' Union, Marine Division, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to its membership radio operators employed on shipboard
and associated craft telegraphers in marine coastal stations.
American Communications Association, Marine Division, Local
No. 2, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to its membership communications
employees in the marine industry.
III. THE UNFAIR LABOR PRACTICES
A. Background -
Although the alleged unfair labor practices did not occur until
July and August 1937, a knowledge of the events prior to that
time is essential to an understanding of the subsequent occurrences.
In October 1936 a strike of seamen employed on the West Coast of
the United States was called and immediately spread to the East
Coast. The strike on the East Coast was not authorized by the
International Seamen's Union, herein called the I. S. U., a labor
organization of unlicensed seamen on the East Coast, but was car-
ried on by a dissident group known as the "Rank and File". The
Rank and File group was joined by various other seamen's labor
Maritime Commission, "acquired a new service from the United States to the East Coast
of South America which is operated by other vessels, some purchased from the Com-
mission, others chartered from it."
MOOREMACK GULF LINES, INC. 875
organizations such as the Marine Engineers Beneficial Association,
the Masters, Mates and Pilots, and the American Radio Telegraph-
ists' Association, which latter became the A. C. A. A joint strike
committee composed of representatives of the above unions con-
ducted the strike and ordered their respective members to leave the
ships as they arrived in their home ports. Because of the opposi-
tion to the leadership of the I. S. U. to the strike, which it classi-
fied as an unauthorized strike, much confusion arose and many
ships which were manned by I. S. U. crews continued sailing or,
when the crews composed of adherents of the Rank and File refused
to sail, the I. S. U. supplied a new crew on request of the operators.
In response to the strike call of the A. C. A. many of the re-
spondents' radio operators left their vessels and were replaced by
radio operators furnished by the Radio Marine Corporation, the
Mackay Radio Corporation, or from non-union sources.
On January 23, 1937, the strike was terminated, picket lines were
withdrawn, and the members of the respective unions were in-
structed by their union delegates to seek reinstatement and to con-
tinue organizing on shipboard. Although- the- strike was apparently
called off, the organizational campaign was not. According to the
A. C. A. the striking seamen were instructed to continue the union
campaign upon regaining their positions on their respective vessels
and after gaining control of the vessel to conduct sit-down strikes
until recognition was secured and their grievances were met., This
type of organizational campaign continued throughout the summer
and fall of 1937.
By the spring of 1937 the Rank and File group was fully organ-
ized and became the National Maritime Union, herein called the
N. M. U. By this time also, the C. T. U. had chartered the Marine
Division as an organization to include radio operators on thei various
shipping lines. During the spring and summer of 1937, the N. M. U.,
in cooperation with the A. C. A., organized sit-down strikes for the
purpose of ridding the particular vessels on which they were con-
ducted of adherents of the opposing I. S. U. and C. T. U. In many
instances the ship owners were forced to capitulate to the demands
of the stronger unions and discharge members of the opposing
unions. These factors give rise to the present controversy.
B. The discriminatory discharges
1. The discharge of Davis by the respondent Mooremack
The complaint against the, respondent. Mooremack alleges that it
discharged Joseph Davis on or about July 8, 1937, and-thereafter
refused to reinstate him because of his membership in the C. T. U.
876 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because he was not a member of the A. C. ,A., and that by said
discharge and refusal to reinstate, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act. '
Joseph Davis was employed by the respondent Mooremack as a
-radio operator on the S. S. Southland on or about June 25, 1937.
Prior to his employment with the respondent Mooremack he had been
,bngaged as a radio operator for approximately 20 years. The respond-
ent Mooremack concedes that he was a competent radio operator and
that he performed his work satisfactorily while on board the South-
land. Davis became a member of the C. T. U. prior to his employment
-with the respondent Mooremack and so informed the captain of the
Southland when requested- to reveal his union affiliation on the first
day abdard ship.
The circumstances surrounding his discharge reveal that the South-
,land sailed' with a crew' composed ostensibly of I. S. U. members on
June 25, 1937, but that by the time the ship reached New Orleans on
its coastwise trip the unlicensed personnel had switched their affilia
tion to the N. M. U. On July 8, 1937, when the Southland arrived at
New Orleans the third mate of the vessel told Davis that he would
have to "swing over to the union" or be discharged. Davis -refused
to change his affiliation and the crew threatened a sit-down strike
-unless Davis was replaced by an A. C. A. operator. As a result of
this economic pressure exerted by the crew the captain of the vessel
gave Davis 24 hours' notice of his discharge and terminated his em-
ployment. The respondent Mooremack then proceeded to hire an
A. C. A. operator in New Orleans.' Davis reported to the respondent
Mooreiack's agent;ili New Orleans and was supplied with bus fare-
back to New York City. Upon his arrival in New York on July 13,
.1937, he reported the matter to the respondent Mooremack's port
,captain who expressed his regret and paid him his wages'up to the
date of his arrival in New York City.
We find that the respondent Mooremack discharged Joseph Davis
because of his membership in the C. T. U. and his refusal to join the
-A. C. A.
2. The discharges by the respondent Moore-McCormack
I
The complaint against the respondent Moore-McCormack alleges
that it discharged and thereafter refused to reinstate seven named em-
ployees a because of their membership in,'the C. T. U. and because they
were not members of the A. C. A., and \that by said discharges and
refusals to reinstate, it thereby interfered with, restrained, and co-
Curry Musser, Joseph Galen, Caleb Cope, Lester Rodman, David Leys, Mathew
Camillo, and Joseph Bocuzzo.
MOOREMACK 'GULF, LINES; INC. - - - -- - 877-
erced its-employees in the exercise of the rights guaranteed by Section.
7 of the Act.
David Leys and Lester Rodman were engaged as second and third
radio operators, respectively, on the respondent Moore-McCormack's
vessel the.S. S. Scanstates. Rodman was engaged on or about Febru-
ary 23, 1937, while Leys was employed on the Scanstates in November
1936. Leys joined the C'T. U. in March 1937, while Rodman became
a member of the same union in April 1937. Both employees made
successive voyages on the Scanstates to Baltic ports and were consid-
ered by the respondent Moore-McCormack as competent operators.
When the Scanstates arrived in New York City from its Baltic run
on or about August 14, 1937, the three, radio operators were advised
by Captain O'Brien, the master of the vessel, that unless they joined
the A. C. A. they would have to get off the ship since the crew would
not sail with C. T. U. operators. Rodman testified that the three
radio operators then saw Captain Furey, the port captain in charge
of hiring seamen for the respondent Moore-McCormack, who told
them that "he was sorry he could not help us; he could not afford to
have the ships tied up and if we did not "see our ' way to 'join the
A. C. A. the only thing for us to do would be to pack up and leave the
ship." Leys corroborated the testimony of Rodman in -this respect.
Rodman further testified that Michael De Martino, the first radio
operator, who was also a member of the C. T. U. at that time, switched
his affiliation to the A. C.. A. and was retained by the respondent
Moore-McCormack.10 His testimony was not controverted. Both
Rodman and Leys refused to change their affiliation and were paid
off by the respondent Moore-McCormack in New York City and given
train fare to Philadelphia, the final port of discharge.
Captain Furey, the respondent Moore-McCormack's witness, while
not denying the testimony set forth above, testified that the two em-
ployees voluntarily quit their jobs because of the friction between the
unlicensed personnel and the radio operators arising out of their
io The fact that De Martino was retained when he transferred his affiliation from the
C. T. U. to the A. C A. conclusively shows that the radio operators involved in these
proceedings were discharged because they were members of the C. T U rather than the
A. C. A., and not , as contended by the A. C. A., because they were strikebreakers with
whom the crews refused to sail. There is considerable other evidence in the record to
support this conclusion . It may be noted that Captain Fuley testified that delegates of
the N. M. U. insisted that crews composed of their members would not sail with radio
operators who did not belong to the A. C A. The N M U did not object to specific
individuals , nor were its demands based on the fact that any individual had or had not
worked during the period of the strike . On the contrary , its objections to the operators
related only to their union affiliation.
The A C. A. contends that De Martino was a member of that Union who went on
strike on November 16, 1936, and was reinstated on April 7, 1937, pursuant to arrange-
ment between the A. C. A. and the respondent Moore-McCormack . While the record
discloses that De Martino did go on strike on November 16, 1936, it also shows that he
returned to work on April 7, 1937, as a member of the C. T. U and switched his affilia-
tion to the A. C A. under the circumstances related above.
878 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
membership in different unions. We have examined the entire rec-
ord and are satisfied that Rodman and Leys did not quit the ship
voluntarily. The record establishes that they would not have left the
ship if the respondent Moore-McCormack's representatives had not
advised them that they would have to either get off the ship or join
the A. C. A. The fact that De Martino was retained upon changing,
his affiliation to the A. C. A. further convinces us, and we find, that
Rodman and Leys were discharged because of their membership in
the C. T. U. and their refusal to join the A. C. A.
Curry Musser, Caleb Cope, and Joseph Galen were employed as first
radio operator, second radio operator, and third radio operator, re-
spectively, on the respondent Moore-McCormack's vessel the S. S.
Scanpenn2,. Musser was employed on December 5, 1936, Cope on May
1, 1937, and Galen on June 18, 1937. All three were members of the
C. T. U. at the time of their discharge on August 4, 1937. The re-
spondent Moore-McCormack concedes that they were competent radio
operators.
- The Scanpenn operated between ports in the Baltic Sea and ports
on the Atlantic 'coast of the United States. Prior to its- arrival in
New York City on, or about July 28, 1937, the A. C. A. informed the
respondent Moore-McCormack's port captain, Harris, that he would
have to replace the C. T. U. operators with A. C. A. operators or
else suffer the consequences of a sit-down strike. Harris testified that
at that time the N. M. U. crews on the respondent Moore-McCormack's
various vessels were engaging in sit-down strikes unless their de-
mands were met. Harris prevailed upon the representative of the
A. C. A. to permit the C. T. U. operators to make the coastwise trip
from New York to Philadelphia and return before making this
change.
When the ship arrived in New York City, Harris informed Musser,
the first radio operator, that the coastwise trip would be the last trip
of the three radio operators on board the Scanpenn because of their
union affiliation. When the ship arrived in Philadelphia an A. C. A.
port delegate informed Captain Mayo, the master of the vessel, that
three A. C. A. radio operators were coming on board to replace the
three C. T. U. operators and that if the respondent Moore-McCormack
did not accede to this replacement the crew would "sit down." The
captain immediately telegraphed the New York office explaining the
situation and received instructions to discharge the three C. T. U.
operators. Thereupon, the captain called Musser into his office and
informed him that the three C. T. U. operators were to be discharged
in accordance with the instructions that he had received. Musser
thereupon went to see the port shipping commissioner, who, after ex-
amining the shipping articles under which -the radio operators were
MOOREMACK GULF "•LINESI- INC. 879
sailing, informed the respondent Moore-McCormack that the dis,
charge of the three operators in Philadelphia would be a violation
of the shipping articles since the final port of discharge was New
York City. In-order to avoid the consequences of a breach of the
shipping articles , the respondent Moore-McCormack made arrange-
ments to carry the three . A. C. A. operators as passengers while the
three C. T. U. operators remained on duty until the vessel arrived in
New York City on August 4, 1937. Wlien the vessel arrived in New
York City the three C. T. U. operators were discharged and ireplaced
by the A. C. A. operators.
We find that the respondent Moore-McCormack discharged Musser,
Galen, and Cope because of their membership •in the C. T. U. and their
refusal to join the A. C. A.
Mathew Camillo, a member of the C. T. U., was employed as -radio
operator on the S. S. Cliffwood in the latter part of June 1937. Upon
his hiring , the vessel sailed for South American ports and returned
to Philadelphia on or about September 1, 1937. When the ship arrived
in Philadelphia a ,delegate of the A. C. A. came on board and ordered
Camillo off the boat. Camillo refused to leave the vessel. The matter
was then taken up with Captain O'Brien, the captain of the vessel,
who, after some-argument with the A. C. A. delegate, ordered Camillo
off the ship . The respondent Moore-McCormack admits that it in-
structed Captain O'Brien to terminate,Camillo's employment because
the crew would not sail with a C. T. U. operator.
We find that the respondent Moore-McCormack discharged Mathew
Camillo because of his membership in the C. T. U. and his refusal to
join the A. C. A.
Joseph Bocuzzo joined the - C. T. U. on March 11, 1937. He was
employed by the respondent Moore-McCormack on December 3, 1936,
as second radio operator on the S. S. Scanyork . When the vessel
arrived in New York City from its Baltic run on September 1, 1937,
he was told by Captain Frank of the vessel that he -was not'to sign on
again because he had received ordei s - from the respondent Moore-
McCormack to replace the radio operators with men -belonging to the
"other union." Bocuzzo asked Captain Frank if his work had been
satisfactory , and received assurances that=-it was. When the ship
arrived in port on September 1, 1937, Bocuzzo was discharged and
was-replaced by an A. C. A. operator.
We'find that the respondent Moore-McCormack discharged Bocuzzo
because of his membership in the C. T. U. 'and his refusal to join the
A. C. A.
3. The A. C. A.'s contentions
"'The"A . C. A. contends that the replacement of the complainants
was made in the performance of an oral closed- shop agreement be-
880 DECISIONS OF NATIONAIi LABOR' RELATIONS BOARD
tween the A: C: A. and the respondents, whereby., the respondents
agreed to replace the strikebreakers with strikers. We shall examine
this contention.
The record shows that on or about February 15, 1937, the respond-
ents received a letter requesting the reinstatement of all the strikers.
Thereafter, delegates of the N. M. U. and the A. C. A. waited upon
the respondents' vice president, one Lee, in an effort to obtain the
reinstatement of the strikers. The A. C. A. asserts that Lee verbally
agreed to reinstate all the strikers and discharge the strikebreakers.
However, the respondents deny this assertion and contend that they
merely agreed to reinstate certain specified strikers if, and when,
vacancies occurred. The only evidence offered by the A. C. A. in sup-
port of its contention is the testimony of several of its members that
they had heard that the respondents-had agreed to reinstate all the
strikers and discharge the strikebreakers. On the other hand', the only
direct evidence in the matter, including the testimony of the respond-
ents' witnesses together with a letter from the A. C. A. setting forth
the names of the strikers to be reinstated, shows that the respondents
had merely agreed to reinstate specified strikers when vacancies oc-
curred. The subsequent action of the respondents in reinstating cer-
tain strikers when vacancies occurred corresponds to their claim. We
find that the respondents merely agreed to reinstate certain specified.
strikers if, and when, vacancies occurred.
On and after September 1, 1937, the respondents as a general rule
hired A. C. A. operators because, according to the respondents, they
were the only operators available. Furthermore, the respondents had
learned that the hiring of C. T. U. operators only provoked trouble
on board its vessels. However, there is no showing of an, agreement
between the respondents and the.A. C. A. whereby they agreed to use
only A. C. A. operators:
We find that the contention raised' by the A. C. A. to the effect that
a closed-shop contract provided the motive for the discharge of the
C. T. U. operators in the present instance is without merit.
The A. C. A. contends further that the complainants in the present-
proceeding were strikebreakers and are therefore not entitled to the'
protection of the Act. It appears that during the general strike of
seamen on the East Coast in the-latter part of 1936 and the early part
of 1937, Curry Musser, Joseph Bocuzzo, and David Leys 11 were hired
by the respondent Moore-McCormack and did not join the strike. It also
appears' that they replaced certain employees who had- gone out on'
strike in response to the strike call. As to the remaining complainants
"Davis was not hired by the respondent Mooremack during the strike. However, he
worked on another shipping line during the strike and refused to join It., The A. C. A.
therefore considers him as a strikebreaker.' -
• -!- -M00REMACK= GULF-LINES,' INC. • • - - = - - 881
it is clear that they were hired by the respondents after the conclusion
of the strike and cannot, therefore, be considered as strikebreakers. •
As to the afore-mentioned complaints there is nothing in the Act
which, precludes them from its protection. Since the strike was not
caused or prolonged by any unfair labor practices, the respondent
Moore-McCormack was free to procure other workers to replace the
strikers and was not thereafter bound to discharge those hired to fill
the places of the strikers.12 Upon the termination of the strike, the
respondent Moore-McCormack chose to retain the persons hired to
replace the strikers, and agreed to reinstate the strikers-if, and when,
vacancies occurred. The strike having thus been settled, the tenure
of the persons who had replaced the strikers was no longer defeasible,
and any change thereafter in the hire and tenure of employment of
those persons because of their union affiliation and activities consti-
tuted a violation of the Act.
The A. C. A. contends further, however, that the threatened sit-
down strikes which resulted in the termination of the services of the
complainants were but a continuation of the general strike which ap-
parently ended in January 1937, and that the complainants were
therefore 'replaced in the settlement of the strike. We cannot agree
with this contention. The record is clear that the strike which began
in October 1936 ended on or about January 23, 1937. The pickets
were withdrawn'13 employers were informed of the termination of the
strike, and the striking employees were instructed to go-back to their .
jobs. On the face of this record we cannot find that the subsequent
threatened sit-down strikes were but a continuation of the general
strike and that the complainants were replaced in settlement thereof.
We therefore' find the contentions of the A. C. A. to be without
merit. We shall now proceed to examine the contentions raised by the
respondents. - -- -
4. The respondents' contentions
The respondents contend that by virtue of the shipping- articles,
which are "signed on" by seamen upon 'the 'start of a voyage and
"signed off" upon the ship's return to its home port, the complainants
were no longer employees within the meaning of the Act,when they
"signed off" the vessel at the end of the voyage. Since the respond-
12National Labor Relations Board v. Mackay Radio if Telegraph Company, 304 U S
333, rev'g 92 F. (2d) 761 (C C. A 9) and enf 'g Matter of -Mackay Radio if Telegraph
Company, a Corporation and American Radio Telegraphists ' Association , San Francisco
Local No 3, 1 N. L. R. B. 201.
13 Although two members of the A. C. A. testified that they engaged in picketing after
January 23 , 1937, it does not appear that their activities in that respect were carried on
as a part of , or in continuation of, the general strike which began in 1936 , as related
above.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents apparently urge this as a defense for their action in removing the
C. T. U. operators, we shall consider this defense at the outset.
The record, shows that seamen are required by Federal law to, sign
a-standardized form of foreign ship] ing articles for the }duration of
the voyage to and from the home port. The record also indicates that,
although the signing of articles at the beginning and end of each
foreign voyage is required by law and is a formality adopted by the
respondent Mooremack on domestic voyages, seamen employed by the
respondents are continuously employed, from voyage to voyage, unless
they are discharged or leave the ship voluntarily. Many of the radio
operators involved in these proceedings had made six or seven voyages
and had been steadily employed for 8 or 10 months. Captain Furey,
formerly port captain and presently marine superintendent and
chief of operations of the respondent Moore-McCormack, as well as
several of the complainants, testified that the respondents' policy at
the end of a voyage was to sigh the same members of the crew on for
the succeeding voyages unless they were unsatisfactory or left the ship
of their own accord.
In the light of the foregoing facts, we conclude that, although sea-
men "sign on" and "sign off" articles, their employment in the absence
of other circumstances does not terminate with the voyage, but
continues from voyage to voyage as a matter of course 14
The respondents also contend that the complainants are barred by
lathes from .enforcing a claim of reinstatement or -back pay inasmuch
as the complaints were not issued until February 6, 1939, more than a
year and a half after the commission of ,the alleged unfair labor prac-
tices. The records show that the charges were filed on July 15, 1938,
approximately a year after the commission of the alleged unfair labor
practices." The C. T. U. asserts that the delay in filing charges was
14 See Waterman Steamship - Corp. v National Labor Relations Board , 309 U. S. 206,-
enf'g Matter of Wateiman Steamship Coil). and National Maritime Union of America,
Engine Division, Mobile Branch, Mobile, Alabama, 7 N. I, R B. 237.
15 The respondent and the A. C . A also contend that the C. T U. did not file charges,
In good faith but did so only for the purpose of preventing certification of the A C. A.
after the latter union had filed its petition in the representation proceedings ( see footnote
2, supra ). To the extent that this contention is to be considered apart from the question
of lathes, we regard it as without merit . It is both normal and proper foi a labor
organization to institute charges as a means of informing the Board that a rival labor
organization which is seeking to be certified is not the proper representative of the em-
ployees by reason of the fact that it has attained its position as the result of the com-
mission of unfair labor practices . No imputation of impropilety may be-drawn from
the fact that the C. T U. may have filed the charges in this case because it wished to
protect its rights as they Blight be affected by the possible certification of the A. C. .%
Nor is the Board, in entertaining charges , concerned with the motive of the party which,
has filed them . The sole concern of the Board in such a case is whether or•not {unfair
labor pi actices , actually have been committed as alleged -in the charges so filed Whether
or not the Board, in the exercise of its discretion , might legaid the lack of . good faith,
of a party which has filed charges as _a ground for withholding remedial relief is a;
,question with which we are not here concerned, for we are satisfied that no such lack of,
good faith has been shown with respect to the C. T U in this case
MOOREMACK GULF LINES, INC. 883
due to an attempt on its part to arrive at a settlement of the case before
taking any formal action. The record supports this assertion. We
do not believe that the employees should be penalized for attempting to
arrive at a settlement of the case before filing charges. In addition, as
noted below, each of the employees secured other positions subsequent
to the time of discharge and were therefore away at sea during the
greater part of this period. It was obviously difficult for them to in-
dividually seek a settlement or institute the filing of charges within
the short periods they spent in port between trips, and even more
difficult for thein to take part in joint action since their ships arrived
and departed at different times` Moreover, as we said in the Colorado
Milling & Elevator Company case: 11
... The Board acts in the public interest to effectuate an im-
portant national policy designated to eliminate the causes of
certain obstructions to the free flow of commerce by the mitiga-
tion and elimination of unfair labor practices which tend to cause
industrial strife and unrest. Such benefits as the Board's re-
lnedial orders confer upon individual employees are only incidental'
to the exercise of its power to effectuate the policies of the Act by
remedying conditions created by unfair labor practices. It is
well settled that the equitable principle of laches is not applicable
to the government acting in the public interest."
The respondents' claim of laches is without merit.''
Finally, the respondents urge that they were compelled to dis-
charge the complainants at the insistence of the N. M. U. crews on
the various vessels and that the only alternative was to discontinue
operations. The existence of the N. M. U.'s pressure upon the re-
spondents to effect the discharge of the complainants with the threat
of a series of sit-down strikes is established beyond question. How-
ever, the record is equally clear that the complainants were dis-
charged by the respondents because of their membership in the
C. T. U. and their refusal to join the A. C. A. when the respondents
capitulated to that pressure. As we have heretofore stated, "The Act,
which is paramount, prohibits such discrimination for union activity
without exception predicated upon circumstances or conditions which
here induced the discrimination." 19 To hold otherwise would vir-
tually nullify the Act in any situation where rival labor organizations
19 Matter of Colorado Milling d Elevator Company and Denver Trades and Labor As-
sembly, 11 N L. R B 66.
11.See United States v Nashville, Chattanooga d St Louis Railway Company, 118 U S.
120, 125; United States v. Beebe , 127 U S 338, N5; United States v Insley, 150 U. S
263, 266, Federal Trade Commission v Algoma Lumber Co et at , 201 U S 67
"See also Matter of Charles Banl,s Stout, et al , doing business as Majestic Flour Mills
and Federal Labor Union No. 20028 , affiliated with the Anieiiean Federation of Labor,
15 N L R B 541.
19 Matter of Cape Cod Trawling Corporation and American Communicatio,R Aeuociation.
affiliated with the C I 0, et al , '23 N L R B 208
413507-42-vol 28--57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were involved. "It would mean that an employer would be relieved
of all obligation under the Act merely upon a showing of pressure
and consequent probable loss from one of the rival 'organizations.
The result would be that the rights supposedly guaranteed by the
Act, whether of a majority or a minority group; would be at the
mercy of an employer and of rival groups in any case where the
rival group chose 'to exert pressure and the employer chose to take
advantage of it." 20
We see no reason for changing our opinions set forth in the cases
cited. We find that the contentions raised by the respondents are
without merit.
'5. Conclusions
We have examined the various contentions raised by the respond-
ents and the A. C. A. and found them without merit. In conclusion
we find that the respondent MoCremack, by discharging and refusing
to, reinstate Joseph Davis, discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in the
C. T. U. and encouraging membership in the A. C. A. and interfer-
ing with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act. We -also find that
the respondent Moore-McCormack, by discharging and refusing to
reinstate Lester Rodman, David Leys, Curry Musser, Joseph Galen,
Caleb Cope, Mathew Camillo, and Joseph Bocuzzo, discriminated in
regard to their hire and tenure of employment, thereby discouraging
membership in the C. T. U. and encouraging membership in the
A. C. A. and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section'
III above, occurring in connection with the operations of the respond-
ents described-in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and 'commerce among the several
States and foreign countries, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE RFMEDY
We have found that the respondents have engaged in c'ertain'
unfair labor practices. In order to effectuate the policies of the Act,
m Ibid See also National Labor Relations Board v . Star Publishing Company, 97; F.
(2d) 465 (C. C. A 9) enf'g Matter of Star Publishing Company and Seattle Newspaper
Guild, Local No 82, 4 N L. R B 498 ; Matter of Trawler Maris Stella , Inc. and American
Communications Association ( C. 1 0 ), 12 N L R B 415; Matter of Isthmian Steamship
Compan y and National Mai itime Union of America, 22 N L R B 689
MOOREMACK GULF LINES, INC. 885,
we shall order them to cease and desist therefrom and to take certain
specified affirmative action to remedy the effect of such unfair
labor practices. Since we have found that the respondent Moore-
McCormack discriminatorily discharged Lester Rodman, David, Leys,
Curry Musser, Joseph Galen, Caleb Cope, Mathew Camillo, and
Joseph Bocuzzo, we shall order the respondent Moore-McCor-
nlack to offer the afore-mentioned individuals reinstatement to their
former or substantially equivalent. positions without prejudice to
their seniority and other rights and privileges. Furthermore, we shall
order the respondent Moore-McCormack to make said, individuals
whole for any loss of pay they may have suffered by reason of their
discharge by payment to each of them of a sum equal to the amount.
which they normally would have earned as wages from the date of
their discharges to the date of the offer of reinstatement, less their
net earnings 21 during said period.
We have also found that the respondent Mooremack discrimina-
torily discharged Joseph Davis. Due to the fact that the respondent
Mooremack has sold all of its vessels as of February 9, 1940, and is
no longer operating any vessel, we shall not order Davis' reinstate-
ment. However, we shall order the respondent Mooremack to place
Davis upon a preferential list and offer him reinstatement to his
former or substantially equivalent position in the event that it re-
slunes operations in the future. Furthermore, Davis is entitled to
be made whole for any loss of pay he may have.suffered as a result
of his discriminatory discharge. We shall order the respondent
Mooremack to pay to Davis a sum of money equal to the amount he
would have normally earned as wages from the date'of his discharge
to the date the respondent Mooremack ceased operations as a shipping
concern, and from the date it resumes operations to the date he is
offered reinstatement, as set forth above, less his net earnings 22
during said periods. , '
The record shows that radio operators, In addition to monetary
wages, receive from the respondents their maintenance on shipboard.
Accordingly, in determining the amount of back pay to be awarded
the complainants, we shall order that the reasonable value of their
21 By "net earnings" is meant earnings less expenses, such as for transportation, room,'
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440 Monies
received for work performed upon Federal, State, county, municipal, of other work-relief
projects shall be considered as earnings See Republic Steel Corporation v National
Labor Relations Board, decided by United States Supreme Court, November 12, 1940
22 See footnote 21, supra
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintenance on shipboard be added to the amount of their monetary
compensation from the respondents.23
The respondents and the A. C. A. contend, however, that the Board
lacks the power to order the reinstatement with back pay of the eight
persons discriminatorily discharged on the ground that such persons
have obtained other regular and substantially equivalent employment.
While we do not adopt, the view that the obtaining of other regular
and substantially equivalent employment deprives the Board of the
power to order the reinstatement of employees who have been dis-
criminated against and desire reinstatement'24 the'record in the present
instance does not, in any event, justify the application of the rule for
which the respondents and the A. C. A. contend.25
Joseph Davis was employed by the respondent Mooremack as a radio
operator on the S. S. Southland at the pay rate of $125 a month. After
his discharge from the respondent' s line on July 9, 1937, Davis received
a position as second radio operator on the S. S. Colombia, a vessel
belonging to the Colombian Lines, at the pay rate of $125 a month.
On November 9, 1937, he was transferred to the S. S. Haiti as chief
radio operator at the pay rate of $140 a month. On or about April 4,
1938, the Colombian Lines went out of business and as a consequence
Davis was discharged. He received his next position on the S. S.
Zarembo at the pay rate of $125 a month. This position lasted from
May 24 to August 20, 1938, when the ship was tied up. From Sep-
tember 7 to 20, 1938, Davis was employed on the Sea Train Havana at
the pay rate of $125 a month. From November 7 to 17, 1938, he
worked on the S. S. Otho as relief operator at the pay rate of $125 a
month. He left this employment upon the receipt of a letter from
a C. T. U. representative informing him that he was to be reinstated
to the respondent Mooremack's line. However, the negotiations for
his reinstatement fell through and lie was not reinstated. ' There-
after, from December 23, 1938, to January, 10, 1939; Davis.worked.on
the S. S. Comet as relief operator at the pay rate of $130 a month.
Davis was unemployed at the time of the hearing.
We find that Joseph Davis has not received regular and substantially
equivalent employment.
23 Waterman Steamship Corp v N. L. R B et al , 309 U S. 206, rev'g 103 F (2d) 157
(C. C A. 5) and enf 'g Matter of Waterman Steamship Coip and National Maritime
Union of America, Engine Dii,ision, Mobile Bianch, Mobile, Alabama, 7 N. L R B 237
24Matter of Eagle-Picker Mining t Smelting Company, et at. and International Union
of Mine, Mill cC Smelter Worl,cns, Locals Nos 15, 17, 107, IOS, and 111, 16 N L R B 727;
Continental Box Co . Inc N N L R B, June 27, 1940 (C C A 5), 113 F (2d) 93, enf'g
Matter of Continental Box Company, Inc and Federal Laboi Union No 21728, 19 N L R B
860
See Mooresville Cotton Mills v N L. R. B, 110 F (2d) 179, enf'g as mod Matter of
Mooresville Cotton Mills and Local No 1221, United Textile Workers of America, 2
N. L R. B. 952 and 15 N L R. B 416.
MOOREMACK GULF LINES, INC. 887
Lester Rodman had been in the employ of the respondent Moore-
McCormack for approximately 6 months. Upon the termination of
his employment on August 16, 1937 , - Rodman was being paid at the
rate of $125 a month . On September 8, 1937 , he obtained a position
as radio operator on the steamship Dixie Arrow, a vessel , belonging
to the Socony Vacuum Oil Company. He started at $120 a month
and was later raised to $130. Rodman retained this position until
April 5, 1938 , when the ship was tied up and went out of service. His
next employment was on the steamship Wilton of the Eastern Steam-
ship Lines . This lasted for only 3 or 4 days and Rodman earned but
$20 for the trip. He next obtained a temporary position on the steam-
ship Gulf Down of the Gulf Oil Company as a relief radio operator.
The job lasted from April 20 to June 8, 1938. On June 28 , 1938, he
started working on the steamship Robert E. Lee at $115 a month.
He was employed on this vessel at the time of the hearing. Rodman
expressed a desire to be reinstated on the Moore -McCormack Lines.
He testified that the respondent Moore-McCormack's line was a better
line-that- he was treated "nicer" and that he received better pay.
We find that Lester Rodman has not received regular and.sub-
stantially equivalent employment.
David Leys was employed as a second radio operator and was
being paid at the rate of $120 a month upon the termination of his
employment by the respondent Moore-McCormack on August 16, 1937.
He had been steadily employed by the respondent for approximately
10 months. On September 14, 1937, Leys- obtained a position as
radio operator with the Cubore Steamship Company at the rate of
$125 a month. He was so employed at the time of the hearing.
Despite the fact that he was earning more on the Cubore Line
that he had been earning with the respondent Moore-McCormack,
Leys expressed a desire to be reinstated . He testified that he pre-
ferred working for the respondent Moore-McCormack because the
Cubore boats loaded and discharged their cargo so quickly that
there was a very short lay-over in port. On the other hand, the
8canpenn laid over 3 nights in port and Leys had an opportunity
to get home . Leys stated that this was one of the reasons he pre-
ferred working for the respondent Moore-McCormack.
We find that Leys has not received regular and substantially
equivalent employment.
Curry Musser. At the time of his discharge on August 4, 1937,
Musser was employed as chief radio operator on the respondent
Moore-McCormack 's vessel the Scanpenn . He had been employed
steadily for ,a period of 9 months and was being paid at the rate
of $135 a month . Upon the termination of his employment on Au-
gust 11, 1937, Musser obtained a position as third radio operator
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the S. S. Seminole, a passenger and freight vessel belonging to
the Clyde Mallory Lines. He was hired at the rate of $110 a
month. On November 15, 1937, he was advanced to the position of
second radio operator and received an increase in wages from $110
a month to $125 a month. From October 15 to December 15, 1938,
he suffered a wage cut of $10 a month due to the fact that the
ship operated solely as a freighter during this period. He was still
employed at the time of the hearing at a pay rate of $125 a month.
He expressed a desire to be reinstated to the respondent's line.
We find that Musser has not received regular and substantially
equivalent employment.
Caleb Cope was first employed as third radio operator on the
respondent Moore-McCormack's Scanpenn. Later he was advanced
to the position of second radio operator. Upon the termination of
his employment on August 4, 1937, he was being paid at the rate
of $120 a month. On August 18, 1937, Cope obtained a position
as a radio operator on the S. S: City of Fort Worth, a freight vessel
belonging' to the Southern Steamship Company. He was hired at
the rate of $115 a month. Sometime after September 15, 1938, he
received an increase in pay to $120 a month. He was so employed
at the time of the hearing. Cope testified that he preferred his
former position with the respondent Moore-McCormack to the posi-
tion he held at the time of the hearing. He expressed a preference
on the ground that on the respondent Moore-McCormack's line there
was a possibility that he might be advanced to chief radio operator
and that the experience gained' on the respondent Moore-McCor-
mack's passenger vessel was more valuable than the position he held
at the time of the hearing which was on a freight vessel.
We find that Cope has not received regular and substantially
equivalent employment.
Joseph Galen was employed on the respondent Moore-McCormack's
Scanpenn as third radio operator and was earning $110 a month at
the termination of his employment on August 4, 1937. Two weeks
later he'obtained a relief job on the S. S. Volusia, a vessel belonging
to the Merchants & Miners Line, at the pay rate of $115 a month. This
job lasted until August 27, 1937. Following this he obtained a-3-day
trip on the S. S. Governor John Lynn, a vessel belonging to the Bull
Line, at $115 a month; then a 6-day trip on the S. S. Montropee for
which Galen earned $75. From November 6, 1937, to April 29, 1938,
Galen worked on the S. S. Mommnystic, a vessel belonging to the Water-
man Steamship Company, at the pay rate of $125 a month. The ship
was tied up on the latter date and 'from May 20 to June- 14, 1938, he
worked on the S. S. Colabee, a vessel belonging to the American Range
Line, at the pay rate of $115 a month. He testified that he left the
""MOOREMACK GULF-LINES, INC. 889
Colabee because of poor living conditions. From July 30 to August
19, 1938, Galen worked on the City of Fort Worth, a vessel belonging
to the Southern Steamship Company, at the pay rate of $120 a month'.
He was employed as a relief operator and with the return of the,
regular operator he was released. From September 22 to December 7,
1938, he worked on the Steamship Roanoke, a vessel belonging to the
Merchants & Miners Line, at the pay rate of $115 a month. Because
he had less seniority than other radio operators employed by the com-
pany, he was released from this position when the company tied up
several! of its vessels. From December 18, 1938, to January 6, 1939,
he had a relief job on the Suo?.beam., at the pay rate of $130 a month.
At the time of the hearing he was employed, on the steamship Mil-
linocket, a tramp freighter belonging to the Bull Line, at the pay rate
of $115 a month. Galen expressed a desire to be reinstated. He testi-
fied that he preferred working for the respondent Moore-McCormack
because it was steadier employment and because living conditions were
better.
We find that Joseph Galen has not received regular and substan-
tially equivalent employment.
Mathew Camillo. At the time of his discharge from the respond-
ent Moore-McCormack's line on September 1, 1937, Camillo was earn-
ing $125 a month. On September 9, 1937, he received a position as
radio operator on the Gulfwax, a vessel belonging to the Gulf Refining
Line, at the pay rate of $115 a month. This lasted until October 27,
1937, when he left the boat because of the, low pay. From November
23, 1937, to June 25, 1938, he was working on the En,sley City, a vessel
belonging to the Isthmian Steamship Line, at the pay rate of $125
a month. On August 4, 1938, he secured a position on a freight boat
belonging to the Clyde Line at the pay rate of $125 a month. He was
so employed at the time of the hearing. Camillo expressed a desire to
be reinstated stating that he preferred the environment on the respond-
ent Moore-McCormack's vessel and that the living conditions were
better than on any of the afore-mentioned lines.
We find that Mathew Camillo has not received regular and substan-
tially equivalent employment.
Joseph Bocuzzo had been steadily employed by the respondent
Moore-McCormack for a period of 10 months prior to the termination
of his employment. At the time of his discharge on September 1,
1937, from the Scanyork, Bocuzzo was being paid at the rate of $135
a month. After his discharge he obtained employment on the S. S.
Allegheny on December 21, 1937, as a radio operator at the rate of
$120 a month. This job lasted until January 10, 1938. Beginning
February 19, 1938, Bocuzzo worked on the S. S. Dorothy at the rate
of $140,a month. This job ended on March ,18, 1938. Both of the
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afore-mentioned jobs were relief jobs, temporary in nature. On April
1, 1938, Bocuzzo was employed on the S. S.-Marore as radio operator
at the rate of $125 a month. This job was also a relief job and lasted
until May 8, 1938. From, May 31 to June 20, 1938, Bocuzzo worked
on the S. S. Allegheny as a relief operator at the rate of $105 a month.
He then worked 2 weeks and 3 days, respectively, on the S. S. Oneida
and the S. S. Alamo at the rate of $125. Both of the afore-mentioned
jobs were vacation jobs, temporary in nature. On December 20, 1938,
Bocuzzo obtained a position on the S. S. Colabee at the rate of $115 a
month. He was still employed on the Colabee at the time of the first
hearing. Bocuzzo testified that he preferred working on the Scanyork
because it was on a scheduled run, whereas the Colabee was not. Fur-
thermore, he stated that the living conditions on the respondent Moore-
McCormack's line were better.
We find that Joseph Bocuzzo has not received regular and sub-
stantially equivalent employment.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW,
1. Commercial Telegraphists ' Union, Marine Division , and American
Communications Association , Marine Division , Local No. 2 , are labor
organizations , within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to -the hire and tenure of employ-
ment of Lester Rodman , David Leys , Curry Musser , Joseph Galen,
Caleb Cope , Mathew Camillo, and Joseph Bocuzzo, thereby discourag-
ing membership in the Commercial Telegraphists ' Union, Marine Di-
vision, and encouraging membership in the American Communications
Association , the respondent Moore-McCormack has engaged in and
is engaging in unfair labor practices , within the meaning of Section
8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaraniteed by Section 7 of the Act, the
respondent Moore-McCormack has engaged in and is engaging in
unfair labor practices , within the -meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7)
of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of Joseph Davis , thereby discouraging membership in the Com-
niercial Telegraphists ' Union and encouraging membership in the
American Communications Association , the respondent Mooremack
has engaged in and is engaging in unfair labor practices , within the
meaning-of Section 8 (3) of the Act.
MOOREMACK GULF LINES, INC. 891
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent Mooremack has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. -
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent Moore-McCormack, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Commercial Telegraphists' Union
or encouraging membership in the American Communications Asso-
ciation, or encouraging or discouraging membership in any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
employment because of membership or activity in Commercial Teleg-
raphists' Union or airy other labor organization;
(b)'In any other-mailer interfering with, restraining, or coercing
-its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section ,7_ of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Lester Rodman, David Leys, Curry Musser, Joseph Galen,
Caleb Cope, Mathew Camillo, and Joseph Bocuzzo, respectively, im-
mediate and full reinstatement to their former positions without
prejudice to their seniority and other rights and privileges and make
them whole for any loss of pay they have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of em-
ployment, by payment to them of a sum of money equal to that which
they would normally have earned as wages, including therein the
reasonable value of their maintenance on shipboard, during the period
-from the date of such discrimination against them to the date of the
offer of reinstatement, less their net earnings 26 during said period;
26 See footnote 21, supra
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post immediately in conspicuous places on its vessels, and-main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating : (1) that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a) and (b) of this Order; (2) that the re-
spondent Moore-McCormack will take the affirmative action set forth
in paragraph 2 (a) of this Order; (3) that the respondent Moore-Mc-
Cormack's employees are free to become or remain members of the
Commercial Telegraphists' Union and- that the respondent Moore-
McCormack will not discriminate against any employee because of
membership or activity in that organization;
(c) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent Moore-McCormack has taken to comply therewith.
On the basis of the above findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent
Mooremack, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Commercial Telegraphists' Union
or encouraging membership in the American Communications Asso-
ciation, or encouraging or discouraging membership in any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or in any other manner discriminating in regard
to their hire and tenure of employment or any term or condition of
employment because of membership or activity in Commercial Teleg-
raphists' Union or any other labor organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ies for the purposes of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Place Joseph Davis on a preferential hiring list and, provid-
ing the respondent Mooremack resumes operations as a shipping con-
cern in the future, offer him immediate employment to his former or
substantially equivalent position without prejudice to his seniority
and other rights and privileges ;
' (b) Make whole Joseph Davis for any loss of pay he has suffered
by reason of the respondent Mooremack's discrimination in regard to
his hire and tenure of employment, by payment to him of a sum _ of
MOOREMACK GULF LINES, INC. 893
money equal to that which he would normally have earned as wage's,
including therein the reasonable value of his maintenance on ship-
board, during the period from the date of such discrimination against
him to the date when the respondent Mooremack ceased operations as
a, shipping concern, and from the date the respondent Mooremack
resumes operations to the date of the offer of employment as set forth
in the preceding paragraph, less his net earnings 27 during said periods.
Ma. WILLIAM M. LEISERSON, concurring:
I concur in this decision since I feel bound by the ruling of the
majority of the Board in the Matter of Cape Cod Trawling Corpora-,
tion et al. and American Communications Association, afliated with
time C. I. 0.28
CHAIRMAN HARRY A. MILLIs' took no part in the consideration of
the above Decision and Order.
87 See footnote 21, supra.
88 23 N. L. R. B. 208.
r