Prigg Boat Works

National Labor Relations Board - Board Decisions

Jun 27, 1946

69 N.L.R.B. 97 (N.L.R.B. 1946)

In the Matter of H. PAUL PRIGG, AN INDIVIDUAL, DOING BUSINESS
UNDER THE NAME AND STYLE OF PRIGG BOAT WORKS and INDUSTRIAL
UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O.
Case No. 10-C-1660.-Decided June 27,19-116
DECISION
AND
ORDER
On July 21, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that the respondent cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report. On May 28, 1946, the
Board, at Washington, D. C., heard oral argument, in which the
respondent participated.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board, has considered the Intermediate Report, the
respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications, exceptions,
and additions :
1. We agree with the Trial Examiner's finding that the respondent
discriminated in regard to the hire and tenure of employment of
Kenneth Ekelberry, Henry Berry, D. H. Wood, J. P. Wood, H. P.
Belknap, P. G. Watton, and Joe Craig in violation of Section 8 (3) of
the Act. In addition to the Trial Examiner's subsidiary findings, we
find upon the entire record that the union activities of these seven
employees were known to the respondent at the time of the discrimina-
tion against them. In addition to the factors indicating such knowl-
edge, set forth in the Intermediate Report, we particularly base our
finding that the respondent had such knowledge upon the circum-
stance, not mentioned in the Intermediate Report, that employee D.
H. Wood obtained from employees J. P. Wood, H. P. Belknap, G.
Watton, and Joe Craig their signatures to union cards in the presence
69 N L. R B., No.11. q7
701592--47-vol. 69--8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Foreman Anderson , a management representative , before the re-
spondent transferred those five employees to work at Johnson's, re-
ferred to in the Intermediate Report, and the further circumstance
that, after completion of the work at Johnson 's, the respondent
retained in employment the only three non-union employees who had
been transfered to work at Johnson 's but none of the six transferees
who were union adherents.
2. We do not adopt the Trial Examiner 's findings that Berry's
assignment to work at Johnson's yard did not constitute reinstatement
to his former or a substantially equivalent position and that the trans-
fer of the other five employees' to Johnson 's yard effected a discrimi-
natory discharge of them. Berry was assigned to work at Johnson's
yard pursuant to a settlement agreement , approved by the Board's
Regional Director . The transfer of the other five employees was also
effectuated with the consent of the parties concerned and did not con-
stitute a termination of the employment relationship with the respond-
ent. However , upon the entire record we find that, in failing or re-
fusing to reinstate the six employees after the work at Johnson's had
been finished on or about February 7, 1945, as set forth in the Inter-
mediate Report, the respondent thereby discriminated in regard to
their hire and tenure of employment in violation of Section 8 (3) of
the Act.
3. While we adopt the Trial Examiner 's conclusion that the respond-
ent thus discriminated against the six employees, in our opinion the
discrimination took the form of selection of these employees for non-
employment as part of a general reduction in the respondent 's work-
ing force , which general reduction was itself not discriminatorily
motivated . So far as appears , after the discrimination, the respond-
ent hired no new men and has since continued business with a reduced
personnel . Under these circumstances , sufficient positions may not be
available for the six employees affected by the respondent 's discrimi-
nation who desire reinstatement' We shall accordingly order the
respondent to reinstate the six employees in the following manner:
each of these named employees shall be reinstated to the position that
he occupied or would have occupied but for the respondent 's discrimi-
nation , or to a substantially equivalent position , without prejudice
to his seniority and other rights and privileges , the respondent to dis-
miss , if necessary , all persons now employed in the same or similar
positions who were hired or rehired after the respondent 's discrimina-
tion on or about February 7, 1945; if, after dismissal of all such em-
ployees , there are insufficient positions for all employees remaining,
1 D H Wood, J P. Wood, Belknap, Watton, and Craig.
2 Inasmuch as the seventh employee , Ekelberry , who was discharged , does not desire to
return to work for the respondent , we shall not order his reinstatement.
PRIGG BOAT WORKS 99
including the six named employees, the available positions shall be
distributed among all employees, without discrimination against any
employee because of his union membership or activity, following
such a system of seniority or other non-discriminatory practice to
such an extent as has heretofore been applied in the conduct of the
respondent's business ; those employees, if any, remaining after such
distribution, for whom no employment is immediately available, shall
be placed on a preferential list, with priority determined among them
in accordance with such system of seniority or other non-discrimina-
tory procedure as has been heretofore applied by the respondent in
the conduct of his business, and thereafter, in accordance with such
list, shall be offered reinstatement to positions as provided above, as
such employment becomes available and before other persons are
hired for such work.
We shall also order the respondent to make whole the six employees
for any losses incurred because of the respondent's discrimination
during the period from the date of the discrimination to the date of
the respondent's offer of reinstatement or placement of their names
upon the preferential list, less net earnings as defined in the Inter-
mediate Report. It is possible that one or more of the six employees
might have been discharged in the general reduction of the work
force, even if the respondent's selection had been made on a non-
discriminatory basis. This possibility will be taken into consideration
in determining the amount due to the employees in compliance with
our order herein.
We also expressly reserve the right to modify the back-pay and re-
instatement provisions if made necessary by a change of conditions
in the future, and to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a
specific set of circumstances not now appearing.3
4. We agree with the Trial Examiner's finding that the Union repre-
sented a majority of the employees at all times between January 13
and February 10, 1945. We also agree with the Trial Examiner that
the appropriate unit on February 10 consisted of 27 employees, of
whom 14 were union members, and that the respondent's 3 watchmen,
including Percy Adams, were properly excluded from the appropriate
unit. Two of them, O'Rourke and Young, are indisputedly, solely
watchmen.4 The respondent contended at the oral argument that the
4 Matter of Fairmont Creamery Company, 64 N L. R. n. 824, ef. N. L. R. B v New
lurk Merchandise Company, Inc, 134 F (2d) 949 (C C A 2) ; International Union of
Mine Workers v. Eagle Picher Mining t Smelting Co , 325 U S 335
' Out finding excluding non-militarized and non - deputized watchmen from the appropri-
ate unit should not he taken to represent our view as to their inclusion or exclusion in the
normal case in view of the fact that we rest their exclusion in the present case upon the
fact that the parties stipulated in the consent-election agreement that watchmen be
excluded
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union did not have a majority on February 10 inasmuch as Adams
was a clean-up man and not a watchman, and thus fell within the
appropriate unit. While Adams served part time as a clean-up man,
he worked at least 8 hours a day as a watchman. Adams' name was
not included in the list of eligible voters that the respondent furnished
for the consent election., .
5. The respondent, at the oral argument before the Board, con-
tended in effect that H. P. Belknap was refused reinstatement by
the respondent after his work was finished at Johnson' s because Bel-
knap was drunk while he worked at Johnson's and that, in any event,
he had voluntarily quit his employment. We find no merit in these
contentions. While Belknap was drunk during-his last day of work
at Johnson's yard, he was not reprimanded for his conduct. When
he reported at Johnson's on the next day, as in the case of the others,
he was informed that work was unavailable for him. He then re-
ported at the respondent's shop and talked to Mr. Lee, the respondent's
bookkeeper. Having ascertained that the others had been refused
reinstatement, he did not formally apply for continuation of his work
at the respondent's plant. He did, however, try to vote in the elec-
tion of February 10, 1945, and was prevented by the respondent, as
stated in the Intermediate Report. Under the circumstances, formal
application would have been futile. In his answer, filed in this pro-
ceeding, the respondent admitted that he refused to reinstate the
employees involved herein. We are convinced and find that Belknap's
insobriety on the day in question did not motivate the respondent
in refusing to continue Belknap in employment and that Belknap
did not voluntarily quit his job. As in the case of the other five em-
ployees involved herein, the respondent's conduct in terminating Bel-
knap's employment is attributable to his union activities.
,ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, H. Paul Prigg, Miami,
Florida, and his agents, successors, and assigns shall :
Ellis W Jarrell , an employee , creditably testified without contradiction :
Mr Adams has two bosses, from our understanding He is a clean-up man and he
is also watchman in the daytime, at the time we * * * from 7 • 30 until 5: 00
o'clock
Q What does he do in connection with the watchman'
A He secures all the gates and sees that they are fastened at-all times and at lunch
period he stands by the employees ' entrance to see that no outsider comes in, or no one
goes out with anything they shouldn ' t go out with
Q (By Mr Purdom ) Were his duties in that respect similar to those performed
on-as an armed guard , on places where government contracts are being worked on
in the daytime'
A Well, from-as far as gate -keeping , yes, and then he also cleans up the building.
PRIGG BOAT WORKS 101
1. Cease and desist from :
(a) Discouraging membership in Industrial Union of Marine and
Shipbuilding Workers of America, C. I. 0., or any other labor organi-
zation of his employees, by discharging or refusing to reinstate any
of his employees or by discriminating in any other manner in regard
to their hire or tenure of employment, or any term or condition of
their employment;
(4) Refusing to bargain collectively with Industrial Union of Ma-
rine and Shipbuilding Workers of America, C. I. 0., as the exclusive
representative of all his employees at the Prigg Boat Works plant,
exclusive of office clerical employees, watchmen, foremen, and super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees or effectively
recommend such action, in respect to labor disputes, grievances, rates
of pay, wages, hours of employment, and other conditions of employ-
ment ;
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Industrial Union of Marine and
Shipbuilding Workers of America, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or_protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act: 6
(a) Offer Henry Berry, D. H. Wood, J. P. Wood, J. P. Belknap,
P. G. Watton, and Joe Craig immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges, placing those employees for
whom no employment is presently available on a preferential list and
offering them employment as it becomes available in the manner set
forth in our Decision herein;
(b) Make whole Henry Berry, D. H. Wood, J. P. Wood, J. P.
Belknap, P. G. Watton, and Joe Craig for any loss of pay that they
may have suffered as a result of the discrimination against them in
the manner provided in our Decision herein;
(c) Upon request, bargain collectively with Industrial Union of
Marine and Shipbuilding Workers of America, C. I. 0., as the ex-
clusive representative of all his employees at the Prigg Boat Works
plant, exclusive of office clerical employees, watchmen, foremen, and
H The Board expressly reserves the right to modify the back-pay and reinstatement pro-
visions if made necessary by a change of conditions in the future , and to make such supple-
ments thereto as may hereafter become necessary in order to define or clarify their appli-
cation to a specific set of circumstances not now appearing.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees or ef-
fectively recommend such action, in respect to labor disputes, griev-
ances, rates of pay, wages, hours of employment, and other conditions
of employment ; -
(d) Post at his plant in Miami, Florida, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A." 7 Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the respondent, be posted by
him immediately upon receipt thereof, and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices
are not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the Tenth Region is writing,
within (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. T. T. Purdom , for the Board.
Mr. Michael Francis Doyle,-by Mr. Stanley Root, of Philadelphia, Pa., and Mr.
H Paul Prigg, of Miami, Fla , pro se, for the respondent.
Mr. Charles N Smolckoff, of Miami, Fla., for the Union
STATEMENT OF THE CASE
Upon a second amended charge filed April 23, 1945, by Industrial Union of
Marine and Shipbuilding Workers of America, C. I. 0., herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated
April 25, 1945, against IT. Paul Prigg, an individual doing business under the
name and style of Prigg Boat works, herein called the respondent The com-
plaint alleged that the respondent had engaged and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, notice of hearing, and a subsequent order
changing the place of hearing were duly served upon the respondent and the
Union
with respect to the unfair labor practices, the complaint alleged in substance:
(1) that on and after January 10, 1945, the respondent (a) vilified, disparaged,
and expressed disapproval of the Union, (b) interrogated his employees concern-
ing their union affiliations, (c) urged, persuaded, threatened, and warned his
employees to refrain from assisting or joining the Union, (d) kept under surveil-
lance the Union's meeting places, meetings and activities, and the concerted activ-
7 Said notice, however, shall be, and it hereby is, amended by striking from the first par-
agraph thereof the words, "Recommendations of a Tiial Examiner," and substituting in
lieu thereof, the words, "A Decision and Order,"
PRIGG BOAT WORKS 103
ities of his employees, and (e) offered, promised, and granted a wage increase to
his employees: (2) that on and after January 12, 1945, the respondent discharged
and has since refused to reinstate seven named employees' because they joined
and assisted the Union and engaged in other concerted activities for the purposes
of collective bargaining and other mutual aid and protection ; (3) that on and
after January 12, 1945, the respondent refused upon request to bargain collec-
tively with the Union which was at all such times the exclusive representative
of a unit of the respondent's employees appropriate for the purposes of collective
bargaining; and (4) that the respondent, by the foregoing acts, interfered with,
restrained, and coerced his employees in the exercise of the rights guaranteed in
Section 7 of the Act
Prior to the hearing, the respondent filed his answer, admitting certain of the
allegations of the coniplaint but denying the commission of any unfair labor prac-
tices Respondent also asserted in his answer that lie doubted whether the Union
represented a majority of his employees and that he had released the seven
employees named in the complaint because of their inefficiency, poor workman-
ship, insubordination, junior service, and the lack of work due to the completion
of contracts
Pursuant to notice, a hearing was held from May 14 to May 26, 1945, at Miami,
Florida, before the undersigned, William F Scharnikow, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondent
were represented by counsel and the Union by its Regional Director All parties,
including the respondent appearing pro se as well as by counsel, participated in
the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
At the beginning of the hearing, the respondent moved to amend paragraph III
of his answer by admitting, in essentially the language of paragraph III of the
complaint, his procurement of a substantial quantity of raw materials from, and
the shipment of a substantial amount of his product to, points outside the State
of Florida. This motion was granted without objection Later, during the hear-
ing, the undersigned reserved decision as to the admission of an exhibit offered as
Board's Exhibit 44 The exhibit in question is hereby rejected At the conclu-
sion of the hearing, unopposed motions to conform the complaint and the answer
to the proof were granted The hearing was closed after oral argument before
the undersigned by the respondent, his counsel, and counsel for the Board Pursu-
ant to leave granted at the hearing, the respondent filed a brief and the attorney
for the Board filed a memorandum which the undersigned has considered
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following
FINDINGS of FACT
I THE BUSINESS OF THE RESPONDENT
The respondent. II Paul Prigg, au individual business ender the name and
style of Prigg Boat Works, has his principal office and place of business at Miami,
Florida, where he engages in the manufacture, sale, and distribution of boats,
barges, and related products. In the operation of his business, the respondent
purchases raw materials consisting of lumber, fittings, barbed wire, screws, fas-
teners, glue, paint, and linen cloth. During the period from January 1, 1944, until
the date of the hearing, the respondent purchased such raw materials of a value
between $5,000 and $10,000, practically all of which was purchased at and shipped
' Henry Berr} , Kenneth Ekleberiy, D H Wood, J P Wood, H P Belknap , P G Watton,
and be Craig
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from points outside the State of Florida. During the same period, the respondent
built approximately 100 boats of various descriptions for the United States Army
and the United States Navy, at an aggregate price exceeding $250,000. While
deliveries have been F. O. B. government yards in Miami, Florida, the boats
have been transported in interstate and foreign commerce for use in prosecuting
the war. In the brief filed with the Trial Examiner the respondent concedes that
"there appears to be no question that the Prigg Boat Works was engaged in inter-
state commerce."
U. THE ORGANIZATION INVOLVED
Industrial Union of Marine aipd Shipbuilding Workers of America, C. I. 0.,
is a labor organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The general course of the unfair labor practices
1. Organization of the respondent's employees ; interference, restraint, and
coercion ; the discharge of Ekieberry and Berry
In October or November, 1944, Charles N. Smolikoff, Regional Director of the
Union, left union pamphlets in the automobiles parked outside the respondent's
plant. Although there was some discussion of unionization among several of
the respondent's employees in December 1944, nothing came of it until, on the
evening of January 9, 1945, Kenneth Ekleberry, an electrician employed by the
respondent, visited the Union's hall in Miami. Eckleberry told Smolikoff that
the respondent's employees were interested in organizing, discussed the possi-
bilities with Smolikoff, and secured a stack of applications for membership in
the Union.
On the next day, January 10, Smolikoff went to the plant of the respondent
during working hours. At Smolikoff's request, Foreman Louis Anderson 2 sum-
moned Ekieberry to the front gate. Ekleberry there reported to Smolikoff that
talk of the union was "all over the shop" and arranged to deliver signed union
membership applications to Smolikoff on the following day at a vacant gasoline
filling station directly across the street from the respondent's plant.
On January 11, 12, and 13, there was considerable discussion of the Union by
the employees during working hours and, as a result, 18 of them signed appli-
cations for membership in the Union, including Kenneth Ekieberry, Henry Berry,
D H. Wood, J. P. Wood, H P. Belknap, P. G. Watton, and Joe Craig During the
lunch hour on both January 11 and 12, Smolikoff appeared at the gasoline station,
received membership applications signed by the employees, and talked with
Ekleberry, Berry, and D. H. Wood in plain view of the respondent's office on the
other side of the street. Within a week, Smolikoff also met and spoke with
Craig, Watton, and Belknap some distance down the street although in the same
block
In the meantime, on the morning of January 11, according to Henry Berry's
testimony, Berry overheard part of a conversation between the respondent and
Anderson during which their mention of "Union" was followed by the respond-
ent's statement, "God damn it, I won't stand for it", and by Anderson's rejoinder,
"What can you do about it?" In their testimony, neither the respondent nor
Anderson denied specifically having had this particular conversation. The re-
spondent testified generally that his discussions of the Union with Anderson
2 According to his testimony and the general understanding of the employees Anderson
was foreman over hull construction The respondent's contention to the contrary is dis-
cussed below
PRIGG BOAT WORKS 105
were limited to occasions when he instructed Anderson to take no action what-
soever and to say nothing to the employees for or against union activities.
Anderson, testifying as a Board witness, first said that the respondent never
discussed "this Union business " with him , He was then confronted with a
pre-trial affidavit in which he had stated that "Mr. Prigg didn't discuss the
union with me much but he said if they had gone about it in a white way
instead of such a sneaky way he wouldn't have objected to it." 3 Anderson there
upon admitted the respondent 's having told him that "if they would have come
out in the open and demanded what they were going to do about it, why, Mr.
Prigg wouldn't have felt like he did towards them " The undersigned credits
the testimony of Henry Berry as to the conversation between the respondent and
Anderson on the morning of January 11, and finds that at the outset, the respond-
ent and Anderson were aware of, discussed, and were displeased by the active
interest of the employees in the Union
Most of the union applications were signed by the respondent's employees on
Friday, January 12, the regular weekly pay-day. Employee Loren Leonard,
who had turned in his application card, testified that during the day Anderson
jokingly said to him that he should pack up his tools because he might be fired
or laid off, According to the testimony of employee Ellis Jarrell, at about two
o'clock on that afternoon, he heard Anderson tell employees Urytzki and Trimmer
that "Mr. Prigg said all you boys that signed up are going to be fired." The
undersigned credits the testimony of Leonard and Jarrell concerning these state-
ments of Anderson on January 12
Leo Droughton, employed by the respondent as an engineer and draftsman
in charge of from three to six employees, including Ekieberry, testified that on
that same afternoon of Friday January 12, the respondent told him, in effect,
that "we would be minus electricians," and that he was going to discharge
Ekleberry because he had seen him talking to a union representative and was
not going to have "any of that" in the plant. When asked by Droughton for
the reason to be given to Ekleberry for his discharge, the respondent said,
according to Droughton, that Ekleberry would be released for inefficiency and
laziness and said something about having paid Ekleberry more than $1250 to
wire two boats, which he said was excessive. Droughton told the respondent
he did not believe this to be excessive since no two boats were wired alike and
the United States Navy had constantly required changes. The respondent denied
Droughton's version of this conversation and testified that he had spoken to
Droughton not before but after Ekieberry was discharged that afternoon and that
he had then explained the discharge on the ground of Ekleberry's lack of
interest and the excessive cost of his work The respondent testified, moreover,
that it was Droughton who asked him whether Ekleberry was discharged because
of his union activities and that the respondent had replied in the negative In
3 The undersigned makes no finding of fact based upon the substance of Anderson's af -
davit However, he regards its use by the Board's attorney for the purposes of impeach,
ment as being not only proper but effective, in view of the resulting admission by Ander•
son next set forth in the text Anderson at first denied, and then conceded that the affi-
davit might have been read to him by the attorney for the Board who signed the jurat.
His testimony was followed by a stipulation between counsel that, if called as a witness, a
bliss Nell Galloway, who is employed in Miami by the United States Civil Service Com-
mission, would testify not only that she saw Anderson sign the affidavit and beard him
swear to it in her office on May 9, 1945, but that she first heard the Board ' s attorney read-
ing to Anderson with the affidavit before him The respondent's willingness to permit the
introduction in evidence of this version of Miss Galloway s testimony without insisting
upon cross -examining her, and his failure further to examine Anderson , who was present
and heard the stipulation. dispel any possibility of doubt that the affidavit was read to
Anderson before he signed and swore to it.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opinion of the undersigned Droughton was a straightforward. disinterested
witness and the undersigned therefore credits his version of his conversation with
the respondent.
At the end of the afternoon of January 12, Ekleberry and Berry each received
his regular pay check together with a release or statement of availability and a
statement of his earnings and of the amount withheld from his wages under the
Federal Income Tax Act On the following morning, Foreman Anderson punched
in at the time clock about 15 minutes before work was to begin and, turning to
the men who were standing about, said, "I wonder how many was fired last
night?" About 5 minutes later, Berry came in and punched his time card although
he told the other employees he had been discharged He then walked over to
Anderson whom he asked whether his receipt of statements of availability and
of income tax deductions meant that he was fired, and, if so, whether it was
because of union activities. To both queries, Anderson replied "I guess so " Later
in the day, employee Ellis Jarrell asked Anderson what happened to Berry and
whether his work had "gone bad " Anderson answered, "Well, it wasn't the work
as far as I know." To Jarrell's question whether Berry's discharge was because
of his "signing up for the Union," Anderson replied "That's all I know, I couldn't
tell you " Anderson was not put on the stand by the respondent, nor did he, in
the course of his examination as a Board witness, deny making any of these state-
ments which were attributed to him by the testimony of Berry and Jarrell The
undersigned credits Berry's and Jarrell's testimony
2. The agreements for a consent election and for the settlement of the charges
first filed with the Board
On January 12, 1945, after receipt of the employee's assigned membership appli-
cations, Smolikoff mailed a letter to the respondent in which he. as Regional
Director of the Union, claimed that the Union represented a majority of the
respondent's employees and asked that the respondent recognize the Union as
"the sole and exclusive bargaining agent of all your maintenance and production
employees " The respondent received this letter the next day.
After mailing the Union's request for recognition, Smolikoff learned later in the
evening of January 12, that Berry and Ekleberry had been discharged Therefore,
on Saturday, January 13, Sinohkoff prepared charges in the nan5e of the Union
alleging that by these discharges, the respondent had violated Section 8 (1) and
(3) of the Act At the same time, he prepared a petition for certification of the
Union as the exclusive bargaining representative of the respondent's employees.
On the same day, Smolikoff filed both the charges and the representation petition
with the Board by mailing the originals to the Board's Regional Office at Atlanta
and, in accordance with customary practice, by delivering copies to George Slyer,
a field examiner of the Board, then duly assigned and working in the locality.
Slyer immediately began his investigation of the charges over the week end.
On the afternoon of Monday, January 15, Slyer called upon the respondent at
the latter's plant. In the conversation between them, which took place in the
presence of M. W. Lee, "Secretary of the Company," Slyer told the respondent
that the Union had filed a petition for certification as the representative of his
employees and also charges alleging the discriminatory discharge of Ekleberry
and Berry The respondent showed Slyer the letter of the Union requesting
recognition. When questioned by Slyer as to his position concerning the charges,
the respondent replied that the work of Berry and Ekleberry had been unsatisfac-
tory for some time; that he had paid Ekleberry $1234 to wire two boats, which
he said was excessive; that Ekleberry had said that he could wire one of these
boats in from 2 to 4 days with the help of a couple of electricians; and that he had
PRIGG BOAT WORKS 107
learned of Ekleberry's statement since his discharge and could prove it by affi-
davits Slyer asked to see the affidavits but the respondent refused to produce
them In answer to Slyer's questions, Lee said that oral warnings had been given
to Berry and Ekieberry but that no records of them were kept. Lee added, how-
ever, that there were records of complaints about Berry's work
In this conversation on January 15, Slyer also explained to the respondent the
procedures of the Board in representation and complaint proceedings but sug-
gested that the charges might be settled informally by agreement and the repre-
sentation question by a consent election conducted by the Board' As to the
charges of unfair labor practices, Slyer recommended that respondent reinstate
Berry and Ekieberry with back pay Otherwise, he said, he would recommend
the issuance of a complaint to be followed by a hearing before the Board 5 He
added that the Board usually followed the Field Examiner's recommendation for
the issuance of a complaint but that the Board's ultimate decision of the case
could not be predicted °
The net result of this conference was that the respondent told Slyer he would
like to settle the matters raised by the charges and the representation petition
at one and the same time, that he would therefore consent to an election only upon
disposition of the charges, and finally, that he refused to reinstate Ekleberry
although the reinstatement of Berry was "not too difficult "
The respondent and Slyer had several later conferences during which the
settlement agreement was discussed and Slyer explained the mechanics of the
consent elections conducted by the Board. The respondent objected to Slyer's
suggestion that the election be held before February 3, on which date Slyer had
business in Atlanta. When Slyer then suggested February 10 for the election,
the respondent pressed for still a later date, stating frankly that he had applied
to the War Labor Board the previous October for permission to give his men
a wage increase and that lie hoped to be able to announce the grant of such
permission before the date of the election.
In the meantime, Slyer learned from Ekleberry that the latter did not wish
to return to work for the respondent. Accordingly on January 24, the respondent
and the Union entered into an agreement providing for the respondent's rein-
statement of Berry and his payment to Berry and Ekieberry of $7305 and
X68.22, respectively The agreement further provided that "contingent upon
compliance with the terms and provisions hereof," no further action should be
taken on the charge and that the Union "requested the withdrawal of the
charge . . to become effective when the [Board's] Regional Director is
satisfied that the provisions of this agreement have been carried out" At the
* With reference to the Union s request for recognition, Slyer told the respondent that
he might grant recognition forthwith, or ask for a check of the Union's membership cards
against the pay roll, or leave the matter of the Union's status to be, determined by the
Board, either by a consent election or a complete proceeding According to Slyer, the
respondent summarily rejected the first two possibilities
Slyer testified that lie had piactically completed his investigation of the charges
although be did not so mfoim the respondent However, it appears that the respondent
was in fact aware that S13er had been making his investigation According to the re-
spondent s testimony, Anderson had informed hint early that morning that Slyer, a Field
Examiner from the Board, had visited him in the company of Employee Joe Worthington
R According to the respondent's testimony, S13 er said that no matter how strong the
evidence in favor of the respondent might be, the Board would find that he had committed
the unfair labor practices with which he was charged Slyer denied having made such a
statement but said that the respondent had expresser] his own opinion to this effect, to
which Slyer replied that the Board's action was unpredictable, and that, if there were a
hearing, the respondent could be represented by counsel and get in all the evidence that
lie wanted to put in. The undersigned credits Slyer's testimony which was characterized
throughout by his obvious attempt to be fair to the respondent
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time this agreement was executed , the respondent asked Slyer "how it would be
if Berry got a job somewhere else" and Slyer replied that that would not con-
stitute compliance.
On the following day, January 25, the respondent and the Union entered into
an agreement that the Board 's Regional Director should hold an election among
the respondent ' s production and maintenance employees , exclusive of supervisors,
foremen, office clerical employees , and watchmen to determine whether they
desired to be represented by the Union . According to the agreement the election
was to be held at noon , February 10, at the time clock in the respondent's shop
and eligibility to vote was to be determined by reference to the respondent's
pay roll for the week ending January 26. Among other significant provisions in
the light of subsequent events, were clear provisions ( 1) stating that employees
"discharged for cause " before the election should not be eligible to vote; (2)
setting forth the right of the parties " to station an equal number of authorized
observers , selected from among the non -supervisory employees . . at the
polling places during the election . . . to challenge the eligibility of
voters . . . ; and (3 ) empowering the Regional Director to decide such
challenges if "determinative of the results of the election " Simultaneously with
the signing of this agreement , the respondent delivered to Slyer a list of his
employees as of January 12 At or about the same time, the respondent told
Slyer lie would send Berry to work with some other employees on some of the
respondent 's boats at the plant of Forest E Johnson , another Miami shipbuilder,
and assured Slyer that these men were still his employees on his pay roll Slyer
asked whether the notice of election should not be posted at Johnson 's plant as
well as the respondent 's. The respondent said that posting the notice at his
time clock would be sufficient.
3. The transfers of Henry Berry, D. H Wood, J. P. Wood, H. P. Belknap, P. G.
Watton, and Joe Craig to work at Forest Johnson's shipyard, and their
ultimate discharge
At the time of Ekleberry's and Berry's discharges on January 12, the re-
spondent had not yet begun the construction of the last of five target boats which
he had contracted to build for the United States Navy On or after January
17, the respondent received a letter from the Navy inspector in charge recommend-
ing that work on this last hull be subcontracted "to any contractor having men
available at this time " Shortly thereafter the respondent made such a proposal
to Forest E. Johnson. Johnson told the respondent that he had only three men
available, whereupon the respondent said that he had some men whom he was
going to lay off and would give them releases and send them over to Johnson's
yard. As a result, on or after January 17, the respondent and Forest Johnson
orally agreed that Johnson was to build the last target boat at his shipyard, using
and paying three of his own shipbuilders and such additional shipbuilders of
the respondent as might be required' Upon completion of the work, Johnson was
to bill the respondent for agreed items of overhead and profit as well as for the
wages paid by him including those paid to the men supplied by the respondent.
Pursuant to this arrangement, three of Johnson's men started work on the
target boat at his yard on January 23, and, beginning with January 26, were
joined on the job by six of the respondent's shipbuilders.
T A stipulation by counsel as to the testimony of Forest Johnson first fixed the making
of this arrangement as "a week or more before January 23, 1945 " It appears clear, how-
ever, that the agreement could not have been reached before January 17, since the respond-
ent testified that he spoke to Johnson only after his receipt of the letter from the Naval
inspector
PRIGG BOAT WORKS 109
Henry Berry was among the first of the respondent' s men thus sent to Johnson's
yard. On Thursday or Friday, January 25 or 26, Berry, having heard that he
was to be reinstated , reported to Lee at the respondent' s plant .' Lee handed him
a letter dated January 25, in which the respondent offered Berry reinstatement
and directed him "to report to us tomorrow morning" at Johnson's shipyard
"where some of our men are already working on a subcontract for the construction
of the last Bomb Target Boat " ° Accordingly, on Friday, January 26, Berry
went to Johnson 's yard and began work on the target boat, as did Joe Craig and
J P. Wood who were also sent there by the respondent on that day. On January
29, 30, and 31, respectively, the respondent also assigned P. G. Watton, D. H
Wood, and H. P. Belknap to the target boat job at Johnson's yard.
On January 26, the day of the first transfers, Lee wrote a letter to Johnson
on behalf of the respondent in which lie forwarded the wage rates and Social
Security account numbers of Berry, Craig, J P. Wood, and W. W. Carey, stating
that the respondent would pay Carey's wages "due to the fact that he will only
be there for a day or two " In this letter, the respondent also announced that
Craig and J P Wood would be paid by the respondent for their work on January
26 but requested that Berry be paid by Johnson for his work on that day and
that Craig, J P. Wool], and Berry be paid by Johnson for their work beginning
with January 27. As it postcript, the respondent added: "We believe these men
should obtain Supplemental Referral Cards "
However, none of the six men were told at the time of their assignment to
the work at Johnson's yard, nor had they reason to suspect, that their employ-
ment by the respondent was being terminated or that thenceforth they were to
be employed by Forest Johnson.'° When Foreman Anderson gave these men
their assignment, lie informed them merely that they were to work on one of the
respondent's boats None of them ever received a release or statement of avail-
ability from the respondent such as are required by the War Manpower Com-
mission upon termination or change of employment Furthermore, the work
on the target boat proceeded at Johnson's yard under the direction of Anderson,
who visited the job each day, and under the full-time supervision of W. W.
Carey. one of the respondent's employees described as a leadmau, who received
his instructions from Anderson The respondent's truck brought supplies and
materials as they were needed. and two of the respondent's painters, Harry
Buliler and N R. Knouse, spent several days painting the boat as it neared com-
pletion Craig and J. P Wood punched time in and out at the respondent's
plant until Tuesday, January 30, and Berry attempted to do so but found no
time card for him in the rack. On Tuesday, January 30, Anderson told them
they should report directly to, and leave work from, Johnson's plant where their
time would be kept. Vi' W Carey, however, never stopped punching in and out
the respondent's plant and was kept on the pay roll of the respondent.
Apparently the first inkling the transferred employees had of the fact that
they were to be paid by Johnson or of the possibility that they were no longer
8 Berm testified that lie reported to Lee on January 27 and that lie went to work at
l'oiest Johnson's yard on Monday January 29 Apparently these are not the correct dates,
since the records of the respondent and forest Johnson show that Berry began work at
Johnson's , and on Friday, January 26
°' It is to be noted that, contrary to this statement, none of the respondent's shipbuilders
actuall.N began working at Johnson's yard until January 26
i0 Although the respondent states in his answer that he "released " these men on the
date, of their transfers to the work at Johnson's yard, and thereafter refused to rein-
slate them, he testified at the hearing that, at the time of the transfers it was not his
intention to release the men Whatever his actual intention may have been as shown
by the sum total of his conduct, the respondent's testimony shows clearly that, at the
time of the transfers , he gave the men no intimation that their employment by him was
either then or shoftly thereafter to be terminated
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded by the respondent as his employees, came on or about January 30, the
middle of their first full week at Johnson's yard At that time, Johnson requested
them to secure a statement of availability from the respondent because the War
Manpower Commission required it before they could be placed on Johnson's pay-
roll The men refused, stating that they were still employees of the respondent
and Berry pointed out that he had just been "reinstated" by the respondent.
To the men's insistence that they were still the respondent's employees, Johnson
answered, "You are working for Mr. Prigg. It is a little bit funny I am doing
this work for Mr Prigg but, in order to keep the books straight, I am going to
pay you boys off and Mr Prigg pays me back" In a few minutes, however,
Johnson's secretary came out and told Johnson and the men that she had received
a telephone call and had learned that the releases were not necessary. As
already noted, none of the men ever received, or were thereafter offered, a state-
ment of availability from the respondent.
At the hearing, the respondent asserted that when he assigned his men to work
at Johnson's yard, he still regarded them as his employees but was later com-
pelled to "release" them under a ruling of the War Manpower Commission In
this connection, the respondent testified that Johnson's secretary telephoned to
Lee for a suggestion as to how Johnson should handle the Social Security and
income tax deductions from the wages of the six men. According to the respond-
ent, Lee referred Johnson's secretary to the War Manpower Commission which
insisted upon their release by the respondent.
The Carpentry on the target boat was finished at Johnson's yard on Februauy
7, within 2 weeks after the work had been begun, and according to the respond-
ent's testimony, the hull was "laboriously" transported to the respondent's plant
where installations were completed Berry was released and given a statement
of availability by Forest Johnson on February 3, nine days after he had been
"reinstated." H P. Belknap was similarly released by Johnson on February 5,
and Craig, the two Woods, and Watton, on February 7. According to the respond-
ent's answer; as well as the testimony of the men, they applied for further work
at the respondent's plant but the respondent refused to "reinstate" them. W. W.
Carey, Buhler, and Knouse, who were the only non-union employees of the
respondent assigned to the target boat job at Johnson's yard, however, resumed
their work at the respondent's plant.
4. Cancellation of the consent election and the events leading directly thereto)
On January 27, the Board 's Regional Director forwarded to the respondent
notices of election to be posted at the respondent 's plant in accordance with
the consent election agreement Under the caption "Eligibility Rules," this
notice contained a printed announcement that employees who were ill, on vaca-
tion or temporarily laid off, as well as those in the armed forces should be
eligible to vote, but that employees "who have quit or been discharged for cause"
should be ineligible Under the caption "Voting Unit ," there appeared only a
typewritten description of the agreed appropriate unit without repetition of the
eligibility rules. On February 1, the respondent wrote a letter to the Board's
Regional Office in which he insisted upon incorporating the substance of the
eligibility rules in the description of the unit, basing his demand upon the fact
that the consent election agreement set forth these rules as to eligibility, and
ignoring the fact that the rules were effectively set forth in the printed portion
of the notice of election On February 5, after the matter was brought to his
attention , Slyer called the respondent on the telephone and, acceding to the
PRIGG BOAT WORKS 111
respondent's request, then prepared and forwarded to the respondent a new form
of notice of election in which the rules as to eligibility were inserted in the
description of the unit as well as in the printed portion of the notice
On February 8, upon Slyer's return to Miami from Atlanta, he was informed
by Smolikoff of the lay-off of the union members who had been working at Forest
Johnson's plant. He immediately asked the respondent over the telephone why
they were laid off and expressed the opinion that they were eligible to vote since
their names appeared on the respondent's list of employees as of January 12,
the only list which had been furnished to Slyer. The respondent replied that
these men were no longer his employees, that he had been required by the War
Manpower Commission to release them to Forest Johnson, and that Forest
Johnson had released them when their work was completed. Slyer suggested
that a lay-off according to seniority might not have affected some of the men
laid-off but the respondent said that, except for the retention of one man who
was a better worker, all the men laid off were his newest employees. Either on
the same day or on February 10, the date scheduled for the election, the re-
spondent mailed or gave Slyer another list of his employees," bearing the date
January 26, which omitted Berry's name but contained the names of the other
five men who had been working at Johnson's yard. Alongside each of these
five names was the notation "Released Contract Complete "
According to the testimony of employees John Morrow and John Perpall,
when they came to the respondent's plant to vote in the election on the morning
of February 10. the respondent told them that he had been authorized to give
the men a wage increase, obviously referring to the War Labor Board's grant
of the application which lie had made the preceding October.' The respondent
did not squarely deny the substance of this testimony nor was his attention
called thereto while he was on the witness stand. In outlining the procedure
followed and the result of his application for leave to grant the employees a
raise, he testified that on February 12 he received notice of the War Labor
Board's favorable action in the form of a letter and copies of the War Labor
Board's ruling and opinion and that he made a "formal announcement" of the
fact to his employees on the same day, February 12. Later, he admitted that,
between February 5 and February 8, he had received a telephone call and then a
telegram from Washington advising him of the granting of his application He
then stated that he made "no open announcement" of the increase until February
12 The undersigned credits the testimony of Morrow and Perpall and finds
that they were informed by the respondent on the morning of the scheduled con-
sent election that the respondent was about to grant the employees a wage in-
crease
On that morning, February 10, Berry, the two Woods, Craig, Watton, and
Belknap gathered outside the respondent's plant with the intention of voting
at noon, and were joined there by Smmolikoff When Slyer came to the plant at
about 11 : 30 a in, Smolikoff told him he was not interested in seeing the polling
place arrangements as is customary in these elections if the employer consents.
Slyer then entered the respondent's office alone and saw the respondent at about
11 : 45 or 11:50 a in According to Slyer, he told the respondent that he thought
the employees who were laid off at Forest Johnson's plant should be permitted
to vote, subject to challenge by their respondent's observer, since the lay-offs
were so recent and there might be some doubt as to their regularity. The
respondent said that lie would decide who was eligible and that he would not
let the laid-off employees come into the plant to vote. Then Slyer and the
ii In any event, Slver had thus list on February 10
Notice of this application had been posted in the respondent's plant for several months
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent went into the shop where they arranged tables and the ballot box
with the assistance of employees Harry Buhler and Ellis Jarrell, who had been
designated as the respective observer for the respondent and the Union. The
shop is approximately 120 feet square, is unbroken by any interior partitions,
and is located to the rear of a narrower, two-story portion of the building. In
this front portion of the building, the respondent has his living quarters, and an
office on the second floor, and also an office and stock room on the first floor,
adjacent to the shop. The polling place with the observers' tables and the ballot
box was set up by the time clock and against the wall dividing the shop from the
stock room. The voters were to mark their ballots in it small room jutting out
of the shop into the stock room, where they could not be observed.
At approximately noon, the respondent, Slyer, Buller, and Jarrell stood to-
gether at the polling place in the shop and the employees lined up before them.
Slyer, Jarrell and several other employees testified consistently and at great
length concerning what occurred immediately thereafter. According to their
composite testimony, Slyer asked, "Are there any supervisors around here'?"
The men pointed out Anderson, who was sitting on at pile of lumber about 30
or 40 feet from the polling place and along the front wall of the shop. Slyer
noted that Anderson was eating his lunch with his head down, paying no at-
tention to anybody or to anything else. In any event, Slyer was satisfied that
Anderson from his position could not see anything that happened at the polling
place. Slyer then told the respondent that he was about to start. the election and
asked the respondent to leave, because the Board's rules do not permit at company
official to be present at the voting place during nit election. The respondent be-
came angry and stated that he was going to stay there or otherwise there would
be no election. Slyer explained that, to assure a fair atmosphere for the. con-
duct of the election, union officials as well as company officials were excluded
and asked the respondent, "Mr. Trigg, you wouldn't want Snmlikoff in here,
would you?" The respondent replied, "You're daunt right, I wouldn't." One
of the employees asked Slyer in it loud voice, "Are you working for the CIO?"
.and Slyer said "No"-that he was working for the National Labor Relations
Board. Either the same or another employee then asked, "Don't the C. 1. O. run
the Board?" The respondent and the employee both said in substance, "You're
right, they do." '3 The respondent offered to go over and sit on the lumber pile
with Anderson, but, instead, went straight back in the shop from the time clock
about 20 or 30 feet and, facing the polling place, said "Go ahead with your elec-
tion." Slyer walked up to him and said ... hais is just the sonic, or practically
the same, as being up there. I can't have the election with you being this close."
The respondent replied that no one could order him off his on premises. Slyer
said lie was not ordering the respondent off his premises or out of his place of
business and suggested that the respondent might go to his rooms, or to his
=office, or to any place except the room where the voting was to take place. There-
upon, the respondent walked to the back of the shop and, still plainly visible,
faced the polling place. Slyer turned to Buliler, the respondent's observer, and
to Jarrell, the Union's observer, and asked theta whether they believed a fair
,election could be held under the circumstances. Both replied in the negative.
Slyer then told the respondent and the men that the election would not be held
:and went back into the office with the respondent.
The respondent's testimony as to the occurrences on the.ntorning of February
10 differed in but few material respects from that of the witnesses produced by
13 According to Jarrell's testimony, the respondent and several of the employees said
"Yes" in unison . According to Slyer ' s testimony , either the respondent said, "You ' re damn
right , they do," or the employee who asked the question made that remark and the respond-
ent said "Yes, that's right.
PRIGG BOAT WORKS 113
counsel for the Board The respondent testified (1) that he had no knowledge or
information of his right to challenge ballots through his observer or of the
procedure therefor, nor did Slyer explain these matters to him before they went
into the shop to conduct the election; (2) that Slyer insisted that the respond-
ent leave the premises and not merely leave the shop" and (3) that when the
respondent moved to the back of the shop, he could not see the polling place.
It will be recalled, however, that the consent election agreement, with which
the respondent showed his familiarity when lie objected to the form of the first
notice of election, clearly set forth the procedure upon challenges. It is also
to be noted that the respondent in his testimony forcefully expressed his firm
intention to prevent the men he had laid off from voting in the election as the
explanation of his insistence upon being present Obviously, he could best ac-
complish this purpose by remaining at, or near, the polls with a full view of the
entire proceeding. Upon these considerations, as well as the inherent credi-
bility and convincing rendition of the testimony of the witnesses produced by
counsel for the Board, the undersigned credits their version of the events of
the morning of February 10 as already set forth and finds particularly (1) that
by the time the respondent went into the shop with Slyer, Slyer had spoken to
him about, and in any event the respondent knew, the procedure for challenging
ballots, (2) that Slyer did not tell the respondent to leave the premises but
merely to leave the shop, and (3) that at no time during the attempt to hold
the election, did the respondent remove himself from his view of the employees
or from their view of him.
In further attempting to justify his conduct on the morning of February 10,
the respondent testified that he saw Smolikoff look into one of the shop windows
while the respondent and Slyer were talking. Slyer testified without contra-
diction that he, too, saw Smolikoff at the window and that the respondent may
have mentioned the fact ; but that Smolikoff appeared at the window while
Slyer was busily engaged with the respondent and disappeared in about 30
seconds before Slyer could ask him to leave"
According to Slyer's uncontradicted testimony, which the undersigned credits,
when Slyer and the respondent returned to the respondent's office after the elec-
tion had been canceled, Slyer told the respondent that he always tried to have
his elections so clear that nobody could object. The respondent replied that
he did not want a C. I. 0 union or an A F L. union but "that if the boys wanted
to form a union of their own, and have their own officers, that was something
else." The respondent also told Slyer, "If you hadn't made that crack about
those men who were laid off, or those men on the outside voting, I might have
let you go ahead with the election."
5. Further interference, restraint, and coercion
On Monday February 12, the respondent received a letter from the executive
secretary of the Shipbuilding Commission of the National War Labor Board with
which were enclosed copies of a ruling and an opinion of the Commission both
li The respondent further testified that Slyer rejected the respondent's offer to sit down
ie ith Anderson Slyer did not recall any such suggestion and Jarrell testified that athough
the respondent made such a proposal, he did not act upon it but instead walked directly
back from the polling place. The undersigned finds that Slyer (lid not in fact make any
objection to the respondent's sitting with Anderson
'5 Smolikoff testified that the men outside had become impatient, that one of them tried
to go into the shop but was prevented by the watchman, and that he himself had looked
briefly into the window but had seen nothing
701592-47-vol 69-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bearing the date January 22, 1945. The ruling approved increased wage rates
for the respondent 's employees which as a matter of fact were in accordance
with the respondent's application to the Commission and the result thereof.
The opinion of the Commission read in part as follows :
Subsequent to Commission action in the instant case, but before the ruling
was issued , notice came from the National Labor Relations Board that an
agreement for a consent election dated January 25. 1945 had been reached
between the company and The Industrial Union of Marine and Shipbuilding
Workers of America, C. I. O. and the Prigg Boat Works.
The Commission was aware of the problem posed by the impending elec-
tion but voted unanimously not to withhold (sic) the issuance of the ruling.
This action was controlled by the fact that the agreement for a consent
election was consummated utter decision in the case
Upon receipt of these papers, the respondent wrote a shoat speech to his ein-
ployees in which he announced that the Shipbuilding Commission had just
granted his application of the preceding Octobei toi leave to raise their wages.
that the Commission's ruling was dated January 22, 1945, and by its terms was
to be effective on that (late, but that the forwarding letter made February 9
the effective date The speech as written concluded with the statement-
I am unable to explain why I was not officially notified of these increases
in pay earlier, however, I may throw some light on the subject by reading an
opinion signed by Jack G. Day. Public Member [of the Cominissioni which
opinion accompanied the official ruling received this moining.
Later the same day, the respondent gathered the employees in the plant and
read this speech, after first giving a carbon copy to Jarrell so that he could
confirm the fact that the respondent did not deviate from the text. After the
respondent finished reading the speech, which Jarrell testified was delivered in
the exact language of the copy in his hands, the respondent read the Shipbuilding
Commission's opinion and ruling, which Jarrell had no means of checking since
he had no copy. The respondent testified here again that his talk followed the
exact language of the ruling and the opinion, without change or addition Jar-
rell, however, testified that the respondent apparently interspersed his own
comments. According to Jarrell's testimony and that of several other employees,
the respondent made the remark that the raise had been approved before Febru-
ary 9, but that it was delayed by the War Labor Board until the election should
have been held "for the purpose of giving the Union the credit for the raise."
The undersigned is of the opinion, however, that this testimony of the employees
was the result of their misunderstanding of the language of the Commission's
opinion which has already been set forth The undersigned, therefore, credits
the respondent's testimony that, on this occasion, he did no more and no less
than read his prepared speech and the ruling and opinion of the Shipbuilding
Commission.
In April, 1945, a few weeks before the hearing and shortly after his marriage,
the respondent called the employees together from their work, introduced them
to his wife, and served beer in the shop. He then announced that the employees
of more than a year's service would be given a week's vacation with pay and
spoke of his post war plans In that connection, he said that most of the men
would probably still be with him on a piece-work basis and that he would build
a quality boat provided he had "no outside interference."
PRIGG BOAT WORKS
B. The specific unfair labor practices
I Interference. resttaitat, and coercion
115
As already set tot th, it appears front the ev ideuce that Foreman Louis Anderson
told employees Urvtzki and Truinner on January 12, 1945, that "Mr. Prigg said
all you boys that sigticd up iie going to he fired" ; that he told employee Leonard
on the same day when the Union' s organization campaign had reached its p:,-ak
that he should pack up his tools because he might be leaving; that on the morning
after Berry and Ekleberry wete discharged nndei circumstances clearly indicat-
ing discrimination. Andeison said to the employees who were gathered around
the time clock, "I wonder how inane was fired last night"; and that he informed
Berry the same morning that lie "guessed" Berry' s discharge was due to his union
activities. Even aside from the discharges and his conduct with respect to the
election, which is discussed below, the respondent himself also directly interfered
with the self-organization of his employees and their selection of a collective
bargaining representative by informing employees Morrow and Perpall, on the
Very morning of the election in an obvious attempt to influence their votes, that
the men were going to get the raise which lie had been trying to obtain for them
since the preceding October," and by informing the employees at the celebration
of his wedding in April 19-15, that his post-war plans depended upon the absence
of "outside interference." The undersigned finds that this latter statement was
intended by the iespondent. and was reasonably and actually taken by the em-
ployees, to mean that the respondent would continue production after the war
and thus pi oxide elnploynient for them only if lie were hampered by union "inter-
ference." 'i
The respondent testified that despite the title of "foreman," Anderson was not,
in fact, a supervisory employee. but merely an older, more experienced employee
who guided his youngei fellow employees and that this had been made clear to
the employees when the respondent announced the appointment of Pease as
general foreman, in October 1944. Anderson testified that he was foreman over
bull construction and that the job was "practically wished on him." The em-
ployees who testified agreed that they and their fellow employees regarded
Anderson as foreman, and that the ship builders had always taken orders from
him. They also testified that the respondent in announcing Pease's appointment
as foreman had made no mention of any change in Anderson's status, and that
therefore Anderson had retained supervision of the men working on the bulls
'['here was also uncontradicted testimony : t 1) that Pease had consulted Ander-
son with reference to a raise for Henry Berry, and that upon Anderson's recom-
mendation the raise had been granted; (2) that Anderson had discharged an
employee in April 1943; (3) that Anderson had chosen employees for work on
Sunday in January and February 1945, and had given them their instructions
to that effect; and (4) that Anderson occasionally interviewed prospective em-
liloyees, and was sometimes sent out by the respondent to secure an extra painter
Respondent himself described Anderson as a foreman on a list of his employees
which he submitted to S1}et in contemplation of the consent election. He also
admitted in his testimony that Anderson "had been used in directing men," and
had "voluntarily assumed duties Similar to what a foreman normally does have,
1b The undersigned makes no finding of unfair labor practices based upon the respondent's
reading of the \Var Labor Board ruling and opinion on February 12, after the election had
been called of
17 While the respondent's vaiious statements to Foreman Anderson and Foreman Drough-
ton clearly indicate his anti-union attitude and are highly significant , in the consideration
of the discharges and the respondent'', refusal to bargain, none of them was made to em-
ploiees and the} ilo not therefore, tit and of themselves, constitute unfair labor practices.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but without authority." Upon the above testimony, the undersigned concludes
that Anderson was in fact a supervisory employee and as such, was regarded by
the employees as representing the respondent
The undersigned finds that by his acts, statements, and conduct and those of
Foreman Anderson, which are set forth above, the respondent interfered with,
restrained, and coerced his employees in the exercise of the rights guaranteed in
section 7 of the Act.
2. The discharge
a. Kenneth Ekleberry
Kenneth Ekleberry was hired by the respondent on September 19, 1944, as an
electrician possessing the special ability and experience required for the intri-
cate wiring of the five bomb target boats then being built by the respondent for
the United States Navy. As has already been noted, Foreman Anderson knew
of Smolikoff's visit to see Ekleberry at the plant on January 10, 1945. On the
following day, Ekleberry began the movement, to organize the respondent's em-
ployees by bringing the Union's application cards into the plant and starting
the open discussions of the Union among the employees. On the morning of
January 12, it will be recalled, the respondent told Anderson that he would not
stand for the Union in the plant. During lunch hour on that day, Ekleberry'
and several other employees conferred with Smolikoff on the street in full view
of the respondent's office. At the end of the same day, during which 16 employees
had joined the Union, the respondent discharged Ekleberry and told Foreman
Droughton that the reason for the discharge was the fact that Ekleberry had
been seen talking with a union organizer
Notwithstanding this clear evidence that Ekleberry's discharge was due to
his union activities, the respondent asserted in his answer and also in his testi-
mony at the hearing, that Ekleberry was discharged on January 12 because of
his inefficiency and failure to perform his work properly. In attempting to
support this contention, the respondent testified that General Foreman Pease
had reported Ekleberry as loafing on the job and recommended his discharge
as early as October or November 1944; that Ekleberry had not prepared any
usable diagrams of the wiring installed by him; that Ekleberry had wired only
three boats from September 19, 1944, until January 12. 1945 at the exorbitant
wage cost of $1,250 although he told other employees that he could wire a boat in
two or three nights with the assistance of a couple of electricians; that after
hkleberry's discharge, the respondent had invited and received a bid from a local
electrical contractor for the installation of the wiring in the last two target
boats at a cost of $340 per boat; and that the respondent had then employed
another expert electrician who completed the work on these two boats in 2
or 3 weeks.
However, this testimony, when considered in conjunction with the uncontra-
dicted testimony of other witnesses, is not persuasive of Ekleberiy's inefficiency
or his failure to perform his work properly, nor does it reveal any expression of
dissatisfaction by the respondent with Ekleberry's work before the time of his
discharge. On the contrary, the undersigned is impelled to draw conclusions
from the testimony quite opposite to those urged by the respondent. Foreman
Droughton, who was in charge of Ekleberry, commended the latter's work and
insisted that he accompany the trial rums of the boat m spite of the respondent's
objection. Parks, the resident inspector for the Navy, testified not only that
Ekleberry's work was difficult and so highly specialized that only a few eleetii-
cians were qualified but also that the boats on which Ekleberry worked were
satisfactory. The only criticism of Ekleberry's work was made by Pease during
PRIGG BOAT WORKS 117
the first 2 weeks of his employment and before he became general foreman
According to Pease's testimony, however, he reported as unsatisfactory the work
and conduct not only of Ekleberry but also that of almost every other man in
the shop including Foreman Anderson, and recommended their discharges. That
this report must have appeared unreliable to the respondent as it did to the
undersigned, seems clear. For, the respondent not only rejected Pease's recom-
mendations with the statement that Ekleberry was doing experimental work
which required time, but in speaking of Kenneth Ekleberry's work to his brother,
J. F. Ekleberry, late in December 1944,15 the respondent said that he was very
fortunate to get a man who could wire the boats and understood radio shields.
radio control, and the other electrical apparatus used on the boats. That the re-
spondent was in fact satisfied with Ekleberry's work and had no thought of dis-
charging him until he became pi ominent in the Union's campaign is further indi-
cated by the fact that, in spite of the importance of Ekleberry's work and the
difficulty of securing in adequate ieplacement, the respondent admittedly made
no attempt to get a qualified electrician to complete the work until after Ekle-
berry's discharge
There appears to be no reasonable basis for criticizing Ekleberry's omission
to prepare and submit plans of the wiring which he was installing When
Ekleberry began his vu ork for the respondent, he was not provided with all ade-
quate blue print or plan of the wiring but was compelled to lay out the circuits
and to determine the location of the panels for the controls, in conjunction with
two -Navy men who uioiked at the salve time on the installation of the secret
mechanism to be served by the wiring As a result, there was considerable
experimentation, testing, and revision of the work as it progressed Ekleberry
was not instructed by Droughton, the respondent, or anyone else to draft plans
and, as he pointed out in his testimony, he had been employed as an electrician
and not as a draftsman. He did, however, make such rough pocket sketches a-
were necessary for his work but no one asked him to submit them.
Finally, the respondent's argument that Ekleberry was discharged because
the cost of his work on the target boats was excessive, is unsupported by the
evidence. Moreover, it incorrectly assumes that Ekleberry's work during the
16 weeks of his employment by the respondent was limited to the routine wiring
of three target boats. For, in addition to wiring the target boats, Ekleberry
performed all the general electrical maintenance work about the plant. Further-
more, his work on the target boats, as already pointed out, was highly experi-
mental in the beginning and he was required to change the lay-outs and location
of the control panels from time to time as a result of test runs. By the time
of his discharge, however, lie had not only completed three boats but had wired
all the panels, the fuse block, and the generator relay for the last two boats so
that they were ready for installation. His unchallenged estimate was that he
had 50 percent of the work on the next to last boat ready so that only installa-
tion remained. According to Ekleberry, it was at this stage that he told some
of his fellow employees that, with the equipment made up and in the boat, he
could wire the boat in 3 or 4 days with two or three good men. It was also at
this stage that the respondent asked and received an outside bid for the com-
pletion of the work on the last two boats. Even with so little routine work yet
to be done, the bidder asked for $340 per boat including a labor item of $228 for
3 weeks of work for one man 's Certainly the respondent had received greater
18J F Ekleberrv. an electrical engineer, was first asked by the respondent to wire the
tat get boats, but, being unavailable, he recommended his brother, Kenneth.
19 The labor estimate in the bid was 190 hours The respondent's normal maximum work
week consisted of 6 days of 91/ hours each
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
value from Ekleberry's services for the wages paid to Ekleberry, than this bidder
was prepared to offer
Upon the foregoing considerations, the undersigned is convinced that the re-
spondent discharged Ekleberry on January 12, 1h45, because he knew that Ekle-
berr^ was the active leader of the movement to of gamze the respondent's em-
ployees as members'of the Union, and not because of and dissatisfactioii with
Ekleherry's work The undersigned therefore finds that tine respondent, by dis-
charging Kenneth Ekleberry on Januar-, 12, 1945. discriminated in regard to his
hire and tenure of employment, therebi discouraging niembersliip in the Union
and interfering with, restraining, and coercing his employees in the exercise of
the rights guaranteed in Section 7 of the Act
b Henry Berry, D. H Wood. J P. Wood, H P Belknep, P G lVatton, end Joe
Crai tr
Henry Berry was also discharged on January 12. under the sane general cir-
cumstances as Kenneth Ekleberry Berry, too, had been active on that and the
preceding day in securing memberships for the Union and had also conferred
with Smolikoff on the street in plain view of the office That Berry's discharge
like that of Ekleberry was based upon his open connection with the Union, was
made clear by Anderson's comments at the time clock the next horning and his
frank statement to Berry that he "guessed" Berry's discharge was due to his
union activities.
In the respondent's and Slyei's subsequent discussions of Berry's and Ekle-
berry's reinstatement and of the consent election, the respondent showed clearly
his desire to accomplish the defeat of the Union at the consent election by insist-
ing upGn delaying the election as long as possible so that he might first announce
the grant of a wage increase With the obviously related purpose of whittling
down the Union's membership among his employees before election time, the re-
spondent also asked Slyer whether the procurement of a job for Berry "some-
where else" would be satisfactory After Slyer rejected this suggestion, the re-
spondent informed him that Berry and several other employees would be sent
to work at Forest Johnson's plant and, although he had already told Johnson
he was going to release these men and had arranged to transfer them to Johnson's
pay roll, he assured Slyer that the men were still on his pay roll, and that it would
not be necessary to post election notices at Johnson's yard
The respondent immediately ignored these assurances of good faith both in his
selection and in his treatment of the men sent by him to Johnson's yard With
the exception of W. W. Carey, who supervised the job. and the two painters, all
the Wien who were transferred were union members, had been openly active in
the union campaign and discussions on January 12. and had conferred with Smoli-
koff where they could be seen from the respondent's office Then, on January 26,
the day after he had given Slyer assurances to the contrary, the respondent re-
affirmed his arrangement with Johnson that these men be transferred to John-
son's pay roll and suggested that they secure supplemental referral cards
Under the circumstances shown by the record, the respondent's testimony that
he was compelled to release the six union employees by a ruling of the War Man-
power Commission and therefore did not discharge them because of their union
membership and activities , is incredible. When the respondent subcontracted
the work on the target boat on or after January 17, he told Johnson he was going
to release these men. His letter to Johnson on January 26 confirmed his posi-
tion in this respect. When Johnson's secretary asked Lee during the following
week how Social Security and income tax deductions should he handled, it is
significant that Lee referred her not to the office of the Social Security Board nor
PRIGG BOAT WORKS 119
to the local office of the Bureau of Internal Revenue, but to the War Manpower
Commission instead. It thus appears to the undersigned that the respondent
invited a ruling of the War Manpower Commission which would apparently re-
quire him to release the union men to Johnson and permit Johnson rather than the
respondent eventually to lay them off. But even so, the plan miscarried. For
according to uncontradicted testimony, Johnson's secretary learned, and then
informed the men, that releases from the respondent were unnecessary after all.
Moreover, none were in fact ever given to them by the respondent.
Even if the War Manpower Commission's regulations had required the re-
spondent to release these six men before they could be placed on Johnson's pay
roll, the respondent lmght either then have arranged to keep them on his own
pay roll or have reinstated them when the target boat was completed. That he
did neither, although he continued W. W. Carey and the painters on his pay
roll and returned them to work at his own plant, serves to emphasize his intent
to discriminate against the union members and his unwillingness to take any
reasonable step which would preserve the status quo for the purposes of the
election.
Without seeming to realize the inconsistency, the respondent testified not only
that he "released" the six union shipbuilders because of a ruling of the War Man-
power Commission, but also that the reason for the releases was lack of work
due to the impending completion of his contract for five bomb target boats on
February 14 and of a contract for 29 gliders on February 10. Evaluation of this
explanation for the releases requires a brief preliminary consideration of certain
aspects of the respondent's operations.
Since the beginning of the war, the respondent has confined himself to the
building of boats for the United States Army and Navy. Under various contracts
awarded to him since May 17, 1943, he has constructed air driven swamp gliders
and "secret" boats for the Army, and personnel boats, plane rearming boats, and
bomb target boats for the Navy. The keel of each of these boats is laid and
the boat completely constructed upon a "building form" consisting of a linear
series of 4 x 4 uprights erected on a 2 x 6 sill which rests upon the floor of the
shop. There are two of these building forms in the rear of the shop, the sills
of which are embedded in the concrete floor. Each of these two building forms
is located approximately 100 feet from the front wall of the shop and is connected
with the Miami River, which borders the rear of the shop, by a launching way
into which the boat is slid upon completion of the hull. All of the recent 35
foot plane rearming boats have been built on these two permanent forms. At
the same time, the other boats, including the bomb target boats, which are
slightly larger than the plane rearming boats, have been built upon other forms
in the front of the shop where their sills were merely placed upon the floor and
not embedded in the concrete. One of these forms still remained in the shop
itt the time of the hearing and could have been altered to meet the requirements
of the deeper and heavier keels of the plane rearming boats within half a day.
When target boat hulls were completed on these forms in the front of the shop
They were launched with the aid of a trailer and a hoist. This method of con-
struction and launching was once regularly employed by the respondent for
plane rearming boats at a former plant and is still possible although his more
recent use of the permanent forms and the launching ways is obviously more
.onvenient.
Until the beginning of September, 1944, the respondent employed a staff of
19 carpenters or shipbuilders, which at that time included Watton, D H Wood,
and Berry. By September 1944, construction had fallen considerably behind
schedule and the respondent realized that he had more work than he could
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handle with his existing staff. Between September 19 and December 12, he
therefore increased the number of his shipbuilders to 25. Among those hired in
that period were Joe Craig, J. P. Wood, and H. P. Belknap. By January 25,
1945, three of the shipbuilders had left the respondent's employ and a fourth
had been permanently incapacitated in an accident. Thus, on January 25, the
respondent had only 21 shipbuilders, including the six union members who were
shortly thereafter discharged. Upon their discharge, the respondent was left
with only 15 shipbuilders.
The respondent contends that, upon completion of the bomb target boat and
glider contracts, there was insufficient work for more than this group of 15
shipbuilders. It appears, however, that on January 25, 1945, he was awarded a
new contract by the United States Navy for the construction of 10 more plane
rearming boats upon which he began work on April 4, 1945, and had only 40
percent completed by the time of the hearing although the contract required
delivery of one boat per week beginning on March 26. In addition, at the time
he discharged the six union shipbuilders. the respondent was engaged in experi-
mental construction and in the construction under other contracts of 16 plane
rearming boats which were eventually completed on April 11, 1945, instead of
October 22, 1944, as required by the contract, and of six vessels of a secret type
which were only 70 percent completed at the time of the hearing in May 1945
Thus it is apparent that the respondent has been considerably behind in his
contract schedules since he discharged the 6 union shipbuilders, just as he was
behind in his schedules before he increased his staff in the fall of 1944. The
secret project required three men and little, if any, work thereon was performed
between February and May 1945. Most, if not all of the work during that period,
was performed on the plane rearming boats which normally required eight ship-
builders, for each boat. Furthermore, these boats were being built on the two
permanent forms only. Several of the respondent's experienced shipbuilders
testified that the six discharged shipbuilders could have been used to advantage
in building additional plane rearming boats on an extra building form as was
done in the case of the bomb target boats.
The undersigned not only finds this to he the fact but is convinced that the
comparatively slight inconvenience and inefficiency involved in such a course
did not in fact deter the respondent from using the extra building form and
continuing the employment of the 6 union shipbuilders whom he discharged.
From a purely business standpoint, it was clearly to his advantage to bear such
an inconvenience in order to meet his contract obligations to the Navy. As he
himself put it in his own testimony, "They [the Navy] get in a hurry sometimes
and crowd the very devil out of you . . " and again ". One of the
best ways for a contractor to get in bad with the government and not be able
to be eligible for future contracts is not to make his delivery on schedule "
Thus, when the Navy inspector urged rapid completion of the target boats which
were long overdue, the respondent not only subcontracted one hull but rushed
the completion of the other remaining hull at his own plant by requiring his men
to work on Sundays, the only time they had ever done so Similarly, it would
have been the sensible thing for the respondent to rush the work on the plane
rearming boats by building some of them on the extra building forms, as lie
had built the bomb target boats. Although the respondent stated at the hearing
that his construction of hulls was repeatedly delayed because of the non-delivery
of motors and underwater fittings which he said were ordinarily installed while
the hulls were still on the forms and before they were launched, he later testified
that at the time of the hearing there were three bulls in the water without
PRIGG BOAT WORKS 121
fittings. Upon these considerations, the undersigned concludes that the re-
spondent 's reduction of his shipbuilding staff through the discharge of the six
union members was not motivated in fact either by lack of work or even by
the inconvenience or inefficiency of continuing their employment under the
circumstances shown by the record.
The respondent also asserted in his answer that the 6 union members were
released because of inefficiency and poor workmanship . To support this position,
the respondent and Pease testified that in October 1944, within approximately
2 weeks after he was hired to make an efficiency study, Pease reported these
six men were not doing their work but that the respondent did not follow his
recommendations as to discharge because of the press of work and the difficulty
of getting labor Aside from the fact that it was peculiar that Pease should
single out just six men who 3 months later became the most obviously active
members of the Union and were then immediately discharged , Pease later testi-
fied, as has already been noted , that he also recommended the discharge of a
considerable number of the other men including Foreman Anderson and, upon
searching questioning , was unable to describe several of the discharged men or
to remember the names of, or types of work, performed by a substantial number ,
of the other employees . Shipbuilder John Morrow , a man of 70 , also testified
that none of the six discharged employees were qualified except D. H. Wood,
whose discharge had surprised Morrow But Morrow's testimony revealed that
this was his general opinion of the younger shipbuilders . In questioning several
of the union employees , the respondent asked them to compare the work and
ability of the discharged men with those of two of the older shipbuilders and
the witnesses quite frankly agreed that the latter were superior . But there was
no expression of opinion at the hearing , supported or unsupported that the six
discharged employees were inferior to the rest of the shipbuilders as a group.
Nor was there any evidence that any of the six discharged employees had ever
been criticized because of their work On the other hand , they denied having
received any criticism and it is a matter of fact that they were chosen as a group
to rush the work on the last target boat at Johnson 's yard under a leadman and
finished the boat in the credible time of 2 weeks . Upon this state of the record,
the undersigned finds no ground to believe that the six discharged employees
were inefficient or performed their work unsatisfactorily , or that the respondent
released them for that reason
From all these facts, the undersigned concludes that the respondent discharged
Berry on January 12, 1945, because of his union activities and that his assign-
ment to the work at Johnson 's yard did not constitute "reinstatement to his
former or substantially equivalent position ." The undersigned is also convinced
that the respondent ' s assignments of the other five men to Johnson's yard and
their transfer to Johnson 's pay roll was made with the firm intention of severing
their employment with the respondent and constitutes discharges which were
motivated by their union activities and the respondent's desire to defeat the
Union in the impending consent election
The undersigned therefore finds that the respondent by discharging Henry
Berry on January 12, 1945, by discharging Joe Craig and J. P. Wood, on January
26, 1945, by discharging P G Watton , D. H Wood, and H. P Belknap on January
29. 30 , and 31 , 1945) , respectively , and by thereafter refusing to reinstate any
of them , discriminated in regard to their hire and tenure of employment , thereby
discouraging membership in the Union , and interfering with, restraining, and
coercing his employees in the exercise of the rights guaranteed in Section 7 of the
Act.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
a. The appropriate unit
In the consent election agreement, the respondent and the Union agreed that
all of the respondent's employees, excluding office clerical employees, watchmen,
foremen, and supervisory employees, constitute a unit appropriate for the pur-
poses of collective bargaining At the hearing, all parties agreed that Foreman
Anderson was not included in this unit In the course of the testimony, some
of the employees were referred to as "leadmen." The respondent explained that
the term had not been used at the plant but was being used in the hearing
solely for the purpose of describing several of the experienced working em-
ployees He conceded that none of the so-called "leadmen" were to be excluded
from the unit as supervisory employees Employee Percy Adams works part-
time as a shop clean-up man and part-time as a watchman. The respondent
contended that he should be included in the appropriate unit but counsel for
the Board contended, and the undersigned finds, that Percy Adams should be
excluded because of his function and duties as a watchman.
The undersigned finds that all employees of the respondent employed at hia
Prigg Boat Works plant, exclusive of office clerical employees, watchmen, fore-
men, and supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
recommend such action, in respect to rates of pay, wages, hours of employment,
and other conditions of employment, have constituted and now constitute. an
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
b Representation by the Union of a nta)ortty in the appropriate unit
As already noted, 1S of the respondent's employees had joined the Union by
January 13, 1945. All of them were either non-supervisory shipbuilders or non-
supervisory mechanics and thus within the appropriate unit which then included
31 persons.20 In the period from January 13, to February 10, 1945, Seman
Urytzki, one of the union members, became a foreman, Ekleberry relinquished
his claim to reinstatement ; two other union members left the respondent's em-
ploy on January 16 and February 9, respectively; and one new employee was
hired on January 20 but was discharged on January 29 2 Thus, on February 10,
1945, the appropriate unit consisted of 27 employees of whom 14 were members of
the Union, including the six union members who were released to Forest John-
son but excluding Ekleberry.
The undersigned finds that on January 13, 1945, and at all times to and in-
cluding February 10, 1945, the Union represented a majority of the respondent's
employees in the appropriate unit.
20 On a list submitted by the respondent to Slyer, the respondent showed his employment
of 38 persons as of January 12, 1945 Among those on the list but not within the unit were
his bookkeeper , his secretary , two foremen ( Anderson and Droughton ), two watchmen, and
Percy Adams, who has already been mentioned. The other 31 employees on the list, in-
cluding the 18 Union members, were all within the unit Seman Urytzki, one of the Union
members, was listed as a foreman but this was an error, as the respondent admitted, since
he did not acquire this status until the first week in February.
21 The name of P W Emge, who was hired to complete Kenneth Ekleberry's work, ap-
pears on the respondent ' s pay roll for the week ending January 26 , 1945 , with the notation,
"Contract-piece work" El mge's name does not appear on the respondent's pay roll rec-
ords for the weeks ending February 2, 9, or 16; nor does it appear upon the eligibility list
furnished by the respondent to Slyer on February 8 or 10. The undersigned finds there-
fore that Enige was not in the appropriate unit on February 10, 1945.
PRIGG BOAT WORKS
c The refusal to bargain
123
On January 13, 1945, the respondent received the Union's letter requesting
recognition. Although lie never answered this letter, he did consent to the
holding of an election uudei the supervision of the Board's Regional Director to
determine whethei the Union in fact represented a majority of the employees
in the appropriate unit While lie was entitled to insist upon the establishment
of the Union's majority, lie was under the correlative obligation to permit, and
to abide by, his employees' fiee choice of a representative as it existed at the
time of the request for recognition, and not to attempt to defeat such choice
by dischaigma union ineinbei,4 betoie the election or by any other form of inter-
ference, restraint. or coercion That the respondent did not observe this obli-
gation, and had no intention of doing so, is clear from the present i ecord.
In fact, the respondent overlooked no opportunity which would enable him
to avoid bargaining with the Union As the undersigned has already found, he
insisted upon delaying the election in the frankly expressed hope that before the
election lie aright be able to announce the War Labor Board's approval of his
request for permission to give them a wage increase. Failing to receive official
notification from the War Labor Board by the morning of the election, he
relied upon a telephone call which gave him the desired information, and made
a point of telling Perpall and Morrow that morning that they were to get the
raise Fin thermore, as the undersigned has also found, the respondent dis-
i•harged the six union iaen whom he transferred to Johnson's yard for the ob-
vious purpose of eliminating them as employees and excluding them from the
election He then insisted upon remaining at the polls during the election to
be certain that they were not permitted to vote even a challenged ballot which
would have preserved their vote should the Regional Director have found them
to be eligible and their vote to be material. Moreover, while in the presence
of the men waiting to vote, lie either made or agreed with the remark directed
to Sider that the C. I 0 controlled the Board. In short, his conduct in the
presence of the men at the polls was such that they could not fail to have been
impressed by his opposition to the Union and his disregard of Slyer's repeated
pleas that he leave the polls to insure a fair election, unembarrased by his
presence That this was his intention and that the respondent knew what he
was doing, appears from his later remarks to Slyer that be did not want a
C I. 0 or A. F L. union but that "If you hadn't made that crack about those
men who were laid off, or those men outside voting, I might have let you go
ahead with the election "
The undersigned concludes that respondent's conduct not only made impossible
a fair election for the determination of the employees' free choice of a repre-
sentative, but that it constituted a clear announcement both to his employees
and to the Union that he was determined not to recognize nor to bargain with
the Union as their representative. The undersigned is also convinced that the
respondent neither discussed nor executed the consent election in good faith
but that from the time he received the Union's request his sole concern was to
avoid collective bargaining with the Union. The undersigned therefore finds
that, on January 13, 1945, and on February 10, 1945, and at all times since
February 10, 1945, the respondent has refused to bargain collectively with the
Union as the exclusive representative of his employees in the appropriate unit
and has thereby interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR L\BOR PRV('TICES UPON COMMERCE
The activities of the respondent set forth tit Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate and substantial relation to trade, traffic and conmerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of coannei ce
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action in order to effectu,ite the policies of
time Act.
The undersigned has found that, by discharging licitly I.ei iy, D H Wood,
J P Wood, H P Belknap , P G Watton, Joe Craig, and Kenneth Ekleb>rry, the
i espondent discriminated in regard to their hire and tenui e of employment,
thereby discouraging membership in the Union No recommendation 11 ill be made
for the reinstatement of Kenneth Ekleberry or for his reimbursement for loss
of earnings because, on or about January 24, 1945, he disclaimed any desire for
reinstatement and was thereafter made whole b^ the respondent for his loss
of earnings to that date. The undersigned will, however, reconunend that the
respondent offer to the other six discriminatorily discharged employees irn-
inediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and that
the respondent make them whole for any loss of pay they may have suffered
by reason of the discrimination against them, by payment to each of them of a
mum of money equal to that which he normally would have earned as wages from
the date of his discriminatory discharge, to the date of the offer of reinstatement,
less his net earnings 22 during that period. For the reasons expressed b^ the
Board in other cases ,23 the undersigned regards compliance with this recom-
mendation as essential to the effectuation of the policies of the Act in the present
case, even though it appears from the record that several of the employees tit
question may have secured substantially equivalent emploi moat elsewhere
The undersigned has also found that the respondent refused to bargain col-
lectively with the Union although the Union was the exclusive representative of
the employees of the respondent in a unit appropriate for the purposes of col-
lective bargaining Accordingly the undersigned will reconunend that the re-
^pondent, upon request, bargain collectively with the Union as the representative
of his employees in the appropriate unit.
Upon the basis of the above findings of tact, and upon the entire record in
the case, the undersigned slakes the following:
CONCLUSIONS OF LAW
I Industrial Union of Marine and Shipbuilding Workers of America , C. I. 0.,
is a labor organization within the meaning of Section 2 (5) of the Act.
By "net earnings" is meant earnings less expenses , such as foi tiansportation, room,
aid board, incurred by an employee in connection with obtaining w\ ork and working else-
vvhere than for the respondent , which would not have been incurred but for his unlawtul
,lischarge and the consequent necessit ,, of his seeking employment elsewhere . See Matter
of Crossett Lumber Company , 8 N L R B 440 -Monies received for work performed upon
Federal , State, county , municipal , or othei work - relief projects shall be considered as earn-
ings. See Republic Steel Corporation v N L R B , 311 U. S 7
23 See Matter of Ford Motor Company, 31 N I, R B 994 , 1 099 1100 , Matter of Phelps
Dodge Corporation , 35 N L R . B 418, 420-421
PRIGG BOAT WORKS 125
2 By discriminating in regard to the lure and tenure of employment of Kenneth
Ekleberry, Henry Berry. D H Wood, J. P. Wood, H P. Belknap, P. G Watton.
and Joe Craig, and thereby discouraging membership in Industrial Union of
Marine and Shipbuilding Workers of America, C. I. 0., the respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
S (3) of the Act.
3 At all times material herein, all employees of the respondent employed at
his Prigg Boat Works plant, exclusive of office clerical employees, watchmen,
foremen, and supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or effectively
recommend such action, in respect to rates of pay, wages, hours of employment,
and other conditions of employment, have constituted and now constitute, an
appropriate unit for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
4. On or about January 12. 1945. and at all times thereafter, Industrial Union
of Marine and Shipbuilding Workers of America. C. I 0, has been the exclusive
representative of the employees in the above unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
5. By refusing on or about January 12, 1945, and at all times thereafter to
bargain collectively with Industrial Union of Marine and Shipbuilding Workers
of America, C I. 0. is the exclusive representative of the employees in such
unit, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (5) of the Act.
6 By interfering with, restrainuig, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) pf
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.
RECOMMENDATIONS
On the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, H. Paul Prigg, an individual
doing butsuess under the name and style of Prigg Boat Works, Miami, Florida,
his agents, successors, and assigns, shall :
1. Cease and desist from
(a) Discouraging membership in Industrial Union of Marine and Shipbuilding
Workers of America, C. I 0, or in any other labor organization of his employees,
by discharging or refusing to reinstate any of his employees or by discriminating
in any other manner in regard to their hire or tenure of employment or any term
or condition of their employment ;
(b) Refusing to bargain collectively with Industrial Union of Marine and
Shipbuilding Workers of America, C I 0., as the exclusive representative of all
his employees at the Prigg Boat Works plant, exclusive of office clerical em-
ployees, watchmen, foremen, and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees or effectively recommend such action in respect to rates of pay, wages,
hours of employment, and other conditions of employment;
(c) In any other mariner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to -elf-organization, to form labor organiza-
tions, to join or assist Industrial Union of Marine and Shipbuilding Workers
of America, C. 1 0, or any other labor organization, to bargain collectively
through repieaentatives of 11 err own chooaing, and to engage in concerted activi-
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties, for the purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2 Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Henry Berry, D. H. Wood, J. P. Wood, H. P Belknap, P G. Watton
and Joe Craig immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay they may have suffered by
reason of the discrimination against them, by payment to each of them of a sum
of money equal to that which he normally would have earned as wages from the
date of his discriminatory discharge to the date of the offer of remstatenient, less
his net earnings ' during that period.
(b) Upon request bargain collectively with Industrial Union of Marine and
Sbipbnilding Workers of America, C. I O., as the exclusive representative of all
his employees at the Prigg Boat Works plant, exclusive of office clerical em-
ployees,, watchmen, foremen, and supervisory employees with authority to hire
promote, discharge, discipline, or otherwise effect changes in the status of em-
ployees or effectively recommend such action in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
(c) Post at his plant in Miami, Florida, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by the respondent,
be posted by him immediately upon receipt thereof , and maintained by him for
sixty (60) consecutive days thereafter, in conspicuous places , including all
places where notices to employees are customarily posted Reasonable steps
shall be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(d) Notify the Regional Director for the Tenth Region in writing, within
ten (101 days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent has notified said
Regional Director in writing that it will comply with the toregoing recommenda-
tions the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, eltective July 12, 1944, as amended,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferred in the case to the Board. pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, 25 D C, an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof Immediately upon the filing of such state-
ment of exceptions and/oi brief, the party or coinisel for the Board filing the
same :shall serve a copy thereof upon each of the panties and shall file it copy
with the Regional Director As further prodded in said Section 33. should any
Marty desire permission to argue orally before the Board. request therefor must
be made in writing to the Board within ten (10) dad s from the (late of the order
transferring the case to the Board
WILLIAM F. SCHARNIKOW,
Dated July 21 , 1945 - Trial Examiner.
'4 See footnote 22, supra.
PRIGG BOAT WORKS
APPENDIX A
NOTICE TO ALL EMPLOYEES
127
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Industrial Union of :Marine and Shipbuilding
Workers of America, C. I. 0 or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement The bargaining unit is : All em-
ployees at the Prigg Boat Works plant, exclusive of office clerical employees,
watchmen, foremen, and supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees or effectively recommend such action, in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
The employees to be reinstated with back pay are Henry Berry, D. H. Wood,
J. P Wood, H. P. Belknap, P. G. Watton, and Joe Craig.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
H. PAUL PRIGG,, DOING BUSINESS UNDER
THE NAME OF PRIGG BOAT WORKS,
(Employer)
Dated----------------- ------ By------------------- -------------------
(Representative) (Title)
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material