South Atlantic Steamship Company of Delaware

National Labor Relations Board - Board Decisions

May 31, 1939

12 N.L.R.B. 1367 (N.L.R.B. 1939)

In the Matter of SOUTH ATLANTIC STEAMSHIP COMPANY OF DELAWARE
and NATIONAL MARITIME UNION OF AMERICA
Case No. C-635.-Decided May 31, 1939
Water Transportation Industry-Discrimination : discharge of members of
labor organization because of non-membership in rival organization ; failure
to establish closed-shop agreement ; preferential hiring agreement with rival
organization not a valid defense ; alternative finding of refusal to reemploy,
rather than discharge , for non-membership in rival organization ; preferential
hiring agreement not applicable to kind of reemployment involved-Employee
Status: termination of voyage, as affecting-Reinstatement Ordered: employees
against whom discrimination practiced and who had not been reinstated at
time of hearing-Back Pay: awarded to employees discriminated against, in
eluding reasonable value of board and maintenance-Interference , Restraint, and
Coercion : refusal to issue passes to board vessels to one labor organization
while granting them to another ; agreement with latter organization no bar
to extension of same privilege to former-Ordered: granting of passes in equal
numbers and under same conditions to other labor organizations as granted to
favored organization.
Mr. Louis Libbin and Mr. Alexander E. Wilson, for the Board.
Adams, Adams, Douglass & Brennan, by Mr. W. Walter Douglass
and Mr. Edward C. Brennan, of Savannah, Ga., for the respondent.
Mr. William Standard and Mr. Max Lustig, of New York City, for
the N. M. U.
Coonerat c Hunter, by Mr. E. Ormonde Hunter and Mr. George L.
Googe, of Savannah, Ga., and Mr. Charlton Ogburn, of New York
City, for the I. S. U.
Miss Ida Klaus, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed on behalf of National
Maritime Union of America, herein called the N. M. U., the National
Labor Relations Board, herein called the Board, by Charles N.
Feidelson, Regional Director for the Tenth Region (Atlanta, Geor-
gia), issued its complaint dated February 14, 1938, against South
Atlantic Steamship Company of Delaware,' herein called the re-
3 The caption of the complaint , as originally issued, referred to the respondent as
"South Atlantic Steamship Company " At the hearing the complaint was amended to
add the words "of Delaware" to the name of the respondent.
12 N. L. R. B., No. 133. 1367
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. In
respect to the unfair labor practices, the complaint alleged, in sub-
stance, (1) that the respondent had, by refusing to permit agents and
delegates of the N. M. U. to board its vessels to confer with its crews,
while granting such access to the International Seamen's Union, by
threatening N. M. U. members with discharge, and by other acts, in.
terfered with its employees in the exercise of their right to self-organi-
zation and collective bargaining; and (2) that on or about October 5,
1937, the respondent had discharged and had continuously thereafter
refused to reemploy 23 named employees because of their membership
in the N. M. U., thereby discouraging membership in the N. M. U.
The complaint and an accompanying notice of hearing thereon were
duly served upon the respondent and the N. M. U. On March 10,
1938, the respondent filed an answer to the complaint, admitting
that it has caused its vessels to be operated in foreign commerce from
certain ports of the United States and denying that it had committed
the unfair labor practices alleged in the complaint. On the same day,
International Seamen's Union of America, herein called the I. S. U.,
was permitted to intervene in the proceeding by an order of the Re-
gional Director, issued pursuant to Article II, Section 19, of National
Labor Relations Board Rules and Regulations-Series 1, as amended.
Pursuant to notice, a hearing was held in Savannah, Georgia, on
March 24, 25, 26, and 29, 1938, before Albert L. Lohm, the Trial
Examiner duly designated by the Board. The Board, the respondent,
the N. M. U., and the I. S. U. were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the close of the Board's case, coun-
sel for the Board moved to amend the pleadings to conform to the
proof. The motion was granted. At the close of the entire case,
counsel for the respondent moved to amend the answer to conform
to the proof and to dismiss the complaint for want of substantial evi-
dence to sustain the allegations of unfair labor practices. The first
motion was granted and the second was denied. During the course of
the hearing, the respondent offered in evidence the judgment roll and
the transcript of proceedings in a libel action brought against one of
the respondent's ships in the District Court of the United States for
the Eastern District of South Carolina. The action, instituted by four
of the men named in the complaint in the instant case, was one for
damages for wrongful discharge under the Act. The respondent
made the proffer in support of its contention that the question of
whether the men had been wrongfully discharged under the Act
SOUTH ATLANTIC STEAMSHIP COMPANY 1369
had been adjudicated in the District Court and that that matter was
r es judicata in the proceeding before the Board. The Trial Examiner,
upon objection of counsel for the Board that the documents offered
were immaterial to the issues in the instant proceeding for the reason
that the parties and issues in the libel action were wholly different
from those in the instant case and that the Board had been vested with
exclusive initial jurisdiction to determine questions of unfair labor
practices, refused to admit the documents in evidence. The ruling is
hereby affirmed.2 During the course of the hearing the Trial Ex-
aminer made other rulings on motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On May 12, 1938, the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act, and recommending that the re-
spondent cease and desist therefrom and take certain specified affirma-
tive action to effectuate the policies of the Act. Exceptions to the
Intermediate Report were thereafter filed by the respondent, the
1. S. U. and American Federation of Labor Seamen's Union No. 21420,
and the N. M. U. On November 22, 1938, oral argument was held
thereon before the Board. During oral argument the respondent and
American Federation of Labor Seamen's Union No. 21420 obtained
leave to have included as part of the record in this case the official
transcript of a hearing held before the Board on May 9, 1938, in
the case of American France Line, et at. and International Seamen's
Union of America, together with all exhibits introduced into evidence
at that hearing and with the supplemental order of the Board in the
matter, dated May 25, 1938.
The Board has considered the exceptions to the Intermediate Re-
port and, in so far as they are inconsistent with the findings, con-
clusions, and order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At the hearing counsel for the Board and counsel for the respondent
stipulated, and we find, that :
The respondent, a Delaware corporation, having its principal office
at Wilmington, Delaware, and its financial and operating head-
2 Myers et al. v. Bethlehem Shipbuilding Corporation , 303 U. S. 41; Newport Newa
Shipbuilding & Dry Dock Co v Schauffler et at, 303 U. S. 54, Matter of Williams Manu-
facturing Company and United Shoe Workers of America, 6 N. L. it. B. 135.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarters at Savannah, Georgia, is engaged in the transport of freight
between certain Atlantic ports in the United States and certain other
ports in Europe. It owns and operates *six vessels in the conduct of
its business and employs about 157 unlicensed seagoing men. It com-
mences approximately 18 foreign voyages during a half year. For
the period from July 1, 1937, to December 31, 1937, the respondent's
total gross revenue was approximately $700,000.
We find that the respondent is engaged in traffic, transportation,
and commerce between the United States and foreign countries, and
that the men engaged in the operation of the respondent's vessels are
directly engaged in such traffic, transportation, and commerce.
II. THE ORGANIZATIONS INVOLVED
National Maritime Union of America, affiliated with the Committee
for Industrial Organization, is a labor organization admitting to
membership the unlicensed personnel employed on the respondent's
ships.
International Seamen's Union of America, affiliated with the Ameri-
can Federation of Labor, is a labor organization. Before December
1937 it admitted to membership all unlicensed personnel employed on
the respondent's ships.
American Federation of Labor Seamen's Union No. 21420, claim-
ing to be the successor to the International Seamen's Union of
America on the Atlantic seaboard and the Gulf of Mexico, is a
labor organization. It admits to membership the unlicensed per-
sonnel employed on the respondent's ships.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination with regard to hire and tenure of emplo ynnernt s
On August 3, 1937, the crew of the respondent's ship, the Sacea-
rappa, signed shipping articles at Savannah, Georgia, for a foreign
voyage to be embarked upon two days later. Upon the return of the
vessel from abroad to Charleston, South Carolina, on about Sep-
tember 20, 1937, the crew signed off its shipping articles. Two of its
members thereafter resigned their jobs and the others remained at
work in preparation for a coastwise trip, during which cargo carried
8 The complaint alleges that the following men were discriminated against with regard
to hire and tenure of employment
F. E. Jellico C. Crosby H . Waits J. Seyfert
J. J. Drewes H J Johnson W. L. Price W. Oliver
C. H. Murray J. E Dwyer W. S. Pyle T. Ames
H. A. DeLoach W C. Kennedy E. G Olsen J. Reed
J. C. Ward H. H . Wilson J J. Weston R. Ponds
E. Higger ibothen P. D. Cannon C. W. Lewis
SOUTH ATLANTIC STEAMSHIP COMPANY 1371
from abroad was to be discharged and freight was to be loaded for
the next foreign voyage. On or about September 21 the remainder
of the old crew and the two new men who replaced those who had quit
started on the coastwise trip. En route between Charleston, South
Carolina, and Wilmington, North Carolina, the members of the crew
signed a coastwise pay roll. The Saccarappa arrived at Wilming-
ton on or about September 22. Shortly after the arrival of the ship
at Wilmington, an organizer for the N. M. U. came on board and,
at the request of the men, explained what he considered to be the
advantages and benefits to be derived from joining the N. M. U.
The entire unlicensed personnel thereupon became members of the
N. M. U.
On the day on which the men had joined the N. M. U. John Drews,4
ship's delegate for the unlicensed seamen, informed the captain of
their new union affiliation. Drews testified that the captain's com-
nient was : "Whatever you fellows do has got nothing to do with me,
anything you do is all right with me." The captain's testimony is
substantially in accord with that of Drews but indicates a more ex-
tended conversation in which the captain stated, in response to Drews'
question as to whether the captain thought the respondent would
reemploy the men, "I don't know, I know we have an agreement with
the I. S. U. which does not terminate until the end of the year.
They might try to put other men on ." The captain testified further
that he advised Drews not to worry, saying, "so long as I can keep
my crew together, we will get back to Savannah, and it will be settled
there."
The men continued the performance of their duties during the
course of the coastwise trip, stopping at the shipyards in Newport
News, Virginia, to engage in repairs and at Jacksonville, Florida, to
load for the next foreign voyage. At Newport News, Roger Cohan,
the respondent's port superintendent, was asked by Drews whether it
made any difference to him what the union affiliation of the men
was, and, according to Drews' testimony, he replied, "No, I am not
interested in what union you fellows belong to just as long as you
do your work and attend to your business you have a job. If you men
are competent men, that is all we have to worry about; all I am
interested in is seeing this ship gets out of here." Other members
of the crew who heard this conversation testified that Cohan had
also stated that their jobs were safe and that they interpreted his
remarks as an assurance that they would not be forced to leave the
ship upon its return to Savannah. Cohan's testimony is that he told
the men, after they had questioned him about their new affiliation,
' The name appears in the complaint as "Drewes."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were to stay on the ship and that the matter would be
settled at Savannah. The following day, he testified further, he
repeated that advice, adding that the I. S. U. had an agreement
with the respondent and that he would see that the question was
satisfactorily settled in Savannah. During the ship's stay at New-
port News, Drews testified, the captain told him, in reply to his
question as to whether the men's jobs were secure, that, as far as
the captain was concerned, their jobs were secure; the work of each
member of the crew was satisfactory; and nobody was incompetent.
The captain did not contradict Drews' version of the conversation.
At Jacksonville Drews was compelled to leave the ship because of
illness in his family. He told the first assistant engineer that he in-
tended to quit the respondent's employ because of the emergency at
home but that officer dissuaded him from resigning and, instead,
permitted him to go home for a few days with the understanding
that he would rejoin the ship at Savannah. No deduction was
made from Drews' pay for the break in his services. A third new
seaman joined the vessel at Jacksonville and the testimony of a fel-
low seaman is that he was a member of the N. M. U. at the time he
came on board ship.
The coastwise trip was completed when the Sacoarappa arrived at
Savannah on the morning of October 5. The crew remained on duty.
On October 5, shortly after the arrival of the ship, Drews told
Cohan that the men were anxious to know whether he "had any
feeling against them" for joining the N. M. U. and whether they
were going to lose their jobs. Cohan replied that the men would not
lose their jobs; that they would be paid that day for the coastwise
trip ; and that they would sign articles the following day for the
next foreign voyage. Drews stated at the hearing that he had made
the inquiry because of rumors the men had heard that their jobs were
insecure and that they would be discharged that day.
Sometime during October 5 the men were paid for the coastwise
trip, and the captain and the first mate informed them that their jobs
were safe and that they would sign shipping articles the following
day for the next scheduled foreign voyage. The captain testified
that, after paying the men, he notified them that foreign articles
would be signed the following morning; that the doctor would be on
board at 10:00 a. m. on October 6; and that they were all to be
present for the physical examination and the signing of articles.
After receiving their pay, the men resumed the performance of their
assignments and continued to work their shifts, which had been inter-
rupted only for the length of time required for signing off the coast-
wise pay roll. Members of the unlicensed crew who left the ship
SOUTH ATLANTIC STEAMSHIP COMPANY 1373
that night did not take their belongings with them. After having
worked until 8:30 o'clock that evening, Drews returned to the Sacca-
rappa at midnight and slept on board in order to be on hand for the
shifting of docks in the course of the scheduled departure from
Savannah. The captain testified that, until about 10: 00 a. 11-1. of
October 6, he had thought that the crew would make the next foreign
voyage.
On the morning of October 6 a United States shipping commis-
sioner refused to permit the entire unlicensed crew of 23 men to
sign shipping articles. This was done upon instructions from the
captain and the I. S. U. agent, who were on board and who in-
formed the men that they would not be permitted to make the foreign
voyage unless they joined the I. S. U. The captain testified that he
advised the men, when they asked him what was going to be done
about the matter, "I can't do anything. The only thing that I can
see that you can do is to join the old union again if you want to
sign on, that is all I can see for you to do." After the 23 men indi-
cated that they would not follow the captain's suggestion, they
were ordered off the ship and left with their belongings . Each had
been paid for the number of hours he had worked from the time the
coastwise pay roll had been signed off. According to the testimony of
the captain, the Saccarappa's log showed that the vessel left Savan-
nah in the early morning of October 7 and departed for Liverpool,
England, from Charleston, South Carolina, on October 9 with an
entirely new unlicensed crew.
At the time of the hearing the respondent had failed to reemploy
all but three of the men named in the complaint. The three men
whom it had reemployed at that time are W. Oliver, who was re-
hired on December 2, 1937, C. W. Lewis, who was rehired on January
6, 1938, and W. L. Price, who was rehired on February 11, 1938.
Each of the three was a member of the I. S. U. at the time of the
hearing.
In its answer, the respondent denies that it discharged any of the
23 persons named in the complaint and contends that the employment
of the said persons terminated by virtue of the termination of the
voyage and term for which they were employed. The respondent
states in support of such contention that the employment of the
persons making the foreign voyage beginning in September 1937
terminated when they signed off shipping articles at Charleston,
South Carolina, on September 20 or 21, 1937; that the persons in
question were thereafter engaged to make a coastwise voyage to be
completed at Savannah, Georgia, on October 5 or 6, 1937; and that
the coastwise voyage was completed and the men paid in full for their
services.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We cannot concur in the respondent's contention, as stated above,
that the employment of the men automatically terminated at the end
of a particular voyage. The undisputed testimony at the hearing
was to the effect that at the end of a particular voyage the same crew
sails again except when a, member of the crew either quits or is dis-
charged and that the employment under such circumstances is re-
garded as continuous. Indeed, the facts set forth above clearly
show that all parties considered the persons making a particular
voyage as thereafter retaining their status as employees until they
quit or were discharged. When the men signed off the shipping
articles following the foreign voyage on or about September 21,
1937, all the crew who made such voyage, except two members who
quit, made the ensuing coastwise voyage. Before the end of the
aforesaid foreign voyage or during the coastwise voyage, members
of the crew were asked by a ship's officer whether they intended to
make the next foreign voyage and they indicated an affirmative in-
tention. On October 5, the captain, the port superintendent, and the
first mate announced to the crew who made the coastwise voyage
that foreign articles would be signed the following day and the cap-
tain asked the men to be present for medical inspection and for the
execution of shipping articles. After signing off the coastwise pay
roll the men continued on the ship in the performance of duties
assigned to them.
Under all the facts, we conclude that notwithstanding the termi-
nation of a particular voyage the employment relationship of each
member of the crew continued until he quit or was discharged. We
conclude, therefore, that the 23 men named in the complaint were
employees of the respondent on October 6, 1937, and that the refusal
of the respondent thereafter to permit them to work constituted a
discharge of the men. It is clear that the only reason for the dis-
charges was the refusal of the men to rejoin the I. S. U.
The respondent admits that it refused to reemploy the 23 men in
question on and after October 6, 1937, but contends that such refusal
was justified by the obligations under an agreement which it had with
the I. S. U. and which required that the respondent accord preference
of employment to I. S. U. members. The respondent's answer avers
that the refusal to employ the men was "for no other reason."
The agreement in question was first consummated in January 1935,
having thereafter been amended in March and September 1936 and
in February 1937. As last amended, it was to terminate on De-
cember 31, 1937. The provision on which the respondent relies for
its defense appeared at all times in the agreement and was operative
on October 6, 1937, when the 23 men were prevented from signing
SOUTH ATLANTIC STEAMSHIP COMPANY 1375
shipping articles. Designated as Article II, Section I, and entitled
"Preference," it reads as follows :
It is understood and agreed that, as vacancies occur, members
of the International Seamen's Union of America, who are citi-
zens of the United States, shall be given preference of employ-
ment, if they can satisfactorily qualify to fill the respective posi-
tions; provided, however, that this Section shall not be con-
strued to require the discharge of any employee who may not
desire to join the Union, or to apply to prompt reshipment, or
absence due to illness or accident.
The clause clearly provides only for preferential hiring, and not
for a closed shop. By its express terms, it is applicable only "as
vacancies occur," and does not require the discharge of employees
who refuse to join the I. S. U. The agreement therefore constitutes
no defense to the allegations of discriminatory discharge.
At the hearing Raymond D. Sullivan, the respondent's vice presi-
dent, and Charles Waid, the I. S. U. agent, testified to the effect that
all the unlicensed seamen employed by the respondent had joined the
I. S. U. within six months after the agreement had been initially
executed in January 1935 and that thereafter the written agreement
was regarded by the respondent and by the I. S. U. as one for a
closed shop. Waid further testified that shortly after the execution
of the written agreement the I. S. U. and the respondent had also
entered into an oral agreement for a closed shop. He asserted in
this connection that he had successfully insisted before the respondent
that all unlicensed seamen who were employed after the execution
of the written agreement be members of the I. S. U. It is clear,
however, that any such conduct would not necessarily indicate that
a closed-shop agreement was being enforced, as it might also have
followed the express language of the written agreement requiring
the respondent to give preference of employment to I. S. U. mem-
bers. Ill further support of his contention relative to the interpre-
tation which the parties had put upon the written agreement and
relative to the alleged oral agreement, Waid asserted that he had
successfully claimed the right to require all members of the I. S. U.
in the respondent's employ to remain in good standing with the
I. S. U. He could, however, point to no specific instance in which
he had prevented a member of the respondent's unlicensed personnel
who had fallen behind in the payment of his dues from sailing on
the respondent's vessels.
Although the written agreement was amended on three separate
occasions subsequent to the date on which the parties allegedly came
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to regard the written agreement as one for a closed shop and sub-
sequent to the date on which the oral agreement for a closed shop
was claimed to have been made, no provision for a closed shop was
at any time incorporated in the written agreement. On the contrary,
the parties continued to retain in the agreement a provision limited
to preferential hiring. A number of unlicensed seamen who worked
for the respondent during the period when the oral agreement was
claimed to have been in effect testified that they had been unaware
of its existence. The conduct of the officers of the Saccarappa and
of the respondent's port superintendent in permitting Drews to leave
the ship temporarily at Jacksonville after he had joined the N. M. U.
and in assuring the men that their jobs would not be jeopardized by
their membership in the N. M. U. indicates that they had no knowl-
,edge of a closed-shop agreement.
In view of the entire record, we conclude that there was not in
existence any oral agreement for a closed shop between the respond-
ent and the I. S. U. and that the written agreement was not in fact
regarded by the parties thereto as one for a closed shop. We con-
clude, moreover, that even if the record showed that the parties had,
because of circumstances which developed after the agreement was
first executed, considered the written agreement as one for a closed
shop, such collateral understanding could not prevail over the clear
and express wording of the agreement.
Since we have found that the respondent discharged the 23 men in
question on October 6, 1937, because they refused to rejoin the I. S. U.,
it becomes unnecessary to consider the respondent's contention that
the written agreement precluded it from reemploying the men. Such
discharge did not affect the status of such men as employees. It is
clear, however, that even if, as contended by the respondent, the
employment of the men automatically terminated on October 5, 1937,
when the men were paid for the coastwise trip, the refusal of the
respondent to reemploy them on October 6, 1937, was not justified
on the basis of such written agreement. The preferential hiring pro-
vision of the agreement is made expressly inapplicable to a "prompt
reshipment." Members of the discharged crew who had made many
voyages for the respondent and for other companies testified that the
term "prompt reshipment" had a definite meaning in the shipping
industry and referred to an established maritime practice with which
they were well acquainted through their years of experience as sea-
men. It characterized, they testified, the situation in which a ship
completes one voyage and starts upon another without a break in the
continuity of its service, except for such interruption as is necessi-
tated by the making of usual repairs and the discharging and loading
SOUTH ATLANTIC STEAMSHIP COMPANY 1377
of cargo. Under such circumstances, they testified further, members
of the crew who made the last voyage and who desire to ship again
remain with the vessel after being paid for the last trip, unless they
are at that time notified by.the company of their discharge. When
men do not receive such notice and remain on duty with the ship,
the understanding on both sides is that they will make the next
voyage. The testimony of Drews and others is that it is usual, in
such circumstances, for the crew to continue the performance of its
duties during the interval between the signing off of one set of
articles or of a pay roll and the execution of subsequent documents for
a following voyage, where the latter event does not follow immedi-
ately upon the former. In such case the subsequent articles are dated
back to cover the entire period between the expiration of the last
articles and the termination of the next voyage. The testimony of
the seamen as to what constitutes a "prompt reshipment" and as to
the general maritime custom hereinbefore described was uncontro-
verted.
It is clear that the 23 men did not leave the respondent's employ
at the termination of the last foreign voyage or upon being paid for
the coastwise trip and that the respondent did not, at either of these
points, discharge the men. On the contrary, the conduct on both
sides reasonably gave rise to an unequivocal understanding that the
-23 men would sail with the Saccarappa on its next foreign voyage.
The men who testified stated in this connection that their conduct
in staying with the ship during the coastwise trip and in remaining
^on duty after having been paid for that trip afforded the usual
evidence to the respondent of their intention to reship. As already
noted herein, some of the men testified further that they had been
asked at the end of the last foreign voyage or during the course of
the coastwise trip whether they intended to make the next foreign
voyage and that they had replied in the affirmative. They also in-
terpreted the announcement made on October 5 by the captain, the
port superintendent, and the first mate that foreign articles would
be signed the following day as evidence of the respondent's intention
to permit them to make the next foreign voyage.
The evidence shows, and we find, that the voyage which the men
-were prevented from making on October 6 was a "prompt reship-
ment" and was expressly excepted from the preferential hiring pro-
vision of the agreement with the I. S. U.
As indicated above, of the 23 persons named in the complaint
three had been reemployed by the respondent at the time of the
hearing. As to these three, the record does not show the rate of
their earnings with the respondent prior to October 6, 1937, and
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether they had obtained any other employment between October 6
and the time of their reemployment. Of the remaining 20, 5 testified
at the hearing. Drews testified that he had earned at the rate of
$82.50 a month with the respondent, exclusive of his board and
maintenance, and that he worked for about 3 months on a vessel of
the Standard Oil Company receiving at the rate of $110.00 a month,
exclusive of his board and maintenance, and having earned about
$300.00 during that period. Wilson testified that he had earned at
the rate of $60.00 a month with the respondent, exclusive of his
board and maintenance, and that he had earned nothing from Octo-
ber 6, 1937, until the date of the hearing. Crosby testified that he
had earned at the rate of $82.50 a month with the respondent, ex-
clusive of his board and maintenance, and that he had worked on a
Standard Oil Company tanker from January 17, 1937, until about a
week before the hearing, having been paid at the rate of $85.00 a
month, exclusive of his board and maintenance. Johnson testified
that he had earned at the rate of $72.50 a month with the respondent,
exclusive of board and maintenance, and that he had worked from
November 27, 1937, to January 10, 1938, on a Standard Oil Company
tanker, having earned at the rate of $70.00 a month, exclusive of
board and maintenance. Jellico testified that he had earned at the
rate of $82.50 a month with the respondent, exclusive of board and
maintenance, and that he had worked from November 26, 1937, to
January 9, 1938, aboard a vessel of the Standard Oil Company, hav-
ing been paid at the rate of $85.00 a month for the first month and
at the rate of $110.00 a month during the remaining period of his
employment. Each of these five men stated at the hearing that he
wanted to be reemployed by the respondent. The remaining 15 men
did not testify at the hearing and it was testified on their behalf that
they were not available because they were out at sea or otherwise
away from the place of the hearing. As to these men there is no
evidence of their former earnings with the respondent and no reliable
indication as to whether they obtained any employment from the
time of their discharge to the date of the hearing.
We find that the respondent, by discharging the 23 men named in
the complaint on October 6, 1937, discriminated against them in
regard to their hire and tenure of employment, thereby encouraging
membership in the I. S. U. and discouraging membership in the
N. M. U., and that by such discrimination the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
We further find that, even if it was assumed as contended by the
respondent that the employment of the said 23 men automatically
?VP
SOUTH ATLANTIC STEAMSHIP COMPANY 1379'
terminated on October 5, 1937, the respondent, by refusing to reem-
ploy the men on October 6, 1937, discriminated against them in regard
to their hire and tenure of employment, thereby encouraging mem-
bership in the I. S. U. and discouraging membership in the N. M. U.,
and that by such discrimination the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
B. Interference, restraint, and coercion
The complaint alleges that the respondent refused to grant passes
to the N. M. U. to board its vessels and denied the N. M. U. access•
to its vessels for the purpose of conferring with the respondent's
crews, while granting these privileges to the I. S. U. At the hearing,.
the respondent's vice president admitted that the I. S. U. agent had
been given a pass to board the respondent's vessels and that the
N. M. U. had not been accorded similar treatment. It was also,
admitted that, except during the period between the posting of
notices of an election to be conducted by the Board and the actual
election,' an agent of the I. S. U. at all times had free access to the
respondent's vessels and that access to the vessels had been denied to,
the N. M. U. The respondent contends, however, that the privileges -
accorded the I. S. U. agent were to enable him to enforce compliance,
with the terms of the written agreement between the respondent and,
the I. S. U.
The agreement between the respondent and the I. S. U. contained'
no provision which might be considered as a bar to a granting by the-
respondent to both labor organizations of the same privileges of
access to the respondent's vessels. There is, moreover, no showing -- -
that the activities of the I. S. U. agent were restricted to enforcement
of the provisions of the aforesaid agreement. Nor is there any evi-
dence that the respondent ever instructed the I. S. U. agent so to•
limit his activities on the respondent's vessels.
In view of the foregoing, we think it clear that the respondent's
issuance of passes to the I. S. U. and granting it free access to the,
respondent's vessels while denying the same privileges to the N. M. U.
constituted a discrimination in favor of the I. S. U. and against
the N. M. U. and that such discrimination had the effect of inter-
fering with, restraining, and coercing the employees of the respondent
in the exercise of the rights guaranteed in Section 7 of the Act.
We find that the respondent, by issuing passes to representatives---
of the I. S. U. and granting them free access to the respondent's ves-
' The election was conducted pursuant to a Direction of Election issued by the Board-
on July 16, 1937, in Matter of American France Line et al. and International Seamen's.
Union of America, 3 N. L. R. B. 64.
169134-39-vol. 12-88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sels while refusing to issue passes and grant such access to represen-
tatives of the N. M. U., has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
IV. THE REMEDY
We have found above that the respondent on October 6, 1937, dis-
criminated against the 23 persons named in the complaint in regard
to their hire and tenure of employment. Prior to the hearing, the
respondent had reinstated three of the said 23 persons, namely, W. L.
Price, C. W. Lewis, and W. Oliver. We shall order the respondent
to offer to the other 20 persons who have not been reinstated rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges. We
shall also order the respondent to make the said 20 persons whole for
any loss of pay they have suffered by reason of the discrimination
against them, by payment to each of them of a sum of money equal
to the amount he normally would have earned as wages from the
date of the discrimination on October 6, 1937, to the date on which
the respondent offers him reinstatement, less his net earnings s during
said period. We shall also order the respondent to make W. L. Price,
C. W. Lewis, and W. Oliver 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 the amount he normally
would have earned as wages from the date of discrimination on
October 6, 1937, to the date on which he was reinstated by the re-
spondent to his former or substantially equivalent position, less his
net earnings' during said period. Since the record shows that each
of the said 23 men, while in the employ of respondent, received in
addition to his monetary wage, maintenance on shipboard, we shall
order that the reasonable value of his maintenance on shipboard
during the period for which we shall award back pay shall be
included in the total monetary compensation to be paid by the
respondent.
6 BY "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 5590, 8 N. L R. B. 440.
Monies received for work performed upon Federal, State, county, municipal, or other work-
relief projects are not considered as earnings, but as provided below in the Order, shall
be deducted from the sum due the employee, and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects. By "earnings"
in this case is meant monetary compensation obtained at other employment and also the
reasonable value of board and maintenance received in addition to such monetary
compensation.
SOUTH ATLANTIC STEAMSHIP COMPANY 1381
We have also found that the respondent has interfered with, re-
:strained, and coerced its employees in the rights guaranteed to them
in Section 7 of the Act by refusing to grant passes and access to its
tiessels to authorized representatives of the N. M. U., while according
such privileges to the I. S. U. In order to remedy this unlawful -
conduct we shall order the respondent to issue passes in equal num-
bers to representatives of both the N. M. U. and the I. S. U., or its
successor, under the same conditions.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. National Maritime Union of America, International Seamen's
Union of America, and American Federation of Labor Seamen's
Union No. 21420 are labor organizations, within the meaning of Sec-
tion 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of the persons listed in Appendix A and of W. L. Price, C. W.
Lewis, and W. Oliver, thereby discouraging membership in the
National Maritime Union of America and encouraging membership
in the International Seamen's Union of America, the respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent , South Atlantic Steamship Company of Delaware, and
its officers , agents, successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in National Maritime Union of
America or any other labor organization of its employees by in any
manner discriminating in regard to hire and tenure of employment
or any term or condition of employment;
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to issue passes to authorized representatives of the
National Maritime Union of America, or of any other labor organiza-
tion of its employees, in equal numbers and under the same conditionst
as it grants passes to representatives of the International Seamen's
Union of America or its successor;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,.
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to the persons listed in Appendix A immediate and full
reinstatement to their former positions, without prejudice to their
seniority and other rights or privileges previously enjoyed by them;
(b) Make whole the persons listed in Appendix A for any loss' of
pay they have suffered by reason of the respondent's discrimination
against them, by payment to each of them of a sum of money equal to
that which he would normally have earned as wages-including
therein the reasonable value of his maintenance on shipboard-from
October 6, 1937, to the date on which the respondent offers him
reinstatement, less his net earnings during said period; deducting,
however, from the amount thus to become owed him, monies received
by him during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and payment of the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Make whole, W. L. Price, C. W. Lewis, and W. Oliver for
any loss of pay they have suffered by reason of respondent's discrimi-
nation against them, by payment to each of them of a sum of money
equal to that which he would normally have earned as wages-includ-
ing the reasonable value of his maintenance on shipboard-froin Octo-
ber 6, 1937, to the date on which the respondent reinstated him, less
his net earnings during said period; deducting, however, from the
amount thus to become owed him, monies received by him during
said period for work performed upon Federal, State, county, munici-
pal, or other work-relief projects, and payment of the amount, so
deducted, to the appropriate fiscal agency of the Federal, State,
county, municipal, or other government or governments which sup-
plied the funds for said work-relief projects;
SOUTH ATLANTIC STEAMSHIP COMPANY 1383
(d) Grant passes to authorized representatives of the National
Maritime Union of America, and of any other labor organization of
its employees, in equal numbers and under the same conditions as it
grants passes to representatives of the International Seamen's Union
of America or its successor;
(e) Post immediately notices to its employees in conspicuous places
on its docks and on its vessels, and maintain such notices for a period
of at least sixty (60) consecutive days from the date of posting, stat-
ing that the respondent will cease and desist in the manner aforesaid;
(f) Notify the Regional Director for the Tenth Region in writing
within twenty (20) days from the date of this Order what steps the
respondent has taken to comply herewith.
APPENDIX A
F. E. Jellico
J. J. Drews
C. H. Murray
H. A. DeLoach
J. C. Ward
E. Higgenbothen
C. Crosby
H. J. Johnson
J. E. Dwyer
W. C. Kennedy
H. H. Wilson
P. D. Cannon
H. Waits
W. S. Pyle
E. G. Olsen
J. J. Weston
J. Seyfert
T. Ames
J. Reed
R. Ponds
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Order.