Star and Crescent Boat Co.

National Labor Relations Board - Board Decisions

Dec 19, 1939

18 N.L.R.B. 479 (N.L.R.B. 1939)

In the Matter of STAR AND CRESCENT BOAT COMPANY and INLAND
BOATMEN'S UNION OF THE PACIFIC (AFFILIATED WITH THE C . I. O.)1
Case No. C-1223.-Decided December 19,1939
Water Transportation Industry-Interference, Restraint , and Coercion:
supervisor dissuading employee from testifying at the hearing-Company-Dom-
inated Union : financial support to , and advocacy of, unaffiliated union by re-
spondent ; disestablished as agency for collective bargaining-Unit Appropriate
for Collective Bargaining : unlicensed personnel excluding those employed on
the San Diegan and exclusive of supervisory , clerical , and casual employees ;
no controversy as to-Representatives : proof of choice : signed applications
for membership-Collective Bargaining : refusal to recognize though union
offered to check membership cards with pay roll or to hold a consent election ;
this coupled with support to company-dominated union disclosed intent of
refusal to bargain ; ordered to bargain collectively with union as exclusive
representative ; order based on majority obtained prior to unfair labor prac-
tices-Discrimination : discharges and refusal to reinstate ; charges of,
dismissed.
Mr. Drexel A. Sprecher, Mr. Charles M. Brooks, and Mr. William
R. Walsh, for the Board.
Mr. Elmer H. Howlett and Mr. Towson T. MacLaren, of Los
Angeles, Calif., and Mr. William G. Mirow, of San Diego, Calif., for
the respondent.
Mr. George E. Bodle, of San Francisco, Calif., for the I. B. U.
Mr. Allan Lind, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the Inland Boat-
men's Union of the Pacific, herein called the I. B. U., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Twenty-first Region (Los Angeles, California),
issued its complaint dated December 21, 1938, against Star and
Crescent Boat Company, San Diego, California, herein called the
'At the hearing counsel for the Board moved to amend the title of the proceedings to
read correctly as it is set forth in the title above. The Trial Examiner granted the motion.
18 N. L. R. B., No. 68.
479
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices, affecting commerce within the
meaning of Section 8 (1), (2), (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 and an accompanying notice of
hearing were duly served upon the respondent, upon the I. B. U.,
and upon Star & Crescent Employees' Association, herein called the
Association, a labor organization.
With respect to the unfair labor practices, the complaint alleged,
in substance, that (1) the respondent, on or about February 18, 1938,
and on or about March 15, 1938, and at all times thereafter, refused to
bargain collectively with the I. B. U. although it represented a majority
of the employees of the respondent in an appropriate unit; (2) the
respondent dominated and interfered with the formation and adminis-
tration of, and contributed financial and other support to, the As-
sociation; (3) the respondent refused to reinstate Alvah J. Hart, on or
about September 1, 1937, because of his affiliation with, and activity
on behalf of, the I. B. U.; (4) the respondent discharged Fred H.
Wilson, on or about October 21, 1938, and Samuel F. Ferguson, on or
about April 7, 1938, and has since refused to reinstate said employees
because of their membership in and activities on behalf of the I. B. U.,
and because said employees refused to join the Association; and (5)
the respondent by the above conduct and by other acts interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act. On January 3, 1939,
the respondent filed an answer in which it denied that it had engaged
in the alleged unfair labor practices and denied that it was engaged
in interstate commerce.
Pursuant to notice, a hearing was held in San Diego, California,
from January 5 through 13, 1939, before Albert L. Lohm, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and the I. B. U. were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and to cross-ex-
amine witnesses, and to introduce evidence bearing on the issues was
afforded all parties.
During the course of the hearing, counsel for the Board moved to
dismiss the complaint, without prejudice, as to Samuel F. Ferguson.
The motion was granted by the Trial Examiner without objection.
At the conclusion of the Board's case, counsel for the Board moved
to conform the pleadings to the proof. The Trial Examiner granted
the motion. These.rulings are hereby affirmed. During the course
of the hearing other rulings were made by the Trial Examiner on
motions and on objections to the admission 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.
STAR AND CRESCENT BOAT COMPANY 481
On March 27, 1939, the Trial Examiner filed his Intermediate
Report, finding that the respondent had engaged in and was en-
gaging in unfair labor practices within the meaning of Section 8 (1),
(2), (3), and (5) and Section 2 (6) and (7) of the Act. He recom-
mended, inter alia, that the respondent cease and desist from engaging
in the activities constituting the unfair labor practices; that it offer
Fred H. Wilson immediate and full reinstatement with back pay to
his former position; that it withdraw all recognition from the Associ-
ation as a representative of its employees for the purposes of collective
bargaining; and, upon request, that it bargain with the I. B. U. as the
exclusive representative of its employees in an appropriate unit. He
recommended further that the complaint be dismissed as to Alvah
J. Hart.
Thereafter, the respondent filed exceptions to the Trial Examiner's
Intermediate Report. The Board has considered the exceptions to
the Intermediate Report and, in so far as they are inconsistent with
the findings, conclusions, and order hereinafter set forth, finds them
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Star and Crescent Boat Company is a California corporation with
its place of business located at San Diego, California. The respondent
owns and operates two wharves located on tideland in the harbor of
San Diego. The tideland is leased to the respondent by the Harbor
Commission of the city of San Diego. The respondent further owns
and operates an oil tanker, the M. V. San Diegan; three tugs or tow-
boats; a fishing barge, the Point Loma; seven shoreboats or water
taxis; four motor passenger vessels; three diesel launches; one gasoline
passenger launch ; and five lighters. The respondent also has a quarter
interest in a diesel tuna boat.
In its operation of the M. V. San Diegan, the respondent makes
semi-weekly trips between San Diego, California, and San Pedro,
California, hauling oil and gasoline for the Star and Crescent Oil
Company, the Shell Oil Company, the Richfield Oil Company, and
the General Petroleum Company. In making this voyage the vessel
plys more than 5 nautical miles out from the coast of California.
The respondent's tugs or towboats are used for the purpose of
towing disabled craft; particularly tuna boats. In performing this
towing service the tugboats go upon the high seas as far south as Cape
San Lucas, Mexico, and as far north as San Pedro, California. The
tugboats are also used for the docking of both passenger and freight
vessels in San Diego Harbor. A majority of the ships requiring this
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service are engaged in interstate and foreign commerce. Approxi-
mately 20 per cent of the ships engaged in interstate and foreign com-
merce coming into San Diego Harbor use the aforesaid tugs for dock-
ing purposes. The tugboats are also used to haul provisions and fuel
to the ships of the United States Navy when they are anchored in
San Diego Bay.
The shoreboats or water taxis are operated under the supervision
of the United Water Taxi Company, a corporation, of which the re-
spondent's president, Oakley Hall, and the respondent's general super-
intendent, Carl Bruington, are part owners. One-third of the net
proceeds earned by the United Water Taxi Company are paid to the
respondent. The shoreboats operate on a regular schedule of service
between the United States fleet and the shore of the city of San Diego.
The shoreboats also are used occasionally to carry pilots to, and to
run the mooring lines of, incoming vessels engaged in foreign and
interstate commerce. In addition, they are used to carry light freight
and mail carriers of the United States Government to North Island
and to the United States fleet. North Island is located within the
harbor of San Diego.
The respondent also operates a ferry service between San Diego
City and North Island. North Island is owned by and is under the
supervision of the Federal Government for purposes of national de-
fense. For this service the respondent uses its motor passenger vessels,
its diesel launches, its gasoline passenger launch, and occasionally
water taxis. While engaged in this service the respondent transports
passengers, mainly personnel of the United States Navy, but also other
Federal Government employees and civilians. Mail carriers of the
Federal Government are carried as a matter of courtesy, free of
charge. The respondent is also engaged in other miscellaneous boating
operations.
During the year 1937 the respondent purchased $125,725.06 worth
of materials, slightly less than 1 per cent of which was purchased
outside California. During the first 11 months of 1938 the respondent
purchased $107,052.98 worth of materials, slightly more than 1 per
cent of which was purchased outside California.
We find that the respondent is engaged in trade, traffic, trans-
portation, and commerce among the States 2 and that the operations
of the respondent have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and foreign
countries.
2 See Matter of International Freighting Corp., at al . and International Seamen's Union
of America, 3 N. L. R. B. 692.
STAR AND CRESCENT BOAT COMPANY 483
II. THE ORGANIZATIONS INVOLVED
Inland Boatmen's Union of the Pacific is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership all men employed in unlicensed capacities on all crafts
plying inland waters on the Pacific Coast.
Star & Crescent Employees' Association is an unaffiliated labor
organization which admits to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the latter part of December 1938, or the early part of January
1939, Board's counsel conferred with Bernard Butler, an employee
of the respondent, and a number of other witnesses, with respect to
the hearing in this proceeding which was about to take place. Butler
testified that shortly before the hearing he was questioned by Carl
Bruington, the respondent's general manager, concerning these con-
ferences. According to Butler, Bruington said, "It looks kind of
bad," and further stated, "If you don't remember, they can't get
you for perjury." On cross-examination by counsel for the respond-
ent Butler elaborated upon the above, by testifying as follows:
Q. Did he tell you he wanted you to forget part of this
testimony?
A. Yes.
Q. Forget it, not testify to it?
A. No, he said that there was a case coming up and he said
they couldn't get you for perjury if I didn't know.
Q. And you took it from his conversation that he wanted you
to forget what happened so you wouldn't testify to it?
A. That is just exactly the way I got it.
Bruington admitted having had a conversation with Butler in the
latter part of December 1938 relative to the complaint against the
respondent, but denied that he discussed anything concerning the
impending hearing.
The Trial Examiner, in weighing the credibility. of the two wit-
nesses, stated in his Intermediate Report, "The undersigned gave
especial attention to the demeanor of Butler and Bruington on the
stand, which, coupled with a careful consideration of the testimony
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of each, impels the finding that the testimony of Butler, and not that
of Bruington, is entitled to full faith and credit." In view of this
finding by the Trial Examiner, we find that the above events oc-
curred as described by Butler.
We find from the foregoing that the respondent attempted to dis-
suade its employee from testifying concerning its unfair labor prac-
tices and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act.
B. Domination and support of the Association
In January 1938 the I. B. U. inaugurated an organizational cam-
paign among the respondent's employees. By February 15, 18 of
the respondent's 33 employees had signed applications for member-
ship designating the I. B. U. as their exclusive representative for
the purposes of collective bargaining. On or about February 16,
Oakley Hall, the respondent's president, inquired of Guy Perkins,
a part-time supervisory employee 3 who later became president of
the Association, "if the boys ever thought about organizing a com-
pany association." On February 17 Carl Bruington, the respondent's
general manager, furthered the initial suggestion of Hall by telling
Butler that "the boys are forming an association, or a union. Will
you go in the office and talk with Guy Perkins." Butler agreed to
do so. Upon entering the respondent's office he was told by Perkins,
who was accompanied by two other employees, that "they were going
to form a company union, or association-they didn't know which"
and wanted to know whether Butler would be interested. Butler
was non-committal. Perkins said they were going to. see a lawyer
and asked Butler if he cared to come. Perkins then telephoned a
lawyer, apparently to make an appointment, and after a short con-
versation, laughed, and stated to the other employees, "Oh, heck, he
knew all about it anyway. We can go up anytime."
The respondent was aware of the fact that its efforts to organize
the Association were taking effect for on February 18, 1938, Bruing-
ton asked Butler what he thought about the Association. Butler
replied, "Well, Carl, I am not two-faced, I will tell you that I belong
to the I. B. U., and I don't think I should join another union."
8 During the summer months of 1938 Perkins was captain of the Point Loma. As captain,
he supervised the work of four members of the crew , a cook, and a waiter. While he
did not have the power to hire and discharge said employees, he could recommend their
dismissal. The record reveals that in at least one instance in 1938 Perkins ' recommenda-
tion in this respect was followed . See Virginia Ferry Corporation v. N. L. R . B., 101 F.
(2d) 103, enforcing Matter of Virginia Ferry Corporation and Masters, Hates and Pilots
of America, No. 9, 8 N. L. R. B. 730.
STAR AND CRESCENT BOAT COMPANY 485
Bruington then advised Butler to "think it over," and, told him "that
Mr. Baker [the I. B. U. organizer] was a salesman and he was work-
ing on a percentage, and as soon as he left we wouldn't have any
support . . ." While Bruington denied that he had the above
conversation with Butler, in view of the Trial Examiner's finding
as to his credibility, we do not credit his denial. We find that the
events occurred as described above.
On February 18, 1938, Perkins, accompanied by several other em-
ployees, consulted with a local attorney who advised them as to the
formation of a union and subsequently drew up the proper legal
papers by which the Association was incorporated under the Non-
Profit Corporation Law of California. Perkins testified that he had
no knowledge relative to the payment of the attorney's fees. The
respondent admitted that it paid the attorney in question a fee of
$150 for his services in the formation of the Association.
In view of Perkins' ignorance of the financial arrangements made
with the attorney, the telephone conversation described above by
Butler, and the respondent's admission that it paid the attorney's
fees, we are of the opinion, and so find, that the respondent was in-
strumental in making the arrangements with the attorney for the
legal formation of the Association. The events described below
further impel the conclusion that the respondent supported and
sponsored the Association in an effort to thwart the growth of the
I. B. U.
On March 3, 1938, the Association's directors, by letter, advised the
respondent that it was their "belief" that the Association had among
its members a majority of the respondent's employees and requested
recognition as the "sole elective bargaining agency" of the employees.
Within a week or 10 days thereafter the respondent's president, Hall,
met with the Association's representatives and discussed with them
the terms and conditions of employment. As a result of this discus-
sion, several changes were made in the conditions of employment. It
is pertinent to note that recognition was granted the Association with-
out any inquiry being made as to its majority claim. This is in direct
contrast to the respondent's evasion of the I. B. U.'s claim to recogni-
tion, which matter is discussed more fully below.
We find from the foregoing that the respondent dominated and
interfered with the formation and administration of, and contributed
financial and other support to, the Association, and thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The refusal to bargain
1. The appropriate unit
The I. B. U. claims that the unlicensed personnel employed by the
respondent, excluding those employed on the San Diegan,4 and exclu-
sive of supervisory, clerical, and casual employees, constitute an
appropriate unit. The respondent raised no objection to such a unit.
We find that the unlicensed personnel employed by the respondent,
excluding those employed on the San Diegan and exclusive of supervi-
sory, clerical, and casual employees, constitute a unit appropriate for the
purposes of collective bargaining and that said unit will insure to
employees of the respondent the full benefit of their right to collective
bargaining and otherwise effectuate the policies of the Act.
2. Representation by the I. B. U. of the majority in the appropriate
unit
On February 18, 1939, there were 22 employees within the appro-
priate unit. Of these, 18 had, on or before February 15, 1938, signed
application cards designating the I. B. U. as their representative for
the purposes of collective bargaining. On February 26, one addi-
tional employee designated the I. B. U. as his bargaining representa-
tive. We find that on February 18, 1938, the I. B. U. represented a
majority of the respondent's employees within an appropriate unit.
At the hearing 116 of the employees who had signed applications
for membership in the I. B. U. declared that they no longer desired
the I. B. U. to represent them for the purposes of collective bargain-
ing, and, further, that they desired the Association to represent them.
Two of such employees had tendered written resignations in April
1938, while four testified that they had orally renounced their alle-
giance to a representative of the I. B. U. a short time after they had
signed their applications for membership. The remaining five em-
ployees disclosed their intention at the hearing. It is pertinent to
note that three of the respondent's employees, Bernard Butler, Lowell
Henson, and Randel Ferguson, testified that they resigned from the
I. B. U. and joined the Association in order to retain their jobs, it
being generally understood among the employees that such a course
was necessary in order to have security in their employment. It is to
be noted, moreover, that most of those employees who testified at the
hearing concerning a change in their desires did so when called as
A The San Diegan is a deep sea vessel over whose personnel the I. B. U. claimed no
jurisdiction.
5 John Cramer, Mathew Golart , John Knight, Henry Manchester , Joe Medeiros , Warren
Miller, Earl Perkins, Guy Perkins. James Row, Paul Wilson. and Louis Sterman.
STAR AND CRESCENT BOAT COMPANY 487
witnesses by the respondent, whose anti-union attitude had been
clearly demonstrated to its employees.
We have seen in subsection A above that the respondent suggested
the formation of the Association and contributed financial and other
support thereto. We have also found that the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. In view of such circumstances
we conclude that the shift in affiliation from the I. B. U. to the Asso-
ciation was not the free choice of the employees, and that had it not
been for the respondent's unfair labor practices a majority of its
employees would have remained members of the I. B. U. In any
event, we cannot give weight to an asserted change in the desires of
employees regarding their representative for the purposes of collec-
tive bargaining when such change is preceded by unfair labor prac-
tices on the part of the respondent. To do so would be to allow the
respondent to build up an immunity against a violation of Section
8 (5) of the Act by freely violating other sections of the Act. We
cannot permit the purposes of the Act to be thus circumvented.,'
We find that on February 18, 1938, and at all times thereafter, the
I. B. U. represented a majority of the employees of the respondent
within the appropriate unit.
3. The refusal to bargain
On February 18, 1938, Paul Baker, an organizer for the I. B. U.,
conferred with Hall, president of the respondent. At the conference
Baker advised Hall that the I. B. U. had been designated by a major-
ity of the respondent's employees as their collective bargaining agent.
Hall replied that another organization, or group of men, had ad-
vanced a similar claim. He advised Baker that he and the representa-
tives of the other group "should get together." It is significant to
note, in this connection, that the Association was started at the behest
of Hall and had begun organizing no earlier than 2 days before
Baker's meeting with Hall. In view of these circumstances it is clear
that Hall's advice to Baker was not made in good faith.
At the conference Hall requested some proof of the I. B. U.'s claim
to represent the employees. Baker offered to check the signed appli-
cation cards with the respondent's pay roll. It does not appear what
° See N. L. R. B. v. Arthur L. Colten and Abe J. Colman, co -partners doing business as
Kiddie Kover Manufacturing Company, 105 P. (2d) 179: (C. C. A. 6) enforcing Matter of
Arthur L. Cotten, and A. J. Colman, Co -partners , doing business as Kiddie Kover Manu-
facturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355;
Matter of Hyman S. Levy, doing business under the style and trade name of Harris
Woolen Mills Go . and Local No. 15 of the Textile Workers Organizing Committee, affiliated
with the C. I. 0., 11 N. L. R. B. 964.
283029-41-vol. 18-32
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response Hall made to this offer. At the hearing he did not deny
that it was made, and it is clear that no action was taken in pursuance
of Baker's offer. Shortly after the offer was made Baker advised
Hall that "a company union" was being formed among his employees
and that Hall should use his influence to prevent its further forma-
tion. Hall denied knowledge of, and stated that he had nothing to
do with the so-called company union. In view of the respondent's
overt participation in the formation of the Association, Hall's denial
to Baker of knowledge or participation in the formation of any com-
pany union was obviously false.
On March 1, 1938, the I. B. U., by letter, again advised the re-
spondent that it represented a majority of the respondent's employees
and requested the respondent to recognize it as the exclusive bargain-
ing agency of such employees. On March 8 the respondent replied
by letter and requested the presentation of evidence pertaining to the
claim of the I. B. U. to represent its employees. On March 15 a con-
ference was held between Hall and two representatives of the I. B. U.
At the conference the I. B. U. representatives offered to check its
application cards with the respondent's pay roll. To this suggestion
Hall replied that the Association claimed to represent the same men,
and that a check with the pay roll would not be determinative. The
I. B. U. representatives then suggested that a consent election be held
under the auspices of the Board. Hall stated that he would have to
take this suggestion up with his attorney, and that after doing so he
would advise the I. B. U. of his decision. No such decision was
thereafter conveyed to the I. B. U.
It is clear from the events described above, and we find, that the
respondent refused to recognize the I. B. U. as the duly designated
representatives of a majority of its employees within an appropriate
unit on February 18 and on March 15, 1938, and at all times "there-
after. This refusal to recognize the I. B. U. coupled with the re-
spondent's unfair labor practices in forming and supporting the
Association clearly reveals the respondent's intent to refuse to deal
with the I. B. U. in good faith.
We find that the respondent, on February 18 and on March 15, 1938,
and at all times thereafter, refused to bargain with the I. B. U. as
the duly designated representatives of a majority of its employees
within an appropriate unit.
D. The alleged discriminations
Alvah J. Hart. The complaint alleges that the respondent refused
to reemploy Alvah J. Hart on or about September 1, 1937, after a lay-
off, because of his affiliation with and activity in the I. B. U. The
Trial Examiner recommended the dismissal of the complaint as to
STAR AND CRESCENT BOAT COMPANY 489
Hart. No exception to this recommendation has been filed by the
I. B. U. After consideration of the record we agree with the Trial
Examiner and find that Hart was not denied reemployment because
of his membership in or activity on behalf of the I. B. U.
Fred H. Wilson . The complaint alleges, and the answer denies,
that Fred H. Wilson was discriminatorily discharged . The Trial
Examiner so found and the respondent takes exception thereto.
Wilson had been employed steadily by the respondent for 5 years
prior to his discharge on October 21, 1938. He joined the I. B. U.
on April 6 , 1937 . While he wore his union button continuously there-
after , he was not active in the Union.
On or about October 20 Wilson, while operating one of the re-
spondent 's water taxis, struck a submerged log. The resulting dam-
age amounted to $300 . On October 21 Bruington told Wilson that
because of the accident he was to "take a vacation for a while without
pay." Bruington testified that he had examined the water taxi after
the accident and that "it looked like he ( Wilson ) hit something, and
instead of stopping , he had run over it and done this damage." He
further testified that he thought the accident was "just a case of care-
lessness. " For these reasons, Bruington asserted , he determined to
lay off Wilson and communicated this to Wilson on October 21. Wil-
son, while denying he was at fault , admitted that he expected some
disciplinary action because of the amount of damage accruing to the
boat. The respondent asserts in its brief that Wilson was restored
to his former position on January 20, 1939.
We find that Wilson was not discharged because of his membership
in the I. B. U.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in 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 commerce among the several States and
foreign countries, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act
and to restore as nearly as possible the situation that existed prior
to the commission of the unfair labor practices.
We have found that the respondent has dominated and interfered
with the administration of the Association, and has contributed finan-
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cial and other support thereto. Accordingly, we shall order the re-
spondent to withdraw all recognition from the Association and to
disestablish it as a collective bargaining representative of any of its
employees.
We shall further order the respondent, upon request, to bargain
collectively with the I. B. U. as the exclusive representative of its
unlicensed personnel, excluding those employed on the Sam Diegam
and exclusive of supervisory, clerical, and casual employees. As we
have noted above the respondent sought to establish at the hearing
that the I. B. U. no longer represented a majority of its employees.
We have found that the defection in the ranks was caused by the
respondent's unfair labor practices in forming and supporting the
Association and in restraining, intimidating, and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act. Under these circumstances we cannot consider the defections
to be valid.7
Moreover, our order is not based solely upon the foregoing con-
siderations. Section 10 (c) of the Act authorizes the Board, upon a
finding that a person has engaged in unfair labor practices, to take
such affirmative action as will effectuate the policies of the Act. We
hold that in order to effectuate the policies of the Act, the respondent's
refusal to bargain must be remedied by an order to bargain on the
basis of the majority obtained prior to the commission of the re-
spondent's unfair labor practices."
We have found that the respondent did not .discriminate in regard
to the hire and tenure of employment of Alvah J. Hart and Fred H.
Wilson. We shall therefore order that the complaint be dismissed
as to them.
Upon the basis of the above findings of fact and upon the entire
record in these proceedings, the Board makes the following :
CONCLUSIONS OF LAW
1. Inland Boatmen's Union of the Pacific and Star & Crescent Em-
ployees' Association, are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of, and contributing financial and other sup-
port to the Star & Crescent Employees' Association, has engaged in
7 Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalga-
mated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64, 1010,
1101, 9 N. L. R. B. 783, 815.
8Ibid. ; see also Matter of Somerset Shoe Company and United Shoe Workers of America;
5 N. L. R. B. 486; Matter of Burnside Steel Foundry Company and Amalgamated Associa-
tion of Iron, Steel and Tin Workers of North America, 7 N. L. R. B. 714. 731.
STAR AND CRESCENT BOAT COMPANY 491
and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. The unlicensed personnel employed by the respondent, exclud-
ing those employed on the San Diegan and exclusive of supervisory,
clerical, and casual employees, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
4. Inland Boatmen's Union of the Pacific was on February 18,
1938, and at all times thereafter has been, the exclusive representative
of all employees in such unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
5. By refusing and continuing to refuse to bargain collectively
with the Inland Boatmen's Union of the Pacific as the exclusive
representative of the employees in the above-stated unit, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
6. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
8. The respondent has not discriminated in regard to the hire and
tenure of employment of Alvah J. Hart and Fred H. Wilson, within
the meaning of Section 8 (3) 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, Star and Crescent Boat Company, San Diego, California,
and its officers, agents, successors, and assigns, shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the
formation or administration of Star & Crescent Employees' Associa-
tion, or with the formation or administration of any other labor
organization of its employees, and from contributing financial or
other support to Star & Crescent Employees' Association, or any other
labor organization of its employees;
(b) From refusing to bargain collectively with Inland Boatmen's
Union of the Pacific as the exclusive representative of the unlicensed
personnel employed by the respondent, excluding those employed on
the San Diegan and exclusive of supervisory, clerical, and casual
employees;
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights of self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively 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 Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Star & Crescent Employees'
Association, as a representative of any of its employees for the pur-
poses of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or other condi-
tions of employment, and completely disestablish Star & Crescent
Employees' Association as such representative;
(b) Upon request, bargain collectively with Inland Boatmen's
Union of the Pacific as the exclusive representative of the unlicensed
personnel 'employed by the respondent, excluding those employed
on the San Diegan and exclusive of supervisory, clerical, and casual
employees, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(c) Post immediately notices to its employees in conspicuous places
throughout its place of business stating (1) that the respondent will
cease and desist as aforesaid; (2) that the respondent withdraws and
will refrain from all recognition of Star & Crescent Employees'
Association, as a representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of
employment, and that the respondent completely disestablishes it as
such representative;
(d) Maintain such notices for a period of at least sixty (60) con-
secutive days from the date of posting;
(e) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent has discriminated against Alvah J. Hart
and Fred H. Wilson, within the meaning of Section 8 (3) of the Act,
be, and it hereby is, dismissed.