Strachan Shipping Co.

National Labor Relations Board - Board Decisions

Dec 7, 1949

87 N.L.R.B. 431 (N.L.R.B. 1949)

In the Matter of STRACHAN SHIPPING COMPANY AND/OR SOUTH AT-
LANTIC STEAMSHIP LINES, A CO-PARTNERSHIP and TIIOi1IAS J. DIXON,
AN INDIVIDUAL
In the Matter of SMITH AND KELLY COMPANY and THOMAS J. DIXON,
AN INDIVIDUAL
In the Matter of STEVENS SHIPPING COMPANY and THOMAS J. DIXON,
AN INDIVIDUAL
Cases Nos.10-C--933,10-CA-30, and10-CA5.Decided December
7,19.49
DECISION
AND
ORDER
On October 11, 1948, Trial Examiner C. W. Whittemore issued his
intermediate Report in the above-entitled proceeding, finding that
Strachan Shipping Company, herein called the Respondent,' had en-
gaged in and was engaging in certain unfair labor practices and rec
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other alleged unfair labor practices
and recommended that the complaint be dismissed with respect to
such allegations.2 Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief. The Respondent's re-
quest for oral argument is hereby denied, as the record and brief ade-
quately present the issues and positions of the parties.
The Board 3 has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
1 The complaint herein also named as respondents, Smith and Kelly Company and Stevens
Shipping Company. The Trial Examiner granted a motion to dismiss the complaint with
respect to these two respondents. No exceptions were filed to the Trial Examiner's ruling.
2 The Trial Examiner found that the discharge of the complainant constituted a violation
of Section 8 (1) of the National Labor Relations Act, herein called the Act, and of Section
8 (a) (1) of the Labor Management Relations Act, 1947, herein called the amended Act.
The Trial Examiner also found that the Respondent did not violate Section 8 (3) of the Act.
3 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-
member panel [Members Reynolds, Murdock, and Gray].
87 NLRB No. 57. 431
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed .4 The Board has considered the Inter-
mediate Report, the exceptions and brief filed by the Respondent, and
the entire record in the case, and for the reasons set forth below finds
merit in the Respondent's exceptions.
The Trial Examiner concluded that the Respondent violated Sec-
tion 8 (1) and 8 (a) (1) of the Acts by discharging complainant
Dixon, because he had engaged in concerted activities protected by
Section 7 of the Acts. In substance, the facts surrounding Dixon's
discharge are as follows :
Dixon has been a member of the International Longshoremen's As-
sociation, Local 1475, herein called the Union, since 1943, at which
time he started to work for Strachan as a tallyman and later as a
chief wharf clerk.5 Dixon's work as chief wharf clerk was under
the supervision of Gaskin, the wharf superintendent, a salaried em-
ployee, who was also a member of the Union. Gaskin was elected
secretary of the Union during 1945 and 1946. Curry, another sal-
aried supervisory employee, was president of the Union during that
time. During 1945, Dixon assumed leadership of a small group
within the Union, and campaigned to oust Curry and Gaskin from
office for the alleged reason that, in view of their salaried status with
Strachan, the rank-and-file membership was not getting a "square
deal." Such protest was communicated by Dixon to the president of
the International Longshoremen's Association, herein called the
I. L. A. At a meeting in December 1945, when Curry and Gaskin
were reelected, Curry requested someone to prefer "charges" against
Dixon. Such motion was made and seconded, on the' ground that
Dixon took part in the "illegal" correspondence with the president of
the I. L. A. On January 12, 1946, Gaskin informed Dixon he was
suspended from the Union until further notice. On May 16, 1946,
Dixon was notified by Gaskin that'he was to be reinstated to member-
ship in the Union as of June 1, 1946. On the latter day, Dixon was
called back to work for Strachan.6 On about June 25, Dixon filed
charges against Curry and Gaskin with the district president of the
I. L. A. A hearing on said charges was held on July 23 and 24, at
4 The Respondent excepted to the Trial Examiner 's ruling denying its motion to dismiss
based on the contention that the complaint was illegally issued because the charges were
filed more than 6 months after the commission of the acts complained of herein . We agree
with the Trial Examiner ' s ruling , as Section 10 ,(b) of the amended Act cannot have a
retroactive effect so as to invalidate a charge filed before the effective date of the amended
Act. Barton Brass Works , 78 NLRB 431.
6 Dixon ' s employment has been on hourly paid job -to-job basis, a pattern which is common
to the longshore industry . The duties of a tallyman or checker are to note on records
specific items of cargo which are loaded or unloaded for an assigned batch . The chief wharf
clerk or shipside clerk assigns tallymen to hatches and is responsible for all cargo records
pertaining to a ship.
6 During his suspension , Dixon was not eligible for employment in accordance with a
closed-shop contract then in existence between the Union and the Respondent.
STRACHAN SHIPPING COMPANY 433
which Dixon, Curry, and Laskin gave testimony. Dixon finished his
assignment on July 25 and was given another assignment on the night
of August 2. On the morning of August 3, Dixon was suspended and
later discharged allegedly for errors in his reports, as set forth in the
Intermediate Report.
The Trial Examiner found that Gaskin resented Dixon's attempt
to oust him as ail official of the Union and therefore seized upon
Dixon's minor errors in the reports of August 2 "as a pretext for dis-
continuing Dixon's employment." He further found that Van Ars-
dale, the Respondent's wharf superintendent, "was well aware of the
dispute between Gaskin and Dixon, and was sympathetic with
Gaskin's resentment, and therefore supported the discharge."
We are unable to agree with the Trial Examiner that Gaskin was
primarily responsible for Dixon 's discharge . Rather, it appears from
the record that Ellis ( the Respondent 's manager of its Savannah
operations) originally discovered Dixon's alleged errors and initiated
the chain of events which resulted in Dixon 's discharge . On the morn-
ing of August 3, Ellis came by Gaskin's office, as was his custom, and
examined the reports that had been handed in for the previous night's
work. He discovered errors in one of Dixon's reports and discussed
them with Gaskin and Van Arsdale. Ellis requested Van Arsdale to
make an investigation of the errors and the latter delegated the actual
investigation to Gaskin. According to Van Arsdale's undenied testi-
mony, he instructed Gaskin to advise Dixon that he was suspended
pending an investigation of his reports. Gaskin so notified Dixon
and discussed certain aspects of the reports with him. A day or two
later, Gaskin submitted a written report to Van Arsdale which con-
tained no recommendation. Van Arsdale independently examined
Gaskin 's report on Dixon's work and, after discounting certain items
included therein, recommended to Ellis that Dixon be discharged.
Ellis concurred and the actual discharge was effectuated by Van
Arsdale.
Thus the real issue in the case is the motivation of Van Arsdale
in effecting Dixon's discharge , which was also found by the Trial
Examiner to have been unlawful. True, the unconvincing nature of
the reasons assigned by the Respondent for the discharge suggest the
possible existence of an unlawful motive, but a violation of the Act
can not be established "on suspicion alone" and in the absence of "a
preponderance of evidence to show that Respondent was [unlawfully]
motivated." 7 In the present case, the Trial Examiner 's inference of
unlawful motivation is necessarily dependent upon the validity of
his finding that Van Arsdale had knowledge of the intraunion dis-
' See Punch d Judy Togs, Inc. of California , 85 NLRB 499 , decided August 1, 1949.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pute between Gaskin and Dixon. The only evidence relied upon by
the Trial Examiner to support this finding is the fact that there was
a close working relationship between Gaskin and Van Arsdale. How-
ever, this fact alone, especially in the light of Van Arsdale's uncon-
tradicted denial of such knowledge, affords no reasonable basis for
the Trial Examiner's finding. We see no justification in the record
for impugning the integrity of a union member (Gaskin) by lightly
inferring that he had apprised higher management of the internal
affairs of the Union or enlisted management support on his behalf to
the detriment of a fellow member.'
Under all the circumstances, we find, contrary to Trial Examiner,
that Dixon's discharge was not in violation of the Act. As this was
the only unfair labor practice alleged, we shall dismiss the complaint
in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein be,
and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr, Charles M. Paschal, Jr., for the General Counsel.
Messrs. Thomas H. Adams and Everett E. Ellis, of Savannah, Ga., for the
Respondent Strachan.
Mr. E. O. Hunter, (Anderson, Connerat, Dunn & Hunter), of Savannah, Ga.,
for the Respondents Smith and Kelly, and Stevens.
STATEMENT OF THE CASE
Upon charges filed, in Case No. 10-C-2293 on July 14, 1947, and in Cases Nos.
1o-CA-30 and 10-CA-35 on September 22, 1947, by Thomas J. Dixon, an in-
dividual, the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Tenth Region (Atlanta, Georgia), issued. an order
consolidating these cases and a complaint dated July 13, 1948, against Strachan
Shipping Company and/or South Atlantic Steamship Lines, a co-partnership,
Smith and Kelly Company, and Stevens Shipping Company, herein collectively
called the Respondents, alleging that the Respondents had engaged in and were
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, herein called the Act, and, as reenacted, Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the amended Act.
8 It is significant that after Dixon's discharge, Gaskin made it advantageous for Dixon
to continue his membership in the Union by permitting him to obtain employment with
another member of the Savannah Maritime Association, herein called the Association.
The Union and the Association had an agreement whereby employees were assigned to jobs
on a rotation basis and part of Gaskin's duties was to assign men for such jobs.
1 The representative of the General Counsel is herein referred to as the General Counsel
and the National Labor Relations Board as the Board.
STRACHAN SHIPPING COMPANY 435
With respect to the unfair labor practices, the complaint alleged, in substance,
that: (1) Dixon was discharged by the Respondent Strachan on August 3, 1946,
and by the Respondent Smith and Kelly on February 18, 1947, and was refused
employment by the Respondent Stevens in September 1947, in order (a) to dis-
courage membership in International Longshoremen's Association, Local No.
1475, affiliated with the American Federation of Labor, herein variously called
the I. L. A., the Union, and Local 1475, and (b) to interfere with the exercise of
rights guaranteed to employees in Section 7 of the Act; and (2) that all the Re-
spondents warned employees to refrain from engaging in union and concerted
activities, discriminated against them because of such activities, and interfered
with internal affairs of the Union.
Answers were thereafter filed by each of the Respondents, denying the com-
mission of any unfair labor practices. In substance, the Respondent Strachan
affirmatively alleged that Dixon was discharged for inefficiency, while the Re-
spondents Smith and Kelly, and Stevens, affirmatively alleged that Dixon was
removed from the list of available employees by-the Union, with which they were
under contract.
Pursuant to notice, a hearing was held at Savannah, Georgia, from August 23
to September 1, 1948, before the undersigned Trial Examiner. All parties were
represented by counsel, all participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence upon the issues. Following the receipt of all evidence, and after
argument by General Counsel and counsel for the Respondents Smith and Kelly,
and Stevens, the Trial Examiner granted a motion by the latter counsel to dis-
miss all allegations of the complaint relating to these two Respondents. Ruling
was reserved upon two motions to dismiss as to the Respondent Strachan: one
based upon the claim that the complaint was illegally issued by the General
Counsel because it is based upon a charge filed before the effective date of the
Act as amneded ; the other because the complaint was based upon charges filed
more than 6 months after the commission of the unfair labor practices alleged.
Roth motions are hereby denied.
Also after the receipt of evidence, all counsel argued orally before the Trial
Examiner, the argument appearing in the official transcript of the proceedings.
Leave was granted to file proposed findings of fact, conclusions of law and
briefs with the Trial Examiner. A brief has been received from the Respondent
Strachan.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT STRACHAN
Strachan Shipping Company and/or South Atlantic Steamship Lines is a co-
partnership. It maintains its principal office and place of business at Savannah,
Georgia, with branches at Brunswick, Georgia ; Jacksonville and Pensacola,
Florida ; Mobile, Alabama ; New Orleans, Louisiana ; and Galveston, Texas,
where it is engaged in stevedoring and terminal operations at various ports, in-
cluding the Port of Savannah.
In the course of its operations at Savannah, the Respondent Strachan handles
goods of a value in excess of $5,000,000 annually, representing more than 500,000
tons of goods, of which tonnage about 98 percent is shipped in interstate and
foreign commerce to and from the Port of Savannah.
877359-50-vol. 87-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
International Longshoremen's Association, Local No. 1475, affiliated with the
American Federation of Labor, is a labor organization admitting to membership
employees of the Respondent Strachan.
III. THE UNFAIR LABOR PRACTICES
A. Background and events relevant to Dixon 's discharge
During the period material to the issues there have been but three employers
engaged in stevedoring operations on the Savannah waterfront : Strachan Ship-
ping, Smith and Kelly , and Stevens . These three companies constitute the mem-
bership of the Savannah -Maritime Association , which represents the employers
in their negotiations with various unions , including Local 1475.
As at other ports , longshore employment at Savannah is of a casual nature.
Longshoremen , clerks , and most foremen are hired only when needed, and by any
one of the , three companies . Local 1475 covers clerks , checkers , assistant fore-
men, and foremen . In the fall of 1945 members of the Maritime Association and
Local 1475 entered into a 2-year labor agreement providing that the employers
would hire only Local 1475 members if available . This contract was in effect
during most of the period involved in this proceeding . It has been the Union's
custom to prepare a monthly list of its members for distribution to the employers.
Since December 1945, it has been the practice of the employers to place their calls
for longshore help represented by Local 1475 through one office , at Strachan's
Berth 16.
Thomas J. Dixon was first employed at the Port of Savannah in 1943 by
Strachan , as a tallyman . By the fall of that year he began to receive calls to
serve as a chief wharf clerk , and from that time until the summer of 1946, when
Strachan refused to call him for work in any capacity , Dixon worked for the
various companies mainly in that capacity . Since Strachan does the bulk of
stevedoring in Savannah , most of Dixon 's employment was by this company until
his discharge . A chief wharf clerk assigns tallymen to various hatches of a ship
being loaded or unloaded , and prepares various reports from records kept and
submitted to him by the tallymen, mates , timekeepers, etc.
Soon after being employed in 1943, Dixon joined Local 1475. Except for a
period of suspension in early 1946 , he has remained a member. At the time of
the hearing he was the elected business agent of the local.
In 1943 the Union did not admit to membership regular salaried employees of
the companies . Early in- 1944 membership was opened to include regular fore-
men and assistant foremen . At the union election late in 1944, three of
Strachan 's supervisory regular staff were elected as officers , Foreman R . F. Curry
becoming president , Wharf Superintendent S. R. Gaskin becoming recording
secretary, and Gaskin 's assistant being made secretary-treasuer.
It is unquestioned that both Curry and Gaskin then were and at the time of
the hearing still were management representatives , supervisors within the mean-
ing of the Act. Since early in 1946 , when he was given the title of "Acting
Superintendent ," Curry has had supervision over foremen and assistant foremen ;
since the time of his election as union secretary Gaskin has had charge of the
Gaskin's testimony that he only held office in the Union during 1946 is refuted by
documentary evidence. an official report of the sub-Committee of the District Executive
Board, I. L. A., referring to Gaskin as secretary during 1945.
STRACHAN SHIPPING COMPANY 437
hiring of clerks and tallymen. Gaskin also has the responsibility of checking
reports submitted by the clerks, issues instructions to them, and has the power
to recommend their dismissal.
In 1945 Dixon assumed leadership of a small group in the local which protested
the conduct of Curry and Gaskin. For example, at union meetings Dixon made
a number of unsuccessful efforts to have revised the practice of open vote for the
election of officers. Curry repeatedly prevented a membership vote on the ques-
tion of a secret ballot. At a special union meeting in November 1945, the mem-
bership approved Dixon's motion to send back, for further negotiations, a pro-
posed bargaining agreement with the employers. Despite the mandate of the
membership, Curry refused to resubmit the contract for further negotiations, and
the membership finally accepted it at the next meeting. Dixon and his brother
thereupon wired Joseph Ryan, International president of I. L. A., protesting that
the members were not getting a "square deal" from the officers who were on the
regular salaried staff of the employer Strachan. The International, however,
took no action.
Both Curry and Gaskin were reelected, again by open ballot, in December 1945,
there being but a single slate of nominations offered. At the same meeting Curry
demanded that charges be brought against Dixon. A trial committee was se-
lected. Dixon was tried, in absentia, Gaskin refusing to inform him as to the
nature of the charges. On January 12, 1946, Gaskin informed Dixon .that he
was suspended until further notice. Dixon's name was thereupon removed from
the roster of union members available for work, and his employment temporarily
ceased.'
Dixon again wired Ryan in protest, but again received the reply that it was
local matter. In February Gaskin notified Dixon to appear at a local meeting
and "make proper apology" to the union officials. Dixon declined to make apology
without a hearing, however, and finally, through a local attorney, obtained a
court order requiring the local to inform Dixon of specific charges and to hold a
hearing. A hearing was held and Gaskin notified Dixon in May that he would
be reinstated as of June 1, 1946.
Gaskin called Dixon to work again early in June, for the Respondent Strachan.
During the latter part of that month, Dixon filed charges against Curry and
Gaskin, upon the advice of an international vice president, with the I. L. A.
district president. A hearing was held, and Dixon presented evidence on July 23
and 24. Both Curry and Gaskin appeared at the hearing. Within a few days
the International ordered the local to abide by the I. L. A. constitution and cease
electing salaried nien, such as Curry and Gaskiu, to office.
From the day following his testimony until the night of August 2, Dixon was
not called for work by Gaskin. On that night he was assigned by Gaskin to
serve as clerk on it ship loading cotton. During the night the ship shifted berth
to load from another dock, and Dixon telephoned to Wharf Manager W. S. Van
Arsdale, Gaskin's immediate superior, and was instructed to combine the tonnage
loaded at both docks on his report, since it was all going to the same destination.
Upon completion of his duty on the morning of August 3, Dixon placed his reports
on Gaskin's desk and went home.
Soon after 8 o'clock Gaskin telephoned to Dixon, berated him for combining
the tonnages, and despite Dixon's explanation that he had merely followed
3 General Counsel conceded at the hearing that he was not contending that any of the
Respondents was responsible for failing to employ Dixon during the period of his suspension.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Arsdale's instruction and his offer to return to the office and revise the
report, told him not to report back for work until further notice.'
Neither on August 3, 1946, nor at any time since then until the hearing in
this proceeding, and despite repeated attempts to elicit such information, has
Dixon been informed by any Strachan official of any specific alleged error in
his reports of August 2-3, other than his failure to separate the tonnages.'
Neither from Gaskin nor Van Arsdale was Dixon able to obtain an explanation
for his summary discharge. On one occasion Gaskin informed Dixon that Van
Arsdale was writing a letter which would be self-explanatory. On August 12
or 13 Dixon received a communication from Gaskin, signed as the union secre-
tary, merely enclosing the following letter from Van Arsdale to Curry, in the
latter's capacity as the union president:
Mr. T. J. Dixon, a member of your organization, having proven unsatis-
factory as a chief wharf clerk, is no longer acceptable for employment by
Strachan Shipping Company and/or South Atlantic Steamship Line.
Upon receipt of this letter, Dixon again called Van Arsdale, pointing out that
it contained no explanation as to why he was "unsatisfactory." Van Arsdale
only replied that as far as he was concerned the letter "closed the case."
Since August 3, 1946, Dixon has been denied employment by the Respondent
Strachan.
Immediately after receipt of Van Arsdale's letter, Smith and Kelly sought
Dixon's services, and he continued to work for that company until February
1947. At a meeting with members of the Maritime Association in February,
Superintendent Slater of Smith and Kelly was informed by I. L. A. Vice-President
Townsend that he could not employ Dixon any more.'
From the summer of 1947 until February 1948, Smith and Kelly had no work
available for Dixon. Since then, however, he has been called for work as
needed by that company, all parties observing the Georgia anti-closed-shop law.
The Respondent Strachan, however, has consistently refused to call Dixon
for work, or to discuss his reinstatement. Manager E. E. Ellis, head of Stra-
chan's operations at Savannah, failed to answer a formal request made in
June 1947, made by a local attorney on behalf of Dixon, seeking the latter's
reinstatement.'
B. Contentions of the Respondent Strachan. as to Dixon's discharge and relevant
evidence
The testimony of management officials Ellis, Van Arsdale, and Gaskin con-
cerning Dixon's discharge is voluminous, confusing and, in important respects,
conflicting and contradictory.
Wharf Manager Van Arsdale was the first witness for the Respondent. He
said he "discharged" Dixon for "inefficiency." He cited two separate incidents
' As noted more fully in the next section, Van Arsdale admitted, in effect, that Dixon
had followed his instructions in this matter.
5 The finding rests upon Dixon's credible testimony, which is supported by Van Arsdale's
admission that after August 3 Dixon made several efforts to ascertain from him the reason
for his discharge . For reasons discussed in the next section the Trial Examiner considers
as unworthy of belief Gaskin's claim that he pointed out other errors to Dixon when
calling him on August 3.
6 Townsend denied so informing Superintendent Slater. Having observed Townsend's
demeanor (luring the hearing, the Trial Examiner credits Slater's testimony on this point.
7 Ellis explained that he ignored the attorney ' s letter "on advice of counsel."
STRACHAN SHIPPING COMPANY - 439
involving errors: (1) a ship "storage plan," prepared by Dixon early in July
1946, and (2) the "dispatch report" turned in by Dixon on the morning of
August 3, 1946. As to (1), he claimed that upon returning from his vacation,
about a week before August 2, Manager Ellis complained to him about an un-
satisfactory storage plan submitted by Dixon. Ellis was the next witness for
the Respondent. He stated clearly that before August 3 he had no Complaint
about Dixon's work, and was aware of none. Furthermore, according to Ellis'
testimony at this point, he thought he had "been out of town for a week or ten
days just before August 3." Ellis was recalled by the Respondent 2 days later,
however, and this time testified that the "cargo plan" was brought to his atten-
tion about July 4, as "inaccurate work," and that he discussed it with Van
Arsdale upon the latter's return from a vacation. The presence of errors on the
plan, if any, was explained by Dixon's unrefuted testimony, in rebuttal, to the
effect that he had been asked to relieve another clerk, who had. been "working
the ship" several days, in an attempt to straighten out errors that clerk had
already made. Wharf Superintendent Chandler testified that the clerk whom
Dixon was asked to relieve "was getting a little afraid of himself . . . and
thought he might not be able to complete the job correctly." The Respond-
ent placed in evidence the original plan and one which purportedly was "cor-
rected." The basic documents, however, from which both plans were drawn,
were not produced at the hearing, and Chandler admitted that without these
basic documents, no one could tell which of the two plans in evidence was
correct. Under the circumstances, the Trial Examiner is unable to determine
what errors, if any, in the original plan were attributable to Dixon. In any
event, Van Arsdale admitted that no error in the plan was ever called to Dixon's
attention. It is reasonable to believe that if errors of more than a trivial nature
had in fact been committed by Dixon, it would have been to the advantage of
responsible management officials to call them to his attention, in order that they
might not be duplicated. Because of the contradictory nature of the testimony
or Respondent's witnesses on this point, the Trial Examiner is convinced that
the cargo plan was not a factor considered by Van Arsdale in August 1946, in
determining to discharge Dixon.
As to matters bearing upon the dispatch report of August 2-3, Van Arsdale's
testimony also contains serious contradictions. At one point he said that on
the morning of August 3 he overheard Gaskin discussing corrections to the report
over the telephone with Dixon, declaring that "I heard the conversation,"
although he "couldn't tell what was going on." Later in his testimony he denied
having heard Gaskin discuss errors with Dixon. Moreover, in his account of a
discussion with Curry, foreman and the union president, when he announced his
plan to write a letter "on Dixon," he both denied having advised Curry of Dixon's
errors of August 2-3, and affirmatively declared that he informed Curry of all the
errors in that report. Curry flatly denied that Van Arsdale had discussed the
errors with him, and Curry was plainly not a witness friendly to Dixon.
On the point of management's decision to dismiss Dixon the testimony of Van
Arsdale and Ellis is inconsistent. According to Van Arsdale, after Ellis handed
him the dispatch report on the morning of August 3, they both went into the
office, discussed the "omissions" and decided to suspend Dixon. According to
Ellis, however, this decision was not made until the "following morning," Au-
gust 4, when Van Arsdale reported on his "investigation."
Ellis, Gaskin, and Van Arsdale testified at great length concerning the "er-
rors" in Dixon's dispatch report. Since there is serious disagreement in their
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony as to what errors were attributable to Dixon, and in the absence
of the basic documents from which Dixon prepared his original report, the Trial
Examiner considers it unnecessary to attempt analysis of specific details here'
Furthermore, the Trial Examiner does not believe that the crucial question
is whether or not errors made by Dixon, if any, were of such serious import as
to warrant a reasonable employer to discharge Dixon. The real question is
whether or not management actually dismissed Dixon because of errors, real
or imagined, in his dispatch report.
In determining this point, the testimony of management officials is enlighten-
ing. Gaskin admitted that similar errors are made by other clerks ; Van Arsdale
admitted that "probably" such errors and omissions occur daily ; Ellis admitted
that errors were "frequently" made by clerks. Although questioned specifically
on the point, Ellis cited no instance of ever discharging any clerk except Dixon
for committing similar errors. Van Arsdale, while admitting that Dixon twice
called him in an effort to find out why he had been dismissed, also admitted that
he had never explained to him why he was "unsatisfactory," and never has in-
formed him of the alleged errors.
The only specific case of errors by another wharf clerk to be cited by Van
Arsdale involved a faulty "distribution sheet." In that case (which actually
resulted in "extra costs," while there is no evidence that Dixon's errors, if any,
caused the Respondent any monetary loss) the employee was called to the office,
questioned about the matter, but was neither discharged nor suspended.
Although Ellis claimed that Dixon's errors were "grave," and "gross," he ad-
mitted that they were not of a nature to warrant permanent discharge. When
asked why, in view of this admission, Dixon had not been offered reemployment,
Ellis claimed variously : (1) that the failure of the Union to ask for arbitration on
the matter changed the "suspension" to a "discharge"; (2) that if Dixon had
made the request in March 1948, he would have considered taking him back ;
(3) that he believed it to be "improper" to consider recalling Dixon while his case
was pending before the Board ; (4) that if "properly requested . . . by the Union,
through the grievance procedure . . ." he would agree to reemploy Dixon as a
tally clerk; and (5) that he had ignored, "upon advice of counsel," Dixon's ef-
forts to be reinstated made through a local attorney in June 1947.
The Trial Examiner is convinced by the inconsistent and contradictory nature
of the testimony of management witnesses that the real reason for Dixon's dis-
charge is not that advanced by the Respondent Strachan, and that its contentions
in this respect are without merit.'
' For example , both Ellis and Van Arsdale claimed that Dixon was responsible for an
error in recording certain hours worked by various gangs ; Gaskin , on the other hand,
admitted that the error, if any, was not chargeable to Dixon, but to a timekeeper who had
made changes after Dixon sent in his report. Gaskin reported as an error Dixon's failure
to separate the loading of cotton at two different docks. Van Arsdale , however, admitted
that this was not an omission on his part , since Dixon had no instructions to make such
separations . Furthermore , although both Van Arsdale and Gaskin claimed as an error
Dixon's failure to note the lunch period on his report, Gaskin's purportedly corrected report
also omits his notation , and Van Arsdale finally admitted that he knew of no clerk who made
it a practice to record such time.
The Trial Examiner considers that Van Arsdale ' s characterization of Dixon as "ineffi-
cient," supported only by the confused testimony on the part of himself and other manage-
ment witnesses , is refuted by : (1) a written recommendation signed by Superintendent
Slater of Smith and Kelly, dated March 3, 1947, stating that Dixon had worked for him
during the preceding 6 or 7 months and was "of good character , sober, diligent and
efficient in his work" ; and (2 ) Dixon ' s undisputed testimony that he received commenda-
tion from Strachan ' s management both in 1944 and 1945 for his efficient work.
STRACHAN SHIPPING COMPANY 441
C. Conclusions as to Dixon's discharge
Having found that the reasons advanced by the Respondent Strachan for dis-
charging Dixon are without merit, and that under circumstances described by
management witnesses themselves, his dismissal was not for cause, the Trial
Examiner is convinced by the preponderance of evidence that the existence of
minor errors in Dixon's report of August 2-3 was seized upon by Gaskin as a
pretext for discontinuing Dixon's employment, while the real reason and motive
lay elsewhere.
Gaskin's anomalous position of being at once, as a management representative,
Dixon's immediate superior and in charge of calling and assigning men to work,
and, as secretary of the Union, an official representative of Dixon and the other
members, clearly placed him in a strategic position. The District Executive
Board of I. L. A. was well aware of this situation, just before Dixon's discharge,
as is demonstrated by its finding, shortly after the hearing on July 23 and 24, that
"ample proof was submitted to show that" Gaskin "was in a position" to dis-
criminate "against members in distribution of work."
For many months Dixon had, within the Union, led a movement to oust man-
agement representatives Curry and Gaskin from their position of control within
the labor organization. The conclusion is not strained that both Curry and
Gaskin resented this activity. When Dixon finally succeeded in bringing both
Curry and Gastrin before the Trial Board of the International, which ordered,
that upon expiration of their terms they should not be reelected to office, it is a
reasonable inference and is found that Gaskin promptly resolved to take retalia-
tory action. He was in a position to do so. In the next report handed in by
Dixon he seized upon what all management officials, including himself, admitted
were common errors, and ordered Dixon not to report for work until further
notice. Gaskin's action was supported by higher supervisors Van Arsdale and
Ellis. It is likewise inferred, and found, considering the admittedly close rela-
tionship between Gaskin and Van Arsdale, that the latter, if not Ellis, was well
aware of the dispute between Gaskin and Dixon, and was sympathetic with Gas-
kin's resentment, and therefore supported the discharge.
It is concluded and found that Dixon was actually discharged, and thereafter
denied reinstatement, by the Respondent Strachan, because he had engaged in
concerted activities of a type protected by the Act. Section 7 of the Act pro-
vides that "employees shall have the right . . . to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or protection."
Since Dixon's activities plainly pertained to "mutual aid or protection," in the
matter of his employment and that of other extra men, it was an unfair labor
practice for the Respondent Strachan to interfere with Dixon's exercise of
such right.10
. In summary, it is concluded and found that the Respondent Strachan dis-
charged,,, and thereafter refused to reinstate Thomas J. Dixon on August 3,
1946, because he engaged in concerted activities for the purpose of mutual aid
and protection, thereby (1) interfering with the exercise of rights guaranteed
in Section 7 of the Act and of the amended Act, and (2) engaging in unfair
labor practices within the meaning of Section S (1) of the Act and, as reenacted,
Section 8 (a) (1) of the amended Act.
It is further found that by such discharge the Respondent Strachan has not
violated Section 8 (3) of the Act.
11 See N. L. R. B. V. Phoenix Mutual Life Insurance Co., 167 F. 2d 983 (C. A. 7).
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The "chart agreement"
In summation of his oral argument at the hearing, General Counsel contended
that the "principal wrong" committed was not the discharging of Dixon in
August 1946, but the "refusing to recognize" his "eligibility for employment
thereafter." The context of this assertion indicates his reference to operations
of a "chart agreement," signed by Ellis and Curry in 1946, and implies a claim
that the Respondent Strachan is in some way responsible for that agreement.
The complaint contains no specific allegation on the subject, although the evi.
dence upon it is exhaustive.
As noted briefly above in Section A, it has long been the practice of the Union
to provide the employers with a monthly roster of its members. Until the.
agreement of 1945-1947 was negotiated, the individual companies' had cus-
tomarily called persons from this roster. At the 1945 negotiations it was de-
cided to work out a rotary employment system ; to have calls made from, and
records kept at, a single point, thus making possible a more equitable distribution
of water-front work among the extra men. Although the record lacks clarity,
there is substantial accord in testimony to the effect that a rotary system in
principle was agreed upon during the negotiations for the basic contract,
and that during those negotiations the parties decided to work out the chart
details after the contract ratification. The local membership finally approved
the basic contract, which contained no provisions relating to the proposed ro-
tary system.
Nor is the evidence clear as to the character of later negotiations, if any, during
which the chart system was evolved in detail." In any event, beginning in Decem-
ber 1945, the Union changed the format of its monthly roster; its major section
was thereafter headed "Members for Chart," and another section was entitled
"Not on Chart-Available Part Time Call." Members listed in the second sec-
tion were to be called only when no one in the first section was available. During
the same month the chart system was set up at Berth 16, of Strachan, by Van
Arsdale for the Maritime Association and Gaskin for the local, and records were
thereafter kept by them of the hours worked by each man on the chart. And
in February 1946, Ellis for Strachan and Curry for the Local signed a supplemental
agreement setting up the chart system and containing other provisions relating
to employment"
A comprehensive review of its provisions is unnecessary here. The two points
bearing upon issues raised by General Counsel are: (1) that all calls for clerks
or tallymen members of the Union, from members of the Association, were to
be made from one office at Berth 16, Strachan ; and (2) that men whose services
were not acceptable to the employers were to be dropped from the union roster.
Local members never voted upon this supplemental agreement, nor did Curry.
ever submit it to them for approval. It is apparently upon this failure to ratify,
by membership vote, this chart agreement, signed by supervisors of Strachan,
that General Counsel bases his claim of "illegality." The Trial Examiner is
unable to perceive the merit of this claim. The evidence is plain that it was
"Dixon was on the union committee during the contract negotiations, but after he led
the movement which caused the membership to reject the proposed agreement, he was not
invited by the union officers to attends later negotiations.
12 No documentary evidence was offered to establish a similar signed agreement between
Local 1475 and either of the other two companies. In general, however, both. of these
companies observed the rotary system, although they ignored certain other provisions.
And General Counsel conceded, "I don't think that Stevens Shipping Company and Smith
and Kelly Company considered themselves bound by that agreement."
STRACHAN SHIPPING COMPANY 443
the extra men themselves who sought a rotary system of employment, and that
out of their proposal the chart agreement developed. On the other hand there
is no evidence that Curry, in the role of a management official, thrust this agree-
ment upon the Local and that the members supinely accepted it. And without
evidence that the employers, or their representatives, obtained this agreement
by domination, coercion, or interference within the meaning of the Act, the agree-
ment cannot be held to violate any provision of the Act, as it existed in 1945 or
1946.13
Testimony as to the specific matter of removing from the union roster an
employee "unacceptable" to the employers is to the effect that this principle was
proposed, not by any one of the employers, but by Townsend, the International's
representative at the negotiations. In any event, the chart agreement, containing
that provision, was put into effect. In February 1947, the Union complained that
the employers were not abiding by it;" further negotiations were, held, with
Townsend and a U. S. Conciliation Service representative present, and the em-
ployers were persuaded to resume operating according to its provisions. It was
at this meeting, as noted above, that Townsend informed Smith and Kelly that
it could no longer call Dixon since, being unacceptable to Strachan, he was not
available for call. (Immediately after his discharge, the Union had removed
Dixon's name from the "Members for Chart" section of its roster.) There is no
dispute that Smith and Kelly had actually called Dixon frequently up to February
1947, and only ceased upon receiving this direct instruction from the international
representative. Whether Townsend interpreted correctly or enforced with equity
the clause in the agreement which he himself had proposed is not for the Trial
Examiner to determine." Under the closed-shop agreement, then legal, the Local
controlled the roster and, in effect, determined which of its men were available
for call.
The chart system was formally continued until the fall of 1947, when the parties
decided that while efforts would still be made to equalize the work, its specific
and binding provisions could no longer be enforced because of the Georgia anti-
closed-shop law.
Under the circumstances revealed by the record, the Trial Examiner concludes
and finds that the chart agreement was not, as contended by General Counsel,
illegal under any provisions of the Act.
This finding, however, does not mitigate the responsibility of Strachan for any
loss of employment Dixon suffered, either by Strachan or other members of the
Association, after August 3, 1946. It was Strachan's initial action in discharging
Dixon, found to have been an unfair labor practice, and in notifying the Union
that he was "unsatisfactory," that placed in jeopardy his future employment on
the waterfront, and thus opened the way for Townsend later to invoke the clause
and declare Dixon unavailable for call by another employer.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of.Respondent Strachan, set forth in Section III above, occurring
in connection with its operations described in Section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
13 General Counsel concedes that none of the Respondents are to be held responsible for
Curry's membership in the Union, or his election to office.
14 Official minutes of the Maritime Association show that in January the employers had
voted to abandon the chart system.
1s Both oral and documentary evidence fully establishes Townsend's sympathy with the
supervisors holding local offices, in their dispute with the members.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Strachan has engaged in certain unfair
labor practices, the Trial Examiner will recommend that it cease and desist
therefrom and that it take certain affirmative action designed to effectuate the
policies of the Act.
The Trial Examiner has found that the Respondent interfered with, restrained,
and coerced its employees by discriminating in regard to the hire and tenure of
employment of Dixon. The Trial Examiner will recommend, therefore, that-the
Respondent offer immediate and full reinstatement to Dixon to his former or
substantially equivalent position without prejudice to his seniority or other
rights or privileges. It will be further recommended that the Respondent
Strachan make whole Dixon for any loss of pay he may have suffered by reason
of the discrimination against him by payment to him of a sum of money equal
to that which he normally would have earned by working for members of the
Savannah Maritime Association, from August 3, 1946, to the date of the offer
of reinstatement, less his net earnings during said period. During most of the
period up to the time of the hearing, quarterly records were kept showing the
amounts earned by individuals on the chart. It is recommended that in determin-
ing the amount due Dixon, in making him whole, an average be struck between
the amounts earned by persons in subsequent quarterly periods who, in the full
quarter of full employment next preceding Dixon's discharge, earned the next
greater amount and the next lesser amount.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Strachan has
engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) of the Act and Section 8 (a) (1) of the amended Act. ,
2. International Longshoremen's Association, Local No. 1475, affiliated with the
American Federation of Labor, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. By discharging Thomas J. Dixon the Respondent has not engaged in unfair
labor practices within the meaning of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner hereby recommends that Strachan Shipping Company and/or South
Atlantic Steamship Lines, a co-partnership, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from interfering with, restraining, or coercing its employees,
by discharge or otherwise, in the exercise of the right to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed by Section 7 of the Act.
STRACHAN SHIPPING COMPANY 445
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to Thomas J. Dixon immediate and full reinstatement to his former
or substantialy equivalent position , without prejudice to his seniority or other
rights or privileges , in the manner provided in Section V, above , entitled "The
remedy" ;
(b) Make whole, in the manner provided in "The remedy ," Thomas J. Dixon
for any loss of earnings he may have suffered by reason of the Respondent's
discrimination against him;
(c) Post immediately at its operations in Savannah , Georgia, copies of the
notice attached hereto marked Appendix . Copies of such notice , to be furnished
by the Regional Director for the Tenth Region, shall , after being duly signed by
the Respondent 's representative , be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily 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 Local 1475, by letter , that the Respondent rescinds its notification
of August 6, 1946, to the effect that Thomas J. Dixon is no longer acceptable for
employment by the Respondent ;
(e) Notify the Regional Director for the Tenth Region ( Atlanta, Georgia), in
writing within ten ( 10) days from the date of receipt of this Intermediate Report
what steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the Respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
It is further recommended that the allegation of the complaint, to the effect
that by discharging Dixon the Respondent violated Section 8 (3) of the Act, be
dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board , any party may, within twenty ( 20) days from the date
of service of the order transferring the case to the Board , pursuant to Section
203.45 of said Rules and Regulations , file with the Board, Washington 25, D. C.,
an original and six 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 six copies of a brief in support thereof ; and any party
may, within the same period , file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs , the party filing the same shall serve a copy thereof
upon each of the other parties . Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed , and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85 . As further provided in said Section 203.46
should any party desire permission to argue orally before the Board , request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 11th day of October 1948.
C. W. WHITTEMORE,
Trial Examiner.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to 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, by discharge or otherwise, in the exercise of their right to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to the employee named below immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice
to any seniority, or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimination.
Thomas J. Dixon
STRACHAN SHIPPING COMPANY AND/OR
SOUTH ATLANTIC STEAMSHIP LINES,
Employer.
By ---------------------------------------
(Representative) (Title)
Dated--------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.