The New York and Porto Rico Steamship Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 1028 (N.L.R.B. 1941)

In the Matter of THE NEW YORK AND PORTO Rico STEAMSHIP COM-
PANY and COMMERCIAL TELEGRAPHERS' UNION5 MARINE DIVISION,
A. F. of L.
In the Matter of NEW YORK AND CUBA MAIL STEAMSHIP COMPANY
and COMMERCIAL TELEGRAPHERS' UNION, MARINE DIVISION, A. F.
OF L.
In the Matter of THE NEW YORK AND PORTO Rico STEAMSHIP COM-
PANY, and AMERICAN COMMUNICATIONS ASSOCIATION, MARINE DIVI-
SION, LOCAL No. 2, C. I. 0.
In the Matter of NEW YORK AND CUBA MAIL STEAMSHIP COMPANY
and AMERICAN COMMUNICATIONS ASSOCIATION, MARINE DIVISION,
LOCAL No. 2, C. I. 0.
Cases Nos. C-1732, C-1733, R-2146, and R-2145-Decided
August 26, 1941
Jurisdiction : water transportation-industry.
Unfair Labor Practices
Discrimination: employer who under substantial pressure by members of an
opposing union discharged and refused to employ complainants because of
their membership in charging union held to have "technically" violated the
Act.
Remedial Orders : employer ordered to cease and desist unfair labor practices.
Reinstatement and back pay withheld as to employees who have been
discriminatorily discharged or refused employment where respondents did
not voluntarily discharge or refuse to employ the complainants but were
forced to do so by reason of pressure brought to bear by members of an
opposing union and where the respondents maintained a neutral attitude
with respect to the union affiliations of their employees.
Practice and Procedure
Motion by respondents to dismiss complaints with respect to certain
employees alleged to have been discriminatorily discharged on the ground
that each of the employees had signed a release of all claims which he
might have and had reached an accord and satisfaction with the respond-
ents, denied.
Motion to dismiss complaint on ground that charges of unfair labor
practices bad not been filed within a reasonable time, denied.
Motion to dismiss complaint on ground that the complainants have not
filed charges in good faith, denied.
34 N. L. R. B., No. 114.
1028
THE NEW YORK & PORTO RICO STEAMSHIP co. 1029
Motions of respondents to dismiss complaints with respect to employees
alleged to have been discriminatorily discharged and who did not appear
at the hearing or testify, denied where the record clearly establishes the
fact that the complainants who did not testify, as well as those who did,
were discharged and that the operative factors which induced the charges
were the same in both cases.
Mr. Mark Lautert and Mr. Millard L. Midonick, for the Board.
Burlingham, Veeder, Clark dC Hupper, by Mr. A. H. Neely and
Mr. B. H. White, of New York City, for the respondents.
Ornstein c6 Silverman, by Mr. Henry H. Silverman, and Mr. Louis
J. Kleinklaus, of New York City, for the C. T. U.
Boudin, Cohn c6 Gliekstein, by ,Mr. Sidney Elliott Cohn and Mr.
Irving R. Feinberg, and Mr. Roy A. Pyle, and Mr. Wayne Pascal,
of New York City, for the A. C. A.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 13, 1938, American Communications Association, Marine
Division, Local No. 2, herein called the A. C. A.,1 filed with the Re-
gional Director for the Second Region (New York City), two sepa-
rate petitions alleging that questions affecting commerce had arisen
concerning the representation of employees of The New York and
Porto Rico -Steamship Company, herein called Porto Rico, and New
York and Cuba Mail Steamship Company, herein called Cuba, and
requesting investigations and certifications of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act.
On May 28, 1938, Commercial Telegraphers' Union, Marine Divi-
sion, herein called the C. T. U., filed with the Regional Director for
the Second Region (New York City) charges alleging that the re-
spondent Porto Rico and the respondent Cuba 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 Act.
On September 30, 1938, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the
' Prior to December 1, 1938, the Marine Division of the American Communications
Association was known as the American Radio Telegraphists ' Association and was so
designated in the petitions in the representation cases. A motion to amend the petitions
for the purpose of showing the change in name was granted by the Trial Examiner at the
commencement of the hearing.
451269-42-vol 34-G6
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and Article III, Section 3, and Section 10 (c) (2), and Article
II, Section 37'(b), of National Labor Relations Board Rules and
Regulations-Series I, as amended, ordered investigations on the pe-
titions filed by the A. C. A. and authorized the Regional Director to
conduct them and to provide for an appropriate hearing upon due
notice, and further ordered, for the purpose of hearing and all other
purposes, that the complaint cases and the representation • cases be
consolidated and that one record of the hearing be made.
Thereafter, upon the charges filed by the C. T. U., the Board,
by the Regional Director for the Second Region, issued its com-
plaints dated December 21, 1938, against the respondent Porto Rico
and the respondent Cuba, alleging that said respondents and each
of them 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 Act. Copies of the complaints,
the petitions, and the order of consolidation, accompanied by notices
of hearing thereon, were duly served upon the respondent Porto Rico,
the respondent Cuba, the A. C. A., and the C. T. U.
Concerning the unfair labor practices of the respondent Porto
Rico, the complaint, as amended during the course of the hearing,
alleged in substance that said respondent discharged and thereafter
refused to reinstate 10 named employees,' and refused to employ, or
discharged and thereafter refused to reinstate, two named persons 8
on various dates between July 22 and August 6, 193'7, because they
had joined and assisted the C. T. U. and had engaged in other con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection.
With respect to the unfair labor practices concerning the respond-
ent Cuba, the complaint alleged, in substance, that said respondent
discharged and thereafter refused to reinstate eight named em-
ployees 4 on various dates between May 29 and August 9, 1937, because
they had joined and assisted the C. T. U. and had engaged in other
concerted activities for the purposes of collective bargaining and
other mutual aid and protection.
During the course of the hearing, the respondents filed separate
answers to the complaints against them, which admitted that they
were engaged in interstate and foreign commerce but denied the
allegations of unfair labor practices and set forth certain affirmative
averments by way of defense 5
8 Leonard Marshall , Roland Bouchard , Newton Smalley, James Zellon, Thomas Banks,
Peter DelGuidice , John Koscis , George Bartlett , Charles Barrett, and William Kropp.
S Emil Knies and Francis Carroll.
`Joseph Davis , Arthur Baum, Robert Virkus, Matthew Camillo , John Fuller , Paul Nelson,
John Dwyer, and Jacob Bowers.
5 The affirmative averments contained in the answers of the respondents were subse-
quently restated in their motions to dismiss which are discussed in detail hereafter.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1031
Pursuant to notice, a hearing on the consolidated cases was held
in New York City on various dates beginning October 2, 1939, and
ending November 2, 1940, before Earl S. Bellman, Peter F. Ward,
and Joseph L. Maguire, who at various times during the course of
the hearing were each duly designated to act as Trial Examiner by
the Chief Trial Examiner.' The Board, the respondents, the
A. C. A., and the C. T. U. were represented by counsel and'partici-
pated in the hearing. A motion of the A. C. A. requesting leave to
intervene in the complaint proceedings was granted by Trial Exami-
ner Bellman at the opening of the hearing. Trial Examiner Bell-
man ruled that service of the notices of hearing in the consolidated
cases upon the C. T. U. would be sufficient to establish that labor
organization as a party in the representation cases without the neces-
sity of presenting a formal motion for intervention therein on its
behalf. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties.
At the opening of the hearing, the C. T. U. moved to sever the
complaint and the representation cases. Trial Examiner Bellman did
not rule' upon this motion. Thereafter, during the course of the
hearing, the C. T. U. addressed a like motion to the Board, which was
denied by the Board on January 24, 1940.
Trial Examiner Ward, during the course of the hearing, granted
a motion of the Board to amend the complaint against the respondent
Porto Rico by adding thereto the name ,of William Kropp as an
employee alleged to have been discriminatorily discharged by said
respondent on August 6, 1937,7 and also granted a motion of the
Board to amend the complaint against the respondent Porto Rico
by adding thereto an allegation that said respondent had discrimina-
torily refused to employ Emil Knies and Francis Carroll.8 In each
instance, the respondent was granted an opportunity to amend its
answer and to introduce such further testimony as it might desire
0 Upon designation by the Chief Trial Examiner, Earl S . Bellman acted as Trial Ex-
aminer during the hearing•on October 2, 3, 10, and 11, 1939; Peter F. Ward on January
23 and March 1, 1940; Joseph L. Maguire on March 22, 1940; and Peter F. Ward on
April 9, 10, and 24, July 9 to 12, August 5 to 7, August 13 to 16, September 30, October
2, 11, 15, and 22, and October 31 to November 2, 1940. Since most of the complainants
who testified were employed as radio operators and were away at sea, it was necessary to
adjourn the hearing from time to time for the purpose of awaiting the arrival of their ships
in New York City.
7 The name of William Kropp had been included in the charge but had inadvertently
been omitted from the complaint.
8 This allegation was in addition to an allegation already contained in the complaint
to the effect that the respondent Porto Rico had discriminatorily discharged and subse-
quently refused to reinstate Knies and Carroll.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to the complaint as then amended. During the course
of the hearing, Trial Examiner Ward reserved for decision of the
Board the question of admissibility in evidence of certain exhibits
offered by the parties. We have examined the exhibits in question,
and hereby order that they be admitted in evidence as part of the
record in this proceeding." .
During the course of and at the conclusion of the hearing, the
respondents and the A. C. A. made several motions to dismiss the
complaints in their entirety. The Trial Examiners reserved ruling
on these motions. The motions are hereby denied. During the
course of the hearing the Trial Examiners made a number of rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiners and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On November 15, 1940, and November 19, 1940, the respondents and
the A. C. A., respectively, filed written motions to dismiss the
complaints. The motions to dismiss are hereby denied., 0
On November 22, 1940, the Board, in accordance with Article II,
Section 36, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered that these cases be transferred
to and continued before the Board for action pursuant to Article II,
Section 37, of said Rules and Regulations. The Board also ordered
that no Intermediate Report be issued by the Trial Examiners and
that pursuant to Article II, Section 37 (c), of said Rules and Regula-
tions, Proposed Findings of Fact, Proposed Conclusions of Law, and
a Proposed Order be issued in the consolidated cases. The Board's
order further provided that the parties herein should have the right
to file exceptions and to request oral argument before the Board
within twenty (20) days from the date of said Proposed Findings of
Fact, Proposed Conclusions of Law, and Proposed Order and to file
a brief with the Board within thirty (30) days from said date. On
November 27, 1940, the respondents filed exceptions to this order of
the Board on the ground that it violated due process of law in depriv-
ing the respondents "of a report by the Examiner who heard and
B The documents referred to are Respondents ' Exhibit No. 25 ; Board Exhibits Nos. 27,
32, 33, and 34; A. C. A. Exhibits Nos. 7A to 7J, inclusive ; and C. T. U. Exhibit No. 3.
Our ruling in this respect does not include A. C. A. Exhibit No. 9 which was rejected by
Trial Examiner Ward. The tendered exhibit purports to be an agreement which, according
to the evidence, the A. C. A. intended to present to the respondents for signature in August
1937 but which the respondents had never signed. It was not shown by whom or under
what circumstances the document had been drafted . The ruling of Trial Examiner Ward
rejecting A. C. A. Exhibit No. 9 is hereby affirmed.
10 These motions are discussed in detail hereafter.
THE NEW YORK & PORTO RICO STEAMSHIP CO . 1033
saw the witnesses." The exceptions of the respondents are hereby
overruled.','
On December 9, 1940, both the respondents and the A. C. A. sub-
Initted briefs in support of their positions.
On July 2, 1941, the Board issued its Proposed Findings of Fact,
Proposed Conclusions of Law and Proposed Order, to which excep-
tions were filed by the respondents, the A. C. A., and the C. T. U.
Pursuant to notice, a hearing for the purpose of oral argument was
held on August 7, 1941, before the Board in Washington, D. C. The"
respondents, the A. C. A., and the C. T. U. each appeared by counsel
and all participated in the oral argument. At the hearing on oral
argument, all parties were granted permission to file briefs. There-
after, the respondents filed a supplemental brief. The Board has
considered the exceptions filed and the briefs and supplemental brief
and, in so far as the exceptions are inconsistent with the findings,
conclusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The respondent New York and Cuba Mail Steamship Company is
a Maine corporation with its principal place of business located in
New York City. At the time of the alleged unfair labor practices it
was engaged in the operation of vessels transporting passengers,
freight, and mail from New York to Cuba and return. The Com-
pany' at that time operated six vessels, three handling freight and
passengers and three carrying freight exclusively. 2 During the
period from January 1, 1939, to September 1, 1939, the respondent,
Cuba, carried approximately 273,482 tons of freight and about
19,682 passengers.
The respondent The New York and Porto Rico Steamship Company
is a New York corporation with an office and place of business located
in New York City. At the time of the alleged unfair labor practices
it was engaged in the operation of vessels for the transportation of
passengers, freight, and mail from New York to Puerto Rico and
the Dominican Republic and return to New York and other American
ll See National Labor Relations Board v. Mackay Radio d Telegraph Co., 304 U. S. 333,
rev'g 92 F. ( 2d) 761, and enf'g Matter o f Mackay Radio & Telegraph Company, a Corpora-
tion, and American Radio Telegraphists' Association, San Francisco Local No. 3, 2 N. L.
R. B. 201; and Consolidated Edison Co. et at. v. National Labor Relations Board, et at.,
305 U. S. 197, aff'g as modified on other grounds 95 F. (2d) 390 (C. C. A. 2), and enf'g
as modified Matter of Consolidated Edison Company of New York, Inc., et al. and United
Electrical and Radio Workers of America, affiliated with the Committee for Industrial
Organization, 4 N. L. R B. 71.
" One of these vessels engaged in the exclusive carriage of freight was wrecked and
became a total loss in 1937 or 1938. As of September 29, 1939, the Company was operating
the remaining five vessels which it owned.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ports. At that time it operated five vessels, three of which carried
passengers and freight and the remaining two being operated as
freight carriers or as carriers of both freight and passengers.13 Dur-
ing the period from January 1, 1939, to September 1, 1939, the
respondent Porto Rico carried approximately 287,517 tons of freight
and about 19,096 passengers.
The respondents contend that the Board has no jurisdiction be-
cause the navigation laws of the United States together with the
shipping articles govern exclusively the relations between the respond-
ents and the complainants. 'Neither the navigation laws of the
United States nor the shipping articles prescribed thereunder, alone
or together, as a matter of law deprive this Board of jurisdiction. 14
We find that each of the respondents is engaged in trade, traffic,
transportation, and commerce among the several States and foreign
countries and that the radio operators employed by each of them are
directly engaged in such trade, traffic, transportation, and commerce.
We further find that the operations of the respondents set forth
above, occurring in connection with the activities of the respondents
described in Section III below, have a close, intimate, and substan-
tial 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. '
H. THE ORGANIZATIONS INVOLVED
Commercial Telegraphers" Union, Marine Division, is a labor or-
ganization affiliated with the American Federation of Labor, admit-
ting to its membership radio operators employed on seagoing and
coastwise vessels.
American Communications Association, Marine Division, Local No.
2, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to its membership, radio operators employed
on seagoing and coastwise vessels.
III. THE UNFAIR LABOR PRACTICES
A. Background
The unfair labor practices alleged in this case had their origin
in events which occurred prior thereto. About the middle of Sep-
'a As of September 29, 1939, the Company operated 10 vessels , 5 carrying freight and
passengers and 5 carrying freight exclusively.
14 See N. L. R. B. v. Waterman Steamship Corporation, 309 U. S 206, rev'g 103 F. (2d)
157 (C. C A. 5), and enf'g Matter of Waterman Steamship Corporation and National
Maritime Union of America , Engine Division, Mobile Branch , Mobile, Alabama, 7 N. L. R. B.
237; see also Southern Steamship Corporation v. N. L. R . B. (C. C. A. 3), decided May 6,
1941, enf'g as modified in other respects Matter of Southern Steamship Company and
National Maritime Union of America , affiliated with the C . I. 0., 23 N. L. R. B. 26,
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1035
tember 1935, the A. C. A. called a strike of radio operators employed
by the respondents and by other steamship companies operating out
of the port of New York. This strike was unsuccessful and was
terminated on or about October 8, 1935. In October 1936, a strike
of seamen employed on the West coast of the United States was
called and immediately spread to the East coast. The A. C. A., then
known as the A. R.,T. A.,15 the Marine Engineers Beneficial Asso-
ciation, the Masters, Mates, and Pilots, and a dissident group which
broke away from the International Seamen's Union and subsequently
became the National Maritime Union, cooperated in the conduct of
this strike which ended in the latter part of January 1937. In Febru-
ary 1937, the Marine Division of the C. T. U., with jurisdiction
over marine-radio operators, was formed and many of its members
were employed on the ships of both of the respondents.
During the latter part of April 1937, both the C. T. U. and the
A. C. A., each claiming to represent a majority of the radio operators
employed by each of the respondents, requested the companies to
enter into bargaining negotiations. The C. T. U. submitted to the
companies membership application cards which had been signed by
a majority of the radio operators then employed by each company.
The record does not disclose what proof, if any, was produced by the
A. C. A. in support of its claim to represent a majority."' Although
both companies met and conferred with representatives of the C. T. U.
and the A. C. A., in neither instance did the conferences result in a
contract. Various efforts on the part of both companies, including
a request to the Regional Director of the Board to resolve the con-
flicting claims of representation advanced by the two labor organiza-
tions, proved unavailing.
Meanwhile, in order to rid the respondents' vessels of C. T. U.
members and replace them with its own members, the A. C. A., in
cooperation with the unions which had conducted the 1936 strike,
engaged in a series of actual and threatened sit-down strikes on the
vessels operated by both respondents beginning in May and ending
in August 1937. The present controversy arises out of the alleged
discharges and refusals to employ C. T. U. members as a result of
these sit-down strikes 17
1•u See footnote 1, supra.
"Although some of the witnesses who testified on behalf of the A. C. A. stated that it
produced proof of majority which was satisfactory to the respondents , Roy A. Pyle, inter-
national vice-president in charge of the marine division of the A. C. A., testified that the
respondents refused to sign an agreement with the A. C. A. in the summer of 1937 because
they doubted whether the A. C. A. represented a majority and that the petitions in these
proceedings were filed for that reason.
11 The A. C. A. contends that the sit-down strikes in 1937 were but a continuation of the
strike which began in 1935 and that neither that strike nor the one which occurred in 1936
were ever terminated but merely represented changes in the tactics of the A. C. A. in an
attempt to secure reinstatement of its members who had gone on strike in 1935 and had
been displaced by strikebreakers . The evidence, however, does not support this contention.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discrimination in regard to hire and tenure of employment
1. The discharges and refusals to employ by the respondent
Porto Rico
The amended complaint against the respondent Porto Rico alleges
that it discharged and thereafter refused to reinstate 10 named
persons,18 employed as radio operators on the vessels of the company,,
on various dates between July 22, 1937, and August 6, 1937, because
they were members of the C. T. U., and further alleges that on
July 22, 1937, said respondent refused to employ as radio operators
two other named persons 19 because they were members of the C. T. U.,
and that by said discharges and refusals to reinstate and said refusals
to employ, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
James Zellon, Emil Knies and Francis Carroll. Zellon was em-
ployed as second radio operator on the S. S. Borinquen on June 11,
1936, and joined the C. T. U. on April 12, 1937. At the time the
ship arrived in New York City shortly before July 22, 1937, two va-
cancies for radio operators existed, one operator having been incar-
cerated during the course of the voyage and the other having resigned
at the time of the ship's arrival. Knies and Carroll were ordered
to report for duty as radio operators on the Borinquen by the Radio
Marine Corporation of America which had an operating agreement
with both the respondents for supplying them with radio operators
as they were needed. Knies, who joined the C. T. U. on May 27, testi-
fied that he was interviewed by a clerk in the respondent Porto Rico's
office on July 22; that he was escorted aboard the Borinquen and re-
mained aboard the ship from approximately 8: 30 a. m. until about
3 p. m.; that during that period he participated in a fire drill aboard
the Borinquen and on orders of the chief officer inspected the emer-
gency radio equipment in the life boats; that about 3 p. m. he was
called off the ship and went to the company's office where he met
Zellon; and that the two men waited until 5 p. m. when Johnston,
chief clerk of the company, informed them that the ship had sailed
and that he could not use them. Knies was paid for one day's work.
Carroll, who joined the C. T. U. on July 13, 1937, testified that
he reported to Johnston about 9 a. m. on July 22 and was told to come
back about noon, that he did so and waited until Johnston returned
about 5 p. m., at which time Johnston told Carroll that he would
have to let him go because the crew sat down and objected to an
's Leonard Marshall , Roland Bouchard , Newton Smalley, James Zellon , Thomas Banks,
Peter DelGuidice, John Koscis, George Bartlett, Charles Barrett, and William Kropp,
" Emil Knies and Francis Carroll.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1037
A. F. of L. operator' Carroll also received one day's pay from the
company. He was never on the ship.
On July 17, several days before the foregoing events took place, the
crew of the Borinquen served a written request upon the company to
replace the operators, then employed, with A. C. A. men.
John T. Castle, assistant secretary of the respondent Porto Rico,
testified that after the crew of the Borinquen sat down on July 22,
the company conferred with representatives of the A. C. A. and the
N. M. U. in an unsuccessful attempt to settle the dispute so that the
ship might sail with C. T. U. operators, and that finally, at 8: 00 p. in.,
5 hours after the ship had been scheduled to sail, the company capitu-
lated to the demands of the A. C. A. and N. M. U. and agreed to place
A. C. A. radio operators aboard the vessel. A statement that the
respondent would employ A. C. A. operators on the Borinquen was
signed by Edwards, marine superintendent.
Johnston denied that he had sent Knies aboard the Borinquen and
Danielsen, chief officer of the ship, denied that Kiiies was ever aboard.
The respondent Porto Rico contends that Knies and Carroll were
never employed on the ground that operators assigned to jobs by the
Radio Marine Corporation of America were not accepted as em-
ployees until they had been approved by the master of the ship, had
passed a physical examination, and had signed articles.20 The
amended complaint, however, alleges not only that Knies and Carroll
were discriminatorily discharged but also that they were discrimina-
torily refused employment. Edwards, marine superintendent, and
Castle, assistant secretary of the respondent, admitted,that the only
reason for the refusal to employ Knies and Carroll was the demand
of the A. C. A. that the company refrain from employing C. T. U.
operators. Accordingly, we find that Knies and Carroll were refused
employment, and Zellon was replaced, by the respondent Porto Rico
because they were members of the C. T. U. and were not members of
the A. C. A.
Zellon did not appear at the hearing, but Castle testified that after
Zellon had been replaced, he returned to Castle and asked him for 1
month's pay which would have amounted to $140, but finally settled
for $125 and executed a release of all future claims against the
,company.
Leonard Marshall, Roland Bouchard, and Newton Smalley were
employed as first, second, and third operators, respectively, on the
S. S. San Juan. Marshall and Bouchard were employed on Novem-
ber 14, 1936, and Smalley on May. 1, 1937. Marshall and Bouchard
"Joint motions of the respondent Porto Rico and of the A. C A. to strike the testimony
of Carroll and to dismiss the complaint with respect to him were made during the course
of the hearing and ruling thereon reserved for the Board by Trial Examiner Ward. The
motions are hereby denied.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined the C. T. U. on March 20 and Smalley on April 2, 1937.
Bouchard testified that on July 23, 1937, he was prevented by two
watchmen from boarding the ship for duty; that he was subsequently
told by a clerk in the company's office that he was discharged; that
when he later returned to his home he found a telegram from the
company informing him that he was discharged on that day.21 On
the following day, Bouchard testified that he met Marshall in the office
of the company and the two of them went to see Edwards, the re-
spondent's marine superintendent, who said he would have to let
them go to prevent further sit-downs. Neither Marshall not Smalley
testified. A telegram from respondent Porto Rico to Marshall in-
forming the latter of his discharge on July 23 was introduced in
evidence.
Although Edwards stated that he was of the opinion that Smalley
had resigned, he offered no reason for his assertion other than the
fact that the position of Smalley's name on a list of radio operators
compiled by the respondent led Edwards to believe Smalley had
merely been a short-trip operator, and Edwards admitted that re-
placement of the operators on the San Juan on July 22 was made for
the reason that "we were forced by the operators to change because the
crews would not sail with C. T. U. operators." Castle, assistant sec-
retary of the respondent Porto Rico, testified that the San Juan was
docked at the pier adjoining the Borinquen when the crew of the
latter sat down on July 22, and that in order to obtain the release
of the Borinquen the company had to agree that it would replace
the C. T. U. radio operators with A. C. A. men, not only on that ship,
but on the San Juan as well. On the day of the discharges, Edwards
accordingly signed a statement agreeing to replace the radio opera-
tors on the San Juan with men who were members of the A. C. A.
Thomas Banks, John Koscis, and Peter DelGuidice 22 were em-
ployed on the S. S. Ponce as first, second, and third radio operators,
respectively. Banks were employed on the Ponce on July 10, Koscis
on April 17, and DelGuidice on January 22, 1937. They joined the
C. T. U. on April 5, March 6, and March 27, 1937, respectively.
Banks had previously been employed as second radio operator on the
S. S. Sib'oney, a vessel operated by the respondent Cuba, but was
discharged on July 1, 1937, when the A. C. A. demanded that their
own operators be employed. At that time Banks received 7 days'
additional pay from the Cuba company.
About June 9, 1937, the A. C. A. demanded that the radio operators
on the Ponce be replaced, but the respondent Porto Rico refused to
take such action and the ship sailed at that time with the C. T. U.
21 A similar telegram was sent to Marshall.
22 Variously spelled DelGiudice and De1Guidice in the pleadings and record.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1039
operators aboard. On July 29, Bayley, a delegate of the N. M. U.,
sent a notice to the company informing it that the crew would not
sail with the operators then employed . Banks, Koscis, and Del-
Guidice were thereupon served by the company with written notice
that they were discharged as of July 30. Koscis did not testify.
Edwards, respondent Porto Rico 's general superintendent, stated that
the reasons which impelled the replacement of the radio operators
aboard the Ponce were similar to those he had previously related with
respect to the Borinquen.
George Bartlett , Charles Barrett, and William Kropp were em-
ployed as first, second , and third radio operators , respectively, on the
S. S. San Jacinto on December 19, 1936, April 27, 1937, and April
249 1937 . They joined the C . T. U. on March 30, March 31, and March
1, respectively . Bartlett testified that he mentioned to Captain Hart,
master of the ship, that he thought the radio operators would be
replaced ; that Hart spoke to Finch , the port engineer, who stated that
there was nothing the company could do; that shortly thereafter, on
August 6, 1937 , Finch told Bartlett that the three operators would
no longer be required after that day; and that Captain Hart signed
Bartlett 's license and said he was sorry to see the operators go.
The respondent Porto Rico contends that Bartlett, Barrett, and
Kropp resigned and were not discharged . Captain Hart declared that
shortly before the ship arrived in New York on August 3, the chief
officer informed him that the three radio operators would probably
have to resign because the rival union was putting pressure on them;
that Hart thereafter asked Bartlett , in the presence of Barrett and
Kropp, if that were true; and that Bartlett had said he was afraid
it was. Bartlett testified that he had informed Captain Hart of
Finch 's order of dismissal at the time Bartlett presented his license
to be signed on August 6. Captain Hart declared that he did not '
recall hearing Bartlett make such a statement to him. Finch denied
the statement attributed to him by Bartlett to the effect that there
was nothing the company could do about replacement of the operators,
and further denied that he had told Bartlett that the operators were
discharged, stating that he had no authority to take such action.
Captain Hart corroborated Finch's testimony with respect to the lat-
ter's lack of authority . Both Finch and Hart testified that on August
6 Bartlett came to Captain Hart while Finch was present and told
the captain that the three operators would have to leave because of
pressure from the opposing union. Finch stated that Captain Hart
signed the licenses of all three operators which were presented to
him by Bartlett . Captain Hart, however, testified that he believed
lie signed the licenses of Barrett and Kropp on another day.
1040 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Bartlett declared that he did not recall whether or not
he had said he resigned, Kropp denied that he himself had resigned
or that Bartlett could have done so for him; and Captain-Hart ad-
mitted that the operators did not tell him that they were quitting,
but that "they said they had to leave because of the pressure that had
been put on them by the opposing union." Barrett did not testify.
Although Edwards, in testifying as to the circumstances surrounding
the replacement of the radio operators aboard the San Jacinto, stated
it to be his belief that Bartlett, Barrett, and Kropp resigned, he ad-
mitted that "the company was forced to take A. R. T. A. (A. C. A.)
operators or tie up the ship." In view of the foregoing, and on the
basis of the entire record, we find that Bartlett, Barrett, and Kropp
did not resign their positions, and that their employment was termi-
nated under the same conditions and by reason of the same factors
which appear in the cases of the other complainants involved herein.
2. The discharges by the respondent Cuba
The complaint against the respondent Cuba alleges that it dis-
charged and thereafter refused to reinstate eight named persons 1 23
employed as radio operators on the vessels of the company, on various
dates between May 29 and August 10, 1937, because they were members
of the C. T. U., and that by said discharges and refusals to reinstate,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Joseph Davis, Arthur C. Bavim, and Robert Virkus were employed
as first, second, and third radio operators respectively, on the S. S.
Oriente. Davis had formerly been employed on the Orizaba which
was operated by the same company, in December 1936 was transferred
to the Oriente as second radio operator, and shortly thereafter became
chief operator on that vessel. Baum was employed on March 24, and
Virkus on May 22,1937. Davis and Baum joined the C. T. U. on Feb-
ruary 24 and Virkus on May 22, 1937. On May 29, 1937, at 11:30
a. in., a half hour before the ship was scheduled to leave, the crew
refused to sail unless the three operators were replaced with A. C. A.
men. Throughout the day, the company conferred with the A. C. A.
and the N. M. U. in an unsuccessful attempt to arrive at an agreement
whereby the ship could sail with the C. T. U. operators aboard.
Meanwhile, the crew refused to serve meals or give other services to
the nearly 200 passengers than aboard. The passengers were finally
removed from the ship and their passage money refunded. Davis,
Baum , and Virkus attempted to leave the ship, but were forced back
by a group of A. F. of L. adherents who informed the three men that
23 Joseph Davis , Arthur Baum , Robert Virkus , Matthew Camillo , John Fuller, Paul
Nelson, John Dwyer, and Jacob Bowers.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1041
they were to remain aboard. The three operators left the ship shortly
before it sailed as a freighter on the following day.
Matthew Camillo and John Fuller were employed as first and second
radio operators, respectively, on the S. S. Orizaba on December 18,
1936 and September 19, 1935. Both joined the C. T. U. on March 10,
1937. A sit-down strike occurred on June 3, 1937, but after a short
delay the ship sailed with the C. T. U. operators aboard. Shortly be-
fore the Orizaba was about to sail on June 23, 1937, another sit-down
strike occurred. Camillo testified that on that day he refused to leave
the ship under orders of Bayley, an N. M. U. representative, and later
upon orders of Edwards and Torreson, officials of the respondent
Cuba; and that subsequently he was forcibly removed by four com-
pany guards. Edwards admitted that Camillo was forcibly removed
and testified that Fuller was also escorted off the ship in the custody
of company guards. The two men were detained in the company's
dffices which adjoined the docks in order to protect them from the
A. C. A. adherents who were picketing the ship. Oliver, a member
of the A. C. A., remained on the ship when it sailed after a delay of
some 22 or 23 hours.
Paul Nelson was employed as sole radio operator on the S. S. Canto
about August 8, 1936, and joined the C. T. U. on April 10, 1937.
Nelson testified that during the time the ship was in port shortly
prior to August 9, 1937, he was advised by the chief engineer that
he had better join the C. I. 0.; that he applied for membership in the
A. C. A., but was rejected when he refused to pay $80 and also to
follow instructions if he should be ordered to leave the ship ; that on
August 9, 1937, he found another radio operator sitting at his table
for lunch and was told that this other operator had been assigned to
the ship; that Nelson then went to the captain and said it looked as
though he would have to get off, and that the captain agreed and
signed Nelson's license. Edwards admitted that Nelson was replaced
because of the demands of the A. C. A.
Jacob Bowers and John Dwyer were employed as second and third
radio operators on the S. S. Siboney on July 1, 1937, and joined the
C. T. U. on April 26 and June 23, 1937, respectively. On July 22,
Edwards had signed an agreement with the A. C. A. to replace the
second and third radio operators on the Siboney when it returned to
New York, and Dwyer and Bowers were accordingly discharged
when the ship arrived on August 10. Guiterrez, the chief operator
on the Mboney, remained .24
The respondents move to dismiss the complaints upon the ground
that they were forced to discharge the complainants because of the
u Guiterrez previously had been a member of the A. C. A. in 1935 . He again joined
the A. C. A. on August 26 , 1938. Whether or not he was a member of that union on
August 10 , 1937, does not appear in the record.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressure exerted by the A. C. A. The respondents claim that, they
did not act voluntarily, that the elements of coercion and duress were
not nearly so strong in prebiously decided cases as they are here,
nor do any of such previous cases show so determined an effort on
the part of the employer to protect the jobs of the employees.25 The
evidence shows not only that the respondent companies maintained
a neutral attitude with respect to the union affiliations of their em-
ployees, but that they went even further and without equivocation
took such affirmative action as lay within their power to protect the
positions of the C. T. U. radio operators whom they then employed,
and to secure a resolution of the conflict between the two labor or-
ganizations without in any way attempting to favor either of them.
On June 2, 1937, counsel for the respondents conferred with the
Regional Director of the Board in an attempt to settle the contro-
versy between the A. C. A. and the C. T. U. The respondents then
called, upon Daniel Ring, Director of Labor Relations of the Mari-
time Commission, through whose efforts the various unions involved
entered into an agreement on June 24, 1937, that they would' not
resort to sit-down strikes or other action designed to remove members
of an opposing union from their positions pending the outcome of
elections among seamen , other than radio operators, to be held before
the Board. This agreement, however, did not succeed in settling the
controversy. The respondents nevertheless continued in their efforts
to arrive at a settlement and enlisted the services of Captain Fried
of the Bureau of Marine Inspection and Navigation as well as those
of Ben Golden, each of whom acted as conciliator.
The record shows that the respondents acted in good faith and
persisted in their efforts to resolve the dispute even after the charges
in these proceedings had been filed. Virkus, Davis, Bouchard, Banks,
and Nelson each testified that the respondents attempted to protect
the positions of the C. T. U. operators and permitted their replace-
ment only when forced to do so by the A. C. A. and the other unions
which cooperated with it. In fact, Camillo, after his discharge, sent
a letter to the chief clerk of the respondent Cuba in which Camillo
expressed his appreciation for the efforts of the company to retain
him. In this respect, we note the fact, as related above, that the
respondent Porto Rico employed Thomas, Banks as a radio operator
on the Ponce on July 10, 1937, after he had been discharged from
the Siboney by the respondent Cuba on July 1, 1937, in compliance
25 Cf. Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82,
4 N L. R . B. 498 , enf'd in N . L. R. B. v Star Publishing Company, 97 F. (2d) 465 (C. C. A.
9) ; Matter of Trawler Marts Stella Inc., at al. and American Communications Association
(C. I. 0) et al ', 12 N. L. R. B. 415; Matter of Isthmian Steamship Company and National
Maritime Union of America , 22 N L R B 689 ; Matter of Mooremack Gulf Lines,
Inc et al. and Commercial Telegraphists ' Union, Marine Division , affiliated with the A. F.
of L., 28 N. L. R. B. 869.
THE NEW YORK & PORTO RICO STEAMSHIP CO ., 1043
with the demands of the A. C. A. We also note in this connection
that Bartlett, Kropp, Camillo, and DelGuidice were employed by'
the Clyde-Mallory Lines, a close affiliate of the respondents, after
leaving the respondents' employ, and that the respondent Cuba hired
\Tirkus to work on the Oriente for the purpose of taking inventory
on that vessel while it was in drydock after his employment had
been terminated. The evidence clearly shows that the attitude and,
actions of the respondents did not amount to a tacit acceptance of
the demands of the A. C. A., that the respondents acted in good faith,
and that they did not in fact or in effect collude with the A. C. A. in
its efforts to unseat the rival C. T. U. operators from their positions.
Nor did the respondents have any other alternative than to cease
operations entirely. Edwards testified without contradiction, and
we so find, that it would not have been possible to man the ships
with new crews since the waterfront was in control of the N. M. U.
and its affiliated unions and it was impossible for the respondents to
obtain new crews elsewhere.
As related above, because of the sit-down strikes conducted by the
A. C. A. and the unions associated with it, the respondent Cuba on
May 29, 1937, was forced to make a refund to the passengers who
had booked sailings on the Oriente. The passage money thus refunded
amounted to $11,346, and in addition the company sustained a loss for
expenses in maintaining the ship at the dock during the period of its
detention, which amounted to nearly $3,000. If the respondents had
not capitulated to the demands of the A. C. A. and had permitted all
their vessels to be rendered inactive, the loss to both respondents in
passenger and freight revenues, exclusive of detention costs, during
the period between the -end of May and the middle of August 1937
would have amounted to well over $300,000. The respondents were
also parties to contracts by the terms of which they were obligated
to the United States Government for the carriage of mail.
Edwards, the respondents ' general superintendent, characterized
the position in which the respondents found themselves in the fol-
lowing manner :
We are faced with the choice of sailing the ship with the pas-
sengers, freight and mail aboard, or tying her up. If we tried
to sail her with the C. T. U. operators, the entire ship is killed,
tied up, and the crew sitting down. Now you are in the same
position as a man with a gun at his head and doing as he is
told.26
26 The motions of the respondents to dismiss the complaints on the above ground are
hereby denied The respondents also move to dismiss the complaints with respect to Arthur
Baum, John Fuller, Jacob Bowers, James Zellon, Leonard Marshall , Newton Smalley, Charles
Barrett, and John Koscis, who did not testify , on the ground that no unfair labor practices
have been established as to those complainants . The record clearly establishes the fact that
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions
From the foregoing facts, and upon the basis of the entire record,
it is plain, and we find that the respondents under substantial pressure
from the A. C. A. discharged or refused to employ the employees
named in the complaints because of such employees ' membership in
the C. T. U., but were forced to do so by the strikes conducted by
the A. C. A. and the refusal of the seamen to sail. The Act, how-
ever, in defining unfair labor practices , takes no' cognizance of the
pressures which may have impelled their commission 27 We are of
the opinion , therefore , that the respondents technically violated the
Act .28
the complainants who did not testify, as well as those who did, were discharged, and
that the operative factors which induced the discharges were the same in both cases.
See Matter of Ifeuhne Mfg. Co. and Local No. 1791, United Brotherhood of Carpen-
ters and Joiners of America, 7 N. L. R B. 304 . The respondents likewise move to
dismiss the complaints on the ground that there was no discharge or unfair labor
practice because of any union activities or affiliation of the complainants . The record
does not support this contention . The respondents further contend that the complaints
should be dismissed with respect to Thomas Banks, Robert Virkus, Roland Bouchard,
Matthew Camillo , Joseph Davis , Peter DelGuidice , Leonard Marshall , John Koscis, and
James Zellon on the ground that each of them signed a release of all claims which he
might have or reached an accord and satisfaction with the respondents . Section 10 (a)
of the Act negates the validity of such a contention . The authority conferred upon
the Board is of a public nature, looking to the restraint and alleviation of a public, not
a private, wrong. No agreement between private parties in compromise or settlement of
conduct violative of the Act can, therefore, deprive the Board of its authority to proceed
in the dominant public interest . Cf. Amalgamated Utility Workers , affiliated with Utility
Workers Organizing Committee, Congress of Industrial Organizations v. Consolidated Edison
Company of New York, Inc., et at, 309 U. S. 261; N. L R. B. v. General Motors Corpora-
tion, 116 F ( 2d) 306 (C C. A 7) enf'g Matter of General Motors Corporation, and
Delco-Remy Corporation and International Union United Automobile Workers of America,
Local No. 146, 14 N. L. R . B. 113. It is unnecessary for us to pass upon the additional
contentions of the respondents in support of their motions to dismiss which relate to the
question of reinstatement and back pay in view of our disposition of these proceedings,
as noted hereafter. We find that the foregoing contentions are without merit. The motions
of the respondents to dismiss the complaints are hereby denied
zr N. L. R. B. v. Star Publishing Company, 97 F. (2d) 465 (C. C. A. 9), enf'g Matter of
Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N L R. B. 498.
21 The A. C. A. moves to dismiss the complaints on the following grounds : (1) that the
complainants were guilty of laches in instituting these proceedings ; (2) that the charges
herein were not filed by the C. T. U. in good faith ; (3) that the complainants were strike-
breakers and are not entitled to the protection of the Act; ( 4) that the complainants
were discharged pursuant to the provisions of a closed-shop agreement entered into be-
tween the respondents and the A. C A.; (5) that the complainants were discharged phr-
suant to an agreement between the respondents and the A. C. A. whereby the respondents
agreed to reinstate striking employees who were members of the A. C. A. and to discharge
the strikebreakers ; and (6) that the complainants were discharged because the crews on
the respondents ' vessels objected to the presence of the complainants on the ground that
they were strikebreakers The first contention advanced by the A. C. A. in support of its
motion to dismiss is without merit since the Act contains no limitation of time within
which charges of unfair ' labor practices may be filed, and since the equitable principle
of laches does not apply to the Board in its administrative capacity as an agency of the
Government. Matter of Colorado Milling & Elevator Company and Denver Trades and
Labor Assembly, 11 N. L. R. B. 66. It is not necessary for us to pass upon the further
question of the effect which a showing of laches upon the part of complaining parties may
have upon such affirmative relief as we may order in the exercise of our administrative
discretion , or whether that principle is applicable here, in view of our disposition of these
proceedings , as noted below. With respect to the second contention of the A. C. A., we
have previously had-occasion to hold that the motive which may have impelled a person or
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1045
Accordingly, we find that the respondent Porto Rico, by discharging
and refusing to reinstate Leonard Marshall, Roland Bouchard, New-
ton Smalley, James Zellon, Thomas Banks, Peter DelGuidice, John
Koscis, George Bartlett, Charles Barrett, and William Kropp, and
by refusing to employ Emil Knies and Francis Carroll, discriminated
in regard to their hire and tenure of employment, thereby discourag-
ing membership in the C. T. U. and encouraging membership in the
A. C. A. and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act. We also find that the respondent Cuba, by discharging
and refusing to reinstate Joseph Davis, Arthur Baum, Robert Virkus,
Matthew Camillo, John Fuller, Paul Nelson, John Dwyer, and Jacob
Bowers, discriminated in regard to their hire and tenure of employ-
ment, thereby discouraging membership in the C. T. U. and encourag-
ing membership in the A. C. A. and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
However, as we have noted above, the respondents did not vol-
untarily commit the unfair labor practices with which they have
been charged. The coercion upon the respondents in discriminating
against the complainants is a factor which the Board may properly
consider in determining, in the exercise of its administrative dis-
cretion, the affirmative relief which it may order for the purpose
of effectuating the policies of the Act.29 We have found that the
respondents throughout maintained a neutral attitude with respect
to the union affiliations of their employees; that they continuously
and consistently exerted efforts themselves,, and by enlisting the
services of outside persons and agencies, to settle the dispute be-
tween the two unions and to protect the positions of the C. T. U. radio
labor organization to file charges is immaterial Matter of Mooremack Gulf Lines, Inc,
et al. and Commercial Telegraphists' Union, Marine Division, affiliated with the A . F. of L.,
28 N L. R B 869. We have considered the remaining contentions of the A C. A.
and find that they are not supported by the record . In passing upon the contentions of
the A C. A., we take judicial notice of the fact that during 1937 and 1938, as the result
of the intense rivalry engendered by their organizing efforts, the A. C. A, the C. T. U,
and other unions engaged in organizing sea-faring employees attempted in various ways
to secure the replacement of adherents of the opposing unions by their own members
aboard vessels operating out of ports along the Atlantic seaboard . See Matter of Trawler
Marls Stella, Inc., at at. and American Communications Association ( C. 1. 0.) et at., 12
N. L. R. B. 415 ; Matter of Isthmian Steamship Company and National Maritime Union
of America, 22 N. L. R B 689; Matter of Cape Cod Trawling Corporation , et at. and
American Communications Association, affiliated with the C. 1 0, 23 N L. R. B. 208 ;
Matter of Mooremack Gulf Lines , Inc., at at. and Commercial Telegraphists ' Union, Marine
Division, affiliated with the A F of L, 28 N L R. B 869 In view of our disposition
of the cases , as noted hereafter , it is unnecessary for us to pass upon the additional con-
tentions of the A. C. A. ( also advanced by the respondents ) that the complainants are not
entitled to reinstatement because they have received substantially equivalent employment.
We find that the contentions advanced by the A. C. A. are without merit, and its motion
to dismiss the complaints is hereby denied.
29 PZielp' Dodge Corporation v. National Labor Relations Boa? d, decided by United States
Supreme Court, April 28, 1941.
451269-42-vol 34-67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators; that they sustained actual loss in substantial amount as a
consequence of exerting such efforts ; that they did not directly or
indirectly collude with the A. C. A. in the latter's efforts to secure
the displacement of the C. T. U. operators, but throughout the entire
period in question acted in good faith and showed their honest desire
to secure'a settlement of the controversy. In the light of the fore-
going facts, and upon the basis of the entire record, we find that it
will not effectuate the policies of the Act to require the respondents
to reinstate or to employ the complainants herein or to award them
back pay. Accordingly our Order will not contain such a provision.
In accordance with the requirements of Section 10 (c) of the Act,
however, we shall order the respondents to cease and desist from the
unfair labor practices which we have found they have technically
committed.
THE PETITIONS
In view of the length of time which has elapsed since the A. C. A.
filed its petitions for investigation and certification of representa-
tives, we will dismiss the representation proceedings without
prejudice.
Upon the basis of the above findings of fact and upon the entire
record in the case , the Board makes the following:
CONCLUSIONS OF LAW
1. Commercial Telegraphers' Union, Marine Division, and Amer-
ican Communications Association, Marine Division, Local No. 2,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Leonard Marshall, Roland Bouchard, Newton Smalley, James
Zellon, Thomas Banks, Peter DelGuidice, John Koscis, George Bart-
lett, Charles Barrett, William Kropp, Emil Knies, and Francis Car-
roll, thereby discouraging membership in the Commercial Telegra-
phers' Union, Marine Division, and encouraging membership in the
American Communications Association, Marine Division, Local No.
2, the respondent Porto Rico has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) 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 discriminating in regard to the hire and tenure of employment
of Joseph Davis, Arthur Baum, Robert Virkus, Matthew Camillo,
John Fuller, Paul Nelson, John Dwyer, and Jacob Bowers, thereby
discouraging membership in the Commercial Telegraphers' Union,
Marine Division, and encouraging membership in the American Com-
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1047
munications Association, Marine Division, Local No. 2, the respondent
Cuba has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the, Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
On the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The New York and Porto Rico Steamship Company, its officers, agents,
successors, and assigns, shall:
Cease and desist from discouraging membership in Commercial
Telegraphers' Union, or encouraging membership in the American
Communications Association by discharging or refusing to reinstate
any of its employees or refusing to hire applicants for employment
because of membership or activity in Commercial Telegraphers'
Union.
On the basis of the above findings. of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
New York and Cuba Mail Steamship Company, its officers, agents,
successors, and assigns, shall:
Cease and desist from discouraging membership in Commercial
Telegraphers' Union, or encouraging membership in the American
Communications Association by discharging or refusing to reinstate
any of its employees because of membership or activity in Commercial
Telegraphers' Union.
AND IT IS FURTHER ORDERED that the petitions of American Commu-
nications Association, Marine Division, Local No. 2, requesting investi-
gations and certifications of representatives of employees of The New
York and Porto Rico Steamship Company, New York City, and New
York and Cuba Mail Steamship Company, New York City, be, and
they hereby are, dismissed without prejudice.
MR. EDWIN S. SMITH, dissenting :
I agree with the majority opinion insofar as it finds that the re-
spondents have committed unfair labor practices.3° I cannot agree,
80 1 do not agree, however , with the conclusion of the majority that the unfair labor
practices here committed constituted only a "technical " violation of the Act. Neither by
express nor implied provision does the Act itself distinguish between what is here termed
a "technical" violation and a violation in other cases which the majority would presumably
regard as "non-technical" in nature. In my opinion , the distinction is without meaning
and without purpose. See N. L. R. B. v. Star Publishing Company, 97 F. (2d) 465
(C. C. A. 9), enf'g Matter o f Star Publishing Company and Seattle Newspaper Gusld,
Local No. 82, 4 N. L. R . B. 498.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, with that part of the decision which refuses reinstatement
and back pay to those employees who were admittedly discriminated
against in violation of the Act. The denial of affirmative relief here
fails to promote the policies of the Act, and in addition creates in-
soluble problems in its administration.
The considerations which impelled a majority of the Board in the
Cape Cod Trawler case- to reject the position now adopted by the
majority in this case are of equal force and relevance here.
In a recent case U2 the present Board expressly recognized and
affirmed the compelling factors which require reinstatement of em-
ployees who have been the victims of unlawful discrimination in order
to effectuate the policies of the Act. In that case, the Board said :
Our power to order affirmative relief was conferred, and -it is
our duty to exercise it, to the end that conditions permitting
free exercise of the publicly significant rights of self-organization
and collective bargaining shall, when destroyed or disrupted, be
restored. The Act postulates, and the fact is readily verified
by common experience, that anti-union discrimination exercises
a coercive effect not only upon the immediate 'victim, but upon
all present or future employees of the particular employer; it
impresses upon them the danger to their welfare and security
associated with membership in or activity on behalf of a labor
organization . Accordingly, the purpose of the order to offer
reinstatement is not only to restore the victim of discrimination
to the position from which he was unlawfully excluded, but also,
and more sig iificantly, to dissipate the deeply coercive effects
upon other employees who may desire self-crganization, but have
been discouraged therefrom by the threat to them to implicit in
the discrimination. This essential reassurance can be afforded-
freedom can be reestablished-only by a demonstration that the
Act carries sufficient force to restore to work anyone who has
been penalized for exercising rights which the Act guarantees
and protects; . . .38
Never since its inception has the Board failed to afford such pro-
tection where required. In a single class of cases where the Board
has found that an employer has committed unfair labor practices
through an honest but erroneous interpretation of his rights and
duties under an existing contract, it has modified its affirmative
81 Matter of Cape Cod Trawling Corporation, et at. and American Communications Asso-
elation, affiliated with the C. 1. 0., 23 N. L. R. B. 208
sa Matter of Ford Motor Company and International Union United Automobile Workers
of America, Local Union No. 249, 31 N. L R. B 994.
33 That an order requiring reinstatement has such an effect was recognized by the Supreme
Court of the United States in a recent case where it said : "Reinstatement may be the
effective assurance of the right of self-organization." Phelps-Dodge Corporation v. National
Labor Relations Board, decided by the Supreme Court of the United States, April 28, 1941.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1040
order by withholding an award of back pay, but even in those cases
it recognized the necessity of ordering reinstatement of the employees
who had been discriminated against as a means of insuring an unim-
paired and continuing right of self-organization.34 The order in the
present case, however, ignores that necessity by refusing to protect
the employees in their right to organize freely by becoming members
of the C. T. U. or any other labor organization of their choice and
sacrifices that right in a misdirected effort to protect and save harm-
less the respondents, an effort understandable in the circumstances
of the case, but clearly beyond the scope and purpose of the Act, and
highly dangerous when viewed in the light of its effect in denying to
the employees the right of self-organization which the Act expressly
guarantees.
The position of the majority is rendered no more tenable by con-
siderations of fairness or a sense of appropriate equities. Undoubtedly
the respondents in these cases, through no fault of their own, were
placed in a difficult and unfortunate position. But as between the
respondents who chose a course of action in violation of the Act as
a means of solving their difficulties, and the members of the C. T. U.
who were guilty of no action other than having ' become members
of that organization, it seems clear to me what choice should be made
in determining upon whom the burden of the unlawful action of the
respondents, however lacking in ill intent, should lie. Moreover, in
making its choice, the majority has relied solely upon the good faith
of the employer where he has submitted to pressure by committing
an unfair labor practice, and has thereby opened the door to the
possibility of collusion which may lead to profound difficulties in
detection and leave room for more subtle evasion of the Act. Would
the Board be as willing in this case to withhold reinstatement and
back pay if the pressure had been exerted, not by a labor organiza-
84 Matter of M. and M. Wood Working Company and Plywood and Veneer Workers Union
Local No . 102, affiliated with International Woodworkers of America , 6 N. L. R. B. 372,
set aside in M. and M. Woodworking Company, et al. v. N. L. R. B. (C. C. A. 9), 101 F.
(2d) 938; Matter of Smith Wood Products, Inc. and Plywood and Veneer Workers Local
No. 2691 , International Woodworkers of America, 7 N. L. Ti. B 950; Matter of McKesson
t Robbins, Inc., et al and International Longshoremen and Warehousemen 's Union, Local
No. 9, District 1, affi liated with the C. 1. 0., 19 N. L. R. B. 778, enf d as modified on
other grounds in N. L R. B v. McKesson & Robbins, Inc ., et al. (C. A. for D. C.), decided
May 5, 1941 . These cases are to be distinguished from the situations where, subsequent to
the commission of unfair labor practices , the employee discriminated against has , himself,
engaged in conduct which led the Board to conclude that an order requiring his reinstate-
ment, in view of his conduct , would not effectuate the policies of the Act. See, e. g.,
Matter of Thompson Cabinet Company and Committee for Industrial Organization, Local
Industrial Union No. 115, 11 N. L. R. B. 1106 ( refusal to order reinstatement of employee
who, after the employer had discriminated against him , offered his services as a labor
spy) ; Matter of El Paso Electric Company, a corporation, and Local Union 585, Inter-
national Brotherhood of Electrical Workers, et al., 13 N. L. R. B. 213, enf ' d in El Paso
Electric Company v . N. L. R. B. (C. C. A. 5), decided April 25, 1941 ( refusal to reinstate
striking employees who, subsequent to discrimination practised against them , engaged in
acts of sabotage which were not condoned by the employer).
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, but by some other-group, say, an employer-association which, in
the interest of maintaining an open-shop community, instituted a_
boycott or took other injurious action against the employer to force
him to discharge all employees who were members of a union and
hire only non-union employees in their places? 35 The pressure, the
actual and potential losses to the employer, his good faith in sub-
mitting to the pressure exerted-are factors present in the posited
case as in the instant case. The source of the pressure alone would
be changed. There would be no more reason in such a situation to
refuse to follow the course now adopted by the majority than there
is in the present case.
To deny affirmative relief to employees who have been discrimi-
nated against in violation of the Act because of pressure exerted
upon the employer is not only unjust but is also unwise since it intro-
duces for consideration a zone of conduct whose boundaries can never
be clearly circumscribed. How much or how little pressure excuses
the employer who has acted in good faith will always be an issue in
such cases, and the mischief of uncertainty thus presents itself as a
problem, not alone for the Board,,but also for the employer who
desires to know what he may or may not do in conformance with the
Act. I do not believe that the effectuation of the policies of the
Act through the granting of affirmative relief to remedy unfair labor
practices should depend upon such tenuous considerations.
Moreover, the refusal to award reinstatement and grant back pay
in this case does not provide a solution for the dilemma faced by the
respondents. If they attempt to comply with the Board's cease
and desist order by hiring C. T. U. members, the A. C. A. remains in
a position which enables it again to exert pressure upon the respond-
ents and industrial strife will again be the result. On the other
hand, if the respondents continue to submit to the pressure of the
A. C. A. and refuse to hire C. T. U. members, they will be violating
the Board's cease and desist order. If the Board's order is then
enforced in the appropriate court, the respondents will be in con-
tempt if they fail to comply with its terms. Yet they can only
purge themselves of such contempt by taking the'very steps which
the Board says they should not be required to take. Furthermore,
although the Board now places the A. C. A. in the position of exclu-
sive representative of the employees, any contract entered into be-
tween that union and the respondents would, under the Board's usual
practice, necessarily be invalid since the A. C. A. attained its majority
by the very, unfair labor practices which the Board has found were
committed in this case.
35 See, e. g., Matter of Grower-Shipper Vegetable Association of Central California, et at.
and Fruit and Vegetable Workers' Union of California , No. 18211, 15 N. L. It. B. 322.
THE NEW YORK & PORTO RICO STEAMSHIP CO. 1051
In addition to these considerations, the withholding of affirmative
relief places the Board in an inconsistent position. Faced with a
recurrence of the situation in this case, the Board would be com-
pelled either again to fail to effectuate the policies of the Act by
adhering to its present view, and thereby admit that the respond-
ents could continue to violate' the Act and ignore with impunity the
cease and desist order issued in this case; or, instead, order that the
complainants subsequently discriminated against be reinstated-a
position directly contrary to that taken by the majority here. Nor
could the Board, if it secured enforcement of its present order, con-
sistently request the court to enforce its decree by holding the
respondents in contempt because to do so would result in the employ-
ment of C. T. U. members, the very thing which the majority is here
refusing to order, although such action is clearly necessary to restore
the status quo existing prior to the commission of the unfair labor
practices.
I believe that an order in this case requiring the respondents to
employ and to reinstate the complainants and to award them back
pay would not only be proper but is necessary in order to effectuate
the policies of the Act 36
ae Reinstatement and back pay need not be precluded because several of the employees
discriminated against received sums in lieu of employment from the respondents, or because
the Board has already ordered reinstatement with back pay in the case of Camillo, and
preferential employment of Davis, two of the employees discriminatorily discharged in this
case, in a prior decision (Matter of Mooremack Gulf Lanes, Inc, at at. and Commercial
Telegraphists ' Union, Marine Division , affiliated with the A F of L , 28 N. L R B
869) involving other companies who employed and thereafter discriminatorily discharged
them after they had been unlawfully discharged by the respondent Cuba here Sums paid
in lieu of employment by an employer to an employee may be deducted from the back
pay to which the employee is entitled by virtue of an order of the Board . N. L. R. B. v.
William Randolph Hearst, at at. (C. C. A. 9), 102 F ( 2d) 658, enf'g Matter of William
Randolph Hearst, at at. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B 530.
As to Camillo and Davis, the order to the extent that it involved them in this case
could obviate the difficulty of imposing dual liability on the respondent Cuba and on the
respondent companies in the prior case by requiring Camillo and Davis td apply for rein-
statement to the respondent Cuba within a period of thirty days after the date of the
order in this proceeding.