Trawler Maris Stella, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1939

12 N.L.R.B. 415 (N.L.R.B. 1939)

In the Matter of TRAwLER MARIS STELLA, INC. and AMERICAN
COMMUNICATIONS ASSOCIATION (C. I. 0.)
In the Matter of FEDERATED FISHING BOATS OF NEW ENGLAND AND
NEW YORK, INC. and AMERICAN RADIO TELEGRAPHISTS ASSOCIATION
OF THE C. I. O.
Cases Nos. C-114 and R-1120, respectively.Decided April 21, 1939
Fishing Industry-Interference , Restraint, and Coercion-Discrimination:
discharge-Reinstatement Ordered: discharged employee-Back Pay: awarded
to discharged employee ; to include reasonable value of maintenance on ship-
board-Investigation of Representatives : controversy concerning representation
of employees : controversy concerning appropriate unit ; rival organizations ;
petition for, dismissed in part-Units Appropriate for Collectve Bargaining:
employer units ; history of collective bargaining ; persons employed as radio
operatorsElections Ordered
Mr. Bernard J. Donoghue, for the Board.
Mr. Edward H. Cooley and Mr. J. Lawrence Alphen, of Boston,
Mass ., for the Federated.
Mr. Sidney S. Grant, of Boston, Mass. , for the A. R. T. A.
Mr. Louis J. Kleinklaus, of New York City, and Mr. Andrew B.
Anderson, of Boston, Mass. , for the C. T. U.
Mr. Peter C. Borre, of Boston, Mass. , for the A. F. U., the A. F. of
L., and the C. T. U.
Mr. Aaron Velleman, of Boston , Mass. , for the A. F. of L.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
ORDERS
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Com-
munications Association (C. I. 0.), herein called the A. C. A., the
National Labor Relations Board, herein called the Board, by A.
Howard Myers, Regional Director for the First Region (Boston,
Massachusetts), issued its complaint dated October 20, 1938, against
Trawler Maris Stella, Inc., and Margaret G. Ross, Chester F. Ross,
12 N. L. R. B., No. 50.
415
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry C. Ross, Joseph M. Gavan, and Grimur Hackonarson, stock-
holders of said Trawler Maris Stella, Inc., and others, individually
and as an informal association and partnership under the style and
firm name of Trawler Maris Stella, Inc., or other style and firm
name, herein collectively called the respondent," alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. In respect to the unfair labor
practices, the complaint alleged, in substance, that the respondent dis-
charged and thereafter refused to reinstate David Wrathall, an em-
ployee, because of his membership in American Radio Telegraphists
Association, herein called the A. R. T. A., and that by said discharge
and refusal to reinstate the respondent thereby interfered with, re-
strained , and coerced its employees in the exercise of the rights guar-
anteed by Section 7 of the Act. Copies of the complaint, together
with notice of hearing, charge, and amended charge, were duly
served upon the respondent, Chester F. Ross, Margaret G. Ross,
Harry C. Ross, Joseph M. Gaven,2 Thomas A. Norris, Grimur Hack-
onarson, and Richard J. Golden, New England representative of the
A. C. A. The respondent did not interpose an answer to the
complaint.
On September 16, 1938, the A. R. T. A. filed a petition and on
October 12, 1938, an amended petition, with the Regional Director
for the First Region. The amended petition alleged that a question
affecting commerce had arisen concerning the representation of em
ployees of the following boat owners, members of the Federated Fish-
ing Boats of New England and New York, Inc., herein called the
Federated : O'Hara Bros. Co., Inc. ; O'Hara Bros. Company, Inc. ;
O'Hara Vessels, Inc.; Massachusetts Trawling Co.; Trawler Arling-
ton, Inc.; Trawler Brookline, Inc. ; Trawler Cambridge, Inc. ; Traw
ler Newton, Inc. ; Trawler Winchester, Inc.; Usen Trawling Com-
pany; Trawler Maris Stella, Inc.; Trawler Boston College, Inc.;
Trawler Fordham, Inc. ; Trawler Georgetown, Inc. ; Trawler Holy
Cross, Inc. ; Trawler Jeanne d'Arc, Inc. ; Trawler Notre Dame, Inc. ;
'On June 23 , 1937, the respondent . Trawler Maris Stella , Inc., was enjoined by the
Supreme Judicial Court of the Commonwealth of Massachusetts from the further prosecu-
tion of its business and on March 31, 1938 , pursuant to an act of the Commonwealth of
Massachusetts entitled "An Act Dissolving Certain Corporations ," approved March 29.
1938, and subject to the provisions of Sections 51, 52, and 56 of Chapter 155 of the General
Laws of the Commonwealth of Massachusetts , its corporate existence was terminated On
or about May 27, 1938, pursuant to Section 56 of the General Laws, the respondent
applied to the Commissioner of Corporations and Taxation of the Commonwealth of
Massachusetts for revival of its corporate existence Such application had not yet been
granted at the date of the hearing The stockholders however , have continued to carry
on its business since March 31, 1938.
2 Spelled in the complaint as Gavan
TRAWLER MARIS STELLA, INC. 417
Trawler Villanova, Inc.; F. J. O'Hara & Sons, Inc.; F. J. O'Hara
Trawling Company; Trawler Gemma, Inc.; John Chisholm Vessels
Company; John Chisholm Fisheries Company; Trawler Hekla, Inc.;
General Sea Foods Corporation; Portland Trawling Company (At-
lantic Coast Fisheries) ; Bay State Fishing Company; Booth Fish-
eries Corporation; Haskins Fish Company; Ocean Trawling Cor-
poration ; and R . O'Brien & Co., Inc., herein collectively called the
Companies, and requested an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the Act. On September 29,
1938, the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice, and acting pursuant to
Article III, Section 10 (c) (2), and Article II, Section 37 (b), of
said Rules and Regulations, further ordered that the representation
proceeding and the proceeding with respect to the alleged unfair
labor practices be consolidated for the purposes of hearing.3
On October 12, 1938, and on October 18, 1938, the Regional Di-
rector issued a notice of hearing with respect to the petition and a
notice of postponement of hearing, copies of which were duly served
upon the- Federated, the Companies, the A. C. A., and Commercial
Telegraphers Union of A. F. of L., herein called the C. T. U., a
labor organization claiming to represent employees directly affected
by the investigation.
Pursuant to notice, a consolidated hearing was held in Boston,
Massachusetts, on October, 31, November 1, 2, 3, 4, and 5, 1938, be-
fore Joseph L. Maguire, the Trial Examiner duly designated by the
Board. The Board, the Federated, the A. R. T. A., the C. T. U.,
the American Federation of Labor, herein called the A. F. of L., and
Atlantic Fishermen's Union, No. 21455, herein called the A. F. U.,
were represented by counsel or other representatives and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing
the A. F. U. filed a petition to intervene in the proceeding with re-
spect to the unfair labor practices. The motion was granted by the
Trial Examiner. During the hearing counsel representing the A. F.
of L., the A. F. U., and the C. T. U. moved that "the hearings be
dismissed" on the alleged ground that, during and because of his
absence from a portion of the hearing, evidence was introduced il-
s On November 2, 1938 , the Board ordered that the two instant cases be consolidated
with Matter of O'Hara Bros . Company, Inc and American Radio Telegraphists Association
of the C I 0 (Case No . I-C-940 ,) for all purposes. On February 28, 1939 , the Board
ordered the latter case severed and continued as a separate proceeding.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legally and improperly and the rights of the C. T. U. were thereby
prejudiced. The motion was denied. At the conclusion of the hear-
ing counsel for the Board moved to amend the complaint to conform
with the proof and to amend the date of the discharge as alleged in
the complaint from August 31, 1938, to August 30, 1938. Although
no objection was made, the Trial Examiner failed to rule on the
motion. It is hereby granted. During the course of the hearing
the Trial Examiner made several other rulings on motions and on
objections to the admission of evidence. The Board has reviewed, all
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Thereafter the Trial Examiner filed his Intermediate Report dated
January 3, 1939, copies of which were duly served upon the respond-
ent, the Federated, the A. C. A., the C. T. U., the A. F. of L., and
the A. F. U. The Trial Examiner found that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act, and recommended that the respondent
cease and desist therefrom and, affirmatively, offer full reinstate-
ment with back pay to Wrathall. Exceptions to the Intermediate
Report were filed by the respondent on January 25, 1939.
Pursuant to notice duly served upon the respondent; Edward H.
Cooley, secretary of the Federated; Grimur Hackonarson; Chester F.
Ross; Margaret G. Ross; Harry C. Ross; Joseph M. Gaven; Thomas
A. Norris; and representatives of the A. C. A.; the A. R. T. A.; the
C. T. U.; the A. F. U.; and the A. F. of L., a hearing for the purpose
of oral argument was held before the Board on March 7, 1939, in
Washington, D. C. Only the respondent appeared and participated
in the argument. The Board has considered the exceptions to the
Intermediate Report and in so far as they are inconsistent with
the findings, conclusions, and orders set forth below, finds no merit
in them.
Upon the entire record in the cases, the Board makes the fol-
lowing :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
A. The Federated and the Companies
Federated Fishing Boats of New England and New York, Inc.,4
a Massachusetts corporation, is an association composed of owners
or operators of "one or more boats , vessels or trawlers , registered in
' Prior to February 9, 1935, the Federated was known as Federated Fishing Boats of
America. For further discussion of its activities , see Section VI, infra.
TRAWLER MARIS STELLA, INC. 419
the States of New England or New York, for the purpose of engag-
ing in the commercial capture of Salt Water Fish." Trawlers owned
or operated by members of the Federated are engaged in the busi-
ness of catching groundfish on fishing banks located in the Atlantic
Ocean, approximately 100 to 800 miles from shore, and in the Gulf of
St. Lawrence and eastward. Fish so caught is sold principally in
Boston through the New England Fish Exchange on the Boston Fish
Pier and is ultimately shipped to destinations throughout the United
States. In 1937 approximately 318,000,000 pounds of fish, valued be-
tween $7,000,000 and $10,000,000, were landed at the Boston Fish Pier
and sold through the New England Fish Exchange, 90 per cent of
which came from the above fishing banks. About 80 per cent of such
fish is shipped from Massachusetts to other States. The following
tables show the approximate distribution and value of the products of
each of the Companies :
Company Amount of fish landed in1937 Selling price
Booth Fisheries Corporation________________________ Over 13,340,953 pounds____ Over $320,487.66.
John Burns Co. (Ocean Trawling Corporation) ------- Over 4,500,000 pounds ----_ Over $104,000 00.
John Chisholm Vessels Company (Trawler Cemma, Over 7,000,000 pounds----- Over $174,000 00.
Inc.).
General Seafoods Corporation (Bay State Fishing Over 87,588,166 pounds---_ Over $1,998,137.00.
Company) I
Haskins Fish Company 2---------------------------- Over 8,000,000 pounds ----- Over $200,000.00.
Trawler Hekla,Inc__________________________________ Not over 2,439,000 pounds- Not over $64,820.00.
Trawler Marls Stella, Inc___________________________ Over 2,900,000 pounds --___ Over $81,400 00
Massachusetts Trawling Co_________________________ Over 9,000,000 pounds -____ Over $202,000.00.
B. O'Brien & Co---------------------------------- Over 28,000,000 pounds---- Over $700.000.00.
O'Hara Bros. Company, Inc (O'Hara Vessels, Inc.) __ Over 1,500,000 pounds----- Over $30,000.00.
F. J. O'Hara & Sons, Inc.e.......................... Over 25,919,600 pounds---- Over $658,229.76.
Usen Trawling Company 4__________________________ Over 18,000,000 pounds---- Over $500,000.00.
ortland Trawling Company________________________
Amount landed from Janu-
ary to October 1938
Over 21,765,000 pounds----
Value of amount landed
from January to Oc-
tober 1.938
Over $465,300 00.
I General Sea Foods Corporation purchased the business and assets of Bay State Fishing Company on or
about October 20, 1938.
2 Owns the following subsidiaries, Triton Trawling Company and Neptune Trawling Company.
3 Owns the stock of the following subsidiaries, the assets of each of which consist of a single trawler- Trawl-
er Georgetown, Inc.; Trawler Notre Dame, Inc.; Trawler Fordham, Inc.; Trawler Villanova, Inc.; Trawler
Boston College Inc.; Trawler Holy Cross, Inc.; Trawler Jeanne D'Arc, Inc.
4 Owns the stock of the following subsidiaries, the assets of each of which consist of a single trawler: Trawl-
er Arlington, Inc.; Trawler Winchester, Inc.; Trawler Newton, Inc.; Trawler Brookline, Inc.; Trawler
Cambridge, Inc.
B. The contention of the A. F. U.
The A. F. U. contends that the fishermen engaged on the boats of
the Companies are joint entrepreneurs with the Companies and have
participatory rights as employers in the selection of radio operators
and other personnel . The A. F. U., in support of this contention,
points to the following custom in the industry , known as the "lay,"
under which fishermen are paid in proportion to the selling price of
the catch after various expenses are deducted.
When a trawler arrives at the Boston Fish Pier after a trip, the
fish which have been caught are sold at auction blocks on the Pier
169134-39-vol. 12-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by an auctioneer, who in some instances is the captain of the boat.
The fish are then unloaded, weighed, and delivered to stalls on the
pier occupied by the purchasers, who are members - of the New
England Fish Exchange, herein called the Exchange. The individ-
ual purchasers do not pay the sellers directly; instead, payment is
effected immediately through the facilities of the Exchange. Slips
indicating the amount of fish bought and the purchase price are
received from the purchasers and delivered to the Exchange office
on the Pier. After computing the total purchase price, the Exchange
deducts therefrom certain charges such as the wharfage fee, Ex-
change discount, use of scales, and service charge. The amount re-
maining is called the net stock from the Exchange. The expense of
wireless equipment and the wages of the radio operator, firemen,
engineers, and other personnel, except the fishermen, are deducted
and the remainder, called the net stock to be divided, is then appor-
tioned, 50 per cent being allocated as the trawler's share and 50
per cent as the crew's share. The captain is usually accorded a cer-
tain per cent of the catch, which is deducted from the trawler's share.
From the crew's share are deducted expenses for supplies, provi-
sions, and sundries. Formerly when a fishing trip was unsuccessful,
a sum of money, which was deducted later from the next profitable
trip, was advanced to the crew. At present, however, except in the
case of one company which has a special arrangement under a con-
tract with the A. F. U., each crew is guaranteed a minimum sum
in the event of an unprofitable trip and no deduction is made on the
next profitable trip. Thus, under the "lay" arrangement, the fisher-
men contend that they are entrepreneurs or employers, that they pay
one-half of the radio operators' wages, and that therefore they have
the right to participate in their selection.
It is apparent from the record, however, that members of the crews
are themselves employees and not employers. The boat owner hires
the captain, firemen, and radio operators, although in some instances
the captain might engage the operator for the owner. The captain
hires the crew, subject, however, to the approval of the owner. The
owner, as the employer, is responsible under the Jones Act 5 for the
payment of compensation to members of the crew injured while at
sea. The radio operator, except when at sea, is subject to the orders
and directions of the owner. Before sailing he receives orders from
the owner, which he executes while at sea under the authority of the
captain. The crew hires and discharges no one, although the A. F. U.
claimed that it was agreed in conference between the A. F. U. and
the Federated that the fishermen had the right to select radio oper-
ators and other personnel.
46 U. S. C. A. Sec. 688.
TRAWLER MARIS STELLA, INC. 421
Although the fishermen, through their representatives at the hear-
ing, contended that they were not employees, it is significant that the
A. F. U. filed a charge with the Board against the Federated in 1937.
Aaron Velleman, an A. F. of L. organizer who has been conducting
negotiations with the Federated on behalf of the A. F. U. since that
time, stated at the hearing that the fishermen are the employees and
the boat owners the employers within the meaning of the Act and
that for the purposes of the hearing he was representing the fisher-
men who are wage earners and the employees of the boat owners.
Thomas A. Norris, treasurer and general manager of the respondent,
testified that the discharge of David Wrathall, which is discussed
below, was the only occasion on which anyone other than the captain
or owner had caused the discharge of an employee.
We find that the fishermen herein involved are employees, not em-
ployers, within the meaning of the Act and that the "lay" settlement
is primarily a method used in determining the amount of wages to
which fishermen are entitled." It should be noted, however, that a
contrary finding would not relieve the respondent from his obligations
under the Act, nor in any manner affect our findings below with
respect to the unfair labor practices, except to make the fishermen
equally liable with the respondent for the commission of the unfair
labor practice.
We find that each of the Companies is engaged in trade, traffic,
transportation, and commerce among the several States, and that
the radio operators employed by each are directly engaged in such
trade, traffic, transportation, and commerce.
II. THE ORGANIZATIONS INVOLVED
American Communications Association is a labor organization affi-
liated with the Committee for Industrial Organization, admitting
to its membership communication employees in the marine, tele-
graph, telephone, broadcast, point-to-point radio .and cables, avia-
tion industries, and marine coastal stations. American Radio
Telegraphists Association, the marine division of the American
Communications Association, is a labor organization, admitting to
its membership radio operators employed on fishing boats.
Commercial Telegraphers Union, Marine Division, is a labor or-
ganization affiliated with the American Federation of Labor,
admitting to its membership radio operators employed on fishing
boats.
Atlantic Fishermen's Union, No. 21455, is a labor organization
affiliated with the American Federation of Labor. It admits to its
membership fishermen on the Atlantic Coast.
Cf. The Crusader, 6 Fed . Cases, No. 3 ,456; The Carrier Dove, 93 F. 978 , Id., 97 F. 111;
United States v. La/Un et al., 24 F. (2nd) 683.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE DISCHARGE OF DAVID WRATHALL
The complaint, as amended at the hearing, alleged that on or about
August 30, 1938, the respondent discharged and thereafter refused
to reinstate David Wrathall because of his membership in the A. R.
T. A. and that by said discharge and refusal to reinstate the respond-
ent thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. Wrat-
hall, a member of the A. R. T. A. since 1934, was employed as radio
operator on the Maris Stella from August 7, 1937, to August 30,
1938. It is admitted that he was a competent operator and that
his services were satisfactory to the respondent. It is further ad-
mitted that his employment was terminated solely because of his
membership in the A. R. T. A.
During 1938 both the A. R. T. A. and the C. T. U. were endeavor-
ing to organize the radio operators employed by members of the
Federated. On August 30, 1938, the A. F. U., to assist the mem-
bership campaign of the C. T. U., passed a resolution under which
its members resolved not to sail after September 30, 1938 , with radio
operators who were members of the A. R. T. A. On the same date,
August 30, 1938, however, the crew of the Maris Stella, who were
members of the A. F. U., refused to sail with Wrathall because he
was a member of the A. R. T. A. Norris, treasurer and general
manager of the respondent, thereupon told Wrathall that he would
have to go ashore. The latter left the ship, which sailed without a
radio operator aboard. On the following morning, Wrathall met
Norris at the fish pier. Norris asked him if he wished to return to
work on the Mans Stella. When Wrathall replied in the affirmative,
Norris said, "if we ever carry an operator the job is yours."
On September 7, 1938, Wrathall and representatives of the Board
and the A. R. T. A. met with Norris in his office. In response to a
request that Wrathall be reinstated, Norris replied that he could
not reinstate him because he was a member of the C. I. 0., with
whom the crew refused to sail . Thereafter, Edward H. Cooley,
secretary of the Federated, informed the A. R. T. A. that the boat
owners were not responsible for the discharge of A. R. T. A. radio
operators and that he was so advising all the owners. At the time
of the hearing Wrathall had not received other employment and
desired to be reinstated.
After the vessel had sailed on three trips without a radio operator
the captain requested that Norris hire one. Norris replied that he
desired to have nothing to do with the matter and that, if the cap-
tain required a radio operator , he could secure one himself. The
C. T. U. furnished an operator who sailed on the boat 's next trip.
It is apparent that the discharge of Wrathall constituted discrimi-
nation in regard to his hire and tenure of employment and discour-
TRAWLER MARIS STELLA, INC. 423
aged membership in the A. R. T. A. The discharge thus amounted to
an interference with, restraint, and coercion of, employees in the
exercise of the rights guaranteed in Section 7 of the Act. The
respondent urges that it was compelled to discharge Wrathall at the
insistence of the crew of the Maris Stella and that the only alterna-
tive was to discontinue fishing operations. The respondent was ob-
viously placed in an unenviable position; as the employer, however,
it was responsible for the discharge. The respondent's violation of
the Act was unmistakable.7
We find that the respondent, by discharging and refusing to rein-
state David Wrathall, discriminated in regard to his hire and tenure
of employment, thereby discouraging membership in the A. R. T. A.
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
We find that the respondent's conduct described above tends to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. We shall therefore order it to cease and desist there-
from. Since we have found that David Wrathall was discrimina-
torily discharged, we shall order the respondent to offer him reinstate-
ment without prejudice to his seniority and other rights and privi-
leges. We shall further order the respondent to make him whole
for any loss of pay he has suffered by reason of his discharge by
payment to him of a sum equal to the amount which he normally
would have earned as wages from the date of his discharge to the
date of the offer of reinstatement, less his net earnings 8 during said
7 See Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82,
4 N. L. R. B. 498; order affirmed in National Labor Relations Board v. Star Publishing
Company, 97 F. (2nd) 465, in which, under similar circumstances, the court said, "The
respondent further contends that it was necessary to make the transfer, and thus engage
in the unfair labor practice, because its business would otherwise be disrupted, and there-
fore, under all the facts, the transfer was excusable. We think, however, the act is
controlling. The act prohibits unfair labor practices in all cases. It permits no im-
munity because the employer may think that the exigencies of the moment require
infraction of the statute. In fact, nothing in the statute permits or justifies its violation
by the employer."
8 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent, which would not have been incurred but for his unlaw-
ful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440 Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period. The record shows that the radio operator, in addition to
monetary wages, receives from the respondent his maintenance on
shipboard. Accordingly, in determining the amount of back pay to
be awarded Wrathall, we shall order that the reasonable value of his
maintenance on shipboard be added to the amount of his monetary
compensation from the respondent.'
V. THE QUESTIONS CONCERNING REPRESENTATION
Both the A. R. T. A. and the C. T. U. claim to represent -a majority
of the radio operators employed by the Companies. The Federated
and its constituent Companies are desirous of engaging in collective
bargaining with respect to the radio operators, but do not know
which of the two labor organizations represents a majority of these
employees.
We find that a question has arisen concerning representation of the
radio operators employed by each of the Companies and that such
question tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE APPROPRIATE UNITS
The Federated and the A. R. T. A. claim that the radio operators
employed on all the trawlers owned and operated by the Companies
constitute a single appropriate bargaining unit. The C. T. U., on
the other hand, contends that radio operators employed by each of
the 13 Companies owning the trawlers comprise separate appropri-
ate units . The units which the C. T. U. claims are appropriate and
the number of trawlers represented in each unit are as follows :
Booth Fisheries Corporation (3 trawlers) ; John Chisholm Vessels
Company (1 trawler) ; General Seafoods Corporation (18 trawlers) ;
Haskins Fish Company (2 trawlers ) ; Trawler Hekla, Inc. (1 trawl-
er) ; Trawler Maris Stella, Inc. (1 trawler) ; Massachusetts Trawl-
ing Co. (3 trawlers) ; R. O'Brien & Co. (7 trawlers) ; Ocean
Trawling Corporation (1 trawler) ; O'Hara Bros. Company, Inc. (2
trawlers) ; F. J. O'Hara & Sons, Inc. (7 trawlers) ; Portland Trawl-
ing Company (5 trawlers) ; Usen Trawling Company ( 5 trawlers).
In support of its contention for an industry-wide unit, the A. R.
T. A. points to a community of interest among the operators em-
9Matter of Peninsular and Occidental Steamship Company and National Maritime Union
of America, 5 N. L. R. B. 959; and Matter of Waterman Steamship Corporation and
National Maritime Union of America, Engine Division, Mobile Branch, Mobile. Alabama.
7 N. L R B. 237.
TRAWLER MARIS STELLA, INC. 425
ployed by all the Companies. Wages and working conditions are
uniform and there is a considerable interchange of operators among
the Companies. It therefore urges that a single unit composed of
all the operators is most desirable and would most effectively insure
to these employees the benefit of their right to self-organization and
collective bargaining under the Act. The A. R. T. A. has negotiated
with all the Companies through the Federated since October 1937,
and although no contract has been concluded and the Federated
has not been delegated the power to bind all its members, both the
Federated and the A. R. T. A. claim that collective bargaining on an
industry-wide scale has been successful. The efficacy of collective
bargaining on behalf of the single unit, according to the A. R. T. A.,
is shown by a contract negotiated with the Federated by the Inland
Boatmen's Union covering the firemen employed on the trawlers here
involved, and by successful collective bargaining carried on with
associations of ship owners on the Pacific Coast for a unit broader
than the single employer unit. Although it is apparent from all the
evidence that a single unit might be appropriate, under the circum-
stances of this case we are not authorized to make such a
determination.
The Federated was organized according to its bylaws, "to foster
and promote by educational and social methods the industrial and
business interests of its members and the interests of the fishing
business in general, to provide quarters for social and business meet-
ings of its members, to encourage proper legislation relating to the
fishing industry and to encourage cooperative effort among its mem-
bers." In furtherance of its purposes, the Federated has established
a labor committee with authority to negotiate collective bargaining
agreements with labor organizations. The labor committee, how-
ever, has not been delegated the power to bind any or all of the Com-
panies and the individual Companies retain to themselves the privi-
lege of either accepting or rejecting the fruits of the negotiations.
Thus each of the Companies exercises direct control over the essential
employer functions. Consequently within the limitations of the Act,
we are unable to fix a single unit embracing the radio operators
employed by all the Companies.1° We shall therefore find that sepa-
rate units consisting of radio operators of each of the Companies,
with the exceptions noted below, are appropriate for the purposes of
collective bargaining.
10 See Matter of F. E. Booth & Company at at. and Monterey Bay Area Fish Workers
Union No 23, 10 N . L R B. 1491; and Matter of Aluminum Lane, et at and Interna-
tional Longshoremen and Warehousemen 's Union, 8 N L R B 1325 ; and cf. Matter of
Shipowners Association of the Pacific Coast et at and International Longshoremen's and
Warehousemen's Union, District No. 1, 7 N. L R. B. 1002; Matter of Monon Stone Com-
pany et at . and Quaiiy Workers International Union of North America, 10 N. L R. B
64; Mattel of Admiar Rubber Company at at . and American Federation of Labor on behalf
of Employees of the Company , 9 N. L. B . R. 407.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 13 separate units contended for by the C. T. U. include the
radio operators of four Companies : John Chisholm Vessels Company,
Trawler Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling
Corporation, each of which employs only 1 operator. With respect
to these companies we adopt our finding in Matter of Luckenbach
Steamship Company, Inc., et al.,11 and in Matter of Metro-Golciwyn-
Mayer Studios, and Motion Picture Producers Assn., et al.12 "The
National Labor Relations Act creates the duty of employers to
bargain collectively. But the principle of collective bargaining pre-
supposes that there is more than one eligible person who desires to
bargain. The Act therefore does not empower the Board to certify
where only one employee is involved. This conclusion does not mean
that a single employee may not designate a representative to act for
him; he had such a right without the Act, and the Act in no way
limits the right. By the same token, the conclusion in no way limits
the protection which the Act otherwise gives such an employee."
The radio operators employed by those four Companies, therefore,
cannot be considered as constituting separate appropriate units. The
petition for investigation and certification of representatives will
accordingly be dismissed in so far as it relates to the employees of the
above four Companies.
We find that radio operators employed by Booth Fisheries Corpora-
tion, General Seafoods Corporation, Haskins Fish Company, Massa-
chusetts Trawling Co., R. O'Brien & Co., O'Hara Bros. Company,
Inc., F. J. O'Hara & Sons, Inc., Portland Trawling Company, and
Usen Trawling Company, respectively, constitute separate units ap-
propriate for the purposes of collective bargaining and that said units
will insure to these employees the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
VII. THE DETERMINATION OF REPRESENTATIVES
As a result of agreements reached at the hearing between the
parties it was determined that 52 radio operators were employed on
trawlers by the 9 Companies during October 1938. As proof of its
claim to represent the employees in the above units, the A. R. T. A.
introduced in evidence 58 cards signed by radio operators between
April and May 1938 and authorizing the A. R. T. A. to represent them
for the purposes of collective bargaining. In addition the A. R.
T. A. produced for inspection its books and records which showed
n Matters of Luckenbach Steamship Company, Inc, et al . and Gatemen, Watchmen and
Miscellaneous Waterfront Workers Union, Local 33-12§; International Longshoremen's
Association, 2 N L. R. B. 181, at p. 193.
12
Matter of Metro -Goldwyn-Mayer Studios, and Motion Picture Producers Assn, et al.
and Screen Writers' Guild, Inc., 7 N. L R . B 662 and 8 N L. R B. 858.
TRAWLER MARIS STELLA, INC. 427
that in October 1938 , it represented 49 of the employees in the ap-
propriate units , 41 of whom were members in good standing. The
q. T. U., on the other hand, introduced in evidence the petition of
13 radio operators , who between January and October 1938 desig-
nated the C. T. U. as their collective bargaining representative. The-
radio operators and the union memberships thereof are distributed
among the appropriate units as follows :
Company
Number in
appropriate
unit
Number
who signed
A. R T. A.
cards
Number
who signed
C. T. U.
petitions
Number
reesented
,Tyr A. R.
T. A. in
October
1938
Booth Fisheries Corporation--------------------------- 3 2 2
General Seafoods Corporation-------------------------- 18 16 17 2
Haskins Fish Company -------------------------------- 2 2 2 ------------
Massachusetts Trawling Cc---------------------------- 3 2 3
R. O'Brien & Cc--------------------------------------- 7 7 7 a
O'Hara Bros. Company, Inc--------------------------- 2 1 1
F. J. O'Hara & Sons, Inc------------------------------ 7 5 6
Portland Trawling Company-------------------------- 5 4 5 ------------
Usen Trawling Company------------------------------ 5 4 6
In addition, Louis J. Kleinklaus, general secretary-treasurer of the
marine division of the C. T. U., testified that the C. T. U. had in its
possession 21 similar designations, which, because of the intense rivalry
between the labor organizations, he refused to produce. The evidence
in the record shows that some of the operators are members of both
the C. T. U. and the A. R. T. A. In view of the duplications of mem-
bership and the incomplete proof of membership in the C. T. U_, it is
impossible to determine precisely the representative of the majority
of the radio operators in any one of the appropriate units. We there-
fore find that elections by secret ballot are necessary to resolve the
questions concerning representation which have arisen.
VHI. THE CONDUCT OF THE ELECTIONS
The A. R. T. A. contended at the hearing that if the Board should
order elections eligibility to vote should be determined upon the basis
of the pay rolls of October 15, 1938. The C. T. U., on the other hand,
claimed that all radio operators employed on the date of the elections
should be eligible to vote. Inasmuch as radio operators at times trans-
fer from boat to boat and since the number of vessels in active use
may have changed since October, the eligibility date sought by the
A. R. T. A. is too remote to furnish a satisfactory standard for deter-
mining such eligibility. We are of the opinion that a more recent
eligibility date will more accurately reflect the desires of the employees
involved. The record discloses that the peak period in the industry
extends approximately from October to April. We shall therefore
direct that elections be held among the radio operators within the ap-
428 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
propriate units who were employed by the nine Companies during
the pay-roll period next preceding March 1, 1939.
Charges involving the discriminatory discharge of radio operators
employed by some of the Companies herein have been filed with the
Board. Should we hereafter find that such operators were discharged
as a result of unfair labor practices their employee status would relate
back to the dates of their discharge. In order to provide for such
contingency, the ballots of radio operators who have filed charges or
on whose behalf charges have been filed prior to the dates of the elec-
tions shall be segregated and remain unopened. Similarly the ballots
of radio operators who have replaced the above-mentioned employees
shall be segregated and remain unopened. Thereafter whether the
ballots of either the discharged operators or the operators who re-
placed them shall be counted will depend upon our disposition of the
alleged unfair labor practices and upon the necessity of counting such
ballots for the determination of any of the elections herein. Under
the above circumstances, therefore, if we find that the discharged
operators suffered discrimination as a result of unfair labor practices,
the ballots of such employees shall be counted. On the other hand,
should the allegations of the unfair labor practices with respect to the
discharged employees be dismissed, the ballots of the employees who
replaced them shall be counted.13
Upon the basis of the above findings of fact and upon the entire
record in the cases, the Board makes the following:
CONCLUSIONS OF LAW
1. American Communications Association ; American Radio Teleg-
raphists Association; Commercial Telegraphers Union, Marine Divi-
sion; and Atlantic Fishermen's Union, No. 21455, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of David Wrathall, thereby discouraging membership in the
American Radio-Telegraphists Association, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
u Matter of Fleischer Studios, Inc. and Commercial Artists & Designers Union-
American Federation of Labor, 3 N. L. R. B. 207.
TRAWLER MARIS STELLA, INC. 429
5. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Booth Fisheries Corporation, General Sea-
foods Corporation, Haskins Fish Company, Massachusetts Trawling
Co., R. O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara
& Sons, Inc., Portland Trawling Company, and Usen Trawling Com-
pany, respectively, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
6. The radio operators employed by each of the above-named com-
panies respectively, constitute separate units appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the Act.
7. No question affecting commerce has arisen concerning the repre-
sentation of employees of John Chisholm Vessels Company, Trawler
Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling Corpora-
tion, respectively, within the meaning of Section 9 (c) 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,
Trawler Maris Stella, Inc., and Margaret G. Ross, Chester F. Ross,
Harry C. Ross, Joseph M. Gaven, and Grimur Hackonarson, stock-
holders of said Trawler Mans Stella, Inc., and others, individually,
and as an informal association and partnership under the style and
firm name of Trawler Maris Stella, Inc., or other style and firm name,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Radio Telegraphists
Association or any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment because of membership
or activity in American Radio Telegraphists Association or any other
labor organization of its employees;
(b) In any other manner interfering with, restraining, and coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer David Wrathall immediate and full reinstatement to his
former position without prejudice to his seniority and other rights
and privileges;
(b) Make whole David Wrathall for any loss of pay he has suf-
fered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of money
equal to that which he would normally have earned as wages, in-
cluding therein the reasonable value of his maintenance on shipboard,
during the period from the date of such discrimination against him
to the date of the offer of reinstatement, less his net earnings during
said period; deducting, however, from the amount otherwise due him,
monies received by him during said period for work performed upon
Federal, State, county, municipal, or other work-relief projects, and
pay over the amount, so deducted, to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or gov-
ernments which supplied the funds for said work-relief projects;
(c) Post immediately notices to its employees in conspicuous places
on its trawler and maintain such notices for a period of at least sixty
(60) consecutive days from the date of posting, stating that the re-
spondent will cease and desist in the manner set forth in paragraphs
1 (a) and (b), and that it will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor-Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Booth Fisheries Corporation, General Seafoods Corporation,
Haskins Fish Company, Massachusetts Trawling Co., R. O'Brien &
Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons, Inc., Port-
land Trawling Company, and Usen Trawling Company, separate
elections by secret ballot shall be conducted as soon as convenient and
beginning as promptly as is practicable after the date of this Direc-
tion of Elections, under the direction and supervision of the Regional
Director for the First Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III,, Section
9, of said Rules and Regulations, among the radio operators em-
TRAWLER MARIS STELLA, INC. 431
ployed by Booth Fisheries Corporation, General Seafoods Corpora-
tion, Haskins Fish Company, Massachusetts Trawling Co., R.
O'Brien & Co., O'Hara Bros. Company, Inc., F. J. O'Hara & Sons,
Inc., Portland Trawling Company, and Usen Trawling Company,
during the pay-roll period next preceding March 1, 1939, and subject
to the provisions of Section VIII, above, excluding those operators
who have since quit or have been discharged for cause to determine
whether they desire to be represented by American Radio Teleg-
raphists Association, affiliated with the Committee for Industrial
Organization, or by Commercial Telegraphers Union, Marine Di-
vision, affiliated with the American Federation of Labor, for the
purposes of collective bargaining, or by neither.
ORDER DISMISSING PETITION
IT IS HEREBY ORDERED that the petition for investigation and cer-
tification of representatives of radio operators filed by American
Radio Telegraphists Association be, and it hereby is, dismissed in
so far as it relates to John Chisholm Vessels Company, Trawler
Hekla, Inc., Trawler Maris Stella, Inc., and Ocean Trawling Cor-
poration.