United Dredging Co.

National Labor Relations Board - Board Decisions

Mar 31, 1941

30 N.L.R.B. 739 (N.L.R.B. 1941)

In the Matter of UNITED DREDGING COMPANY, NEW ORLEANS, LOUISI-
ANA and INLAND BOATMEN'S DIVISION, NATIONAL MARITIME UNION,
GULF DISTRICT) AFFILIATED WITII THE C. I. O.
Case No. C-1 !33.Decided March 31, 1911
Jurisdiction : dredging industry
Unfair Labor Practices -
In Genci al: responsibility of, employer for activities of supervisory employees
notwithstanding employer's contention that they were acting in a personal
and not an official capacity, where they represented the management in the
eyes of the employees and the employer took no steps to disavow their activ-
ities or to stop their repeated violations of the Act.
In_ terference, Restraint, and Coercion- anti-union statements ; interrogation
concerning union membership; threatening employees with discharge because
of their affiliation with the union.
Interference with receipt and distribution of union literature aboard
dredge where men worked and lived constitutes a violation of Section 8 (1).
_Dtscrimination: discharges' because of employees' affiliation with and activity
in the union ; discharges of employees because of their affiliation with the
union and their concerted refusal to work following employer's discriminatory
discharge of their fellow employees ; refusal to reinstate unfair labor prac-
tice strikers and to displace employees hired after strike-failure of employees
to make individual applications for reinstatement, held justified ; employees
who struck and remained on board dredge held within the protection of Sec-
tion 8 (3) where their conduct was lawful and there was no seizure, retention,
or damage to employer's property as a result of the strike.
Collective Bargaining: majority established by membership in the union.
Mass discharge of union members for affiliation with union, following
request for collective bargaining constitutes a refusal to bargain within the
meaning of the Act
Remedial Orders : reinstatement and back pay ordered, including dismissal of
newly hired employees if necessary ; back pay but no reinstatement ordered
as to employees who refused employer's offer of reinstatement ; employee
found not to have been discriminated against placed upon a preferential list.
Employer ordered to cease and desist from interfering with employees'
receipt through mail of union literature aboard dredge.
Mr. Samuel-Lang, for the Board. ,
Deutsch ( Kerrigan, by Mr. Eberhard P. Deutsch, Mr. Alfred K.
Hagedorn, and Miss Marian Mayer, of New Orleans, La., for the
respondent. -
Mr. V. C. Carter, of New Orleans, La., Mr. F. Bruno, of Memphis,
Tenn., Mr. R. E. Baldridge, of Denham Springs, La., Mr. Thomas
30 N. L. R. B., No. 118
4401 35-42-Vol 30--48
739
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sherlock, of Vicksburg, Miss., and Mr. William L. Standard, by
Mr. Max Lustig, of New York City, for the Union.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Inland Boatmen's
-Division, National Maritime Union, Gulf District, affiliated with
the C. I. 0., herein called the Union,' the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Fifteenth Region, (New Orleans, Louisiana), issued its complaint,
dated May 9, 1939, against United Dredging Company, New Orleans,
Louisiana, herein called the respondent, alleging that the respondent
had engaged and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. The complaint and accompanying notice
of hearing were duly served upon the respondent and the Union.
Concerning the unfair labor practices, the complaint, as amended
at the hearing, alleged, in substalice, (1) that the respondent, on or
about October 3, 1938, discriminatorily terminated the employment
of three named employees because of their affiliation with, and
assistance to, the Union; (2) that in protest against the above-ter-
minations, certain of the respondent's employees. on or about October
3, 1938, at or about 8 a. m. ceased and refused to work, and that
said employees resumed work at or. about 2 p. m.., upon reinstatement
of the three employees; (3) that the respondent, on or about October
9, 1938, discriminatorily discharged and/or has since failed or refused
to reinstate or reemploy 45 named employees 2 for the reason that
they joined or assisted the Union or engaged in concerted activities
with other employees for the purposes of collective bargaining or
other mutual aid or protection; (4) that the non-supervisory em-
i The name of the Union was incorrectly designated in the pleadings ' as "Inland Boat-
men's Union ." The name as set forth above was supplied at the hearing by amendment of
the pleadings.
2 The names of these employees follow : Robert Angelo , R E. Baldridge , Joe E Brooks,
Erwin Brown , Estell Burgess , John Burgess, Bruce R. Campbell , John Campbell, J. H.
Cooper, M . J. Davis, Milton Dean, Artice Ellis, Claude Ellis, Woodrow Fleming, B L, Frank-
lin, Angelo Fuller, Mack Guice , B. D. Ilarvill , Horace Henry, Bert Holloway, B. F. Holmes,
Ernest Hopkins , Jesse J. Johnson , Herman Ladner , Delmar Lee , Grady Leverette, Shelby
Lowry, W. M. McCarty , Marvin McCool , Jeff Marsh , Otho Milstead , John Morgan, A. J.
Newton, Earl V. Peterson , J. W. (Wright) Powers, Richard Reel , Forman Rollins , Thomas
Sherlock, R . L. Sibley, Willard Sibley , Elmer Smith , Eugene Smith , Emmitt Trawick,
W. W. Van Devender , and Lonnie Ware.
UNITED' DREDGING 'COMPANY .'741
ployees employed on board or in connection with or to assist in the
maintenance or operation of the respondent's dredge, the Lake Fithian,
excluding captain, deck captain, engineers, levermen, foremen, sub-
foremen, other supervisory employees, and clerical employees, consti-
tute a unit appropriate for the purposes of collective bargaining; (5)
that on or about and since September 28,1938, the Union was, has been,
and is the representative for purposes of collective bargaining of a
majority of the employees in said bargaining unit; (6) that the
respondent, on or -about and since September 30, 1938, has refused
and does now refuse to meet or bargain collectively with the Union;
and (7) that the respondent, by the foregoing - nd other acts, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On May 15, 1939, the respondent filed an answer, which was
amended at the hearing.' In its answer, as amended, the respondent,
in substance, admitted certain allegations as to the nature of its
business, denied that it had engaged in or was engaging in the
alleged unfair labor practices, and advanced certain affirmative de-
fenses, which are set forth and discussed hereinafter.
Pursuant to notice, a hearing was held. in Vicksburg, Mississippi,
from May 25 to June 17 and from June 26 to July 10, 1939, inclusive,
before Charles E. Persons, the Trial Examiner duly designated by
the Board. The Board and the respondent were represented by
counsel; the Union, by its duly authorized representatives; all par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded to all parties.
At the commencement of the hearing, counsel for the Board moved
to dismiss the complaint without prejudice in so far as it' alleged
that the respondent discriminatorily terminated the employment of
three employees, Clifton Cobb, E. G. Hall, and W. B. Johnson. The
Trial Examiner granted this motion. At the close of the Board's
case counsel for the respondent moved that the complaint be dis-
missed in so far as it "seeks affirmative relief" for 13 named com-
plainants 3 who had not been produced by the Board as -witnesses
subject to cross-examination in behalf of the respondent. Upon
denial by the Trial' Examiner of this motion, counsel for the respond-
ent moved in the alternative that he be permitted to, examine as
adverse witnesses those of the 13 complainants in question who were
present at the hearing -or otherwise available and that he be per-
mitted to examine as ' adverse witnesses by deposition after the close
3 Erwin Brown , Milton Dean, Artice Ellis , Claude Ellis, Woodrow Fleming , Angelo Fuller,
Horace Hemy, Bert Holloway, Delmar Lee, Jeff Marsh, Otho Milstead, Earl V. Peterson,
and Willard Sibley.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing those of such complainants not present or available
during the hearing.' The Trial Examiner ruled- on this alternative
motion as follows : "First, that the fact that these thirteen men are
named in the complaint is not conclusive evidence that they are,
adverse, or, in fact, adverse witnesses ; second, that leading questions
in, the case of these thirteen witnesses, if and when called are to be
avoided on the first examination until their independent recollection -
of matters is exhausted; third, if the examination shows these wit-
nesses to be in fact adverse that respondent will not be bound beyond
the extent to which he would be bound by their testimony if called
liy the Board. If the examination shows them to be in fact adverse
witnesses, they may be treated as though called ty the Board."
Under this ruling counsel for the respondent declined to examine
these complainants. The record sufficiently discloses the circum-
stances under which the employment of these complainants was
terminated. We find that-the respondent was afforded adequate op-
portunity to examine and cross-examine these complainants and that
it was not deprived of an opportunity to present whatever defense
it wished with respect to their cases. At the close of the hearing
counsel for the Board and counsel for the respondent moved to con-
form the-pleadings to the proof as regards formal matters such
as dates, names, and,similar matters. The Trial Examiner granted
these motions.
Numerous other rulings were made by the Trial Examiner dur-
iug the course of the hearing on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings of the Trial Examiner are hereby affirmed.
On November 25, 1939, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. 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), (3), and (5) and
Section 2 (6) and* (7) of the Act. He recommended that the re-
spondent cease and desist from its unfair labor practices; that it
reinstate all the complainants except'two, whom the Trial Examiner
found had already been reinstated; that it make whole all the com-
plainants for any losses of pay incurred by reason of the respondent's
discrimination against them; and that the respondent, upon request,
bargain collectively with the Union as the exclusive representative
of its employees in a unit\found by the Trial Examiner to be ap-
propriate for the purposes,of collective bargaining.
4 All the complainants named in footnote 3 were present at the hearing under subpoena
by the respondent with the exception of Holloway and Marsh.
UNITED DREDGING COMPANY 743
On January 20, 1940, the respondent filed its exceptions to the
Intermediate Report, and on May 6, 1940, its brief in support thereof.
The Union likewise filed a brief, on March 25, 1940.
Pursuant to request therefor by the respondent and notice thereof
duly served upon all parties, a hearing was held before the Board
in Washington, D. C., on June 27,1940, for the purpose of oral argu-
ment. Counsel for the respondent and the Union appeared and par-
ticipated therein.
The Board has considered the exceptions to the Intermediate Re-
port and, except\as they are consistent with the findings, conclusions,
and order set forth below, finds no merit in them.
. Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation having its principal office
and place of business in New York City and maintaining a business
office in New Orleans, Louisiana. It is one of the largest dredging
companies in the United States. It is engaged in the maintenance
and operation of dredging vessels and auxiliary craft and equipment
and in the improvement of harbors and channels in the United States
and in foreign countries, the improvement of which facilitates trans-
portation and commerce among the several States of the United
States and between the United States and foreign countries.
The instant case is directly concerned only with the operations of
the respondent's dredge Lake Fithian and its auxiliary equipment,6
which the respondent charters, maintains, operates, and leases upon
a contract 'basis, to the Corps of" Engineers, Second New Orleans
District, United States Army. The Lake Fithian 'and its auxiliary
equipment was, during the period here involved, engaged in the
dredging and removal of mud and other obstacles to, navigation from
the bottom and banks of the Mississippi River,, from a point above
Greenville, Mississippi, to a point below St. Joseph, Louisiana, for
the purpose of improving and aiding navigation and the transpor-
tation of freight and general cargo in commerce among the several
States of the United States and between the States of the United
States and foreign countries. In the conduct of its -business the re-
spondent moves parts of its equipment, including the Lake Fithian,
aThe Lake,Fxth4an's auxiliary equipment consists of two Diesel tugs, the Janet and the
California, two motor boats, fuel barges, equipment barges, a derrick barge, a dragline
barge, skiffs , and pontoons.
744 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
from one State of the United States to and through various other
States-and/or foreign countries.6
The respondent admits and we find that its operations, described
above, including those of the Lake Fithian, are necessary and essen-
tial to the safe transportation of freight and general cargo among
the several States of the United States and between the States of the
United States and foreign countries.
H. THE ORGANIZATION INVOLVED
Inland Boatmen's, Division, National Maritime Union, Gulf Dis-
trict, is a labor organization, affiliated'with the Congress, of Indus-
trial Organizations, herein called the C. I. 0., admitting to its mem-
bership persons employed on board or in connection with the opera-
tions of the-Lake Fithian, except supervisory employees.,
III. THE RESPONDENT'S SUPERVISORY STAFF
During the latter part of September and the first part of Octo-
ber 1938, the period here principally involved, the respondent's Lake
Fithian pay roll listed approximately 94 employees in the following
classifications : a superintendent, a paymaster, a deck captain, 3 lever-
men and an extra-leverman, a chief mate and 4 first mates, a deck
,oiler, a chief engineer, first, second, and third engineers, a handy-
man, 4 oilers, 4 firemen, a machinist and a helper, a welder and a
helper, a blacksmith and a helper, a carpenter, an electrician, 14
deckhands, 4 launch, captains, 4 launch mates, a ,motorboat operator,
a steward, first and second cooks, 2 waiters, a galley helper, a janitor,
a shore foreman and 4 assistant foremen, and '24 shore laborers.'
The Union contends that employees in all the classifications dis-
cussed below are- supervisory employees and are therefore ineligible
'The Lake Fithian continually moves from one locality to another. For such move-
ments, it has no means of self-propulsion but must be towed by other vessels, usually gov-
ernment towboats . In the course of its operations in one locality , however, the Lake
Fithian moves from 100 to 2,000 or more feet per day by means of the manipulation of
certain cables and spuds.
T The superintendent , paymaster , deck captain, and chief engineer worked normally dur-
ing-the 8-hour day watch from 8 a. m. to 4 p in . The levermen, first mates, first, second,
and third engineers , oilers, firemen , and deckhands , worked 8-hour watches, beginning at
midnight, and changed watches on Saturdays , so that they worked around the clock in the
course of each 3-week period . The steward worked normally only during the day watch
The too cooks each worked a 24-hour stand-by watch, that is, they attended to the meals
during a 24-hour period , resting between meals, and having 24 hours off after each such
watch. The mess boys worked irregular watches, being on duty just before, during, and
after meals , resting between meals, and having alternate days off. The mechanics and their
helpers , as well as the deck oiler , normally worked only on the day watch. The tugboat
crews worked 24-hour stand -by watches. The day shore crew, comprising a large majority
of the shore employees , worked the 8-hour'shift from 8'a. m. to 4 p in. There were two
night shift shore crews which worked alternate nights from 4 p. in. to 8 a. m . They thus
worked for 16 hours and then had 32 hours off.
I
UNITED DREDGING COMPANY 745
to membership in the Unions The respondent does not deny, except
as indicated below, that employees 'in these classifications are super-
visory employees.e Paymaster J. J. McGrath admitted at the hear-
ing that the employees listed on the pay roll in the following
classifications are "supervisory officials" : superintendent, paymaster,
deck captain, leverman, extra leverman, chief mate, and first mate.
We shall discuss seriatim the various categories of employees claimed
by the Union to be supervisory.
Superintendent (commonly known as captain), deck captain, pay-
master (also known as purser and timekeeper), chief engineer, and
shore foreman. The employees in these positions had the authority
to hire and discharge employees.
Leverman. Employees in this position were immediately subordi-
nate to the deck captain, from-whom they took orders. They handled
the controls in the lever room, operated the swing and pumping of
the dredge, and were directly responsible for the volume of dredging
accomplished. They were in charge of and exercised supervision
over their immediate watches, each of which consisted of a mate and
four deck hands. They generally gave orders to the mates who
transmitted them to the deck hands. Frequently the leverman gave
orders directly to the deck hands. The deck captain regularly con-
sulted the levermen regarding the performance of employees under
their supervision. In the absence of the captain and the deck cap-
tain, the levermen were in charge of the entire dredge and were
responsible for its operations. Employees considered the levermen to
be a "boss". In addition to their wages of 91 cents per hour, the
levermen received a bonus determined' by the amount of time the
dredge was operated.
Extra leverman. The employee in this position took a leverman's
watch on Sautrdays when watches changed, and at other times re-
lieved a leverman in case of illness or absence for other reasons.
During the remainder of his time, the extra leverman acted as chief
mate about the dredge.
Chief mate. The employee in this position was the derrick barge
operator, and he ordinarily had two deck hands under his super-
vision, who considered him to be their "boss". The deck captain, in
his testimony, referred to the chief mate as the "derrick foreman."
In addition to his salary, which was $175 per month, the chief mate
received the bonus based on the amount of time the dredge was
operated.
8 The Union also claims that such employees should be excluded from the unit appropriate
for the purposes of collective bargaining. See Section IV C 1, infra.
e At the oral argument counsel for the respondent stated that "The record shows that
there were some 20 of these supervisory officers, that is, engineer officers, deck officers,
and so on." `
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First mate. The employees in this position took orders from their
immediate superiors, the levermen, and were responsible for the exe-
cution of such orders by the deck hands, over whom the first mates
-had immediate supervision. The deck hands considered the first
mate to be their "boss." The deck captain, in his testimony, referred
to him as the "head deck hand" and "head of his gang," and testified
that if'he, the deck captain, wanted something done he would tell the
leverman or the first mate. During the period following the strike
of October 3, discussed in Section IV B, infra, the superintendent
or captain consulted, with or was consulted by the first mates regard-
ing the alleged misconduct of employees. In addition to'their salary
of $135 per month, the first mates received the bonus referred to above.
First, second, and third engineers. As noted above, each of these
employees worked an 8-hour watch and changed watches weekly.
The first engineer, in the absence of his immediate superior, the chief
engineer, who worked only on the day watch, 'was in charge of the
engine department and had supervision over the employees therein.
When the first engineer was off duty, either, of the other engineers
on duty was in charge, of the engine department. The first engineer
testified that if he saw fit to discharge an employee he would do so.'
The chief engineer consulted with the first, second, and third en-
gineers regarding employees to be selected for lay-off. In addition
to their wages of 91, 84, and 80 cents per hour, respectively, the
first, second, and third engineers received the bonus referred to above.
Steward. The steward was 'in charge of the galley and dining
room, supervised the work of the five employees in his department,
and was considered by them to be their "boss" or "foreman." He
received a salary of $180 per month.
Assistant foreman on shore. Employees in this 'classification were
in charge of gangs of about five or more shore laborers, whose work
they supervised and to whom they gave orders. ' The assistant fore-'
men, did physical work when necessary. They were considered, by
employees under them to be foremen. assistant foremen, or subfore-
men. With regard to the hiring of shore laborers the deck captain
testified that in his absence "Some shore foreman` could put a man
on there . . . The shore foremen got that liberty." Assistant fore-
men would register complaints regarding employees with,the head
shore foreman. At least one assistant foreman, on a number of occa-
sions, recommended that an employee under his supervision be laid
off. One employee who was listed on the pay roll as an assistant
foreman generally operated the dragline machinery on the dragline
barge and had one employee under his supervision. However, at
times he was placed in charge of a gang on shore, and he received a
salary of $175 per month, which was Greater than the salaries received
by the other assistant foremen.
UNITED DREDGING COMPANY 747
Launch captain. Each of the two tugs, the Janet and the Cali-
fornia, which were operated by the Company in connection with the
work of the dredge, had two alternating crews each consisting of a
captain and a launch mate. It appears that one of the captains on
each tug is the master of the tug and the superior of the other cap-
tain. The masters of the tugs received salaries of $224 per month,
whereas the other captains received $189 per month. The launch
mates worked under the supervision of the captains.
We find that the employees in the • following classifications are
supervisory employees : superintendent, deck captain, paymaster, chief
engineer, shore foreman, leverman, extra leverman, chief mate, first
mate, first, second, and third engineers, steward, assistant shore
foreman, master of the tug Janet and master of the tug California.
Handyman. This employee *as also known as extra or fourth
engineer. He was a general utility man in the engine department,
taking an engineer's watch every Saturday when watches changed,
and at other times relieving an engineer, fireman, or oiler in the
engine department. Unlike the engineers, the, handyman did' not
receive the bonus based on the dredge's operations and received a
wage of but 65 cents per hour. , -
Deck oiler. This employee had no employees under his supervision
and his duties consisted only of oiling the winding gear. Although
at one time, according to testimony of the paymaster, the deck oiler
was classified as a second mate and was considered "sort of semi-
supervisory," the respondent apparently now contends that he is not
it supervisory employee.
Machinist, blacksmith, welder, carpenter, and electrician. The re-
spondent apparently contends that these are not supervisory em-
ployee's. The blacksmith and welder each had a regular helper.
The electrician' worked alone most of the time, although at times- he
had a helper. The carpenter had no regular helper, but at times
had two or three helpers.
Motor boat operator. This employee had no employees under his
supervision and his duties consisted solely of operating-a motor boat.
The respondent apparently contends that he is not a supervisory
employee.
We find that the employees in the following classifications are not
supervisory employees : captains of the tugs California and Janet
other than captains who are masters of said tugs, handyman, deck
oiler, machinist, blacksmith, welder, carpenter, electrician, and motor
boat operator. -
748 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
Iv. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Interference with receipt and distribution of union literature
All employees working on the Lake Fithian were entitled to quar-
ters aboard the dredge by virtue of their, employment. Although
some dredge employees did not live aboard, many did, including
deck hand Robert Baldridge. Dredge employees also had the right
to receive mail aboard the dredge. The respondent rented a post
office box at Vicksburg, Mississippi, and all mail sent to employees
living aboard the dredge arrived at this box and was normally ob-
tained there and d -,livered by Paymaster McGrath to a box in the
dining room of the dredge maintained for the benefit of the
employees.
Prior to September 1938 the respondent 's employees were unor-
ganized. On September 8 Baldridge joined the Union and discussed
with W. C. Carter, an organizer for the Union, the possibilities of
organizing the respondent's' employees. Carter promised to send
Baldridge union literature. On September 15 Baldridge received
aboard the dredge through the mail a number of. weekly bulletins
issued by the Union. The package thus received bore no return
address or other mark by which the character of its contents could
be determined without opening. Although Baldridge showed these
bulletins to a number of other employees in his living quarters, he
did not distribute them aboard the dredge. One of these bulletins
was brought to the attention of Paymaster McGrath who thereafter
admittedly watched for more mail of that kind.
On September 21 Carter mailed to Baldridge a letter and a large
clasp envelope containing some application cards for membership
in the Union. On the face of both the letter envelope and the clasp
envelope appeared the Algiers, Louisiana, address of the Union.
McGrath intercepted- this mail when it arrived and showed it to
Captain Ben Anderson, superintendent of the Lake Fithian. Ander-
son instructed McGrath to give the mail to Baldridge and to inform
the latter that "we don't want any of that stuff distributed around
the dredge . . . we don't care anything about whether he joins the
union, or not, but we don't want to have that stuff to interfere with
his work aboard the dredge." Anderson clearly indicated at the
hearing that his objection extended to distribution of union litera-
ture by or among employees aboard the dredge whether off or on
duty.
On September 23 McGrath summoned Baldridge to his office.
According to Baldridge's testimony, the following then occurred :
,UNITED DREDGING COMPANY 749
McGrath asked Baldridge how, long he had been in the respondent's
employ and whether he had been a member of a union when he had
worked for the Federal Barge Lines. McGrath then produced Car-
ter's letter to Baldridge and the envelope containing the application
cards and asked Baldridge what he meant by receiving "this litera-
ture" and whether Baldridge was "trying to start trouble on the
dredge" and informed him that "they didn't want that kind of thing
on their boat." Baldridge replied that the employees had a right
to receive such literature and to designate any collective bargaining
agency of their choice. McGrath denied this, stating that the re-
spondent paid the employees more than the government's minimum
scale and that they had no right to belong to the Union because they
did not have seamen's certificates. McGrath further informed Bald-
ridge that he had the choice of either destroying the union literature _
in McGrath's presence or leaving the respondent's employ. Bald-
ridge offered to return the application cards to the office of the
Union. McGrath refused this offer, retaining the cards and stating
that he would keep them and speak to W. E. Dueease, vice president
of the, respondent in charge of its New Orleans office, concerning
the matter.
At the hearing McGrath admitted his prejudice against the C. I. 0.,
and that during the course of the foregoing conversation he had
told Baldridge that he did not like the C. I. O. because it was a
"racket," that he was in favor of the American Federation of Labor,
herein called the A. F. of L., but not the C. I. O. because it was
"a Communistic bunch of-'I won't say what." McGrath also ad-
mitted retaining the cards but testified that he had informed Bald-
ridge that'he would keep them only for a' short time and that
Baldridge could have them later upon request. McGrath denied
questioning Baldridge concerning his tenure of employment with
the respondent or his membership in a union but did not expressly
deny the other remarks attributed to him by Baldridge. McGrath's
version of the incident was, however, that he gave Baldridge Ander-
son's message and further stated to Baldridge that "we didn't want
any of that stuff coming through the box," that the post office box
and the dredge were private property, and that the respondent did
not want "that stuff interfering with the men's work."
On rebuttal, Baldridge denied that McGrath said anything regard-
ing the use of the respondent's mail box, that Anderson was referred'
to, and that McGrath ever offered to give the cards to Baldridge.
The cards were never delivered to Baldridge. -
Upon all the evidence 10 we find that the above incident occurred
substantially as testified to by Baldridge.
"Considerable incredible testimony by McGrath is noted below
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's attitude of hostility toward the receipt and
distribution of union literature on the dredge is further illustrated
by another incident. Ernest Hopkins, a waiter, testified that a
few, days before September 28, 1938, some person, not identified
in the record, handed him some union literature, in the presence of
Chief Engineer Finn Ottesen. Hopkins asked the hitter whether
he wanted to look at the literature. Ottesen replied, "No, and I am
afraid you will be sorry you ever looked at it." Hopkins inquired
whether Ottesen was insinuating "it will get me fired." Ottesen
replied, "that is about right". In his testimony, Ottesen denied
ever talking to Hopkins about anything in connection with any
union. Upon all the evidence" we find, as did the Trial Examiner,
that O'ttesen made the foregoing statements.
It is clear from all the evidence that the respondent's seizure of
the application cards addressed to Baldridge was motivated pri-
marily by its antagonism toward the Union and not by its asserted
desire to prevent the distribution of literature aboard the 'dredge
and possible interference with the work of the employees. Bald-
ridge and other employees had for a, long time been receiving mail
through the respondent's post office box, without previous objection.
Indeed, the respondent maintained in the dredge dining room a
box for the purpose of facilitating the delivery of mail to employees.
McGrath admitted that employees had the right to receive mail on
the dredge and admittedly did not open all mail to determine its,
contents. ' There does not appear to have been any rule prior to
September 23 concerning the distribution of literature, aboard the
dredge. Employees received advertisements in the snail ; salesmen
with samples in booklet form and insurance agents were permitted
aboard; and on.one occasion a preacher left a bundle of religious
pamphlets aboard the dredge and McGrath placed them in the din-
ing room mail box for the employees. Furthermore, there is no,
evidence that any union literature had theretofore been distributed
aboard the dredge, or that the respondent had reason to believe that
any such distribution would ' be made to employees during their
working hours or outside the living quarters on the dredge.
Moreover, the respondent may not justify the seizure by asserting
its private rights in the dredge and the post office box, nor may it,
pursuant thereto, impose a complete ban on the distribution of union
literature, as such, aboard the Lake Fithian by. or among employees
whether off or on duty. The dredge employees were entitled to
quarters and, when off duty, to the freedom of the dredge. Some
of the employees made their home thereon. Incident to these rights,
" We note particularly Ottesen's incredible testimony set forth in Section IV B 1, below,
regarding the selection of Cooper for discharge on October 3
I
UNITED DREDGING COMPANY 751
was the right to receive mail on the dredge. As we have noted in
an analogous situation, "The rights guaranteed to employees by the
Act include full freedom to receive aid, advice, and information from
others, concerning those rights and their enjoyment." 12 In so far
as these rights concern at least the employees who live on board
the dredge, such rights would be seriously curtailed if the respondent
were permitted to' impose a complete prohibition against the receipt
of union literature by, employees aboard the dredge even when off
duty or the distribution of such literature among them. We concur
in the finding of the Trial Examiner that "The action taken and
order given [by the respondent] were a clear invasion of their [the
employees'] right to employ their leisure time in union business
if they so desired," and find that McGrath's seizure of Baldridge's
union mail was t flagrant violation by the respondent of its em-
ployees' rights under the Act.
We find that the respondent, by interfering with the receipt and
distribution of union literature on board the dredge Lake Fithian
and by the foregoing statements of McGrath to Baldridge and Oftesen
to Hopkins, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
2. Other acts of interference, restraint, and coercion
On September 27, 1938, Carter alid Felix Siren, secretary-treasurer
of the Union, arrived in Vicksburg, and they, together with Bald-
ridge, Thomas Sherlock, a shore employee, James Cooper, an em-
ployee in the engine department, and other employees from the Lake
Fithian, discussed plans for an organizational meeting to be held
on the night of September 28. The meeting was held as scheduled
in Vicksburg and was attended by approximately 40, a majority, of
the respondent's non-supervisory employees. All those who, attended
joined the Union. At the meeting, Baldridge, Sherlock, and Cooper
were elected delegates to represent the deck, shore, and engine de-
partments, respectively, of the Lake Fithian..
The respondent's supervisory employees immediately learned of
the organization of the employees, the extent of their membership
in the Union, and the identity of the leaders therein. Upon his
return to the dredge from the meeting of September 28, Baldridge
informed Leverman Santiago Garcia of his attendance at the meet=
ing and that the employees had joined the Union. Paymaster
McGloath admittedly knew about the meeting of September 28 a
day or two after it' took place, and also knew which employees
12 Matter of Harlan Fuel Company and United Mine Workers of America, District 19,
8 N. L. R. B. 25, 32. See Matter of Cities Service Oil Company et at. and National Mari-
time Union of America, C. I. 0 , 25 N L. R B. 36
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were leaders in the Union. First Engineer Harry Day learned
on September 29 that all the employees were organized and that
evening made "kind of a special trip in that particular" to convey
the information to Chief Engineer Ottesen at his home. Deck Cap-
tain Victor Peterson admittedly learned-prior to October 3 that "every-
body" joined the Union . Captain Anderson , who was temporarily
absent from the dredge due to illness during the latter part of Sep-
tember, was informed in his hotel on October 1 or 2 by Paymaster
McGrath, Deck Captain Peterson , and Chief Engineer Ottesen that
most of the employees had joined the Union.
The record is replete with evidence that , upon the organization
of its employees in the Union ; the respondent , through its supervisory
employees , proceeded to discourage membership therein by persist-
ently questioning employees concerning their membership in and the
leadership of the Union , threatening employees with discharge because
of their affiliation with the Union , and making other statements
antagonistic to the self -organization of its employees.
Paymaster McGrath
Paymaster McGrath was one of the most active supervisory em-
ployee& in ,discouraging membership in the Union. As stated above,
McGrath was antagonistic to the C. I. O. In 'his testimony, he 'ad-
mitted expressing to employees on several occasions , as his "own
private opinion ," a preference for the A. F. of L. to the C. I. O.
Herman Ladner, an employee in the ,engine room, testified that
on September 29 or 30 McGrath, in the presence of Deck Captain
Peterson, ' stated to Ladner that he had heard that the employees
had joined the Union and asked Ladner whether he had joined, why
he had joined, why he did not join the A. F. L., and who were the
leaders of the Union. According to Ladner , McGrath further re-
marked that he had never expected Ladner "to do anything like
that". McGrath in substance denied having made the foregoing
remarks.
Bruce Campbell , a member of the shore gang, testified that on
September 29, upon requesting a loan from McGrath , as Campbell
customarily did when in need of money, McGrath stated to him,
"I won't loan you money to pay your God damned C. I. O. dues.
That is a Russian outfit . ' I don't want anybody from Russia coming
over here telling me what to do ". Baldridge and shore employee
John Campbell testified regarding similar expressions of antagonism
toward the C. I. O. made by McGrath to them. McGrath did not
deny having made these anti-union remarks attributed to him by
Bruce Campbell , John Campbell , and Baldridge.
UNITED' DREDGING COMPANY 753'
Audrey Newton, a deck hand, testified that prior to October 3,
McGrath asked him what he knew about the Union and whether
Baldridge had been talking to him about it and stated, "You don't
want to get hooked up with that thing; the next mate's opening
on the dredge, you are going to get it." McGrath in substance denied
having made these remarks. %
Wright Powers, first cook, testified that prior to October 3 McGrath
questioned him regarding his membership in the Union, asked him
why he desired to join the Union, since it was not a cook's union,
and referred to it as a "Russian union". Mess boy Ernest Hopkins
also testified that prior to October 3, McGrath questioned him re-
garding his membership in the Union and that, when Hopkins replied
that he was a member, McGrath stated, "That is all I want to know
about you." McGrath, in his testimony, did not deny having made
these anti; union remarks, stating regarding the testimony of Hopkins
merely that he had no recollection of the conversation.
Estell Burgess, a member of the shore gang, testified that between
September 28 and October 3 McGrath questioned him concerning his
membership in the Union and stated that he would rather see Bur-
gess join the "black shirts" than the C. I. O. McGrath, in his
testimony, denied having made the latter remark attributed to him.
McGrath testified that he had never advised any employee whether
or not he should join the Union and that he had never inquired of
any employee regarding his union affiliations. He further denied
ever interfering directly or indirectly or having any idea or desire
to interfere with any union or other organizational activity about,the
dredge Lake Fithian. In view, however, of his admitted prejudice
against the C. I. 0., his other admissions set forth above, his failure
to deny having 'made important anti-union statements attributed to
him, and the entire record, we find that McGrath questioned em-
ployees regarding their union affiliation and made the foregoing
statements attributed to him by employees Ladner, Bruce Campbell,
Baldridge, John Campbell, Newton, Powers,, Hopkins, and Estell
Burgess, substantially as testified to by them.
Deck Captain Peterson
Deck Captain Peterson also questioned employees regarding their
membership in and the leadership of the Union and made remarks
hostile to the Union . Grady Leverette , a deck hand , testified that
Peterson ,, on, about October 6 , inquired of him, with regard to the
Union, "Well, Grady, you belong to this damned thing, too ?"- Lever-
ette also testified that at about the same time Peterson asked him
who were the leaders of the Union . Galley employee Jesse Johnson
testified that sometime before October 3 Deck Captain Peterson
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him whether Baldridge was one of the leaders of the Union.
Deck hand James King, called as a witness by the respondent, and
deck hand Newton, also testified that Peterson questioned them re-
garding their membership in the Union. Peterson denied ever ask-
ing anyone who were the leaders of the Union, but did not otherwise,
specifically contradict the foregoing testimony. -
Cooper, testified that on about September 29 or 30 Deck Captain
Peterson stated to him that he-knew what "organized labor" was and
that Cooper did, not, that Cooper was "very foolish" to join the
Union, that the employees did not need the Union, that Cooper
``should, have better sense," and that Peterson thought that he did,
have "better sense." Peterson testified that he had never told a,
man not to join the Union but did not specifically controvert Cooper's,,
testimony.
Peterson denied ever intentionally saying anything to anyone in,
an effort to interfere with organization by, the Union or to keep:
employees from joining the Union. The Trial Examiner found that
lie made the remarks attributed to him by Cooper. In view of the,
extent and character of the conduct attributed to Peterson and on,
the entire record, Nye find, that Peterson made the foregoing state-
ments and engaged in the conduct attributed to him by Leverette,
Jesse Johnson, King, Newton, and Cooper, substantially as testified
to by them. - -
Mate Forrester
Mate John Forrester in his testimony admitted discussing the,
Union with many employees but denied ever trying to discourage any
employees from joining the Union. He also admitted that he was
not in favor of any union but that if he had to choose one he would
select the A. F. of L. He further admitted informing employees
regarding his views about unions.
Deck hand Clifton Cobb, called as a witness by the respondent,
testified without contradiction that Forrester told him after he joined
the Union that "he didn't believe in that particular union". Deck
hand Eugene Smith testified without contradiction that prior to
October 9 Forrester stated to him that "if we were going to join any-
thing it looked like we would have got into the American Federation
of Labor". Deck hand Leverette testified that between September
28 and October 9 his superior, Mate Forrester, asked him, referring to
the Union, whether he did not "have sense enough to stay out of a
thing like that" and stated that the respondent "would not put up
with a thing like that ; we would all be fired for messing with it."
Forrester denied talking to Leverette "as an individual" about the
Union. Deck hand Newton testified without contradiction that prior
UNITED DREDGING COMPANY 755
to October 3 his superior, Mate Forrester, stated to him, in the pres-
ence of other employees, that "he didn't think the union could win
out; he thought we were crazy for joining; ... the Company was
too strong for a union, we would all lose our jobs." Baldridge testi-
fied without contradiction that between September 28 and October
3 Forrester told him that the respondent would not tolerate a Union,
that "they would tie that dredge up and put all of us out of a job
before they would have a union on that boat."
We find that Forrester made the statements attributed to him by
Cobb, Eugene Smith, Leverette, Newton, and Baldridge, substantially
as testified to by them. -
Other Supervisory Employees
Shoieman Bruce Campbell testified that on September 29 Foreman
Albert Donorio asked him, with reference to the Union, "Campbell,
what is all this mess about?" and whether he had joined. According
to Campbell, Donorio further stated that the respondent was "fixing
to put negroes on this job." Campbell also testified that on October
8 Donorio stated to him, "Since you joined that Union you ain't going
to receive pay like you used to when you missed a day." Donorio
in substance denied having made the foregoing remarks. The Trial
Exarhiner found that he made the October 8 statement. Upon the
entire record 13 we find that Donorio made the above statements
attributed to him by Campbell, substantially as testified to by
Campbell.
Cooper testified that First Engineer Day repeatedly spoke to him
about the Union, telling him "that he didn't favor it and so forth, and
it could not help anybody." Cooper also testified that on October 3
Day stated to him, "We might have to close the dredge down, but the
Chief [Chief Engineer Ottesen] says we are not going to have any
union on here." Day denied making any statements to Cooper of the
latter character or having any discussion with him regarding the
Union except a conversation on September 29 in which Day ad-
mittedly asked Cooper whether the employees had organized and why
they did not join the A. F. of L., instead of the C. I. O. Day also
admitted, as'stated above, that, upon learning on September 29 of
the employees' self-organization, he made "kind of a special trip"
that evening to inform Chief Engineer Ottesen thereof. Day denied
that he ever consciously interfered with any organizational activity
aboard the dredge. Upon the entire record, we find that Day made
the foregoing statements attributed to him by Cooper, substantially as
testified to by Cooper.
13 we note particularly certain incredible testimony by Donorio set forth in Section
IV B, infra.
440135-42-Vol 30 49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Between September 28 and October 3 Leverman Garcia, on one or
more occasions, conversed with a number of employees regarding the
Union while riding together in a car to and from work. According
to the testimony of Ladner, one of the employees present on one
occasion, Garcia inquired of him what the Union "intended to do"
and stated, "I have been informed there is going to be some trouble
... Victor Peterson is going to avoid doing anything about the
Union until Captain Anderson is able to come back on board ..."
According to the testimony of Monroe Davis, a fireman, who was
present on one occasion, Garcia stated to one of the other employees,
"I don't know what they are going to do. The company is mighty
bitterly against the Union . . . They always have felled it ..."
In his testimony, Garcia, while denying having made anti-union state-
ments on the foregoing occasion or occasions or any statements con-
cerning the respondent's attitude or plans regarding the Union,
admitted stating that the C. I. O. was'the the same as the "I. W. W.".
At the hearing he characterized the latter as a "radical" organization
and, although he denied telling that to the employees, he testified that
"they knew that it. was "a radical organization". Upon the entire
record, we find that Garcia made the remarks attributed to him by
Ladner and Davis, substantially as testified to by them.
Lonnie Ware, second cook, testified that his "foreman," Steward
Eugene Chisholm, stated to him on October 2, "You keep out of the
union. You know better than to get into that." Chisholm denied
ever trying to discourage anyone in the galley from joining the union
or suggesting to anyone that they might be discharged for doing so.
The Trial Examiner found that Chisholm's testimony was "so thor-
oughly discredited" that he did not credit his denial. We agree with
the Trial Examiner 14 and find that Chisholm made the, statement at-
tributed to him by Ware, substantially as testified to by Ware. .
Shoreman Richard Reel testified that shortly prior to September'
28, after some discussion among employees regarding joining the
Union Assistant Foreman Orlando Dente stated to him, "You boys
are not thinking about joining that C. I. 0., are you?" and that Dente
then "began kicking it and knocking it . . ." Dente denied ever try-
ing,to prevent anyone from joining the Union, telling any employee
that he did not think it was a good thing to do, or making any state-
ments of similar tenor. He testified that Reel spoke to him about
the Union and that he told Reel to*do as he pleased about joining.
Upon the entire record 15 we find, as did the Trial Examiner, that
Dente made the statements attributed to him by Reel.
' The incredibility of certain other testimony by Chisholm is noted below.
We note particularly certain incredible testimony of Dente set forth below "regarding
the work of shoremen following the strike of October 3.
UNITED DREDGING COMPANY 757
Shoreman Bernard Holmes testified that on about October 1 As-
sistant Foreman Angelo Abbott told him, with regard. to the Union,
that he "would get fired about it". Abbott denied ever talking to any
employees about the Union. Upon the entire record,16 however, we
'find that he made the statement attributed to him by Holmes. '
In addition to the foregoing, there is evidence of other instances
of interference, restraint, and coercion many of which are set forth in
Section IV B, infra, in connection with the events there discussed.
The respondent contends that there is no evidence of ant-union
statements properly attributable to it because its supervisory em-
ployees, in making such statements, were acting in a personal and not
an official capacity. A number of the supervisory employees whose
activities are discussed above -testified that they had received no in-
structions to discourage or interferd with union activities. However,
these supervisory employees in the course of their duties in fact exer-
cised the authority of management over the employees working under
their supervision. They represented the managment ,in the eyes of
the employees. Moreover, the respondent took no steps to prevent
or disavow the widespread anti-union activities of its supervisors or
to stop repeated violations of the Act. It is, therefore, responsible for
their acts in this respect 17 - -
' The respondent further contends that the anti-union statements of
its supervisory employees were fair expressions of opinion uttered in
the exercise of their right of free speech. This contention is without -
merit. The statements set forth above do not stand alone. They are
part and parcel of the respondent's other activities to discourage
membership in the Union and interfere with its employees' rights of
self-organization, both the respondent's seizure of union literature,
as set forth in Section IV'A 1, supra, and its- activities set forth in
Section IV B, infra. The above statements, when viewed in their
entirety and in their context, were, clearly of such a nature as to co-
erce and intimidate the employees and constituted an interference by
the respondent with the exercise of their rights under the Act.,
We find that the respondent, by the foregoing acts and statements,
interfered with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
7e We note particularly certain incredible testimony of Abbott regarding the events of
October 3, set forth below.
"See International Association of Machinists v. N. L R. B., 311 U. S. 72, aff'g 110 F.
(2d) 29 (App. D' C.), enf'g Matter of The Serrick Corporation and International Union,
United Automobile Workers of America, Local No 459, 8 N. L R B 621; N. L. R. B. v.
Link-Belt Co., January 6, 1941, U. S. Supreme Court, rev'g 110 F. (2d) 506 (C. C. A. 7)
and enf'g Matter of Link Belt Company and Lodge 1601, of Amalgamated Association of
Iron, Steel and Tin Workers of North America, Through the Steel Workers Organizing Com-
mittee Affiliated With The Committee For Industrial Organization, 12 N. L. R. B. 854.
758 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
B. Discrimination in regard to hire and tenure of employment
1. The discharge of Baldridge , Cooper, and Sherlock on October 3,
1938
The complaint, as amended, alleges that the respondent on or about
October 3 , 1938, terminated the employment of Baldridge , Sherlock, '
and Cooper because they joined or assisted the Union and engaged in
concerted activities with other employees for the purpose of collective
bargaining •or -other mutual aid or ,protection. The answer denies
that the employment of these employees was terminated for the rea-
son alleged in the complaint, and avers that their employment .vas
terminated to curtail the expense of operating the Lake Fithian.
For a year or more prior to September 1938 the respondent had on
occasion complained to W. E. Dueease, executive head of its New
Orleans' operations, and to Captain Anderson that the pay-roll ex-
penses of the Lake Fithian were excessive as compared to those of
the Cartagena, another of the respondent's dredges operating in the
New Orleans district . With respect to these complaints , Captain
Anderson had always contended that the conditions under which
the Lake Fithian was operated differed from those under which the
Cartagena, was operated, and Dueease informed his superiors that
"As long as they were getting good running time [he] didn 't believe
in kicking out the men ." Thus no action was taken with regard to
these complaints of the respondent prior to October 1938.
On September 25, 1938, Rowan Cummins , Jr., a traveling engineer
in the respondent's employ, visited the Lake Fithian and, inter
alia, discussed with Captain Anderson, Deck Captain Peterson, Chief
Engineer Ottesen, and Paymaster McGrath the matter of reducing
pay-roll expenses and insisted upon a reduction of such expenses as
regards the Lake` Fithian. Captain Anderson promised Cunimins
that he would try to reduce his staff. The testimony as to the num-
ber of employees recommended by Cummins for lay-off is in conflict.
Captain Anderson testified that Cummins requested that one or two
employees be laid off from each department of the dredge , including
the deck, shore , and galley departments . Paymaster McGrath testi-
fied that Cummins -did not specify the number of men -to be -laid .off.
Chief Engineer Ottesen testified that Cummins recommended that
there be a pay-roll reduction of six employees and that Cummins re-
quested him to lay off two employees in the engine department.
Deck Captain Peterson testified that Cummins suggested the lay-off
of a few men in the deck and shore departments.
In any event , for several days following Cummins' visit Ottesen,
Peterson , and McGrath conferred among themselves and with other
supervisory employees regarding which employees to select for lay-off.
UNITED DREDGING COMPANY 759
Captain Anderson was absent from the dredge due to illness during
this period and did not return to the dredge until October 3. Al-
though McGrath, Ottesen, and Peterson had the authority- to hire
and' discharge employees 'and normally had done so in the past, they
took no action with respect to reducing the staff pending Anderson's
return, Deck Captain Peterson seeking to explain this in his testi-
niony on the ground that this situation "was something different".
On the evenings of October 1 and 2 McGrath, Peterson, and Otte
sen conferred with Captain Anderson regarding the pay-roll reduc-
tion. According to the testimony of McGrath, these four supervisory
employees then decided to lay off ,one employee in each department
and decided, on October 2 or in the morning of October 3 while driv-
ing to work together, to lay off Baldridge in the deck department,
Sherlock in the shore department, and Cooper in the engine depart-
ment. McGrath further testified, "We had talked about laying off
a man out of the galley and two or three more off the . . . shore,
but that had not been decided definitely then: We didn't want to.
throw too many out of a job just about that time; in fact, we always
carried half a dozen men more than we needed."
At, about 7: 30 a. in. on October 3 Ottesen notified Cooper and
Peterson notified Baldridge and Sherlock to, go to McGrath's office.
They did so and were there discharged by McGrath. They had been
given no prior notice of their discharge and received no explanation
thereof at the time. No other employees were discharged on Oc-
tober-318 -
- The respondent, apparently had no uniform lay-off policy. Mc-
Grath testified that he thought that the respondent did follow sen-
iority rules "in some respects" and that "sometimes they pay some
attention to that [seniority] and sometimes they don't." Chief
Engineer Ottesen indicated in his testimony that seniority was con-'
sidered in making lay-offs in the engine- department. Deck Captain
Peterson testified, with regard to the selection for discharge of the
three employees, that "it wasn't so very hard to decide, just find out
if a man had been one of the last ones to be hired and less desirable."
At, another point, however, he testified that the respondent had no
seniority rule but that "if I find them all the same, I guess I would
1e David Jobe , a fireman, was discharged on October 1 because he refused to be trans-
ferred to another watch
Peterson and Ottesen testified that it ,had-been planned to lay off other employees also on
October 3. Peterson testified that on that morning he was going to notify Woodrow Flem-
ing,,a deck hand, of his discharge but that he did not have the opportunity to do so before
the strike discussed below began. The evidence shows that on the morning of October 3,
Fleming occupied a room next to that of Baldridge, who was in his room when Peterson
notified him of his discharge . In view of this, of McGrath' s testimony -noted above regard-
ing the determination as to the number and identity of employees to be discharged on
October 3 , and of McGrath 's testimony , noted below , that Fleming was not discharged
because he was the sole support of his mother, we do not believe the testimony of Ottesen
and Peterson regarding other contemplated terminations at that time.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay off the last one . . ." Seniority, when it was considered, meant,
according to the testimony of McGrath and, Ottesen, the longest con-
tinuous service. It is not clear whether the service referred to is
dredge-wide or departmental. We conclude that the respondent' at
times did consider seniority in laying off or reinstating employees.
Robert Baldridge was first employed by the respondent in the
spring of 1935 and voluntarily quit his employment in the fall of that
year. He was reemployed by the respondent on September 1, 1937,
and worked steadily thereafter as a deck hand until October 3, 1938.
Paymaster McGrath testified that the respondent discharged Bald-
ridge because "he was one of the last men that they had employed
there [deck department] "and was a single man with no dependents
so far as the respondent knew. He also testified that there had been
some complaints about Baldridge's work, shortly prior to his dis-
charge, apparently referring to an incident of September 4 noted
below. Deck Captain Peterson, however, attributed Baldridge's dis-
charge to alleged violations by him of the respondent's rules and reg-
ulations, testifying that he selected Baldridge upon the recommenda-
tion of Leverman Garcia. The latter testified that he recommended
Baldridge for discharge "on general principles" but specifically and
primarily because of his alleged negligence on September 4, discussed
below, and because on two occasions Baldridge had' been tardy in
reporting for work.
The September 4 incident concerned an accident in the course of
the dredge's operations, when a cable broke and caused the dredge to
go adrift. At the hearing the respondent's witnesses placed the
blame for this occurrence on Baldridge. However, Baldridge was
not discharged at the time the incident took place, and the evidence
does not support the claim that Baldridge was responsible therefor.
We concur in the conclusions of the Trial Examiner, who found, with
respect thereto, that "it is -clear, ... after considering the record
and the demeanor of these witnesses while on the stand, that Bald-
ridge was at the post of duty assigned to him and performed his
duties according to his orders and that no measure of responsibility,
for this misadventure can justly be ascribed to him." Moreover,
from all the evidence, we are convinced that the respondent in fact
did not believe that Baldridge was responsible for the incident.
Leverman Garcia admittedly would not have discharged and did
not discharge Baldridge merely because of the second instance of his
tardiness. On one of the two occasions of his tardiness, another
deck hand, Wilson Van Devender, also was tardy and was not dis-
charged therefor. Furthermore, other employees had violated various
working rules and regulations and had not been discharged therefor.
UNITED DREDGING COMPANY 761
As regards Baldridge's general competence as an employee, his
immediate superior, mate Albertano Quintillin, admitted that Bald-
ridge was as good a deck hand as the other deck hands in his watch.
Chief Mate Karl Ritt, under whom Baldridge worked at times, testi-
fied that, Baldridge was as competent as other deck hands under his
supervision. Even Leverman Garcia, who, according to the respond-
ent, recommended Baldridge for discharge, admitted that prior to
September 4 Baldridge, as a deck hand, was "generally just like the
others." Peterson testified, as to Baldridge's ability, that "He was
pretty good."
On the other hand, Leverman Ivar Olson recommended to Peterson
prior to October 3 that deck hand Woodrow Fleming be laid off,
for one reason, because he was the least competent employee on his
watch. Peterson admitted that Fleming knew little about a deck
hand's work.- Fleming was not laid off. Peterson testified, however,
that he had intended to lay off Fleming as well as Baldridge on
October 3, but did not have the opportunity to do so before, the strike
began. As noted above, we do not believe this testimony.
During the period herein when the respondent was considering
curtailment of its staff deck hand James King was incapacitated by
an injured hand,-and was engaged on deck in light tasks. Prior
thereto he had been a deck hand under Chief Mate Ritt on the derrick
barge. While Peterson testified that King was more experienced than
Baldridge, Chief Mate Ritt, under whose immediate supervision both
Baldridge and King worked at times, testified that Baldridge was as
competent as other deck hands under him, and that King was "not
as good as he ought to be." King was not laid off.
Although McGrath advanced as one reason for Baldridge's dis-
charge his lack of seniority in the deck department, the evidence
shows that Baldridge's seniority,. based on continuous service in that
department, was equivalent to that of deck hand King and greater
than that of deck hands Claude Ellis and Fleming.
McGrath advanced as another reason for Baldridge's discharge that
he was single and so far'as'the respondent knew, without dependents.
However, Baldridge's application for employment with the respond-
ent, dated September 1, 1937, shows that his mother was his dependent.
Although King was married and McGrath testified that Fleming was
not selected for discharge because he was the sole support of his
mother, McGrath admittedly did not investigate Baldridge's case in
this regard.
From all the evidence, we conclude that Baldridge was not selected
for discharge on October '3 for any of the reasons advanced by-the
respondent.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
James'Cooper was first employed by the respondent in the spring
of 1934 as an extra man in the engine room. He worked steadily
for about 21/2 years, at the end of which time he 'voluntarily left the
respondent's employ. He returned to work on the Lake Fithian in
the fall of 1937 and worked there steadily until October 3, 1938. At
the time of his discharge on October 3, Cooper was employed as an
oiler. He could also perform, and had in the past performed, the
duties of a fireman.
The respondent contends that a reduction of its staff based upon
a comparison of the pay rolls of the Lake Fithian and the Cartagena
necessitated the discharge of Cooper. The record does not support
this contention. During the week prior to September 27, 1938, the
Cartagena and the Lake Fithian had the same number of employees
in the engine department working as oilers and firemen.'° The Carta-
gena had three firemen and one extra fireman; the Lake Fithian, five
firemen. The Cartagena had three oilers, and two extra oilers; the
Lake Fithian, four oilers. Moreover, as noted above, the employment
of_ David Jobe, a fireman on the Lake Fithian, was terminated on
October 1, and, during the last part of September and the first part
of October, Fred Beach, another fireman on the Lake Fithian was
temporarily absent from work.
The respondent further contends that Cooper was selected for dis;
charge because he had the least seniority among employees in the
engine department. The evidence convinces us, however, that the re-
spondent seized upon Cooper's lack of seniority merely as a pretext
in order to justify his discharge. In the first place, as pointed out
above, no strict seniority rule was observed by the respondent. In
the second place, Chief Engineer Ottesen, who was responsible for
the selection of Cooper, admitted that Cooper was the most competent
employee in the engine department except for the supervisory em-
ployees in that department, handyman Lester Binney, and, perhaps,
oiler Earl Peterson. Two other employees, Beach and E. G. Hall,
with longer continuous service, in the respondent's employ, but con-
cededly less competent than Cooper, were not discharged on October 3.
In his testimony Ottesen sought to justify the retention of Beach
on the ground that his child was ill about October 3. However,
neither Ottesen nor Day, who participated in the selection of Cooper,
inquired of the latter whether he had any illness in his family at
the time. In fact, Cooper's wife was ill with pneumonia on and
after October 3. Oiler Ladner testified without contradiction that
while on the way to work on the morning of October 3 with Third
Engineer Oscar Edmonds, the latter indicated to him that First
Engineer Day intended to lay Beach (ff because of his incompetence.
u Oilers and firemen received the same pay.
,UNITED DREDGING COMPANY 763
Ladner inquired whether Edmonds was not aware of the illness in
Beach's family. Edmonds replied that "it is not a matter of any-
thing like that. They have been figuring on laying him off for quite
a while . . . We can't wait until his baby gets well ..." Although
Ottesen asserted that the decisive factor in the retention of Beach was
the' illness in his family, Ottesen significantly testified that if Cooper
had informed him of the illness in his family that "that would
probably go a little ways."
Ottesen, in his testimony, sought to justify the retention of Hall,
who worked as oiler or fireman, on the ground of his seniority, the
satisfactoriness of his work, and the preference which Third Engineer
Edmonds had always stated for Hall as an oiler. However, Ed-
monds, who testified .at the hearing regarding the comparative merits
of Hall and Cooper, asserted no preference for Hall, and Ottesen
himself,,as stated above, admitted Cooper's superior competence.
Ottesen also testified that he knew that Cooper would never accept
the position of fireman, which Hall occupied about October 3. How-
ever, Ottesen admittedly never offered that position to Cooper, and
did not state upon what he based his assumption of Cooper's refusal.
We find that this assumption was not well founded, particularly in
the light of Cooper's having previously worked as a fireman.
Further indication that Cooper's lack of seniority was merely a
pretext for his discharge is to be found in the following conversation.
Cooper testified that on about October 5 First Engineer Day said
to him, "You fellows can't win, because when they fired you they
claimed you were the youngest man in the engine room and the last
man hired .--. . That can-be proven . . . you are the last, man that
was hired in the engine room." Day denied having any conversation
with Cooper, of this character. Upon all the evidence 20, we find that
Day made the statement substantially as testified to by Cooper.
From all the evidence, we conclude that Cooper was not discharged
on October 3 for the reasons asserted by the respondent. <
Thomas Sherlock. McGrath testified that Sherlock was selected
for discharge on October 3 because "we had complaints about him
that he was incompetent and he was a shirker, a chronic shirker, you
might say. Every key man on the dredge and on the shore had had
trouble with him." Deck Captain Peterson, in his testimony, vaguely
attributed Sherlock's discharge to the fact that supervisory employees
had complained about his work for a long time and that, apparently
as a result of such complaints, Sherlock had been frequently trans-
ferred among various departments or watches.
Peterson chose Sherlock for discharge out of 24 shoremen, without
consultation, between the time of Cummins' visit and October 3, with
20 See Section IV A 2 , supra, for other anti-union statements made by Day.
764 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of Sherlock's more immediate supervisors on shore. Peterson ad-
mittedly "didn't take much pains" to investigate whether any other
employee's services could better be dispensed with. Shore Foreman
Donorio had no knowledge of Sherlock's impending discharge prior
thereto.
Sherlock began to work for the respondent in the early part of
1934 and worked steadily thereafter until his discharge, except for
a few short lay-offs due to lack of work. At the time of his discharge
he was a member of the shore gang. During the course of his em- ,
ployment he had worked in the deck department and on shore, under
a number of supervisory employees on various watches. We have
reviewed Sherlock's testimony regarding his employment history and
concur in the finding of the Trial Examiner that "Sherlock proved a
frank witness and offered satisfactory explanation for each of his
various transfers during the period of his employment."
Sherlock, in his testimony, admitted that he had on occasion had a
"little trouble" with certain supervisory employees. He explained -
that such occasions had arisen when he had taken exception to the
use of abusive language by such supervisory employees directed
against himself or other employees. Sherlock cited a few such-inci-
dents, all of which had occurred more than 2 years before his dis-
charge. He also admitted that he may have received "light threats"
of discharge at times. He denied, however, that any supervisory em-
ployees had ever complained to him about his work or seriously
threatened him with discharge if he failed to improve his work.
On the contrary, on at least two occasions Sherlock had been
promised a promotion by the respondent to a position in the engine
department and at times, because of his experience, Sherlock had
acted as a group leader in the performance of certain jobs. Foreman
Donorio admitted, in his testimony, that he personally had no com-
plaint to make about Sherlock .21- Assistant Foreman Vickery also
admitted that Sherlock's work prior to October 3 was satisfactory
and that he was "a pretty good worker". Assistant Foreman Cook,
who testified that he required the services of a "wide awake" employee
on the dragline barge, was frequently assisted by Sherlock. Cook
testified that Sherlock pleased him and that he was not "as -dumb as
some of the men." Assistant Foreman Dente admitted that Sherlock
had "done pretty good" under him on the day shift and that his work
was as good as that of most of the other employees.
' This is supported by Donorio 's testimony at a previous hearing of the Mississippi Un-
employment Compensation Commission . Matter of Claims o f Joe E. Brooks , et al. This
was a hearing upon claims under the Mississippi Unemployment Compensation Law by a
number of the respondent ' s shore employees, after their discharge on October 9, 1938. The
hearing took place on November 21, 1938, before the Executive Director and the Chief
Claims Examiner of the Mississippi Unemployment Compensation Commission . This hear-
ing is hereinafter referred to as the Unemployment Compensation hearmg.
UNITED DREDGING COMPANY 765
From all the evidence, we conclude that the respondent's contention
that- it discharged Sherlock because of complaints it had received
about his work is not supported by credible testimony22
The selection of Baldridge, Cooper, and Sherlock for discharge on
October 3 is explainable only on the basis of their activity in the
Union. They were the only outstanding leaders in the Union among
the, respondent's employees and their leadership was known to the
respondent prior to October 3. As noted above Baldridge initiated
organization of the respondent's employees and on September 23 was
threatened with discharge by Paymaster McGrath unless he agreed i
to destroy the membership application forms. Baldridge, Sherlock,
and Cooper arranged for the organizational meeting of September
28 and were there elected as the only three delegates in the Union.
Sherlock presided at that meeting. Deck Captain Peterson told
Cooper on about September 29 that he was "very foolish" to join the
Union and that Peterson thought that Cooper had "better sense" than
to do so. Sherlock testified that on an occasion when he and Deck
Captain Peterson discussed the situation resulting from a strike, dis-
cussed below, which followed the October 3 discharges, Peterson told'
him that as long as he,, Peterson, was a captain on the Mississippi
River, Sherlock "would never have another job." While Peterson
denied making such a statement, we find upon all the evidence 23 that
he made the foregoing statement substantially as testified to by
Sherlock.
Cooper testified that on October 9 he asked Anderson why he had
been discharged on October 3, and that Anderson, in reply, admitted
that.Cooper was a good worker and stated that Anderson had had
orders to discharge him and had been compelled to do so. Cooper
further testified that Anderson had further stated that upon learning
of organizational activities by the Union among the respondent's
employees he had contacted the respondent's New Orleans office and
had been advised to discharge the employees responsible for such
activities, that lie did not mind telling this to Cooper, since he and
Cooper were alone and "it would be [Anderson's] word against
21 Foreman Donorio , while admitting that he personally had no complaints to make about
Sherlock , testified that the supervisory employees under him bad,complained to him about
Sherlock. However , at the Mississippi Unemployment Compensation hearing, Donorio tes-
tified that he had received no complaints about Sherlock before the events in October 1938.
Assistant Foreman Vickery , when asked at the hearing whether , he had any complaints
about Sherlock's Rork , answered , "well , I can't say much about it." Assistant Foreman
Dente insisted , at the hearing , that he had on a few occasions complained to Donorio about
Sherlock's work. Donorio ' s unreliable testimony in this regard is noted above . Dente also
testified that , Assistant Foreman Abbott had complained to him about Sherlock 's work.
Sherlock testified , however , that Abbott had never complained to him about his work and in
fact had urged him to,work on Abbott 's night watch . Upon all the evidence , we do not
credit the testimony of McGrath, Peterson , Donorio, and Dente with respect to the making
or receipt of complaints regarding Sherlock 's work.
23 We note particularly other anti-union -remarks made by Peterson set forth in Section
IV A 2, supra.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Cooper's]." Cooper also testified that shortly after this conversa=
tion with Anderson he told Baldridge what Anderson had said to
him. Baldridge corroborated Cooper's testimony as to this. An-
derson denied having had any such conversation with Cooper. Upon
all the evidence, however, we do not credit his denial and find that
Anderson-made the statements substantially as testified to by Cooper.
That the reason for the discharges of Baldridge, Cooper, and
Sherlock was their union membership and activities is also clear from
the failure of McGrath, Ottesen, and Peterson to take action toward
reducinb the force prior to Anderson's return to the dredge on Octo-
ber 3. Prior to that date Leverman Garcia had stated, as found above
in Section IV A 2, that, "Victor Peterson is going to avoid doing
anything about the union until Captain Anderson is able to come
back on board the dredge himself."
In view of the foregoing statements of Peterson and-Anderson,
the respondent's antagonism toward the self-organizational activities
of its employees as shown by its various acts of interference discussed
above, the leaderhip of Baldridge, Sherlock, and Cooper in the Union,
the respondent's knowledge thereof, and the other circumstances noted
above surrounding the discharges of these employees, we find, as did
the Trial Examiner, that the respondent discharged Baldridge,
Cooper, and Sherlock on October 3, 1938, because. of their affiliation
with and activity in the Union and that the respondent thereby-
discriminated in regard to their hire and tenure of employment, dis-
couraging membership in the Union, and interfered with, restrained,
and coerced its employees in the exercise of "the rights guaranteed in
.Section 7 of the Act 24
2. The strike of October 3, 1938
The complaint alleges that in protest against the discriminatory
discharge of Baldridge, Cooper, and Sherlock, certain of the respond-
ent's employees ceased and refused to report for work at about 8 a. m.
on October 3. In its answer the respondent admits that certain of
its employees ceased or refused to report for work in protest against
the termination of the employment of the three above-named em-
ployees, and avers that its dredge employees immediately engaged in a
sit-down strike aboard the dredge and that its shore employees im-
21 At the oral argument before the Board , counsel for the respondent stated i s follows :
"I am satisfied in my own mind , and I do not mind making the, statement that the union
activity of these men may have entered into their selection [italics supplied ] in reducing
the force ; but the other reasons were controlling reasons and the sole controlling reasons."
As we have previously held, discharges under such circumstances would be unlawful even
if there were, in addition to a desne to discourage union membership , other moti%es: See
Matter of The Dow Chemical Coinpany and United Mine Workers of America, District No
50, 13 N . L R B. 993 , enf'd National Labor Relations Board v . Dow Chemical Co., Febru-
ary 6, 1941 (C C. A. 6).
/ v
r
UNITED DREDGING COPIPANY 767
mediately and in violation of law and of the respondent's rules, duly
promulgated and known to said employees, boarded the dredge, joined
in the sit-down strike, and plundered its stores.
At the meeting of the Union on September- 28 some of the em-
ployees entered into an iliformal understanding to cease work in
protest against the discriminatory discharge of any of their dele-
gates. Shortly, after their discharges, Baldridge, Sherlock, and
Cooper notified the employees thereof and, pursuant to their under-
standing, certain employees thereupon went on strike. We find that
the strike of October 3 was caused by the respondent's unfair labor
practice in discriminatorily discharging Baldridge, Cooper, and
Sherlock.
The strike, which began shortly before 8 a. in., at about the time
when watches were being changed, lasted until about 2 p. in. of the
same day.
In the deck department, Baldridge notified' the deck hands of his
discharge. Deck hands Leverette, Newton, Clifton Cobb, and Eu-
gene Smith, who were working on the 12 p. m.-8 a. in. watch, com-
pleted their watches that day 25 and thereafter each of these em-
ployees, except Leverette, remained on the dredge during the strike
period. Leverette left the dredge between 9 and 10 o'clock for Vicks-
burg and did not return until 2 o'clock. Deck hands Van Devender,
Shelby Lowery, and Claude Ellis, who were scheduled to go on duty
at 8 o'clock, did not do so and did not work during the strike period,
although they remained on board the dredge.: Deck hands Jeff
Marsh, Marvin McCool, and Woodrow Fleming worked on the 4-12
p. m. watch on October 3, and were present on the dredge during the
strike period, since they lived on board. Elmer Smith, the fourth
member of the 4-12 p. m. watch, was not on the dredge during the
strike period.
Cooper notified the employees in- the engine department of his
discharge. Oiler Earl Peterson and fireman Hall, who worked on
the 12 p. m.-8 a. in. watch, completed their watches 26 and were
25 There is a conflict in testimony as to whether Leverette and Newton finished their
watches that day. It appears that between 7 30 and 8 a in. all four of these deck hands
wire not engaged in any particular duties but stood around on the stern of the dredge:
Leseiette and Newton claimed at the hearing that they finished their watches. Mate For-
rester denied this, since, as he testified, they left the stern of the dredge about 7:45 and
did not report back However, the method of reliefs was informal, and Forrester admitted
that deck hands on duty without any particular work to do were permitted to leave their
posts for a few minutes at a time. He also admitted that he and the deck hands at times
left for breakfast between 7 . 30 and 8 o'clock without waiting for relief. Under these
circumstances we find, as did the Ti lal Examiner, that Levm ette- and New ton completed
their watches on October 3.
21 Hall was relieved by handyman Binney for breakfast at about 7 . 30 and returned to the
fireroom about 7. 45 He did no work after he returned, but conversed with Binney and
Day as to whether or not he should join the strike He left the fireroom at about 7 , 55
after Burney assured him that he had matters there under control. Under all the circum-
stances, we find that Hall completed his watch on October 3. See footnote 25.
t
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present on the dredge during the strike period. Oiler Ladner and
fireman M. J. Davis, who were' scheduled to work on the 8 a. m.=
4 p. in. watch, did not do so and remained on the dredge during the
strike period. The members of the 4-12 p. in. watch, oiler James
Reed and fireman John Daniels, were not present on the dredge
during the strike period.
Blacksmith's helper John Morgan and derrick barge,deck hand
Robert Angelo, who were supposed to work on the 8 a. m.-4 p. m.
shift, did not work during the period of the strike and remained on
the dredge. Deck hand James King, who had an injured finger, as
usual did little work that day for that reason, and cabin boy John
Singleton did his work that day, both being on the dredge during
the strike period.
Galley employees Powers, Hopkins, Lee, and Jesse Johnson, who
were scheduled to work during the strike period, quit work at about
10 or 10: 30 o'clock, and remained on the dredge. Second Cook
Ware was off duty on October 3 and was not on the dredge after
about 7 or 7: 30 o'clock that morning.
Sherlock notified the shore employees of his discharge and 19
shoremen, including the day shift employees who did not work during
the strike period and the night gang whose watch ended at 8 a. m.,
boarded the dredge and remained on it during the strike period.
The above-named dredge employees and the shoremen who were
present on the dredge that day, except those employees who worked
during the strike period, mingled and conversed with each other
and stood, sat, or walked about on top deck during the strike. Some
played cards on top deck. A few slept in their rooms. A number
of employees went to the galley one or more times for some coffee or
food.
Shortly after the strike began, Captain Anderson, who had been
informed as to the cause of the strike, accompanied by Chief Engi-
neer Ottesen, left for Vicksburg, to communicate with Vice President
Dueease at New Orleans. Before leaving, Anderson told a group
of dredge employees that he was going to Vicksburg to ascertain
whether matters could be settled, and thereafter the employees awaited
his return. Cooper also left the dredge at about 9 or 9: 30 -o'clock
to confer with Siren, secretary-treasurer of the Union.
As noted in Section IV A 1, supra, the dredge employees were
entitled to living quarters aboard tho dredge and to the freedom of
the dredge when off duty. Except for Baldridge none of the em-
ployees, including the shoremen, was ordered to leave the dredge and
UNITED DREDGING COMPANY 769
go ashore . 27 No employees , except as indicated below, were requested
to return to their posts.28 Anderson admitted at the hearing that
he did not order any employees to leave the dredge and that he
expected the employees to stay on the dredge until he returned with
instructions from the respondent 's New Orleans office. Shortly after
the commencement of the strike, Deck Captain Peterson ordered
Baldridge to go ashore on the next tug which made the trip. Bald-
ridge did not do so. Baldridge testified that he did not leave because
he could not gather all his personal effects together on such short
notice and because Captain Anderson had informed the employees of
his departure in an attempt to settle the dispute.
During the strike period the dredge continued to operate and
received full pay for the time of its operation .29 Operations were
manned in the main by supervisory employees. The deck depart-
ment between 8 a. in. and 2 p. in. was manned by Deck Captain
Peterson , Leverinan Garcia, Mate Quintillin , deck oiler Isakson,
and deck hand King. Chief Mate Ritt , on the derrick barge, also
gave assistance . 30 The machinist , the welder and his helper, the
2 -,The respondent contends that Assistant Foreman Abbott requested his shore gang,
which was not supposed to be on duty at the time , to leave the dredge shortly after the
strike began . Abbott testified in this respect as follows :
A. . . . Before I get to Janet, I was up on deck for to collect my gang. I said
"I better go home. You finish 16 hours. Why you stay over here [" I called S m
[shoreman B. L. Holmes ] and I told him, "You finish 16 hours . Why you stay here?"
He said, "I am tired , but I got to stick together with these men around here."
Q In other words, you used your automobile to take your gang to and from work,
didn't you?
A. Yes. I use my car, yes.
Q. So you went on top deck and you called your gang and said , "You boys have
worked 16 hours Don 't you all want to go home with me?"
A. Yes, I told them.
Q. They said , "No. We will stay around here,' , or something to that effect?
A. Well, Holmes on top deck, he said, "I got to stick here." I told them, too. I
said what does he stay over here for. He say "I don't know . I got to stick with the
gang „
This testimony shows that Abbott merely . attempted to persuade the members of his gang
to leave. It does not show that he requested or ordered them to do so. The only members
of his gang who testified at the hearing , B. L Holmes, Emmitt Trawick, and Bernard
Franklin , testified that no one ordered them off the dredge and that they heard no one else
ordered off.
There is also some testimony by Deck Captain Peterson that he saw the derrick barge
gang standing in the stern of the dredge and that he told "those fellows " to go out on the
derrick barge where they were supposed to go, and that deck hand Angelo refused to do so.
Angelo, the only deck hand scheduled to work on the derrick barge on October 3, denied
that anyone requested him to work that day. Upon the entire record we do not believe
Peterson 's testimony in this regard. In any event he `did not claim to have ordered
Angelo to go ashore.
See footnotes 27 and 33.
The arrangements under which the respondent operated the dredge provided for remu-
neration to the respondent per hour of operation
30 Mate Forrester , who worked the 12' p m -8 a. m. watch , was on the dredge during the
strike; so , also as Leverman Nerheim, of the same watch , until 9 or 9:30 o 'clock. So
far as appears , these employees were available for duty had any emergency arisen.
I
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blacksmith, and the electrician, continued to work on board during,
the strike. The engine department was manned by handyman Binney,
First Engineer Day; and Third Engineer Edmonds, the same 'number
of employees that regularly manned that department on night shifts.
The shore department was manned by five supervisory employees,
also approximately the same number of employees that regularly
manned that department on night shifts.
The strike was devoid of violence or interference with the opera-
tions of the dredge or the employees who continued to work. At
first some of the strikers crowded about in the alleyways of the
dredge, but shortly after the commencement of the strike, Captain
Anderson told them to clear the passageway and Peterson and Sher-
lock told them to go up on top deck and they did so.31 When he
first came aboard Sherlock addressed a group of,the strikers in the
galley and told them not to interfere with any employee who contin-
ued to work and not to do any damage. Shortly before going ashore,
Captain Anderson cautioned a group of the strikers to "behave" and
the strikers assured him that he had nothing about which to be con-
cerned since they would not molest anyone or interfere with anything.
Anderson testified that he had believed the employees and did not
think that they would commit any disturbance. He also testified
that he was not concerned about what might occur aboard in his ab-
sence, about not finding the dredge in good condition upon his return,
or about the employees "doing anything."
The respondent contends that the following incident, in particular,
constituted an attempt by the strikers to interfere with the dredge's
operations. During the, course of the strike the dredge "set back"
fora short time and pumped water.32 Baldridge, Cooper, and Sher-
lock.visited the dredge office of Chief Government Inspector William
Currie and apprised him of the fact that the dredge was Dumping
water, and Sherlock stated that if it continued to do so he would
"see someone in town here [Vicksburg] who maybe could do some-
thing about it . . ." Some sharp verbal exchanges took place and
%Currie finally ordered, the delegates out of his office. The purpose
of the delegates' action admittedly was to compel the respondent to
continue pumping mud, and thus to compel reinstatement of the
strikers. Currie testified that he thought that the union delegates
were trying to force him to shut down the dredge. However, the
dredge continued to operate and, as stated above, the respondent
31 Although at the hearing, Deck Captain Peterson testified that at first the 'employees
"started to mob around the alleyways there . . You couldn 't hardly walk in those alley-
ways . . , " at the Unemployment Compensation hearing Peterson admitted that the
strikers were not in the way at all
This operation was'required at intervals for the purpose of washing out the pipe-line,
and the responden t was paid for the time spent in such necessary pumping of water.
UNITED DREDGING COMPANY 771
received full pay for operations that day. Nothing resulted from
the incident. Thereafter Currie did remind the levermen that the
respondent would not receive pay for unnecessarily pumping water.
Currie testified that the delegates did-not threaten him, that "there
wasn't anything like that," and that the action of the union delegates
in reporting to him that the, dredge was pumping water "wasn't
as one might think." 33nearly as bad
The respondent contends that the strikers entered the galley, dis-
possessed the regular personnel, and appropriated food, and supplies,
and that the shore employees plundered its stores. The contention
that strikers dispossessed the regular personnel in the galley finds no
support in the evidence. The galley crew did not leave the galley
until 10 or 10:30 o'clock. When it did so, Powers, the cook, lowered
the fire in the 'stove, pushed the food back from the hottest part of
the stove, and informed Steward Chisholm of what he had done.
With regard to the asserted appropriation of food and supplies
and the plundering of stores, the evidence shows merely that during
the strike, strikers, including some shore employees, partook of
coffee, pie, soup, or other food, upon the invitation of Steward
Chisholm. Chisholm denied extending such an invitation. The
Trial Examiner, who found, as noted above, that Chisholm's testi-
mony was thoroughly discredited, did not credit his denial. Nor du
we. Little food, above the amount ordinarily consumed by the
dredge employees, appears to have been consumed during-the strike."
iS Another incident deserves mention About the time of the commencement of the strike
Assistant Foi eman Abbott requested one or more members of his gang to assist in changing
-valves Sherlock told such employees to stop ,Nork Abbott inquired of the employees
whether he or Sherlock was "boss " The employees followed Sherlock to the dredge
Thereafter on the dredge there took place a verbal interchange between Abbott and Sher-
lock, in the couis3 of which Sherlock told Abbott "Next time I give orders around here,
keep your mouth shut; if not, I put you overboard" Abbott testified that lie ate breakfast
on the dredge, that the above incident then occurred, and that lie was "kind of scared" as
a result thereof, and therefore, instead of returning to work on shore as he had intended,
lie went home. At the Unemployment Compensation hearing, howevei, lie did not claim
that the incident in question interfered with ins returning to work, but merely stated, "I
usually go on the dredge I always eat in the morning But then I heard this argument
and I was going on home" Deck Captain Peterson testified that he did not try to stop
Abbott lion going home, since the latter had worked all night, that he would not permit
Abbott to work more than 10 hours, and that although Abbott was needed on shore during
the strike, he thought that he could do without him. We find, as did the Trial Examiner,
that the foregoing incident had no serious significance
a+McGiath, who was in charge of ordering all provisions pad supplies for the dredge, was
unable to state how much in ialue of food was consumed on October 3 Steward Chisholm
was unable to estimate approximately how much food above normal was consumed or
wasted that day, testifying, however, that there was "quite a bit more" consumed and
wasted because he could not carry any over for supper, as lie normally did First Cook
Powers, who prepared both dinner and supper that day, testified that no more food was
prepared than usual and that when lie returned to work at about 2 p m, the usual amount
of food was-left from dinner. The testimony of those shore employees, the only strikers
who were not entitled to food aboard the dredge, who testified as to the food eaten by them
that day in the galley, indicates how much food above normal was consumed on October 3
Out of nine such shore eniploy_ees, two had coffee only; one had soup; one had soup and
4101'55-42-Vol 30-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection is should be noted ' that dredge employees regu-
larly had their meals aboard, and that $1 per day was deducted
from their wages, which dollar covered at least their meals 35 All
employees were paid full wages for October 3, and the $1 was de-
ducted for that day, as usual, from the pay of dredge employees.
The respondent admittedly was liberal with meals aboard the
dredge 36 Moreover,, it was customary for shore employees to stop
in the galley for coffee, pie, or other food. At times shoremen
would ask permission to partake of food, but frequently they helped
themselves without permission and without objection by the respond-
ent. We agree with the finding , of the Trial Examiner that on
October 3 "the shoremen were abundantly justified by established
custom'in accepting Steward Chisholm's invitation."
Voluminous testimony was introduced by the respondent with re-
gard to the alleged unwholesome condition of the galley which'
resulted from the conduct of the strikers and other employees in
eating on that day. The Trial Examiner found that this testimony
'kmakes manifest a desire on the part of the respondent to exaggerate
the confusion and disorder resulting from the cessation of work by
the galley crew. The undersigned finds this evidence of little value."
Steward Chisholm, in his testimony, admitted that he did not know
to what extent responsibility for the condition of the galley rested
upon the striking shoremen, the other strikers, the men on duty,
or the non-strikers who were on the dredge but off duty. The Trial
Examiner found-that all the employees who ate in the galley that
day "left their dirty dishes and the remains of their meals behind
them; many of them, because of the absence of the regular force,
were constrained to wash their own dishes before eating that day.
The results, when such unaccustomed kitchen workers [are] impatient
because of this extra duty, and in a hurry because of the pressure of
their duties due to the lessened force, can be easily comprehended
by anyone familiar with such situations." We concur in the fore-
going findings of the Trial Examiner in this connection.
coffee; one had soup, coffee , and pie; and four did not partake of any food in the galley.
Six of the above shore employees either carried their own lunch, as they usually did, or
shared that of other shore employees . Upon all the evidence, particularly in view of the
general incredibility of Chisholm 's testimony , we find that little food above normal was
consumed during the strike. I- I
Chisholm also testified that some of the employees brought bread out of the storeroom,
and dropped a couple of loaves in a 12 gallon pot of iced tea. The record shows that the
storeroom was being painted that day and most supplies, including bread, were piled in the
kitchen. First Cook Powers testified that no iced tea was prepared that day. Powers'
testimony was confirmed by galley employee Lee Upon the entire record, we do not credit
the testimony of Chisholm set forth in this paragraph
3i The evidence is in conflict as to whether the dollar covered living quarters and meals
or only meals.
31 In its brief the respondent states that "Four regular meals are served each day, and
coffee, sandwiches , pie, and cakes are available at all hours between meals to all members
of the crew "
UNITED DREDGING COMPANY: 773
The respondent contends that the shore employees by boarding
the dredge during the strike violated known rules. Twenty-nine
working "Rules and Regulations" were posted on the dredge and
on the tug' which carried shoremen to and from work 37 One of
these rules, provided, "Members of dump gang 38 not allowed on
pontoon line or dredge unless in course of their work." Another
rule provided that any employee disregarding the rules would be
subject to dismissal. At the hearing many employees evinced ignor-
ance of more than two or three rules and many employees, including
some shoremen, testified that they had no-knowledge of the rule
quoted above. The rules in-general and the quoted rule in par-
ticular were not rigorously enforced. A number of important rules
other than the one quoted were frequently violated and few employees
are shown to have been discharged for such violations.39 The rule
that no shoremen were permitted aboard the dredge except on busi-
ness was frequently violated, and employees were not dismissed there-
for. We find, - as did the Trial Examiner, that the shoremen were
accustomed to come aboard freely to dry or change their clothes,
to borrow money, to eat in the galley in case their lunch was lost or
destroyed, to visit their friends, and on other personal business.40
The respondent contends that the strike caused the dredge to be
inadequately manned and that, for that reason and because of its
location, the safety of the Lake Fithian was endangered by the strike.
On October 3 the dredge was operating in Diamond Point cut-off,
which is part of the main navigational channel -of the Mississippi
River, in a 61/2- or 7-mile per hour current, some 15 miles below
Vicksburg, the nearest harbor. At this location the dredge was
at-all times subject to possible hazards due to the narrowness of the
cut-off in which it- was operating, the traffic, the current, and bank
cave-ins. Government Inspector Joseph Pressler testified that if
anything out of -the ordinary had happened on October 3, there
probably would have been "a good deal of trouble." Chief Engineer
Ottesen and Chief Inspector Currie testified that it was' safer for
the dredge to continue operating+at that location than to shut down,
since when operating there are more employees on watch who are on
the alert. Currie also testified that it was unsafe for the dredge to
be shut down and tied up at that point for much longer than 24
87 At the top of\this poster the respondent informed employees that they should "Remem-
ber These Rules Are For Your Protection."
Shoremen.
99 The Trial Examiner found that "It was shown that many important rules were very
freely disregarded." In its brief the respondent admits that "Considerable laxity seems to
have been practiced in the enforcement of some of these rules . .
41 In its brief the respondent states : "Unquestionably, individual members of the shore
crew occasionally came on board in violation of rules, and were rarely reprimanded Some-
times one would lose his lunch and come aboard to ask for a meal. Others would occa-
sionally come aboard to see a friend on the deck crew "
7
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
hours. Captain Anderson and Inspector Pressler also testified that,
it was unsafe to shut down the dredge at Diamond Point.41
With respect to the foregoing contentions , it should be noted; first,
that the dredge was firmly anchored on October 3 by two cables at-
tached to shore, by two spuds , one of which was always at the bot-
tom of the river , and by a pontoon line connecting the dredge to
shore . Furthermore ', the dredge did continue to operate during the
strike, and , according to Currie , could so continue for 10 or 12 hours
with the crew that was then worlirg . In Currie 's judgment, the
dredge , was adequately manned to earn the amount paid by the gov-
ernment for full operation . Moreover , no reason appears why the
respondent could not have averted any possible danger to the dredge
on October 3 by moving it, by government towboat to a safe harbor
at Vicksburg , about 15 miles up the river , or, by its own tugs or
government towboat, to a safe harbor at St. Joseph , Louisiana, about
30 miles down the river.42 As noted above, Anderson testified that
when he left the dredge on October 3 he was not concerned about
possible occurrences aboard in his absence or about not finding the
dredge in good condition upon his return.
The respondent adduced testimony to show that the strike created
an immediate danger in the engine department because only one em-
ployee, Binney, was left in charge there before lie was joined by
Day and Edmonds. Such testimony is to the effect that the engine
department, composed of the engine room and the fire room, re-,
quired at all times the services of at least two employees to ensure
safe operation . Binney, who worked the 12 p. m.-8 a. m. watch as
well as during the strike, testified that he was left alone in the en-
gine department between about 7: 20 and about 7:35 or 7: 40. Oiler
Ladner, however , who reported for work prior - to 7:20 and then
joined the strike , testified that he notified Binney and Edmonds
before doing so. Edmonds - denied that he was so notified. Binney
did not deny such notification and testified that Cooper told him at
the time the latter informed Ladner of the strife , that lie, Cooper",
was calling employees out on strike . Cooper testified that while he
was on the way down to the engine room to call Ladner out on strike,
he told Day that no one would be there and that Day had better'
send someone down. Day , in his testimony , admitted that Cooper
notified ,him that there would be no one in the engine department.
41 This testimony by Currie, Pressler, and Anderson leas adduced in connection uuith the
removal of the dredge from Diamond Point on October 8, discussed in Section IV B 4, infra
ffoNNeNer, it is equally applicable to the situation on October 3
42 The respondent had little difficulty on October 8, as noted below, in moving the Late
Fithian from Diamond Point to St. Joseph, by its own tugs, about 21/ hours after deciding
so to do, and with not more than a half-hour's notice to any employees. It would appear
that if there were sufficient employees at work on October 3 to continue operations, there
were sufficient employees available to move the dredge
UN'I'TED DREDGING COMPANY 775
and testified that he then went down there and found Binney alone.
From all the evidence, it appears that Binney could not have been
left alone in the engine department for more than several minutes
since Cooper notified Day of the prospective 'situation there, and
the latter then went to that department. Moreover, it appears, that
frequently in 'the pas', a fireman had been left alone in the engine
department for.as long as,20 or 30 minutes or longer. We conclude
that the strike did not create a dangerous situation in the' engine
department.
The respondent also adduced testimony to show that a dangerous
situation was created by the strike in the shore department, in that
the pipe line might have become plugged and' burst acid in that the
strike took place at the very time when valves had to be changed
on shore, assertedly a: dangerous operation' when performed with
inadequate help. However, the respondent could have averted any
possible danger of plugging by stopping the pumping of mud and
pumping water instead. In addition, Chief Inspector Currie testi-
fied that he did not think there was any great danger of the pipe
line's- bursting on October -3 and ' the valves were' changed by two
supervisory employees without mishap.
Since it appears that the respondent could have averted any pos-
sible dangers in the engine department, shore department, or to the
dredge in general, resulting from the continuance of operations at
Diamond Point, by shutting down the dredge and moving it to a
safe harbor, and in view of the other circumstances set forth above,
we find that the strike of October 3 did not endanger the safety
of the dredge.
Finally, the evidence indicates that the real basis for the respond-
ent's objection to the conduct of the employees on October 3 was
merely the refusal of certain of them to work that day. Thus
Captain Anderson testified as follows :
Q. What did you tell the office when -you, called "them ?
A. I told them that the thing was serious, that there was a
strike. I probably named the-used the name "sit-down strike"
in it. '
Q. How did you happen to use that?"
A. Because they took possession of the plant.
Q. Just tell us how they took possession of that dredge be-
fore you left it'that'morning?
A. How they took possession? -
Q. Yes, sir.
A. By not performing their duties. -
_776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. That is all they did?
A. That was enough, so Jar as_ I was concerned.,
Q. You call that taking possession of the dredge?
A. Yes, sir.
In this connection also, Paymaster McGrath testified as follows :
Q. I say, the only thing you really are objecting to•is the fact
the men did not work, is that right?
A. Yes, sir.
Q. Not to the fact that they stayed on the dredge ; isn't that
right?
A. Well, they would stay somewhere, anyhow. -
Q. It would not have mattered where they stayed; it was the
fact they didn't work that bothered .you, isn't it?
A. Yes, that they went on a strike, yes.
Q. The fact it might be called a sit-down strike or a harum-
scarum strike, or whatever name you might give it, doesn't make
any di$erence; the mere fact they stopped work is what you
objected to, isn't that right?
A. Yes, sir.
Captain Anderson and Cooper both returned from Vicksburg at
about 2 p. in. Anderson went up on top deck and announced, in
accordance with orders received from Dueease, that all the employ-
ees, including Baldridge, Sherlock, and Cooper, could return to work,
and all did so. The evidence is in sharp conflict, which we find it
unnecessary to resolve, as to whether this- strike settlement was on
a temporary or permanent basis and as to whether its asserted 43
"temporary" character was communicated to or-understood by the
employees.
3. Conduct of employees between October 4 and 9
The respondent adduced testimony to show that after October 3
its employees grew lax in their work and that its supervisory em-
ployees reported that they could not obtain from employees the same
cooperation as previously.
Captain Anderson testified that "so far as the strike is concerned,
those men were just as good afterwards as they were before, if they
had stuck to their business , but they were putting themselves in
such a position , as "far as J was concerned , I could never depend
on them anymore as a group of men." However, Anderson was
unable to name any specific supervisory employees to whom be had
spoken concerning the alleged loss of discipline over employees,
41 By the respondent
UNITED DREDGING COMPANY 777
nor could he specify any.particular work with respect to which super-
visory employees had reported Tack of cooperal;ion. When pressed
to be specific regarding such alleged reports of supervisory employees,
Anderson stated that he himself observed employees slowing up and
talking instead. of attending to their work. A number of other
supervisory employees also testified regarding the alleged general
slowing up of employees and their refusal to obey orders" Most
of this testimony was controverted by witnesses .for 'the Board and is
shown in the record to be incredible.45 At the meeting of the
Union on September 28, the employees had resolved to work more
industriously than previously so as to prevent the arising of any
cause for discharge of any of them. Many employees testified
that they and other employees worked after October 3 as hard as
or harder than they had theretofore. Moreover, there is evidence
that certain employees were required by the respondent to work
harder after October 3 than theretofore. Upon all the evidence,
we find, as did the Trial Examiner, that the record does not sup-
port the contentions of the respondent, regarding the conduct of
employees after October 3.48
a Foreman Donorlo testified , regarding the work of shore employees after October 3, that
some of then worked all right, and some , they didn ' t." However , be named no specific
employees whose work became deficient . Assistant Foreman Vickery testified that after
October 3 Sherlock became slow in carrying out orders . When pressed to be more specific,
Vickery stated , "All I know, he just didn 't get around like he used to." Sherlock, however,
testified that after October 3 he and other shore employees worked harder than theretofore
and denied that he was slow in his work or that Vickery complained to him about being
slow. Assistant Foreman Dente testified that after October 3 some employees were slow in
carrying out orders and that he complained about their work to Anderson . Dente also
cited the names of a number of employees who allegedly did not satisfactorily respond to
his orders during that period. However , Sherlock and Bruce Campbell testified that two
of the employees charged by Dente with slowness and inefficiency , did not even work under
Dente during the week following October 3 . Furthermore , Dente'testified at the Unemploy-
ment Compensation hearing that he made no complaint whatsoever about the slowness and
inefficiency of employees after October 3. Upon the entire record , we do not credit the tes-
timony of Donorio, Vickery , and Dente set forth in this paragraph.
Steward Chisholm testified that the employees under him assumed a different attitude
toward their work after October 3 , that they "didn ' t want to do anything or didn't know
bow," and that sometimes they would refuse 'to obey orders . Galley employees Powers and
Lee denied that they or other employees in the galley performed their work in a different
manner after October 3 , or that they or other employees refused to obey orders . In view
of the general unreliability of Cbisholm 's testimony and upon the entire ' record, we do not
credit his testimony set forth in this paragraph.
Chief Mate Ritt charged Baldridge with refusal to move a wire on one occasion after
October 3 , upon request by him. Baldridge denied having so refused . Upon the entire
record , we credit his denial.
Assistant Foreman Abbott testified that after October 3 the employees under him "don't
want to do anything ," and cited two employees with whom he had difficulties . He charged
one of these employees with assuming a defiant attitude toward him and the other with
taking too long a time to carry a bucket of water from the dredge . Paymaster McGrath
charged galley employee Hopkins with failure to pick up some cups on deck , upon request by
him -
15 See footnote 44.
46 We except from this finding the charges made by Abbott and McGrath , as noted above
In footnote 44, against specific employees , which charges were not denied However, it is
sufficient to state, in respect to these charges , that they were not subsequently used by the
respondent as a basis for selecting the employees in question for discharge
i
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The discharges of October 9; conduct of employees on October 9;
interference, restraint, and coercion.
On October 4, . Vice-President Dueease and Eberhard Deutsch,
counsel for the respondent, conferred in Vicksburg with Captain
Anderson, Chief Engineer Ottesen, and Paymaster McGrath regard-
ing the events of the previous day. The making of an investigation
of such events was delegated to Deutsch and Dueease instructed
Captain Anderson to take no action regarding his employees except
upon advice ' of Deutsch. The extent and character of Deutsch's
investigation of the events of October 3, other than his conference
with Anderson, Ottesen, and McGrath on October 4 and as indicated
below, is not disclosed by the record.47
Shore employee Bruce Campbell testified that in a conversation
about the Union on about October 4 with Assistant Foreman Vickery,
the latter referred to the "trouble" and told him that "the company
would fire us every one if they could get by with it." Vickery did
not specifically deny having made this statement but testified gener-
ally that he had not attempted to discourage or prevent any employee
from joining the Union, that the Union "wasn't anything" to him,
and that he "didn't say anything." Upon all the evidehce,4S we,
find, as did the Trial Examiner, that Vickery made the foregoing
statement substantially as testified to by Campbell.
During the morning of October 8 Dueease and, Deutsch conferred
in Dueease's office regarding the strike of October 3 and the conduct
of the employees subsequently. Deutsch informed Dueease, accord-
ing to the latter's testimony, that he had spoken to Captains Ander-
son and Peterson and that they had told him that the employees
had become undisciplined and deficient in their work and that they,
Anderson and Peterson, did not want to continue operations under
those conditions unless compelled to do so`. Deutsch further stated
to Dueease that the respondent had a right to discharge all employees
who had participated in the strike of October 3 and recommended-
that such action be taken immediately. Dueease thereupon attempted
to reach Captain Anderson by telephone.
Meanwhile, early in the morning of October 8 the dredge ceased
operations so that certain repairs might be made. Shortly before
noon Captain Anderson called Dueease by telephone from Vicii:sburg
and informed him of the shut-down for repairs. Dueease- told An-
derson that he had been trying to reach the latter by telephone.
Deutsch then informed Anderson that the employees who had par-
ticipated in the strike were to be discharged, and it was then decided
t
17 The record does show that Deutsch requested one of his professional associates to
investigate the law with respect to sit-down strikes
48 We note particularly similar remarks made by Vickery to John Campbell, referred to
below.
UNITED DREDGDNG COMPANY 779
by Dueease and knderson that the Lake Fithian should be moved to a
safe harbor at St. Joseph, Louisiana,. about 30 miles down the river.
Deutsch informed Anderson that on the following morning he would
send the latter a telegram relative to the discharges.
Captain Anderson returned to the dredge at about 2 p. m. and
at about 2:30 the dredge was moved by the-respondent's tugs, the'
Janet and the California, without the customary notice to employees,
and arrived in St. Joseph at about 8: 30 p. m. Previously when the
Lake Fithian had been moved such distances it had been moved by
government towboat. The evidence indicates that the dredge would
not have been moved to St. Joseph on October 8 for such extensive
repairs as were thereafter made if the respondent had not planned
to discharge most of its non-supervisory employees.
Shoreman John Campbell testified that on October 8 Assistant
Foreman Vickery told him that if he would leave the Union and
"keep his mouth shut about it" Vickery would see to it that he re-
tained his employment but that otherwise Campbell would be dis-
charged. According to Campbell, Vickery also stated, "You are going
to get fired for joining the Union. That is what I told everyone
-of you; you are just as good as fired." In his testimony, Vickery did
not specifically deny having made these statements. Upon all the
evidence'49 we find that Vickery made the statements substantially as
testified- to by Campbell.
During the morning of October 9 Captain Anderson received the
following telegram :
OCTOBER 8, 1939
CAPTAIN BEN ANDERSON
C/O WESTERN UNION -
ST. JOSEPH , LOUISIANA -
ON OCTOBER THIRD YOU ADVISED US THAT CERTAIN MEMBERS OF YOUR
DREDGE CREW, IN PROTEST OVER TILE DISCHARGE OF THREE MEN, WERE
ENGAGING IN A SIT-DOWN STRIKE AND REFUSED TO WORK, AND THAT A
LARGE NUMBER OF THE SHORE CREW HAD BOARDED THE DREDGE AND
REFUSEDI TO LEAVE ; THAT ALL ENTERED TIIE GALLEY, DISPOSSESSED
TIIE REGULAR PERSONNEL, APPROPRIATED FOOD AND SUPPLIES, REFUSED
TO RETURN TO THEIR POSTS WHEN REQUESTED, AND PREVENTED THE
OTHER MEMBERS OF THE CREW AND TIIE OFFICERS FROM PERFORMING
THEIR WORK, THE DREDGE REMAINING INADEQUATELY MANNED AND
PROTECTED. AS AN EMERGENCY MEASURE, WE AUTHORIZED IMMEDIATE
COMPLIANCE WITH THE DEMANDS OF THE MEN ON A TEMPOR H1IY BASIS
FOR THE PROTECTION OF OUR PROPERTY AND TO AVOID FURTHER LOSS
PENDING INVESTIGATION, WITH TIIE UNDERSTANDING THAT SUCH COM-
PLIANCE WAS WITHOUT PREJUDICE TO OUR RIGHTS TO TAKE SUCH
ACTION AS WE MIGHT LATER DEEM ADVISABLE WITH REFERENCE TO
INSUBORDINATION AND OTHER ILLEGAL ACTS OF 1IEN CONCERNED WE
HAVE NOW INVESTIGATED SITUATION AND FEEL THAT CONDUCT OF
MEMBERS OF DREDGE AND SHORE CREW WIIO PARTICIPATED IN ILLEGAL
ACTIVITIES 'WARRANTS THEIR IMMEDIATE DISCHARGE YOU ARE AC-
CORDINGLY INSTRUCTED TO DISCHARGE AND REPLACE AT ONCE ALL MEN
WHO PARTICIPATED IN ILLEGAL ACTS SET FORTH ABOVE. IF YOU FIND
THAT THE PARTICIPATION OF ANY OF THESE MEN WAS INVOLUNTARY
AND TO AVOID POSSIBLE PHYSICAL CONFLICT, YOU ARE AUTHORIZED TO
REINSTATE THEM.
UNITED DREDGING COMPANY
19 Similar remarks to Bruce Campbell are noted above.
I
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Thereupon Captain Anderson, Deck Captain Peterson, Chief Engi-
neer Ottesen, and Paymaster McGrath proceeded to prepare a list
of employees to be discharged. Prior to the listing of such em-
ployees, the above four supervisory employees did not question other
supervisory employees, with one exception,50 or any other employees,
or otherwise make any investigation concerning the participation of
individual employees in the events of October 3. In preparing the
list of employees to be discharged, the above-named supervisory
employees merely relied upon their recollection of the events of
October 3. . It is evident from the testimony of these supervisory
employees and the names of those who were listed by them, as noted
below, that little consideration was given to the cases of individual
employees. Paymaster McGrath testified with regard to the selection
of employees to be listed for discharge as follows :
Q. You didn't discuss the activities of each individual on
October 3?
A. No. We knew-I knew and Captain, Peterson knew and
Ottesen knew certain fellows, certain names on there that we had
seen participate in this sit-down strike, so we added their name. I
think we took most of them-you know, sort of a lump sum. -
According to the testimony of Anderson and Ottesen, employees
were selected for discharge merely because of their presence on the
dredge on October 3.51 Employees who did their work as usual on
October 3 were'not selected for discharge.52
At about 12:15 or 12:30 p. m. on October 9 Deck Captain Peterson'
posted on the bulletin board of the dredge the above telegram and
a list of employees under a notice reading as follows : "The follow-
named men will be paid off at one o'clock p. in. this date : Sun-
day, October 9, 1938." This list contained the names of the 40 em-
r' McGrath asked Forrester whether any employees on his watch had participated in the
strike and Forrester reported that Leverette and Newton had taken part.
"Anderson testified as follows : -
Q. You would not have expected them to remember the name of every man and
everything he did aboard the dredge on October 3rd, would you?
A. Well, we could-we knew the crew out there, who was working and who wasn't.
It wasn't a question of who done it; It was a question of who was aboard to do it,
because every man that was there done it, or had the opportunity to do it, one. The
only men that I eliminate from the whole thing is the men who did not have an oppor-
tunity to do it ; they were off the dredge. The rest of them, as far as I was concerned,
they were all in it.
Ottesen testified as follows
Q. Who did you know in the engine department that took part in the October 3
strike?
A. Well, the reason I figured that they took part was that they were all on the
dredge that day, the watch that came off,-from 8 to 12 that morning [sic], and also the
day watch, so I figured all of those men, which was five of them, had taken part in that
sit-down strike . .
cz On October 9 McGrath told cabin boy Singleton, who had worked on October 3, "We
are not discharging anybody that did their work." -
I
UNUED DREDGING COMPANY 781
ployees listed in Appendices A, B, and C. The respondent con-
sidered the discharge of these employees effective as of the time the
list was posted. -
All the employees listed, for discharge had joined the Union prior
to October 9. The list included the names of all employees who
failed to perform their duties between 8 a. m. and 2 p. in. on Octo-
ber 3, as well as those of the shore employees whose watch had
ended at 8 a. m. on that day. The list also included the names of
oiler Peterson and fireman Hall, who had completed their 12 p. m.-
8 a. m. watches on October 3.53 First Engineer Day in his testimony,
admitted that he knew of nothing that Peterson had done on Octo-
ber 3 which made him liable for discharge. Hall had slept in his
room aboard the dredge during most of the strike period on October 3.
The list further included the names of deck hands Leverette and
Newton but not those of deck hands Cobb and Eugene Smith,
although all four of these employees had completed their 12 p. m.-
8 a. m. watch on October 3. .14 As stated above, Leverette was not
present on the dredge during most of the strike period: Newton
played poker on top deck, as men off duty were permitted to do, dur-
ing most of that period. Cobb, after completing his watch on
October 3, had breakfast and a bath, read and slept in his room aboard
the dredge for about an hour, and then, as men off duty were per-
mitted to do, walked about on deck. When questioned at the hearing
as to whether he was on strike on October 3, Cobb answered, "No-
well, I was with the boys, yes."
The list of discharged employees also included the names of deck
hands Marsh, McCool, Fleming, and Elmer Smith, who were all off
duty that day until 4 p. in. Elmer Smith was not even present on
the dredge during the strike period.55 Marsh, McCool, and Fleming,
who lived aboard the, dredge, did nothing during the strike period on
October 3 but loaf on deck with other employees. Deck Captain
Peterson testified that he placed the names of these deck hands on
the list because "they mobbed up with the bunch" and Captain
Anderson testified as follows with regard to them : -
Q. It was quite legitimate for those four deck hands to be on
the dredge between 8 and 2 that day?
A. That depends on where they were. If they were mixing
up with the other crowd, that was where they didn't belong ...
Q. So far as merely being on the dredge, that was legitimate?
13 Hall's reinstatement and an offer of reinstatement to Peterson are discussed below.
u See footnotes 25 and 50. Although Cobb was not listed for discharge, he went to Mc-
Grath on October 9 and told him that he was "quitting," stating to McGrath that "as I had
joined the union, I felt like I should quit " Cobb's reinstatement is noted below
11 An offer of reinstatement to Elmer Smith is discussed below.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. As far as staying on the dredge, there is no objection to
that.
Q Just what do you mean by mixing up with the other crowd?
A. Well, I mean by that, mixing up with the men that re-
fused to work.
Q. You mean playing poker with them?
A. Oh, playing poker is not a sin.
Q. Not even with the men who refused to work?
A. No, so long as they used their judgment.
First Engineer Day testified with regard to dredge employees who
were off duty during the strike period, as follows:
Q. So that all the men who paid $1 a day and who were not
on duty had a right to remain on the dredge as long as they
wanted to that day, didn't they?
A. Correct.
Q. There was no cause to discharge them for that, was there?
A. Not that I know of, unless they violated some other rule.
Q. What other rule might there be they 'could violate?
A. Well, interfering with the ones that were working, or
anything else.
Q. Did you see -any interference with the ones that were
working?
A. I didn't actually see it, no, sir.
Among those not included on the list was Joseph Lawler, a mem-
ber of the crew of the tug Janet, who was off duty during the strike'
period but who was-present, on the dredge during part of the strike
period and participated in the poker game on top deck.
The respondent's answer alleges that certain of the respondent's
employees, when notified of their discharge on the morning of Oc-
tober 9, engaged in a second sit-down strike aboard the dredge and
refused to leave until compelled to do so by'deputy sheriffs.
After Peterson posted the list of discharged employees, dredge
employees congregated around the bulletin,' board and, discussed
matters relating to their discharge. The employees were doubtful
concerning the validity of certain checks'tendered by the respondent
to discharged employees in full payment for their services, since they
were dated October 9-a Sunday. Some employees were also con-
cerned about whether they would be able to cash the checks on Sun-
day in the small town of St. Joseph and about whether they, would be
able to procure a place of lodging for that night. Although Captain
Anderson requested the employees several times to- collect their
wages, they did not, do so and remained on the dredge. Baldridge
and Cooper, acting as spokesmen for the employees, informed Ander-
UNITED DR'EDGII1^''G` COMPANY 783
son that the employees were doubtful of the validity of the checks
and stated that the employees would leave immediately if Anderson
would pay them in cash or by checks dated on the following day. In
the alternative, Baldridge and Cooper requested permission for the
employees to stay on the dredge overnight and accept their wages
the next morning, assuring Anderson that the employees would harm
nothing and would pay for their night's lodging.56 Anderson replied
that no cash was available, that he knee nothing about checks dated
on Sunday, that he had orders to discharge the employees and re-
move ,them from the dredge, and that he would have to do so. In
this connection het-stated, "As far as I 'am personally concerned, you
boys can'belong to anything you want to. I have my orders to dis-
charge you, and I will have to do it."
The discharged employees remained on the dredge, however, stand-
ing or sitting about and talking, and some of them began a poker
game on top deck. There was no violence or interference with such
work as was being performed that day.57 The dredge was not operat-
ing on October 9 but was tied up in a safe harbor.
Meanwhile, the respondent had summoned from St. Joseph a
deputy sheriff and three of his assistants," who came aboard some
time between 2 and 3 p. in. heavily armed., Some discussion ensued
among the deputy sheriff, Baldridge, and Cooper. The latter two
questioned the sheriff's jurisdiction on board, made some reference to
the employees' rights' as citizens, and expressed their doubts concern-
ing the validity of checks dated on Sunday. The sheriff assured
them that such checks were valid and ordered the employees off the
dredge, threatening to obtain more assistance in order to compel them,
to leave, if- necessary., Shortly thereafter the employees decided to
leave and did so as soon as they could. Since it took,some time for
them to gather together their clothes and obtain their checks, the
last discharged employee did not leave the dredge until about 4:30
or 5 p. in.
Prior to the posting of the list of employees to be discharged,
Captain Anderson sent Foreman Donorio alld Assistant Foreman
Franklin to Vicksburg to bring,back with them all shore employees,
except -Franklin's gang, to collect their wages. Franklin's gang
consisted of five employees who were off duty and were not on the
dredge on October 3. When the shore employees learned that Frank-
56 The dredge employees discharged that day received pay for the full day and the usual
dollar was deducted for that day.
57 Cai pester Miguel Martinez, who worked on October 9, had a work-bench on top deck.
He testified that the employees used his bench as a rostrum from which to make speeches
and that he had a difficult tune obtaining his tools when they were needed However, there
was no actual Intelfeience with his work
59 Dueease and Deutsch had arrived in St. Joseph on the morning of October 9 and had
made arrangements for the calling of the sheriffs
I
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lin's gang had been excluded from Anderson's order, they refused to
make the trip with Donorio and Franklin. However, they did go
to St. Joseph later that day or on the following day, and most of
them collected' their wages on October 10. While notifying shore
employees in Vicksburg on October 9 of their discharge, Donorio,
after informing Shoreman Holmes that the employees were dis-
charged, said, according, to Holmes' testimony, "No .more union."
While Donorio, in his testimony, denied mentioning the Union on
this occasion, upon all the evidence,50 we do not credit his denial and
find that he\ made the statement substantially as testified to by
Holmes.
A number of other supervisory employees made coercive statements
to employees with regard to membership in the Union at or about the
time of the discharges of such employees. Deck hand Newton testified
that on October 9, shortly after his discharge, Leverman Martin Ner-
heim said to him, "If you will go down to Mr. McGrath and throw your
card in the river or tear it up, I am pretty sure he will give you your
job back, or I will go with you to see him or Captain Ben." Deck hand
Leverette testified that Nerheim made a similar statement to him on
October 9 after his discharge. Nerheim, in his testimony, denied ever
suggesting to anyone that he destroy his union card or talking to any-
one about the Union. The Trial Examiner found that Nerheim made
the statement attributed to him, by Newton. Upon all the evidence, we
find that Nerheim made the foregoing statements substantially as testi-
fied to by Newton and Leverette. -
Galley employee Hopkins testified that on or about October 11, Lev-
erman Garcia told him and galley employee Lee, "Boys, I hate to see
you all leave the dredge. I like all of you. If you all drop this union
you can come back now, but as long as you mess around it you won't
have any chance. When you got this discharge they figured the men
would scatter out, and maybe some of the best men would come back. If
you all drop this union you can get your jobs back." Garcia testified that
'he did not discuss union matters with Hopkins and Lee on this occasion
and that he did not talk to them about returning to work. Upon all
the evidence'60 we find that Garcia made the foregoing statements
substantially as testified to by Hopkins.
Other statements, noted below, similar to the foregoing, were made
to galley employee Ware on October 10 by Mate Forrester and Steward
Chisholm.61
"We have noted above other anti-union remarks and certain incredible testimony of
Donorio.
60 We note particularly other anti -union remarks by Garcia , discussed above.
61 Ware was not listed for discharge on October 9. The termination * of his employment
on October 14 is discussed below.
i UNITED DREDGING COMPANY 785
5. Reinstatements; refusals to reinstate; interference, restraint,
and coercion
Subsequent to the discharge of the employees on October 9, the Lake
Fithian remained tied up at St. Joseph for about 10 days. The
respondent began to hire new employees a few days after October 9
and by about October 20 it had a full crew, and the Lake Fithian then
resumed operations.62
Three employees who were discharged on October 9 were thereafter
reinstated. Fireman Hall was reinstated on October 13, after having
informed Chief Engineer Ottesen on October 10 that he had not par-
ticipated in the strike of October 3. 113 Shore employees W. B. Johnson
and Barney Harvill were reinstated on or about December 11, 1938,
and June 8, 1939, respectively.64 Deck hand Cobb, who was not listed
for discharge on October 9, but whose work terminated on that day,66
was reemployed as a shore hand in December 1938 and later transferred
to the deck department.66 No discharged employees, other than those
named, have been reinstated.67 McGrath testified that the respondent
reinstated some employees who participated in "that sit-down strike"
because "they [the employees] didn't know what they were doing, . . ."
The respondent's position is and has been that it would not reinstate
the discharged employees as a,group, although it might reinstate an
individual employee.
After the discharge of the employees on October 9, Siren, secretary-
treasurer of the Union, requested Baldridge, Sherlock, and Cooper to
keep the employees together pending an attempt by him to negotiate a
settlement of the dispute. The record does not show what attempt
Siren made to achieve a settlement. On October 15, however, one
Howard, a United States Department of Labor conciliator, conferred
with Dueease and Deutsch, offering his services to settle matters.
Deutsch stated-that he would rather not discuss the situation, since, in
the event no settlement was arrived at, statements made at the confer-
ence would be used against the respondent. The conference thus ended
62 The pay roll for the period October 12-18 carries the names of 39 new employees ; a
total of 91 employees.
11 Hall's activities on October 3 are noted above. Although Hall denied that he took part
in the strike, his conduct on October 3 differed little from that of other employees who
were charged by the respondent with having participated in the strike.
83 Johnson and Harvill participated in the strike of October 3 to the same extent as other
shore employees. '
05 The circumstances of its termination are noted above in footnote 54.
66 The extent of Cobb's participation in the strike is noted above. His conduct on Octo-
ber 3 did not differ from that of other employees charged by the respondent with having
participated in the strike.
07 Although McGrath testified at the hearing that shore employee John Burgess had also
been reinstated , counsel for the respondent stated at a later point in the record that he had
been advised by officers of the dredge that a position for Burgess had not yet been found
but that he would be given the first available opening.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOAi2,D
without success. On or about October 20 Siren notified Sherlock to
release the employees. Sherlock telephoned Captain Anderson and
unsuccessfully attempted, to obtain the employees' reinstatement.
Baldridge, Sherlock, and Cooper then dismissed the employees and
instructed them to attempt to obtain reinstatement individually.
Shortly thereafter5 shore employees Bruce Campbell and Angelo
Fuller, who were among those listed for discharge on October 9, and
shore employees Joe E. Brooks and Richard Reel, whose work was
terminated on, October '10_ under circumstances discussed below 9 68
applied together for reinstatement on the Lake Fithian. Reel,and
Brooks spoke to McGrath who referred them to Captain Anderson.
According to Brooks, Anderson stated to him and Reel that he had a
full crew and that furthermore, "he didn't want any man that be-
longed to the union." Anderson then told Brooks and Reel to take
the next launch ashore, as he did not want any "strangers" on board.
Brooks' testimony was corroborated by Reel. Campbell spoke to
Anderson after Brooks and Reel did and, according to Campbell's
testimony,. Anderson made a statement to him substantially similar
to the one he made to Brooks and Reel. Anderson denied, making
any such statements. Upon all 'the evidence, we do not credit his
denial and find, as did the Trial Examiner, that Anderson made the
foregoing statements substantially as testified to by Brooks, Reel, and
Bruce Campbell. When returning to shore from the dredge on this
occasion these employees met Captain Peterson, who inquired what
they were doing there and said, "You should know you' didn't have
any jobs down here."
Bruce Campbell attempted without success to obtain reinstatement
on a number of occasions other than the one noted above. His last
attempt took place on-January 1, 1939. On this occasion Foreman
Donorio, according to Campbell's testimony, informed him that he
could not reinstate Campbell because the latter "joined that mess 'over
there . . ." While Doilorio, in his testimony, denied talking to
Campbell about the Union, upon all the evidence, we find, as did the
Trial Examiner, that he made the foregoing remark, substantially
as testified to by Campbell, with reference to either the Union or
the strike.
Shore employee John Campbell twice applied for reinstatement,
but without success. With regard to his second application, Camp-
bell testified without contradiction and we' find that McGrath re-
jected it and stated, as testified by Campbell, "that I had paid atten-
tion to Thomas Sherlock, and Balcridge, and Cooper, that I had a
good job, I had listened, to them, and that caused 'me to lose my
job."
"Brooks and Reel were members of Franklin ' s-gang a nd were off duty and not present
on the dredge on October 3.
UNITED DREDGING COMPANY 787
Other statements, noted in Section IV B 8 and 9, infra, similar to
the foregoing, were made by supervisory employees to employees
Estell Burgess, Ware, and Reel, in connection with their applica-
tions for reinstatement s9 I -
A number of other employees who were discharged on October 9,
including Morgan, Leverette, Davis, and Powers, individually ap-
plied for reinstatement on the Lake Fithian, but without success.
Many other employees knew of the foregoing refusals to reinstate
employees and did not individually apply for reinstatement because
they thought it was futile to do so.
6. Concluding findings with respect to the strike of October 3, the
discharges of October 9, the subsequent refusals-to reinstate, and
interference, restraint, and coercion.
As indicated above, the respondent' contends that it lawfully dis-
charged its employees on October 9 and thereafter refused to rein-
state them because they engaged in a "sit-down" strike; because its
shore employees, in addition, boarded the dredge against known
rules, were trespassers, and plundered its stores; and because all
employees dispossessed the regular personnel in the galley, appro-
priated food and supplies, refused to return to their posts when re-
quested, prevented other members of the crew from performing their
work, and left the dredge inadequately manned and protected. The
respondent further advances as reasons for the discharge of its dredge
employees that,such employees are seamen subject to maritime disci-
pline and that their conduct in engaging in a "sit-down" strike con-
stituted a breach of such discipline, deprived the officers of the dredge,
of their authority and command, constituted mutiny and an incite-
ment to revolt, and stamped such employees as collectively incompe-
tent: The respondent also contends that certain of its dredge em-
ployees again engaged in a "sit-down" strike after their discharge on
October 9' and, apparently; that such employees were therefore
properly refused reinstatement.
As' noted above, the strike of October 3 was caused by the re-
spondent's unfair labor practices. 1 It was devoid of any violence or
interference by the strikers with the operations of the dredge, and
the dredge continued to operate. No members of the crew who con-
tinued to work were prevented from so doing. The dredge em-
ployees were entitled to quarters on the dredge by virtue of their
employment, and to the freedom of the dredge when off duty and
many were off duty during the strike. No employees, with one ex-
69 These employees were not listed for discharge ' on October 9 but Burgess and Reel were
thereafter discriminated against, as set forth in Section IV B 9, infra.
440135-42-Vol. 30-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ception, were ordered off the dredge- and all, except one, remained
there without overt objection on the part of the respondent. None
were requested to return to their posts with one or two possible excep-
tions. The shore employees were accustomed to come aboard the
dredge on personal business and the rule against their so doing was
not rigorously enforced. No personnel in the galley or elsewhere
was dispossessed. No stores were plundered, or food or supplies
appropriated, and little food above normal appears to have been con-
sumed. The strike did not endanger the safety of the dredge. The
employees did not prove themselves to be collectively incompetent by
,virtue of having engaged in a strike or by virtue of any other con-
duct on October 3 or thereafter. The conduct on the part, of certain
employees as is asserted by the respondent to have taken place after-
October 3 was not utilized as a basis for selecting such employees
for discharge. The conduct of the employees on October 9 after their
discharge was peaceful, did not endanger the dredge in any way,
and does not appear to have been unreasslnable.40
We are convinced by all the evidence that the respondent dis-
charged its employees on October 9 and thereafter refused to rein-
state them because- of their affiliation with the Union and the con-
certed refusal of union members to work on October 3 and not be-
cause of any other conduct engaged in or alleged to have been en-
gaged in by the discharged employees. We are persuaded to this
conclusion, in particular, by the respondent's antagonism to the self-
organizational activities of its employees as shown by its discharge
of Baldridge, Sherlock, and Cooper and its various acts of interfer-
ence, restraint, and coercion set out above; by the, unsupported
charges against employees made by the respondent in its telegram
of October 8; by the manner in which and basis upon which em-
ployees were selected for discharge, as asserted by Anderson, Ottesen,
and McGrath and as shown by the actual selection of employees;
by the expressed opposition of Anderson and McGrath solely' toward
the conduct of employees in merely refusing to work on October 3;
by the various threats of discharge for' affiliation with the Union
expressed to employees prior to October 9, and even prior to October
3; by the various coercive statements made to employees at or about
the time of the termination of their employment indicating that the
discharges were because of affiliation with the Union, including the
solicitation of a number of employees to give no their union affilia-
tion in return for possible reinstatement; and by the various state-
ments, made to employees in connection with their applications for re-
70 The Trial Examiner found with regard to the conduct of the employees on October 9
that "The temper of the men is proven reasonable by their discussions with both Captain
Anderson and Sheriff Harper."
UNIPED DREDGING COMPANY " 789
instatement, particularly the statements of Anderson, noted in Sec-
tion IV B 5, supra, to Brooks, Reel , and Bruce Campbell.
Nor do we find in the employees' conduct on October 3 or thereafter
such conduct as to place the employees outside the protection.of the
Act, against discrimination because of union or 'other concerted activ '
ities. The strike of October 3, which was caused by the respondent's
unfair labor practices, was entirely, peaceful. The employees did
not interfere with the normal operations of the dredge and the re-
spondent received full pay for operating on that day.' The conduct
of the employees on October 9 was also peaceful. The safety of the
Lake Fithian was not endangered either, on October 3 or 9. At no
time did the employees unlawfully seize any portion of the dredge
or despoil or damage any of the respondent's property thereon.',, At
all times the dredge "remained fully in the possession of the respond-
ent and its authorized officers." 72 At no time did the employees
claim to hold the dredge "in defiance of the right of possession of the
owner." 13 Nor did the presence of the striking dredge employees on
board on October 3 constitute a trespass. As noted above, the dredge
employees were entitled to quarters on board and to the freedom of
the dredge when off duty and some of them lived aboard. Conse-
quently the mere presence -of the dredge employees on board on Oc-
tober 3, in the absence of interference by them with the control of the
dredge by the respondent's officers, could not constitute a trespass; nor
were the dredge employees regarded as trespassers by the dredge
supervisory employees. The shore employees were accustomed to
come on board on personal business and had done so prior to October
3 without being discharged therefor. At no time on October 3 were
either the dredge employees, with one exception, or the shore employ-
ees ordered to leave the dredge and their pay was not docked for the
time spent in striking. On October,9 the discharged employees left
the dredge peacefully after being ordered to do so by the deputy
sheriff, and their conduct theretofore in remaining on board for a
n We do not, regard the conduct of employees in the galley on October 3 , under the cir-
cumstances noted above , as a despoliation of property.
7, N. L R B. v. Stackpole Carbon Company , 105 F. ( 2d) 167 (C. C. A 3 ), cert denied,
308 U. S 605 , enf'g as mod . Matter of Stackpole Carbon Company and United Electrical f
Radio Workers of America, Local No. 502, 6 N L . R B. 171.
73 See American Manufacturing Co. v. N. L R. B., 106 F. ( 2d) 61 (C. C. A 2), aff'd as
mod. 309 U. S . 629, enf ' g as mod. Matter of American Manufacturing Company et al. and
Textile Workers' Organizing Committee, C 1. 0, 5 N L R. B 443, where the Second
Circuit Court of Appeals stated :
We do not regard the action of these or other employees in standing around the
premises for a period of not more than two hours, while an attempt was being made
to persuade the Company to fix a date for collective bargaining with T. W. O. C., as'
in the nature of a sit-down strike which would permit the termination of the employee
relationship . They certainly were not claiming to hold the premises in defiance of the
right of possession of the owner and we regard the case as no different from that of an
ordinary strike where work has ceased because 'of an unfair labor practice
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of a few hours after their discharge does not appear to have
been unreasonable:
Absent seizure or retention of the dredge or damage to it as a
result- of the strike, we find, as the Trial Examiner did in effect,
that the conduct of the respondent's employees on October 3 and 9
was lawful and did not place them outside the protection of the
Act.74
We find, as did the Trial Examiner, that the respondent, by dis-
charging the employees named in Appendices A and C and failing
and refusing to reinstate the employees named in Appendix A, dis-
criminated in regard to their hire .and tenure of employment, thereby
discouraging membership in the Union.75 We further find that by
such action and by the numerous foregoing anti-union statements,
the respondent interfered with, restrained,, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
7. The offers of reinstatement to Elmer Smith and Earl Peterson
Elmer Smith, a deck hand and a member of the Union, was listed
for discharge on October 9, although he was off duty on October 3 and
was absent from the dredge during the strike on that day. Earl,
Peterson, an oiler and a member of the Union, completed his 12 p. m.-
8 a. m. watch on October 3 but remained on the dredge during the
strike period and was also listed for discharge. The, respondent's
answer alleges that on or about October 9, 1938, the respondent offered
immediate and unconditional reinstatement and employment to Elmer
Smith and,Earl Peterson and that they declined to accept such rein-
statement.
On October 9 Paymaster McGrath offered Smith reinstatement
Within 3 or 4 days. He declined this offer, stating that he "didn't
want it right now," and testified, in explanation of his refusal to
accept reinstatement, that he "figured on a job down at Fort Gibson
helping build,a house." %
On October 9 Peterson informed Ottesen that he had not partici-
pated in the strike of October 3. Ottesen thereupon told Petersen
that he could return to work in a day or so after Ottesen had investi-
11
74 Cf. N. L. R. B. v. Fansteel Metallurgical Corporation , 306 U. S. 240 , mod'g and aff'g
as mod. 98 F . ( 2d) 375 (C. C. A. 7), setting aside Matter of Fansteel Metallurgical Corpo-
ration and Amalgamated Association of Iron, Steel and Tin Workers of North America,
Local 66, 5 N . L. R. B. 930.
The respondent contends that the shore employees who were claimants before the Mis-
sissippi Unemployment Compensation Commission acquiesced in the findings of that Com-,
mission that they were discharged for "misconduct" or that they "quit voluntarily Rithout
good cause ," by failing to avail themselves of their right of appeal from the decision of the
Commission Without passing upon the merits of this contention , we desire to point out
only that Section 10 (a) of the Act provides that the Board's power to prevent unfair labor
practices is exclusive and that it "shall not be affected by any other means of adjustment
or prevention that has or may be established by agreement , code, law, or otherwise."
UN=ED" DREDGING COMPANY 791
gated the truth of his contention. Ottesen thereafter checked Peter-
son's claim with First Engineer Day and found it to be correct.
Shortly thereafter, Ottesen and Day received from Peterson a letter
,requesting a letter of recommendation for another position. Ottesen
and Day complied with Peterson's request. Peterson never returned
to the dredge.
We find that the respondent on October 9, 1938, offered to Elmer
Smith and Earl Peterson reinstatement to their former ,positions and
that, they then or thereafter refused or failed to accept such rein-
statement.
8. Lonnie Ware; interference, restraint, and'coercion
The complaint alleges that the respondent, on or about October 9,
terminated the employment of Lonnie Ware and/or since that time
'has failed or refused to reinstate or reemploy him because he joined
or assisted the Union. The answer alleges that Ware voluntarily
quit his employment on October 14, 1938, although assured that he
might continue in the respondent's employ.
Ware, second cook in the galley, joined the Union between Sep-
tember 28 and 30, 1938. As noted above, on October 2 Steward
Chisholm warned him not to associate himself with the Union. Ware
was off duty and absent from the dredge on October 3 and was not
listed for discharge on October 9.
Ware testified that while traveling to work with Mate Forrester
on October 10, Forrester informed him that all galley employees
had been discharged except Ware and Steward Chisholm. Ware
inquired of Forrester as to the reason for the discharges. Accord-
ing to Ware, Forrester replied, "For the union." Forrester, in his
testimony, denied ever discussing the Union with Ware or :telling
any employee what he, Forrester, believed to be the reason for the
discharge of employees on October 9. Upon all the evidence '71, Wd
find that-'the conversation occurred substantially as testified to by
Ware.
Ware further testified that on October 10 when he walked into the
galley to go to work, Steward Chisholm said, "You are all fired ;
everybody is fired"; that Ware replied that he was not listed for
discharge; that Chisholm then stated, "If you will tear up that -
CIO card you got and erase your name from them altogether, I
will go to Ben and see if I can get you put back;" and that Chisholm
then told Ware to report to Paymaster McGrath. Chisholm, in his
testimony, denied making the last-quoted statement to any employees.
78 We note particularly certain admissions and other anti-union remarks of Forrester set
forth In Section IV A 2, supra.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon all the evidence'71 we find, as did the Trial Examiner, that
he made substantially such a statement to Ware.
Ware further testified that he thereupon went to McGrath's office;
that McGrath asked him whether he wanted.to quit his employ-
ment; that-he replied in the negative; that McGrath then stated that
he had "some men here, Smithy' and several more, that wasn't here
that day, that we might put back" and that he would communicate
with Ware through Chisholm as to when he might return to work;
that Ware then left the dredge without his wages, in the belief that
he was not discharged; that he was never recalled to work, although
the respondent knew how to reach him; and that he collected his
pay sometime between October 10 and 26.
McGrath testified that he informed Ware on October 10 that he
could continue working; that Ware then expressed a desire to discuss
with Chisholm the matter of his continuance; that Ware did so and
then informed McGrath that Chisholm had given him permission
to take a few days off to move his trailer; that he, McGrath, assented
to that arrangement and told Ware to return on about October 13
or 14 and "everything will be okeh"; and that he carried Ware on the
pay roll until October 14. The respondent's pay roll shows ' that
Ware was carried on it until October 14.
Chisholm testified that on October 10 he told Ware that he was not
discharged and that he should ask McGrath for a day off in order
to move his trailer closer to the dredge and then return to work.
Motorboat operator Lonnie Williams testified that when he carried
Ware ashore on October 10 Ware told him that he was going to
move his trailer and would return on about October 14.
McGrath further testified that on Friday morning, October 14, Ware
came to his office on the dredge and said, "I want my time"; that
he, McGrath, was surprised at this request but replied that Ware
could have his pay if he so desired, and gave it to him; and that
normally when an employee "takes -his time he quits, severs his con-
nection with the company, in my estimation." McGrath so construed
Ware's conduct on October 14 and indicated on the pay roll that
Ware quit his employment on that date. Ware did not explain or
testify concerning his conduct on, October 14, merely stating that he
collected his pay sometime between October 10 and 26.
We find that Ware quit his employment on October 14.
On October 26, 1938, Ware visited Steward Chisholm and applied
for reemployment. Ware testified that Chisholm told him that "Cap-
tain Ben said he didn't want any man on that dredge that had a
union card or anything to do with the union ..." Clyde Glover, a
friend of Ware, who was present during the foregoing interview, in
77 We note particularly Chisholm ' s general incredibility discussed above.
UNITED DREDGING COMPANY 793
substance corroborated Ware's testimony and further testified: that
Chisholm also told Ware that "the only way he could get back on
this boat, he would have to tear up that union card he had." Chis-
holm, in his testimony, denied discussing the Union with Ware on
this occasion. Upon all the evidence; however, we find, as did the
Trial Examiner, that he made the remark attributed to him by Ware
and further find that he also made the statement attributed to him
by Glover, substantially as testified to by Ware and Glover,
respectively.
Although Chisholm effectively expressed to Ware the respondent's
refusal to consider for reemployment any person identified with the
Union, it does not appear that any position in the galley was avail-
able, which Ware could have been employed to fill, when he applied
for reemployment. Under the circumstances, we find that the re-
spondent has not discriminated in regard to Ware's hire or tenure
of employment. We find, however, that by the foregoing statements
or Forrester and Chisholm to Ware, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
9. Joe E. Brooks, Estell Burgess, Mack Guice, Richard Reel, Robert
Sibley, and Eugene Smith; interference, restraint, and coercion.
The complaint alleges that the respondent, on or about October 9,
1938, terminated the employment of the above-named employees
and/or since that time has failed or refused to reinstate or reemploy
them because they joined or assisted the Union. The respondent's
answer alleges that Smith voluntarily quit his employment on Octo-
ber 9, and that the other employees did so on October 10.
Each of these employees was a member of the Union. Smith, a
deck hand, completed his watch on October 3 and was present on
the dredge during the strike period, but was not listed for discharge
on October 9. Brooks, Burgess, Guice, Reel, and Sibley, the shore
employees who composed Assistant Foreman Franklin's gang, were
off duty and absent from the dredge during the strike period on
October 3, and, likewise, were not listed for discharge on October 9.
Prior to October 10 the members of Frahklin's gang had agreed
among themselves to "quit" in the event that the employees who had
gone on strike on October 3 were discharged. The work, of each
of these six employees was terminated on October 9 or 10, 1938, under
similar circumstances.
Smith informed his immediate superior, Mate Forrester, on October
9, that he intended to "quit," that he had "joined the Union and
decided [he] might as well stick wiLh the bunch." Smith came to
McGrath's office on October 9 and tie members of Franklin's gang
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did so individually on October 10. McGrath asked each of these
employees whether they wanted their "time." Smith, Brooks, and
Sibley each answered in the affirmative and took his wages. Reel
likewise replied in the' affirmative, saying, "I guess you had better
give it to me, because I belong to the Union, and the other boys
wants me to get out with them," and took his pay. , Similarly, Guice
told McGrath that he ,was "going with the Union," and took his
wages. Burgess, when asked by McGrath whether he wanted his
"time," replied, "I guess so," but denied that he was "quitting," re-
ferred to the fact that he had family responsibilities, and "explained
to [McGrath] about the Union." After some conversation with
McGrath and Donorio about available work, Burgess was told by
McGrath to draw his wages. and that "It might be a period of time
before I [McGrath] can start up, until all of this here blows over,
this union blows over." With regard to the circumstances surround-
ing the termination of work of the foregoing employees, McGrath
,testified, "I told all of those fellows they didn't have to quit, but
they contended that they belonged to the Union."
From all the evidence, we are convinced that these employees con-
certedly refused to work on October 9 or 10; because of the respond-
ent's discriminatory discharge of their fellow employees. We find
that the work of Brooks, Burgess, Guice, Reel, Sibley, and Smith
ceased on October 9 or 10, as a consequence of and in connection
with a current labor dispute and because. of the respondent's unfair
labor practices. These' individuals, therefore, retained their status
as employees, thereafter, -within the meaning of Section 2 (3) of
the Act.
On October 13 or 14, 1938, and thereafter, the respondent hired
many new deck hands and shore employees. As noted above, the
Union made an unsuccessful collective application.for reinstatement
of the Lake Fithian employees about October 20. We find that Smith
and the members of Franklin's gang were included within this appli-
cation. Moreover, about October 20, as noted above, Reel and Brooks,
together with two other employees, sought reinstatement and were
told by Captain Anderson that he had' a full crew and, in substance,
that he would not employ members of the Union. ' When returning
to shore from the dredge on' this occasion,-these employees met Cap-
tain Peterson, who inquired what they, were doing there and said,
"You should know you didn't have any jobs down here." A day or
two thereafter Reel met CaptainnPeterson in Vicksburg Rnd Peterson
said, inter alia, "See Sherlock; maybe he will give you a job :.
Why didn't you see some of us before you ever joined the Union?".
Some time toward the end of October, Burgess met McGrath by
appointment in Vicksburg- and inquired regarding the possibility of
UNITED DREDGING COMPANY 795
returning to work. McGrath stated, according to Burgess, that some
employees had applied on the dredge, for reinstatement that day and,
that Captain Anderson had compelled them to leave, promised to
take up the matter of Burgess' reinstatement with Anderson, and
added, "if you get your job back, in case you listen to Tommy Sher-
lock, you all cut his damned throat." In his testimony, McGrath
denied telling Burgess that if, he had not listened, to Sherlock he
would still have his job but admitted that he might have told Burgess
that he should not have listened to Sherlock and further admitted
that he referred to Sherlock "in lots of no uncertain terms at different
times." Upon all the evidence, we find that McGrath made the fore-
going remarks about Sherlock, substantially as testified to by Burgess.
McGrath never communicated with Burgess thereafter.
Sibley, Guice, and Smith did not make individual applications for
reinstatement. Sibley, did not do so because Reel and Brooks had
informed him of their futile applications. Guice, likewise, had 'been
informed by Brooks that the respondent had indicated that it would
not reinstate members of the Union. Smith testified that he had
heard of a number of employees who applied for reinstatement with-
out success,. and that he had wanted to return to work for the
respondent but did not think that the respondent had any desire for
his services. As indicated above, the respondent's refusals to rein-
state members of the Union were generally known to the employees.'
Under these circumstances,' we find that Sibley, Guice, and Smith
were justified in not making individual applications for reinstatement.
It does not clearly appear whether the positions of all these
employees were filled by new `employees at the time of their collective
and individual applications for reinstatement. Assuming, however,
that this was the case, it is apparent that-the respondent would have
been able, by displacing persons hired after October 10, to have re-
stored all these employees to their former positions at the time,of
their applications for reinstatement. This the respondent refused
to do. Aside from the respondent's intention to discriminate against
members of the Union, as found below, there is nothing in the record
to show that the respondent's refusal 'of such reinstatement was based
upon grounds other than 'the desire not to displace new employees.
As noted above, under Section 2 (3) of the Act these individuals
remained employees of the respondent. We have frequently held
that where, as here, employees have ceased work because of an em-
ployer's unfair labor practices, such employees are entitled to their
former positions upon making 'application therefor. The failure of
the respondent to reinstate the six employees in question, to the posi-
tions to which they were entitled, by displacing new employees, if
necessary, in effect and in result discriminated; and constituted' a
discrimination, concerning hire and tenure of employment,' against
796 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
these employees. Such discrimination discourages union member-
ship. We find that by the foregoing refusal to reinstate these em-
ployees, the respondent has engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act, and has interfered with,
restrained, and coerced its employees in the exercise of 'the rights
guaranteed in Section 7 of the Act.78
Independently of the foregoing, we are convinced from all the
evidence that the actual reason for the respondent's refusal to rein-
state these employees lay in its desire to punish them for their
affiliation with the Union and thereby discourage membership therein.
We find that the respondent, about and after October 20, 1938,
failed and refused to reinstate Joe E. Brooks, Estell Burgess, Mack
Guice, Richard Reel, Robert Sibley, and Eugene Smith, because of
their affiliation with the Union, thereby discriminating in regard to
their hire and tenure of employment and discouraging membership i
in the Union.79 The respondent thereby and by the foregoing state-
ments made by Peterson and McGrath to Reel and Burgess in con-
nection with their applications for reinstatement, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate. unit
The complaint alleges and the answer denies that the nonsuper-
visory employees of the respondent employed on board or in con-
nection with or to assist in the maintenance or operation of the
dredge Lake Fithian, excluding captain, deck captain, engineers,
levermen, foremen and subforemen, other supervisory employees, and
clerical employees, constitute a unit appropriate for the purposes of
collective bargaining. The respondent contends that the appropri-
ate unit consists of all employees on board or employed in connec-
tion-with the operation of all the respondent's dredges in its New
Orleans division, excluding supervisory employees having authority
to hire and discharge employees.
In support of its contention for the larger unit the respondent
asserts that the interchange of employees among its various dredges,
" Black Diamond Steamship Corp. v. N. L. R. B., 94 F. (2d ) 875, cert. den , 304 U. S.
579; enforcing Matter of Black Diamond Steamship Corporation and Marine Engineers'
Beneficial Association, Local No. 33, 3 N. L. R. B. 84; Matter of McKaig-Hatch, Inc. and
Amalgamated Association of Iron,\Steel, and Tin Workers of North America , Local No.
1139, 10 N. L. R. B . 33; Matter of Western Felt Works, a Corporation and Textile Workers
Organizing Committee , Western Felt Local, 10 N. L . R B 407, enf 'd by consent decree,
Western Felt Works v. National Labor Relations Board , March 25, 1939 (C. C. A. 7).
71 The Trial Examiner found that the respondent discriminated with regard to the hire
and tenure of employment of Burgess , Brooks, and Sibley on October 10, and of Smith
Reel, and Guice on October 20.
797UNTIED DREDGING COMPANY
I
their operation in the same general area,'and the similarity of rates
of pay and hours of work of employees on the various dredges,
require such a unit. However, but little interchange of employees
is shown by the record. Although the distances between them vary
from time to time, at the time of the hearing the several dredges of
the respondent then operating in the New Orleans division were
between 100 and 200 miles apart. Each dredge is operated by the
respondent under a separate contract with the United States. It r
does not appear that the employees on any of the respondent's
dredges other than the Lake Fithian have designated any collective
bargaining representative or representatives. Under these circum-
stances we find that a unit composed of the employees of all the
respondent's dredges in its New Orleans division is not appropriate
for the purposes of collective bargaining.
The Union contends that all supervisory employees should be ex- -
cluded from the unit, since they are ineligible to membership in the
Union. The respondent seeks to limit the exclusion of supervisory
employees to such employees as have authority to hire and discharge
employees. We shall exclude from the'unit all supervisory employees,
including the following whom we have found in Section III, supra,
to be supervisory employees : superintendent, deck captain, paymaster,
chief engineer, shore foreman, levermen, extra leverman, chief mate,
first mates, first, second, and third engineers, steward, assistant shore
foremen, master of the tug Janet, and master of the-tug California.
The Union contends that the following employees also should be
excluded from the unit as supervisory employees : deck oiler, handy-'
man, machinist, welder, blacksmith, carpenter, electrician, 'motorboat
operator, and tug captains other than the tug masters. Since, as we
have found in Section III, supra, these employees are not supervisory
employees, we shall include them in the unit.
We find that all employees o - the respondent employed on board
or in connection with or to assi;,t in the maintenance or operation
of the dredge Lake Fithian, including deck oiler, handyman, ma-
chinist, welder, blacksmith, carpenter, electrician, motorboat oper-
ator, and tug captains other than tug masters, but excluding super-
intendent, deck captain, paymaster, chief engineer, shore foreman,
levermen, extra leverman, chief mate, first mates, first, second, and
third engineers, steward, assistant shore foremen, master of the
tug Janet, and master of the tug California, at all times material
herein constituted and that they now constitute a unit appropriate
for the purposes of collective bargaining and that said unit will
insure to employees of the respondent the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuate the policies' of the Act.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Representation by the Union of the majority in the appropriate
unit -
During the pay-roll periods, of September 28 to October 4 and
October 5 to October 11, 1938, there were 68 employees within the
appropriate' unit. As noted above, about 40 such employees joined
the Union at a meeting thereof on September 28. As stated by the
respondent in its brief : "All present at the ' meeting, including a
large majority- of the non-supervisory personnel of the ship, signed
applications for membership in, and became members of, the Inland
Boatmen's Union . . . Following the meeting, most of those mem-
bers of the crew who had been unable to attend . . . also joined
the union, so that within a few d'iys, practically all of the unlicensed
or non-supervisory employees of the vessel had become members of,
_the organization." At the hearing counsel for the Board and coun-
sel for the respondent stipulated, that 56 named persons were mem-
bers of the Union prior to October 9, 1938. These persons, with
one exception, were all employees of the respondent during the pay-
roll periods meationed above and all, with two exceptions, were in
the appropriate unit.
We find that on September 28, 1938, and at all tines thereafter,
the Union was and that it is the duly designated representative
of a majority of the employees in the appropriate unit. Pursuant
''to Section 9 (a) of the Act, the Uii.ion was and is therefore, the
exclusive representative of all the ' employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain collectively
The complaint alleges, in - substance , and the answer denies that
the respondent on -or about September 30, 1938, refused and has
since refused to meet or bargain collectively with the Union as
the duly authorized representative of the employees . In its answer
the respondent avers, in substance , that it stands ready and willing
to bargain collectively with the duly authorized and accredited
representatives of its employees within a unit appropriate for the
purposes of collective bargaining.
On September 30, 1938, the Union wrote the following letter to
the respondent :
This is to inform you that we have been designated as the
collective bargaining agency for your men employed on the
Dredge Lake Fithian , operating in the vicinity of Vicksburg"
.Who have nearly all become members of our organization,
UNITED DREDGING COMPANY " ' 799
Inasmuch as we understand that in contracting for your dredg-
ing operations, each one of your-dredges is necessarily treated as
a separate unit, we are herewith calling on you to set a date for
the opening of negotiations for an agreement for all the men
employed on the dredge Lake Fithian only, and are prepared to
show that "we represent a majority of these men.
Similarly, the crews of any other dredges, which may from time
to time become members of our organization, will be treated as
separate units for purposes of collective bargaining in keeping
with the foregoing.
The letter arrived in the respondent 's New Orleans office on October 3.
Dueease was absent from his office on that day but was informed by
telephone of the receipt of the letter and received a copy of the letter
at Vicksburg on October 4.
As we have found above, on October 9 the respondent discrimina-
torily discharged a large rajority of its employees who were members
of the Union. Prior to the respondent's discharge of its employees
on October 9, Deutsch prepared and Dueease signed the following
reply, dated October 10, to the Union's letter of September 30; which
the respondent did' not mail to the Union until completion of the
discharges:
This will serve to acknowledge receipt of your letter of Septem-
ber 30, requesting that we make arrangements to negotiate
through you for an agreement for the personnel of the Dredge'
Lake Fithian.
We cannot agree, at least at this time , that any individual
dredge should be treated as a separate unit for such purposes;
nor that the nature of our work under contracts with the United
States, specifying detailed conditions of employment , permits
of such an agreement as you apparently contemplate . There are
also other factors which we are inclined to feel would have
to be taken into consideration in determining the propriety of
collective bargaining.
Without prejudice to our position in light of all such factors,
we suggest that you submit evidence as to your representation of
"nearly all" of the members of the crew of the Dredge Lake
Fithian in whose behalf you state your letter is written. If, on
receipt of such evidence , we are satisfied that you are authorized
to act for the personnel in question, we shall be pleased to give
the matter further consideration.
After receipt of this letter, the Union , as noted above, attempted in
vain to obtain the reinstatement of the discharged employees.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the foregoing that the respondent; by discrimina-
torily-discharging "most of the Union's members'among its employees
on October 9, effectively rejected the Union's request for a meeting for
the purposes of collective bargaining. Under the circumstances such
a mass discharge constituted a refusal to bargain within the meaning of
the Act.8° In view of the respondent's antagonism toward the Union
and its discriminatory discharge of its employees on October -9, it is
obvious that the respondent did not in good faith raise the issues set
forth in its,letter to the Union dated October 10.11-
We find that on October 9, 1938, and at all times thereafter, the re-
spondent refused to bargain collectively with the Union as the exclusive
representative of the respondent's employees in the appropriate unit,
and that the respondent thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act .82 '
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section IV
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, ,and substantial
relation to trade, traffic, commerce, and transportation among the sev-
eral States and with foreign countries, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
VI. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. We will order it,to cease and desist therefrom and to
- take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act by interfering with their receipt through the mails
See Matter of Atlas Mills, Inc and Textile House Workers Union No. 2269 , United
Textile 1Vorlers of America, 3 N. L. R. B. 10; Matter of Edward F . Reichelt, Robert J.
Hill and Ruc4el J Jensen, Doing Business As a Co-partnership Under The Name and Style
of Paul A Reichelt Co.. and Chicago Fur Workers Union , Local No. 45, 21 N . L. R. B.
262
" See N . L. R. B v. Remington Rand, Inc, 94 F. (2d) 862 (C. C. A. 2), enf'g as mod.
Matter of Remington' Rand, Inc. and Remington Rand Joint Protective Board of The Dis-
trict Council Office Equipment Workers, 2 N L R. B. 626, cert . denied 304 U. S. 576 ;
Matter of Chicago Apparatus Company and Federation of Architects, Engineers , Chemists
and Technieinnc , Local 107, 12 N. L R . B. 1002, enf 'd N L R B' v Chicaqo Apparatus
Company, 116 F (2d) 753 (C. C. A. 7), rehearing den. January 27, 1941; Matter of River-
side Manufacturing Company and Amalgamated Clothing Workers of America, 20 N. L.
R. B 394.
,2 The Trial Examiner found that the respondent refused to bargain, collectively with the
Union on and after October 10.
UNWED DREDGING COMPANY 801
of union literature aboard the Lake Fithian. In order to effectuate
the policies of the Act, we shall specifically order the respondent to
cease and desist from interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act
by interfering with their receipt through the mails of union literature
aboard the Lake Fithian.
We have found that on October 9, 1938, and at all times thereafter,
the respondent refused to bargain collectively with the Union- as the
,exclusive representative of its employees in an appropriate unit, con-
sisting of all employees of the respondent employed on board or in
connection with or to assist in the maintenance or operation of the
dredge Lake Fithian, including deck oiler, handyman, machinist,
welder, blacksmith, carpenter, electrician, motorboat operator, and tug
captains other than tug, masters, but excluding superintendent, deck
captain, paymaster, chief engineer, shore foreman, leverman, extra
leverman, chief mate, first mates, first, second, and third engineers,
steward, assistant shore foremen, master of tug Janet, and master of
tug California. We shall order the respondent upon request to bar-
gain collectively with the Union as the exclusive representative of its
employees in said unit.
We have found that the respondent discriminated in regard to
the hire and tenure of employment of the employees named in Ap-
pendices A, C, and D. Since the respondent has already reinstated or
offered reinstatement to the employees named in Appendix C, 'we
shall not order the respondent to reinstate' them. The respondent,
however, has not reinstated or offered reinstatement to the employees
'named in Appendices A and D.S3 We shall order the respondent'to
offer to those employees named in Appendices A and D reinstatement
to their former or substantially equivalent positions. Such rein-
statement shall be without prejudice to their seniority and other
rights and privileges and shall be effected in the following 'manner:
All employees hired after October 8, 1938, shall, if necessary to pro-
vide employment for those to be, offered reinstatement, be dismissed.
If, thereupon, by reason of a reduction in force there is not sufficient
employment immediately available for ,the remaining employees, in-
cluding those to be offered reinstatement, all available positions shall
be distributed among such remaining employees in accordance with
the respondent's usual method of reducing its force, without dis-
crimination against any employee because of his union affiliation or
activities, following a system of seniority to such extent as was ap-,
plied in the conduct of the respondent'; business prior to October 3,
1938. Those employees remaining after such distribution, for whom
N
The Trial Examiner erroneously found that John Burgess had been reinstated. See
footnote 67.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no employment is immediately available, shall be placed upon a
preferential list prepared in accordance with the principles set forth
in the previous sentence, and shall thereafter, in accordance with
such list, be offered employment in their former or in substantially
equivalent positions, 'as such employment becomes available and be-
fore other persons are hired for such work.
We have found that the respondent has not discriminated in regard
to the hire and tenure of employment of Lonnie Ware. However, in
view of the statements made to him on October 26, 1938, when Ware
applied for reemployment, there is grave danger that the respondent
will not employ him even though he should apply for a position in
the future and a position should then be available for him. For
this reason, and in order to effectuate the policies of the Act, we shall
order the respondent to place Lonnie Ware 'upon a preferential list
and to offer him employment in his former or in a substantially
equivalent position, as such employment becomes available and before
other persons are hired for such work.114
We shall also order the respondent to make those employees listed
in Appendices A and D whole for any loss of pay they may have suf-
fered by reason of the respective discrimination against them, by
payment to each of them of a sum equal to the amount which he
normally would have earned as wages during the period from the date
of the discrimination against him to the date of the respondent's
offer of reinstatement or placement upon the preferential list herein-
above described, less his net earnings- during said period."
We shall also order the respondent to make those employees listed
in Appendix C whole for any loss of pay they may have suffered by
e4 Cf Matter of American Numbering Machine Company and International Association
of Machinists, District # 15, 10 N L. R B 536 ; Matter of Sehioarze Electric Company
and International Union , United Automobile Workers of America, Local' No . 268, 16 N. L.
R B 246
'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 else-
where than for the respondent, which would not have been incuiied but for the unlawful
discrimination against 'him and consequent necessity of his seeking employi lent elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 259'0, 8 N L R B 440. Monies,
received for work performed upon Federal , State, county , municipal, or other work-relief
projects shall be considered as earnings See Republic Steel Corporation v. N L. R. B,
311 U S 7
"Mr. Edwin S Smith is of-the opinion that , even it it were to be assumed , contrary to
the Board ' s finding , that the denial of reinstatement to Joe E. Brooks, Estell Burgess,
Mack Guice , Richard Reel, Robert Sibley , and Eugene Smith , was not an unfair labor prac-
tice, nevertheless , the Board should, as a matter of remedy , under the circumstances, in
order to effectuate the policies of the Act, award reinstatement and back pay to these
employees as set forth above, since the entice situation with respect to these employees was
, brought about by the respondent ' s unfair labor practices Black Dfainond Steamship Corp.
v. N. L-R B , 94 F (2d ) 875, cert . den , 304 U . S 579 , enforcing Matter of Black Diamond
Steamship Corp and Marine Engineers' Beneficial Association , 'Local No . 33, 3 N. L R B.
84 ; Matter of Western Felt Works , a co) poration , and Textile Workers Organizing Com-
mittee, Western Felt Local, 10 N L. R B. 407. -
UN'IT'ED. DREDGING COMPANY 803
reason of their respective' discriminatory discharges, by payment to
each of them of a sum equal to the amount which he normally would
have earned as wages during the period from October 9, 1938, the
date of the discrimination against him, to the date on which he *as,
reinstated or offered reinstatement by the respondent, less his net
earnings 87 during said period.
The respondent contends, in substance, that only employees within
the meaning of Section 2 (3) of the Act fall within the jurisdiction
of the Board for purposes of remedial action;' that discharged em-
ployees who obtain regular and substantially equivalent employment
cease to be employees within the meaning of that Section; and that
the Board has the burden of proving that the men whom it would
order reinstated are such employees. We find no merit in the re-
spondent's contention 8s
In the first place, our power to undo the effects of illegal discrimi-
nation by requiring affirmative action is not limited to the "reinstate-
ment 'of employees" but comprehends restoration of ex-employees to
positions of employment. Section 10 (c) of the Act empowers us to
require "such affirmative action, including reinstatement of employees
with or without back pay, as will effectuate the policies of this Act."
There is no indication that the clause specifically referring only to
reinstatement of "employees," was intended to limit the broader
grant contained in the remainder of the sentence. The phrase is
merely illustrative of one type of affirmative action which we may
require to 7effectuate the policies of the Act.
In the second'place, if our power is limited to the "reinstatement
of employees," we find that the time when employee status is to be
determined for the purposes of Section 10 (c) is the time of the
unfair labor practices, and other 'employment obtained subsequent
to the illegal discrimination does not alter or destroy that status.
We find that this constritction,of Section 10 (c) of the Act is best
suited to effectuating the policies of the Act, which require that the
coercive effects of discrimination upon all employees of the respond-
ent be dissipated through reinstatement of the particular individuals
discriminated against. To' gauge the propriety of reinstatement by
a discriminatorily discharged employee's situation elsewhere long
after the discrimination occurred, would be to reduce reinstatement
to a means for vindication of a private right and restitution for a
private wrong, which it palpably,is not. ,
87 See footnote 85, supra
88 See Matter of Eagle-Picher Mining and Smelting Company, a corporation, et at and
International Union of Mine, Mall & Smelter Workers, Locals Nos. 15, 17, 107, 108, and
Ill, 16N.L R B.727.
440135-42-Vol 30--52
I
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Inland Boatmen's 'Division, National Maritime Union, Gulf
District, affiliated with the C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All employees of the respondent employed on ' board or in'
connection with or 'to assist in the maintenance or operation of the
dredge Lake Fithian, including deck oiler, handyman, machinist,
welder, blacksmith, carpenter, electrician, motorboat operator, and
tug captains other than tug masters, but excluding Superintendent,
deck captain, paymaster, chief engineer, shore foreman, levermen,
extra leverman, chief mate, first mates, first, second and third engi-
neers, steward, assistant shore foremen, master of tug Janet, and
master of tug California, at all times material herein constituted,
and they now constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
3. Inland Boatmen's Division, National Maritime Union, Gulf
District, affiliated with the C. I. 0., was on September 28, 1938, and
at all times thereafter has been, the exclusive representative of all
- the employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on October 9, 1938, and' at all times thereafter to
bargain collectively with Inland Boatmen's Division, National Mari-
time Union, Gulf District, affiliated with the C. I. O, as the exclusive
representative of its employees in the appropriate unit, the respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. By discriminating in regard to the hire and tenure of employ-
ment of those employees 'named in 'Appendices A, C, and D, and
thereby discouraging membership in Inland Boatmen's Division,
National Maritime Union, Gulf District, affiliated with the C. I. 0.,
the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
6. By interfering' with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
8. The respondent has not discriminated in regard to the hire
or tenure of'employment of Lonnie Ware, within the meaning of
i
Section 8 (3) of the Act.
UNITED DREDGING CQMPANY
ORDER
805
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that United
Dredging Company, New Orleans; Louisiana, and its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Inland Boatmen's Divi-
sion, National Maritime Union, Gulf District, affiliated with the
C. I. 0., as the exclusive representative of all its employees employed
on board or in connection with or to assist in the' maintenance or
operation of the dredge Lake Fithian, including deck oiler, handy-
man, machinist, welder; blacksmith, carpenter, electrician, motor-
boat operator, and tug captains other than tug masters, but excluding
superintendent, deck captain, paymaster, chief engineer, shore fore-
man, levermen, extra leverman, chief mate, first mates, first, second,
and third engineers, steward, assistant shore foremen, master of tug
Janet, and master of tug California;
(b) Discouraging membership in Inland Boatmen's Division, Na-
tional Maritime Union, Gulf District, affiliated with the,C. I. 0.,
or any other labor organization of its employees by discharging,
laying off, or refusing to reinstate or reemploy any of its employees
or in any other mariner discriminating in regard to their hire or
tenure of employment or any terms or condition of employment
because of their membership in or activity in behalf of any such
labor organization; -
(c) Interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act by inter-
fering with their receipt through the mails of union literature aboard
the Lake Fithian;
(d)' In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed 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 :
(a) Upon request bargain collectively with Inland Boatmen's Di-
vision, National Maritime Union, Gulf District, affiliated with the
C. I. 0., as the exclusive representative of all its employees employed
on board or in connection with or to assist in the maintenance or
operation of the-dredge Lake Fithian, including deck oiler, handy-
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manmachinist, welder, blacksmith, `carpenter, electrician, motorboat
operator, and tug captains other than tug masters, but excluding
superintendent, deck captain, paymaster, chief engineer, shore fore-
man, leverman, 'extra leverman, chief mate, first mates, first, second,
and third engineers, steward, assistant shore foremen, master of tug
Janet, and master of tug California, with respect to wages, rates of
pay, hours of employment, and other conditions of employment;
(b) Offer to those employees listed in Appendices A and D imme-
diate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority and other rights
and privileges, in the manner set forth in the section entitled "The
remedy" above, placing those employees for whom employment is
not immediately available upon a preferential list in the manner set
forth in said section;
(c) Place Lonnie Ware upon a preferential list and offer him
employment in his former or in a substantially equivalent position,
as such employment becomes available and before other persons are
hired for such work, in the manner set forth in the Section entitled
"The remedy" above;
(d) Make whole the employees listed in Appendices A, C, and
D, for any loss of pay they have' suffered by reason of the respond-
ent's discrimination in regard to their hire and tenure of employ-
ment by payment to each of them of a sum of money equal to an
amount determined in the manner set forth in the section entitled
"The remedy" above, less his net earnings 89 daring said period;
(e) Post immediately in conspicuous places on and about the
dredge, Lake Fithian, and its auxiliary craft, and maintain for a
period of at least sixty (60) consecutive days from the date of posting,
notices to its employees stating: (1) that the respondent will not
engage in the conduct from which it is ordered to cease and desist
in paragraphs,1 (a), (b), (c), and (d) of this Order; (2) that
the respondent will take the affirmative action set forth in para-
graphs 2 (a), (b), (c) and (d) of this Order; and (3) that the
respondent's employees are free to become or remain members of
Inland Boatmen's Division, National Maritime Union, Gulf Dis-
trict, affiliated with the C. I. O., and that the respondent will not
discriminate against any employee because of membership or activity
in that organization ;
(f) Notify the Regional Director for the Fifteenth Region in
writing within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
81 See footnote 85, supra.
UNITED DREDG1I COMPANY 807
AND IT IS FURTHER ORDERED that the complaint,be, and it hereby
is, dismissed in so far as it alleges that the respondent discriminated,
within the meaning of Section 8 (3) of the Act, in regard to the
hire or tenure of employment of Lonnie Ware.
CHAIRMAN HARRY A. MILLIS took no part in the consideration
of the above Decision and Ordel.
APPENDIX A
(Employees discharged on October 9 and not reinstated thereafter)
Robert Angelo Jesse J. Johnson
Robert Baldridge Herman Ladner
Ervin Brown Delmar Lee
John Burgess 'Grady Leverette
Bruce R. Campbell Shelby Lowery
John L. Campbell Wilburn McCarty
J. Herman Cooper Marvin McCool
Monroe J. Davis Jeff Marsh
Milton Dean Otho Milstead
Artice-Ellis John Morgan
Claude Ellis Audrey J. Newton
Woodrow Fleming Wright Powers
Barney Franklin - John F. Rollins
Angelo Fuller Thomas Sherlock
Horace Henry Willard Sibley
Burton WV. Holloway Emmitt O. Trawick
Bernard F. Holmes W. W. Van Devender
Ernest Hopkins
APPENDIX B
(Employees discharged on October 9 but not named in complaint)
E. G. Hall .
William B. Johnson
APPENDIX C
(Employees discharged on October' 9 and thereafter reinstated or
offered reinstatement
Barney Harvill
Earl V. Peterson
Elmer Smith
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
(Employees discriminated against after October 9)
Joe E . Brooks Richard Reel
Estell Burgess Robert Sibley
Mack Guice Eugene Smith