Brownsville Shipbuilding Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1943

50 N.L.R.B. 341 (N.L.R.B. 1943)

In the Matter of BROWNSVILLE SHIPBUILDING CORPORATION and
BROWNSVILLE SHIPYARD WORKERS FEDERAL LABOR UNION, #23343
Case No. C-2608.Decided June 10,1943
DECISION
AND
ORDER
On - May 11, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent,
Brownsville Ship Building Corporation,-had engaged in and was
engaging in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action as
set out in the copy of the Intermediate Report attached hereto.
None of the parties has filed exceptions to the Intermediate Report.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
The Board has considered the Intermediate Report and the entire
record in the' case' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as hereinafter set
forth.
We do not find that General Manager Tuggle's remarks to Foreman
Cope constituted interference, restraint, and coercion in violation of
Section 8 (1) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the respondent, Brownsville Ship
Building Corporation, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Discouraging membership in Brownsville Shipyard Workers
Federal Labor Union, #23343, affiliated with the American Federa-
tion of Labor, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or in any
50-N. L. R. B, No, 50. '
341
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342 DEGISffONS OF' NATIONAL LABOR` RELATIONS BOARD
other manner discriminating in regard to their hire 'and tenure of
employment or any term or condition of 'their' employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form.
join,- or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the ,purposes of collective bargaining or other mutual
aid' or protection,, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will ' effectuate the
policies of the Act :
(a) Offer to Hugh L. McAfee immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges; i •
(b) Make Whole Htigh L. McAfee and Harry W. Lauver for any
loss of pay they may have suffered' by reason of the discrimination
against them, by payment.to each of,them of a sum of money equal
to that which each would normally,have earned as wages during the
period from the date of discrimination, i. e., from January 8, 1943,
to the date of the offer of reinstatement as to McAfee and from Jan-
uary 26, 1943, to February 9, 1943, as to Launer, less the net earnings
of each during said periods;
(c) Immediately post in conspicuous places in and about its ship-
yards and plant in Brownsville, Texas, 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 para-
graphs 1 (a) and (b) hereof; (2) that it will take the affirmative
action set forth in paragraphs 2'(a) and -(b) hereof; and (3) that
the respondent's employees are free to become or ' remain members
of Brownsville Shipyard Workers Federal Labor Union, #23343,
affiliated with the American Federation of Labor, and that the re-
spondent will not discriminate against any employee because of mem-
bership in or activity on behalf of that organization;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply'herewith. -
INTERMEDIATE REPORT
Mr. Elmer P. Davis and Mr. Bliss Daffan, for the Board.
Mr. R. G. Ransome, of Brownsville, Texas, for the respondent.
Mr. A. F. Cadeua , of San Antonio , Texas, for the.Union.
STATEMENT OF THE CASE-
Upon an amended charge duly filed by Brownsville Shipyard Workers Federal
Labor, Union, #23343, affiliated with the American Federation of Labor , herein
called the Union. the National Labor Relations Board , herein called the Board,
BROWNSVILLE SHIPBUILDING CORPORATION .343
.by the Regional Director for,the Sixteenth Region (Fort Worth, Texas), issued
its -complaint dated April 2, 1943, against Brownsville Ship Building Corpora-
tion of Brownsville, Texas, herein called the respondent, alleging that the re-
spondent-had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1) and (3) and Sections 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act., Copies of the
complaint, accompanied by notices of hearing thereon, were duly served upon
-the respondent and the Union.
With respect to the unfair labor practices the complaint alleged, in substance :
(1) that the respondent, on or about January 7, 1943, discharged Hugh L.
McAfee; and on or about January 27, 1943, failed or refused to reinstate or
reemploy Harry W. Launer ; and that the respondent has since the date. of
the discharge of the said Hugh McAfee failed and refused and continues to
refuse to reinstate said McAfee to his former or substantially equivalent employ-
ment ; but, on or about March 3, 1943, reemployed or reinstated the said Harry
W. Lauver to his position of employment; (2) that the respondent discharged
and refused or failed to reinstate said McAfee and failed or refused to reinstate
or reemploy said Launer, as aforesaid, for the reason that they joined or
assisted the Union, or engaged in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection; (3) that the respondent
through certain named officers from on or about January 1, 1943, to and includ-
ing the date of the filing of the complaint herein, disparaged and expressed dis-
apZproval of the Union, interrogated their employees concerning their union
affiliation ; urged, persuaded, threatened and warned its employees to refrain
from assisting or becoming members or remaining members of the Union ;
,threatened all or.a number of its employees with discharge if they joined or
-became a member of the Union and threatened to change the classification of
all or a number of its employees so as to effect a reduction in their, wages.
On about April 10, 1943, the respondent filed its answer denying that it had
engaged in the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Brownsville, Texas on April 15
and 16, 1943, before Peter F. Ward, the Trial Examiner duly designated by the
Chief Trial Examiner . The Board and the respondent were represented by
counsel and the Union was represented by a general organizer and all participated
in the hearing. Full opportunity to be heard, to 'examine and cross- examine
witnesses and to introduce evidence bearing on the issues was afforded all
parties. After the parties had rested, the undersigned granted,, without objec-
tion , the motion of counsel for the Board to conform the complaint to the proof
-with reference to names, dates and minor variances. The undersigned also
,granted , without objection, the motion of respondent's counsel to conform the
answer to the proof. All parties were advised of their right to file briefs with
the undersigned ; no briefs have been received.
Upon the record thus made and from his observation of the witnesses,'the
undersigned makes in addition to the above the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Texas corporation engaged in the business of constructing
and outfitting , seagoing vessels, consisting of barges , hospital boats, freighters
and tankers . Al' the present time and since August 1, 1941, the company,has
been engaged in the construction and outfitting of such vessels for the United
States Government under contracts negotiated with the United States Army and'
344 DECffSiIONS OF NAT'ONAL LABOR RELATIONS BOARD
the Maritime Commission.. Under these contracts the ships, when finished in
the company's yards, are delivered. to the government at the docks or f. o. b.
Brownsville, Texas., The company has existing contracts with the Maritime
Commission for the construction of vessels in the amount of about one and
one-half million dollars. During the last 6 months of 1942, the company pur-
chased raw materials, consisting of lumber, steel and equipment for boat,con-
struction valued in excess of $373,332.23. Approximately 90 percent of such
materials was purchased and transported into the State of Texas from States
other than the State of Texas and from foreign countries. The company presently
employs approximately 350 employees of whom about 24 are clerical, office and
supervisory employees. The company admits that it is engaged in operations
affecting commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED ,
Brownsville Shipyard Workers Federal, Labor Union, #23343, affiliated with
the American Federation of Labor, is a labor organization, admitting to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
Insofar as the record discloses there were no union activtities at the respond-
ent's ship yards, following its incorporation in August 1941, until sometime
during the fall of 1942. At that time a number of employees were laid off,
with the result that a group of employees from the different sections of the
respondent's ship building yards called on employee Harry W. Launer, a welder,
and told Launer that they were going to do something about it. Since Launer
belonged to the Longshoremen's Union the group asked him to help them.
Launer told then that while he did belong to the Longshoremen, he knew
little about organizing. Launer, however, got in touch with E. E. Cockrill,
President of, a 'local of the Longshoremen's Union, who arranged; for A. F.
Cadena a general organizer for the American Federation of Labor, herein called
the A. F. of L., to come to Brownsville. Lauver subsequently reported his action
to the group and advised them that he "was willing to go ahead", and added
that he wanted their "support behind me." This the group agreed to give.
Cadena arrived in Brownsville on December 21, and scheduled a meeting to
be held at the Longshoremen's hall for that evening. Launer was notified of
the planned meeting and he in turn passed ,word to a number of the respondent's
employees. Twenty-two employees attended the meeting and' after some dis-
cussion 21 of them signed an application for a charter from the A. F. of L.
A'temporary organization was set up with Hugh L. McAfee as president, Launer
as recording secretary and Felix J. Keuhler as financial secretary.
During the forenoon of December 22, 1943, Keith Tuggle, then general man-
ager,' discussed the Union meeting of the previous evening 'with Benjamin
Cope, then a foreman in charge of hull construction. Tuggle said that he heard
of the Union meeting and that the men were going to organize the plan and
asked Cope what could be done about it. Cope replied that they had a moral
and legal right to avail themselves of collective bargaining, "and if they decided
to do it, there wasn't much that he [Tuggle] could do about it." Tuggle stated
that Cope told him what` he (Tuggle) could not.do,,and asked Cope to tell him
what he could' do. -Cope then advised, Tuggle not to discharge anyone for
'Tuggle severed his connection, with the .respondent on or about February 27, 1943.
Although not shown to be unavailable he was not called as a witness
BROWNSVILLE SHIPBUILDING CORPORATION 345
union activities as he might "get in bad" with the Labor Relations Board, in
which event "he might not get any more contracts". Tuggle said nothing further
and left Cope. i
About 1 o'clock on the.same day Anderson, mill foreman, informed Cope that
Superintendent Louis D Spaw wished to see Cope at Spaw's office. Cope called
on Spaw, who said : "Well, Ben, we have come to the parting of the ways.-'
You refused to cooperate with me. So there is nothing to do only let you go."
Spaw then gave Cope a release and a check in payment of wages to and including
December 25, 1942, and Cope then left the premises immediately!
A week or 10 days following the organization of the Union, Mill Foreman
Anderson addressed McAfee during working hours as follows : "Mr. Chairman
may I say something about the Union?" McAfee then said, "Hell, yes. Say
whatever you want to." Whereupon Anderson replied, "I don't like it." McAfee
told Anderson that the former did not care whether Anderson liked the Union
or not ; that he was for union organization and proposed to "stay for" it. An-
derson further stated in substance, that he disapproved of "union activities
in the yard."' The undersigned credits McAfee.
McAfee testified without contradiction and the undersigned finds that on or
about January 4, 1943, Ray McWhorter, foreman of the carpenter shed met
McAfee in front of the sheds, stopped him and asked him if, he "really thought
that 'we' needed a union organization", to which McAfee, fearing that McWhorter
was seeking information concerning the Union made a noncommittal reply.
McWhorter, not shown to be unavailable, was not called as a witness.
Employee Ramon De Leon testified that he joined the Union on January 4, 1943.
That on or about January 6 or 7, he sought to induce Lucindo Leos, another em-
ployee, to join the Union and was advised by Leos that the latter had no money
for such a purpose Ramon offered to lend Leos the $2 necessary, whereupon
Leos said, "Well, I can't join the union because I am afraid Mr. Harry Wallis
,[foreman over Leos] is going to fire me because he told me he was going to fire
me."
Leos testified in substance that he was employed as a common laborer under
the supervision of^ Wallis, whom he had known since 1924, and that Wallis had
told him that if he joined the Union Wallis would discharge him. Leos further
testified he was the one who broached the subject of the Union in the discussion
with Wallis, that he had been friendly with Wallis and that after this discussion
Wallis refused to speak to him. Leos quit his job on or about February 27 be-
cause Wallis "got mad" with him.
Wallis on the contrary' denied that he had ever discussed the Union with Leos
and-stated that Leos, who had been hired at his suggestion had been removed
from certain jobs on two occasions because of complaints made by foremen under
whom Leos was temporarily working. Wallis further testified that on the second
occasion he warned Leos "this is the second time you have fallen down on the job.
I am going to give you another trial." According to Wallis, Leos said nothing
but immediately quit his' job. Wallis testified that he knew that a good many
of the employees under his supervision belonged to the Union and that "They
come and ask me if it is all right (to join Union), and I tell them, 'Yes, go ahead.' "
a These findings are based upon the uncontradicted testimony of Cope. Spaw, although
called as a witness subsequent to Cope, was not questioned concerning Cope's discharge.
8 Anderson denied that he knew McAfee was temporary president of the Union ; he ad-
mitted that he was aware that McAfee was one of the leaders . Anderson 's version of the
conversation concerning the Union with McAfee is as follows :
I told him that under conditions out there ( shipyards ) the best thing is not to say
too much about it (union ) ; not to spend too much time talking about it during work-
ing hours or on company property. (Italics 'added.)
I
346 -DECISQON5, OF NATIONAL LABOR RELATIONS' BOARD
The undersigned is convinced that Wallis, although a more impressive witness
than Leos, whose testimony was given through an interpreter, made the state-
ment as testified 'to by Leos.'
The undersigned therefore finds that' the respondent, by the statement of its
supervisory personnel above set out, interfered with, restrained, and coerced`
and is interfering with, restraining, and coercing its employees in the, exercise
of the rights guaranteed in Section 7 of the Act.
B.• The disc'i•iniinatory discharge of Hugh L. McAfee
I
i
On March 15, 1942, ,McAfee was employed by the respondent as a carpenter's
helper at a wage of 80 cents per hour. He worked at this rate until October 1942'
when he was classified as a "boat builder" and given an increase to $1 per hour.
Approximately two or three weeks later he was appointed a leader man by
E. 0 Noble, foreman in the hull department. As a leader man McAfee had
charge of a group of men engaged in construction work. The group varied in
number from 2 or 3 to 10 or 12 depending on the contingencies created by the,
work of the department. During the early part of December 1942, McAfee was
transferred to the mill department under Foreman Anderson, and continued
to work there until his discharge on January 8, 1943.°
McAfee was active in the organization of the Union; he was notified by' Launer,
of the arrival of Cadena, the general organizer of the A. F. of L., he attended °
the meeting of December 21, 1942 and was elected temporary president. At a
later meeting he was elected permanent president of the local. As found above,
he unequivocably stated his prounion position to Foreman Anderson a short time'
after the first union meeting and" was known by Anderson as a union leader ;
he solicited memberships in the Union and between December 21, 1942 and Jan-
uary 1, 1943, succeeded in securing 12 signed application cards from employees.
The complaint alleges that McAfee was discharged because of his union
activities ; the respondent denies this allegation and contends that McAfee was
discharged for a variety of reasons among which are McAfee's alleged inefficiency
and incompetency as a worker.' In support of its contention, the respondent
offered testimony relating to a number of incidents purporting to show)MeAfee's
derelictions.
L. M. Curry, foreman of the boat shed testified that sometime in May- 1942
while McAfee was working under his supervision, "three fellows that worked
with him [McAfee] complainedabout the way he, worked with them." On cross-
examination, Curry' testified that McAfee's work compared "about the same'-'
with other employees doing comparable work and that he found "no fault" with'
McAfee's work. Curry further testified that about three weeks'after the com=
plaints were made, McAfee was transferred to the mill department under Fore-'
man Anderson, that he did not tell Anderson about the complaints and that so.
far as he knew "no one else knew anything about it." Curry did not specify
what caused the complaints, nor were-any of the three employees who complained'
to Curry called as witnesses. ` No details of the complaints were shown. In,
view of the vagueness of Curry's testimony and the lack of any detailed corrobo-
ration,`the undersigned accords it only slight weight; however, the undersigned
* Leos' testimony was corroborated by the testimony of DeLeon as to all essential details.'
5 The complaint alleges that McAfee was discharged on Thursday, January 7, 1943 The
record shows however that the respondent decided to discharge him on Friday , January 8
and that McAfee was notified of his discharge on Saturday, January 9.
9 Although'not pleaded, McAfee's alleged unwarranted assumption of responsibility and
authority was urged by various of the respondent ' s witnesses as an additional reason for
the discharge. The undersigned has found no convincing evidence to support this conten-
tlon and accordingly rejects it as being without merit.
',
BROWNSVILLE SHIPBUILDING CORPORATION 347
does not believe that these complaints in any event contributed to the respondent's
decision to discharge McAfee.
In October 1942, as noted above, McAfee was employed as a "boat builder" and
leader man under the direct supervision of Foreman Noble, Hull Foreman Cope's
Assistant in' the hull department. The respondent contends that while McAfee
was so employed an incident occurred which supports its contention that McAfee
was not a satisfactory employee. With respect to this incident McAfee testified
that he was engaged in installing deck beams on certain vessels and,
"This particular day I had about ten or twelve men and Mr. Noble came
and told me to drill some holes in the-top clamp so that they could fasten it
to the ribs of the boat, and at that time we. were very short on electric
drills or equipment for the men to work with that was furnished by the
company, and I sent one of the boys in this crew-his first name is Pedro,
a Mexican boy-to the tool room to check out an electric drill, and they were.
all gone. So consequently we had to wait until one was checked back in
so that we could get it, and Mr. Noble came back and proceeded to politely
bawl me out because I didn't get the holes drilled. I didn't have anything
to drill them with. A little bit later he came around and we had the blue
print for- the deck beams on a platform or wall board at the side of the
boat, and as the only man in the crew that could take the measurements
from the blue print and apply them to the boat, I would go over to the
blue print and gauge the measurements and' apply them to the boat, and
Mr. Noble came over and took the blue print and told me we couldn't put
them in according to the blue print because it was wrong. I told him I,didn't
think the Government hired men to make blue prints that we couldn't build
a boat by, and he said well, he had to make changes in them that he
couldn't talk about. So I told him if there had been changes made that had
been unauthorized, it was somebody's bonehead and they were trying to cover
up ..."
With respect to the blueprint, Noble testified on cross-examination:
Q. When he [McAfee] mentioned to you when he was working on that job
immediately preceding his transfer that it wasn't being done in accordance
with the blueprints, that was true, wasn't it?
A. Let me answer that with a question : How did he know it wasn't done
according to the blueprint?
Q I want you to answer my question first?,
A. Yes,'that was true.
s - s s - s s
Q. Well, he can read a blue print can't he?
A. Yes, but I had taken the blueprints away from there, for the simple
reason that he was spending too much time with them, and,put them in the
office and told him to leave them alone.
Hull Foreman Cope testified that Noble told McAfee to bore certain holes to
enable the other men to put bolts into a deck beam, that McAfee who was using a
plane, continued planing, and when asked again by Noble replied 'that he was
waiting for an electric drill. According to Cope, Noble then said to McAfee, "when
I tell you something, I want you to do it without any argument." On the same
day McAfee was transferred to the mill, at which time Noble told Mill Foreman
Anderson that McAfee "was a good hard working boy, but that he would have
to keep him under supervision or he would be running the mill in a short
time . . ." With respect to McAfee's capability, Cope testified that McAfee was
"an average man in an average yard" and that he was "better than some of the $1
an hour employees."
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned is unable to find upon this evidence , that McAfee was in-
competent and inefficient or otherwise an unsatisfactory employee . At best
McAfee displayed his concern over the possibility that the "faulty" blueprints
might be attributed to him when they were admittedly the responsibility of
Noble. As for the hole drilling episode the undersigned accepts McAfee's testi-
mony which is not contradicted in any essential part and is convinced that'
McAfee's conduct in waiting for the electric drill was proper and that he was
not insubordinate as Noble's reprimand might indicate . In any event, the
'undersigned ' finds that neither of the above incidents really motivated the
respondent 's discharge of McAfee. '
Shortly after McAfee's transfer to the mill in November 1942, Bob Lauter,
leader man in the mill ordered him to construct and install a window. McAfee
testified that he started to work on the window "about 2: 30 or 3: 00 o'clock
in the afternoon" and had no helper , that he continued working on the window
until "quitting" time which was at 6: 00 p. in. and that on the following day
at about 9 : 55 a. in. he completed constructing the window . He further testi-
fied that upon returning from his lunch period which started at 10 a. in., he
"got a sliver of glass" from the window pane in his finger and spent approxi-
mately 45 minutes receiving first aid at the company dispensary and then
returned and completed the installation of the window . McAfee denied that
Anderson criticized him in any way with respect to this job, but that Anderson
might have said "How are you getting along" or .words to that, effect.
Anderson , on the other hand testified that Lauter had constructed and in-
stalled a window in one afternoon with a helper ( emphasis added ) and that
McAfee took about a day and a half for "the same operation , the same job."
-.Anderson further testified that he told McAfee that "You ought to have three
done by now or something like that," that he didn 't mean it in a "hardboiled
way" but that he said it "in a joking way." Anderson was unable to testify
as to the time McAfee started the window job.
A consideration of the testimony of both McAfee and Anderson shows no
real conflict. The fact that Lauter worked with a helper and that McAfee did
not, in addition to the fact that McAfee was injured while working accounts for
,any delay in McAfee 's completion of his job . The undersigned is convinced that
the evidence with respect to this incident is not indicative of McAfee's alleged
incompetency or inefficiency and did not affect the respondent 's decision to
discharge McAfee.
During the first part of December 1942 Anderson had occasion to assign a
number of men to work in the barge shed. Anderson testified that he asked
McAfee to work in the barge shed, that McAfee said "Do you mean me?" and
that Anderson replied "Yes, you " Thereupon, according to Anderson, McAfee
"goes out and gets his card and brings it back and says : `I don 't feel well,' and
maybe he didn't." Anderson testified that two days later he saw McAfee at
the yard collecting his pay and that McAfee looked well. McAfee denied that
he said "Do you mean me ?" ' when asked by Anderson to go to the barge shed,
but stated that "it was okeh with me ; that I would work anywhere he sent me,
but I was sick with a bad cold that morning, and, I would rather go home."
Anderson did not object to McAfee's request but signed his card and " McAfee
went home where he remained for three or four days.
A consideration of the testimony of both McAfee and Anderson convinces the
undersigned that the barge shed incident was not considered by Anderson as
more than'trivial at the time of its occurrence. No complaint was made by
Anderson about the barge shed incident until after McAfee became active in the
Union and was discharged . Nor can the undersigned find any legitimate ground
for complaint even if Anderson's testimony is accepted as true. In any event
BROWNSVILLE SHIPBUILDING CORPORATION 349
the, barge shed incident. in the opinion of the undersigned did not motivate the
respondent's discharge of McAfee.
Anderson testified that on or about January 8, 1943, he asked Herman Jeffery,
a leaderman in the mill, concerning work upon a particular piece of lumber.
Jaffery replied "Well, McAfee is getting that out." Anderson asked Jeffery
where`McAfee was and Jeffery stated he did not know. Anderson, some time
later, returned to the mill and again asked Jeffery where McAfee was and was
told by Jeffery that he had not seen McAfee "all morning." Later still, Anderson
again returned to the mill and "found the particular piece that had been cut
the day before and it was just right." Anderson further testified that in
deciding to discharge McAfee he placed reliance on Jeffery's statement that
McAfee had not been in the mill and on Jeffery's suggestion, "Why don't you
let him go? He spends too much time away from here.'t'
Jeffery corroborated Anderson's testimony only as to McAfee's alleged absence
from the mill. He did not corroborate Anderson's testimony that he suggested
McAfee's discharge. He admitted that he had worked with McAfee only for two
weeks prior to the discharge, that he was not consulted about the discharge and
first heard of it from McAfee a day or two after McAfee had been discharged,
and that he had had no occasion to complain about McAfee's work to Anderson.
McAfee denied that he was away from,his post ; he testified that he worked
the entire •inorning with the exception of about 15 minutes around 10 a. in. which
was the smoking period.?
The undersigned is not convinced that McAfee unduly absented himself from
work as testified by Anderson and Jeffery. McAfee impressed the undersigned
as a' straightforward witness, 'whereas Anderson and Jeffery appeared to be
reluctant. The the undersigned credits McAfee's testimony and finds
that he was not absent from his job-on January 8. ,
Finally, consideration must be given to the testimony of Anderson with respect
to his conversations with Foreman Rose Whitehead and E. E. Cockrill, president
of the Longshoremen's Local.
Whitehead became foreman of the welding department In August 1942 after
having been a non-supervisory employee since April or May 1942. He testified
that about a week after •McAfee's discharge, Anderson told him that the "boys"
weze all down on' him for discharging "Mac" and added that "I just had to do
it", and further stated as the reason for the discharge that "he [McAfee] was
spending too much time handing out initiation cards for the union."
Anderson denied the import of Whitehead's testimony in this regard and testi-
fied in part :
The conversation as I remember it between Whitehead, and I, I went over
there to order some particular piece and things looked like they were going
pretty good and I hadn't been over in Whitehead's department for several
days and I just said something and I said, "Things seem to be going pretty
good." I said, "you know I hated like the dickens-the boys are kind of down
on me for discharging Mac," but I said "I had to do it. There wasn't any
other action. If a man isn't there on his job, isn't handling it, there isn't
anything, else that I can do."
Q. As you=recall was there any statement made by you to Whitehead about
handing out cards?
7 McAfee further testified that he worked the entire morning assisted by his helper,
Florentine Madrino. The latter, though not shown to be unavailable, was not called as a
witness.
11
35O DEI ISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No. I might say in that respect : If a man isn't there, if he is gone an
hour this'morning, regardless of what he is doing, I can't afford to pay or we
can't afford to pay 25 percent for hiin being away, regardless of what he
is doing, whether he is passing out literature or whether he is talking union
or what it is. I don't think that is fair.
The undersigned is convinced from the above that Anderson made the statement
as testified to by Whitehead.
During the first week in February, 1943 Anderson visited the Brownsville Navi-
gation District, a nearby dock yard area, on business. At that time he met
E. E. Cockrill and a ,conversation ensued about conditions at the respondent's
-shipyard. According to Cockrill, Anderson said, "Things have been going on
pretty good now and they have organized the damn union." Cockrill replied,
"The union is all right," and Anderson then'stated, "But I fired the president of
the union." Anderson then continued to talk about conditions at the respondent's
yard and in the course of the conversation stated that "McAfee had refused-to
go to the barge yard and had got off sick and that he spent about two hours a day
passing out cards and organizing and that he couldn't pay a man a 25 percent
bonus for doing that kind of work." Cockrill testified that Anderson initiated
the conversation about McAfee.
Anderson testified that when he visited the Brownsville Navigation District,
some men asked him, what the opportunities for employment were at.the re-
spondent'.s yard and whether there -was a closed shop contract with the, union.
Anderson - then stated that he "had to discharge the union president .:. she
wasn't doing his work." He admitted using the expression "damn" in connection
with the union "for the simple reason that there was quite a turmoil and agitation
one way or the other on it; just seemed like, we weren't getting anything done.
The boys were up in the air about it. 'Anything like that it causes dissent."
Asked whether he disliked the union, -Anderson replied, "I have no objection to
the union. I have a lot of objection to any element that enters into the plant
and stops production on war work."
The totality of the evidence adduced with respect to McAfee convinces the
undersigned that the incidents urged by the respondent, viewed either individ-
ually or collectively, as grounds for the discharge do not support the respondent's
contention. On the other hand it is clear that McAfee's militancy as a union
leader was objectionable to the respondent and for that reason he was dis-
charged. It must, be noted that the respondent offered no evidence to.-show
that it had promulgated or enforced a rule prohibiting union activity on company,
property and time. Nor did'the respondent offer any convincing proof that
McAfee's activity, even if the testimony of Anderson and Jeffery be accepted,
caused any stoppage or loss in production. Quite the contrary is disclosed by
'Anderson's admission, that the work upon which McAfee was supposed to be
working on the morning of January 8, was "just right." 'Therefore the under-
signed finds that the respondent discharged Hugh L. McAfee because of his union
activities, thus discouragaing membership in and activity on behalf of the Union.
C. The discriminatory refusal to reemploy Harry W. Launer
Launer was employed as a welder's helper on March 25, 1942. He worked as
a helper for approximately 3 months and then became a burner. On October 8,
he was reclassified as a burner and, welder. He worked under the supervision
of Ross Whitehead, foreman of the welding department, during which time he
took a correspondence course in welding with a Chicago concern.
As set forth above he took the leading part in the initial stages of the Union's'
BROWNSVILLE SHIPBUILDING CORPO'R'ATION 351,
organizational drive, was elected secretary when •other temporary officers were
chosen and later became permanent secretary.
Whitehead testified that he knew that Launer had joined and was one of the
leaders active in the union and that such fact was also known by the supervisory
as well as non-supervisory personnel of the respondent.
,During December 1942, Lauver made arrangements to go to Chicago and take a
course in welding supplementing his correspondence course to the end that he
might become a "certified" welder. Launer advised Superintendent Spaw of such
,plans in advance, and was advised by Spaw that "it would be all right" with him.
Whitehead advised Launer that he could return to work immediately upon his
return from Chicago upon the completion of his course. Launer went to Chicago,
completed his welding course, was certified, and returned to Brownsville where
he arrived January 23, 1943. He reported to Whitehead, displayed his certificate
and was advised by the latter that he could return to work at noon of that day.
Since Launer had just arrived from Chicago and was tired, he told Whitehead
that he would prefer to start work on the following Monday, June 26, and
that in the meantime he wished to see Spaw and let him known of his return.
Launer then reported to the personnel manager, Lockett, who advised him to
see Spaw. Launer saw Spaw during the afternoon on January 23. Spaw told
him that he had not seen Foreman Whitehead for a couple of weeks and that be
did not know how the work in the welding department was, but, "that they only
,had a few boats to build." Spaw agreed to see Whitehead and let Launer know
the results by the following Monday.
Laurner, wishing to get more definite word, then got in touch with Tuggle and
'asked him to have Spaw get word to him, by Saturday night January 24. Tuggle
then took the matter, up with Spaw. ,
Spaw saw Whitehead on Saturday and told him that the "work has slackened
up" and instructed Whitehead to see Launer that evening and tell him "that we
didn't need hint any more ..." (Italics added.)
About 3 days before Launer's return two of the "top" welders had quit their
jobs. Whitehead testified that he needed a welder at the time of Launer's return
and that he had so advised Snaw. Whitehead testified in part :
Q. What, if anything, did you tell Mr. Spaw, at that time?
A. Well, I was just the foreman on the job and I could see we did need
him, but I did emphasize that we needed some help .. .
Q. You say that Mr. Spaw told you that the work, was slacking. Was it
slacking at that time?
A. Well, I had been hearing that they were going to put hull strapping,
which is metal, in the boats, and I was sure we would have plenty of work,
And I emphasized that we needed help but I didn't emphasize that we should
keep Mr. Launer, because I was only the foreman.
Q. Were you and the welders working under you at that time busy.?
A. We had plenty to do, yes, sir.
Q. Did you have more than you could do?
A. Well, we always have more than we could do.
Whitehead further testified without contradiction that following Launer's return,
he called on Lockett, the personnel manager, for a welder and was' advised,
"They ain't available."
Spaw testified that work was slack and that the two welders who quit, did
so because the respondent was `hard •run" on materials. He ' further testified
'in substance that work was slack during January and that" the welders who
'quit were "carried" and would have continued to be "carried",' because "welders
i
i
352 DE,CfS[ONS OF NATLONAL LABOR RELATION' S' BOARD
are very hard to get." Spaw ,testified that he did not "believe" that Whitehead
had advised him that there was plenty of welding for Launer, but he would
not contradict Whitehead's testimony in this regard. Spaw was asked why he
did not put Lauver on' the pay roll immediately in order to hold him. He
replied that he had heard that Launer had- other work and was going elsewhere.
On or'about February 6, Lanner and McAfee requested the Union to take
up with the respondent the matter of the respondent's refusal to reinstate Launer
and McAfee. On or about February 8, Cadena called on Spaw, who advised him
that Launer had not been discharged and would be put back to work "at some
future time when they had work for him, but that lie didn't have any work
for him then and didn't expect any welding work for some time."
On February 9, following Cadena's call on Spaw, the latter sent Whitehead
to Launer's home with the message that Launer could come back to work.
Launer replied that he would do so if "properly" notified.
On March 2 the respondent by registered letter notified Lanner that if he
wished to return to work he should do so by March 8 Launer returned to work
on March 4, and has been continuously employed by the respondent since that date.
From the above and the record it appears and the undersigned, finds that at
all times after January 26, 1943, the respondent had sufficient work for Launer
and refused to reinstate him on January 26,•1943, or to promise him reinstatement
in the future, because of his union activities. ' The record shows that Launer
received a valid and bona fide offer of reinstatement on February 9, 1943, and
the undersigned so finds.
Upon all the evidence the undersigned is convinced and finds that the respondent
discharged Hugh L. McAfee on January 8; 1943 and refused to reinstate Harry W.
Launer on January 26, 1943, for the reason that -these employees were members
of the Union and had engaged in concerted' activities for their mutual aid or
protection and the respondent thus discriminated in regard to their hire and
tenure of employment, thereby discouraging membership in a labor organization.
By such discrimination the respondent has interfered with, restrained and coerced
and is interfering with,' restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE .EFFECT OF THE UNFAIR LABOR PRACTICES UPON OOMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes bur
dening and obstructing commerce and the free flow of commerce.
' V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned recommends that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of Hugh L. McAfee and Harry W. Launer; thereby
discouraging membership in the Union. In order to effectuate the policies of the
Act, it is recommended below that the respondent offer to Hugh L. McAfee im-
mediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges ; since the respond-
ent has reinstated Harry W. Lanner,, as above set forth, no recommendation for
his reinstatement will be made. It is recommended below that the respondent
0
BROWNSVILLE SHIPBUILDING CORPORATION 353
make Hugh L. McAfee and Harry W. Launer whole for any loss of pay they may
have suffered by reason of the discrimination against them, by. payment to each
of them of a sum of money equivalent to that which each normally would have
earned as wages from the date of the discrimination, i. e. January 8, 1943 to the
date of offer of reinstatement in the case of McAfee and from January 26, 1943
to February 9, 1943 in the case of Launer, less the net earnings 8 of each during
said periods.
Upon the basis of the above findings of fact and upon the entire record in the
case the undersigned makes the following:
CoNcLUsIoNs of LAW
1. Brownsville Shipyard Workers Federal Labor Union, #23343, affiliated with
the American Federation of Labor is a labor organization within the meaning
of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and tenure of em-
ploylment of Hugh L. McAfee and Harry W. Launer, thereby discouraging mem-
bership in a labor organization, has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
e
3. The respondent by interfering with, restraining and coercing its employees
,in the exercise of the rights guaranteed them in Section 7 of the Act has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above finding of fact and conclusions of law the under-
signed recommends that the respondent, Brownsville Ship Building Corporation,
and its officers. agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Brownsville Shipyard Workers Federal Labor
Union, #23343, affiliated with the American Federation of Labor, or any other
labor organization of its employees, by discharging or refusing to reinstate any of
its employees, or in any other manner discriminating in regard to their hire and
tenure of employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or .coercing its em-
ployees in the exercise of the right to self-organization, to form, join or assist
labor organizations, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of collective bargain-
ing or other, mutual aid or protection, as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer,to Hugh L. McAffee immediate and full reinstatement to his former
8 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
wheie than for the iespondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Biotheihood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440 Monies received
for work ^perforined 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
354 DECSSQONS OF NATIONAL LABOR RELATIONS BOARD
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges;
(b) Make whole the said Hugh L. McAfee and Harry W. Launer -for any
loss of pay they may have suffered by reason' of the discrimination against them,
by payment to each of them of a sum of money equal to that which each would
normally have earned as wages during the period from the date of discrimination.'
I. e. January 8, 1943 to the date of the offer of reinstatement as to'McAfee and
from January 26, 1943 to February 9, 1943 as to Launer, less net earnings 9 of each
during said periods;
(c) Immediately post in conspicuous places in and about its shipyards and
plant in Brownsville, Texas 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-recom-
mended that it cease and desist in paragraphs 1 (a) and (b) of these recommen-
dations; (2) that it will take the affirmative action set forth in paragraphs 2 (a)"
and (b) of these recommendations; and (3) that the respondent's employees
are free to become or remain members of Brownsville Shipyard Workers Federal
Labor Union, #23343, affiliated with the American Federation of Labor, and that
the respondent will not discriminate against any employee because of membership
in or activity on behalf of that organization;
(d) Notify the Regional Director, for 'the Sixteenth Region in writing within
ten, (10) days from the receipt of this Intermediate Report what steps ; the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notified said Regional Director
in writing that it has complied with the foregoing recommendations the National
Labor Relations Board exercise an order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 28,
1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Washing-
ton, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record'
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board; request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
PETER. F. WARD,
Trial Examiner
Dated May 11, 1943.
O,See footnote 8, supra.