Merrill-Stevens Dry Dock & Repair Co.

National Labor Relations Board - Board Decisions

May 11, 1943

49 N.L.R.B. 698 (N.L.R.B. 1943)

In the Matter of MEmaLL-STEvENs DRY DOCK & REPAIR COMPANY and
INDUSTRIAL UNION OF MARINE & SHIPBUILDING WORKERS OF AMERICA,
C. I. 0., LOCAL #32, CHARGING PARTY and EMPLOYEES ASSOCIATION
OF MERRILL-STEVENS DRY DOCK & REPAIR CO., PARTY TO A CONTRACT'
Case No. C-238. .-Decided May 11, 1943
DECISION
- AND
ORDER
On October 21, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
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. No exceptions or briefs have been filed by any of the
parties. The Board has considered the ruling of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record,in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
except in the following respect : -
The Trial Examiner found that A. P. Hagan occupied a supervisory
position, and, accordingly, that certain pro-Association activities and
statements engaged in by Hagan were attributable to the respondent.
We do not cohcur in this finding. Since the record fails to disclose
with sufficient definiteness and detail the duties of A. P. Hagan, we are
unable to determine whether he occupied such a supervisory status as
to render the respondent-accountable for his activities.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Merrill-Stevens Dry Dock &
Repair Company, Jacksonville, Florida, its officers, agents, •successors,
and assigns shall :
1. Cease and desist from :
49 N. L. R. B., No. 103.
698
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A BRILL-STEVENS DRY DOCK a REPAIR COMPANY - 699
• (a) Dominating or interfering with the administration of Em-
ployees' Association of Merrill-Stevens Dry Dock & Repair Co., or with
the formation or administration of any other labor organization of its
employees, and from contributing financial or other support to Em-
ployees' Association of Merrill-Stevens Dry Dock & Repair Co., or to
any other organization of its employees;
(b) 'Recognizing Employees' Association of Merrill-Stevens Dry
Dock & Repair Co. as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or any other
conditions of employment;
(c) Giving effect to or performing the contract of March 26, 1942,
with Employees' Association of Merrill-Stevens Dry Dock & Repair
Co., or to any amendment, extension, or renewal thereof, or to any
other contract, agreement, understanding, or arrangement entered
into with Employees' Association of Merrill-Stevens Dry Dock &,
Repair Co., relating to grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment;
(d) Discouraging membership in Industrial Union of Marine &
Shipbuilding Workers of America, Local #32, affiliated with the
Congress of Industrial Organizations, 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 employ-
ment ;
(e) 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 purpose of collective bargaining or other mutual aid
or protection, as guaranteed in,Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies'of the act.
(a) Withdraw all recognition from Employees' Association of
Merrill-Stevens Dry Dock & Repair Co. as representative of any of
its employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and completely disestablish
Employees' Association of Merrill-Stevens Dry Dock & Repair Co.
as such representative;
(b) Offer to Wilbur D. Knapp immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Make whole Wilbur D. Knapp for any loss of pay he may have
suffered by reason of the respondent's discrimination against him;.by
payment to him of a sum of money equal to that which he normally
'would have earned as wages from the date of the respondent's dis-
crimination against him to the date of the respondent's offer of rein-
statement, less his net earnings during such period;
(d) Post-immediately in conspicuous places in each of the build-
ings throughout its shipyard at Jacksonville, Florida, 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), (d), and (e) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a), (b), and (c) of this Order; and (3) that the respondent's em-
ployees are free to become or remain members of Industrial Union
of Marine & Shipbuilding Workers of America,-Local #32, affiliated
with the Congress of Industrial Organizations, and that the respond-
ent will not discriminate against any employee because of membership
or activity in that organization;
(e) Notify the Regional Director for the Tenth Region in "writing
within ten (10) days from the date of this order, what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Alexander E. Wilson, Jr., for the Board.
Mr. John W. Donahoo, of Jacksonville, Fla., for the respondent.
Mr. William A. Stanley and Mr. Clair H. Nixon, of Jacksonville, Fla., for the
Association.
Mr. Arthur E. O'Day, of Jacksonville, Fla., for the Union.
STATEMENT OF THE CASE
Upon amended charges duly filed by Industrial Union of Marine & Shipbuilding
Workers of America, C. I. 0., Local #32, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Acting Regional Director
for the Tenth Region (Atlanta, Georgia), issued its complaint dated August
13, 1942, against Merrill-Stevens Dry Dock & Repair Company, Jacksonville,
Florida, herein called the respondent, alleging that the respondent had engaged
In and was engaging in unfair labor practices affecting commerce , within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, amended charge, and notice of hearing thereon were duly served
upon the respondent, the Union, and Employees Association of Merrill-Stevens
Dry Dock & Repair Co., herein called the Association. '
With respect to the unfair labor practices the complaint alleged in substance
that the respondent: (1) discharged and refused to reinstate W. D. Knapp
because of his union membership,and activities ; ( 2) interfered with , restrained,
and coerced its employees -in the exercise of the rights guaranteed in Section
MERRILL-STEVENS DRY DOCK- & REPAIR COMPANY 701
7 of the Act,- by (a) vilification of the Union, its leaders, and members, (b)
interrogation of employees concerning their membership in trade unions, (c)
warning employees not to'become, remain, or assist others in becoming members
of the Union, and (d) surveillance of the Union, its meetings, and members;
(3) dominated and interfered with the formation and administration of the
Association on or about September 1, 1911, and thereafter assisted it by reason
of the aforesaid unfair labor practices and entered into an agreement with the
said Association on March 26, 1942, at which time the Association did not repre-
sent an uncoerced majority. The complaint further alleged that the agreement
between the respondent and the Association was invalid. In its answer filed
August 27, 1942, the respondent denied that it had engaged in or was engaging
in the alleged unfair labor practices or that its activities affected commerce
within the meaning of the Act. The Association, in its answer likewise filed
August 27, denied that it was initiated, sponsored, or thereafter had been the
recipient of the respondent's support and averred that it represented a majority
of the employees and that its contract with the respondent was valid.
Pursuant to notice duly served on all parties, a hearing was held on,August
27, 28, and 31 and September 2 and 3, 1942, at Jacksonville, Florida, before the
undersigned Trial Examiner, duly designated by the Acting Chief Trial Examiner.
The Board, the respondent, and the Association were represented by counsel and
the Union by an international organizer. All parties participated in the hearing.
Full opportunity to be heard, to examine and cross-examine the witnesses. and to
introduce evidence bearing on the issues was afforded all parties.
At the commencement of the hearing the respondent's motion to make the
complaint more definite and certain was denied. , During the course of the hearing
the respondent's motion to amend its answer to deny that the Union was a labor
organization within the meaning of the Act, which it had previously admitted, was
granted. At the conclusion of the Board's case, the motion of counsel for the
Board to conform the pleadings to the proof as to matters of form was granted
without objection. Oral argument in which all parties participated was had on
the record. Pursuant to leave granted at the close of the hearing the respondent
and the Association filed briefs with the undersigned. Neither the Board nor the
Union filed briefs.
Upon the entire record thus made and from his observation of the witnesses
the undersigned makes, in addition to the foregoing, the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
The respondent, Merrill-Stevens Dry Dock & Repair Company, is engaged at
Jacksonville and Miami, Florida, in the repair of vessels, merchant ships, dredges,
and in conversion work. The instant proceeding is concerned only with the re-
spondent's yard at Jacksonville. In 1941 the gross receipts of the Jacksonville
yard were approximately $1,741,000, approximately 75 percent of which was for
work performed for the United States Government. During the same period the
respondent purchased raw materials valued at $493,000, approximately $250,000
of which was shipped to it from points outside the State of Florida. From January
1 to August 1, 1942, the respondent performed work in the yard for the United
States Government valued at $1,031,517.67. This was in addition to work valued
1 The facts found herein are based partially upon a stipulation entered into between the
Board and the respondent._
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at $550,895 98, performed on vessels of 'foreign governments under the Lend-
Lease Agreement The, respondent normally employs about 54O production and
maintenance workers.
II THE ORGANIZATIONS INVOLVED
I - 1
Industrial Union of Marine & Shipbuilding Workers of America, Local #32,
affiliated with the Congress of Industrial Organizations , is a labor organization
which admits to membership employees of the respondent.
Employees Association of Merrill- Stevens Dry Dock & Repair Co .,2 is a labor
organization which admits to membership employees of the respondent.
III. THE UNFAIR LAi3OR PRACTICES
A. The Association
In July of 1941 some of the respondent's employees from various departments
in the yard discussed the possibility of creating an inside union that would
bargain collectively and present their grievances and complaints to management
without the necessity of affiliation with any existing national union. These
somewhat general aspirations crystallized in a conversation employee Clair H.
Nixon had with employee Jack Berry, wherein the latter referred to his ex-
perience as a member of the Independent Brotherhood of Shipyard Workers of
Bath, Maine, Inc., hereinafter called Independent.
Nixon wrote a letter to Independent in August 1941, asking for assistance
in organizing an independent union and for a copy of its rules and bylaws.
On August 11 Independent replied, enclosing a copy of its bylaws and an agree-
ment between it and another employer. These bylaws were turned over to
Edward Hemphill , a local attorney , with instructions to prepare suitable articles
for an association. In late August or early September; at Nixon's suggestion,
meetings were held in all of the various yard departments for the purpose of
electing stewards for such an organization In the machine shop at a meet-
ing of employees (luring the lunch hour Jack Smith, a leader man,' outlined
the plan for the election of stewards from each department. This process was
repeated elsewhere in the yard. Wilbur D. Knapp testified that the meeting
in the electrical shop was held after employee Walter Burch secured permission
of R. C. Smith, electrical foreman, to hold the meeting; that Burch stated the
purpose of the meeting was to form an organization "to keep out the C. I. O.
and the A. F. of L." ; that Smith was present and remarked this was a "very
good thing" and that he would like the, employees to "get together on it"; that
stewards were elected and the'ineeting lasted an hour and one-half to two hours.
Burch admitted that. he called a meeting in September during the lunch hour,
that it lasted 10 minutes, but that stewards were elected at another meeting
held after work. Burch could not recall Smith 's alleged presence at the meeting
but was not questioned and did not deny that be had secured Smith's permission
to hold the meeting., 1Smith, although denying attendance at any meeting held
in his department , readily acknowledged that meetings were held while he was
present in ,the shop and that on one occasion he broke up a meeting that had run
2 The proper name is Employees ' Association of Merrill-Stevens Dry Dock & Repair Co.
2 A shipyard term generally applied to a ww orker having only a few men in the same
occupation under his leadership and who is thoroughly familiar with the requirements of
the occupation and able to direct the activities of others and to maintain maximum pro-
duction Dictionary Of Occupational Titles , Department of Labor, United States Govern-
ment Printing Office, Washington , D. C.'(1939).
a
MER'RILL-STEVENS DRY DOCK & REPAIR! COMPANY 703
over onto company time by 10 to 15 minutes . Smith did not deny Knapp's
testimony that the organization of the Association was a "good thing" upon
which he would like to see the employees "get together ." The undersigned be-
lieves that although Knapp's testimony as to the length of this initial meeting
is exaggerated , that nevertheless it vas held on company time and that other-
wise his account of the meeting was substantialy correct. In view of the failure
of Smith to deny the statements attributed to him by Knapp, the undersigned
finds that the meeting in the electrical shop was held with Smith's approval
and thereat he expressed his favor and support of the Association.'
Sometime after the initial meetings at which stewards were elected, but prior
to September 12, Nixon sought the help of James C. Merrill, the respondent's
president . Nixon testified without contradiction :
I told Mr. Merrill we had hopes of starting some kind of an asso-
ciation in the yard, and I had been asked to speak to him to see if it would
be possible to have use of the mould loft for an evening , because we had
no funds whatsoever . Mr. Merrill said, "How long are you going to be up
there?" And I said, "Well, I don't know ." "Yes, you can take it for one
night," he says , "with the understanding that you can have it for one night's
use."
I told him what some had suggested . . . That we hoped to perfect
an association there for the benefit , welfare and physical welfare of the
men in the yard.
Pursuant to Merrill 's permission the Association held its first meeting in the
respondent 's mould loft 5 on September 12, 1941 . Present were 22 stewards
previously elected at the departmental meetings . The meeting started at 4:20
p. m. and lasted until 5: 30 p. in. Stewards from the night shift , who usually
report for work at 4 p in were excused in order to attend. They were not paid
for their time. Nixon presided and those present discussed proposed bylaws,
a charter for the Association , and the need of legal advice.'
Immediately following this meeting, according to Nixon's nncontradicted test i-
mony, the shop stewards acting as an organizing committee solicited members and
collected dues on company time and property . This was accomplished without
any limitation or interference on the respondent 's part. That their work was
extremely effective is attested by the fact that by October the Association had
secured 241 members. On September 22 the Association 's petition for a cor-
' It appears without contradiction that immediately following these first departmental
meetings the steward; elected fro,a the various departments gathered on company time
and property for a short meeting
The mould loft had been used on occasions in the past for gatherings of employees.
Merrill testified that it was a common practice for employees to meet in the loft and it
appears from his testimony that he drew no distinction between a gathering held to organ-
ize an independent union and a safety meeting attended by employees and supervisors or
a meeting held to organize social functions.
6 Around January 1, 1942, the Association called a meeting of all the employees in the
mould loft. Nixon obtained Merrill's permission to use the loft. The purpose of the
meeting was to settle the question of what disposal was to be made of moneys earned by
the employees foi work performed on New Year's Day, I e, whether to' contribute it to the
Red Cross, purchase War Bonds, or turn it back to the United States Government. Jack
Beery, the,Association's president, presided at the meeting. The undersigned is of the
opinion that although the sole question for discussion was one that affected all em-
ployees, the meeting was neveitheless held under the auspices and sponsorship of the
,Association and was conducted-by its officers , It is also significant that according to
Kilapp's nncontradicted testimony, Berry announced at the meeting that this was to be
.the last Association meeting on company property "because it is against the law."
0
704 ' DECISIONS OF NATIONAL LABOR - RELATIONS ROAR.D
e
porate charter was approved by the Circuit Court of Duval County, Florida.'
Under its terms the Association was to be managed by a Board of -Directors of
not less than 15 members elected annually. Bylaws to be drafted thereafter were
to govern the working affairs of the Association and prescribe the duties of its -
directors. On October 1 at a meeting held outside the plant the Association
appointed a committee to draft bylaws which were adopted at'a meeting held
October S. -
The record is abundantly clear that the Association was free at all times to
solicit members and collect dues on company time and property. Numerous wit-
nesses testified that they received Association applications and paid their dues
to stewards on company time and property. Nixon, the Association's secretary-
treasurer, admitted that although warned on three occasions by his foreman,
Bartman, now deceased, to cease his activity, he nevertheless continued to collect
dues in the plant. He likewise admitted that he was never disciplined for his
Association activity performed on company time. A. A. Force, a ship-caulker,
testified that he paid his dues to his leader man, A. P. Hagan,' on company time
after the latter advised Force and the other caulkers that unless their dues were
paid "they naturally, could not, get the sick claims."' Hagan denied this but he
was not a convincing witness and the undersigned finds that Hagan did in fact
collect dues from employees, whose work he supervised. Frank C. Cole, an
electrician, a credible witness, testified without contradiction that he. paid his
dues in the electrical shop to his steward and on one occasion this was done in
the presence of Smith who observed the incident and said nothing. Knapp testi-
fied : "At one time there was a remark passed in there by Mr. Smith that some-
thing good, was coming up for the organization and be- advised all the fellows
to be in good standing and pay up their dues if they wanted to benefit by it."
This Was in March 1942. Smith testified that he could not "remember of ever
having made a statement like that." The undersigned is of the opinion that the
statement attributed to Smith by Knapp is consistent with his sympathetic at-
titude toward the Association reflected by his presence-at meetings held in his
department and his failure to stop or limit in any way the dues collections that
took place in his presence. The undersigned finds Smith to have made these
remarks thus indicating his support and favor of the Association.
From time to time after September 12 and continuing into the spring of
1942'the Association held departmental meetings for the election of stewards
and conduct of Association business. In October or November 1941 the Associa-
tion members in the electrical department met there to elect a steward to fill
an existing vacancy. Knapp, who joined the Association soon after it was
organized, was elected steward around March 1942. In the same month he
and other representatives of the Association conferred with Merrill respecting
reclassifications to higher ratings of four electricians. Merrill agreed, to the
proposed ratings subject to Smith's approval. About April 7, while Knapp was
at work, Smith told him, that he had rejected a reclassification for Pfeiffer, a
steward and one of the men involved. This precipitated an argument between
Knapp and Smith wherein the former disputed Smith's right to withhold a re-
classification that the Association had negotiated with Merrill. As a result,
Knapp resigned the following day as steward. Pfeiffer likewise resigned and it
became necessary to hold another meeting in the shop to elect successors' to
Knapp and Pfeiffer. At the meeting someone proposed that Knapp be reelected.
According to Knapp's testimony, Smith opposed this stating that Knapp was an
"acting foreman" on the night shift and if the Association elected any steward
that Smith -did not favor he would be promoted to "acting foreman" thereby
7 Hagan's supervisory status as a leader man is discussed hereinafter.
MERRILL-STEVENS DRY DOCK & REPAIR COMPANY 705
making; him ineligibles Smith denied Knapp's testimony that he opposed the
election of stewards or that he stated that he would promote to the position of
foreman, anyone he opposed as a candidate for steward. Knapp's controversy
with Smith which resulted in his resignation as a steward, • lends credence to
Knapp's testimony that Smith opposed his reelection. Although the undersigned
has some doubt concerning this issue, as between the two' witnesses, Knapp was
on the whole the more convincing and persuasive. Accordingly, the undersigned
finds Smith to have expressed these comments including his opposition 'to
Knapp's reelection as steward, thereby interfering in the administration of the
Association. The undersigned is satisfied from a review of all the evidence
that insofar as the electrical department is concerned, numerous meetings were
held both on and off company time. Smith was, if not actually in attendance at
the meetings, present in the shop and fully acquainted with the fact that they
took place. In fact, Smith admitted that two or three,meetings were held on
company time in his department and that he warned the men that this must stop.
Despite this warning two or three later meetings were held on company property.
Smith testified that -he did not care what the men did on their own time on com-
pany property.
-President Merrill denied any knowledge of the foregoing meetings. Although
it is possible that he lacked personal knowledge of the facts, it is clear beyond
,any doubt that at least two responsible foremen, Smith and Bartman, knew of
the existence of extensive Association activity on company time and property.
But there is yet another facet of the respondent's assistance to and support
of the Association. Force testified that around November 1941 Hagan told him
that if he wanted to work he would have to join the Association ; that it was
unfair to the other employees for Force to be employed and not an Association
member and that every employee should join the Association. According to
Force, the comments were made in the presence of the other caulkers. As here-
tofore found, Hagan advised the caulkers to pay their Association dues and in
fact collected dues from Force. Force testified that Hagan was the "boss caulker"
over a crew of six or eight caulkers, and that he gave them their instructions.
On direct examination of Hagan, the respondent sought to show only that
Hagan lacked the status of a supervisory employee. He admitted that he is a
"kind of lead man," and "kind of look[s] out for some men . . ." On cross.
examination Hagan denied telling the caulkers and painters that it was a,"good
thing to join the Association." He admitted that he supervised the work of
painters and talked to employees about the Association "lots of times." How-
ever, he testified that he informed the employees that membership therein was
"up to" them. From observation of Hagan as a witness, and a consideration
of all of his testimony, the undersigned is persuaded that he made the remarks
attributed to him by Force. The undersigned concludes and finds : (1) -that
insofar as the caulkers were concerned Hagan stood in the position of boss
caulker and leader man; (2) that he exercised supervision over their work;
(3) that he made the remarks attributed to him by Force; and (4) that the re-
spondent is responsible "for his conduct. ,
Knapp was discharged on April 27. Shortly thereafter, some dissatisfaction
arose over the way Association representatives were handling grievances, includ-
ing that of Knapp's discharge. Accordingly, in May at a meeting held in the
electrical shop after work Hasty, the steward, posed the question whether the
men were still loyal to the Association or favored representation by the C. I. O.
8 At the same meeting , according to the uncontradicted testimony of Arthur Crabbe,
one of the stewards elected to succeed Knapp and Pfeiffer , a vote was taken to see , whether
the employees favored the Association , the Union , or A. F . of L. craft unions.
706' DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
or A. F. of L. By a show of hands the men voted to remain loyal to the Asso-
ciation. August Eppler testified that this was the last meeting held in the shop,
Hasty announcing that it was against the law to continue to meet on company
property.
Association notices were regularly posted on the respondent's bulletin board.
Permission to post these notices was neither requested nor required. On April
6, 1942, the Union began the distribution of leaflets in front of the plants Later,
the A. F. of L. Metal Trades Council invited the respondent's employees to attend
A. F. of L. meetings. Coincident with this activity the procedure was instituted
of having Union or A. F. of L. notices submitted to John W. Donahoo, the
respondent's counsel, for approval. ' Donahoo then forwarded the notices to
R L. Richard, the respondent's director of personnel, for posting. No' such
procedure was required of the Association, however, which has continued to post
notices without requesting permission and without being required to submit
notices for prior approval either by Donahoo or Richard."
Sometime in February the Association requested the respondent to pay the
employees the rates of pay established by the Navy and Maritime Commission
for various work classifications in shipyards. Merrill agreed to these rates and
`to incorporate any future understandings in writing. Thereafter, Charles E.
Pelot, attorney, drafted an agreement which was executed on February 26. This
agreement provided as follows :
_1. That the `employer' recognizes the `employee' as the presentative (sic)
of the 'employees% of the Merrill-Stevens Dry Dock & Repair Co.;
2. That the `employer,' upon request of the `employee' will bargain col-
lectively with it as the representative of the `employees' of the Merrill-
Stevens Dry Dock & Repair Co.;
3. That if understandings are reached between said `employer' and 'em-
ployee' the employer will embody such understandings in a signed agreement
,if requested,to do so by the `employee';
4. That, the `employee' by and through its executive committee will give
the `employer' reasonable notice of its desire to meet with the officers and
management of the `employers' for any discussion or bargaining with refer-
ence to matters affecting the conditions of employment in its various phases ;
No proof of majority representation was submitted by the Association. On March
26, 1942, the respondent and the Association executed a second agreement,
previously prepared by Pelot." This second agreement contains no specific
recognition clause and provides as follows:
1. That the `employee' has requested the `employer' that the agreement
between the parties hereto, as to the scale^of wages to be paid the employees
'of the 'employer' be embodied in a signed agreement;
2. That employees shall be paid and receive the scale of wages or rate as
set by the Navy or Maritime Commission under the Gulf zone standard, or
any other standard that may be adopted by the Office of Production
Management.
Time and one half shall be paid for all labor exceeding forty (40) hours
per week and double time shall be paid for all Sundays and legal holidays,
unless the working hours and the rate of pay for overtime, as set forth above,
° This-and related incidents is discussed hereinafter. '
io These findings are based upon the uncontradicted testimony of Richard.
ss It' appears from Association minutes that the agreement was not submitted to Asso-
ciation members until April 6.
i
MERRILL-STEVENS DRY DOCK & REPAIR, COMPANY 707
shall be changed by the Federal Government or shall be changed by the Office
of Production Management.
Any grievance on the part of any employee, with reference to his or her
rating or the rate of pay, after being presented by such employee to the
foreman of the department in which he or she works,' if no satisfactory
solution is agreed on, may be presented to the Management by the Executive
Committee of the employee.
The respondent and the Association contend that these agreements recognize
the Association only for its members and are not exclusive bargaining contracts.
Nixon testified that the March 26 agreement was written "On the same basis,"
as the February 26 contract, except that the former agreement "defines [the
February agreements a little more fully " Irrespective of the intention of the
parties expressed at the hearing, the recognition granted by the February
contract was by its terms exclusive. Nixon's testimony indicates that the March
agreement was written "on the same basis" as the February agreement. The
wage terms of the March agreement are clearly applicable to all employees and
the grievance procedure provided therein confers upon the Association authority,
to prosecute the grievance of "any employee." According to Nixon, the only
benefit the March agreement conferred upon the Association was recognition
thereof by the respondent. It did not raise wages. In view of the recognition
clause of the first agreement, Nixon's testimony that the basis remained the same
in formulating the second and the terms of the latter agreement, the undersigned
concludes and finds that the agreement of March 26, 1942, accorded the Association
exclusive recognition.
Although, because of the Ship Building Stabilization Program, the Association
cannot negotiate wage increases, it has succeeded in securing higher ratings for
its members, thus boosting their pay. In addition, the Association provides a
weekly hospital and sick benefit payment of $10 a week, payable for 4 weeks'to
any member who is injured or becomes ill, whether sustained on the job or off.
It also makes loans to needy members. Funds for these purposes are obtained
from monthly dues of $1.
Conclusions with respect to the Association
From the facts set forth above, it is clear that the Association had its inception
in' the spontaneous desire'of a group of employees to obtain the benefits of
collective bargaining No sooner, however, was this idea expressed, than the
Association became the beneficiary of the respondent's support and assistance.
At the moment when the Association's greatest need was an opportunity to explain
its mission , the respondent provided that opportunity by permitting the use of its
premises for meetings and discussions . Thereafter, when the Association assumed
functional form as a result of another meeting on company property, the im-
mediate need was to solicit members and collect dues. Again the respondent
made possible the accomplishing of this purpose by permitting an active solicita-
'tion and membership campaign to take place on its time and property. At no time
in the initial stages of this activity did 'the respondent stop or even limit the
Association's efforts to enroll members and collect their dues. Indeed,' the
respondent has never ordered that this activity be stopped. Under these circum-
stances, the employees could not fail to conclude that the respondent approved
the Association's conduct so freely and openly engaged in , It is reasonable to
infer that approval of its conduct implied approval of the organization itself as
an employee representative.
531647-43-vol 49-9 6
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor must it be overlooked that the purpose of the Association„ as expressed at
one meeting-to keep out the C. I. 0. and the A. F. of L.-had the tacit appro-
bation of one supervisor who otherwise interfered in the Association's adminis-
tration. Another supervisor aided in the collection of dues and urged the
employees under him to join the Association. In addition, the Association's con-
tract of February 26, 1942, granted exclusive recognition without an affirmative
showing that the Association represented a majority of employees in an appro-
priate unit. This recognition coupled with the foregoing acts of support, assist-
ance, and interference was the indelible stamp of the respondent's approval.
This contract was superseded by the agreement of March 26, 1942, which con-
itained a wage clause and set up grievance machinery for all employees. The
undersigned is of the opinion that whether the two agreements granted exclusive
recognition, or were restricted to members only, is not of controlling importance.
In either event the recognition implicit in both agreements was an act of further
support by the respondent which enhanced the prestige and authority of the
Association as a labor organization.
In summary, the respondent has supported and influenced the Association by
permitting it: (1) to organize on company time and property; (2) to solicit
members and collect dues without restraint or limitation; (3) to hold depart-
mental meetings, elect stewards and discuss Association affairs on company
property ; (4) to post notices without the respondent's approval ; and has further
supported and influenced the Association by; (5) expressing approval of and
interfering in the administration of the Association; and (6) entering into the
contracts of February 26 and Marcli 26, 1942. This support and approval of the
Association by the respondent is not wiped out or effaced because of any accom-
plishments the Association thereafter achieved.' The respondent's favor and
support have so permeated the activities of the Association as to eeffectively
impede and,hamper the Association as a genuine, truly independent, bargaining
agency. The respondent's influence has never been dissipated and until this is
done the employees will remain without free and independent labor representa-
tion, uncontamiated by employer influence. When this has been done, the em-
ployees will then be free to determine for themselves the nature, kind, and type
of employee representation they desire.
From the foregoing it follows inescapably that the respondent dominated and
interfered with the formation and administration of the Association- and con-
tributed support thereto, and that it thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act. It is further found that the contract dated March 26, 1942, with the Asso-
ciation, is an agreement made with an organization not freely chosen by the
employees of the respondent as their representative for the purposes of collective
bargaining with the respondent, and constitutes an illegal interference with the
rights guaranteed employees in Section 7 of the Act.
B. The discriminatory discharge of Wilbur D. Knapp
The complaint alleges that on or about April 27, 1942, the respondent dis-
criminatorily discharged Knapp and thereafter refused to reinstate him. The
respondent asserts that it discharged Knapp because of unsatisfactory work.
n The undersigned is not unmindful of benefits that ' have accrued to employees by
reason of membership in the Association , or of accomplishments in the way of improved
working conditions in the yard . These are achievements which need not and ought not
to be destroyed.
MERRILL -STEVENS DRY DOCK & REPAIR COMPANY '709
Knapp, an electrician , commenced work for the respondent in June 1941, at
an hourly wage of 88 cents. Around July 1, 1941, Knapp's hourly wage was
increased to $1.07. He received his last increase about April 20, 1942, when his
rate was raised to $125 per hour. Knapp was rated a first class electrician
and in late February or early March, 1942, was promoted to the position-of.
'leader man and placed in charge of the night electrical crew. On March 25,
1942, Knapp signed a pledge designating the Union as his bargaining agent.
Numerous employees who had occasion to work with Knapp testified on the
Board's behalf as to his skill as an electrician. Their estimates vary in degrees
of praise from "good", "better than the average" to "excellent". The respondent
did not deny Knapp's skill. Smith testified : "As an-individual mechanic I had
no more complaint about him than the other men. As far as ability, when he
wanted to work, -he had the skill."
Reference has been made-above to Knapp's activity as a member of the Asso-
ciation, and his differences with Smith that led to his resignation as a steward
in March 1942.
Events of the week of April 20, preceding Knapp's discharge on April 27, are
significant in understanding the respondent's conduct on the latter date. When
Knapp reported to work about 4 p. in., Monday, April 21, he received at the yard
entrance, from Arthur O'Day, the Union's representative, a copy of the Shipyard
Worker containing a story about the Merrill yard. The essential facts concern-
ing the'incident that followed are not in dispute." Knapp reported for work
aboard the Volkhov, a ship then in drydock. He met William Cole, vice-president
of the Association,- and asked him if he had seen a copy of the Shipyard Worker
containing the Merrill story. Knapp stated to Cole, "Oh, boy, you want to read
it, it is hot". Cole indicated his willingness to read' the account and Knapp
handed him his copy of the paper. After reading the item, Cole and Knapp fell
into an argument, Cole asserting that the Union's sole interest was to extract
excessive initiation fees and dues from members without returning any benefit.
Knapp replied that this was not true and that he knew better. Cole demanded
proof, whereupon Knapp showed Cole the provision in the Union's constitution
fixing initiation fees at not less than $2 nor more than $10. Cole thereupon
accused Knapp of seeking to cause a disturbance and stated that the Association
was able to handle any grievances or complaints of employees. Knapp replied
that he was satisfied with his own conditions but that other men were not, and
that the Association was inadequate, citing his own experience as an Association
steward and stating that the Association was "all controlled by" Merrill. This
ended the conversation between the men but on April 22, Cole remarked to Smith,
"You should have heard Mr. Knapp's soap-box speech". That afternoon when
Knapp reported for work, Smith asked him, "Listen, old man, what is this about
the soap box speeches you are making down on the boat?" Knapp replied that he'
had not made any speech but was "setting Mr. Cole straight on what it costs,to
get into the CIO". On the next day, April 23, Knapp asked Cole whether he had
said anything to Smith about the incident. Cole admitted that he had.
On the night of April 22 or 23, Knapp was at work with his crew on board the
Volkhov. According to his testimony, he found some fault with the work left by
the day shift, ordered his crew to suspend and continue on another job and sent
"'Knapp, Smith and William E. Cole, Jr., an influential member of the Association and
member of its executive committee, testified about this event. Their testimony is in
dispute only as to such matters as the time of the event, whether at 4 o'clock as testified
by Knapp or at 6 o'clock as testified by Cole. In the account set forth below, the under-
signed has relied upon the testimony of these witnesses making findings based upon what
he believes to have been the actual conversations as they occurred. -
710 DECISIONS , 0'F NATIONAL LABOR RELATIONS BOARD
for Smith. Knapp's testimony that he,sent. for Smith to come, to the yard was
substantially corroborated by John Axline. Knapp was kept busy at other tasks.
He testified without contradiction that he was not able to e:it his supper until
8 p. in., consuming 15 minutes of the allotted 30 minutes of suppertime to do this,
-thereafter returning to work. Knapp testified further that he went to the
electrical shop at 9, p. in. to spend the balance of his supper time listening to
news broadcasts over the radio. While there Smith entered, inquired what was
wrong, and both men went down to the Volkhov to inspect the job. It is
Knapp's uncontradicted testimony that thereupon Smith stated to him, "I would
give anything if I had another mechanic around here like you."
Aside from what is uncontradicted above, Smith's version of this incident is
different. He testified that he appeared voluntarily at the yard that night, and
observed Knapp about 10: 15 p. in. slumped into a chair before a radio ; that it was
music, not news„ that was being broadcast, and that he cautioned Knapp to return
to work and not listen to the radio. He admitted that he and Knapp'did inspect
some work on the Volkhov that night, that he praised Knapp's ability, and that
Knapp did state that he was on supper time when seen in the electrical shop.
However, Smith testified that whatever criticism Knapp offered of the inspected
work was "to cover up for himself," to keep Smith's mind "off what I had in my
system". As to his praise of Knapp's ability; Smith testified it was "in a different
light, perhaps, than it would sound. I did it in a very sarcastic manner ; not as
any cQmpliment, but as a reflection". Knapp's testimony set forth above was
simple, direct, and understandable and was in part corroborated by that of
Axline. Smith was profuse in explanation, and his mixed denials and admissions
were further qualified. The undersigned believes and finds Knapp's version to
be the one that is substantially correct and in accord with the facts.
As noted above, Knapp became leader man in charge of the night electrical
shift in late February or March 1942. This was a promotion because of the
greater responsibility involved, the authority exercised and the work and men
that were supervised. Thereafter, President Merrill decided to discontinue this
shift, "Due to work falling off, and on account of the unsatisfactory conditions
that were prevailing at that time in the work; production seemed to slow down."
There is no satisfactory credible evidence that Merrill discussed this question
with Smith before his decision to discontinue it 14 Accordingly, on April 25, 1942,
Smith received the following written order from Merrill :
After checking up the different electrical jobs in the yard I do not think
it advisable to continue the night shift at the present time. Therefore,
consolidate them with the,day gang, beginning Monday, April 27th
Smith showed Knapp the order when Knapp reported for work that afternoon,
and instructed him to have his crew complete their work that night and to have
the full crew report in for work Monday morning, April 27. On Monday, Smith
14 Smith testified :
Q. Did you talk to Mr. Jim Merrill about knocking off this night shift before be
gave you these instructions?
A. I don't think so.
Q. Did he talk to you about the production, I mean Mr. Jim Merrill. Did he talk
to you about the production of that night gang?
A. He often asked about it The day gang as well.
Q. Well, did he discuss with you the factthat your night gang -was not producing
up to standard?
A. I believe he did.
Q., You don't remember? "
A. Not definitely,-no.
a
MERRILL-STEVENS DRY DOCK & REPAIR' COMPANY 711
assigned all, other members of the night crew to new jobs in the yard. Then,
Smith turned to Knapp and said: "Old man, when the night gang went that
meant your job." 15 Knapp inquired if there was anything wrong with his work
and Smith replied, "No, not a thing ... We are- just making some changes and'
this is one of them:" Nothing was said to Knapp about criticism of his work
at this time. Knapp "flew off the handle," according to Smitli, and attributed
his discharge to his union activities, particularly his conversation of April 21
about the Union with Cole. Smith testified that be denied this assertion. Ac-
cording to Knapp, Smith suggested a number of places where he might obtain
work and stated that in two or three weeks when "things get straightened
out," he would be reemployed.
Immediately thereafter, Knapp met Cole in the yard and told Cole that he
had been discharged because of his conversation on April 21 with Cole. Cole
testified without contradiction that Knapp also said to him, that, he had been
discharged for union activities. Thereupon, Cole, accompanied by William P.
Hogg, the Association's president, went to see Smith and told him that Knapp
had stated he was fired for union activities. • Smith called Knapp a "damn liar,"
and stated to Cole and Hogg that Knapp had been discharged for "inefficiency."
At this moment, Knapp returned to the electrical shop and he and Smith en-
gaged in an argument. Neither Knapp nor Smith testified'about this dispute,
but Cole and Hogg, who were present and' overheard the conversation, both
testified in effect that Smith accused Knapp of poor work and loafing, on the
job. Hogg testified further without contradiction that when he and Cole first
spoke to Smith the latter indicated that he would reinstate Knapp but, when
the two began to argue, Smith told Knapp he would not reinstate him "under
any circumstances right at that particular time.s 10
The next day, April 28, O'Day filed charges on Knapp's behalf with the
Board. On April 29, Knapp returned to the plant to see Hogg and Cole and
asked for the Association's help in securing his job. That afternoon both men
interviewed Smith and sought Knapp's reinstatement. Their uncontradicted
testimony about their conversation with Smith is substantially in accord.
Cole testified that Smith:
. . . first told us that he would have to think it over, and, so, on the next
day we continued to ask him to reinstate him, and he said he thought
he would send him word that night to come back . . . that he did need
electricians badly, and . . . he did not know where in the world he was
going to get the men to do the work.
Cole testified further : -
That night it came out in the Jacksonville Journal of the charges that he
done made against the company and the association with the CIO, and that
is the last I saw of Mr. Knapp. .. .
Hogg testified :
Smitty had agreed to send for Knapp, but not as leader man, to put him
back as an electrician, ... when we saw the charges in the paper, .:. it
11 This finding is based upon the testimony of Smith and Knapp.
11 Smith notified the timekeeper of Knapp's discharge for the first time on April 27.
Knapp's separation notice, prepared April 28, states that Knapp was dischaiged "be-
cause his work was unsatisfactory". Knapp's personnel folder contained two small slips
of white paper stating that Knapp had been discharged because his work was unsatis-
factory.. Both slips appear in the undersigned's opinion to be in the handwriting-of the
same person . However, none of the respondent' s witnesses could identify the handwrit-
ing or explain their presence in Knapp's folder.
712 DECISIONS OF NATIONAL LABOR RELATION S , BOARD
was' dropped right there '..., naturally, there was. no interest, in Knapp
coming back at all.
About May 1, Knapp saw Smith and asked for his job, but Smith "shook his
head 'no.' "
Thereafter Knapp sought work elsewhere, each time giving the respondent as
his last employer. He was unable to secure work. He testified that finally he
resorted to the device of faking telephone calls to Richard, the respondent's
director of personnel, to find out, from him 'why he had been discharged and
what was standing in the way of further employment. He testified that on June
10 he simulated a phone call from the Bay Electric Company, spoke to Richard,
and was told that "Knapp" had been fired for inefficiency. Richard and his
assistant, Mrs. Wray W. Wakefield both testified that about March 1, 1942, the
personnel department ceased issuing personnel information in response to phone
inquiries. Richard denied speaking to Knapp ; could not recall any phone call from
the Bay Electric Company but admitted that he received numerous daily phone
inquiries ; stated that he once told Kenneth Merrill, the respondent's vice-presi-
dent, "about the numerous calls, fake calls that had been coming in" and as a
result decided not to issue further information over the phone. The undersigned
believes Knapp's testimony, and finds that he did speak to Richard on June 10,
and was told he had been fired for inefficiency.
This belief finds support in events of the following day. OIi June 11, Knapp
called upon John W. Donahoo, the respondent's 'attorney, and told him that he
"just had to go to work ; that there was no ifs and ands about it." Knapp was
hard pressed at the time, his 10th child having been born June 9; had been unable
to secure work and on June,10 had received the information concerning the
reason for his discharge from Richard. He readily consented to sign a statement
dictated by Donahoo, in which he acknowledged that he was mistaken about the
respondent's violation of the Act and requested that the Regional Director dismiss
the charges filed in his behalf.'Donahoo made no promise to Knapp but told him
he "probably ... would get back to Merrill-Stevens."" On June 15, Knapp
applied to the Atlantic Coast Line Railroad for 'work and on June 16, again
imitated a phone call to Richard concerning "W. D. Knapp." This time, Knapp
I The following is the text of the statement :
STATE OF FLORIDA,
County of Duval, es:
I, W. D. Knapp, do hereby certify that I called at the office of John W. Donahoo,
Attorney for Merrill-Stevens Dry Dock & Repair Company, with reference to a claim
which I 'authorized Arthur E. O'Day to file against said company for violations of
the National Labor Relations Act. I told Mr. Donahoo that I had come to the con-
clusion that ,I was mistaken in believing that the company had violated the Wagner
Act in my case, and I hereby make formal request to the Regional Director of the
National Labor Relations Board for the Tenth Region, that my charge against
Merrill-Stevens Dry Dock & Repair Company be dismissed.
This action is taken voluntarily on my part, without any understanding or agree-.
ment between myself and the company or their attorney.
(s) W. D. KNAPP.
W. D. Knapp.
Sworn and subscribed to before me this 11th day of June A. D. 1942.
(s) LAURELLED BRANTLEY,
Notary Public.
i8 Knapp admitted that he told Donahoo on June 11 he "was thoroughly disgusted
with everything, with the N. L. R. B. and the CIO," that he "was going hungry," that
O'Day was using this suit for the purpose of organizing "the respondent's yard", and that
'one of the purposes of filing charges was "to get a legitimate organization down there."
i
MERRILL-STEVENS DRY DOCK & REPAIR COMPANY • 713
was told, "Mr. Knapp Is a good electrician.... laid off due to lack of work."
Knapp was hired by the 'Atlantic Coast Line Railroad, on June 17.
Smith testified that he first decided to discharge Knapp sometime between the
late afternoon of April 25, when he received Merrill's order to discontinue
the night • shift, and 7 :30 a. in. Monday, April 27. In support of his decision
Smith testified to a series of incidents concerning defective and poor workman-
ship for the most part occurring after Knapp had been promoted to the position
of leader man. When asked when it was that Knapp became unsatisfactory as
an employee, Smith first testified : "it was noticeable after he was employed
about three months." Later he testified : "When he really got in my hair and
began to get unsatisfactory was right prior to his dismissal." Smith admitted
that when first employed Knapp was a satisfactory worker, that he "straightened
up" after exhibiting some unworkmanlike tendencies and was an efficient elec-
trician when made a leader man. Smith's testimony respecting Knapp's attitude
as a worker was not convincing.=°
According to Smith, Knapp, after becoming a leader man, drilled and tapped
holes,when he had been instructed to drill them ; used excessive materials on two
occasions; refused to cooperate with R. C. Switzer, sent in to help in his work;
mistakenly installed one pipe instead of two on the Volkhov; disconnected the
shore electric service on the Pollux before the ship was floated ; and in general did
"too much `bumming' on the job."
With respect to the above incidents, the impression gained from listening to
their recital was that the alleged errors were such as might ordinarily arise in
the course of work where reasonable men differed as to how a certain repair
job was to be done. Moreover, the errors catalogued by Smith are rendered
somewhat suspect by Switzer, who called by the respondent, testified that Knapp
did not resent his work with him ; and that at times Knapp would "go to kidding
and joking . . . but, of course we all do that." As to the disconnection of shore
service on the Pollux. Knapp denied responsibility for it and the undersigned'
believes from the testimony of W. R. Monaghan, the respondent's general super-
intendent, that this was due to no fault of Knapp. Indeed, Knapp restored the
service on the Pollux, Knapp denied responsibility for it and the undersigned
19 This finding Is based on Knapp's testimony although Richard and Wakefield denied
any knowledge of a conversation with Knapp on that dav.
"A characteristic example of Smith's testimony is found in the following excerpt from
the record :
Q. Now, when did he [ Knapp] change from satisfactory to inefficient?
A. He became more so when he was put on nights.
Q. Would you say he was satisfactory at the time he was put on the night shift?
A. Yes, to a certain extent. That is the reason I put him on the night shift.
Q. All right, then, his inefficiency and his being unsatisfactory to you began at
the time he went on the night shift, is that correct?
A. Shortly after he was put on the night shift.
Q. All right, up to the time he was put on the night shift, he was a satisfactory
and efficient employe, is that correct?
A. No, not 100 per cent, because prior to his going on the night shift, I had a•
little trouble with him and bauuled him out for it
Q. Then, he was inefficient before he was put on the night shift?
A. He straightened himself out. I bawled him out and he gave me every assurance
that he would do right by me and by the job and everybody concerned. I considered
that, as you might say, his sales talk to me, and I gave him the night shift, because
he did straighten himself out after that, after I bawled him out.
Q. Then he became efficient?
A. Then he became efficient and then I put him on the night shift, and he was
efficient on that at the beginning of the job, and then he gradually went to slipping.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leader man on the day shift and assistant to Smith, who testified that Knapp had
unnecessarily torn out work done by the day shift, admitted on cross-examination
that it' was "probably" necessary for Knapp to do this, because of improper
installation. Rice further admitted that no discharges were ever made because
of the faulty work of the day shift.
Smith testified further that work did not go well on the night shift under
Knapp ; that he noticed it three or four nights after the shift went on and he
believed the crew was too large for Knapp to handle. Smith cautioned Knapp
to increase production but other than this and reducing the size of the crew
did nothing to help Knapp in his work. Smith called Knapp's attention to the
welding on the conduits and excessive use of materials, but he admitted that
electricians frequently have more than one way of doing a specific task, and to
a certain extent the method of performing work becomes a question of judgment
to be exercised by the worker.
Smith discharged only Knapp, whereas other members of the night crew
were given new employment. He testified that Knapp was not transferred to
the day shift as an electrician because after working as a leader man, Knapp
would not have given satisfactory service as an electrician n The undersigned
questions whether this is true in view of Smith's need for electricians and his
apparent willingness - to reinstate Knapp before the charges had been given
publicity.
In a further effort to show lack of discrimination in Knapp's case the respondent
produced a number of witnesses who testified that they observed Knapp loafing
and sleeping while he should have been at work and,the respondent contended
that the testimony of these employees indicated a pattern of conduct on Knapp's
part which lent support to Smith's charge that Knapp was inefficient and a poor
producer. For example, John Doering testified that he observed Knapp on a
scaffold high above the machine shop floor, "sitting down nodding" ; ClareuceN
McCumber testified that his helper- searched the yard for an hour and a lbalf
one night before finding Knapp ; H. T. Dillard testified that he observed Knapp
alsleep in the lounge of the Byrnar; and Erik Hansen testified he found Knapp
asleep iii the captain's cabin on the Bymnar. Knapp denied that he ever slept
while at work or that he "bummed any more than anyone else.", The under-
signed does not-believe that a resolution of this conflict is determinative of the
issue in Knapp's case for the reason that all of the above witnesses admitted
that they never mentioned the observation of Knapp's alleged sleeping to
Smith. The information, as disclosed at the hearing, was ascertained for the
first time during the respondent's investigation of the case and long after Knapp's
discharge. Hence, this conduct, assuming it did exist on Knapp's part, did not
enter into or effect Smith's decision to discharge Knapp.
Knapp's employment history and Smith's testimony concerning his alleged
conduct as a leader man have been set forth at length in order to ascertain the
true motive for the discharge. In seeking to ascertain this motive, the testimony
of Smith concerning Knapp's many alleged shortcomings is not persuasive. Par-
ticularly is this so for the reason that the Pollux incident was not due to any
fault of Knapp or reported by Monaghan to Smith, and Switzer contradicted
Smith as to the effect of his work with Knapp. Any other incident cited by
21 Smith testified : ". . . if I brought him back to the day shift it would have been in
terms of a demotion, instead of promotion, and a man just does not give you any service
when those things take place, because he is subject to a certain amount of criticism
from the other men that work with him."
MERRILL-STEVENS DRY DOCK & REPAIR COMPANY 715-
Smith is no more' worthy of belief, because of his general untrustworthiness as
a witness 2
The shifting nature of the respondent's defenses in justifying Knapp's dis-
charge is also significant. Nothing was said to him about his alleged ineffi-
ciency at the time of discharge. When Knapp and Smith thereafter fell into
an argument, inefficiency was cited in denial of Knapp's assertion that his dis-
charge was due to union activities. But after Knapp executed the statement
prepared by Donahoo acknowledging error in filing charges and requesting with-
drawal, he was thereafter praised as a workman and his layoff ascribed to lack
of work. Finally at the hearing the respondent attempted to buttress previous
reasons by dragging in the defense of sleeping on the job, unknown to it at
the time of Knapp's discharge, but calculated to establish a pattern of conduct
that would lend support to the general charge that Knapp loafed. The under-
signed believes, as Switzer testified, that in slack or dull moments Knapp may
have idled his time or engaged in small talk with other employees. In this con-
nection, Smith when asked at the hearing if Knapp's "soap-box" speech influenced
his decision to discharge Knapp, replied : "No, nothing more than it was just an-
other item of lost time, you might say. It is not what he said, but what he was
doing." Members of the Association, particularly Nixon, enjoyed the free rein of
the entire yard for Association 'activities on and off company time. They were
never interfered with or disciplined and at no-time did the respondent notify
these favored few that their activities must stop. Nixon acknowledged that
his activities could be characterized as loafing. He admitted that although he
had been warned on at least three occasions, he was nevertheless, persisting "fre-
quently" in his conduct even at the time of the hearing. The inference of dis-
criminatory treatment in Knapp's case is unmistakable when comparison is made-
between the disparate treatment accorded Nixon and the discharge of Knapp
shortly following his advocacy of the Union. This inference is strengthened
in recalling Hogg's undenied testimony that Smith stated that he planned to re-
call Knapp because he needed electricians but the entire matter was dropped
after it was disclosed that Knapp had filed charges and resorted to the processes
of the,Act to secure reinstatement.
The undersigned believes Smith had no serious fault to find with Knapp's record
as a worker ; that he gave no thought to the discharge of Knapp until after he
first learned of his advocacy of the Union; and that the elimination of the night
shift provided the pretext for dismissing Knapp. Under these circumstances,
the undersigned concludes and finds that the respondent discharged Knapp on
April 27, 1942, not because the night shift was eliminated; or that Knapp appeared
to be inefficient or engage in excessive loafing but because Smith, its responsible
agent, was opposed to his union interest, activity and membership. By thus
discharging Knapp, the respondent discriminated in regard to his hire and tenure
of employment, and thereby discouraged membership in the Union and inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
' "The undersigned does not credit the testimony of William A. Kelly, a labor and ma-
terial checker employed by the United States Navy, at the respondent's yard. Kelly testi-
fied to two incidents involving Knapp which lie reported to Smith. Kelly was so obviously
wrong and confused as to time and place of these alleged events as to render his entire
testimony valueless for the purpose of appraising Knapp's conduct. Smith exhibited some
of the same confusion as a witness. For example, he testified that about October 1, 1941,
Kelly complained to him of Knapp's .loafing on the Bymar. It is undisputed that the
Bymar was not docked until December 23, 1941.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Other interference, restraint, and coercion
The complaint alleges, among other matters, that on or after August 15, 1941,
the respondent questioned employees concerning their union membership and
kept under surveillance the meetings and activities of the Union.
Around January 1, 1942, officers of the United States Navy consulted the re-
spondent in respect to its personnel forms and hiring policies. As a result
of their suggestions the respondent adopted new personnel information forms.
'Thereafter all employees and applicants for employment were required to answer,
inter alia, "List All Organizations to which you belong, including Trade, Profes-
sional, Social or Fraternal." Merrill testified that this question was suggested
by the officers and :
... Their explanation in regard to this was that they understood that there
were several organizations in the United States that were headed under
social organization, mostly, but were organized for the purpose of disturb-
ing the American Government, and if it was possible to get employes to give
us the names of anyof these so-called social, fraternal, or other organizations,
it might assist the Intelligence Department of the Navy, as well as different
other Intelligence 'Departments of the United States in breaking up a lot
of these fifth columnists, agitation that was going on at that time. That was
one of the reasons we have asked this question, grid for nothing more,
insisting that we get any information that,we have on that.
According to Merrill's testimony, the naval officers mentioned "social, fraternal,
or other organizations." There is no evidence that the inclusion of trade unions
,was suggested by the Navy Department or its officers. The undersigned is of the
,opinion that Merrill's explanation is naive if not disingenuous. There can be
no doubt of the concern of Naval Intelligence to ferret out saboteurs and to provide
ways and means of securing information to that end. To believe, however, that
these officers suggested the question in issue here, hoping thereby to trap some
unwary employee to disclose membership in a subversive organization, is hardly
credible. Moreover, there is no evidence that the Navy was interested in the
trade union affiliation of any of the respondent's employees and the undersigned
assumes that officers of the United States Navy would not knowingly -direct any
employer to violate the Act by making such an inquiry. The undersigned
believes and finds that Naval Intelligence did consult the respondent about its
personnel forms, but that it did not suggest the inclusion of any question
concerning union affiliation; that this was done by the respondent, upon its own
initiative ; and that in so doing it violated the Act 2'
Richard, personnel director, testified without contradiction that sometime in
the Spring of 1942, the respondent discontinued the practice of inquiring into the
.affiliations of its employees and applicants for employment. The discontinuance
of an unremedied unfair labor practice is no assurance; however, that it will not
be resumed in the future.24 Accordingly, the undersigned finds that the re-
spondent, by inquiring into the union affiliation of employees and applicants
for employment interfered with, restrained, and coerced its employees in the
,exercise of the rights guaranteed in Section 7 of the Act.
ttMatter of Gates Rubber Company and International Brotherhood of Electrical Work-
ers; Local Union No. 68, affiliated with the American Federation of Labor, 30 N. L. R. B.
170.
u See Matter of Consolidated Edison Company of New York, Inc., et al . and United
'Electrical and Radio Workers of America, affiliated with the Committee for Industrial
Organization, 4 N. L. R . B. 71; aff'd 305 U. S. 197.
1
MERRILL-STEVENS DRY DOCK,& REPAIR COMPANY - 717
D. Alleged interference, restraint , and coercion
In connection with the allegation of the complaint that the respondent has {
kept under surveillance the meetings and-activities of the Union, the• Board relies
upon the testimony of S. V. Adams, Jr, a pipe fitter, employed by the respondent.
Adams testified that on the evening of-July 1, 1942, he drove to a meeting
of the Union held in its hall at the southwest corner of Bay and Newman
-Streets. Adams parked his car in front of the union hall and shortly there-
after observed a, Packard station wagon parked on Newnan Street and Vice-
President Kenneth Merrill, accompanied by a lady and child, alight from the
car. According to Adams' further testimony, Merrill crossed in front of him
and walked north on Newnan Street in the direction of the Jacksonville business
district. During the course of the meeting that followed, Adams had occasion
to arise from his seat and go to a 'water cooler for a drink. He testified that
as he did so he glanced out of the window of the meeting place and saw "some-
one in the beach wagon. They were smoking. I could see the red tip of the
cigarette, cigar, or pipe, which ever it was."
At the conclusion of the meeting, Adams got into his car and proceeded home-
ward. He testified that he had proceeded only a Short distance when he ob-
served the Packard station wagon in back of him; that as he drove over the
St. John's River bridge, the station wagon was still in back of him; and when
he slowed down or' speeded up, the station wagon adjusted its speed to that of
his car. Adams testified that he "realized somebody was following" him. He
testified further, "I slowed down to almost a stop, and this other car, realizing-
of course that I had noticed him, whipped out around me and made a quick
turn * * *, and in the meantime I turned on my bright lights and observed
the car that was in question, and it was the Packard beach car." When asked
if lie could tell who was driving the car, he replied, "Not definitely. * * *
From my best knowledge it was Mr. Merrill. It just appeared to me, the way
he looked, the back of his head, and everything." Adams testified that a check
,of the license number of the station wagon was identical with, the license plates
of the station wagon driven by Merrill which he observed the next day parked
-on the respondent 's property. On cross-examination Adams testified as follows:
Q. You don't know whether that was Kenneth there or not, do you?
A. Positively, no, but the outline of his head.
Q. Are you willing to swear it was Kenneth Merrill driving that car?
A. I would not swear who it was.
Adams admitted that he has not been treated differently by the respondent as
respects his working conditions since his alleged incident, except that according
to his testimony, Kenneth Merrill has not greeted him when they have met in
the yard.
Kenneth Merrill testified he did not know Adams, that lie did not know on
July 1, 1942, where the union ball was, and that be did not know his own
whereabouts on that evening. He admitted that he is married and has one
child, that he occasionally goes to the motion pictures in Jacksonville, and that
it might have been possible. for him in that event to have parked the station
wagon which he drove in the vicinity of Newnan Street on July 1. He vigor-
ously denied that he trailed Adams that evening or that he loaned the station
wagon to anyone else for that purpose, and that he has never asked for or re-
ceived a report on the activities of the Union.
Adams was a credible witness and his credibility is attested by the fact that
he would not positively identify Merrill as the one who followed him in the
station wagon . Kenneth Merrill likewise was a credible witness and appeared
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be the sort of man who would not engage in or lend himself to such activities
as spying upon a trade union. In oral argument, counsel for the,Board stated
that the above facts disclosed "as strong a case of surveillance as I have ever
seen." The undersigned does not agree that the Board has by the above testi-
mony of Adams established a case of surveillance for which the respondent is
responsible. In the absence 'of positive identification of the individual who drove
the beach wagon and in the further absence of any evidence which would indi-
cate who, if not Merrill, drove the car, the undersigned is of the opinion and
finds that the Board has not established a case of surveillance. Accordingly, it
will be recommended hereafter that this allegation of the complaint be dismissed.
On March 24, 1942, the City Council of Jacksonville passed an ordinance "to
safeguard certain water-front areas of the City of Jacksonville from fire, explo-
sion and acts of sabotage during the National Emergency " According to Presi-
dent James Merrill, a member of the Council, this ordinance was passed largely
at the request of the United States Coast Guard and was aimed to prevent loiter-
ing of suspicious characters within the area restricted by the ordinance. The
respondent's shipyard lies within the area restricted by the ordinance.
The Union started to organize. the respondent's employees on April 6, 1942,
when O'Day distributed copies of the Shipyard Worker, the official organ of the
Union, to the respondent's employees. He testified without contradiction that
the watchman at the plant gate ordered him to stay on the sidewalk in front of
the plant and that O'Day stated that this was "alright" with him. On or about
May 5, O'Day distributed some 200 to 250 copies of the Shipyard Worker to men
who left the yard at the end of their shift at 4 o'clock. O'Day testified without
contradiction that he returned at about 6 o'clock and, as he started to distribute
further copies of the paper, he noticed two city policemen talking to the watch-
man, that thereupon they asked O'Day what he was going to distribute and told
him that they had orders not to permit the further distribution of literature.
O'Day was told by the police department that he would not be allowed to dis-
tribute any more literature on the water-front because it was in the zone
restricted by the above-mentioned ordinance.
Thereafter, O'Day conferred with Mayor Alsop, of Jacksonville, who, accord-
ing to ODay's uncontradicted testimony, told him that every effort would be
made to keep him away from the Merrill-Stevens gates. About a week later, in
O'Day's presence, Alsop telephoned to Merrill but did not speak to him. O'Day
admitted that subsequent to this last visit with Mayor Alsop he continued to
distribute leaflets on the sidewalk opposite the respondent's plant without
further molestation by the police. He admitted that the police told him the
south side of Bay Street upon which the respondent's yard faced, was in the
restricted zone, and that he was not bothered when he engaged in his activities
on the north side.
Merrill denied that he had ever asked the Police Department to prevent
O'Day from distributing union literature. He admitted, however, that Alsop
had spoken to him "in connection 'with the distributing of,pamphlets and peo-
ple loitering along in that zone soon after the ordinance was passed."' He
could not recall whether O'Day was mentioned in his telephone conversation
with Alsop. Merrill testified further :
[Alsop] asked me what about it and I said. "Well, I don't know any-
thing about that, that is up to the Police Department and the Coast
Guard; . . . and you as the man, together with the Chief of Police, who
operate the Police Department of the city, know what you are supposed to
do . . .." - I did not ask him to keep Mr. O'Day'from distributing any pam-
phlets at any time. He asked me if those people are supposed to be
MERRILL-STEVENS DRY-`DOCK & REPAIR COMPANY 719
there, and ' I says, , "They are not employees of our plant; and are not
employees of any of the ships down there,_ as far as I. know," and I said,
"According to my understanding of what the Coast Guard wanted, they did
not want anybody inside of that area, in any of the area that they de-
scribed, except those who had business in that area, and are employed,
actually employed by concerns doing business in that area, and they wanted
everybody else, all the people, kept moving."
in the oral argument on the record that followed the presentation of
testimony, the undersigned inquired of counsel for the Board if he was .to pass
upon the validity of the ordinance and the acts of the Jacksonville Police
Department. In reply counsel for the Board stated, ". . . what I am asking
you to pass on is this, the watchman calling the police about O'Day, and stop- -
ping him from passing out leaflets, when he was not on restricted property,
... that is the only thing I want.your Honor to pass on."
A study of the ordinance above referred to reveals ambiguous language
therein and it is not clear whether the restricted area ended at the southerly
line of Bay Street or included the entire width of the street. In any event,
the undersigned believes that no finding is necessary' with- respect to the
validity of the above ordinance or the actions of the Police Department. There
is no evidence that the police were called by the watchman and, at best, only
inconclusive evidence to support a finding that polite action was instigated by
the respondent. The action of the police in restricting O'Day's activities to the
north side of Bay Street was a reasonable interpretation of the ambiguous
language of the, ordinance, and O'Day was not interfered with when he con-
fined his activities to the northerly portion of the street. The undersigned finds,
that the respondent has not violated the Act by interfering with the distribu-
tion of literature by the Union .2'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with its operations described in Section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce. .
V. THE REMEDY
Having found that the respondent has engaged in and is engaging in unfair
labor practices, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
25In view of the uncontradicted testimony that this ordinance was passed by the City
Council largely as the result of a request by the United States'Coast Guard, it is signifi-
cant to recall a declaration of policy issued by Admiral It . It. Waesche , Commandant of
the United States, Coast Guard, with respect to those very matters interdicted by the
ordinance . Admiral Waesche in enunciating a policy "governing denial of access to, or
removal of persons from , vessels or waterfront facilities ," directed that such action should
be taken only when there are "reasonable grounds to believe that the person involved (1)
Would engage in sabotage to the vessel or waterfront facility, or (2) Would engage in
espionage work, or ( 3) Has subversive inclinations as demonstrated by pro-Axis state-
ments or actions , or (4) Has a previous criminal record showing arson, train wrecking,
sabotage , or similar activities which would show tendencies of a destructive nature".
Admiral Waesche warned that persons may not be denied access nor be removed "because
of any bona fide labor activity , including, slow downs , sit downs , strikes, or picketing."
Circular to District Coast Guard Officers and Captains of the Port , May 12, 1942.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act and to restore as nearly as possible the status quo existing prior to the
commission of the unfair labor practices.
The undersigned' has found that the respondent has dominated and interfered
with the formation and administration of, and has contributed support, to the
Association. The effects and consequences of the respondent's domination,
interference with, and support, of the Association, as well' as the continued
recognition of the 5Association as a bargaining representative of its-employees,
constitutes a continuing obstacle to the fiee exercise by its employees of their
right -to self-organization and to bargain collectively through representatives
of their own choosing. Because of the respondent's illegal conduct the Asso-
ciation is incapable of serving the respondent's employees as a genuine collec-
tive bargaining agency. Accordingly, the undersigned will recommend that
the respondent, disestablish and withdraw all recognition" from the Association
as representative of any of\its employees for the purpose of dealing with it
concerning `grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment:28 The contract of March 26, 1942, between
the respondent and the Association, which by its terms is still in effect, was and
is part of the respondent's plan to frustrate, self-organization and to defeat
collective bargaining by its employees. Moreover, it provides for recognition
of the Association as the representative of the respondent's employees, although
at the time the contract Was entered' into no proof was presented that the
Association had been designated by an uncoerced majority of the employees
covered by the contract as their representative for the purposes of collective
bargaining. The undersigned will therefore recommend that the respondent
cease and desist from giving effect to this or any other contract with the
Association respecting grievances, labor disputes, rates of pay, wages, hours of
work, or other conditions of employment. Nothing in the recommendation that
follows, however, shall be, deemed to require the respondent to vary or abandon
'the wage rates or conditions of employment' which the respondent may have
established in conformity with the contract as extended, renewed, modified,
supplemented, or superseded 2T
The undersigned has found that the respondent discriminated in regard
,to the hire and tenure of employment of Wilbur D. Knapp because of his union
membership and activity. To effectuate the policies of the Act, the undersigned
will recommend that the respondent offer Wilbur D. Knapp immediate and full
reinstatement to his former or substantially equivalent position, without preju-
dice to his seniority and other rights and privileges. It will be further recom-
mended that the respondent make him whole for any loss of pay he has suffered
by reason of his discharge by payment to him of a sum of money equal to that
amount which he would normally have earned as wages from the date of his,
discharge to the date of his offer of reinstatement, less his net earnings during
said period. -
26 N. L. R. B. v. Lank-Belt Co., 61 S. Ct. 358; H. J. Heinz v. N. L. R. B., 61 S. Ct. 320.
27 National Licorice Co. v. N. L. R. B., 309 U. S. 350, enf'g' as mod, Matter of National
Licorice Co. and Bakery and Confectionary Workers International Union of America,
Local Union 1105, (treater New Pork and Vicinity, 7 N. L. R. B. 537; N. L. R. B. v. Stack-
pole Carbon Co., 105 F. (2d) 167 (C. C. A. ), enf' g as mod. 6 N. L. R. B. 171, cert. denied
308 U. S. 605
28 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 incurred-but for his unlawful
discharge and'the' consequent necessity' of his seeking employment elsewhere. See Matter
of Croasett Lumber Company and United Brotherhood of Carpenters and Joiners' of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B.'440. ' Monies
received for work performed upon Federal , State, , county, municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation ,v. N. L. R. B.,
311 IT. S. 7.
MERRILL-STEVENS DRY DOCK & REPAIR C'O'MPANY 721
Upon the basis of the foregoing findings, of fact and upon the entire record in
the case, the undersigned makes the following:
i CONCLUSIONS OF LAW
1. Industrial Union' of Marine & Shipbuilding Workers of America, Local
#32, affiliated with the Congress of Industrial Organizations, and Employees'
Association of Merill=Stevens Dry Dock & Repair Co., are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Employees' Association of Merrill-Stevens Dry Dock & Repair Co., and contribut-
ing support to it, the respondent has engaged in and is engaging in unfair labor"
practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Wilbur.
D. Knapp and thereby discouraging membership in Industrial Union of Marine &
Shipbuilding Workers of America, Local #32, affiliated with the Congress of
Industrial Organizations, the respondent'has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act. »1
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has -not engaged in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act, in that it has not kept under surveillance the
meeting places, meetings, and activities of the Union, and in that it has not
restricted the Union from distributing circulars.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Merrill-Stevens Dry Dock & Repair
Company, Jacksonville, Florida, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Employees' Associ-
ation of Merrill-Stevens Dry Dock & Repair Co., or with the formation or
administration of any other labor organization of its employees, and from con-
tributing financial or other support to the Association, or to any other organization
of its employees;
(b) Recognizing the said Association as a representative of any of its em-
ployees and giving effect to or performing the contract of March 26, 1942, with
the Association, or any extension or renewal thereof, or any other agreements,
understandings, or arrangements entered into with the Association, respecting
grievances, rates of pay, wages, hours of work, or other conditions of employment ;
(c) Discouraging membership in Industrial Union of Marine & Shipbuilding
Workers of America, Local #32, affiliated with the Congress of Industrial
Organizations, or in any other labor organization 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 ;
(d) 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
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own'choosing , ,and to engage in concerted' activities for the purpose' of collective
bargaining 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) Completely disestablish the Employees ' Association of Merrill- Stevens
Dry Dock & Repair Co., as the representative of any of its employees for the
purpose of dealing with the respondent concerning grievances , labor disputes,
wages , rates of pay, hours of work, and other conditions of employment ;
(b) Withdraw all trecognition from the said Association as the representative
of any of its employees for the purpose of dealing with the respondent con-
cerning grievances , labor disputes, wages, rates of , pay, hours of work, and
other conditions of employment;
(c) Offer to Wilbur D. Knapp, immediate and full reinstatement to his former
or substantially equivalent position, with out'prejudice to his seniority or other
rights and privileges ;
(d) Make whole Wilbur D. Knapp, for any loss of pay he may have suffered
by reason of the respondent's discrimination in regard to his hire and tenure of
employment, by payment to him of a sum of money equal to that which he
normally would have earned-as wages during the period from the date of the
respondent's discrimination to the date of the respondent's offer of reinstate-
ment, less his net earnings" during said period ;
(e) Post immediately in conspicuous places in each of the buildings through-
out the yard of its Jacksonville, Florida, shipyard, and maintain for a period of
at least sixty (60) consecutive days from the date of posting, notices to its em-
ployees stating: (1) that the respondent will not engage in the conduct from
which it is recommended that it cease and desist in paragraph 1 (a), (b), (c),
and (d) of these Recommendations; (2) that the respondent will take the af-
firmative action set forth in paragraph 2 (a), (b), (c), and (d) of these Recom-
mendations; (3) that the respondent's employees are free to become or remain
members of Industrial Union of Marine & Shipbuilding Workers of America,
Local #32, affiliated with the Congress of Industrial Organizations, and that
the respondent will not discriminate against any employee because of member-
ship or activity in that or any other labor organization;
(f) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respond-
ent 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 notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent has engaged in or is engaging in unfair labor practices by
keeping under surveillance the meeting places, meetings, acid activities of the
Union.
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 14,
1042,-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, Washington,
D. C.,,an original and four copies of a statement in writing setting forth such
20 See ' footnote 28, sup' a.
MER'RILL-STEVENS DRY D'OC'K & 'REPAIR COMPANY 723
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (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 after the date of the order transferring the case to the-
Board.
A'IoRTI MFR RIEMER
Ti ial Examiner
Dated October 21, 1942.
a
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