Tampa Shipbuilding Co., Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1943

50 N.L.R.B. 177 (N.L.R.B. 1943)

In the Matter of TAMPA SHIPBUILDING COMPANY, INCORPORATED and
GUARDS, OFFICERS , PATROLMEN AND NIGHTWATCHMEN FEDERAL LABOR
UNION No. 22970, A. F. L.
Case No. C- 590.Decided June 8 , 1943
DECISION
AND
ORDER
On April 15, 1943, 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 forth in the copy of the Intermediate Report
annexed 'hereto. Thereafter the respondent filed exceptions to the
Intermediate Report ,and a brief in support of its exceptions. The
Board has reviewed the, rulings made by the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respond-
ent's exceptions and brief, and the entire record in the case, and hereby
adopts the' findings, conclusions, and recommendations made by the
Trial Examiner, with the exceptions and modifications noted below :
1. The Trial Examiner has found that Bertram 'J. Kell was dis-
charged because of his membership in and activities on behalf of the
Union. The respondent contends that Kell was discharged because
of repeated drunkenness and because he at times reported for work
so under the influence of liquor as to be unable to perform his duties.
It appears from the record that Kell frequently appeared at work with
a "hangover" or with liquor on his breath; that other employees had
been compelled to work his shift on several occasions because of Kell's
physical condition, due to drinking; and that Kell, on the day before
his discharge, was reprimanded by the captain of the guards for com-
ing to work smelling of liquor. Although the circumstances surround-
ing Kell's discharge are by no means free from doubt, we are of the
opinion that the record does not sustain the allegation in the complaint
that Kell was discharged because of his union membership and activity.
50 N. L . B. B., No. 34.
177
178 DECISIONS IOF' NATIONAL LABOR,' RELATIONS BOARD
We shall therefore dismiss the complaint, insofar as it alleges that the
respondent discriminatorily' discharged Kell, within the meaning of
Section 8 (3) of the Act.
2. In concluding that the respondent did not refuse to bargain col-
lectively with the Union, the Trial Examiner has found that it is
immaterial whether or not the Union represented a majority of the
guards between September 10, 1941, and August 22, 1942, because "the
respondent did not employ'the guards during this period." We deem
it unnecessary to make any finding as to whether the respondent was
the employer of the guards during that period. - We agree with the
Trial Examiner's conclusion, and we find, that,the respondent did' not
refuse to bargain collectively within the meaning of the Act, but on the
ground that the record does not show that the Union represented a
majority of the guards at any time material herein.
3. The Trial Examiner has found, as the record shows, that since
August 22, 1942, the guards have been hired' and paid by the re-
spondent. Under the circumstances of the case, we find that the
respondent has been the employer of the guards since August 22, 1942.
ORDER
Upon the basis of the above findings- of fact and 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, Tampa Shipbuilding Company, Incorporated,
Tampa, Florida, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Guards, Officers, Patrolmen and
Nightwatchmen Federal Labor Union No. 22970, A. F. L., or in any
other labor organization of its employees, by locking out or refusing
to reinstate any of its employees,'or in any other manner discriminat-
ing in regard to their-hire and,tenure of employment or .any term
or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of tl e'Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
•(a) Offer to all the guards, except Kimbley D. Chissom, who were
in the respondent's employ on September 9, 1941, and who have not
since been reinstated, immediate and full reinstatement to ' their
former or substantially equivalent positions, without prejudice to
TAMPA SHIPBUILDING COMPANY, INCORPORATED `179
their seniority, and other rights and privileges, as provided in the
section of the Intermediate Report entitled "The remedy";
(b) Make whole, as provided in the section of the Intermediate
Report entitled "The remedy," all the guards, except Kimbley D.
Chissom, who were in the respondent's employ on September 9, 1941,
for any loss-of pay they have suffered by reason of the respondent's
discrimination against them,'by payment to each of them 'of a sum
of money equal to the amount which he normally would have earned
as wages from September 10, 1941, the date of the lock-out, to the
date of.his reinstatement or of the respondent's offer of reinstatement,
as' the case may be, less his net earnings during such period; -
(c) Make whole Kimbley D. Chissom for any loss of pay he has
suffered by reason of the respondent's discrimination against-him,
by payment to him of a sum of money equal to the amount which he
would normally have earned as wages from September 10, 1941, the
date of the lock-out, to October 6, 1941, the date of his reinstatement
by the respondent, less his net earnings during that period;
(d) Post immediately in conspicuous places throughout its ship-
yard at Tampa, Florida, 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 con-
duct from- which it'is ordered to cease and desist in paragraphs 1- (a)
and (b) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 (a), (b), and (c) of this Order;
and (3) that the respondent's employees are free to become and
remain members of Guards, Officers, Patrolmen and Nightwatchmen
Federal Labor Union No. 22970, A. F. L., and that the respondent will
not discriminate against any employee because of membership in or
activity on behalf of 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.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges: (1) that the respondent has engaged
in unfair labor practices, within the meaning of Section 8 (3) of the
Act, by discharging and ref using to reinstate Bertram J: Kell, and
by discharging Kinibley D. Chissom on January 22, 1942, and there-
after refusing to reinstate him; and (2) that the respondent has
engaged in unfair labor practices, within the meaning of Section 8 (5)
of the Act, by refusing to bargain collectively with the Union.
INTERMEDIATE REPORT
t
Mr. Dan M. Byrd, Jr., for the Board.
Messrs. Sutton, Reeves & Allen, by Mr. Leroy Allen, of Tampa, Florida, for the
respondent.
I
/l
180 DECISIONS IOF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed on July 28, 1942, by Guards,' Officers, Patrol-
men and Nightwatchmen Federal Labor Union No. 22970, A. F. L., herein called
the Union,' the National Labor Relations Board, herein called the Board, by its
then Acting Regional Director for the Tenth Region (Atlanta, Georgia), issued
its complaint on July 31, 1941, against Tampa Shipbuilding Company, Incorpo-
rated, herein called the respondent, Hugh Culbreath, an individual, and J. A.
Savarese, an individual, alleging that the respondent, Culbreath, and Savarese,
had engaged in and were engaging in unfair labor practices affecting' commerce
within the meaning of Section 8 (1), (3), (4) and (5), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint with notice of hearing thereon, were duly served upon the
respondent, Culbreath, Savarese, and the Union.'
With respect to the unfair labor practices, the amended complaint (as
amended)' alleged, in substance, that the respondent: (1) since on or about
September 1, 1941, has (a) vilified, disparaged, and expressed its disapproval of
the Union, (b) interrogated its employees concerning their union affiliations,
(c) urged, persuaded, threatened, and warned its employees to refrain from
assisting, becoming members or remaining members of the Union, and (d) kept
under surveillance the meeting places, meetings, and activities of the Union ; (2)
on or about September 4, 1941, discharged B J. Kell [Bertram J. Kell], and there-
after refused to reinstate him, because he joined or assisted the Union or engaged
in concerted activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection ; (3) on or about September 6, 1941,
refused and continues to refuse to bargain collectively with 'the Union as the exclu-
sive representative of the employees in an appropriate unit, although the Union
had been designated as their representative by a majority of such employees;
(4) on or about September 10, 1941, locked-out and terminated the employment
of all the guards then in its employ in order to avoid bargaining with the Union,
to discourage membership in the Union, and to interfere with, restrain, and coerce
the said guards in the exercise of their rights under the Act ; and (5) on or about
January 22, 1942, discharged K. D. Chissom [Kiinbley D. Chissom], and there-
after refused to reinstate him because of his activities on behalf of the Union.
On or about November 27, 1942, the respondent filed its answer to the amended
complaint (as amended) denying the alleged unfair labor practices and the
appropriateness of the unit. The answer, tinter alia, averred that Kell was
discharged "for many good' and sufficient reasons, including drunkenness and
reporting for duty under the influence of liquor ..." ; that Chissom was not
discharged but had on January 22, 1942, resigned from the respondent's employ ;
and that the guards were not locked-out, but that "from and after September
10, 1941, the guarding of respondent's yard was taken over by the Sheriff .. .
'This organization was not officially chartered until on or about October 21, 1941.
Nevertheless, it is ieferied to throughout this report as "the Union."
' On or about October 5, 1942, the Union duly filed a second amended charge and based
thereon an amended complaint was duly issued by the Board on October 7, 1942. Objec-
tions to the issuance of the amended complaint,were overrulediby the undersigned On
November 13, 1942, the Boaid issued an amended complaint (as amended). Objections
to the issuance thereof,were overruled by the undersigned The amended complaint and
the amended complaint (as amended), which were duly served on October 7 and Novem-
ber 13, 1942, respectively, upon the respondent and the Union, dropped as parties re-
spondent Culbreath and Savarese, withdrew the allegation of a violation of Section 8 (4)
of the Act, and in other respects amended the original complaint.
8 See footnote 2, supra.
TAMPA SHIPBUILDING COMPANY, INCORPORATED 181
under a' valid and binding contract ...", and that on and after that date the
respondent was "not an employer" of the guards.
Pursuant to notice, a hearing was held from August 17 and August 21, 1942,
and from March 1 to March 15, 1943, at Tampa, Florida, before Howard Myers,
the undersigned Trial Examiner duly designated by the then Acting Chief Trial
Examiner. The Board and the respondent were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues' was
afforded the parties. During the hearing, upon motion, all prospective wit-
nesses were excluded from the hearing room until their turn to testify. Each
party, however, was permitted to have two persons sit with counsel, even though
those persons- were prospective witnesses. At the conclusion of the Board's
case, counsel for the respondent moved to dismiss the complaint in its entirety
or in the alternative, to dismiss certain portions thereof. The motion was
granted without objection with respect to the allegation of surveillance of union
meetings, but otherwise was denied. At the conclusion of the hearing, respond-
ent's counsel renewed the previously denied portion of his motion. Decision
thereon was reserved. It is hereby denied. Counsel for the Board, at the
conclusion of the hearing, moved to conform the pleadings to the proof with
respect to minor matters. The motion was granted, without objection. The
parties were afforded an opportunity to argue orally before the undersigned.
Counsel for the Board and for the respondent participated in such oral argu-
ment. The parties were then advised that they might file briefs with the under-
signed on or before March 20, 1943 No briefs have been received.
Upon the entire record in the ease and from his observation of the witnesses
the undersigned makes, in addition to the alcove, the following:
I
1. THE BUSINESS OF THE RESPONI)ENT '
The respondent, Tampa Shipbuilding Company, Incorporated, is a Florida
corporation, having its shipyard and principal place of business at Tampa, Florida.
There it is engaged in the construction, conversion, and repair of ships for the
United States Navy Department and for the Lend-Lease Administration. The
respondent also constructs pumps for the various drydocks of the Navy Depart-
ment. For the 12 months period ending August 18, 1942, the respondent's gross
receipts amounted to more than $10,000,000 During the same period it pur-
chased raw materials amounting to more than $2,000,000, approximately -80
percent of which was received by it "under mandatory allocations of the War
Production Board from suppliers located outside of the State of Florida." The
boats built, converted, and repaired by the respondent are delivered by it to
the United States Government at Tampa, Florida For the 12 months period
ending August 18, 1942, the value of the pumps shipped by the respondent to
points outside the State of Florida amounted to about Ih0 of 1 percent of its
gross receipts during that period.
II THE ORGANIZATION INVOLVNi'D
Guards, Officers, Patrolmen and Nightwatchmen Federal Labor Union No.
22970, is a labor organization affiliated with the American Federation of Labor
and admits to membership employees of the respondent.
4 The findings in this section are based in part upon a stipulation entered into at the
hearing by counsel for the Board and for the respondent.
536105-44-vol. 50-13
182, DECISIONS OF NATIONAL-LABOR RELATION'S BOARD
Ill. TIIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discharge of Berti ain J. Kell; and
the lock-out
In August 1941, several of the respondent's guards consulted Glenn McClung,
an International Representative ofi the International Union of Operating Engi-
neers,' regarding the formation of a union among the guards of the respondent.
Upon receiving McClung's assurances of support, these guards then discussed
the matter with their co-workers As a result of these discussions, about 20
or 25 of the approximately 79 guards then in the respondent's employ met at
McClung's house on the evening of September 4. There the matters attendant
to the formation of a labor organization were discussed, temporary officers elected,
and Kimbley D. Chissom, a guard, appointed business agent. At the conclusion
of this meeting, Warren Peeler, one of the persons who first spoke .to McClung
about organizing the guards, mailed a letter to the American' Federation of
Labor in Washington enclosing therein an application for a charter and a money
order in payment thereof Peeler and another guard named W. M. Wood then
went to the respondent's shipyard. There they told Bertram J. Kell, the ser-
geant in charge of the guards at that particular time,' about the meeting at
McClung's house and asked Kell's permission to speak to the guards then on duty
in order to 'get them to join the Union. Kell not only granted the request,but
joined the Union that evening and accompanied Peeler and.Wood while they
spoke to' the various guards at their respective stdtions. teener and Wood
spoke to all the guards then on duty-and obtained the signatures of several
Most' of 'those who signed gave Peeler some money to defray the cost of the
charter. Before leaving the yard, Peeler handed Kell a book similar to the
one in which he and Wood obtained signatures and asked him to give the book
to Robert Jones, the "roving -guard"' on the next shift, and to request Jones
to solicit the men on his shift. Kell did as requested.
Shortly after Peeler and Wood left the yard, the men on the next shift
.came on duty. Lee Fegenbush, the sergeant in charge of this shift, was told
by Ryan, a guard, that the guards were organizing a union Fegenbush'imme-
diately communicated this information to, Vernon B. Callis, the lieutenant of
the guards. Callis and Fegenbush then telephoned Chadwick, the captain of
the respondent's guards, went to' his house, and the three of them returned to
the yard about 1 o'clock in the morning.' Chadwick was informed by Callis
and Fegenbush that "they were trying to form a union among the guards,
trying to organize." Regarding his activities and those of Chadwick and Callis
upon their return to the yard, Fegenbush testified as follows :
Q What did you three men do after you got back to the yard?
A. Well, we went around to quite a few of the boys and talked to the
boys about it.
Q. And what did you say to them, Mr. Fegenbush?
A Well, we asked them about it, if they had been approached, and
several of them said they had
Q. Did you tell them anything about being'or not being in the union
that night?
6 An affiliate of the American Federation of Labor
Peeler and Wood appeared at the yard just prior to the end of the 6 • 00 p in. to mid-
night shift
A "roving guard" has no particular station ; his duties take him throughout the yard.
s The record is clear that the sergeants, the lieutenant, and the captain of the guards
are supervisory employees, for whose actions the respondent is iesponsible.
TAMPA SHIPBUILDING COMPANY, 'INCORPORATED, - 183
A. They asked me what I thought about it, and what I".thought they
ought to do, and I, told them they had a head the same as I did, but in
my opinion, I would not join because I did not think you could be a
deputy sheriff and guard the shipyard and belong to the union, but I-did
not advise none of them what to-do. I told them to use their judgment.
Q. 'Now, as a result of talking to these various men in the yard them
that night, did you learn anything about Kell?
A. Some of them told me that Kell and some business agent, or someone,
I would not say who it was, had been around and talked to them and
collected dues from some of them . Some of them had put-up, I think it
was, a dollar.
Callis testified that upon their return to the yard, he, Chadwick, and Fegenbush
spoke to some of the guards and were informed that Kell and others "had
been around the yard soliciting membership." Chadwick testified that when
they arrived at the yard he noticed that Jones "had a notebook in his hand,
and he would stop the different guards .:." Later Jones, according to Chad-
wick, "came rushing in" to the latter's office and stated, " ... I did not
know what I was doing." ° Chadwick further testified that he was of the
definite impression that Jones was "soliciting."
Chadwick, in his testimony, indicated that the reason for his activities at
the yard that night was his concern over the violation-of the respondent's rule
against solicitation of all types "in the yard." Callis sought' to justify his
actions upon the same ground. Yet, it is significant that Fegenbush did not
similarly testify, but, on the other hand, stated that he, Chadwick, and Callis
had been told that night that the guards were organizing, and that he advised
several of the guards that he "would not join because [lie] did not think you
could be a deputy sheriff and guard the shipyard and belong to the union . . .
Despite Chadwick's conviction that Jones had knowingly violated the rule, and
though he had knowledge of Kell's activities, no disciplinary action was taken
against either of these employees for their conduct in this respect. In the
circumstances, and from the entire record, the undersigned is convinced and
finds that Chadwick, Callis, and Fegenbush did not undertake to enforce the
respondent's rule or to halt its violation, but determined to thwart the guards'
organizational activities and prevent, the formation of a union- among them.
To effect such purposes they questioned the guards respecting their concerted
activities, and Fegenbush discouraged affiliation with the Union. This finding
is buttressed by the admissions of Chadwick, who testified that "on various
occasions" during the summer of 1941, he informed several of the guards whom
he supervised, when engaged in conversation concerning the organization of
the guards, that he did not "think they will get away with it" and that "the
Navy or the Marines might come in, marching in the gate, and we would go
out in the opposite direction " He also testified that during 'some of these
conversations he stated that he "was afraid" the Navy "might take over and
we would lose our jobs, and other people were of the same opinion" if the
guards organized. During this period, Chadwick told Guy English,10 after the
latter had informed him that the guards were organizing , that he did not
° Chadwick also testified that Jones told him that he'was "going to throw that book on
Kell's front porch " The following morning, as he testified, Kell found the book he had
given Jones on the front porch of his house with a note reading, "Kell, I did not know
that this was a union. Captain Chadwick told me what it is, and I will have no part in it.
Jones."
10 A former guard. Now employed elsewhere in the yard.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"think you will get away with that, because I don't think the Navy will stand
for it."
Chadwick remained at the yard the balance of the night . Between 9: 00 and
10:00 o'clock in the morning, according to his testimony, he went to the office
of George P. Howell, the respondent 's president . There he told Howell that
Kell had allowed certain persons in the yard to solicit both membership and
money for dues, and that McClung was lone of them. Chadwick testified that
Howell then instructed him to "stop it, that soliciting in the yard " ; that he
informed Howell that "it has already been stopped " ; and that he thereupon left
Howell's office. Chadwick further testified that later he went to the office of
,Bayard C. Stafford , the respondent 's personnel director . Regarding this visit
to Stafford 's office Chadwick testified as follows :
Mr. Stafford , I think, was in his office alone. I walked in and I said,
"Mr. Stafford, Kell has been coming in here with a hangover. He has
come in here with the smell of liquor on his breath , when apparently there
was no hangover ," and 1 , said, "Sometime back," I said, "I came in the
morning and found Kell in my office with his arms folded and his head
on ' his arms, and he was asleep and I awakened him," and as I say, he
was so drunk he could not talk." I said, "I have talked to Kell ." He said,
"Well, bawl him out. Bawl him out. Talk to him." And I said , "I have
talked to him and I have bawled him out like a Dutch uncle , but it does
not seem to have any effect ," and I said, "I think Kell has gotten to the
end of his rope," and he said, "We will have to consider this thing," and
he said "to reconsider," he said, "Get rid of him," and I said, "I will do
that tomorrow morning," and I walked out and went to the main gate and
went home.
Stafford testified that on the morning Kell was discharged, Chadwick came to
his office and told him that Kell had been in his [Chadwick 's]- office under the
influence of liquor 1a and that he "told the Captain we better get rid of Kell"
and that later that morning he telephoned to the Sheriff " to lift" Kell's com-
mission" Howell testified that on September 5, he came into the yard and
saw McClung and H. L. Sander 14 there, and the former was talking to a
guard ; and that he telephoned "Chadwick and he was out, and about ten min-
utes later he walked into my office and said that he wanted to come over to
report that union agents were soliciting in the yard, and I told him to throw
them out of the yard and fire the guard that allowed them in." 16
When Kell reported for work on the evening of September 5, he was met by
Sergeant McDugald , who asked him for his deputy sheriff's commission and
advised him that Stafford had ordered such action. Kell asked McDugald "what
the trouble was." McDugald stated that he did not know. Kell then refused to
turn the commission over to McDugald 'stating that he had received it from the
Sheriff and that he would return it to him. Shortly thereafter Stafford came
over to Kell and told him, according to Kell, that he was sorry he had to let
him go because he was one of the best men in the yard, "but under the company
rules a man could not work [as a guard] unless he had a deputy' s commission,"
11 Chadwick stated that this incident took place in August 1941.
12 See footnote 11, supra. According to Chadwick, Stafford was informed by him on
September 5 that this event took place "sonic time hack."
11 It was then the respondent ' s practice to have the guards deputized by the Sheriff of
tIillsborough County , the county in which the yard is located.
14 A representative of an affiliate of the American Federation of Labor.
16 Chadwick could not recall Howell telling him to "throw [ the union organizers] out of
the yard and to fire the guard that allowed them in."
TAMPA SHIPBUILDING COMPANY, INCORPORATE'D' 185
and since the sheriff had revoked his commission the respondent ' was obliged
to discharge him. Kell further testified that he left the yard that evening
with Stafford and rode a few blocks with Stafford in his car , and had the
following conversation with him :
A. I asked him [ Stafford] if he had any idea what the trouble was, and
he asked me was I doing any drinking , and I said no, that I have not
even been in any place where there is drinking , except the place where they
sell beer, and , in tact I eat lunch in a place where they sell beer, and he
let me out of the car.
Stafford did not recall any "particular conversation " during the ride, and did
not "think" he told Kell the reason for the latter 's discharge . Kell's testimony
respecting these events is credited by the undersigned.
Later that evening Kell telephoned the Sheriff and asked him why his com-
mission was revoked. , The Sheriff told him that Stafford had called him earlier
in the day and requested the revocation "and inasmuch as the company paid
for the bond," the Sheriff could not do anything other than to comply with
the request.
On the following day, September 6, McClung and Chissom called upon Stafford
for the purposes of protesting Kell's discharge and securing recognition of the
Union as the representative of the guards . On this occasion they proceeded to
state their purposes . Stafford , according to McClung and Chissom , told them
that he would have to- take these matters up with some higher officials, and if
they would telephone him on September 9, he would arrange an appointment
for them. Stafford testified that he told McClung and Chissom that he would
not reinstate Kell because he was "not the kind of man we want on the Guard."
He admitted , however, that he told McClung and Chissom that he would discuss
the matter of recognition of the Union with some higher official , but testified
that he could not recall whether he told McClung and Chissom that he would
make an appointment for them. The undersigned finds the testimony of McClung
and Chissom regarding their meeting with Stafford on September 6, 1941,16 to
be substantially in accord with the facts.
The undersigned is convinced and finds that Kell was discharged on September
5, 1941, because of his membership in and activities on behalf of the Union. As
found above and as will further be shown directly below, the respondent was
most desirous of preventing the guards from organizing . Kell actively aided
the organization of a union of the guards . His discharge occurred the day
after he gave such aid. The respondent , among its employees , identified but two
individuals who were associated with the Union 's organizing drive. These were
Kell and Jones . The latter communicated ' to Chadwick his desire to withdraw
from the activities in question . On September 5, Stafford , who ultimately caused
Kell 's discharge , assigned to Kell no reason for the respondent 's termination of
his services , except that the Sheriff had revoked his commission . It is undenied
that the respondent induced the Sheriff to cancel Kell's commission . The re-
spondent does riot contend that Kell was discharged because he violated the
respondent 's rule against solicitation . It adduced evidence and argued that
Kell 's*addiction to intoxicants , and its effect upon his work on several occasions,
motivated it to sever Kell's employment . Yet, Howell was informed of Kell's
union activities early in the morning of Kell's discharge , and ordered the dis-
charge of the guard who permitted the union organizers to enter the yard. It
11 Stafford testified that this meeting took place on the day Kell was discharged ; the
undersigned finds that he was mistaken in this respect and that it took place on Septeiu-
ber 6.
186 ' DECISIONS OF NAT161AL LABOR RELATIONS BOARD
is apparent that Dell's union activities , rather than his complicity with others
in violating the respondent 's rule, or the charge that he reported for work at
various times under the 'influence of liquor or with ' a "hangover ," was the sole
reason for his employment termination . Significantly , Stafford testified that an
incident which occurred "sometime back" was the immediate reason for Dell's
discharge.
. On Monday , September 8, Howell met' with the various representatives of the
"Metal Trades Department of the American Federation of Labor." 17 At this
meeting, according to Howell , he told the union representatives that the closed
shop agreement prohibited the guards from being organized," that McClung
and, Saiider had breached the agreement by aiding the guards in their organiza
.tional efforts and by soliciting on company time and property ," and that in the
future the respondent would not meet with the Metal Trades Department in
informal meetings 20 to discuss grievances , but would insist that grievances be
taken up in the manner prescribed in the agreement . Although Howell testified
that he was not opposed to the guards organzing , Guy English testified that
in the early part of October 1941 , he and Chissom met with Howell to protest the
contract made by the respondent with the Sheriff , whereby the supervision of the
guards was placed in the hands of the Sheriff of Hillsborough County,21 and
that Howell told them that "he said in this meeting [of September 8] with the
Metal Trades [ that] he told Mr. McClung and the other men of the Metal Trades,
that unless they did away with this guard union , that they [ the respondent]
would not hold a meeting with them [the Metal Trades]." ' English also testified
concerning this ' meeting with Howell :
Q. Did Mr. Howell tell you any reason he gave the Metal Trades Council
[Department ] as to why he would not have the guards organize into the
Union?
A. None whatever , he said he was not going to have no union guard.
Howell denied making these statements . The undersigned rejects his denial
and credits English 's testimony?'
The respondent 's contention that it merely attempted to stop union activities-
on its time and property is without merit and is not supported by the record.
The credible evidence discloses its antipathy to the organization of the guards
regardless of when, where , and by whom such activities were carried on. At
the least , there is concrete evidence which clearly portrays the respondent 's oppo--
sition to the organization of its guards by the Metal Trades Department. In
justification of its hostility to the conduct of the Metal Trades Department in-
this connection , the respondent urges that the agreement it has with this
organization proscribes such conduct . This prohibition does not, in fact,
exist. The agreement merely provides for the exclusion of the guards from
its coverage . In any event, a provision so limiting the right of employees to
17 On or about July 16, 1941 , the respondent entered into a closed shop agreement with
the Metal Trades Department of the American Federation of Labor covering certain named
crafts. The guards were among those specifically excluded.
>e Howell maintained that at the time of the execution of the contract with the Metal
Trades Department , it was understood that the guards were not to be organized by the
union signatories . The contract itself does not so provide.
19 The agreement contains no clause forbidding solicitation on company time and property.
20 This was an informal meeting to discuss a grievance.
21 This contract is discussed below.
12 Howell was not a credible witness. An example of his unreliability is hls testimony
at the hearing indicating that he knew of the Union as early as September 8, the time
.of his meeting with the Metal Trades Department , and his statement in a letter to the
Board dated No\ ember 22, 1941, averring that on September 10 he had no knowledge.
of the Union.
TAMPA SHIPBUILDING COMPANY, INCORPORATED 187
freely choose their own bargaining representative is of no effect." More-
over, the Board has enunciated the rule that guards are entitled to repre-
sentation by the bargaining agent of their employer's production and mainte-
nance employees, provided a separate unit is maintained for them.' Thus,
any position, to the contrary is untenable." Accordingly, the respondent's
hostility to the Union, as transmuted into, and evidenced by the actions herein
described, is violative of the Act.
On September 9, the respondent entered into a written contract with the
sheriff of Hillsborough County 2° Under the terms of, the contract, the
Sheriff assumed "the guarding and policing of the premises" of the respondent,
which included "the usual and customary services of watchmen and gatemen."
The contract also provided , among other things:
7. The Sheriff shall have full and complete control and authority over
said men furnished in compliance with this agreement , including the right
to hire and fire said men or otter rights and powers usual and customary
to an employer and the [ respondent] shall have no right to designate the
men to be employed or the hours of service , or have any control - over'the
action of said men, and they and each of them shall be answerable only
to the Sheriff ..."
In its answer, the respondent asserts that on and after September 10, 1941, it
no longer was the employer of the guards.
The respondent contended at the hearing that the contract was entered into
because of the insistence of the Navy Department that the yard be guarded
by persons with authority to make arrests; and that there had been a great
amount of stealing of tools and materials from the yard, and the guards then
in its employ were unable or unwilling to prevent the thefts . Whatever' may
be said as to the validity of these contentions, the fact is that the, respondent's
apprehension in this regard was not the motivating ' factor which led to the
execution of the contract . Thus, the record shows that guards in the re-
spondent 's employ at the time of the execution of the contract were deputy
sheriffs with power to make arrests. Furthermore , there is no evidence that
the thefts of tools and materials were due to the negligence or incompetency
of the guards.
The respondent also contended at the hearing that "the guards were turned
over to the sheriff" because the Sheriff would ' not deputize any guard who was
not an adherent of the political party to which the Sheriff belonged , and for
that reason the respondent was unable to hire many able and competent per-
sons to guard the yard. This contention is contrary to the credible evidence
adduced at the hearing. In fact, James Gray, the respondent's secretary and
treasurer, did not testify to any instance prior to September 9, 1941, where the
Sheriff refused to deputize a guard suggested by the respondent, except for
Sheriff, Meyers testified that between April, 1941 and September 9, 1941, 'he
the cases of two individuals with criminal records. Former Chief Deputy
had complete charge of deputizing the respondent's guards, and that at no
"Matter of Packard Motor. Car Company and International Union, United Automobile
Aircraft it Agricultural Implement Workers of America, Local No. 11i , 47 N L. R B 932
"Matter of Packard Motor Car Company , etc, supra ; Matter of Chrysler Corporation,-
Highland Park Plant and Local 114, United Automobile, Aircraft it Agricultural Imple-
ment Workers, 44 N. L. R. B. 881.
25 The respondent also contended that guards who are members of the same union as the
workers they observe are incapable of properly performing their policing duties This
contention is likewise without merit. See Matter of Chrysler Corporation , etc., supra
95 This contract , by its terms , became effective at 12 :01 a. in . on September 10, 1941.
188 DECISIONS IOF NATIONAL LABOR RELATIONS BOARD-
time was any guard refused a commission if he had no known criminal record.
Meyers further testified that during that period, several of the respondent's
guards who had opposed the election of the Sheriff were deputized.
The undersigned is convinced and 'finds that the contract of September 9,
1941, was entered into by the respondent for the sole purpose of defeating the
organizational drive of the Union, and to provide the respondent with an
avenue of escape so that it would not be compelled to bargain collectively, with
the Union. This finding is supported by a statement made by Gray to McClung
on or about September 10, when McClung telephoned Gray for an appointment
to meet with Howell to discuss the recognition of the Union by the respondent.,
During this conversation Gray told 'McClung that the guards had been "turned
over 'to the sheriff," that the Sheriff was going to police the yard, and that,`
therefore, the Board did not have any jurisdiction in the matter. This find-
ing is further supported by the testimony of English who stated that in the
early part of October 1941, he went 'to Stafford's office in an endeavor to be
reinstated as a guard after being discharged by the Sheriff, and that Stafford'
told, him, "I cannot get you reinstated in the Guard . . . The Company is not
going to take the guards back; and [we're] not going to have a union guard
... [and] `the sheriff is the man'to decide"' whether he would reinstate him.
Stafford did not specifically deny making the statement attributed to him by
English. The undersigned credits English's testimony and finds that Stafford
made the above quoted statement. -
The undersigned concludes and, finds that the respondent entered into the
contract for the purpose of discouraging its guards from joining 'or remaining
members of the Union. The facts found above leave room for no other con-
elusion. The contention of the respondent that the guards' union activities
played no part in its determination to enter into this contract is not supported
by the credible evidence. ' By, the terms of the contract, the respondent locked-
out its guards at midnight, September 9, 1941, and by such action the respondent
committed an unfair labor practice within the meaning of the Act.27
The undersigned further finds that the respondent discriminated against
Bertram J. Kell on September 5, 1941, and its guards on September 9, 1941, with
respect to their hire and tenure of• employment and other conditions of employ-
ment, thereby discouraging membership in the Union, and that by such acts and'
conduct, and other acts and conduct detailed above, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaran
teed in Section 7 of the Act. •
B. The alleged refusal to bargain collectively
1. The appropriate unit
The amended complaint (as amended), alleges that the appropriate unit
consists of all "guards of respondent employed in its Yard, exclusive of Ser-
geants, Lieutenants and the Captain." The respondent's answer avers "that a
unit appropriate for the purpose of collective bargaining must include all of the
employes of the Yard" and that under the terms of the closed shop agreement
with the Metal Trades Department, the guards, together with certain other
employees are, "because of the very nature of their work, excepted from organi-
zation by labor union.,' The respondent's contention (1) that the guards, by
the provisions of the closed shop contract, are barred from joining any labor
organization affiliated with the American Federation of Labor, and (2) if the
27 On or about August 22 , 1942, the United States Coast Guard "took over" the guards
then employed at the yard , -and ever since that date the guards are under the supervision
of the Coast Guard, although they are hired and paid by the respondent.
TAM1 A SHIPBUILDING COMPANY,' INCORPORATED 189
guards were associated with an organization which represents the respondent's
production and maintenance employees, whose activities they watch and guard,
their efficiency would be materially lessened, are, as found above, without merit.
Under the circumstances of this case, the undersigned finds that all the respond-
ent's guards, exclusive of Sergeants, `Lieutenants and the Captain, at all times
material herein, constituted and now constitute a unit appropriate for the pur-
poses of collective bargaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and that said unit insures to
the employees of the respondent the full benefit of their right to self-organization
and collective bargaining and otherwise effectuates the policies of the Act.
2 Representation by the Union of a majority in the appropriate unit
On September 4, 1941, as found above, 20 or 25 of the guards in the respondent's
employ met at McClung's house and there formed the, Union. The respondent's
pay roll for the week ending September 9, 1941, lists 79 guards in the unit found
to be appropriate. There were received in evidence two books which contained
the names of 30 guards in the appropriate unit 2D who joined the Union sometime
between September 4 and 9, 1941. There is in the record oral testimony by
former guards W. M. Wood and Harry Al. Church that the former saw five and
the latter saw four named guards whose names do not appear in the books id
evidence sign books similar to those in evidence. These books were not produced
at the hearing. Peeler testified that the Union had six books, including those
received in evidence, in which the guards who signified their willingness to join
the Union signed their names, and that he made a thorough search for the four
missing books; but was unable to find them. Although Church stated definitely
that the four he saw sign (lid so on September 5, Wood testified that the five he
observed, signed in September or October, and he did not specifically identify
any one of this group as having signed on or before September 9 The testimony
submitted in support of the Union's claim of majority is weak and unconvincing.
It is true that Chissom and English insisted that the Union had a majority before
September 10. However, they did not specify by name any of the guards who
signed the missing books. The undersigned finds that on September 9, the Union
represented at most 34 guards in the unit of 79 on that date, and that it was not
designated by the majority of the guards as their bargaining agent on or before
then. - Whether or not it represented a majority between September 10, 1941,
and August 22, 1942, is immaterial,' since the respondent did not employ the
guards during this period, having again become their employer on or about
August 22, 1942, at which time there is no evidence that a majority of the guards
-.,selected the Union as their bargaining representative.
The undersigned shall accordingly recommend that the complaint be dismissed
insofar as it alleges that the respondent violated Section 8 (5) of the Act.
1
C. The alleged discriminatory discharge of Kimbley D. Chissom
Chissoni was first employed by the respondent as a guard on March 10, 1941.
He was locked-out with his fellow guards on September • 10. 'On October 6, he
was employed by the respondent as a checker and remained in its employ until
January 22, 1942, on which date he was discharged. Upon obtaining employ-
ment as a checker, under the respondent's closed shop contract with the Metal
Trades Department, Chissom joined the union which covered checkers.
's Cf. Matter of Chrysler Corporation, etc, supra.
29 The names of these 30 appear on the respondent's payroll of the week ending Septem-
ber 9, 1941 ; one additional name, so far as it is legible , is not listed thereon , or is a dupli-
cate of one already included in the 30. The figure 30 is reached after excluding duplica-
tions of signatures. i
I
I
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chissom testified in substance as follows concerning the events which occurred
on, the day of his discharge: At the end of his shift on January 22, he was
notified that the Bead Checker, Oliver Surprise, wanted to see him. He imme-
diately went to Surprise's office and was handed a termination slip. He waited
for several hours until Surprise came in, and asked Surprise why he *as dis-
charged. Surprise then said, "Oh, you are an 'agitator." Immediately there-
after he went to Stafford's office. to ascertain the reason for his discharge.`
Stafford called in Surprise. Surprise, when he saw Chissom in Stafford's office,
said to him, "You are trying to create trouble now." Surprise left Stafford's
office and Chissom told Stafford that he did not want to leave "this a-way."
Chissom did not want the "discharge" against his record because he wished to
obtain a civilian job with the Army in the near future. At Stafford's suggestion,
he signed a letter resigning from the respondent's employ.
Surprise and his assistant, Arthur Lehman, both testified that Chissom was
discharged because of incompetency and neglect of duty. Lehman stated that
on several occasions he warned Chissom that-he was not performing his duties
properly. Chissom did not deny this. Lehman, as Surprise testified, informed
Surprise two or three times that Chissom neglected his work. Nor did Chissom
deny Surprise's testimony to the effect that Surprise placed him on several jobs
and on several different shifts in order to find a job which he could perform.
Surprise further, testified, and it is undenied, that not only was Chissom incom-
petent to perform the tasks assigned to him, but that instead of trying to per-
form them Chissom spent much of his time walking around the yard talking
to other employees. Surprise's version of, the conversation which took place
between Chissom and himself on the day of Chissom's discharge contains no
mention of a statement that Chissom was an "agitator." 'Furthermore, Surprise
testified that on January 22, he told Chissom that his work was unsatisfactory.
In the circumstances, the undersigned credits Surprise's testimony and finds that
he made no reference to Chissom as an "agitator." On the day of his discharge,
as Lehman's uncontradicted testimony shows, Chissom failed to fill out 50 of the
approximately 85 time cards on which he was supposed to report in detail
respecting certain operations of employees whose work he "checked." Lehman
conveyed this information to Surprise and the-latter effected Chissom's discharge.
Although Surprise knew Chissom had been active in the Union there is no
persuasive evidence to indicate that Chissom was discharged for his activities iii
the Union's behalf. In view of the foregoing, the undersigned finds that, Chissom
was discharged for incompetency and neglect of duty and not in violation of the
Act. The undersigned will accordingly recommend that the complaint with
respect to Kimbley D. Chissom be dismissed as to his discharge on -January
22; 1942.
IV. THE EFFECT OF THE UNFAIR LABOR PRAOTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
TAMPA SHIPBUILDING COMPANY, INCORPORATED 191
It has.been found that the respondent discriminated in regard to the hire and
tenure of employment of Bertram J. Kell by discharging him on September 5,
'1941. At the'time of the hearing, Kell was in the military service of the United
States and is accordingly not available for immediate reinstatement. Therefore,
the undersigned will recommend that the respondent, upon aiplication by Kell
within forty (40) days after his discharge from the armed forces of the United
States, offer him reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges. The under-
signed will further recommend that the respondent make Kell whole for any loss
of earnings he may have suffered by reason, of the respondent's discrimination
against him, by payment to him of a sum of money equal to the amount he would
normally have earned as wages during the period (1) between the date of his
discharge by the respondent and the date of his entering the armed forces of
the United States, and (2) between the date five" (5) days after Kell's timely
application-for reinstatement, and the date of the offer of reinstatement by the
'respondent, less his net earnings "0 during those periods. The fact that Kell may
become entitled to further back pay following his timely application for reinstate-
ment upon his discharge from the armed forces of the United States shall not
be regarded as affecting the respondent's obligation to pay him, immediately
whatever amount is due him from the date of his discharge by the respondent to
the date he entered the armed forces of the United States, less his net earnings
during that period."1
It has been found above that the making of the contract with the Sheriff of
Hillsborough County was an action taken in pursuance of the respondent's unfair
labor practices. It has also been found above that by entering into the said
contract the respondent locked-out the guards then in its employ in order to
discourage membership in the Union and to avoid collective bargaining. The
normal necessary action to remedy the respondent's unfair labor practices is
to require that the respondent offer immediate and full reinstatement, without
prejudice to their seniority and other rights and privileges, to all the guards
in the respondent's employ on September 9, 1941. There are no circumstances
in this case which would warrant a departure from this normal procedure. Ac-
cordingly, it will be recommended that the respondent offer to all the guards
locked-out by it on September 10, 1941, immediate and full reinstatement to their
former or substantially,equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for any loss of pay they
may have suffered by reason of the respondents discrimination against them by
payment to each of them of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge as a result of the
lock-out, to the date of the offer of reinstatement, less his, net earnings during
such period.
Should it develop, as appears likely from the record, that any of the guards
locked-out are in the armed forces of the United States at the time of the
issuance of this Intermediate Report, it will be recommended that the respondent,
3° 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
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440 . Monies received for
woik performed from Federal, State , county, municipal , or other work -relief projects shall
be considered as earnings . See Republic Steel Corporation v. N L, R 'B., 311 U: S. 7.
"Matter of American Laundry Machine Company and United Electrical, Radio and
Machine Workers of America, 45 N. L . R. B. 355. _
192 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
upon application by such employees within forty (40) days after their respective
discharges from the armed forces of the United States, offer to each, reinstate-
ment to his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges. In making whole any such individ-
ual for any loss of earnings he may have suffered by reason of the respondent's
discrimination against him, it will be recommended ,that the respondent pay
to each a sum of money equal to the amount he normally would have earned
as wages during the period (1) between the date of his discharge by the respond-
ent to the date of his entry into the armed forces and (2) between a date-five
(5) days after his timely application for reinstatement as provided above and
the date of the respondent's offer of reinstatement, less his net earnings during
those periods.
With reference to Chissom, although he was a guard at the time of the lock-out,
since he was given substantially equivalent employment by the respondent on
October 6, 1941, and subsequently was discharged for cause on January 22, 1942,
it will not be recommended that the respondent offer him reinstatement. It will,
however, be recommended that the respondent make him whole for any loss
of earnings he may have suffered by reason of the respondent's discrimination
,against him on September 10, 1941, by payment to him of a sum of money equal
to the amount he normally would have earned as wages from September 10 to
October 6, 1941, less his net earnings during that period.
Having found that the Union did not represent a majority of the respondent's
employees on or before. September 9, 1941, or on and after August 22, 1942, and,
therefore, the respondent did not refuse to bargain collectively with the Union,
and that the respondent did not discriminatorily discharge Kimberly D. Chissom
on January 22, 1942, the undersigned will recommend that the complaint in these
respects be dismissed.
Upon the basis of the above findings of fact and upon'the entire record in
the case, the undersigned makes the following :
CONCLUSIONS of LAW -
1. Guards, Officers, Patrolmen and Nightwatchmen Federal Labor Union No.
22970, affiliated with the American Federation of Labor, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By,discriminating in regard to the hire and tenure of employment of Ber-
tram J. Kell on September 5, 1941 and all the guards in the respondent's employ
on September 9, 1941, thereby discouraging membership in Guards, Officers,
Patrolmen and Nightwatchmen Federal Labor Union No. 22970, the respondent
has engaged in and in engaging in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (I)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
-commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has not discriminated with respect to the terms and 'con-
ditions or hire and tenure of employment of Kimbley D. Chissom insofar as his
discharge on January 22, 1942, is concerned _
6. All the guards employed by the respondent at its Tampa, Florida, shipyard,
'except Sergeants , Lieutenants , and the Captain , at all times material herein,
'constitute'and now constitute a•unit appropriate for the purposes of collective
bargaining, within the,meaning of Section 9 (b) of the Act.
TAMPA SHIPBUILDING COMPANY, INCORPORATED 193
7. The Union, at all times material herein, did not represent a majority in the
appropriate unit, and, therefore, the respondent has not refused to bargain
collectively with it, within the-meaning of Section 8 (5) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the -respondent, Tampa Shipbuilding Company, Incor-
porated, its officers, agents, successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Guards, Officers, Patrolmen and Nightwatch-
men Federal Labor Union No. 22970, or any other labor organization of its
employees , by laying off, lockingout, discharging, or refusing to reinstate any of
its employees, or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of their employment ;
(b) In any other manner interfering with, restraining, and coercing its employ-
ees in the exercise of their rights 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Bertram J. Kell and all the guards in the respondent's employ
on September 9, 1941, except Kimbley D. Chissom, immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority and other rights and privileges in the manner set forth in
"The remedy."
(b) Make whole, in the manner set forth in "The remedy," Bertram J. Kell,
and' all the guards, except Kimbley D. Chissom, in the respondent's employ on
September 9, 1941, for any loss of pay they may have suffered or may hereafter
suffer by reason of the respondent's discrimination against them ; also make
whole as provided in "The remedy" Kimbley D. Chissom for any loss of pay
he may have suffered by reason of the discrimination against him.
(c) Post immediately in conspicuous places throughout its shipyard, at Tampa,
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 recommended that it cease and
desist in paragraphs 1 (a) and (b) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraphs, 2 (a) and
(b) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of Guards, Officers, Patrolmen and Night-
watchmen Federal Labor Union No. 22970, and that the respondent will not
discriminate against any employee because of membership in or activity on
behalf of that organization ;
(d) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps,
the respondent has taken to comply herewith.
It is further recommended that the allegations of the complaint as to Kimbley
D. Chissom's discharge on January 22, 1942, be dismissed, as well as the allega-
tions with respect to the respondent's refusal to bargain collectively with the
Union.
It is further recommended that unless on or before ten (10) days from the
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt of thisfIntermediate Report, the respondent notifies said Regional Direc-
tor 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.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) clays 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, Wash-
ington, D. C., an original and four copies of a statement'in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days after the date of the order transferring the case
to the Board. -
Howamn MYERS,
Trial Examiner.
Dated April 15,'1943. - ,
t