Arrow Transportation Co.

I ARROW TRANSPORTATION COMPANY 117 ARROW TRANSPORTATION COMPANY AND TENNESSEE VALLEY SAND AND GRAVEL COMPANY and NATIONAL MARITIME UNION OF AMERICA, CIO. Case No. 9-CA-682. July 9,1594 Decision and Order On February 4, 1954, Trial Examiner John C. Fischer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report accompanied by a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusion, and recom- mendations contained in the Intermediate Report. [The Board dismissed the complaint.] Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed by the National Maritime Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board , herein called respectively the General Counsel and the Board , by the Regional Director of the Ninth Region , Cincinnati, Ohio, issued his complaint dated October 8, 1953, against Arrow Transportation Company and Tennessee Valley Sand and Gravel Company, herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge and the complaint, together with notice of hearing thereon , were duly served on all parties. With respect to the unfair labor practices, the complaint alleged that the Respond- ent, commencing on or about June 3, 1953, and at all times thereafter, through and by its agents and authorized representatives , including Howard G. King, L. E. Willson, Earl DeArman , William Nester, Mahlon R . Shelbourne, and Mrs. B. H. Thomas, interfered with, restrained, and coerced, and is now interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act by inter alia: (a) threatening to discharge and discharging its employees in order to discourage their engagement and participation in concerted activities; (b) threatening to discharge and discharging its employees in order to discourage membership in, sympathy for, and activity on behalf of National Maritime Union of America, CIO, hereinafter sometimes referred to as the Union; (c) refusing to teinstate its employees because of their engagement and participa- tion in concerted activities; (d) refusing to reinstate its employees because of their membership in, sympathy for, and activities in behalf of the Union; (e) threatening to arrest and imprison its employees unless they vacated the liv- ing quarters of Respondent's towboats; (f)' et'icting its employees from their living quarters upon Respondent 's towboats; 109 NLRB No. 19. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) threatening to tie up Respondent's towboats and threatening to cease engage- ment in transportation of commodities for hire as a contract and common carrier if the said employees persisted in their concerted activities; (h) threatening to tie up Respondent's towboats and not engage in transporta- tion of commodities by river for hire as a contract and common carrier if the Union became the exclusive bargaining representative of its employees; all for the purpose of discouraging engagements in concerted activities and dis- couraging membership in, sympathy for, and activity in behalf of the Union; and further, that on or about June 4, 1953, the Respondent discharged its employees: Mack Arington, Isaac Brunston, Presley D. Ford, Johnnie H Gibson, Melvin Leslie, H. L. Maynard, Edd Rickard, Ervin B. Sledge, Sam Stricklin, Samuel M. Stricklin, William D. Warren, Dudley F. Wright, Claude Moore, and Burt Woodford, because of their engagement in concerted activity and because of their membership in and activity in behalf of the Union, and at all times since June 4, 1953, has failed and refused to reinstate said employees because of such membership and activity in viola- tion of Section 8 (a) (3) and (1) of the Act. Pursuant to notice, and after the Respondent, in its answer, had timely denied the commission of the alleged unfair labor practices, a hearing was held on Novem- ber 3 and 4, 1953, at Paducah, Kentucky, before John C. Fischer, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties except the Union were represented by counsel and all participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. At the conclusion of the General Counsel's case-in-chief the Respondent's motion to dismiss the complaint was denied. The General Counsel presented oral argument in closing and the Respondent availed itself of the opportunity afforded all parties by filing a brief with the undersigned. Upon the entire record in the case and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, with its principal business office located at Sheffield, Alabama, is a common and contract carrier for hire of commodities by river, operating towboats and barges in interstate commerce on the Tennessee River and its tributaries, the Ohio River from its mouth to Louisville, Kentucky, and the Mississippi River from its confluence with the Ohio River to St. Louis, Missouri, operating under a Certificate of Public Convenience and Necessity of the Interstate Commerce Commission, such certificate being numbered W-114. During the past 12 months and at all times herein material, the Respondent, in the course and conduct of its business operations as a common contract carrier by river for hire, trans- ported commodities, including pig iron, grain, construction machinery, and con- struction material valued in excess of $1,000,000 to public utilities, to instrumen- talities of commerce, and for interchange with other common and contract carriers, and to enterprises located in the States of Alabama, Tennessee, Kentucky, Illinois, Indiana, and Missouri, which enterprises are engaged in producing products and electric energy destined for out-of-State shipment valued in excess of $100,000. It is found that the Respondent at all times material hereto was and is now engaged in interstate commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED National Maritime Union of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Salient facts This case involves the crews of 2 of 4 inland waterway tugboats, owned by Arrow Transportation Company and Tennessee Valley Sand and Gravel Company. The tugs in question were the motor vessels Arroco and Norris. These vessels plied between Cairo, Illinois, on the Mississippi River and the upper reaches of the Tennes- see River to Oak Ridge or Knoxville, Tennessee, towing cargo barges. Significantly, the 650-mile water route traversed serves the important atomic, hydro, and steam ,energy producing installations of this area of the Nation, as well as the adjacent chemical and ore reduction plants. On the evening of June 3, 1953, the Norris, en- ARROW TRANSPORTATION COMPANY 119 route =to Cairo and commanded by Captain Ed Qualls, was proceeding downstream with its tow of barges. In response to telephonic orders from William K. Nestor, the boat dispatcher at Sheffield, Alabama, Qualls dropped his tow at Owen's Island near Paducah around 7:30 p. in. and was relieved of command by Captain James Seaton, who had been advised of the changed orders by a phone call to his home. The orders to Seaton then read that the vessel would pick up certain barges there and bring them back up the river. The Norris tied onto its tow and proceeded across the river to the Standard Oil dock arriving around 9 p. in. The Arroco, under command of Captain William H. Bloodworth, operating in shuttle service, was proceeding up the river from Joppa, Illinois, enroute to Johnsonville, Tennessee, with orders to pick up another tow of barges at Paducah and deliver them at their destination. Instead, the Arroco proceeded across the river and joined the Norris at the Standard Oil dock. The captains and crews concertedly lashed the vessels together and moved them down to the Paducah "City Dock" arriving about midnight. From this point on, and at all times material to this case, these two crews no longer operated their re- spective vessels. Instead, management took over the vessels and eventually put them back in service, claiming that the shipmasters had failed to carry out their orders and that the crew members purposely rendezvoused at Paducah, tied up the vessels, and became guilty of "near mutiny." The men contend that they tied up the vessels because of engine trouble on the Norris and in order to obtain supplies and charge the Respondent with the unfair labor practices alleged in the complaint. The shoal upon which the hitherto apparently amicable employer-employee rela- tionship` grounded and eventually foundered was in form of a statement indited on May 23, 1953, to the Company and directed to the personal attention of Col. L. E. Willson, president, Howard King, vice president and secretary, Earl DeArman, ma- rine superintendent, and Bill Nestor, vessel dispatcher. This petition was signed by some 35 crew members including captains, pilots, engineers, and other ship officers of the Respondent's fleet of 4 vessels and recited: We the employees of said Company and the undersigned have agreed to ask 10 days off with pay each calendar month of the year. Beginning the 1st day of the following month June 1st 1953 and being due to each member of the crew on each Boat of said Company: As all other said Companies are giving days off with more money than we are now making. Signed by Said Employees of A. T. C. O. & T. V. S. G. Co. (follows 35 signatures). P. S. This is to be in effect by or on the 1st day of June 1953 by all signatures above. Admittedly, the company officials received this communication which was charac- terized by them as an ultimatum of the employees-impossible of performance by the Company because the effect of meeting this demand would be to raise the payroll by 50 percent. B. Testimony explaining the "days off" issue Presley Ford, the chief engineer of the Arroco, testified that following discussions among the employees which had been going on over a period of approximately 21/a months, he mailed a letter to the Company about May 20, 1953, signed by the crew members of the Arroco, the Norris, the Atco, and the John Luchow. He said, "I wrote a letter to the company and I made a copy of this letter and sent one to Mr. DeArman and Mr. Keene [King] and Mr. Nestor." Vice-President King explained that the men, by this letter, were asking for what would have amounted to more than a 50 percent increase in pay to the Company stating: When one man gets off and one gets on, we have to pay both men for that day, so that's double day's pay . . . they wanted ten days off with pay for every twenty they worked, but they wanted to get their present rate of pay and that had the effect of raising the payroll fifty percent. He explained the time-off policy of the Company as follows: Around 1950 or early in 1951, it was the policy to give all employees one day a week, or 52 days a year off with pay. We were constantly at odds with the men about how many days they had coming. The girl in the payroll department would make a mistake and not have the right number of days for the men, or the men would make a mistake and think they had no days coming and they did have, and in an effort to keep that trouble down and try to do better by the men so that we wouldn't have that difficulty of the days off, we decided to increase our rates ten percent, and we decided to do that in this way: We took the then existing rates per day or per month and in the case of monthly rates, multiplied them by 12 to get a yearly rate. In the case of a daily rate, we multiplied them by 365 to get a yearly rate. We divided these yearly [monthly] rates by .. . 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 313, which was the number of days that the men were supposed to work and that allowed them their 52 days off. Then, that gave us a new daily rate for each man which we increased ten percent. Under this plan the men were "still operating under that same situation or agree- ment of being entitled to 52 days a year off," but they were not paid for days-off duty. They could either take the time off, or if "they didn't want to take the time off to make the extra money, it was up to the men." However, in view of the postscript at the bottom of the letter which said: "This is to be in effect by or on the 1st day of June ..." the Company did not reply to the letter stating: We understood this to be in the nature of an ultimatum, not a request to bar- gain. They simply told us that "we want this by this time" period. They didn't write us and ask to talk to anybody, and no employee has ever been unable to see or talk to any company official at any time about any grievance he may have. Further: "we couldn't have effected the substance of that letter on June the 1st" With regard to the policy of other barge firms giving days off per month, and also paying the same rate "that you were" Mr. King testified: I know that some companies give days off with pay. What their rates of pay are, I cannot say, but I can say this, too, that of the companies that we compete with who operate the boats with the same horsepower as ours, our rates of pay are slightly above theirs. Captain Bloodworth, who was initially employed by the Company on October 31, 1952, testified that the company policy was the same around the first of June as it was when he was initially employed but he understood the terms and conditions of his employment at the time he was initially employed, and he did not understand the conditions to be that one would work 20 days and receive 10 days' vacation with pay. Although Presley Ford, the author of the manifesto, testified: "there wasn't no time off," Captain Bloodworth testified in this connection: Q. From your observation of the employees of the company is it your im- pression that none of the employees are given time off? - A. No, sir, I wasn't under that impression, I was under the impression that part of them did get some time off . . . Well, some of the captains received four days off each month. Mr. King was interrogated on this point: Q. But would you say that during April and May that every one of the em- ployees took time off and was away from the boat? A. Sure, they have. You heard Captain Seaton testify to the fact that he was coming back to the boat after being off. He added that the crew members were in the same category as the captains, but there was such a turnover in deck hands that they did not stay with them long enough to take time off. Fuither testimony showing the men actually had been off was that of Melvin Leslie, the pilot, who testified he rejoined the Norris on May 22 or 23 after being off a few days, and Nestors's testimony that he picked up Bob Qualls, chief engineer of the Arroco, and Mr. Hassel, a boat engineer, all of whom apparently were off at that time. It is clear that the men could and did take time off, that they had been compensated for it in advance at the rate of 52 days per year, and actually were following a reasonable river practice. C. The report to Company on alleged breakdown of the Norris Shortly after warping into the Standard Oil dock, Melvin H. Leslie, pilot of the Norris phoned Nestor in Sheffield , according to his testimony to discuss repairs on the Norris as she was broken down. However, before boarding her at Guntersville Locks, Leslie testified that he had talked with Nestor at the office in Sheffield: When I went through the office, he [Nestor] had mentioned this letter that we had written in requesting days off with pay, which most of the companies give, and he had asked me in the course of the conversation when it was brought up, whether or not eventually the boys would go on strike and it would tie the boats up, what I would do, so I told him, I said, well, of course I can't run a boat myself, but I don't intend to do a thing like that , go on a strike, and if you can recrew the boats to send them out, I will be ready to go. ARROW TRANSPORTATION COMPANY 121 Nestor testified that he told him that since he was there and broken down to get the necessary stores that he needed, if any, and to get out of there as soon as possible. Nestor testified that Captain Qualls called him from Kentucky Dam and told him that everything was running fairly smoothly. Significantly, Qualls could and did operate the alleged broken down Norris, when recrewed, 254 miles back up-the river with Nestor. Significant also, to me, is the fact that at approximately the same time that the pilot called the dispatcher, the engineer of the Norris, H. L. Maynard phoned Mrs. B. H. Thomas, the Paducah officer manager, at her home. Mrs. Thomas testified as follows: The engineer called me, Mr. Maynard, the engineer off the Norris, I believe it was, about 9:15, 1 can't remember, and he said they was having trouble on the Norris, and I said "Where are you?" and, he said, "Standard Oil," and I said, "well, I understand that you wasn't to stop at Paducah," I said, "I had orders from Mr. Nestor that you didn't need anything." Mrs. Thomas continued: He said, well, he said, "we got this little trouble and we need some groceries." And I said, well, of course, if you have to stop there and lose any time, if you think you need any groceries, get them. So, the next I heard from them was at 7:15 on the morning, I guess of the fourth. Next in sequence is the Arroco version. After the Arroco moved the Norris from the Standard Oil dock down to the City dock at the foot of Broadway, Captain Bloodworth telephoned Superintendent DeArman at his home in Sheffield, Alabama. (According to Mr. DeArman he asked Captain Bloodworth what time it was and Bloodworth told him it was 1:25 in the morning.) Bloodworth testified: I told him about the boats, about the Norris being broken down, and then I told him we had a blowed head gasket on one engine of the Arroco and then I told him while we was talking that the boys wanted to know what had been done or what was going to be done about the letter that we wrote in requesting some time off. Mr. DeArman told me that he-he hesitated for a long time, and he finally told me to just stand by until we heard from him further. Further: "I just turned around and told the boys, 'He said for us to stand by until we got further orders from him.' " Presley Ford said: Captain Bloodworth talked to Mr. DeArman after we delivered the Norris down to the city dock. After he got through with the conversation, he turned around to all the crew on both boats, and he said that Mr. DeArman told us to stand by until further orders. Captain Seaton stated: "The only orders I had from Captain Bloodworth was to stand by." William Warren testified: "I heard him say that he had made a phone call and we was to stand by until we got further orders from Alabama." He did not think Bloodworth had any conversation with him and the crew members prior to the time Mrs. Thomas came down to the City dock. Concluding, according to Captain Blood- worth "part of the boys went to bed and part of them stood watch." Superintendent DeArman testified: On the morning of June the 4th Captain Harrison Bloodworth telephoned me from Paducah and asked what we had done about the letter that the men had sent in, and I told him nothing. He said that the Norris and the Arroco had got together at Paducah and that the men had decided to tie up." Captain Bloodworth denied telling DeArman that the boats were tied up, and Melvin Leslie said he was standing right beside Captain Bloodworth when he spoke to De- Arman and denied that he said that the men had tied the boats up or that they were refusing to work. DeArman testified that he did not request Bloodworth to do anything with respect to untying the boats and completing their work, in compliance with their orders, explaining: I just didn't know what to tell him to do in that instance , so I advised him to stay where he was and asked him where he was calling from and he told me that it was at the City dock, and that he would hear further from me. I also asked him where the Norris was and he told me she was there alongside them. He also said that the Norris was having some trouble with the engine and that they were over there working on it at that time. I asked him where James Seaton was, and he told me that he was over on the Norris, and asked if I wanted to talk to him, and then I told him no. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeArman next called Mr King and told him what had happened that Captain Bloodworth had called me and that the Arroco and the Norris had got together and had decided to tie up. So, we discussed what we should do and decided that there wasn't very much, if anything, that we could do at that hour of the morning, and that we would just wait until the next morn- ing, and come to the office early, and we agreed to be there about seven o'clock, and then at that time, we would discuss it further and call Mrs. Thomas and see what we could do about it. And-"We did that." King verified this, placing DeArman's call to him around 2 o'clock. He testified: "I told Mr. DeArman, `In view of the fact that the crews had refused to work, I know of nothing we could do until morning.' " In regard to the meeting in the morning, King testified: We called Mrs. Thomas, our representative in Paducah, and asked her if she thought she could go down to the boats and talk to the fellows and get them to go ahead and finish the trips they were engaged in. . . Neither boat was sup- posed to stop in Paducah for any reason, so we asked Mrs. Thomas to see if she couldn't get the boats to come on up and complete the trips that they were in the process of completing, and she said that she thought that she could talk them into coming out. DeArman testified: So, we called Mrs. Thomas and told her what had happened and asked her to go down to the boats and see what she could do and it she could get the boats out, why that was what we wanted her to do, and if she couldn't why that we would want them put over in the West Kentucky Fleet. He further testified that neither he nor Mr. King ordered or directed her, as a representative of the Company, to terminate the employment of any of the members of the crew of the two vessels involved. King testified that both he and DeArman were on the telephone together-on separate extensions-when they called Mrs. Thomas. When asked if they told Mrs. Thomas the reason for the crew's quitting he replied: I don't know that we had a detailed discussion into the detailed reason for their quitting, we just told her that they had notified us that they had tied the boats and weren't going to work and wanted to see if she couldn't get the crews to go ahead and carry out their orders. Mrs. Thomas verified that they called her the next morning from Sheffield, saying that it was Mr. King who called, but explained: "I don't believe I ever talked to DeArman or King in the office that the other either DeArman or King wasn't on the phone-saying 'I talked to both of them.' " She testified: He said that there seemed to be some trouble on the boats at the foot of Broadway. He said to go down and see what I could do. He said, "Of course, we would like for them to deliver their tow, but if they won't, let them select six men to bring the two boats up and the Colonel and I will talk to them about their grievances. If they won't the best thing to do is to put them in the West Kentucky Fleet for safekeeping." So, they hung up and that was all that was said, and I said, "Well, I'll get ready right away and go down and see what I can do, I believe I can get the boys to work . . . Later in the testimony she quoted King as follows: ". . he said that they're having some trouble with the boats down at the foot of Broadway. . . . Refusing to work until they heard from them regarding a letter they had written." With reference to the men's request for extra days off, she testified that King "said that if they would come get the boats up there they would talk to them in Sheffield." Immediately after talking to King, Mrs. Thomas explained that she "got another thought" and called back to talk to Mr. King "it must have been not later than seven thirty, and they had gone out for coffee" so she talked to Colonel Willson, the president of the Company: I said, "Colonel, would you care if I just really talked to them like I think they should be talked to and insist that they bring their tows up and then talk to you since the tows do not need to be delivered?" And he said, "That will be fine if you can do it." ARROW TRANSPORTATION COMPANY 123 She explained: "I wanted to see if they objected to me in a way pleading with the boys." Her purpose in calling back was not to ask if she could go see them, but: I asked him if I could lust in a way on my own words show the boys they were doing wrong, and would it be all right if I put my own personal plea to them. When asked why she thought she could get these men to put these boats back in operation under their orders again, she said: Well, I think I was well liked always by most of the crews that ever worked for us, and they said time after-they said right there that morning, "Mrs. Thomas, if everyone was like you these boats wouldn't have to be tied up," and I thought maybe I could talk them to go on- Mrs. Thomas went down to the City dock on June 4 sometime around 8 o'clock a. in. (between 8 and 8.15 probably) and the crews of both boats gathered in the galley of the Norris, at her request, where she talked to them. She testified that practically the whole crew of both boats were present-probably 14. Her testimony was as follows: "I said, `Now, what is your trouble,' and they said, "Well, they never answered our letter,' they said, `we're going to tie these boats up.' " Blood- worth and Leslie denied saying or hearing anyone make these statements. D. After crews' refusal to deliver tows Mrs. Thomas then testified: I said, "Well, boys, there's two things that we can do, but there is another that I wish you would do." I said, "If you won't deliver the tows, you can select your six men to take the boats up there to Sheffield together and when you get there, Colonel will talk to you, and Mr. King, and if you don't, we will have to put these boats over in the West Kentucky Fleet for safekeeping." Now, "No," they said, "That wouldn't be fair to the other boys," they said. I said, "Well, I will let you select six that you want to represent you," and I said, "Well, now, I will tell you, boys, we're all just a jump ahead of our shirt. We all need to work." I said, "Let's deliver these tows and the first boat that goes up, 1 will call in ahead so there will be no delay and the Colonel' will see them. If the first crew doesn't get what they want, let the second crew do the same thing and then that will be time enough to cause some trouble." No, they wouldn't do that. She further testified that she requested the crew to put those boats back in operation and: . then I begged them to. I didn't make a direct demand, but I asked them if they would." When asked who said "Well, we can't do it," she replied, "Well, I wouldn't say which one, probably three or four " Q. Which, three or four? A. I would say that Mr. Press Ford said that, but I couldn't say who else said that, that wouldn't be treating the other fellows right. Elsewhere she testified: "Captain Seaton and Pres Ford and Bloodworth, says, `Well, we can't do it.' " Also she said Mr. Sledge did most of the talking-in fact more of the talking than anyone else aboard that boat. While not in agreement as to the exact time Mrs. Thomas returned, crew members Ford, Gibson, Sledge, and Warren all testified that Mrs. Thomas did return at a later time that morning and wanted six volunteers to clear the boats to Sheffield. Gibson, a new deckhand, testified that Mrs. Thomas came down to the docks "two or three different times off and on during the day" after the 8 o'clock meeting. The second time she came she was alone, and this was the time she asked for the six volunteers. Sledge testified that Mrs. Thomas came down somewhere around 10 o'clock. Both Sledge and Gibson testified that she came down another time around noon, and that she had some law enforcement officers with her and Mr. Shelbourne, the lawyer. Sledge said that was when they moved the boat over into the Fleet. Gibson said she did not ask him, but "she was wanting to clear the boats over to the fleet, West Kentucky Fleet." Warren testified that she came down about noon and had some law officers from Paducah and Mr. Shelbourne with her, and that this was the time she asked for six volunteers to move the boats to Sheffield. Neither Gibson, Warren, nor Sledge could recall that Mrs. Thomas made a request that they put the boats back into operation, at the 8 o'clock meeting. Captain Seaton did not recall that Mrs. Thomas on June 4, either on her first trip or on a subsequent trip, requested that the boats be put back out in the river and start operating again. He did not remember any officials of the city or of the 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD county appearing during the afternoon, but he did testify that Mrs. Thomas came down again and "she might have talked to some of the boys, but I didn't hear it." Ford merely stated that she came back later on that morning and asked for six volunteers to clear the boats up the river, the purpose of this being "that Colonel Wilson would like to have the'boats back to Sheffield." Examined by Counsel Shelbourne, Presley Ford testified: Q. Now, Mr. Ford, you mean to tell me that she came down there and said that Colonel Wilson said to tie the boats up and then turned around and asked you to get the boats out in the river traffic? A. That's right. Q. You say that's what she did? A. When she first came down there she said that Colonel Wilson said that he would not give the days, that he would tie the boats up and have them taken to Sheffield. Q. Now, how soon after that was it that . . . she tried to get you to get the boats out in the river? A. Well, I don't remember just exactly. Q. Well, was it at the same time, or was it at a different time during the day? A. No, I don't think it was on the same day, no, sir, not that I can recall in my memory. Q. Now, that statement about what Colonel Wilson said, was made by her on her visit to the boat that morning? A. That's my best recollection. Q. How many additional visits did she make to the boat that day? A. Well, I just don't recall, but I do know that she was down there around about eleven thirty because we was eating dinner, she came down and asked for volunteers. Q. Now, do you recall whether or not she made her request about getting the boats out in the river on her first trip or her trip there at dinner time, or at some other trip she made? A. I just don't recall. E. The crew's version The crew's version of what Mrs. Thomas said at the 8 o'clock meeting was in sub- stance as follows: "Colonel Wilson told me [Mrs. Thomas] to tie up these boats. He said that he would leave them tied up for six months before he would give days off." Melvin Leslie testified that Mrs. Thomas said, "Now, boys, I hate to tell you, but I have just been talking to Colonel Wilson . . . and he says to pay you all off and he will tie the boats up before he will grant any days off with pay. He will tie them up for six months and hire all his towing." Captain Bloodworth, Ford, Sledge, Cap- tain Seaton, Gibson, and Warren had similar versions. Ford, Sledge, Gibson, and Warren testified that was all that was said. Sledge testified: " . . after that, there was nothing much. Mrs. Thomas left at that time." Warren didn't recall that she made any other statement, or "hearing anybody asking anything. That's about all I heard. I was getting ready to get off." Leslie testified that he got his clothes and left the boat. Having heard the testimonies and observed the witnesses, I credit Mrs. Thomas' version. F. Refusal to move boats without pay Mrs. Thomas continued her story of the 8 o'clock meeting as follows: After testify- ing that the boys said they would not deliver the tows to their destination she said: Well, if you won't there's nothing else that we can do but store these boats. I don't say that you boys will harm these boats, but the beggars in the city will and they will have to go over into West Kentucky for safekeeping. According to Mrs. Thomas their reply to this was: "Well, you won't move these boats until we have been paid off." She then testified: I said, "Well, you know you've got a pay day due Saturday," their time went in every other Saturday and every other Sunday was payday, and I said, "You know it takes time to work up these payrolls," and I said, "I certainly know they will have the payroll practically made up for the regular pay day." "No, we want pay today, and our travel expenses to go home and a day's pay for those out of town." I said, "You know boys when you quit you don't get pay, and you certainly don't get paid for traveling if you quit." But, I said, "I will, if you give me the time." ARROW TRANSPORTATION COMPANY 125 Pilot Leslie denied that he had said or heard anyone else say that they would not move the boats until they were paid, or that they asked for their pay from Mrs. Thomas. Captain Bloodworth denied that he made the statement or heard anyone else make it-namely that the men said they would not move the boats until they were paid and that they want their pay immediately. He testified that neither he nor any of the crew members asked Mrs. Thomas for their pay. Captain Seaton, crew members Warren, Gibson, Sledge, Ford, and Leslie testified that they did not, nor did they hear any other crew members, ask for pay or refuse to work. In this conflict, I credit Mrs. Thomas. G. The Company arranges to pay o$ Secretary King testified that they were told by Mrs. Thomas that "in addition to the refusal to work, the men had demanded that they be paid off," stating: "We told her to find out how many days the men had coming so we would know what sort of checks to send them." Nestor testified that Mrs. Thomas phoned on the morning of June 4 and King and DeArman were out and she "said that the men had demanded their pay and she gave me the men's names which included the number of days that were due them in pay," and she gave him the names of the two complete crews of the boats. Nestor gave this information to King. DeArman knew of the conversation between Mrs. Thomas and the office in which she gave the time due the crew. Ac- cording to Mrs. Thomas' testimony, she procured the information about the time coming to the men which did not show on the payroll, from Presley Ford on the Arroco and Captain Seaton on the Norris, and she called `Sheffield' and gave them the time. According to her testimony, `Sheffield' said: "Well now, you meet us at Lackey's at four o'clock and we will call the payroll off to you and you arrange with Mr. Lackey to have the cash and make the payment." Mrs. Thomas then went back to the boat-"it was some time before noon"-and told the crew collectively to be at Lackey's grocery at 4 o'clock that afternoon and she would pay them explaining: Well, they went off in a huddle, Presley Ford and Bloodworth and Seaton, and they came back and said that that would be all right. . But they didn't want the boats moved from the foot of Broadway, they said, and I said, "That's got to be done." H. State police officials enter the picture Mrs. Thomas then called Mr. Shelbourne, the company attorney, and he came down with the sheriff and two deputies as she "believed that we might have a little trouble." Examined by counsel she testified: Q. Now what trouble were you referring to? A. Well, when you get a bunch of men mad , sometimes you may have a riot. Q. Now, I want to know why and what was the basis for your taking the police with you? A. I thought that they probably would object to me untying that boat and breaking it loose to leave, and that is what I went down there for and that is what I meant to do. She had called to have the Smiley, a little harbor tug, owned by Walker Boat Yard, come over and Mr. Walker said according to Mrs. Thomas "one of the boys had called and told them not to come after it." Mr. Walker, further quoted by Mrs. Thomas, said: "I told them as long as I was in the harbor business and you called for a boat to move, I'd have to move it." 1 Attitude of Crew When the Smiley arrived Mrs. Thomas testified that the boys said : "... you don't need to have the Smiley tow it over, we'll take it over." Her reply was, "Well we have the boat here, so we will let them tow it over." Captain Bloodworth testi- fied that he offered to take the boats over himself. He went up in the boat and tried to start the engine on the Arroco, but the cams were up on it, and the engine would not take then, and he ran the air down and could not start it. At this point, it was my opinion that the crew realized that they had carried the matter too far-actually a point beyond return. Mrs. Thomas testified that the boys then said that they had 1 This example of "hearsay evidence" from sincere witnesses like this one is typical of these cases, and although not uniformly excluded, may never be the basis upon which a report is founded. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no place to stay and she told them they were welcome to go over to the Fleet with the boats and stay: I said, "Of course you will have to walk back from Walker's Boat Yard," I said, "but come on and go." When I said that about half the crew jumped off. I said, "Are you going to untie this boat for me, with respect to old age, or am I going to have to untie it?" And, Sledge jumped on and said, "I'll untie it, Mrs. Thomas," which he did. On cross-examination she answered: Q. Isn't it a fact that Mr. Sledge agreed to untie the boat? A. After it was over, yes. I don't know if he would have agreed to have done it if he hadn't seen the sheriff or not. Further testimony, perhaps irrelevant, but typical of untutored witnesses, regard- ing the attitude of the crew may be found in the following. Mrs. Thomas reported a heart-to-heart talk with Sledge and another boy when they were moving the boats over to the Fleet. She asked Sledge what he had done before shipping aboard a river tug and he said he had been a plumber. She said: "Well, why are you working on this boat at the salary the plumbers get?" His reply was: "I like the river . . . I like this boat and we'll have higher wages, we'll see to that." With regard to the 8 o'clock meeting in the morning of June 4, Mrs. Thomas quoted Leslie as saying: "Now Mrs. Thomas, I don't want you to think that I am causing this trouble . . . if you can get anybody else to go out I will go out." Ex- amined by General Counsel Naimark: Q. So that Leslie didn't quit, then, did he? A. Oh, yes, he had to go out with the boys, but he said he would go back if any of them would go back. Q. What did he mean by that, Mrs. Thomas' A. I'll take the boat out. He said, "If you can get enough to go with me." And then I called a Mr.-the cook's wife, what was her name-Woodford- Captain Woodford and he was coming down to take the boat out and he came to me later and he said, "Mrs. Thomas," he said, "I can't do it because the men have threatened me." This answer was not only evidentiarily responsive, but also, it was illuminative. See Leslie's earlier testimony in this report. After the Smiley moved the boats over to Walker's Fleet she asked Captain Wright, who had not been with the Company long, to look after the boats. She told him "Let the cooks go ahead and cook and feed the crew." She asked the boys to stay out of the pilot house and the engine room, and asked the "Smiley to take us on down to Broadway" and she went back to Lackey's store. 1. Company's pay plans changed According to Mrs. Thomas' testimony she then went to see if she could get an off duty policeman to watch the boats during the night, but being unsuccessful, she went back to Lackey's store where she called Mr. King in Sheffield about the pay plans. She testified he told her: "Well, we have decided that that will mess up our payroll, we better pay by check. We will have the checks in there by midnight." With regard to this change in plans Mr. King testified: We first thought that we would arrange for Lackey's Grocery to pay them off in cash, then we decided that that probably wouldn't be very wise because we got a lot of unemployment compensation deductions and one thing and another to make in the man's pay, and it might foul up our payroll . so we told Mrs. Thomas we would make the checks in our office and send them into Paducah. (The checks were flown in by airplane.) When told that the checks would not be there until midnight she asked the boys if that was all right and told them to set a place for her to meet them. They said: "We will have to go out and talk to our advisor." The boys agreed that they would be over on the boat, and she told them she would be there when the checks came in, and she.did go back to the boats over at the Fleet at midnight to take the checks. Warren, Sledge, and Bloodworth all indicated that they went to Lackey's at 4 o'clock to get their checks and did not get them, and Mrs. Thomas told them to stay on the boat until paid. J. The crew is paid Dispatcher Nestor came in with the checks and she met him at Walker's Boat Yard just before midnight, and Mrs. Thomas got the small boat to take her across the ARROW TRANSPORTATION COMPANY 127 river. She testified that several out-of-town crewmen said: "Well, I'm not going to leave here until I get travel expense and a day's pay to go home." Her reply was: "well, now, this is all the checks I have, boys, why not accept these. If we owe you anything, you will be able to collect it." Most of them took the checks but several of the boys were not there. Captain Bloodworth testified that Mrs. Thomas brought the checks over around midnight, and told the boys that it would be all right to stay on the boat until morn. ing, that she would be over the next morning and lock things up and straighten things up. She asked if anybody would help her, and 2 or 3 said they would. Sledge stated that when they got their checks at midnight, Mrs. Thomas told the men to stay on the boat. Mrs. Thomas testified that she gave them permission to stay on the boat, She,told them she would be back in the morning to get the groceries off, the fresh stuff, because she was too tired to do it that night. Since their time was up at mid- night, she expressed the hope that they would help her with the groceries and they said "we will." K. The Company's custom in paying its men Secretary King testified that in making out the checks for the men, the information came partly from the timesheets and partly from Mrs. Thomas. He admitted this was unusual. He said Sunday was the normal payday. "but you see it is our under. standing that whenever a seaman quits and demands his pay, we've got to pay him. Federal statutes read that way. Mr. Davidson told me later in my office that that is not true with other men, but that is the law." He said this was the first time they had ever had two boat crews quit at one time. King also testified that they, the head office, had not received any word directly from the crew members that they wouldn't work any longer, stating: "We got the information from Mrs. Thomas and through Captain Bloodworth." Having hitherto credited Mrs. Thomas' testimony because I deemed her to be the sincerest and most objective witness of the whole array who appeared before me in this trial-she being no longer in the employ of the Company after 20 years' service, and with a son in the riverboat service, and bearing the friendship and respect of the rivermen-I attribute this statement to her. Superintendent DeArman with regard to the practices of the Company testified: Q. What has been the practice of the company with respect to the payment of wages due employees who voluntarily quit or cease their employment? A. We pay them off whenever they want their money. Accordingly, in light of the accepted testimony and of the sequence of facts as shown by the acts and conduct of all the principals, the conclusion is inevitable that these men.voluntarily quit their employment, and I so find and hold. L. Threatening to arrest and imprison employees The allegation that the Company threatened to arrest and imprison its employees unless they vacated the living quarters of Respondent's towboats, and evicting its employees from their living quarters upon Respondent's towboats derives from the same set of circumstances. These circumstances involve the instances when State and county police officers accompanied Respondent's officials on visits to the tugboats. When Mrs Thomas returned to the City dock-at noon on June 4 after her morning meeting with the intention of moving the boats across the river to the West Kentucky Fleet, she had arranged to have County Sheriff Bannistor and two of his deputies on the dock. Obviously, she had convinced the sheriff that she was entitled protection, whether she needed it or not-and he was duty bound to go. She and the crew were at an impasse with reference to moving the boats, and she was determined to carry out her instructions and make the boats secure at the mooring area. To this end, she had engaged the tug Smiley. Her testimony in this connection was as follows: Q. When you arrived at the boat, at any time did you have the police with you? A. Soon atter twelve o'clock why the sheriff and the deputies came down there when I was getting to move the boats. Q. Did they come with you? A. No, they did not. Q. Did you ask them to come? A. I called Mr. Slielbourne and told him that I was afraid that we was going to have some trouble. Q. Now, what trouble were you referring to? A. Well, when you get a bunch of men mad, sometimes you may have a riot. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel Naimark argued, in testing credibility, that since she had testified that the men had quit, she needed no such protection, and the Trial Examiner sustained him in this right to ply his questions over the objection of Counsel Shelbourne, contending that the questions were argumentative. The rule is that counsel may test credibility up to but short of the point of harassment of a witness. Further: Q. You said you were well liked by the boys, didn't you? A. I certainly was. Q. And you testified, I believe, that the men had quit. A. That's right. Q. Now, I want to know why and what was the basis for your taking the police with you? A. I thought that they probably would object to me untying that boat and and breaking it loose to leave, and that is what I went down there for and that is what I meant to do. To me, this seems to be a very satisfactory answer and a good reason for her actions in calling for police protection in carrying out her duty. The captains and the crews had quit, and she was in command. In any event she was speaking for and representing the owners. It is a well-established principle of maritime law that a captain, although in command of his vessel and all lives aboard, when under- way, is still subject to the orders and will of the owners. Here the vessels were tied to the dock. Whether principles of Admiralty Law are applicable to this type of river barging is not for decision in this case, although Respondent's counsel, in his brief, characterizes the action of the officers and crews as being "near mutiny." However, I hold this to be an ordinary labor dispute under the Act. I construe their actions as simply tying up the vessels and quitting because their manifesto was not favorably acted upon, and because they were unwilling to take their vessels back upstream to the Company's port at Sheffield, Alabama. The other instance of alleged police interference occurred when Nestor went down to pick up the tugboats and return them to Sheffield. This occurred in the early morning hours of June 5 between 2 and 3 o'clock in the morning, although there is testimony that it may have been as early as 1 a. m. It is admitted that Mrs. Thomas gave the men permission to remain on the boats and use their quarters after paying them off, but when Nestor came down he was accompanied by a couple of State troopers. It is also admitted that neither on this occasion nor the previous one did these peace officers say or do anything-they merely were present. Certainly there was no threat of arrest or imprisonment. Nestor declared his intention to put the boats under power, and with new, but short-handed crews, return them to their home port. At that time he gave the men 20 minutes to collect their gear and dunnage and to leave the vessels. The men's time was up at midnight of June 4, therefore he was within his rights in revoking the permission given by Mrs. Thomas in order to get under way and accomplish his own mission. Nestor merely carried out orders. Nestor's recital of his visit to the boats, in part, reads: Q. Did you then visit the boats? A. Yes, sir, I did. I called for police protection. I love life too well to share it with the river bottom, and I had twelve years in the Navy, and I thought I might need a little protection . . . I had the services of two Kentucky State Policemen and I had the services of the Smiley boat guard, and I went to the Fleet and got on the boat. I was met by members of both the Norris and the Arroco and asked that they leave as I had orders from the office to take both boats to Sheffield. Q. How did the members of the crew that were aboard at that time leave? A. They left, some of them left on the Smiley and there was a few that remained and then got off the boat as requested and sat up on the barges that was in the fleet. Q. What happened to the police officers? A. The police officers left with them on the boat- Q. Did you see the police officers there in your presence attempt to make any arrests or threaten to arrest or embarrass any members of the crew? A. Definitely not. I think the crew approached them and talked to them rather than the officer approaching anyone else. Q. Did you individually or by direction evict any of your employees from their living quarters on the boats? A. Not employees, sir, the men as I take it had quit, they had received their checks, and I asked them to leave the premises of our company's property. ARROW TRANSPORTATION COMPANY 129 Thus, falls the charge of evicting the employees from their living quarters upon Respondent's towboats. I find no unfair labor practice in this action. M. The "shortwave" radio evidence Early in the trial the question of the reception and admissibility of radio conversa- tions was presented. All of the tugboats of the Company were equipped to send and receive "ship to shore" and "ship to ship " radio messages. This equipment, apparently, was similar to standard shortwave instruments used on police and military vehicles, perhaps with an average communicating radius of 30 miles. It was used, on a frequency band assigned by the Federal Communications Commission, to alert the lock tenders at the dams and to converse with sister ships and shore sta- tions. Certainly the messages were interstate , being transmitted from a vessel engaged in interstate commerce and capable of reception on shore of the various States bordering the rivers traversed . Therefore sections 153 et al. of the Fexjeral Com- munications Act were applicable to use of this equipment. First in the trial , the question of admissibility of such evidence was raised when Captain Bloodworth testified that while he "was in the vicinity of Brookport Bridge and someone on the Norris talked to me on the radio and they were broke down. Counsel Shelbourne objected on the grounds that it was hearsay . Captain Bloodworth could not identify who spoke from the Norris, nor did he state the time. The question again arose when Mrs. Thomas started her testimony by fixing the time of the Arroco and Norris coming into Paducah on the night of June 3. She testified: This was some time before I went to bed , which I think was around 9:00 o'clock. I had my radio on, short wave radio on listening for my son on his boat, to get his position and then after the river report was given and the boys reported, which our boys report at that time, I heard them talking. One of the boats, I couldn't tell you who it was said , "Have you heard from ... this letter . . . that we sent to Sheffield . . . Counsel Naimark objected to the identity of "they" and "who" were talking, and further contended that a proper foundation had not been laid for introduction of this type of evidence as necessary in a telephone conversation . Counsel Shelbourne, in qualifying her, cited her official position, her experience of several years, the custom and practice of these boats to intercommunicate , that she heard the Arroco contact the Norris or vice versa, that the formula of the Federal Communications Com- mission in their regulations of these boats , and that authorized ships personnel only were allowed to use the vessel's transmitter. This issue being a matter of first impression with this Trial Examiner, and incidentally the only one of its particular kind to be judicially resolved, I admitted the evidence and withheld my definitive ruling until writing this report. I hold the evidence admissible under the Rules of Federal Procedure and cite as sustaining authority Rule 90 , Art. 5 et seq. of Wig- more's Code of Evidence 2nd Ed.' Considerable evidence appears in the record , mostly testimony by Leslie, as to whether or not the radio on the Norris was out of commission or was inoperable, be- tween 7 and 9 o'clock p. in., at the time Mrs. Thomas stated she heard the Arroco and Norris communicating with each other . The only purpose this fact would serve, if believed, which I do not, would be to discredit Mrs. Thomas , or would be to show that there was a cabal which agreed to a rendezvous at Paducah. That is not ma- terial to my decision . The facts are that the crews did meet, decided upon, and embarked upon an unjustified course of conduct in tying the vessels up and refusing to move them, and quit their employment when their scheme failed. 2 Wigmore's Code of Evidence 2nd Ed. Testimonial Evidence in rule 90, art. 5. Personal observation required ; Exceptions provides that a witness is not qualified whose means of knowledge was substantially not the personal observation of his own senses, but the hearsay assertions of others , except as follows: Par . ( g) a person who, having listened on the telephone, the dictograph , or the radio -receiver , testifies ( 1) to the identity of the speaker though not recognizing the voice, ( 2) or to the tenor of the utterances though transmitted by a third person. ( Sec. 622 ) Rule 191, sec. 2095 provides for the authentication of a radio message under art. 4. Radio-Broadcast Message as follows : When an utterance on a radio-receiving instrumgnt purports to have been made by a particular person at a par- ticular broadcasting station, it is sufficiently authenticated by testimony , that the receiv- ing instrument was adjusted to the wave length of the particular station Par. ( a) further provides that the sender's identity may be evidenced ( 1) by the speaker naming of the station, and his name or his principals , and (2 ) by testimony to its wave length as stated in any publication commonly used. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. Company knowledge of the Union The final matter to be considered in this case involves the company knowledge of the Union and its concern. Mr. T. M. Davidson, port adjutant, National Mari- time Union of America, CIO, was called as a witness for the General Counsel. Mr. Davidson testified that on June 4 he had a telephone conversation with Mr. King and after introducing himself he advised King that he had been asked by this group of people to represent them in their labor negotiations but did not recall any other particulars of that conversation. The evidence indicates that this conversation oc- curred between 10 and 12 o'clock that morning. Also he visited and talked at some length with Mrs. Thomas. Without detailing the evidence, which in the main is not contradicted, I find that the Company had knowledge of the Union's interest in the case, but this knowledge was "after the fact," in other words, after the crews had made their decision and quit their employment. There is no showing of the Com- pany refusing to reinstate its employees because of their membership in, sympathy for, and activities in behalf of the Union, nor of its threatening to tie up Respond- ent's towboats and not engage in transportation of commodities by river for hire as a contract and common carrier if the Union became the exclusive bargaining repre- sentative of its employees for the purpose of discouraging engagements in con- certed activities and discouraging membership in, sympathy for, and activity in be- half of the Union. Neither did Respondent discharge the employees listed in the complaint because of their engagement in and concerted activity and because of their membership in and activity in behalf of the Union, nor refuse to reinstate said employees because of such membership and activity in violation of the Act. In conclusion, I subscribe to Counsel Naimark's point: General Counsel is aware of the fact that this case here presents a clear question of credibility. The Examiner has a difficult problem in determining whether or not the General Counsel's witnesses are telling the truth or whether Respond- ent's witnesses are telling the truth. The resolution of this overall question, though difficult to winnow the chaff from the wheat, to separate the truth from the untruth, is simple to state-the truth is with the Respondent's witnesses. Accordingly, I will recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Arrow Transportation Company and Tennessee Valley Sand and Gravel Com- pany is and, at all times relevant herein, was engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 2. Respondent has not engaged in and is not engaging in any unfair labor prac- tices within the meaning of the Act. 3. National Maritime Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. [Recommendations omitted from publication.] SOLAR AIRCRAFT COMPANY and LOCAL No. 52, UNITED TOOL AND DIE MAKERS OF AMERICA, AFFILIATED WITI-I THE NATIONAL INDEPENDENT UNION COUNCIL. Case No. 18-CA-507. July 9, 1954 Decision and Order On February 15, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth i the copy of the Intermediate Report attached hereto. Thereafter, the Union filed exceptions to the Inter- 109 NLRB No. 22.