Bludworth Construction Co., Inc.

BLUDWORTH CONSTRUCTION COMPANY, INC. 385 As the Petitioner received a majority of the valid votes cast in the election, we shall certify it as representative of the employees in the appropriate unit. [The Board certified International Chemical Workers Union, AFL-CIO, as the designated collective -bargaining representative of the employees in the appropriate unit which includes all production and maintenance employees at the Employer's Jacksonville, Florida,, Wilson & Toomer Fertilizer plant, excluding all production and maintenance employees of Florida Agricultural Supply Company, office clerical employees, technical and professional employees, all management employees , guards, and supervisors as defined in the Act.] Bludworth Construction Company, Inc. and Seafarers' Inter- national Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO. Case No. 39-CA-682. March 26, 1959 DECISION AND ORDER On June 16, 1958, Trial Examiner Reeves R. Hilton 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 attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that these allegations of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Intermediate Report and a sup- porting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings, except as noted hereinafter, are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,, only to the extent consistent with our decision herein. 1. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by, inter alia, (a) interrogating Collier concerning- his union activities, and (b) urging him to quit if he were dis-- 123 NLRB No. 40. 50&889-80-vol . 123-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD satisfied with his job. These findings were based solely on Collier's testimony at the hearing, which the Trial Examiner credited. At the hearing, the Respondent attempted to subpena Collier's prehearing affidavits, given to Board investigators, which the Re- spondent wished to use for purposes of cross-examining him. How- ever, the Trial Examiner granted the General Counsel's motion to quash the subpoena daces tecum presented by the Respondent to the General Counsel, requiring the production of prehearing affidavits or other statements by Collier concerning the matters testified to by the latter. The Trial Examiner's ruling was correct under the Board's then-existing rules and regulations. Subsequent to the hear- ing, however, the Board, in Ra-Rich Manufacturing Corporation,' determined that it would permit parties, upon proper demand, to secure prehearing statements made by witnesses, who have already testified in the same proceedings. Accordingly, as the Respondent has excepted, in effect, to the Trial Examiner's above findings based on Collier's testimony, and has also excepted to the quashing of its subpena, it is clear that, under the Board's new practice, Collier's testimony may. not be used as a basis for finding any violation of the Act by the Respondent, without first giving it an opportunity to se- cure Collier's affidavits for the,purpose of cross-examination.2 However, we shall not remand this proceeding and order the record reopened for such purpose. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act in other respects, based upon the testimony of witnesses other than Collier, and except as discussed hereinafter, the Respondent has not excepted to such findings. Accordingly, as the remedy herein is sufficient, in any event, to effectuate the policies of the Act,3 we shall not adopt any of the Trial Examiner's findings that the Respondent violated the Act, which are based solely on Collier's testimony. 2. One of the allegations of the complaint was that the Respondent violated Section 8(a) (1) of the Act in the following manner: On or about August 18, 1957, Richard Bludworth [the Respond- ent's president] ... stated substantially to the relief captain in the presence of a Respondent employee, "Don't let any union men come aboard this boat." At the hearing, this allegation of the complaint was read to Rich- ard Bludworth by the General Counsel and the latter asked Blud- worth if he had so stated. Bludworth denied making this statement, 1121 NLRB 700. 2 See Sec. 102.95 of the Board's Rules and Regulations , Series 7, as amended. 3In the absence of exceptions thereto, we adopt the Trial Examiner's recommended broad cease and desist order. BLUDWORTH CONSTRUCTION COMPANY, INC. 387 but did admit ordering that all unauthorized personnel be kept off the boats, including anyone who was attempting to organize the -Company.4 There was no further credible testimony or discussion about this "no-solicitation" rule at the hearing. In his Intermediate Report, the Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act "by issuing and maintaining instructions to captains prohibiting unauthorized per- sons to board its tugs, to the extent that these instructions included representatives of the Union." (Emphasis supplied.) The Respondent excepts to this finding. It seems clear that the Trial Examiner found, in effect, that the Respondent's promulgation of a "no-solicitation" rule, barring union representatives from its tugs, was per se violative of the Act. We reject this conclusion. The United States Supreme Court was held that "an employer may val- idly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution"; and the Court has indicated that this principle is also applicable to nonemployee solicitation which does not involve the distribution of literature.5 In the case at bar, the record is devoid of any evidence that such no- solicitation rule diminished the Union's ability to communicate with the Respondent's employees. Moreover, the rule did not discriminate against the Union by allowing other solicitation. Accordingly, in order to conclude that the rule was violative of the Act, it would be necessary to find that the Respondent was dis- criminatorily motivated in establishing the rule, wishing to hinder the employees' concerted activities. Although there is evidence show- ing that the Respondent was opposed to the unionization of its em- ployees, there is nothing in the record to indicate why the rule was established. Indeed, for all that is shown, the rule may have been in existence prior to the time the organizing activities began herein. In these circumstances, we find that the General Counsel has not established by a preponderance of the evidence that the Respondent was discriminatorily motivated in establishing the rule here in issue.,, In view of the foregoing, we find, contrary to the Trial Examiner, that the Respondent has not violated Section 8 (a) (1) of the Act in 4 The parties stipulated that "as part of the instructions to keep unauthorized personnel off the tugboat, Joe-Ed, union organizers were included in those instructions." 8 N.L.R.B. v. The Babcock d Wilcox Company, 351 U.S. 105 ; N.L.R.B. v. United Steel- workers of America, CIO ( Nutone, Inc.) ; and N.L.R .B. v. Avondale Mills, 357 U.S. 357. 0 We note, in addition, that the General Counsel did not allege such a violation. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARI establishing the rule, forbidding unauthorized personnel from coming aboard the tugboats. ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the• National Labor Relations Board hereby orders that the Respondent,, Bludworth Construction Company, Inc., its officers, agents, suc- cessors and assigns, shall: 1. Cease and desist from : (a) Threatening to shut down its operations in the event of union- ization; or granting wage increases for the purpose of discouraging concerted activities. (b) In any other manner interfering with, restraining, or coercing- its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Seafarers' International' Union of North America, Atlantic and Gulf District, Harbor and_ Inland Waterways Division, AFL-CIO, or 'any other labor organiza- tion, 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, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor- organization as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds; will effectuate the policies of the Act : (a) Post on its tugs copies of the notice attached hereto marked "Appendix." 7 Copies of said notice, to be furnished by the Regional' Director for the Sixteenth Region, shall, after being duly signed' by the Respondent's representative, be posted immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days there- after in conspicuous places on the tugs, including all places where- notices to its employees are customarily posted. Reasonable steps-. shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region in. writing, within 10 days from the date of this Order, what steps the- Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the allegations of the complaint, insofar- as they allege unfair labor practices not found herein, be, and they hereby are, dismissed. "In the event that this Order is enforced by a decree of a United States Court of- Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." BLUDWORTH CONSTRUCTION COMPANY, INC. 389 MEMBERS RODGERS and BEAN, concurring : We agree with our colleagues' conclusion that the Respondent did not violate the Act by promulgating the "no-solicitation" rule which the Board is here reviewing. We believe, however, that our colleagues have strayed from the correct path in reaching that con- ,elusion. This case is controlled by 1V.L.R.B. v. Babcock cC Wilcox Company .351 U.S. 105. In that case the Supreme Court ruled squarely that if no other "distribution" is allowed, the exclusion of nonemployee organizers from company property is to be tested against the availa- bility of other channels of communication with the employees. To the extent that our colleagues have applied the Babcock d Wilcox rule in this case, we are in accord with what they have done. We disagree with them, however, to the extent that they have superim- posed upon the Babcock & Wilcox rule an additional test of "dis- criminatory motivation." The Supreme Court's decision in Babcock di Wilcox is not, in our opinion, susceptible to this treatment. Our colleagues therefore are in error. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT threaten to shut down our operations in the event of unionization or grant wage increases for the purpose of discouraging concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join or assist Seafarers' International Union of North America, Atlantic and Gulf District, Harbor and Inland Waterways Division, AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining members in good standing in Seafarers' Inter- national Union of North America, Atlantic and Gulf District, 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harbor and Inland Waterways Division, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act. BLUDWORTII CONSTRUCTION COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges, as amended, filed by the Seafarers International Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL- CIO, herein called the Union, the General Counsel of the National Labor Rela- tions Board, through the Regional Director for the Sixteenth Region (Fort Worth, Texas), •isssued a complaint dated March 19, 1958, against Bludworth Construc- tion Company, Inc., herein called the Respondent or the Company, alleging that it had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. The Respondent in its answer admits certain allega- tions of the complaint but denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Exam- iner at Houston , Texas, on May 6 and 7, 1958. The parties were represented by counsel and were afforded full opportunity to be heard, to introduce relevant evidence, to present argument and to file briefs.' Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT On the basis of the pleadings and stipulation of counsel I find that the Respond- ent, a Texas corporation , maintains its principal office and place of business at Houston, Texas, where it is engaged in the operation of a tugboat towing service.. During the 12-month period prior to the issuance of the complaint the Respondent supplied services valued in excess of $200,000, of which more than $ 100,000, was furnished to Warren Petroleum Company and a like amount to Ada Oil Company. The services rendered to Warren and Ada consisted principally of towing services from points within the State of Texas to places outside thereof. The shipments of oil products by Warren and Ada to places outside the State of Texas amount to more than $50,000, respectively . I find that the Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary findings Richard and Robert Bludworth were, and are, president and vice president of the Company, respectively, and during the period May to September 1957, the 1 At the conclusion of the testimony , on May 7, I kept the record open in order to give counsel opportunity to decide what proceedings , if any, they might wish to initiate in regard to company counsel 's motion to require the General Counsel to produce certain affidavits, which I denied , and his subpoena duces tecum served upon the General Counsel calling for the production of those documents . Thereafter, by order dated May 16, I granted the General Counsel 's motion to quash the subpoena duces tecum and on May 26, I issued an order closing the hearing, with the right to file briefs on or before June 10. The General Counsel submitted a brief which has been considered. BLUDWORTH CONSTRUCTION COMPANY, INC. 391 Company operated three tugs, the Joe-Ed being the only involved in these pro- ceedings. In this period the Joe-Ed operated between Houston and Pensacola or St. Marks, Florida, the round trip from Houston to Pensacola averaging about 12 days, while the round trip to St. Marks averaged about 9 days. During this time E. F. O'Dell was captain of the Joe-Ed and the crew consisted of the captain, relief captain, mate, two deckhands, and one cook. However, each member of the crew was off every third trip, so actually there were only five men in the crew, the captain, relief captain or mate, plus the deckhands and cook, for whom re- placements were obtained. Richard Bludworth testified, on the basis of company records, that Edward Leo Collier was first employed on May 17, as a cook on the Joe-Ed, and after making six trips was discharged on September 1. The complaint alleges that Collier was discharged because he joined or assisted the Union or engaged in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection. The Company denies Collier was discharged for such reasons and affirma- tively asserts he was terminated for failure to maintain the galley in a clean and sanitary condition and allowed the tug to become infested with roaches. Richard Bludworth admitted that in the latter part of July or early August someone told him union organizers had been on the tug and were attempting to organize the employees. B. Organizational efforts; acts of interference, restraint, and coercion Collier, who had long experience as a cook in the United States Navy and on tugboats, stated that as a result of a telephone call to Richard Bludworth he was hired as a cook on the Joe-Ed and his duties consisted of the purchase, storage and preparation of food, planning of menus, and keeping the galley clean. Col- lier was unable to remember the precise period of his employment, so I find, on the basis of Richard Bludworth's testimony, that he was employed from May 17 to September 1, 1957. Collier testified that about 5 weeks prior to his dismissal, or sometime in July, he was coming aboard the tug when Robert Bludworth hollered from the wheel- house, "Has a union man talked to you?", and he answered, "No." He further testified that about 6 weeks after he had been employed Bill Ladwig, a union organizer, came on the tug and talked to the three crew members about the Union. Ladwig remarked that another barge line had worked a man for a week, paid him $30, and laid him off. Ladwig inquired as to the pay scale and when they informed him it was $10 per day, he stated the union scale was $16.40 per day. Collier then signed a union card, the other two men having already signed up. Billy Hutto, relief captain, was on the tug at the time, but not present during the conversation. Some 2 weeks after his conversation with Robert Bludworth, Collier said that Richard Bludworth called him to the wheelhouse and told him the starting rate would be $11 per day instead of $10, plus the quarterly bonus which the Com- pany had been paying. He also stated that if the Union took over the work would be harder since the tug pulled only one barge and the Company might be forced out of business. The discussion ended with Richard Bludworth stating that any man dissatisfied with his job should move on. About 2 weeks later Richard and Robert Bludworth were in the galley when Richard asked Collier, "what did the union man have to say?" and he replied it "was merely routine." On the same day, when Collier and Richard Bludworth were bringing groceries to the tug, Richard Bludworth mentioned that another company, while building tugs, learned that they were going to be organized and went out of business before the tugs were put into operation. Richard Bludworth concluded by saying that the Company might have to do the same thing. Collier tesified that some 2 or 3 weeks prior to his discharge he was on the tug at Houston when he heard Robert Bludworth tell Relief Captain Jim Groggins "not to let any union men aboard this boat." During his last trip, August 19 to September 1, Collier talked to Groggins about the Union on one or two occasions and expressed the opinion that "it was best for everyone." Although Collier believed Groggins was a little opposed to unions, Groggins requested Collier to give his name and address to Bob Matthews, a representative of the Union. Oscar M. Dunlap was employed as a deckhand for 4 or 5 months and was terminated September 2. Dunlap, who worked on all three tugs, stated that about August 9, Ladwig talked to the crew, apparently the deckhands and cook, and pointed out that the union scale was $6 or $7 higher than the company wage rate, so "we" signed in the Union. Admittedly, neither the Bludworths nor the captain or relief captain of the Joe-Ed ever mentioned the Union to Dunlap, 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although Dunlap did overhear the Bludworths tell the relief captain, around August 22 , at Pensacola, not to allow any union officials aboard the tug. Hutto was employed as relief captain on the Joe-Ed from December '1956 to about August 15, 1957 , when he quit ; he returned the latter part of October 1957 and again quit about March 15, 1958. Hutto knew Collier for a long time and admitted he could have told him to ask the Company for a job. Hutto had several conversations with the Bludworths in which they stated the Company was not making enough money off one tow to afford a union , that it would break them and before they would become unionized they would sell the tugs and go out of business . Collier was present when Richard Bludworth made a statement to the above effect . Robert Bludworth also informed Hutto on different oc- casions that a deckhand was worth only $10 a day and he could not see any reason to increase the rate . The day before Hutto quit in August , the Bludworths asked if he knew of anyone attempting to organize the employees , or if the men were talking about the Union . Hutto told them he had heard "small talk" about the Union but he did not know of anyone trying to organize the men. Richard Bludworth said he was very much concerned and worried about or- ganizational activity because a similar company , Myland Marine Construction Company of Galveston , had to shut down as a result of unionization , a slow- down, and lack of capital . He admitted making statements to this effect on sev- eral occasions, obviously to the employees , and pointed out that if the time came when the Company could not operate efficiently and profitably it would be forced to tie up the tugs. Richard Bludworth said he may have made statements of this character to Collier while they were purchasing groceries. Richard Bludworth stated he and his brother had discussed pay raises for sev- eral months and in September increased the starting rate to $12 per day and $15 per day after 60 days of employment . Richard admitted he and his brother discussed pay raises with the men , including Collier, in order to find . out what was acceptable to them and to keep them satisfied. Richard Bludworth testified he issued instruction to captains and relief captains to keep all unauthorized persons off the tugs and these instructions included "any- one who was attempting to organize the Company." Neither of the Bludworths denied Collier's testimony concerning their inquiries as to whether a union organizer had talked to him and what he said to Collier. O'Dell testified he first heard of the Union when Ladwig introduced himself as a union representative and stated he was trying to organize the Company . Ladwig further stated that if O'Dell would help him sign up the crew he would see that O'Dell "was fixed up," even though he could not vote in an election. O'Dell could not remember the day or month the conversation took place , nor did he 'state what, if any, reply he gave to Ladwig . He reported the conversation to one ,or both of the Bludworths . Sometime later O'Dell heard Ladwig had talked to the crew on the Joe-Ed, but he was not aboard at the time . O'Dell said that after his meeting with Ladwig the crew discussed organization and he, too, dis- -cussed the subject with some of the men. O'Dell did not know whether Collier was a member of or active on behalf of the Union and Collier never mentioned that he was in favor of the Union . O'Dell believed Collier remarked the Union was not interested in his welfare but only in the payment of dues. Following Ladwig's visit to the tug the Bludworths instructed O'Dell not to let anyone aboard unless on company business and counsel stipulated union organizers were included in the instructions. Collier denied making any remark to the effect that all the Union wanted was his monthly dues. By interrogating Collier regarding his union activities or membership , by urging him to quit if he was dissatisfied with his job, by threatening to shut down in the event of unionization, by granting wage increases and by issuing and maintaining instructions to captains prohibiting unauthorized persons to board its tugs, to the extent that these instructions included representatives of the Union , the Company thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act , in violation of Section 8(a)(1) thereof. The Discharge of Collier Richard Bludworth, on the basis of company records, stated that Collier left Houston , under O'Dell, on August 10, for Pensacola and returned August 19. On the latter date he made another trip , under Groggins , and returned to Houston September 1. Collier said after his arrival in Houston on September 1, Richard Bludworth told him that was his last trip and asked if he wanted his check mailed to him. BLUDWORTH CONSTRUCTION COMPANY, INC. 393 Collier inquired why he was being discharged and Bludworth told him somebody complained about roaches on the tug. He stated he had bought and used roach kills and spent enough money to hire an exterminator to eliminate the roaches. Collier added he did not believe that was the reason and remarked his discharge appeared similar to the firing of the cook on another company tug, as told to him, for not having frozen apples on board. Bludworth said he had not heard that one and concluded the conversation by stating he would keep Collier's phone number and he might call him back. Collier admitted the entire tug was overrun with roaches and at one time he had them under control but when he returned after his trip off, apparently 30 days before his dismissal, they were as thick as ever. Collier conceded that about 3 weeks prior to his discharge O'Dell complained about roaches on one or two occasions, as well as the cleanliness of the stove, and that he used sprays and pills in an effort to correct this condition. He further stated that on one occasion O'Dell complained that the deckhands would not help get rid of the roaches. Collier said he did everything he could to get rid of the roaches but they were uncontrollable. On cross-examination Collier testified that while his duties in- cluded the storage of food and sanitation of the galley he did not consider ridding the galley of roaches as part of his job. Neither of the Bludworths complained about the above conditions until the time of his discharge. O'Dell, captain of the Joe-Ed for about 11/2 years, stated that Hutto gave Col- lier's name and phone number to Richard Bludworth and mentioned that he was a good cook. Collier was hired to fill the first vacancy and was on the Joe-Ed for about 3 months. The Bludworths did all the hiring and firing of men although O'Dell made recommendations in respect to discharging individuals, which were usually followed. O'Dell said it was his practice to give a man several warnings and an opportunity "to right himself" before recommending his dismissal. O'Dell testified that while Collier was a good cook he neglected to keep the galley clean, which was one of his duties, in that he did not mop the deck, clean the stove, or get rid of or control roaches. In fact one time O'Dell found a roach in a jelly jar. O'Dell, in line with his custom, warned Collier on three or four occasions that while he wanted him on the tug, he could not stay unless he kept the galley clean. He specifically complained about roaches and told Collier if he used the spray two or three times a day they would be eliminated or con- trolled in a short time. After each warning the galley would be cleaner but Collier never satisfactorily controlled the roaches. These warnings were given to Collier both before and after O'Dell learned of organizational activity as a result of his meeting with Ladwig. In addition to these warnings, O'Dell asked Hutto, who was a friend of Collier, to speak to him in an effort to straighten him out and Hutto promised to do so. O'Dell denied that Collier ever had the roaches under control or that he told Collier the deckhands were not helping to get rid of them. O'Dell asserted that the crew sprayed their quarters daily and coop- erated with him in this respect. . In the latter part of August, O'Dell advised Richard Bludworth of the foregoing situation concerning Collier and requested that he be replaced, and he was. Col- lier's replacement improved conditions after 4 or 5 days and later effectively controlled roaches on the tug. O'Dell did not know that Collier was a member of the Union or that he was active in its behalf. Richard Bludworth testified to the same effect as O'Dell in regard to company hiring and firing procedures. Bludworth stated that in early August, O'Dell indi- cated he was not satisfied with Collier and, again, around the same time, O'Dell suggested that Collier be dismissed and Shook, who had made a trip as relief cook, be hired in his place. Bludworth remarked that Shook was not too clean and O'Dell said he was cleaner than Collier, but in any event Collier was not discharged because of the Company's practice to allow him time to straighten out. These complaints were based on Collier's failure to keep the galley clean and to control roaches. Later, around August 19, while the Joe-Ed was on a trip, O'Dell again complained on the same grounds and Bludworth decided to discharge Collier. Prior thereto Bludworth had inspected the tug and when he found it full of roaches he told Collier to purchase sprays, powders, or anything else necessary to control the roaches. When the Joe-Ed returned on September 1, Bludworth talked to Collier, in the galley, and informed him he was discharged. Collier asked the reason for his dismissal and Bludworth stated the galley was full of roaches, that it was his job to get rid of them, and he had not done so. Collier said he purchased quantities of exterminating materials and Bludworth stated all he was interested in was results and Collier had failed in this respect. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bludworth replaced Collier with Ralph Sanders and instructed Sanders to get the roaches under control. The tug then made a 10-day trip and upon its return .Bludworth found conditions very much improved. When the tug returned on the following trip Bludworth made an inspection and found the roach condition completely controlled. Bludworth did not know Collier was a member of the Union or active in its behalf. Hutto testified that sometime after he came back to the Company, in October, 1957, he made a trip to Baltimore, during which the Bludworths were on board from Apalachicola, Florida, to Houston. On this trip Hutto asked Robert Bludworth, what had happened to Collier. Robert Bludworth said Collier was no longer with the Company and inquired if Hutto had known Collier was a union organizer while employed by the Company, and he answered he had no such knowledge. Hutto could not recall any mention of the Union having filed a charge against the Company and while he heard Collier had filed a charge, he could not remem- ber whether this information came to him before or after the Baltimore trip. Robert Bludworth admitted Hutto accurately related his remarks concerning Collier and stated they were made during a conversation in which Hutto, by reason of his absence from the Company, inquired about various employees, in- cluding Collier. Bludworth said his remarks were prompted by the fact that he had no knowledge of Collier being a member of or active in union affairs until he and representatives of the Union appeared at a hearing scheduled by the Board on a representation petition filed by the Union.2 Hutto also stated that around March 10, 1958, he was on a trip with O'Dell and during a discussion on the benefits of organization, O'Dell commented that the Bludworths made a mistake by firing Collier, that if they had let him make the discharge, they would not be having all the present trouble. O'Dell was not questioned in regard to this conversation. Unquestionably, the Company, as found herein, was opposed to organization, but there is no evidence even remotely suggesting that the Bludworths or O'Dell knew that Collier was a member of the Union or active in its behalf at anytime prior to his discharge. The only testimony on this point comes from Collier who related an innocuous conversation regarding the Union with Groggins on his last trip, at a time when O'Dell had already recommended his discharge. Of course, knowledge by the employer of a dischargee's union membership or activity is a prerequisite to a finding of discriminatory discharge. (Howard Aero, Inc., 119 NLRB 1531.) Nor can it be said that knowledge of Collier's membership or activity can be inferred to the Company for the record discloses that Collier did nothing more than attend one meeting and sign a union card. Again, there is no evidence of mass discrimination against the employees nor the discharge of entire crews on any of the Company's tugs. (Cf. Waterman Steamship Com- pany, supra) I, therefore, find that the Company had no knowledge, actual or inferred, that Collier was a union member or active in organization, consequently, by discharging him the Company did not commit any unfair labor practice. More- over, assuming the Company had knowledge of Collier's membership in the Unioh, the result would be the same for the evidence conclusively shows that Collier neglected to keep the galley clean and to control roaches and that he was properly discharged for that reason, not for his union membership or activities. I reject Collier's weak and unconvincing explanation that he did not consider himself responsible for pests in the galley, or that he used reasonable means to control roaches or that at anytime he had them under control. I attach no significance to the post discharge conversations which Hutto had with the Blud- worths and O'Dell. I find the Company by discharging Collier did not engage in any violation of Section 8(a)(3) or (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section II, 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 ob- structing commerce and the free flow thereof. 2 The Board records show that -the petition, 39-RC-1197, was filed by the Union on August 19, 1957, and scheduled for hearing on September 6. The hearing was continued to September 17, and then postponed indefinitely. The original charge in this case was filed on September 16. HONOLULU STAR-BULLETIN, LTD. 395 V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, Z shall recommend that it cease and desist therefrom and take certain affirmative .action designed to effectuate the policies of the Act. Having found that the Respondent has engaged in interrogation of employees concerning the Union, I shall recommend that it cease and desist therefrom. Having found that the Respondent promulgated and enforced instructions deny- :ing union representatives * access to crews on its tugs in derogation of the rights guaranteed to its employees under Section 7 of the Act, I shall recommend that the Respondent rescind immediately its instructions to that extent.3 Although the evidence here concerns events occurring in respect to the tug Joe-Ed, Richard Bludworth admitted the foregoing instructions were applicable to all its tugs. Thus, to limit rescission of the instructions to the Joe-Ed and permit them to stand as to Respondent's other tugs would render remedial relief meaningless and futile. Consequently, I conclude that the only manner in which the Respond- ent's unlawful instructions can be remedied effectively is to require the Respondent to post appropriate notices on all its tugs. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) 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(a)(1) ,of. the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent by discharging Edward Leo Collier has not engaged in any unfair labor practice in violation of Section 8(a)(3) or (1) of the Act. [Recommendations omitted from publication.] a N.L.R.B. v. Waterman Steamship Company, 309 U.S. 206, 224-229; Cities Service Oil Company, 25 NLRB 36, 47-58, enfd. as modified, 122 F. 2d 149 ( C.A. 2) ; Richfield Oil 'Corporation, 49 NLRB 593, 598-604, enfd . as modified 143 F. 2d 860 ( C.A. 9). See also, N.L.R.B. v. National Organization of Masters, Mates & Pilots of America, Inc., AFL-CIO, 253 F. 2d 66, 70 (C.A. 7). Honolulu Star-Bulletin, Ltd. and Kenneth Tamanaha and Hono- lulu Typographical Union No. 37, International Typographical Union, AFL-CIO, Party to the Contract Honolulu Star-Bulletin, Ltd.* and Anthony van Kralingen, Jr., and Honolulu Typographical Union No. 37, International Typo- graphical Union, AFL-CIO, Party to the Contract. Cases Nos. ,37-CA-108 and 37-CA-109. March 26, 1959 DECISION AND ORDER On August 23, 1957, Trial Examiner Martin S. Bennett 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 attached hereto. Thereafter exceptions to the 123 NLRB No. 51.