Duval Engineering & Contracting Co.

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tary source. To the contrary, he would try to insure no loss of income to Garner as he had done in the past. There is not a scintilla of evidence that Johnson's local (Local 7) did anything at the time of Garner's discharge, or any other time, to indicate its displeasure be- cause he (Johnson) was working with a nonunion helper. Yet at the time of Garner's discharge Johnson was obviously concerned about disciplinary action by Local 7 for this reason. The only reasonable source of this concern was Foglia. As noted above, Foglia had earlier caused such concern and the situation giving rise to Foglia's earlier action had not changed at the time of Garner's discharge, ex- cept that the period of time during which Garner failed to make payments to the Union increased. From the entire record in this matter the Trial Examiner is convinced that Foglia, by words and conduct, indicated to Johnson that Respondent Union was miffed or irritated by Garner's failure to make regular payments toward his initiation fee and dues, and that unless he (Johnson) got rid of Garner he (Johnson) would be sub- jected to disciplinary action by his (Johnson's) local (Local 7) for working with a nonunion helper and that this conduct by Foglia caused Johnson to discharge Garner. The aforementioned conduct occurring in connection with the operation of the business involved herein has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and is conduct violative of Section 8(b)(1)(A) and (2) and Section 2(6) and (7 of the Act. [Recommendations omitted from publication.] Duval Engineering & Contracting Company and Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division ). Cases Nos. 12-CA1343 and 13-CA1409.1 August 10, 1961 DECISION AND ORDER On November 14,1960, Trial Examiner Thomas S. Wilson 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of the complaint with respect thereto. Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the On April 12, 1960, the Regional Director issued an order consolidating these cases. 132 NLRB No. 65. DUVAL ENGINEERING & CONTRACTING COMPANY 853 case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions and modifications, noted below. 1. We agree with the Trial Examiner that the Respondent inter- fered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act by engaging in interrogation, threats of eco- nomic reprisal, and surveillance of union activities. 2. We agree with the Trial Examiner that the Respondent discrimi- natorily discharged eight employees on September 10, 1959. Contrary to our dissenting colleague, who would find that these employees were discriminated against on or about October 14, 1959, at which time the Respondent failed to recall them for work, we are in agreement with the Trial Examiner that the Respondent's conduct subsequent to Sep- tember 10 clearly manifests that its purported layoff of the eight em- ployees on that date was tantamount to a discharge. For the reasons stated by the Trial Examiner, we find, contrary to our colleague, that the Respondent did depart from past practice in selecting these em- ployees on September 10 for an ostensible layoff. 3. We agree with the Trial Examiner that the Respondent's dis- charge of Congaree employees on February 27, 1960, the day after the Union won an election as their bargaining representative, was a retali- atory measure which violated Section 8(a) (3) and (1) of the Act, but we do not agree that J. A. Booth's termination on this occasion constituted a violation of the Act. For, at the time of his discharge, Booth was a tugboat captain and, as found in Case No. 12-RC-768, which involved the same parties,' tugboat captains are supervisors within the meaning of the Act' 4. We agree with.the Trial Examiner's finding of a Section 8 (a) (3) violation in the case of J. D. Piver. For some time prior to December 30, 1959, Piver had been substituting as a mate, a supervisory position, in the absence of M. Larrimore, who had been injured. On December 30, 1959, Larrimore, then employed as an oiler, was returned to his duties as mate, replacing Piver. Piver, who had formerly performed various jobs, including that of oiler, asked Captain Balasus for an oiler's job vacated by Larrimore or for another vacant position on the dump gang. Balasus refused, stating, "Well, I don't know, . . . well, it's just too much union." Balasus hired another employee for the oiler job and Piver's employment with the Respondent ended. During the early stages of the Union's organizational campaign, Balasus had told employee Don Watson that he knew Piver was for the Union, that Piver "was hot for it," and that "A good many of them that was for the Union . . . was going to get laid off." In these circumstances, and upon the entire record, we find that Piver was discriminatorily denied 2 Not published in NLRB volumes. s Leonard Niederriter Company, Ina., 130'NLRB'113. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further employment on December 30, 1959, in violation of Section 8(a) (3) and (1) of the Act. 5. As one in the group of employees discriminated against on February 27,1960, the Trial Examiner recommended that W. H. Free- man be awarded backpay from that date until the date of an offer of reinstatement by the Respondent. However, at the time of the dis- crimination against him, Freeman was unable to work because of an arm fracture. He did not become physically able to resume work until April 18, 1960. Accordingly, we find that the backpay period in Free- man's case begins as of April 18, 1960. 6. As Florida has a right-to-work law, we shall delete from the Trial Examiner's recommended order herein the proviso "except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act." ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board hereby orders that the Respondent , Duval Engineering & Contracting Company, Jacksonville, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Seafarers International Union of North America, Atlantic and Gulf Districts , AFL-CIO ( Harbor In- land Workers Division ), or any other labor organization , by discharg- ing any of its employees , or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating its employees concerning their union membership or sympathies. (c) Requesting any of its employees to act as informers with respect to union meetings , union membership , or other concerted activities of its employees. (d) Threatening its employees with loss of employment or other economic reprisals if they join or assist the Seafarers International Union of North America, Atlantic and Gulf Districts , AFL-CIO (Harbor Inland Workers Division). (e) 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 the Seafarers International Union of North America , Atlantic and Gulf Districts, AFL-CIO ( Harbor Inland Workers Division ), or any other labor organization, to bargain collectively through representatives of their own ' 'choosing, and to DUVAL ENGINEERING & CONTRACTING COMPANY 855 engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the employees listed in Appendix A attached hereto immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay each may have suffered by reason of the discrimination against them, in the manner set forth in the Intermediate Report as modified by this Decision and Order. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order.. (c) Post throughout its plant and in the marine division, including the dredge Congaree, copies of the notice attached hereto marked "Appendix B." 4 Copies of said notice, to be furnished by the Re- gional Director for the Twelfth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employees. are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS ITRTHER ORDERED that the complaint be, and it hereby is, dis- missed; insofar as it alleges that the Respondent discriminated against Allen W. Guest, David W. Lyle, Mikell L. McCarthy, David A. Wat- son, Frank L. Wingate, Clyde R. Snow, James B. Smith, Woodrow Sheely, and J. A. Booth in violation of the Act. MEMBER LEEDOM, concurring and dissenting : I am in agreement with the decision herein except as it adopts the Trial Examiner's finding that the selection of 8 of 15 laid-off em- ployees on September 10, 1959, was a violation of Section 8(a) (3) and (1) of the Act. Instead, I would find that Respondent failed to recall the eight employees because of their union adherence on or about October 14, 1959, in violation of the foregoing sections of the `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." 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, and would accordingly modify his findings, conclusions, and recommendations. The pertinent facts are that the Respondent was engaged in dredg- ing at the Mayport, Florida, Naval Base, when the Union commenced its attempts to organize employees on the dredge. Respondent re- acted to this by asking employees to engage in surveillance of the Union, by interrogation of employees and by threats of economic reprisal for union activity, which the majority has found, and I agree, constituted violations of Section 8(a) (1) of the Act. Upon orders of the Navy, on or about September 9, Respondent's dredge discon- tinued work there and as a result, as found by the Trial Examiner, the dredge was compelled to return to the Jacksonville base of Re- spondent for layup. As in the past, this layup caused a mass layoff on September 10, and the record fails to establish that there was any departure from past practice in the method of selecting employees for this layoff. On or about October 14, 1959, Respondent hired new employees to replace the laid-off employees in order to begin resump- tion of dredging operations, instead of following its past practice of recalling laid-off employees. The eight employees applied for recall just prior to October 14 and were informed no work was available. Although he credited testimony that Supervisor Balasus bragged to employees, subsequent to the layoff, that he had laid off employees to eliminate union members, the Trial Examiner nevertheless found that the layoff was compelled by economic reasons. This finding is supported by the record and has been adopted by my colleagues. The Trial Examiner and my colleagues further find that of 13 union ad- herents alleged in the complaint to have been discriminated against on September 10,5 8 were in fact discriminated against and 5 were not. The only relevant differences between these two groups are (1) the eight were known to be union adherents, whereas the five were not so known, and (2) the Respondent subsequently refused to rehire the eight for reasons which were a pretext to cloak its discriminatory motivation, whereas the five never applied for reemployment. Since the failure of the latter group to apply for reemployment is fortuitous, the difference in treatment between the two groups with respect to reemployment cannot support a finding as to different motivation with respect to the layoff. Thus the only real difference between the two groups, and the sole factor on which my colleagues necessarily rely, is Respondent's knowledge as to union adherence. Knowledge of union adherence is of course relevant, as is animus of which there is substantial evidence in this record. These two fac- tors would be enough to establish unlawful discrimination in the absence of a credible explanation of the fact of layoff. But there is 5 The other two laid o8 on this date were apparently not union adherents and their layoff was not alleged as a violation of the Act. DUVAL ENGINEERING & CONTRACTING COMPANY 857 such a credible explanation here-economic necessity. Thus when the issue as here is alleged discriminatory selection in connection with an economic layoff, the alleged discrimination cannot in my view be said to have been proven unless it is also shown that the basis for selection is in itself discriminatory. This can be shown, for example, by evi- dence of departure from past practice, of a disproportionate selection of union adherents, or of pretextious reasons for selection. There is no such evidence here. Accordingly, I would find that the General Counsel has failed to establish by a preponderance of the credible evidence that the selections for layoff were discriminatory, and would therefore dismiss such allegations of the complaint. I would, however, find that Respondent, on or about October 14, 1959, failed to recall the eight employees in question for discrimina- tory reasons, in violation of Section 8(a) (3) and (1) of the Act. I base this conclusion on Respondent's knowledge of their union adherence, its hostility toward the Union as disclosed by the 8(a) (1) conduct and admissions by Balasus and other supervisors that it was out to get the Union, its employment of replacements for them with- out following its practice of recalling employees laid off when the dredge was ready to resume operations, and its refusal to reemploy them upon application for pretextious reasons. As it has not been established that the five other employees were available for work and that Respondent had knowledge of their union activities, I find that its failure to recall them, in accordance with past practice, has not been proved to be for reasons proscribed by the Act. Accordingly, I agree with the Order entered by my colleagues, except that I would award the eight employees here in issue backpay from October 14, 1959, rather than from September 10. APPENDIX A Ernest M. McGee James W. Pittman Henry J. Pulka William W. Shirley Gerald E. Williams John Alvin Williams David George Wingate R. J. Andrews, Jr. Etna Beck Jimmy Beck J. R. Newsome David R. Rich Tenley Sweat R. E. Taylor Donald E. Watson Henry T. Watson Pope C. Branson, Jr. Edward J. Brown Jakie L. Cooner H. A. Floyd William H. Freeman Lawrence E. Holmes H. M. Martin Benny G. Mercer E. C. Mobley David A. Nelson W. C. Watson Bevis V. White Freddie A. Wilder H. H. Williams J. D. Piver Leo A. Wingate 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B 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, as amended, we hereby notify you that : WE WILL NOT discourage membership in Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division), or any other labor organiza- tion of our employees, by discharging any employee, or otherwise discriminating in regard to the hire and tenure or term or con- dition of employment of any of our employees. WE WILL NOT coercively interrogate our employees concerning their union membership or sympathies; request our employees to act as informers with respect to union meetings, union member- ship, or other concerted activities of our employees; or threaten our employees with loss of employment or other economic re- prisals, if they join or assist Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division). 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 labor organizations, to join or assist Sea- farers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division), or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer each of the employees named below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniorities or other rights and privileges, and will make each of them whole for any loss of wages he may have suffered by reason of our discrimination against him : Ernest M. McGee James W. Pittman Henry J. Pulka William W. Shirley Gerald E. Williams John Alvin Williams David George Wingate Leo A. Wingate Etna Beck Jimmy Beck J. R. Newsome David R. Rich Pope C. Branson, Jr. Edward J. Brown Jackie L. Cooner H. A. Floyd William H. Freeman Lawrence E. Holmes H. M. Martin Benny G. Mercer E. C. Mobley David A. Nelson W. C. Watson Bevis V. White DUVAL ENGINEERING & CONTRACTING COMPANY 859 Tenley Sweat Freddie A. Wilder R. E. Taylor H. H. Williams Donald E. Watson J. D. Piver Henry T. Watson R. J. Andrews, Jr. All our employees are free to become, or refrain from becoming, members of the above-named Union, or any other labor organization of their own choosing. DUVAL ENGINEERING & CONTRACTING COMPANY, 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 duly filed on January 25, 1960, and thereafter amended, by Sea- farers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division), hereinafter called the Union, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel i and the Board, respectively, by the Regional Director for the Twelfth Region (Tampa, Florida), issued his complaint dated March 11, 1960, against Duval Engineering & Contracting Company, herein called the Respondent. The complaint as amended at the hearing alleged 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 Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charges, the complaint, and the notice of hearing thereon were duly served upon the Charging Party and the Respondent. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at Jacksonville, Florida, from April 25 to and including April 28, 1960, before the duly designated Trial Examiner. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both. General Counsel made a short closing statement but oral ar- gument was waived by Respondent. Briefs were received from the Respondent and the General Counsel on June 1, 1960. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT At all times material herein Duval Engineering & Contracting Company has main- tained its principal office and place of business at 1746 East Adams Street, in the city of Jacksonville, State of Florida, herein called the Shell plant, and various other plants and places of business, and other facilities, in the State of Florida; and is, and has been at all times material herein continuously, engaged at said plant, place of business, and facilities in the business of providing and performing dredging and other services and the sale of shell products; in performing engineering work for various U.S. Government installations, such as the U.S. naval base in Jacksonville, 1 This term specifically includes the attorneys appearing for the General Counsel at the bearing 860 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD Florida, and in Brunswick, Georgia; and in constructing roads in the States of Florida and Georgia. During the past year Respondent, in the course and conduct of its business oper- ations, performed services valued in excess of $1,000,000, of which services valued in excess of $50,000, were performed in a State other than the State of Florida wherein Respondent is located., Respondent admits, and the Trial Examiner finds, that Respondent is engaged in commerce. II. THE UNION INVOLVED Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO (Harbor Inland Workers Division ), is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The facts As part of its total operations the Respondent had a marine division. under Superintendent Chadwick who was ill and unable to testify at the hearing. This marine division consisted of three parts: (1) Respondent's marine repair yard in Jacksonville; (2) a small shell dredge; and (3) the dredge Congaree together with its various tugs, small boats, barges, etc. Employment in the division in 1959 totaled some 65 employees of whom some 40-odd were employed in the operations of Congaree and its subsidiary craft under Chief Balasus. On August 13, 1959, Congaree moved from a 5-month highway job in Jackson- ville to the Mayport Naval Base near Jacksonville to start dredging there under a subcontract with Harder Construction Company, the general contractor on the naval base job. It was understood that Congaree was to complete its work under this subcontract in one continuous operation. With three exceptions the crew on the Congaree at Mayport was the same crew which had been working on the highway job. Soon after the arrival at Mayport union organizers approached the crew with the idea of their becoming unionized. Among those so approached on the streets of Mayport was Henry Pulka who had been employed continuously aboard Congaree as a welder for 5 continuous years without layoff even during those periods of time when the Congaree was in layup status. Two union organizational meetings were held at Dunns Creek Fish Camp located about 15 miles from Mayport. At the first of these meetings 25 or 30 employees from all sections of the marine division were present, while at the second approximately the same sized audience was almost exclusively composed of employees from the Congaree. Henry Pulka signed a union authorization at the first of these meetings. Among other Congaree employees who signed such cards were Ernest McGee, William A. Shirley, Gerald E. Williams, John A. Williams, and the Wingates, David, Frank, and Leo. On the Monday following the first union organizational meeting which had been held on Sunday, Chief Balasus asked Etna Beck, a deckhand who had been aboard the Congaree since 1952, "Beck, did you go to the union meeting yesterday?" When Beck admitted that he had been in attendance, Balasus inquired, "Well, who was there?" Beck refused to divulge the names. Then Balasus asked, "Did you sign a card?" Beck's answer was "Nobody didn't see me sign a card." Whereupon Balasus added, "Well, [you] better leave that Union alone, . if we go ahead and pull that Union on the job, . . we'll all be out of a job." Thus it did not take very long after the first meeting at Dunns Creek before Respondent's supervisory staff aboard Congaree had indicated its interest in and disapproval of the organizational effort. One evening between the two Dunn's Creek meetings Pulka happened to drive L. B. Hill, then chief engineer aboard Congaree and an admitted supervisor, into Jacksonville with him. Hill first inquired of Pulka what he thought of the Union. After Pulka answered that he thought it was a "pretty good deal," Hill told Pulka of a conversation which he had had with Balasus in which Balasus had said that he was going to lay off any employees who had anything to do with the Union or whom Balasus thought had had anything to do with the Union .2 S Hill, whose employment with the Respondent ceased on or about December 5 under circumstances not related in this record, did not testify at the hearing although he was not shown to have been unavailable. Like practically every other conversation found herein, Chief Balasus denied having had any such conversation with Hill as testified to by Pulka. However, the Hill account of the Balasus conversation, regardless of its truth or falsity, constituted interference, restraint , and coercion because it tended to discourage DUVAL ENGINEERING & CONTRACTING COMPANY 861 - A few days thereafter, Balasus called Pulka to his office on the dredge and per- sonally inquired as to what Pulka knew about the Union and the persons who "caused" the Union . On this first occasion , Pulka denied having any such informa- tion or knowledge . However, a short time thereafter Balasus again had Pulka in his office and repeated the same inquiries . This time Pulka admitted having such knowledge but refused to give any information on the ground that he would "just be getting a lot of guys in trouble ." Balasus complained that he was getting the same answer from all the employees.3 During this period , Balasus made it a practice , as he had done with both Pulka and Beck, to call employees individually to his office on the dredge and ask them whether they had attended the Dunns Creek meeting, who was present , what they knew about the Union , if they had signed cards, and who was responsible for the Union : Among the employees so interogated by Balasus were Henry T. Watson, John A . Williams, James B. Smith , William Freeman , Leo Wingate, David Wingate, Julius Booth, and Ernest McGee. In addition to the interrogation , Balasus urged many of these employees to keep their ears open about union matters and to re- port back to him what they had learned about the Union and the employees in- terested therein. Although most of the employees tended to deny having any information on these subjects, Balasus was able to secure the names of some of the employees who were interested in the Union or who had signed cards. These names included most of those mentioned in the paragraph above. For instance when McGee admitted be had attended the Dunns Creek meetings, Balasus informed McGee that he already knew who had attended those meetings . After Balasus requested John A. Williams, a man who had been employed aboard Congaree since 1955, to ferret out and report information about the Union and the members of the Union , he finally asked Wil- liams pointblank if he had signed a union card , adding, "If you will tell me , I won't fire or lay you off. I just want to be sure." When, at one of such meetings, David Wingate denied having any knowledge of the Union, Balasus told him that it made no difference, that "I'll get them one at a time even if it takes 5 years." A few days before Congaree left Mayport the first time on or about September 9, 1959, Balasus was even more exp'icit in a talk with employee Watson when he told him that "A good many of them that was for the Union . . . was going to get laid off." Foreman Dilly Lewis, an admitted supervisor , also engaged in similar interroga- tions as to the employees' union membership and sympathies during this first May- port trip. During such a conversation with employee McGee , Lewis remarked that the Respondent was paying $1,000 for information as to which employees were for the Union and "was going to fire them all" and, in addition , that the Respondent knew who had attended the union meetings and was "going to get the right ones and run them off, fire everyone that was having anything to do with the Union." In another such conversation Lewis told David Wingate "you guys don't know what you are getting into. As soon as the dredge gets to the yard every one of you is going to be fired." When James B. Smith denied to Lewis that he had ever signed a union card, Lewis said, "We'll know by Monday morning . . . we'll have all the names of the people that signed union cards by Monday morning. The ones that signed them cards is going to hit the hill [be discharged]." On or about September 9, 1959 ,4 Congaree departed from Mayport with its work under the subcontract only partially completed and returned to the Respond- ent's yard in Jacksonville . Contrary to the General Counsel's original contention, the facts show that work had to be abandoned at this time by Congaree at Mayport on orders of the Navy Department because further dredging by Congaree would have interfered with other operations proceeding at the naval base under another construction program. Just when Congaree would be permitted to resume opera- tions at Mayport was not known at the time but it was known that she would re- turn to complete the work. So upon returning to the Jacksonville yard Balasus , as was customary, proceeded to lay off part of the crew. When Congaree was tied up or in layup status, Balasus union activity through its clear threat of loss of employment for those engaging in any such activity. It is so found. The question of the reliance to be placed in the testimony of Balasus will be discussed hereinafter. 8 On the credibility problem regarding Balasus it is significant that Balasus, while denying having had any conversation with Pulka (or any other employee) about the Union, volunteered, as to Pulka, that Pulka "was the one that started the talking." * The dates used in this report are at best approximations. No two exhibits herein give the same date for the same. event. The witnesses who testified were equally vague as to dates. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customarily laid off that part of its crew which would not be needed for the main- tenance and repair work on the dredge. Then a few days before Congaree was scheduled to commence operations again Balasus customarily sent word out gen- erally to the laid-off crew members that Congaree was about to commence opera- tions or else in some individual cases sent word to the laid-off individual employee he wanted. Upon receipt of this word the employees would report back and be signed up for the next job. If some men failed to report back, Balasus would then fill their positions with anyone else who happened to apply for work at the time. This system of layoffs and recalls resulted in a relatively small percentage of em- ployee turnover from trip to trip.5 On September 10 following the first Mayport trip, Balasus laid off or discharged 13 members of the crew. Among them was Leo Wingate, a boatman who had worked continuously for the Respondent through at least three previous layoffs when Congaree was tied up. It had not been customary in previous layoffs to lay off boatmen. When Wingate inquired why he was being laid off, all Balasus would say was "you know why." It had not been customary to lay off oilers previously but on this occasion Ernest McGee and William Shirley who had also worked through a number of previous layoff periods were laid off. Also David Wingate was laid off although the other three members of the gang he worked with were retained. With two exceptions every man laid off had attended the Dunn's Creek meetings. The record also shows that, in answer to his interrogation of other employees, Balasus had previously been given the names of most of the men thus laid off as employees interested in the Union. A few days after September 10 Balasus told welder Pulka that he was going to give Pulka a "little vacation" because there was "no work" for him aboard Con- garee and because he did not know when Congaree would go back to work. At or about this same time, and within a day or two after Congaree had tied up in Jack- sonville, Balasus solicited Tenley Sweat, a welder then employed at the Respondent's yard, to transfer as a welder to the Congaree. When Sweat demurred on the grounds that he would be replacing Pulka, Balasus declined to go into the details of Pulka's layoff but stated flatly ". . . we are definitely not going to hire him back." 5 Finally Sweat accepted the proffered transfer to the Congaree and worked steadily thereafter until the layoff of February 28, 1960, doing the exact same work Pulka had done continuously over the past 5 years .7 While Congaree was tied up in Jacksonville, Pulka applied several times to Balasus for work but was always told that there was no work for him and that Balasus did not know when Congaree would go back to work. On his second visit for such purposes, however, Pulka discovered Tenley Sweat doing the same welding work aboard the Congaree which Pulka had been doing. When Congaree returned to Mayport on or about October 15, 1959, Pulka was not rehired as a member of the crew because, according to Balasus, Congaree had a full crew when Pulka reported back. However, contrary to Balasus' testimony, the facts in the case of Pulka war- rant no other conclusion but that Balasus discharged Pulka at the time of this so- called layoff replacing him with Sweat whom he had personally solicited for that very purpose. The record establishes that, in addition to Pulka, the following laid-off employees applied for work just prior to the time that Congaree left on its second trip to May- port: Ernest M. McGee, James W. Pittman, William W. Shirley, Gerald E. Wil- 6In its brief Respondent cites figures proving an average turnover of 24 new employees after each layoff over a 4-year period. While Respondent's figures in this respect are cor- rect, it must be noted that this computation started with the turnover following a job at Cape Canaveral which is located at a considerable distance from Jacksonville and where obviously the large balance of unskilled workmen on the crew was composed of non- Jacksonville men. For that layoff alone Respondent's records show a turnover of 45 employees or somewhat more than a 100-percent turnover among the crew even though that record also shows some 30 oldtime employees like Etna Beck, William Freeman, Henry Polka, Claude Raulerson, L B Hill, J. D Piver, and several Watsons and Williams and Wingates worked throughout that job. The percentage of turnover shown by these records when Congaree operated closer to Jacksonville than Cape Canaveral justify, or require, the finding made above. 6 Subsequently, according to the testimony of Watson and Freeman, both of them were indefinite as to the dates of the conversations, Balasus made it plain to them that Pulka was one of the employees he believed to be in favor of the Union and a ringleader in the union activity. 7 During these 5 years Polka had never been laid off while Congaree was tied up. DUVAL ENGINEERING & CONTRACTING COMPANY 863 liams, John Alvin Williams, David George Wingate, and Leo Wingate, among others. Balasus reinstated none of them. On the day before Congaree left for Mayport the second time John A. Williams applied to Balasus for work but, as had happened on the previous times Williams had applied to Balasus, Balasus told him that he knew nothing about Congaree's going back to work and that it was not going to work. Apparently for that reason Balasus refused Williams employment. However, not long thereafter, H. H. Williams applied to Balasus for work in answer to a personal solicitation from Balasus. When Williams handed Balasus his social security card Balasus threw up his arms saying, "Oh, no, no Williams, we just shed of some Williamses off here." After H. H. Williams assured Balasus that he had no relatives in the State of Florida, Balasus hired him for the second trip to Mayport. Other old hands were told by Balasus that they had reported too early as Congaree was not going back to work or that they had reported too late as he had a full crew aboard Congree. Thus Balasus refused them employment. So when Congaree headed back to Mayport on or about October 14 -there were no less than 13 newly hired employees in the crew, despite the fact that the record shows that at least 8 of the laid-off employees, including Ernest McGee, James Pitt- man, Henry Pulka, William Shirley, Gerald E. and John A. Williams, and David and Leo Wingate, had applied for work to Balasus at or about the time Congaree was being staffed but were rejected on the grounds that they had applied too early, too late, or because Congaree had a full crew or some other such excuse. Congaree operated at Mayport the second time until the early part of December 1959 when it again ceased work and returned to the Jacksonville yard. This time work had to be stopped because of the lack of steel caused by the steel strike. A few days thereafter Congaree proceeded to Sandfly Point where it dredged until February 27, 1960, on property owned by two of its principal stockholders. On November 9, 1959, the Union filed a petition for certification covering the employees of the Respondent's marine division with the Board. A hearing was held on this petition on December 21, 1959, and on February 4, 1960, the Board directed an election in said unit.8 While the Congaree was at Sandfly Point, 'Balasus continued interrogating em- ployees regarding what they might know about the Union just as he had done on the first trip to Mayport. As an illustration, about 2 weeks after Fred Wilder had been hired by Balasus at Sandfly Point, Balasus asked Wilder if he knew anything about the Union which Wilder denied. Balasus continued, "Well, you know some of the boys that got laid off the first time about the Union?" Balasus ended the conversation by warning Wilder not to listen to Claude Raulerson, the mate, because Raulerson was all for the Union and "the same thing will happen again that happened before." In another conversation about a week later Balasus again warned Wilder , "Don't listen to anything [Raulerson] tells you because if you do, the dredge will be pulled in just like before." In the latter part of Congaree's stay at Sandfly Point and close to the date of the election which was scheduled for February 26, 1960, Balasus warned Etna Beck, "We better vote no against that union and keep it off the job, if we don't we'll all be to the hill and tied up and out of a job." Balasus also told employee Cooner that, if Cooner "wanted his job," he had "better vote right." Also a few days before the election Balasus told a group of the employees , including Bevis White, in the galley of the dredge that "if the Union was voted in that there wouldn't no one on the dredge have a job." Several times Balasus warned William Freeman to vote "no" in the election. About 2 weeks before the election Foreman Dilly Lewis told his crew that Chief Balasus had told him, and he knew himself, "that if we voted that union in that the dredge would be tied up for good." 9 On February 26, 1960, the election was held for the employees of Respondent's marine division on board the Congaree. At that election the Union won the right to represent the employees of the marine division in collective bargaining ' with the Respondent. On February 27 the Congaree left Sandfly Point and returned to Respondent's yard in Jacksonville where Balasus laid off most of the members of the crew. A day or so after the Congaree tied up at the yard in Jacksonville, Balasus re- 8 The Trial Examiner has taken judicial notice of the proceeding of the Board in said R case, Case No 12-RC-768, for the dates 9 Neither Balasus' nor Lewis' statements are protected by Section 8(c) due to the ' threats of loss of employment Accordingly, they all violate Section 8 ( a) (1). 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minded employees Don Watson and Lawrence Holmes that he had warned them that if the Union was voted in all the employees would be out of a job. Balasus added that he would not be surprised if Respondent boarded Congaree up and put on a for sale sign. B. Conclusions 1. Credibility This case is in large part determined by the credibility finding. As is obvious from the above findings of fact, the Trial Examiner has not been able to accept either the general or the specific denials of Chief Balasus to the effect that he had any of the above-found conversations relating to the Union. Twenty-odd witnesses testified that those conversations occurred. One man denied the occurrence of each and everyone of them either generally or specifically. The Trial Examiner recognizes that the preponderance of evidence is not determined by the sheer weight of num- bers and the fact that because 20-odd witnesses testified to an occurrence does not necessarily make it so, yet it is a factor to be considered. Fortunately for the Trial Examiner there are other factors which assist in the credibility determination. There is, for instance, the Pulka case which Balasus explained on the ground that he gave Pulka a "little vacation" because there was "no work" for Pulka while Congaree was tied up and then Pulka either applied too early before the Congaree was slated to return to Mayport or too late after the crew had already been selected. Unfortunately the facts show that none of these claims were accurate. There was work on board Congaree for Pulka during its laid-up period in Jacksonville and Balasus knew it for otherwise he would not have solicited Tenley Sweat to transfer to Congaree simultaneously with "laying off" Pulka. Pulka was not being given a "little vacation," as Balasus put it, for Balasus was in fact replacing Pulka with Sweat permanently. Pulka was not laid off for Balasus knew he was discharging Pulka even as he informed Sweat in order to get Sweat to transfer to Pulka's position. Nor was Pulka guilty of applying either too early or too late, as Balasus contended, for once his own solicitation of Sweat to do the work previously done by Pulka for 5 years even during layup periods became successful, there was indeed no work aboard Congaree for Pulka as it was being done by Sweat. Thus Balasus had succeeded in making any application by Pulka at any time a completely futile gesture. Pulka's vacation had become permanent. Then, not to belabor the Pulka case, there is also the John and Gerald Williams' case where Balasus told the Williams' when they applied that he already had a full crew. But immediately after their departure Balasus resumed hiring new men for the crew including H. H. Williams who, when he gave his name , had to prove that he was not related to the other Williams before Balasus would hire him. Other laid-off employees saw new men employed after having been told by Balasus that he had a full crew. Thus one can have little, if any, faith in the testimony of Balasus. That determination for all intents and purposes ends this case for the discrimina- tion here is proved through the words and actions of Balasus, who admittedly did all the hiring and firing on board the Congaree. 2. The layoff of September 10 As found heretofore, contrary to the original contention of the General Counsel, Congaree returned to the Jacksonville yard on or about September 9 when the Navy determined that further dredging by Congaree would interfere with another going construction program at the base. The layoffs, upon tying up at the Jacksonville yard, were generally in conformity with the usual practice although the selection of Pulka, the welder, and of the oilers, Shirley and McGee, and of the boatmen, at least, were not in accord with the practice of past layoffs. These were men whose services were needed even while Congaree was tied to the dock. It must be noted here that the Respondent voiced not one syllable of criticism of the work of any of the men who were selected for layoff on September 10. In part at least, therefore, this layoff was different than the previous ones. But the facts do not permit a finding here that Congaree was tied up on September 10 for the purpose of allowing Balasus to eliminate the union members of the crew, even though the selection for layoff of a number of the crew members might create that impression. Under the circumstances the Respondent had the right to lay off those members of the crew it desired to so long as the selection was not made on a discriminatory basis. However, it was not long after Congaree had tied up in Jacksonville that Respond- ent's and Balasus' discriminatory motivation began to appear. Promptly after the ,general layoff Balasus sought to and succeeded in replacing Pulka, a steady keyman DUVAL ENGINEERING & CONTRACTING COMPANY 865 aboard Congaree for the past 5 years but whom Balasus had discovered to be a strong union advocate through his illegal interrogations starting immediately after the union activity began. Almost immediately after the union efforts started the Respondent through Balasus and Hill warned the crew that such activity for and on behalf of the Union would cost an employee his job. With Pulka, Balasus began to redeem his promise or threat for, as has been seen, there is no other possible ex- planation for the sudden determination to eliminate Pulka at this time except that Respondent and Balasus objected to Pulka's union activities. In fact Balasus sub- sequently admitted this to be so, that he knew that Pulka was the ringleader in the Union, bragged that Congaree had been tied up so that he could and did eliminate the union members of the crew and warned the new employees of a similar fate if they continued in favor of the Union.10 The subsequent statements and threats as to the return of Congaree and the dis- missal of union sympathizers by Balasus constitutes an admission by the Respondent of the discriminatory nature of the September 10 layoff at least so far as those in- dividual crewmembers whom the records show that Balasus knew or suspected of 'being in favor of the Union such as: Ernest M. McGee, James W. Pittman, Henry J. Pulka, William W. Shirley, Gerald E. Williams, John Alvin Williams, David George Wingate, and Leo Wingate. These are also the same individuals who subsequently applied to and were rejected for further employment by Balasus on or about October '14, 1959, on the pretext that he did not know if or when Congaree would return to work or that he already had a full crew which he proceeded to prove was nothing but a pretext by hiring other new men. This action by Balasus in using a pretext on which to refuse these individuals reinstatement makes it perfectly obvious that on September 10 when he purported to lay off the above-named men, he was in fact discharging them. Therefore the Trial Examiner must find that the above-named employees were discharged in violation of Section 8(a)(1) and (3) of the Act. As to the others, it is perfectly possible that Balasus laid them off on a nondiscrimi- natory basis, for there is nothing in this record to show that Balasus knew or sus- pected them or any of them of being union members or sympathizers at the time of the layoff. Nor is there any subsequent proof thereof because the record does not show that any of the others applied for reinstatement or were rejected therefor by Balasus. Therefore, the Trial Examiner will recommend that the complaint be dismissed as to Allen W. Guest, David W. Lyle, Mikell L. McCarthy, David A. Watson, and Frank L. Wingate on the grounds that of a failure of proof as to them. 3. The layoff of February 27, 1960 For the last few days or weeks before the election of February 26, Balasus had threatened the crewmembers that, if the Union were successful in the election, the Respondent would tie up the Congaree and everybody would be out of a job. This threat, if it were nothing more than a threat, also amounted to interference, restraint, and coercion of the employees and thus a violation of Section 8(a)(1) of the Act. On February 26 the election was held and the Union won. On February 27, with- out any other previous warning, Respondent's marine superintendent ordered the Congaree returned to the yard in Jacksonville, which Balasus proceeded to do and then to lay off the whole crew. As he did so Balasus proceeded to engage in a few "I told you so" statements which are also admissions binding upon the Respondent and to prophesize that Congaree would be boarded up and put up for sale. As of the time of the hearing, Congaree was still tied up and inactive. Respondent explains this return to Jacksonville on February 27 on the ground that two large stockholders of Respondent desiring to keep the crew of Congaree together and to do some dredging on their own property for future use gave Respondent the job of dredging on the property of these stockholders at Sandfiy Point but that about 3 or 4 weeks before the date of the scheduled election, these stockholders decided that the operations had become too expensive so that they desired the operations stopped immediately. But, according to this explanation, President Ellis of the Respondent not wanting to be accused of interfering with the Board election, which the Board had ordered on February 4, 1960, persuaded the stockholders to continue the operation at Sandfly Point until the election was held, but agreed with said stock- 10 Although the Trial Examiner cannot accept Balasus' explanation for the return of Congaree from 111ayport the first time, due to other facts disclosed in this record, Balasus himself may well have believed this statement for there is no showing that Balasus knew that the Navy had ordered the cessation of work. However, regardless of whether Balasus knew his statement to the new employees to be false, these statements con- taining, as they do, a threat of discharge if a crewmember engaged in union activity constituted interference , restraint, and coercion in violation of Section 8(a) (1) of the Act. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holders -that the operations there would cease immediately after the election regardless of whether the Union won or lost that election. There is absolutely nothing in the record to corroborate this testimony of Presi- dent Ellis. The record does show without contradiction that Congaree at Sandfly Point was dredging in rock, that it was hard and expensive dredging, and that the recovery was not as good as expected . In the Sandfly Point operation Congaree broke at least one piece of equipment costing some $ 10,000 to repair and had other expensive repairs and shutdowns , none of which happened during the week before the election . Ellis, in addition, estimated the cost of operating Congaree for 1 day to amount to $2,000. Thus, according to this explanation, Respondent operated Congaree for a total of at least 23 days at $2,000 a day, exclusive of expensive repairs and breakdowns, in order not to be accused of interfering with a Board election . That amounts to the sum of $46,000 offset by such poor return from the dredging operations as to -have caused the stockholders weeks before to decide to suspend operations then. The Trial Examiner finds this explanation to be too incredible to believe. Consequently, the Trial Examiner must find that the Respondent returned Congaree to the Jacksonville yard on February 27, 1960, and laid off its crew at that time because the crewmembers had selected the Union as their representative for collective bargaining at the election the previous day. Consequently, the Trial Examiner must also find that the layoff of the employees on February 27, 1960, was caused by the Respondent's desire to retaliate against them for having selected the Union as their bargaining agent in violation of Section 8(a)(1) and (3) of the Act. 4. The individual cases a. Clyde R. Snow While Snow was employed as a deckhand on board Congaree at Mayport in De- cember 1959, Snow requested and received a leave of absence so that he could paint his home in Jacksonville. Some time prior to December 30, J. D. Piver, who was then acting as mate in the absence of Larrimore who was injured and at that time working as an oiler, asked Balasus if he was going to put Snow back on to work as the crew on which Snow had worked was short a man . Balasus answered that "no, he didn't think so because he was too much for the Union." There is no showing in this record that Snow's place on this crew was ever filled. Nor is there any competent evidence that Snow ever sought to return from his leave of absence from the Respondent.ii As the record fails to show that Snow has ever attempted to return from his leave of absence, the Trial Examiner will recommend that the complaint be dismissed as to him. However, the remark of Balasus concerning Snow is another remark violative of Section 8 (a) (1) of the Act. b. J. D. Piver During the 5 or 6 years while Piver worked for the Respondent on board Congaree "off and on," he performed most of the jobs aboard as well as on the "hill," i.e., cat driving. Piver signed a union card at one of the Dunns Creek meetings while Congaree was at Mayport the first time. During this first stay at Mayport, Larrimore, a mate, was hospitalized from injuries received and Piver was promoted to the position of mate. Piver continued as the mate in place of Larrimore through the first and second Mayport trips. On the second Mayport trip Larrimore returned to Congaree as an oiler where he did not have to do any lifting. This arrangement lasted until December 30, 1959, at Sandfly Point., On that day Balasus returned Larrimore to his duties as mate replacing Piver and hired one Toby Brown, a new employee, who, in turn, replaced Larrimore as oiler. Balasus there- upon paid off Piver and discharged him despite the fact that Piver asked for either the oiler's job or the vacant position on the dump gang. When Piver asked for the oiler's job on this occasion, Balasus said, "Well, I don't know, . . . well, it's just too much union." 11 Piver did testify that he saw Snow aboard Congaree and asked if he was going to be reinstated but received the answer that he was not. This evidence is both hearsay and -too ambiguous to be considered as evidence that Snow had sought to return from his leave of absence. DUVAL ENGINEERING & CONTRACTING COMPANY 867 Balasus' explanation for the refusal of the oiler's job to Piver was that the engineer did not want Piver. This explanation is not convincing for this is the sole instance in this record where Balasus ever sought, received, or paid any attention to anyone 's recommendations as to the hiring and firing of the employees. The Trial Examiner believes and , therefore, finds that Balasus stated the true reason for the discharge of Piver at the time of the discharge and also when he told employee Watson that "Hank [Pulka] . and Danny Piver and Claude Raulerson was for the Umon and Danny and Claude was hot for it." The Trial Examiner so finds. Accordingly, the Trial Examiner must find that Respondent discharged J. D. Piver on December 30, 1959, because of his known union activities and sympathies in violation of Section 8(a) (1) and (3) of the Act. c. James B. Smith Smith was an old hand aboard the Congaree who was last employed for the first trip to Mayport. During that trip Balasus asked him several times to find out who was in the Union and anything else about the Umon he could learn and to report back to him. Some time in October 1959 Smith voluntarily quit his job on Congaree and at the hearing explained this as follows : "Well, my circumstance was on account of being worried up about every time I'd get around the chief he'd want to find out, want me to tell on the boys, it just got me , just all messed up so I quit to get out of it, just every day he was wanting to know one thing, had I heard and this, that and the other about the Union , so I just told my wife I was going to quit and get out of it." The Trial Examiner believes that this testimony proves that Smith voluntarily quit his employment and does not amount to a constructive discharge . He will, therefore, recommend that the complaint be dismissed as to James B. Smith. d. Woodrow Sheely On the morning after the election but before Congaree had pulled out of Sandfly Point, Balasus discharged Woodrow Sheely. The record shows that on the previous day, election day, Woodrow Sheely was supposed to act as the union observer at the election. Although Sheely denied having anything to drink on the morning of February 26, the facts show that Balasus bawled him out and that the Union substituted another observer at the election. Consequently the Trial Examiner must find that Sheely was in no condition to work. It is also undenied on this record that a week or so before the episode of February 26, Balasus had sent Sheely home because he was at that time in no condition to work. Under these circumstances, even though drinking was not unknown on board the Congaree, the Trial Examiner must find that Balasus discharged Sheely because of his condition on February 26, and not because of any union activities in which he may have been indulging. The Trial Examiner will, therefore, recommend that the complaint be dismissed as to Woodrow Sheely. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in numerous unfair labor prac- tices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of the employees listed below by discharging each of them, the Trial Examiner will recommend that the Respondent offer to each of them immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of said discrimina- tion by payment to him of a sum of money equal to that which he would have 614913-62-vol. 132-56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289: Ernest M. McGee, James W. Pittman , Henry J. Pulka, William W. Shirley, Gerald E. Wil- liams, John Alvin Williams, David George Wingate , Leo A. Wingate, R. J. Andrews Jr., Etna Beck, Jimmy Beck , J. A. Booth, Pope C. Branson, Jr., Edward J. Brown, Jakie L. Cooner, H. A. Floyd, William H. Freeman, Lawrence E. Holmes, H. M. Martin , Benny G. Mercer, E. C. Mobley, David A. Nelson, J. R. Newsome, David R . Rich, Tenley Sweat, R. E. Taylor, Donald E. Watson, Henry T. Watson, W. C. Watson, Bevis V. White, Freddie A. Wilder, H. H. Williams, and J. D. Piver. because of the variety of the unfair labor practices engaged in by the Respondent, the Trial Examiner senses an attitude of general opposition to the purposes of the Act in general, and hence the Trial Examiner deems it necessary to order that the Respondent cease and desist-from in any manner infringing upon the rights guaran- teed in Section 7 of the Act. CONCLUSIONS OF LAW 1. Seafarers International Union of North America, Atlantic and Gulf Districts, AFL-CIO ( Harbor Inland Workers Division ), is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discharging the employees named above in "The Remedy ," thereby dis- criminating in regard to their hire and tenure of employment and discouraging union activities among its employees , the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (3) and ( I) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed to them 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)(I) 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 did not commit unfair labor practices with regard to the following employees : Allen W. Guest, David W. Lyle, Mikell L. McCarthy, David A. Watson, Frank L. Wingate, Clyde R. Snow, James B. Smith, and Woodrow Sheely. [Recommendations omitted from publication.] Pan Atlantic Steamship Company and Felix Hernandez Velez International Longshoremen's Association Local 1575, ILA- DCPPR, ILA-Ind., and International Longshoremen's Associa- tion, Local 1855, ILA-DCPPR, ILA-Ind., and International Longshoremen's Association, District Council of Ports of Puerto Rico, ILA-Ind. and Felix Hernandez Velez. Cases Nos. 24-CA-1122 and 934-CB-307. August 10, 1961 DECISION AND ORDER On July 27, 1960, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Unions and the Respondent, Pan Atlantic Steamship Company, had each of them engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth more fully in the Intermediate Report attached hereto. He further found that the Respondents had 132 NLRB No. 58.