Tidelands Marine Service, Inc.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten you with reprisals because you join any union. WE WILL NOT violate any of the rights you have under the National Labor Relations Act to join a union of your own choice or not to engage in any union activities. WE WILL offer Joseph Olivera reinstatement to his former job, and offer Gilbert Jesus employment as a full -time driver, and will give them both back- pay due them. All our employees are free to become or remain members of the union named above, or any other union, and they are also free to refrain from joining any union unless in the future we should enter into a valid union -shop contract with a union that represents our employees. ALMEIDA Bus LINES, 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. Employees may communicate directly with the Board 's Regional Office, 24 School Street, Boston, Massachusetts , Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Tidelands Marine Service, Inc. and Seafarers' International Union of North America , Atlantic and Gulf Districts, AFL- CIO. Cases Nos. 15-CA-922, 15-CA-951, and 15-CA-962. De- cember 06, 1962 DECISION AND ORDER On June 15, 1959, Trial Examiner A. Norman Somers 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. He also found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. At the original hearing in this proceeding, the Trial Examiner, relying on the A & P case,' denied the Respondent's demands for the production of the pretrial statements made by certain of the General Counsel's witnesses. Thereafter, while this proceeding was still pend- ing before the Trial Examiner, the Board issued its decision in Ra-Rich Manufacturing Corporation,2 overruling the A d P case. The Trial Examiner thereupon reopened the hearing and directed the production by the General Counsel of all the pretrial statements requested by the Respondent. The Trial Examiner, however, limited cross-examination thereon to questions seeking an explanation of inconsistencies between the testimony of each witness and his pretrial statement. i The Great Atlantsc and Pacific Tea Company , National Bakery Division, 118 NLRB 1280 2121 NLRB 700 140 NLRB No. 28. TIDELANDS MARINE SERVICE, INC. 289 On January 20, 1960, the Board issued an order reopening record and remanding proceeding' in which it ordered (1) that a further hearing be held to permit the Respondent to cross-examine certain witnesses in the light of the pretrial statements they had given to the General Counsel, without the limitation previously imposed, and (2) that the entire testimony of any of these witnesses who did not appear for such cross-examination be stricken. On June 25, 1962, Trial Ex- aminer Somers issued his Supplemental Intermediate Report and Recommended Order in which he reaffirmed his original findings. The General Counsel and the Respondent filed exceptions to the Supple- mental Intermediate Report, and the Respondent filed a supporting brief. The Intermediate Report and the Supplemental Intermediate Report are attached hereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearings, and finds that the record contains no prejudicial error. The rulings are hereby affirmed.' The Board has considered the entire record in these cases, including both Intermediate Reports and the various exceptions and briefs, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner 5 with the ex- ceptions, modifications, and additions set forth below. 1. In finding that the Respondent engaged in certain conduct, the Trial Examiner relied, to a large extent, on the testimony of Super- visor Jackson. The Respondent maintains that Jackson was shown to be wholly unreliable, and that the Board should, therefore, over- rule the Trial Examiner's findings as to Jackson's testimony. In his original Intermediate Report, the Trial Examiner, while ex- pressing some doubt as to Jackson's veracity, nevertheless credited Jackson's testimony because it was strongly corroborated. In his Supplemental Intermediate Report, the Trial Examiner, after again 3 126 NLRB 261. 4 The Respondent moved to dismiss these cases or remand them for further hearing on the ground that the Trial Examiner failed to comply with the Board' s order reopening record and remanding proceeding by refusing to direct the production of a pretrial state- iuent which the witness Felker testified he gave to the Charging Party. As this statement never was in the possession of the General Counsel, as its production was not required by Section 102 .118 of the Board's Rules and Regulations, Series 8, as amended, or by the principles enunciated in Ra-Rich Manufacturing Corporation , supra, and as no other basis has been shown for its production, the Respondent's motion is hereby denied Cf. Harvey Aluminum ( Incorporated ) et at, 139 NLRB 151 Due to an apparent inadvertence, the pretrial statement which Felker gave to the General Counsel on August 21, 1956, and which was produced , was not formally admitted into evidence It is, therefore , hereby admitted as Trial Examiner's Exhibit No 9 5 The Respondent moved to dismiss the complaint , or remand these cases for a new hear- ing before a different Trial Examiner , on the ground that Trial Examiner Somers was improperly influenced by certain testimony which was stricken from the record, and was motivated largely by a desire to reaffirm his original findings As careful examination of the record does not reveal any support for these contentions , this motion is hereby denied 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussing the credibility of Jackson at length, reaffirmed his finding that Jackson should be credited, even though corroborative testimony by Supervisor Reams and employees Raynor and Jacobus, given at the original hearing, had been stricken from the record because of their failure to reappear for cross-examination. As the Trial Exam- iner commented in his Supplemental Intermediate Report, he had observed Jackson during three appearances on the witness stand and, based on Jackson's demeanor, as well as other considerations fully set forth in that report, he credited Jackson's testimony. Moreover, the present record, even after some corroborative testimony was stricken, contains probative evidence corroborative of Jackson, as the Trial Examiner found. Under all the circumstances, therefore, we adopt the credibility findings of the Trial Examiner.' 2. We find, in agreement with the Trial Examiner, and in the con- text of these cases as a whole, that shortly before and after the Board election the Respondent violated Section 8 (a) (1) by the following conduct of Port Captain Cowan, who : (a) showed employee Murry a list of employees' names and asked him to pick out the union sup- porters, and, when Murry pleaded ignorance, pointed to Murry's own name and asked, "How does this name seem to hit you?" (b) asked employee Gautreau whether certain named employees had signed union cards, and whether Gautreau himself had signed one; (c) told employee Dunn that the Union would bring undesirable em- ployees into the ships, and asked Dunn to tell him who was for the Union; (d) interrogated employee Kennedy and another applicant as to their union sentiments at the time he hired them; (e) stated to Dunn, "There are 53 of you so-and-so fellows that are not good com- pany men, and I will get my revenge and you can go right now if you want to"; (f) solicited Dunn and Murry to "vote right," and "not to forget him," while they were waiting in line to vote in the Board election; (g) instructed Jackson to find a pretext to discharge employees Dunn, Murphy, Stewart, and Wagner because of their support of the Union, and instructed Supervisors Hatfield and Hemp- hill to find pretexts to discharge Wagner and Stewart for the same reasons. 3. We agree with the Trial Examiner that the Respondent discrim- inatorily discharged James C. Gautreau, Charles G. Dunn, John P. Murphy, and Curtis Stewart in violation of Section 8(a) (3) and (1) of the Act .8 9 See Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F. 2d 362 (CA. 3). 'Reliance Clay Products Company, 105 NLRB 135, 148. As Cowan' s instructions were carried out, we find it unnecessary to consider the applicability of H. N. Thayer Company, 99 NLRB 1122, 1125, cited in the Intermediate Report, which involved unexecuted in- structions to commit unfair labor practices. 9 We adopt pro forma the Trial Examiner's recommendation that the complaint be dis- missed as to the alleged discriminatory discharge of Virgil Schrage, in the absence of an exception thereto by the General Counsel. TIDELANDS MARINE SERVICE, INC. 291 4. The Trial Examiner found that eight members of the crew of the vessel ST-4 were laid off June 7 or 8, 1956, when that vessel went into drydock ; that the Respondent discriminated against four of the crewmembers by refusing to take them back after the layoff ; but that there was no discrimination against the other four crewmembers be- cause they never communicated their availability for work to the Respondent after the layoff. The General Counsel excepts to the Trial Examiner's failure to find that the Respondent discriminatorily laid off all eight crewmembers, and contends that the Respondent had an obligation to reinstate them whether or not they made known their availability for work after the layoff. We find merit in these exceptions. As found by the Trial Examiner and fully set forth in the Inter- mediate Reports, all eight complainant crewmen of the ST-4 were members of the Union , and Cowan knew of the membership of most, if not all, of them. All were laid off June 7 or 8, when the vessel was sent to drydock for repairs . Although it was the Respondent 's policy to place crews of laid-up vessels in other jobs , and Cowan informed the complainants at the time of their layoff that he would communicate with them when he had openings , he nevertheless failed to call any of them, or offer any of them a job, even though several of them called him on various occasions and inquired about jobs. Moveover, the Trial Examiner found, and the record clearly shows, that more than enough jobs were available, as the Respondent frequently during this period advertised in a newspaper for new employees , and actually hired up to 52 new employees while the ST-4 was in drydock. In view of the foregoing, and under all the circumstances of these cases, it is clear, and we find, that Cowan laid off these men pursuant to his threat to get rid of those who were in favor of the Union. Contrary to the Trial Examiner, therefore, we find that it would have been futile for those who failed to do so to have made known to the Respondent their availability for work. Accordingly, we find that all eight members of the ST-4-Kennedy, Gaspard, Felker, Murry, Jacobus, Moore, An- nino, and Iloltz-were discriminatorily laid off in violation of Sec- tion 8 (a) (3) and ( 1) of the Act, and we shall , therefore, require the Respondent to offer them reinstatement,' and to pay them backpay.10 5. Interest at the rate of 6 percent per annum shall be added to all backpay awarded herein, to be computed in the manner set forth in Isis Numbing & Heating Co., 138 NLRB 716.11 6 We find that the record does not support the Respondent 's contention that some of these employees are unsuitable for reinstatement. "The amount of backpay due is left to the compliance stage of the proceeding. In accordance with the policy recently adopted by the Board , there shall be no tolling of backpay of any employees for the period between the issuance of the Intermediate Report and the Order herein. A P.W. Products Co., Inc., 137 NLRB 25 11 For the reasons set forth in the dissent in that case , Member Leedom would not award interest on backpay and does not approve the award of interest here. 681-492-63-vol. 140-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the cease-and-desist and affirmative action recommendations made by the Trial Examiner in his Supple- mental Intermediate Report with the modification of provisions 2(a) and 2(b) to read: 12 (a) Make whole James C. Gantreau and Phillip R. Wagner in the manner set forth in the section of the Supplemental Inter- mediate Report entitled "The Remedy," as modified by the Board's Decision and Order. (b) Offer to the persons named below immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, or, if such positions are presently unavailable, place them on a preferential hiring list for the filling of future vacancies; and make them whole for any loss of pay suffered as a result of the discrimination against them in the manner set forth in the remedy section of the Supplemental Intermediate Report, as modified by the Board's Decision and Order. The persons are : Charles G. Dunn, John P. Murphy, Curtis Stewart, Jerome Gaspard, Frank Felker, Percy Kennedy, John Murry, George I). Jacobus, David F. Moore, Peter Annino, and Chester Holtz. "The notice attached to the Supplemental Intermediate Report is amended as follows: (1) The names of George D. Jacobus , David F Moore, Peter Annino, and Chester Holtz are added to those to be offered reinstatement and backpay . ( 2) In the last paragraph before the signature line, substitute a period for the comma after the word "wish" and delete the remainder of the paragraph . ( 3) The following is inserted immediately below the signature line: "NOTE-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces " ( 4) "60 consecutive days from the date of posting" is substituted for "60 days from the date it bears " INTERMEDIATE REPORT STATEMENT OF THE CASE This case, with all parties represented, was heard in New Orleans , Louisiana, be- tween April 15 and June 26, 1958, and after reopening, between November 18 and 20, 1958. The complaint of the General Counsel alleged, and the answer of Re- spondent denied, that Respondent discriminatorily discharged certain named em- ployees, in violation of Section 8(a)(3), and engaged in other acts of interference, restraint, and coercion, in violation of Section 8(a) (1), of the National Labor Re- lations Act (61 Stat. 136). On September 3, 1958, after the Board 's supervening decision in Ra-Rich Manu- facturing Corporation, 121 NLRB 700, Trial Examiner A. Norman Somers re- opened the record for the purpose of affording Respondent an opportunity to in- spect pretrial statements of witnesses , which had been withheld from Respondent under the hitherto controlling effect of Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280, and to move for further cross- examination in the light of those statements . After making such inspection, Re- spondent moved to reopen the hearing for that purpose. This ushered in a series of steps culminating in the Trial Examiner's memorandum and amended order re- opening hearing, dated October 10, 1958 . Thereunder, the hearing was reopened for further cross-examination of 10 witnesses , in the light of their pretrial statements. At the reopened hearing in November, five of the witnesses named in the amended order of reopening appeared and were subjected to further cross-examination. The TIDELANDS MARINE SERVICE, INC. 293 problem relating to the other five, including also another witness who testified at the original hearing but who had died in the meanwhile, is treated in section III D of this report.' Oral argument was waived. The General Counsel and Respondent have filed briefs, which have been duly considered. Also, the Trial Examiner issued a con- solidated order, correcting the stenographic transcript of hearing in certain respects. On the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with its principal office in Houston, Texas. During the times here material, it had, among others, an operation in Grand Isle, Louisiana, in which it rendered service in connection with drilling for oil in the tide- lands area of the Gulf of Mexico. It provided maintenance crews for vessels which served as tenders for the platforms or rigs on which the drilling was performed. These tenders (called ST's) were the living quarters for the drilling personnel on the rig and of the maintenance crew of the vessel. The overall ownership of the drilling operations as such is in Humble Oil & Refining Company. At some rigs, Humble did its own drilling and on others it contracted out that operation to drilling companies. At one time, Respondent rendered its services under contract with the particular drilling company at the rig. Later, Respondent's contract for the servicing of all rigs was exclusively with Humble. In April 1956, in a representation election, later described (Case No. 15-RC-1323, not published in NLRB volumes), the Board predicated jurisdiction on the fact that Respondent's services to Humble exceeded $200,000 a year and that Humble is a multistate enterprise, with out-of-State sales in excess of $50,000 annually. It is accordingly found that at the times herein material Respondent was engaged in commerce within the meaning of the Act and to an extent which satisfies the Board's standards for assertion of jurisdiction. See Whippany Motor Co., 115 NLRB 52; Siemons Mailing Service, 122 NLRB 81.2 II. THE LABOR ORGANIZATION INVOLVED Seafarers' International Union of North America, Atlantic & Gulf Districts, AFL-CIO, which is the Charging Union here, and will sometimes be referred to as the Union or the SIU, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The organizational campaign and the conduct preceding the election The offending conduct is alleged to have occurred in the course of a representa- tion proceeding . An election was held the latter part of April 1956, and the result being inconclusive , a new or runoff election was anticipated .3 The bulk of the offenses charged, at least the gravest ones, including all but one of the alleged il- legal terminations, center around events occurring after the election , during the anticipation of the runoff. 1. Occurrences during the campaign of NMU, preceding that of the Charging Union Although the SIU, which is the Charging Union, wound up as the target of Respondent's opposition , an attitude which neither Respondent nor Port Cap- tain Cowan disclaims, it was not the first labor organization which tried to or- i At the original hearing, shortly after the testimony began, Respondent moved for the invocation of the "rule" This was granted over objection of the General Counsel From then on, throughout the original and supplemental hearing, all witnesses were excluded from the hearing room, except when testifying The sole exception was L 0. Cowan, the port captain in charge of the Respondent's operations here involved. His executive role with Respondent warranted his being at the counsel table so that counsel might consult with him. 2 The special challenge to the Board's jurisdiction on the ground that the drilling was performed and Respondent's services rendered on the Outer Continental Shelf of the Gulf is overruled on the authority of General Marine Corporation, 120 NLRB 1395. 3It was ultimately called off pending resolution of the charges in this proceeding. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganize the Respondent's employees at the Grand Isle operation . The Charging Union entered the picture in February 1956, about 6 months after National Mari- time Union began its efforts to organize these employees and about 5 months after NMU filed the petition which culminated in the election here involved. NMU's campaign never did make headway , and those identified as the spearhead of the NMU drive, such as complainants Jerome Gaspard and Curtis Stewart , switched from it to SIU. The extent to which SIU eclipsed NMU in the election is re- flected by the vote in April. Of 136 eligible to vote, 126 cast ballots, and of these 53 voted for SIU, 7 for NMU, 50 for neither, and 16 were challenged. Testimony was given implicating Port Captain Cowan in antiunion activity back in 1955, when NMU alone was in the picture. It was presumably intended as "background" to show Cowan's hostility to unionism in any form. If by hostility is meant an outspoken conviction that the men's better lot lay in avoiding collective bargaining, that evidence was superfluous , since Cowan fully admitted that he never passed up the opportunity to neutralize union propaganda with propaganda of his own, oral and in leaflets. On the other hand, the General Counsel contended that Cowan showed a disposition to go beyond limits. Thus, in the fall of 1955, Cowan, it was testified, met Jerome Gaspard, who then spearheaded the NMU drive, at various taverns in Grand Isle , and, after lusty interchanges of opposing senti- ments, wound up threatening to get Gaspard's job and that of any other union supporters. This is interlarded with an alleged statement by Cowan as to why Gaspard did not leave if he was dissatisfied with conditions, and on seeing him with NMU organizers, remarking, "I see you are still with that nigger-lovin' union." Also, E. A. (Eddie) Adams, a timekeeper and general assistant in Respondent's office at Grand Isle, on seeing Gaspard with an NMU organizer, said, according to Gaspard, "I see you are working against us now." These indeed do show that Respondent had no love for unions, which it readily admits. The threats, denied by Cowan, would seem to have been uttered during that superlative mood induced by communion with Bacchus, which brooks no dissent on any score, be the subject unions, baseball, horseracing, or women. Gaspard admitted the NMU campaign was not making headway and the record is persuasive that Cowan was not then driven to retaliatory measures. Despite Cowan's words, I would think that Gaspard would have made due allowance for Cowan's exalted state and discounted what came off Cowan's lips at the time. The only other item of testimony dealing with that period came from Vergil Lee.4 Lee testified that in a conversation initiated, as Cowan admits, by the latter in his office and held outside it, Cowan spoke of the common stake of himself and Lee in opposition to a union, which Cowan admits doing, and promised the men would get a raise "after the union talks were passed," which Cowan denied. Lee, a fretful little man who, if he has the motive, patently has neither the inclination nor the stomach for lying, would normally be credited by me, as I do his testimony concerning a later conversation during the advent of SIU, in which Cowan asked him if he knew who had signed pledge cards for that union. There is no one else who implicates Cowan in a promise for a raise in 1955. Every indication would be that Cowan's admitted espousal of the economic benefits of individual, as opposed to collective, bargaining registered with Lee as a promise of a raise, and the burden of proof being the General Counsel's, I hold he has not sustained it as to the alleged promise of a raise. 2. Preelection conduct during campaign of Charging Party a. Interrogation of employees During the advent of SIU, Cowan, as previously found, in a conversation initiated by him in his office, asked Lee if he knew who had signed union cards. Shortly before the election of April, he showed John Murry a list of names and asked him to pick out the union supporters for him, and when Murry pleaded ignorance, showed Murry his own name with the question, "How does this name seem to hit you?" whereupon Murry protested he was "neutral." I do not share Respondent's ' The General Counsel's brief cites also an alleged conversation during that period be- tween Cowan and Herman Jackson. The sole support for this is not in Jackson 's testi- mony but In a pretrial statement to the field examiner. The question of Jackson 's credi- bility aside , the pretrial statements of all witnesses were admitted only for their bearing on the credibility of their testimony at the hearing. The statements were not admitted as, nor are they in law , probative of their contents . Southern Ry v. Gray, 241 U S 333, 337; 3 Wigmore, Evidence ( 3d ed, 1940 ), p. 687; 58 American Jurisprudence, "Witnesses" Sec. 817 . The matter thus cited by the General Counsel is therefore totally disregarded. TIDELANDS MARINE SERVICE, INC. 295 view that the incident is devoid of significance because, as Murry testified, he and Cowan smiled when the conversation took place. It does manifest to me a keen interest in and an effort to ascertain the identities of the union supporters, a factor bearing upon Cowan's repeated denials that he either had or tried to get this information. James C. Gautreau, an electrician and the only one of the 17 alleged discriminatees whose termination (the earliest one) occurred before the election, testified to hav- ing been asked by Cowan a few days before his first termination about "union activities" and when Gautreau said "the fellows were signing pledge cards," Cowan named specific persons and asked whether they had signed, to which Gautreau pleaded ignorance. Cowan, as Gautreau testified, then inquired whether he had signed, and Gautreau admitted he had. Gautreau testified the conversation took place when he dropped in at the Grand Isle office, just before going on his days off, and asked for a change in shift, which would give him the weekends off. Ac- cording to Gautreau, Cowan said he would look into this, but on his return from his days off, he was informed by Cowen he was dropped because of the asserted dissatisfaction with him of his superiors on his rig. Cowan testified that the con- versation preceding April 6 never took place: that Gautreau had already been told by his superiors that he was through because of incompetence and that he then bypassed the office altogether. The details are treated in the discussion of Gautreau's discharge. The probabilities preponderate in favor of Gautreau's hav- ing dropped in at the office at that time whether he was already fired or not. Gautreau is credited. Charles G. Dunn, an engineman, testified that sometime before the election, Cowan told him that if the Union got in "it would be full of niggers and full of riffraff from the ships, such as those from Seafarers," and also asked "who was for the Union," to which Dunn replied that "he had better ask the men." Cowan denied the whole conversation. Dunn is a complainant . With full allowance for his being an interested witness, it was manifest from his background, his demeanor, and from the record that this was no person dressing up a case. Dunn was temperate and conservative, and his testimony concerning the circumstances of his own discharge by Jackson (which Jackson described as a pretext he had devised in compliance with Cowan's command to get rid of all union supporters) contradicted Jackson on some details, thereby detracting in part from the strength of his own case. Dunn is a former fishing captain and Respondent's counsel interrogated him about matters utterly unrelated to his own case, making him their own witness for that purpose and indicating their implicit confidence in his objectivity. in addition, Cowan, overplay- ing his hand in a manner which characterized much of his testimony, testified that he had never made an antiracial appeal during his counterpropaganda and that such an appeal came only from the SIU, which he said had denounced NMU for admitting Negroes into its ranks, only to be confronted with a leaflet issued by him which contained a cartoon embodying the very kind of appeal which Dunn said Cowan had made to him. The appeal itself is not found to have violated the Act: Cowan's denial that he made it, falsely as the record compels me to find, undermines his credibility concerning the whole conversation. Also considered is Cowan's testimony as a whole. As later appears and as stated in the concluding findings, it was beset with many infirmities which gravely undermined his credibility. Dunn is credited. b. The discharge of James C. Gautreau What appears up to now is that Cowan's admittedly vigorous countercampaign against the Union was one in which, contrary to what he asserted at the outset of his testimony, he took the initiative with the employees, and that it was not confined to argument, but included a conscious effort to ascertain from them the identities of persons supporting the Union. Testimony concerning statements made by Cowan after the election implicate him in outright expressions of intention to be rid of the supporters of the Union, and as stated, the bulk of the allegedly discriminatory discharges occurred after that. The earliest, that of Gautreau, occurred before the election. We turn to it now. Gautreau was an electrician. Cowan recruited him from an electrical company in New Orleans in March 1955 under a promise, as Cowan admitted, of stable tenure. He began as relief electrician on various vessels and was assigned as a permanent one on the ST-3. There he signed a Union pledge card and signed up other members of the crew. As found, several days before Friday, April 6, 1956, Gautreau stopped off at Cowan's office in Grand Isle and, at that time, Cowan questioned him about whether certain persons had signed union pledge cards, and received an affirmative answer 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Gautreau as to whether he too had signed one At the outset of his visit, Gautreau, as he testified, asked Cowan for a transfer to another shift, which would give him the weekends off Cowan said he would see what he could do, and then initiated the conversation about the Union, previously referred to. Further according to Gautreau, after he acknowledged he had signed a union card, Cowan asked what benefits he hoped to obtain from it, and Gautreau replied that the hospitalization plan alone made it worthwhile for a family man like himself. Further according to Gautreau, the day before he was to return to work, he inquired of Cowan concerning his request for a transfer and was told by Cowan that he had not yet looked into the matter. On the afternoon of Friday, April 6, while Gautreau was at the heliport waiting to be transported back to his vessel, Cowan called him into the office and told him he had been replaced on ST-3 because he was not wanted there by Leo Turner, its supervisor, or by Pete Condra, the "tool pusher" for Humble Oil Company on the rig serviced by that vessel.5 Gautreau asked whether Cowan had any other work for him and Cowan replied that he did not at that time.6 Gautreau was transported to the ST-3 a few days later in order to pick up his tools. According to his testimony, Tool Pusher Condra and Supervisor Turner told him they had not complained about his work. Within that month, the Union filed its first charge with the Board, naming James C. Gautreau as an alleged discnmmatee. On May 14, Cowan sent Gautreau an offer of reinstatement. Gautreau reported to Cowan pursuant thereto, and after a discussion concerning the Union and a promise of permanency of tenure "if [he] would do the work [he] had done previously," 7 he was put to work on another vessel at the same position as before. This lasted until June 10, 1956, when Gautreau, on Grand Isle, missed the helicopter which was to take him to work that day. The General Counsel, while claming that the second discharge had the same motivation as the first, does not allege the second as a separate unfair labor practice but as proof that the reinstatement offered Gautreau in May had been in bad faith and, hence that the remedy for the original discharge should be continuous . We defer this until we treat the original discharge Cowan, as previously stated, testified that when Gautreau left the vessel on his days off, he had already been discharged by Supervisor Turner for incompetence and that Gautreau came by the office not that day, but the succeeding one, only for the purpose of being transported back to the vessel to pick up his tools and equip- ment. Before the supervisory system was installed (supra, footnote 5), Turner was Gautreau's relief on the ST-3 and each worked under Tool Pusher Condra During that period, Gautreau had done a wire-switching job, which Turner corrected Later, under the new system, Turner was made supervisor of the ST-3, and Gautreau worked under Turner for 2 days before his first discharge Turner testified the wire-switching incident occurred when he was supervisor and that he fired Gautreau "mainly" be- cause of this. Condra, on the other hand, testified the discharge was "for more or less lax work and also I believe he took too long and failed to report back for duty T believe it all tied in together." Turner, in further support of his testimony that the discharge occurred at the time of the wire-switching job, averred that he told Gautreau about it then and there, told him he was "finished," and to get his money e The "tool pusher" was the representative of the drilling company on the rig , and was its master. Originally, the tool pusher was in charge not only of the drilling crew but also of Respondent's crew on the vessel About this time, Respondent introduced the system of putting its own supervisor on each boat From then on the supervisor had charge of the crew of the ST. He could discharge a crew member by sending him into the office at Grand Isle, but Cowan, of course, had the power to determine whether the dis- charge stood or should be canceled altogether , or whether the men thus sent in should be transferred elsewhere Under the supervisory system , the "tool pusher" no longer gave the crew of the vessel direct orders but made known his wishes to the supervisor , including his preferences concerning the personnel If dissatisfied with the supervisor , the "tool pusher" could complain to Cowan. According to Cowan's testimony, a complaint from a "tool pusher" was , in effect, one from the Respondent 's "customer," and, in deference to the economic realities of that relationship , he would normally do his utmost to accom- modate the tool pusher , if only to remove the supervisor from that rig and transfer him to another 9 Respondent makes no claim that lack of work was a factor in Gautreau 's termination Respondent , in another context, introduced a summary showing terminations and hirings during each of the half-months for the typical year ending July 31, 1956 . During the first half of April 1956, it hired 10 new people. r Cowan testified that he merely reminded Gautreau that when he had hired him, he "promised him a certain degree of permanency " TIDELANDS MARINE SERVICE, INC. 297 Until this stage of the case, the record made it rather clear that when a man was sent in to the island that way, he was either given a termination slip or one was sent directly to the office. Turner was asked whether he had handed Gautreau such a slip, and it was at once apparent from that witness' flushed demeanor that from there on he was improvising, and rather unpersuasively. He testified that a termination slip was handed the discharged employee only when it was handy, but "sometimes we were pretty busy." Cowan, under the exception accorded him from the "rule" (supra, footnote 1), was in the hearing room when Turner gave this testimony, and im- mediately followed Turner on the stand. (He was resuming his testimony which had to be interrupted from time to time by "short witnesses," of which Turner was one.) Until Turner's testimony, as already stated, it seemed pretty clear that all discharges from the vessel are accompanied by a termination slip either handed to the employee or at once turned in to the office so that employee's time could be computed and he be paid off. When Cowan resumed the stand, he represented the termination slip to be only a sometime thing, which is dispensed with on occasions. However, the example he gave is where an employee has overstayed his leave away from the ship. In Gautreau's case the termination slip was prepared in the office and is dated April 10, 6 days after April 4, which that paper records as the last day he worked, and therefore the day he was allegedly discharged. No other termination shows such a spread. If he had been discharged on his last working day of April 4, it is a fair in- ference that his time would already have been made out well before April 10.8 Reverting to Turner, after the matter of the termination slip was discussed, he was far from being firm about his having talked to Gautreau about the wiring job the day he assertedly discharged him. He testified that Gautreau was no longer on the ship when he tried to run the machinery on which the poor job had been done, and that though he "found his work unsatisfactory enough to discharge him, [he] didn't bring him over to the machine to look at and explain it." He later testified that when Gautreau came back several days later to get his tools, before Gautreau spoke to him, he "told [Gautreau] that the compressor wouldn't run, and as far as you and me is concerned that is the end of it." An important element in the resolution of the matter is how many departures from normal a given version can absorb and remain reasonably credible. Apart from the absence of the usual termination slip, it would seem "natural," 9 if a poor job is both the precipitating and the main reason a man is fired, for him to be at least shown the job and explained why it was poor. It would also seem normal for an employee who knows he was fired to pick up his tools and equipment, and report to the office for the purpose of being paid off. Then, a supervisor who has already told the employee the reason for his discharge at the time it happened would normally find it unnecessary, if all the employee is doing is picking up his tools, to volunteer to state again a reason already given at the time of discharge. This last would itself indicate that Gautreau had only learned of the discharge and was discussing it with Turner for the first time the day he came back to the boat A fair appraisal requires noting that in contrast with Respondent's version, no aspect of Gautreau's version raises a question of why it should have happened that way. When a man is not shown a job claimed to be bad, does not pick up his tools on the boat, is given no termination slip when be leaves the boat, has not been paid off the day it is claimed he was discharged, and when all of this occurs on a day when the employee would normally have left the vessel because of his usual days off, the over- whelming probability is that nothing out of the ordinary happened. I find that nothing did: there was no wire-switching incident on the day in question, Gautreau had not been told he was discharged, and he left the boat only because he was starting on his scheduled days off. It has previously been found that on arriving at Grand Isle that day, Gautreau went to Cowan's office and asked for a change in shifts, which Cowan said he would look into The decision to discharge Gautreau therefore happened between that visit and April 6, when Gautreau attempted to return to work. It has been found there was no wire-switching incident on Gautreau's last day of work, but there had been one before Turner was made a supervisor. It therefore appears that an earlier incident was resurrected, which, at the time, had not been deemed important enough by Too] Pusher Condra, then Gautreau's supervisor (supra, footnote 5), for any discipline That Cowan would not have thought this a basis for discharge even if it happened on Gautreau's last day of work is a fair inference from the opinion he had of Gautreau's 8 The termination slip for Gautreau's second discharge is dated the day of the discharge This is the normal situation 9E. Anthony 4 Sons, Inc v. N L R.B , 163 F 2d 22 , 27 (C A D C ), cert denied 332 U S. 773 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD competence when he hired him, and Gautreau's record thereafter. This was no casual selection. Gautreau was an electrician with 14 years' prior experience with power companies. Cowan recruited him from an electrical concern and, as an inducement, to use Cowan's own language, he "promised him a certain degree of permanency." Gautreau had already put in over a full year with Respondent, without complaint so far as appears, and with a promotion from relief to regular electrician. This type of steadiness is a unique and valued attribute in a force which, Cowan testified, was plagued with constant turnover due to its instability and the difficulty of maintaining contact with the men. Because of this last, Gautreau had still another desirable at- tribute in the fact that he resided in Grand Isle, having moved there permanently with his family when Cowan hired him. In view of all of these factors, it would seem fair to expect that even had Supervisor Turner sent Gautreau in on the day he left the vessel, Cowan under his policy of transferring, instead of discharging, employees, as long as they are not unfit to work for Respondent, would have transferred Gautreau. Cowan could not have thought Gautreau unfit as an electrician as a result of that incident, for if he did, he would hardly have taken him back in the same capacity in May. Cowan testified he did it out of pity because Gautreau had a retarded child. We also have a suggestion that one motivation was to stop the running of the backpay liability. Even if either or both motivations had been present, they could not have been sufficient to induce Cowan to entrust the electrical work on a vessel to one whom he thought incompetent. If, as indicated, Cowan would not normally have terminated Gautreau even if he had done an inept wire-switching job on the day he left the vessel, he would have been even less likely to do so in consequence of an earlier incident-not unless some reason had arisen for wanting to be rid of Gautreau apart from the matter of com- petence. In determining that reason, we can hardly ignore Cowan's "manifest interest and purpose" in insuring the defeat of the Union, for it is the key to the "motive" which, the Supreme Court has said, "is a persuasive interpreter of equivocal con- duct." 10 Cowan, in the course of Gautreau's visit on his last day of work, questioned him about the union affiliation of others and learned from Gautreau that he too had signed up with the Union. Additionally, Gautreau indicated to Cowan his faith in what he thought the Union had to offer. In the ensuing sections of this report, we note that Cowan expressed retaliatory intentions and resorted to retaliatory measures against supporters of the Union. The preponderance of the evidence supports the conclusion that Cowan resurrected an earlier incident, not then thought to be a basis of discharge or discipline, in order to eliminate Gautreau after the latter confirmed that he had signed up with the Union and expressed his faith in it. So to say, however, is not to say that I agree with the General Counsel's contention that Cowan's reinstatement of Gautreau was in ",bad faith" because he discharged him again on June 12. Whether, even if we were to assume that the June 12 discharge was discriminatory, it would establish the "bad faith" of the earlier reinstatement, we need not decide, for I am not persuaded that it was discriminatory. Gautreau was dis- charged in June because he missed the helicopter on his return to work after his days off. Gautreau claimed the helicopter left too early, which is hardly likely. I need not speculate on whether his lateness was an offense which is normally condoned by Respondent, since in this instance I would credit Cowan's testimony that Gautreau countered the accusation that he was late with uncomplimentary language impugning Cowan's capacities and challenging his authority. The excitable Gautreau may have thought he had provocation for this in the light of the earlier discharge, but as ob- served in the later case of Phillip Wagner, an employee who has been reinstated after a discriminatory discharge is not by reason of this exempted from the requirement of performing his job and deferring to the authority of management in respect to operational matters. I accordingly find that the discrimination against Gautreau on April 6 terminated with the offer of reinstatement sent him on May 14. B. The conduct after the election 1. Respondent's reaction to the results of the election and Cowan's expression of retaliatory intent toward the supporters of the Union As previously indicated, the election held the latter part of April found the SIU and the no-union tally, which Cowan identified with the Company, 3 votes apart- 53 to 50. The SIU and the Company filed challenges to the election, each of which included as a ground that the Board agent had failed to seal the ballot box. It was assumed from the start that there would be another election, whether as a runoff or an entirely new one. On October 1, 1956, the Board set aside the election on the 10 Texas & N 0 RR Co v Railway Clerks, 281 U.S. 548, 559. TIDELANDS MARINE SERVICE, INC. 299 ground above stated, and ordered a new one." As previously mentioned, the election so ordered was not held because the unresolved charges filed by SIU in this proceeding had the result, under standard Board procedure, of suspending the election. However, the period following the election and preceding the Board's Order of October 1 saw an intense propagandizing of the employees by SIU and the Company. It also saw Cowan engaged in conversations in which, if the witnesses implicating him are to be believed, he spoke with grim resentment and retaliatory intent of the persons who supported the SIU. Two of the witnesses thus implicating him were O. L. Reams and Herman Jackson, whom Cowan, after the election, made super- visors under the newly inaugurated system previously described (supra, footnote 5). The other two were engineman Dunn, a complainant whose preelection conversation with Cowan has been related, and Benny Raynor, an engineman , who was not a com- plainant. Supervisors Jackson and Reams testified to express instructions from Cowan to get rid of all supporters of the Union, and to find pretexts to discharge persons specifically named by him. They attributed the discharges of employees on their respective vessels to these instructions. It can be said at once that despite the favor- able impressions Reams and Jackson originally created, their credibility was gravely undermined by later developments. Reams, apart from a conviction for a felony 10 years earlier, would seem to have made the second two of the three discharges on his ship under circumstances indicative of collusion, which calls for the dismissal of those cases on that ground alone. Jackson, in the pretrial stage, had been interviewed by a Board field examiner. This was in October 1956, during a period in which Jackson, thinking he had been discriminatorily terminated, had filed charges with the Board. Jackson was reemployed by Respondent later that month. In January or February 1957, while still working for Respondent, he was interviewed twice con- cerning this case by Respondent's counsel. On cross-examination, he was manifestly evasive about the details of these interviews, and testified concerning them in an incredible manner. Also, after denying his signature appearing on certain writings, I asked him to write several samples of his signature for comparison purposes. He patently simulated the character of his handwriting in order to avoid resemblance to the ones he repudiated. While as later indicated, I did not deem the superior who had chosen and worked with them as too shining a contrast to them in candor, the result, so far as Reams and Jackson are concerned, is that I attach no weight to con- troverted testimony on their part unless it has strongest corroboration. As later developed, the consequence of this is that all the discrimination cases founded on Reams' testimony and another, which is founded largely on Jackson's, are recom- mended for dismissal. In the next section, we shall discuss the testimony of these witnesses concerning what they did in execution of Cowan's instructions. We discuss here the alleged instructions themselves. Jackson testified that about the time he was made a supervisor, Cowan said he had not screened applicants for their union sympathies, and that he wanted to rectify this; that he instructed him in his first tours as a supervisor to divide his time among three vessels, to teach that crew, and also, when on the vessels, to find a way to be rid of known union supporters whom Cowan specifically named. Reams testified to similar instructions concerning the members of the crew on his own vessel, the ST-2. He testified Cowan specifically named two people to be fired an some pretext which Reams was to devise. Reams testified that Cowan prefaced his instructions with the statement that "there were 53 men in the Gulf that had to go They voted for the union and they couldn't work for the company." The number 53 derives its significance 'from the fact that it corresponds to the tally of STU in the election Cowan repeatedly denied making this statement and each time he did he volunteered the argument that he could not have made it, for if that had been his sentiment, the number would have been 60, the combined total polled by SIU and NMU. Yet the temperate Dunn, whose credibility has previously been indicated, and Benny Raynor attributed to Cowan the reference to the same number in separate statements to each. Raynor, in addition to being a noncomplainant, continued on friendly terms with Cowan. He stayed on with Respondent until it ceased operations on the gulf on April 13, 1957, when Humble Oil took over Re- spondent's servicing operations. During the hearing, he was employed by Humble, having been recommended for the position by Cowan, and he remained there until his tragic death on duty, which occurred shortly after his testimony. Raynor cor- roborated Jackson concerning the circumstances of two of the discharges effectuated by Jackson which will be later detailed. He also testified that not long after the election, when he called at the office for his check, Cowan said, "There's fifty-three liars out there in the Gulf working for me," that "he knew who they were, and that they were going to have to leave." 21 This is reported in Tidelands Marine Services, Inc., 116 NLRB 1222 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dunn testified to a conversation with Cowan shortly after the election. This was just before going on his days off preceding the shift in which he was discharged by Jackson. Dunn, who had suffered a heart attack about a year earlier, testified he asked Cowan for permission, when the hot weather came, to take some time off, and he offered to break in any replacement on his job on one of the engines. Dunn testified that Cowan replied, "There are fifty-three of you so-and-so fellows that are not good company men, and I will get my revenge and you can go right now if you want to." Cowan's constant repetition that if he had uttered such a sentiment he would have used the number 60 had a quality of protesting too much. From the time SIU en- tered the scene, the real threat to the success of Cowan's efforts to prevent collective bargaining in his operation was SIU, and he directed his propaganda only against it. The high vote of SIU, in excess of that of the "neither" vote, was a manifest frustra- tion of his efforts against his only target and real rival. In a leaflet which he issued immediately after the election, he stated a "run off election is likely." Under established Board doctrine which confines such election to the two highest choices on the original vote,12 ,the sole rivalry against him of the SIU, previously a fact, would now also be official. The realties would accordingly indicate that the bitter- ness reflected in the disputed statement would be toward those who supported the lone target of his attack. Contrary to Cowan's argumentative assertion, those en- compassed in his denunciatory reference of "liars" and "so-and-so's" would be the 53 who had voted for SIU over his impassioned importunities to the employees that they vote against it. Cowan frequently volunteered the assertion in other contexts, that nearly everyone came to him with constant assurances that they were on his side in the fray and would repudiate the Union-a protestation which in the face of the contrary demonstration in the election would normally evoke the reference of "liar." The statements can hardly be appraised in isolation, nor can we ignore the back- ground of the conscious effort he made before the election to identify the likely supporters of the Union, through interrogation concerning specific names and a list of the kind shown Murry, as related in section A 2, above. Raynor, too, testified that in his reference to the "53 liars," Cowan "said that he had a list of those that were for him and those that were for the union." 13 The factors that would drive Cowan to intense measures to defeat the Union were not theoretical. The outcome of the campaign, as he saw it, was fraught with direct consequences to him. He testified the Union's propaganda promise of higher wages was geared to the argument that it could do so by having Humble do away with the "middleman" in the person of Respondent. Quite apart from this, Cowan testified Respondent's pay scale to the men was circumscribed by the compensation which Respondent received from Humble, so that a higher wage as promised by the Union could not be paid them and Respondent continue to operate. These factors account for Cowan's admittedly telling the men of the common economic stake they and he had in the outcome of the election. The disappointment on the dual score, first, of the men's not being influenced by what he regarded as a convincing reason for voting against the Union, and, secondly, of their going back on the assurances they had given him, makes understandable the bitterness inherent in the statement attributed to him. The "screening" intention attributed to him by Jackson is corroborated by the testimony of Percy Kennedy concerning his experience on being hired by Cowan after the election. Kennedy testified Cowan told him and the other applicant the 11 Section 102.62 of Board's Rules and Regulations, Series 6, as amended ; Cone Brothers Contracting Company, 114 NLRB 303, 306, enfd as modified 235 F 2d 37, 39 (CA, 5), cert denied 352 U S. 916. 13 Further indication of Cowan's emotional stake In the outcome is the extent to which he carried on his campaign, right down to the very time of the election In handing George Jacobus, of the ST-4, his ballot (which the Board office had sent to Jacobus in care of Respondent because he was due to be on his days off at the time of the balloting) Cowan said to him and another employee that he hoped they would vote for the Company "because he was afraid that if we didn't neither of us would be In a job " He addition- ally questioned Jacobus about the union attitude and activities of his fellow members on the ST-4, namely, Jerome Gaspard, John Murry, and Chester Holtz. During the election, while on the ST-4, he told Murry and another employee not to "forget him when we go in there to vote" And on the ST-6, he approached Charles Dunn while he was on the voting line and winkingly told him he hoped he would vote "right," which in the context of his own campaign left no doubt as to what way he meant TIDELANDS MARINE SERVICE, INC. 301 SIU was trying to organize the men and asked them how they stood. Cowan testified he recalled talking to the two men, and trying "to explain the issues of the campaign to them, . what the Union was offering and . the benefits that the Company already had," and that they told him "it didn't make any difference to them one way or the other." The last assurance would normally be in response to an inquiry of whether it did make a difference to them. Additionally, his own statement that he referred to "the Union" would confirm that Cowan was not spread- ing his fire between SIU and NMU, but concentrating on the real rival, the SIU. We have previously discussed Cowan's argumentative assertion in denial of the "53 liars." A similar argumentative assertion made by Cowan was in denying that he interrogated persons like Murry and Kennedy, who were licensed seamen.14 Cowan testified that since all maritime companies are generally under contract with unions, and A.B., who, like Murry and Kennedy, had been engaged in seafaring, would be a member of a maritime union, and that it was thus a foregone con- clusion as to how the A.B. stood about unions. But this would imply that Cowan also thought it superfluous to initiate discussions of the issues with A B.'s, an im- plication contrary to fact, since Cowan did propagandize these persons, as he admitted. Cowan testified he tried "to persuade [Murry] against voting for collective bargaining in the election," and had "tried to explain the issues of the campaign to [Kennedy and his fellow applicant] " If A.B.'s, no less than other crew members, could be the objects of Cowan's efforts to persuade, there would seem to be no less motive to inquire about the success of his efforts in propagandizing them. Insofar as these argumentative denials imply facts which the record plainly refutes, they had a dis- ingenuous ring which colored much of that witness' testimony. Considering the external context, the probabilities, and the demeanor and general character of the testimonies of Dunn and Raynor concerning Cowan's expression of resentment and retaliatory intent toward the 53 who voted for the Union, as against the character of Cowan's denials and his testimony as a whole, Dunn and Raynor are credited. So too is Kennedy's testimony, with its substantial corroboration on the part of Cowan himself concerning the interrogation of Kennedy and the other applicant at the time they were hired. The statements attributed to Cowan by Reams and Jackson are thus in line with statements made to credited witnesses. They, along with the factors here alluded to, indicate Cowan's resentment toward the supporters of the Union and intention to weed them out. They thus corroborated the testimony of Reams and Jackson concerning what Cowan said to them regarding the matter However, corroboration of Reams and Jackson of an even more telling character came from Cowan The strategem of getting rid of an employee on a pretext which would hide the real reason was one which he admitted imparting to them. He differed from them only concerning the reason which he assertedly wanted concealed by the proposed strategem They testified the reason in question was the employees' prominence in the Union He testified it was some reason too "delicate" to be openly relied upon as a basis for eliminating the employee, lest the "customer," i e, Humble Oil, learn that Respondent had an employee with these offense attributes, and therefore, though these attributes motivated the desire to eliminate them, some "way" should be found to be rid of them, without openly relying upon the true motivation This will more fully appear in the discussion of the cases of Stewart, Wagner, and De Lapouyade. The testimony of Reams and Jackson is thus supported by the potent combination of Cowan's admitted purpose and interest to defeat the Union, the credited testimonies of Dunn and Raynor that Cowan expressed to them the same deep resentment of the 53 who voted for SIU, the screening of Kennedy and his fellow applicant con- cerning his union sentiments, and Cowan's admission that he suggested to supervisors the stratagem of a "way" to eliminate an employee without disclosing the true reason which furnished the motivation for doing so. On the whole record, it is difficult to escape the compelling force of the evidence which corroborates the testimony concerning the instructions Cowan gave to Reams and Jackson It is found that Cowan did express to Reams and Jackson a desire to be rid of the supporters of the Union and that he wanted them +o find a way to do so. The testimony of Jackson 9 nd Reams as to what they purportedly did in com- nliance with Cowan's statements and instructions to Them calls for separate appraisal in the consideration of the alleged discriminatory discharges, to which we turn. 14Evpn though the ST's were quartered at the rig and did not sail , the Coast Guard regulations required a licensed seaman to be constantly stationed at the vessel 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharges on the ST-6, Jackson's vessel a. The instructions concerning specifically named supporters on the "ST-6" Jackson testified that with specific reference to ST-6, which was strongly pro- union, Cowan told him to "get shed" of everyone on it who supported the Union, and "to find some reason to get them ... off the job," that Cowan named Charles G. Dunn, John P. Murphy, Virgil Schrage, and Curtis Stewart. He further testified that pursuant thereto he effectuated the discharges of Dunn, Murphy, and Schrage and that his relief effectuated the discharge of Curtis Stewart. b. The discharges of Dunn and Murphy On the morning of May 17, 1956, Jackson discharged four enginemen on the ST-6. These were Dunn and Murphy, who are complainants, and John R. Saucier and one F. Pearson, who are not. The discharges grew out of an order given to these four men by Jackson to paint the Meco machine (used for distilling sea into drinking water) and the shaft alley, in which it is located. Jackson testified that Chris Cherry, the tool pusher on the rig, instructed him to have the job done, and he passed the order on to the men, and that they complained that because of the poor ventilation, they needed masks and respirators for protection against the fumes from the spray guns; but after again talking to Cherry he issued an ultimatum to the four men to do the paint job, masks or no. The next morning, the job not being finished, he discharged all four-Dunn, Pearson, and Saucier, for "absolutely refusing to do work as instructed," and Murphy, for "neglecting duties by remaining in mess hall." Jackson testified Tool Pusher Cherry had called his attention to Murphy's then being in the mess hall and suggested that this was a good pretext on which to satisfy Cowan's desire to get rid of Murphy as well. Jackson further testified that when he came to the island a few days later, Cowan told him "he wouldn't take anything for me getting shut of, getting rid of Dunn and Murphy, and that he would let Pearson and Saucier have a day or two off and put them back, because he felt that they didn't have anything to do with the union affairs."' The witnesses concerning the incident, besides Jackson, were Dunn and Saucier, two of the four enginemen in question, engineman Raynor, who, at Jackson's re- quest, wrote out the discharge slips for him, Tool Pusher Cherry, and Captain Cowan. There is agreement that all four were sent in, and that the discharges of Saucier and Pearson were countermanded while those of Dunn and Murphy were not. Different versions were given as to just what led up to it. Dunn recalled receiving no specific orders in respect to painting. He testified that he painted the Meco machine as a matter of routine and, so far as he knew, had done everything he was required to do, and that the discharge came to him entirely from the blue. He also exonerated Tool Pusher Cherry, who he testified expressed deep regret that the men should have been sent in. Cherry credibly testified he had nothing to do with the incident. Saucier testified the argument arose out of Jackson's insistence that the job should be done with a spray gun, with which Saucier, at least, was unfamiliar, and in the use of which Jackson refused to give instructions. Raynor testified that while he was filling out the termina- tion slips at Jackson's request, Saucier and Pearson came to Jackson's room and in the ensuing argument over Jackson's accusation that they had not followed orders, complained against having been required to use spray guns without a mask. Whatever the details, the upshot was clear. Jackson's conduct was arbitrary and unjustified: a large part of the work had already been done when Jackson discharged the four men, so there was no "refusal" in fact; and secondly, though the job was later completed with the use of respirators, as Cowan testified, they had always been available on the boat or Jackson could have sent in for them. Cowan testified he retained Saucier and Pearson because after receiving their version of the occurrence, he concluded Jackson had use "bad judgment" and he so told Jackson a few days later on his arrival to the island. Counsel for Respondent admits that "there was not just cause for firing any of the four." Since the discharges involved the identical incident, the question arises as to why there was disparate treatment between the two pairs of employees. Cowan said it was because Saucier and Pearson stayed on at the office to give him their versions, while Dunn and Murphy went on home. But since all four were guilty or innocent together, his conclusion that Jackson had used "bad judgment" as to Pearson and Saucier must necessarily have been the same in respect to Dunn and Murphy, assuming the judgment in question related to the manner of performing their work. Yet at the same time that he told Saucier and Pearson he was trans- TIDELANDS MARINE SERVICE, INC. 303 ferring them to another vessel, he sent Dunn and Murphy their termination slips for their signatures. These slips embodied the reasons given by Jackson which, from the account he received from Saucier and Pearson, Cowan already knew to be untrue. Cowan testified that he took the failure of Murphy and Dunn to come by and see him as ",admission of guilt." That could hardly be so in the light of what he already learned from Saucier and Pearson and also of the message Dunn sent Cowan through his own emissary, Gilland. Gilland presented the blue termina- tion slip to Dunn for signature, and told him he had to sign it in order to be paid off. Dunn, according to his undenied testimony, refused to sign it because the reason on it was untrue.15 Cowan admitted Gilland told him Dunn would not sign the slip, and the reasonable inference, Cowan's testimony to the contrary not- withstanding, is that Gilland, as part of his mission, reported Dunn's reason for refusing to sign. And this is quite apart from the fact that Respondent in any event is legally chargeable with knowledge of what Dunn said to Cowan's emis- sary during the transaction with which he entrusted him.16 That Cowan must have come to the conclusion that Dunn, at least, was not "guilty" is manifest from what he testified he told Jackson-"that he had no business of firing Charlie Dunn." Cowan explained that he meant that Dunn had already given him a week's notice that he was going to quit. As it happens, this last is not the fact, since, as credibly related by Dunn, he had merely told Cowan that when hot weather came he would take some time off. But even if Dunn had already given a week's notice, Cowan could hardly have told Jackson "he had no business of firing Charlie Dunn" even before the week was up, if he believed Dunn guilty of the insubordination charged to him by Jackson in the termination slip. There thus seems to be no comprehensible basis for the distinction made be- tween Saucier and Pearson on the one hand, and Dunn and Murphy on the other, unless it be for some cause other than the merits of the incident. Cowan's in- consistency in regarding Dunn as having "admitted . . . guilt" at the same time that he explicity told Jackson he was in the wrong for having discharged him, evoked questions from the Trial Examiner looking for clarification. The Trial Examiner asked Cowan whether if Dunn had signed the blue termination slip, which contained Jackson's reason for discharging Dunn, he would not have re- garded this as an admission of guilt. Cowan at first testified that he would not, because the signature on the blue slip would be "simply an acknowledgment of the receipt of the money." After repeating, "I wouldn't have taken it as an admis- sion of guilt," he finally testified: The WITNESS: I believe I would if I had to sign one of these myself because it says "received payment" down here, and if I had to sign one myself and it said "refused to do as instructed" that I would be admitting the fact to the person that fired me that I had refused to do the work as instructed by that person. TRIAL. ExAMINER: And Mr. Gilland told you that Dunn had refused to sign that? The WITNESS: That's right. [Emphasis supplied.] It would seem to me a fair inference from the above that Dunn was doomed whichever course he followed: he was guilty if he refused to sign the slip, and he would have been admitting guilt if he had signed it, and all of this in the face of the fact that Cowan had already been informed of what happened and on the basis of it had concluded, as Cowan testified he told Jackson, that Jackson "had no business of firing Dunn." The conclusion would appear rather inescapable that a visit by Dunn to the office would have been futile, and that his failure to come by the office played no part in Cowan's decision Cowan unwittingly revealed that he knew there was a plan to be rid of Dunn before it happened, but he attributed it to Jackson. In his account of what he told Jackson, he added, "At least he could have utilized what he did know without short-handing himself so much, knowing all the time that he wanted to get rid of Charlie Dunn, there wasn't any use to run him off just through hot-headedness or whatever mis- judgment or miscalculation." This is one of several instances in which Cowan admitted a preconceived intention to get rid of a complainant, only for a different reason from the man's support of the Union. In this case, according to Cowan and no one else, it was because Jackson 16 Murphy also returned the slip unsigned. He did not testify to Cowan testified Gilland reported back that Dunn said he wanted to see Cowan The logic of the Incident would make clear that Gilland would only have reported what was implicit in the very refusal to sign the slip-that Dunn said it stated an untrue reason. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resented Dunn who, again according to Cowan, thought his experience as a fishing captain qualified him to have Jackson's job and even Cowan's. In the case of Stewart, also of ST-6, and of De Lapouyade of the ST-2, later discussed, it was assertedly because Cowan learned for the first time of the prior conviction of Stewart for assault and of De Lapouyade for narcotics addiction, as a result of which Cowan admittedly told their respective supervisors to find ways to get rid of them. The same char- acteristic marks the discharge of Wagner on the ST-1, where the underlying reason, which was admittedly sought to be masked (by the supervisor, according to Cowan) was asserted to be the man's untidiness and body odor. Had Jackson's discharge of the four enginemen been entirely self-motivated, it is difficult to believe that Cowan would have deemed him fit to continue as supervisor. The utter callousness of Jackson's action, without provocation for it, would have demonstrated such hopeless dullness of sensibility in dealing with people that it is fair to say that Cowan would have normally relieved him of further supervisory duties however highly he respected Jackson's know-how as an engineman. Cowan not only retained Jackson as a supervisor but, even under his own version, he limited his criticism to Jackson's timing and haste Cowan, in describing Jackson as "know- ing all the time that he wanted to get rid of Charlie Dunn" betrayed that he knew, and apparently sympathized, with a preconceived plan, albeit he attributed it to Jack- son, to be rid of Dunn. This alone would make reasonably comprehensible Cowan's tolerance of what would otherwise have been a demonstration of hopeless supervisory incompetence on Jackson's part. The description of Jackson's demeanor during the firing incident, coming from two disparate sources, tends to show a man acting under a sense of compulsion without any conviction in the rightness of what he was doing. Raynor testified that when Jackson asked him to fill out the termination slips, he said "he had orders to fire several men working on the ST-6," and when Raynor remon- strated that he could not do so without a reason, Jackson responded "it was his job to find a reason," after which he gave him the grounds previously quoted. Saucier testified that when he came to Jackson's room to argue about his discharge, "Jackson wouldn't give me no answer. In fact, he wouldn't look up at me He just stuck his head down. . Something was wrong with him. He couldn't raise his head and look me square in the eye when I talked to him." [Emphasis supplied ] Respondent suggests that Jackson's discharge of Saucier and Pearson at the same time that he discharged Dunn and Murphy indicates that support of the Union was not the cause of Jackson's discharging these four. Even if that premise was sound, it still fails to account for the disparateness of the treatment meted out by Cowan to the two pairs of employees for the identical transaction, for which Cowan, as the latter asserted, told Jackson he had been in the wrong. Concerning Saucier and Pearson, Cowan gave further testimony which casts grave doubt upon whether their jobs were saved only by reason of the version they gave of how they were fired. Cowan was asked whether he derived any impression concerning whether Saucier and Pearson were for or against the SIU. He replied, "Their story was that they were against the S.1 U " This, on its face, tends to corroborate Jackson's testimony that Cowan gave as his reason for the distinction that "he felt that they didn't have anything to do with the union affairs." In a palpable effort at a quick retrieve, Cowan added, "We might say that 132 of them told me the same story." This last, of course, makes understandable why Cowan would refer to the 53 who voted for STU as "liars " However, it would not seem to me to neutralize the significance of Cowan's use of the word "story" in describing his understanding of Saucier's and Pearson's attitude to- wards the Union. There is no indication of any other incident between Cowan and these two relating to the subject of their union sentiments which would account for Cowan's introduction of the term "story," and its use in the context of his testimony concerning their version of a crucial incident on the ST-6 would persuasively indi- cate that the "story" he referred to came in the course of their conversation with him concerning the discharge. Since on the merits there was nothing to differentiate the cases of Saucier and Pearson from that of Dunn at least, the disparateness of treatment on Cowan's part is comprehensible on the basis of the only factor which did differentiate the two sets of dischargees-Saucier's and Pearson's "story" that "they were against the SIU" as against none such for Dunn and Murphy. Coming as it does out of the mouth of Cowan himself, it would seem to be telling corroboration of Jackson's testimony that Cowan's explanation for the distinction was that "he felt that [Saucier and Pear- son] didn't have anything to do with the union affairs," an explanation which was preceded by his statement that "he wouldn't take anything for [Jackson's] getting rid of Dunn and Murphy." The latter two were variously identified as persons who made no secret of their support of the Union, although they were not solicitors for it. Dunn's credited testimony concerning Cowan's "53 so-and-so fellows" statement to him is direct evidence of Cowan's knowledge and resentment of Dunn as a union sup- TIDELANDS MARINE SERVICE, INC. 305 porter. Murphy was among the complainants who did not testify, and we do not have his version of the discharge. As more fully appears in the case of Curtis Stewart, however, the record convincingly indicates that being in the mess hall is not deemed the kind of offense for which a person is terminated-not without some warn- ing at least. Raynor testified this was the common experience and that he told that to Jackson when the latter asked Raynor to write this on Murphy's termination slip, after Jackson explained that "it was his job to find a reason" for the termination. The record, indeed Cowan's own admissions, make clear that he knew all the time what Respondent now admits in its brief-that "there was not just cause for firing any of the four." The record thus preponderates heavily in favor of the conclusion that the distinction lay in Saucier's and Pearson's being "against," as opposed to Dunn and Murphy's being for, SIU. This inference would follow quite apart from Jack- son's testimony that that was the reason Cowan gave in his explanation to him, but in the light of the entire record and the heavy corroboration of Jackson's version in Cowan's own admissions, one can hardly avoid crediting Jackson on this score. The disparate treatment of Dunn and Murphy having an antiunion motivation, it was discriminatory in violation of Section 8(a) (3) of the Act. c. The alleged discriminatory discharge of Virgil Schrage Virgil (Rocky) Schrage was one of four A.B.'s on the ST-6. Jackson testified that Schrage was among those specifically named by Cowan for discharge because he was a union supporter. Jackson testified that at the shift in which Schrage was dis- charged he had given orders to the A.B.'s to paint the galley and that Schrage remonstrated with him that this was not an A.B.'s work. At this point, according to Jackson, Otis Plummer, a tool pusher on the rig for one of the drilling companies, suggested that this would be a good occasion to discharge Schrage, as Cowan wished; and so, according to Jackson, he sent Schrage in for discharge. The reason assigned on the termination slip was, "Would not follow orders." Plummer had no recollection of the incident. Neither did Cowan. Schrage, al- though present at the first 3 days of the hearing, was not called to the stand, and by the time the hearing was resumed (after the recess occasioned by the Board's grant- ing of leave to appeal from the Trial Examiner's direction to the General Counsel to produce certain pretrial statements), he was no longer available for testimony, because he had gone to sea. Jackson's testimony is thus uncorroborated, and such force as it had even prima facie was dissipated by his testimony, in answer to the Trial Examiner's question, that the other A.B.'s did not balk at the work thus assigned them. Whatever the preexisting motivation, the evidence fails to support the claim that the discharge was in fulfillment of that motivation. d. The discharge of Curtis R. Stewart The unique feature of this case was previously mentioned. Here the employer admits a preconceived intention to get rid of the employee and suggests to the super- visor that a "way" be found to do so without disclosing the underlying reason. The only variance is that the underlying reason which was the subject of the admitted stratagem of indirection is asserted to be something other than Stewart's acknowledged leadership in the Union. The facts: Stewart was employed by Respondent on October 24, 1955, as an engineman, and until his discharge on July 5, 1956, had no break in the continuity of his service. Jackson testified that after the discharge of Dunn and Murphy, Cowan instructed him to get "Stewart from out of there as quick as you can," and to Jackson's protest that Stewart was his best man and that "it was hard to fire a man like that," Cowan told him "to get rid of [Stewart] one way or ,the other if I had to make it so damned hard on him that he would have to get quit, to find some reason but never put on a termination slip for union activities, -to find some reason other than union activities." Cowan, according to Jackson, repeated this instruction to him on his return from his days off. However, on the evening preceding the discharge of Stewart, Jackson while visiting another vessel than the ST-6 (it was the ST-8), met up, for the first time, with J. J Hemphill, the man who was to relieve him on the ST-6 as supervisor on the coming shift. Jackson testified Hemphill pulled out a piece of paper, and asked Jackson whether he knew Stewart and to describe him, explaining that he had orders from Cowan to discharge him. Jackson described Stewart, and told Hemphill Stewart was the only one left on the vessel who could be depended on to know the ship's operation. Hemphill, according to Jackson, replied, "Well, he won't be here when you get back." He was not. Hemphill came to the ST-6 that night and fired him at the end of that shift for "spending too much time in the galley." 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hemphill, according to his own testimony, had closeted himself in his room, with the door slightly ajar and the lights out, timing the duration of what he termed a "bull session" in the galley between Stewart and an A.B. According to Hemphill, he spent "maybe 3 hours" in the galley. So far as appears, spending time in the galley, for coffee or refreshment, was a customary practice not theretofore a sub- ject of reprimand much less discipline (except Jackson's disciplining of John Murphy in the incident of the four enginemen on the ST-6 previously treated). Hemphill gave Stewart no warning that he was staying too long in the galley, nor did he tell him or the other A.B. to break up their conversation. Instead, after waiting to the end of the shift, he disciplined only Stewart. Cowan, as previously mentioned, admitted there was a preconceived intention to be rid of Stewart He admitted suggesting to Jackson to find a "way" to do so without having that reason come out in the open. But the reason which he wanted concealed, Cowan testified, was not Stewart's leadership in the Union, of which he was aware, but Stewart's prior conviction for assault and his "braggadocious" manner. Cowan, after first denying he ordered either Jackson or Hemphill to discharge Stewart, then testified that he told Jackson that he thought Stewart, because of these qualities, was a "menace to his operation," who ought to be let out. Cowan then explained that he suggested to Jackson "to find a way to get rid of him [Stewart]," without having it known that it was because of Stewart's prior conviction and his "bragga- docio." The reason, Cowan explained, is that "it was a delicate situation," in which he "didn't want a man slandered unnecessarily" and also, did not want "our cus- tomer [to find] out that we had that type of man," lest it "put a bad taste in their mouth toward our organization." The plan of indirection being thus admitted, the only question is what reason was sought to be concealed-Stewart's union activity or his prior conviction and "braggadocio." Another reason for the "delicate" situation concerning Stewart was his constant "bragging," according to Cowan, of having contracted a venereal disease on the island. Before Cowan so testified, Respondent's counsel queried numerous wit- nesses about whether Stewart was not known to have had such a disease, giving the impression that Stewart's presence was endangering the health of the members of the crew. It was later developed that Stewart was sent in by helicopter to the island for a medical checkup, and the report was that he did not have any communicable disease, venereal or otherwise. This last happened months before the discharge and its significance in motivating the admittedly sub rosa technique for the severance of Stewart is still somewhat obscure. There is an intimation that Stewart's bragging about having a venereal disease, even falsely, made him undesirable, and was a matter which too had to be concealed from the "customer" as a "delicate" matter. The flaw there is that Cowan had already mentioned this to the "customer." Cowan testified that when he decided to have Stewart flown in for a medical checkup, he spoke about it to Humble Oil when he made arrangements with Humble for the use of the helicopter to fly Stewart in. It surpasses understanding that if the prior conviction and the "braggadocio" of Stewart motivated the desire to be rid of him, Cowan should have found it necessary to resort to the stratagem of hiding that reason from its customer. If the prior con- viction of Stewart was thought to make him a "menace" to the operation, one would rather expect that Cowan would have been confident it would redound to Respond- ent's credit with the customer to have eliminated that menace at once and for that reason. More importantly, one would expect that if Respondent thought the cus- tomer took such a grave view of a prior conviction, Respondent would have made some serious effort to inform itself about such matters if only to the extent of only asking an applicant about any prior conviction. Respondent has an application form with a place reading, "Have you ever been convicted of a felony?" Yet Office Man Adams, who interviewed applicants in Cowan's absence, testified these blanks were not filled out, either at the time of the interview or even before the man was put to work, and that the information in which Cowan was interested was "what kind of experience he had" and "if we had hired him, whether he had been fired before." Cowan, who heard Adams testify, in no way challenged the procedure described by Adams. What this would seem to reflect is a recognition by Respondent and its customers of the realities concerning the manpower available for the operation. It is work calling for men of physical hardihood. The crew generally consists of high- spirited people who do not flinch from combat and are exposed to the hazards of hard living, where trouble, sometime of a serious nature, can ensue. This perhaps makes understandable Respondent's concentrating, when it hires a man, largely on a man's prior experience and his prior employment record with it. Stewart, over the 9 months he worked for Respondent, had a performance record which establishes the reverse of Cowan's description. The only witness who had TIDELANDS MARINE SERVICE, INC. 307 anything adverse to say about Stewart was Cowan. Three tool pushers from the ST-6 were put on the stand by Respondent , and not one testified adversely about his work, demeanor, or personality.17 Charles Dunn, whose case in no way involved Stewart, and who would thus have had no reason to anticipate he would be asked about him, was questioned about him by Respondent's counsel, out of manifest confidence in Dunn's objectivity. Dunn replied : "Stewart was a good man and did his work.... I know of no enemies he had." Just as Cowan attributed to Jackson a preconceived intention to be rid of Dunn, so too did he attribute to Jackson the same intention to be rid of Stewart. Cowan testified Jackson expressed to him deep fears of Stewart because of his prior conviction and "braggadocio ," which was rather absurd , for the two had been roommates and apparently buddies before Jackson became a supervisor, and Jackson's praise of Stewart as the best engineman on the ST-6 was both emphatic and sincere Added to the above is the objective record. There is not a break in continuity of Stewart on the job since the day he was hired-a markedly uncommon and valued attribute in a staff which Respondent , in another context, testified is unstable and subject to constant turnover , due to quittings , showing up drunk on the job, drinking on the job, showing up late, not showing up at all, etc. Cowan, in his characterization of Stewart as a sinister being , is thus all alone on a sea of noncorroboration . In any event, the record totally discredits Cowan 's testi- mony concerning the reason for his admitted suggestion to "find a way to get rid of" Stewart : for Stewart's prior conviction and "braggadocio " neither motivated that suggestion nor would it be the kind of motivation which, if it had existed , he would have had any particular reason to conceal from the customer , as he claimed. On the other hand, the record abundantly links Cowan 's admitted hostility to Stewart to Cowan's admitted knowledge of Stewart 's leadership in the Union . First, Cowan's manifest , indeed acknowledged , interest and purpose in insuring the Union's defeat and his bitter reference to the "53 so -and-so fellows" who voted for the Union would in themselves be the more likely cause of this conceded hostility . There is also specific evidence that this animus was vented toward Stewart because of his union role Raynor testified to a conversation after the election at Cowan's office between the latter and himself and crane operator Hassell Daws . Daws was variously identified as the avowed opponent of the Union on the ST-6 Raynor testified that Daws, in that conversation , reported to Cowan "how much trouble Stewart was causing on the ST-6 with his talk of the Union," and Cowan jestingly asked, "why didn't we tie a rock on Stewart and drop him over the side." Cowan denied using the language, in jest or otherwise He was not specifically asked about whether he had this conversation with Raynor and Daws. Later , however, in detailing how he learned of Stewart 's conviction , he testified Daws reported this to him several weeks before Stewart's discharge in the presence of Raynor. Raynor was not specifically asked whether Stewart's conviction was mentioned at that conversation Daws was produced by Respondent as a witness and, after a few preliminary questions Respond- ent withdrew him when the General Counsel refused to produce Daws' pretrial statement 18 The reasonable inference is that Daws did report Stewart's vigorous union advocacy and that this provoked the hostile comment with the jesting reference to tying him to a rock. There is evidence also that even before the election Cowan was not as unconcerned about the nature of Stewart's advocacy of the Union as he professed . James Demarco, whom Cowan sent to the ST-6 before the election to "talk it up with the boys" in favor of Cowan 's rosition, was specifically asked by Cowan what Stewart was saying about the Union.19 These factors , in combination, would indicate that the motivating cause which Cowan admittedly sought to conceal through a stratagem was Stewart 's leadership 17 They were not asked by Respondent 's counsel , who presumably would have done so if they could have corroborated Cowan 's Since the statement was not sought as an aid in cross-examination, it did not fall within the rule of Jencias v United States, 353 U S 657, or Ra-Rich Manufacturing Corporation, 121 NLRB 700 See Racer Tanning Company, 122 NLRB 640. 'B Cowan admitted talking to Demarco about Stewart, but testified that Demarco too was aroused by Stewart's "long" conviction record and reported this to him Demarco, who testified well before Cowan , was not asked about this conviction Cowan's looseness in ascribing to Demarco a reference to Stewart's conviction is manifest from Cowan's other testimony, previously mentioned, in which he asserted that he had learned of Stewart's conviction only several weeks before his discharge, which was after the election, thus refuting Cowan's assertion that Demarco in this preelection conversation said any- thing about a prior conviction of Stewart 6 R 1-49 2-6 3-v o f 140-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Union rather than his prior conviction and his "braggadocio." Indeed, there is testimony that Hemphill linked his mission in respect to Stewart to the Matter's union activity. Raynor testified, without denial, that after Stewart's discharge, Hemp- hill volunteered the statement that he "didn't hear any more talk of the Union since Curtis Stewart had been fired," which evoked the response from Raynor that "in fact, you're the first person I have heard talking of it since then." Since Cowan admittedly wanted a "way" found to get rid of Stewart, his denial that he sent Hemphill on that mission is incredible. The manner in which Hemphill testified concerning his conversation with Jackson, in which Stewart's name was brought up, left no doubt of his purpose to lay the groundwork for the discharge of Stewart. Piecemeal, in the course of professed lapses of memory, Hemphill wound up substantially corroborating Jackson's version. Thus, Hemphill admitted he had not previously met Jackson and that he initiated the conversation with him. He admitted the name of Curtis Stewart was mentioned, and after saying he "believe[d]" that Jackson mentioned Stewart first, said, "I don't know, I think he did to tell you the truth, I can't say for sure " Concerning whether he had Stewart's name on a piece of paper, he answered, "I don't know whether I did or I didn't. It has been so long I just can't answer that definitely. It appears it might have been, I don't know, let's see, I think I asked after Jackson said something about him, I asked what kind of looking fellow he was, I believe, something to that effect." That he should have written down Stewart's name at all, whether before or after Jackson spoke to him, and have asked for a description concerning him would in itself confirm that he had a mission in regard to him. As the inquiry proceeded, the witness could not tell or remember just how or why Stewart's name came up in his conversation with Jackson, although he admitted no other employee's name was mentioned, and that no other employee's name was on that piece of paper. In due time, he was not altogether certain that it was after his conversation with Jackson, rather than before, that he wrote Stewart's name down: "I am pretty sure I did, but as far as staking my life on it or my arm, no." Hemphill's corroboration of Jackson is thus so impressive as to require crediting the latter's version of their conversation. Independently of this, Hemphill's admission of what he did say and of his manner of effectuating Stewart's discharge is in itself consistent only with prior intention to discharge. One does not write down the name of a person one has never met, stay awake all night timing the length of a claimed infraction by that person, which could be terminated on the instant by an order to get back to his watch, and without prior warning, single him out for discharge in connection with what must have been a two-man transaction (as Hemphill's reference to a "bull session" would indicate) unless he is out to "get" that person.20 The conclusion to which the evidence points would seem to me fairly inescapable: the preconceived intention to be rid of Stewart, which Cowan admitted to exist, was motivated by Cowan's admitted knowledge of Stewart's leadership in the Union, and not his prior conviction and "braggadocio"; Cowan sent Hemphill to the ST-6 with the specific mission of executing that preconceived intention; Hemphill asked Jackson for a description of Stewart to assist him in achieving the mission and during the shift deliberately lay awake all evening in order (to use Cowan's words) to "find a way to get rid of" Stewart; and Stewart's alleged loitering in the galley was the pretext used in accomplishing the mission. Except for Cowan's resentment of Stewart's leadership in the Union and his desire to assure the defeat of the Union in the anticipated runoff election, Cowan would not have discharged Stewart but, on the contrary, would have retained him as a competent, steady, and reliable engineman, who, contrary to Cowan's assertion, had the esteem of his fellow crew- members.21 20 Stewart testified there was an AB who had been in the mess hall at the same time Hemphill testified Stewart "might have been talking to an A B on watch, I don't know I don't think so I think it was somebody that had gone off of watch as well as I remember" The dilemma in which this puts Hemphill is that if he thought it serious enough to be a cause of discharge, he would have found out whether the A B was on or off watch and, on the other hand, if he did not think it serious enough to ascertain the identity of the other alleged offender, he could not have thought it a serious enough offense to be a ground for discharging Stewart. 21 A further attempt to build up Stewart as a sinister character was made through an incident between Stewart and Hemphill after Stewart's discharge Hemphill found Stewart taking down, with his penknife, a company sign in the galley regarding the re- moval of paper cups and told him not to do it. The patent effort to make it appear that Stewart made a threatening gesture with his knife petered out from Hemphill's descrip- TIDELANDS MARINE SERVICE, INC. 309 3. The discharge of Philip R. Wagner on the ST-1 Philip (Blackie) Wagner had been employed by Respondent as an engineman since December 1954. From December 1955 until May 17, 1956, he worked on the ST-1. While on that vessel he had helped organize the crew of the ST-1 on behalf of the Union. Jackson testified that during his period as relief supervisor, when the ST-1 was among the vessels visited by him, Cowan specifically included Wagner among those he wanted gotten rid of because of their leadership in the Union. Raynor testified that Jackson, at one time when he was departing from the ST-6, told him he was going to the ST-1, where he would fire Wagner. Wagner was in fact discharged from the ST-1 by Supervisor Hatfield, the reason on the blue slip being, "I cannot use." This occurred after Wagner had spent 261/2 hours on watch. Four days later, Cowan told Wagner "Hatfield had made a mistake," and put him on the ST-4. Wagner was discharged there on June 2. in explaining Hatfield's "mistake," Cowan cited Wagner's discharge as still an- other instance where the action was motivated by an underlying reason too "delicate" to be stated openly. Cowan testified that he called Hatfield about the discharge on the radio communication system and that the latter said he could not discuss it through that medium. Cowan indicated that he had a "hunch" of what Hatfield had in mind from what he knew about Wagner. He pictured Wagner as a bathless, non-clothes-changing, nonshaving sloven, with a body odor so overpowering that when he called at the office for his money, he, Cowan , had to breathe into the air-conditioning unit to avoid the smell. Accordingly, Cowan testified, he traveled the 180 miles from Grand Isle to Venice, near where the ST-1 was located, in order to discuss the matter, because he, too, "did not like to discuss a man's personal habits by air." Cowan testified that Hatfield said he had complaints about Wagner's body odor from crewmembers and "customers ," that he was filthy, and his shipmates refused to be with him, and that was what was encompassed in the "I cannot use" ground assigned for the termination . Cowan testified that "we had a ticklish situa- tion, a delicate situation," that he had never told a man he stank in his life with the result that he concluded that Hatfield 's "I cannot use" reason was "insufficient" and a "mistake"; and so he sent Wagner to another vessel. Cowan thus pictured Supervisor Hatfield as the initiator of Wagner's discharge. Hatfield said exactly the opposite. According to Wagner's undenied testimony, Hat- field, at the time he discharged him, told Wagner that Cowan "had been raising the devil with him because he hadn't got rid of [Wagner]," that he had tried to explain to Cowan that Wagner "was the best man he had on the rig," but that Cowan insisted he get rid of Wagner, "that he had his orders and that was all there was to it." 22 Hatfield's discharging Wagner thus takes on some elements of Hemphill's similar action in respect to Stewart. An underlying "delicate" reason is advanced as motivat- ing the desire to get rid of Wagner, and the specific reason given by the supervisor is intended to mask it. Respondent disputes that the above was a discharge at all. The General Counsel urges that it was, and that it was antiunion motivated . The General Counsel cites the June 2 discharge, as he did in the case of Gautreau (supra, section A 2), not as a separate unfair labor practice, but as proof that the reinstatement of Wagner on May 21 was not in good faith. We come to this later . The record sustains the General Counsel 's contention that Hatfield's action in respect to Wagner was a dis- charge All supervisors had the power to discharge Further, the ST-1 was oriented, not to Grand Isle, but to Venice, about 180 miles away . A person sent in from the ST-1 would thus not go to Grand Isle, where Cowan could pass upon the ground assigned on the termination slip, but would proceed to Venice and then home. Wagner owed his reinstatement to the fact that he took the initiative in calling Cowan and protesting it, and this led to Cowan's inquiry, which culminated in his putting Wagner on the ST-4, after Wagner lost 4 days' work. 3 am satisfied that Hatfield's discharge of Wagner, as he told Wagner at the time, was not his own doing, but was in response to Cowan's insistence . There are only tion, which, at most, added up to a sullen answer in resentment over his discharge, which Stewart had protested was groundless. In addition to Stewart's "braggadocio," Cowan made repeated reference to Stewart's penknife as a distinguishing characteristic, again with not a shred of support except for the anticlimactic Hemphill Incident. The sug- gestion that Stewart customarily brandished a penknife or that his ownership of one bothered anyone on the gulf is not supported by the record Hatfield's declaration as a supervisor concerning the reason for his discharging Wagner "would bind management" as a declaration against interest N L R.R v L C Ferguson, et al, 257 F 2d 88, 92 (CA 5) ; Drico Industrial Corporation, 115 NLRB 931 Hatfield did not testify. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two reasons which could account for Cowan's putting that pressure on Hatfield- either Wagner's overpowering body odor or his leadership of the Union on the ST-1. I am relieved of the dire necessity of passing upon whether Cowan's or the em- ployee's sense of smell would impel him to interdict an employee, since he disclaims regarding that as a sufficient reason to get rid of a man That being so, the only thing which could rationally account for Cowan's importunities to Supervisor Hat- field is Cowan's interest and purpose in insuring the Union's defeat. Wagner played an active role on behalf of the Union on the ST-1. Jackson's testimony that Cowan was among the union supporters whom Cowan specifically stated he wanted gotten rid of furnishes a direct nexus between Wagner's union role and a discharge which is otherwise rationally incomprehensible I have previously stated that I will not sustain -a case which rests on Jackson's testimony alone (see, for example, the case of Virgil Schrage, supra, section B 2 c). Here the corroboration of Jackson is rather impressive: Cowan's manifest interest and purpose in defeating the Union, his sys- tematic efforts to ascertain the identities of union supporters, his avowal to avenge himself of the "53 liars" who supported the Union and that he knew who they were- all of these furnish a rather compelling basis for inferring that the instructions to Hatfield to be rid of Wagner were due to Wagner's active efforts on behalf of the Union. I accordingly find that Wagner was discharged on May 17 by Hatfield pur- suant to a command from Cowan that he get rid of him, and that Cowan's command was motivated by his admitted hostility to Wagner, not for his untidiness and body odor, but for his activity in the Union.23 The General Counsel insists that since Cowan's countermanding of Hatfield's action was only a tactical device prompted by the realization that the reason chosen by Hatfield could not stand up, there was a continuing motive to be rid of Wagner and thus his reinstatement on May 21 was not in good faith. The weakness in the General Counsel's position, as I have stated in respect to a similar contention in the case of James Gautreau, is that whatever Cowan's motive in reinstating Wagner, it did not exempt Wagner from the obligation of rendering satisfactory performance on the job. He was discharged on June 2 by Supervisor Hayes after countering Hayes' accusation of a dereliction in duty, whether rightly or wrongly made, with such open contempt as to impel Hayes to discharge him in vindication of his own authority. I accordingly find that the discrimination against Wagner lasted from May 17 to 21, the day Wagner was reinstated, but not beyond this. 4. The discharges on the ST-2 by Supervisor Reams As previously found, Cowan, at the time he made Reams supervisor, told him that there were 53 men in the gulf who would have to go because they had voted for the Union. Reams further testified that not long after this, before returning to the gulf, Cowan specifically ordered him to find some reason to fire Norman de Lapou- yade and Robert G. Farrar, the former because "he was right out there in the open being a union man," and Farrar because he "was down at .the engineroom telling the enginemen what they wouldn't have to do if the Union was out there in the Gulf." Reams testified that when he returned to Grand Isle after a 3-week stretch on the gulf without firing either person, Cowan asked why he had not done so. Reams, as he testified, replied they had been doing their jobs and so had not furnished him with a pretext to discharge them; Cowan then threatened that if Reams could not do his bidding, he would get "somebody that could." On June 20, about a day or two after his return to the ST-2, Reams discharged De Lapouyade. He testified the reason he gave De Lapouyade is that he "had some complaints" about him. The reason he put on De Lapouyade's termination slip was, "Work Unsatisfactory." Reams testified that he had told Cowan and that De Lapouyade's work was satis- factory, he being a person of average competence. m To corroborate Cowan's portrait of Wagner as an untidy, ill-smelling person, Respond- ent produced Horace Bishop, who had worked not on the ST-1. but the ST-4, Wagner's second vessel. Respondent's counsel introduced this subject to the witness by describing Wagner as he appeared when he had testified several weeks previously The description included , apart from Wagner's features, a neat attire and a trimmed beard. Because of the element of neatness , the witness professed not to know anyone by that description, even though added to it was a reference to the "piercing black eyes ," which would un- mistakably distinguish Wagner, whose size and build were also described Cowan, who followed Bishop, testified that he too would not have recognized Wagner from that de- scription , because of the interjection into it of the element of neatness I am satisfied that Bishop and Cowan well knew who was meant and that neither was candid in his professed nonrecognition of the person described. TIDELANDS MARINE SERVICE, INC. 311 Reams went on to testify that when he next came ashore on Grand Isle, Cowan praised him exuberantly for having gotten rid of De Lapouyade, but then got to work on him to get rid of Farrar. Reams testified that in that same conversation, Cowan spoke to Reams about a lad whom he sent in for sleeping on deck and whom he could only remember as "Mac," and that instead of discharging him, Cowan trans- ferred him to another vessel, on the ground that "Mac" was a good "company man" and that he "wanted run off all the union men before he had another election," not those who were a potential vote for the Company.24 Reams testified that he finally did Cowan's bidding in respect to Farrar on July 28. On that day, he sent Farrar to Grand Isle giving as the reason on the ter- mination slip that Farrar "would not wash main deck " At the same time, he also sent in Edward LeDuc for "loafing in the mess hall." LeDuc had never been mentioned by Cowan to Reams, nor had he been suspected of prounion sympathies. Reams testified that he discovered LeDuc's role in the Union shortly before this, when he was handed a lost wallet, and on looking inside for its owner, he found a card showing that LeDuc was an organizer for the Union Reams testified be fired LeDuc in deference to Cowan's orders to get rid of all union supporters. Although testifying or intimating that the deference thus paid to Cowan was in order to be able to retain his job, it appeared that at the same time that he dis- charged Farrar and LeDuc, Reams quit his own job. Reams went back to Grand Isle with his two dischargees on the same helicopter. At Grand Isle, Reams went to a tavern with LeDuc and Farrar, and rode to New Orleans with Farrar. Two days later, he met them at the Union's headquarters in New Orleans, and went on with them to the office of union counsel, where each of them gave a writ- ten statement. The above was not the first statement Reams gave to the Union. He gave one earlier, before discharging Farrar, on a visit to the union headquarters, which Reams said he had made on his own. He testified that he then informed the Union that Cowan had said it was either Farrar's job or his. Reams, after in- sisting that his resignation was due to a revulsion at what he had been obliged to do at Cowan's bidding, admitted that one of his reasons for resigning was to enable him to give a statement for LeDuc and Farrar to the Union and that he had made a rendezvous with them for that purpose In November 1956, several months after his discharge, Reams, as he admitted, was signed up for an oceangoing trip on a ship manned by members of the SIU, and he has since sailed on other such trips. This is a desirable assignment usually reserved for persons enjoying "full book" membership in SIU, Reams is not a member of SIU but of the International Brotherhood of Electrical Workers. Even if we should accept Reams' testimony that Cowan had ordered the discharge of Farrar on some pretext, it is clear that the action he took in respect to Farrar and, for good measure, LeDuc, was not in execution of any orders of Cowan, but to advance an interest of his own. There is sufficient indication that Farrar and LeDuc were parties to this collusive arrangement. The rendezvous with Farrar and LeDuc for a meeting at the union headquarters would appear to have been made before their discharge. Lewis A. Young, a supervisor of the food catering service on the vessel, credibly testified that he overheard them make that arrange- ment the day before the discharge. Young so testified at the original hearing. Reams, at the supplemental hearing, confirmed the fact that he had made this arrangement but insisted this happened only after the discharge and after they got to Grand Isle. But Young could only have known about it if he had heard it on the vessel. The allegations of the discriminatory discharge of LeDuc and Farrar are accordingly not sustained. The discharge of Norman de Lapouyade is on a different plane . Cowan testified he became interested in getting rid of De Lapouyade as a result of discovering that he had once been convicted of dope addiction.25 Cowan testified that he communicated this to Reams, but, in deference to his relations with his "customer," he did not want to have it out in the open that the drug addiction was the reason for terminating De Lapouyade. He confirmed Reams' testimony of his fulsome praise for having sent De Lapouyade in, but he testified that it was because he did not want a convicted drug addict on the gulf. 2' Since "Mac" was never identified, that testimony is given no weight. However, a side effect of this matter is that Cowan Identified Vergil Lee as the person sent in by Reams, which was wrong and later retracted by him after the Trial Examiner pointed out to him the elements in the record, which made it impossible for Cowan's testimony to be correct 21 FBI data introduced by Respondent concerning him show a conviction , in 1937, for using narcotics, and arrests, on suspicion of being a narcotics user , in 1950, 1951 , and 1953. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cowan's testimony concerning De Lapouyade is of a piece with his testimony concerning the discharge of Curtis Stewart on the ST-6. There too he testified to a reason for wanting Stewart discharged and suggested that a "way" be found to do so, without having that reason come out in the open. In Stewart's case, it was a prior conviction for assault and his "braggadocio," and in De Lapouyade's case, it was the discovery that he had a conviction for using narcotics. The difference in De Lapouyade's and Stewart's cases, however, is that the par- ticular circumstances of the discharges are developed in Stewart's case by various witnesses, including Stewart himself, and stands up quite apart from the testimony of Jackson, on whose uncorroborated testimony I would not predicate a finding of discrimination. While the De Lapouyade's case has elements similar to Stewart's and in some respects to Wagner's insofar as Cowan here also admits to a pre- existing intention to be rid of an employee for a reason which was sought to be masked, we do not have the specific recital of just how this discharge was effectuated, other than the uncorroborated testimony of Reams. I am therefore constrained to hold that the complaint in respect to De Lapouyade is not sustained. 5. The layup of the ST-4 and the layoff and failure to recall members of its crew On June 7, 1956, the ST-4 went into drydock for routine repairs. Of its crew of 13, 3 were retained, 1 on the same vessel and 2 by transfer to other vessels. The remainder, including eight complainants, were told the ST-4 would be laid up "a month or more." They never saw service with Respondent again 26 The record indicates that the crew of a laid-up vessel are not laid off and that they are absorbed elsewhere in Respondent's operation. Respondent explains that this was so only because a ship going into drydock normally met up with one going out of it, with the result that the crew and equipment on the vessel entering drydock are transferred to the vessel going out. It explains that the ST-4, as it happens, did not have that luck; that when the ST-4 entered drydock there was no ship leaving drydock to which its crew and equipment could be transferred. The crew of the ST-4, according to those members who testified, were told they would be informed when there was something for them. Indeed, they were un- der the impression that their returning hinged on the ST-4's leaving drydock, and several of them, Jerome Gaspard, Percy Kennedy, and Trout Felker, called and inquired from Cowan when the ST-4 was leaving drydock. He told them he did not know. When ST-4 finally got out on the gulf, Felker, who had been specifically told by Dalton Hayes, his supervisor, that he was to return to the ship when it left drydock, actually got on the ST-4, only to be told by Cowan that he could not work on it. Respondent's explanation for the old crew not coming on the ST-4 is that when that ship left drydock, the previously existing pattern of one ship going out for every ship coming in was resumed: as the ST-4 was going out, the ST-5 was coming in, and so the ST-4 was taken over not by its old crew, but by the crew of the incoming ST-S. Just why the pattern should have changed when ST-4 went into drydock, only to be resumed when it left, in each case to its crew's detriment, does not appear. At any rate, the crew of the ST-4 were definitely of the impression that they were going back with the ST-4, as their questions to Cowan as to when it was leaving drydock implied. Yet whenever they did so inquire he did nothing to disabuse them of that impression. It appears, moreover, that Respondent's capacity to absorb the eight in question did not truly hinge upon whether there was a vessel going out of drydock to meet the one coming in. Apart from Respondent's own records, which will be described shortly, the most objective testimony on that score came from a witness produced by Respondent in connection with another subject, who had no reason to expect he would be interrogated about this matter. It was John R. Saucier who, as will be recalled, testified as a witness for Respondent in connection with the incident on the ST-6, previously related, in which complainants Dunn and Murphy had been involved. Saucier reached the present subject quite fortuitously: he was relating his experience with Respondent after his transfer to another ship following the incident on the ST-6, when he rose to the rank of supervisor, and in the course of it was able to fix the time of a certain event in relation to the layup or drydocking of his particular vessel, the ST-8. His testimony concerning what happens to the crew of a laid- 26These eight, with the date of commencement of their services , were-Enginemen: George D. Jacobus (June 23, 1954; David F. Moore (May 2, 1956) ; John Murry (Novem- ber 5, 1953) ; and Peter Annino (March 6, 1956). AB's: Jerome Gaspard (March 30, 1954) ; Chester Holtz (May 5, 1953) ; and Percy Kennedy (May 23, 1956). Crane operator : Trout Felker ( June 1, 1955). TIDELANDS MARINE SERVICE, INC. 313 up vessel achieved special reliability from the fact that he had not conferred with anyone about the subject. (Indeed, Respondent counsel's request to suspend at this point for the purpose of conferring privately with the witness was, upon objection of the General Counsel, denied ) Saucier thus had no idea of how his testimony would affect either side. When both counsel completed their interrogation of this witness on the subject concerning which he had been produced, I invited all counsel to interrogate him concerning what happens to the crew of an ST which has entered drydock. No counsel would interrogate him upon it. This left the matter to be explored by the one person uninhibited by any concern over what the answer would be. The follow- ing ensued: TRIAL EXAMINER: Well, if neither side wants to ask him, then this question must be left to the presiding officer. Do you say that ST-8 was in drydock and that you were working aboard the ST-8? The WITNESS: Yes, sir. TRIAL EXAMINER: Now, to what extent, if any, were the people who composed the crew after the ship pulled out to the Gulf, were they the same people before it went into drydock? In other words, was there any comparison? The WITNESS: No, sir. TRIAL EXAMINER: Well, just what happened? Maybe you can put it in your own way. What would happen to the men who would be taken off the ship in connection with the drydock operation? The WITNESS: Well, they usually were placed somewhere else. They weren't put `out on the grass' if it could have been avoided. TRIAL EXAMINER: Well, where would they be turned out to? You said some of them would be turned over somewhere else, but they wouldn't be turned out on the grass. You mean they wouldn't be laid off, is that what you means? The WITNESS: Well, if it could be avoided in any way. TRIAL EXAMINER: Well, what was the usual thing in your experience, that they would be turned out on the grass or that they would report on some other boat? I am asking what was the usual thing in your experience, if there was some- where else to put them or there was not somewhere else? The WITNESS: They usually put them somewhere else. TRIAL EXAMINER: Well, if either side wants to go into detail, they are free be- cause this opens up a new line of inquiry so far as this witness is concerned, and I would think that the Respondent should have the first crack at the witness. Redirect Examination Q. (MR. BROWN.) Mr. Saucier, what was done with the crew of the ST-8 when it went into drydock? A. As far as I know, they were placed somewhere else. * * * * * * Q. Do you know where they were placed? A. No, sir, not offhand. Q. Do you know whether they were placed somewhere else? A. I believe they were, most of them. Q. What is the basis of your belief? A. Well, I seen them around, you know, coming in off the jobs after I went back, after I got back. Q. Do you know whether they had a temporary period of being laid off? A. No, sir. Q. When the ST-8 went into drydock, was there another vessel coming out? A. None as I know of. Q. During the period that you were working for Tideland, how long a period was that? A. Almost two years. Q. During that period was there a fluctuation in the level of operations on the Gulf? A. No, sir, I wouldn't think so. [Emphasis supplied.] Respondent's records strongly corroborate Saucier. They indicate that without regard to whether there was an outgoing vessel to meet the incoming ST-4, there were enough vacancies occurring shortly thereafter to absorb all eight complainants. Cowan testified that there was "a high rate of turnover in all classifications" because of constant quitting, failure to show up, drunkenness in appearing for work, drinking while on the job, etc. This is illustrated by the figures in Respondent's summary for 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the typical year ending July 31 , 1956 . The summary contains a breakdown for each of the 24 half-monthly (presumably payroll ) periods of that year. They show that the average number of persons newly hired during each of the semimonthly periods was 18, and in the substantial majority of them , the new hirings exceeded 20. Signifi- cant to our inquiry is that during the first half-monthly period after the one in which the layup of the ST-4 occurred, namely that ending June 30, Respondent hired 15 new men; during the next one ending July 15, it hired 17, and during the one after that, it hired 20. Thus, in any one of these half-monthly periods, Respondent had vacancies which could twice absorb the 8 in question , and over the 3 ensuing periods, it had a total of 52 vacancies which would absorb the laid-off group many times over. Cowan explained that the crew of the ST-4 did not fill these vacancies largely because they had not heeded his instruction that they call him to indicate their availability. He testified: We instructed each one of them , individually, to keep in close contact with us, because we had a fluid operation and we told them to call us, collect call, at least every day or so. [Emphasis supplied.] This is refuted by the instructions he sent to those who happened to be on days off when the ST-4 was laid up and therefore were paid off by mail. In the forwarding letter to them , he wrote: Enclosed please find termination check for work performed on ST-4. Due to that vessel being temporarily laid up for repairs your services are not now needed. We will call you when something shows up . [Emphasis supplied.] Since no reason appears why the instructions to the men to whom the letters were sent should have been any different from those who were spoken to, it is a fair, if not a compelling, inference that the instructions were the same to all employees- that they would be notified when something showed up. Cowan's testimony is even more vulnerable in respect to those who admittedly called him . In point are his conversations with Jerome Gaspard and Percy Ken- nedy. Each, as Cowan admits, called Cowan and asked him when the ST-4 was coming out of drydock and he said he did not know. Kennedy testified he called Cowan two or three times to ask him this and, as he put it, "I never could get any satisfactory answer about it. He didn't know when it was coming out , and then he thought it might be laid up for a general run-around , I would call it." Gaspard called, as he testified, on July 8 or 18 and asked the same question and got the same answer. If, as Respondent insists, it is the custom for an outgoing vessel to be manned by the crew of a vessel coming into drydock, it would have been the natural thing to have then and there disabused each of them of the notion on which their question was premised; and also, since Respondent was then filling vacancies in large numbers , as its records show, it would have been natural to have told them to dis- regard the ST-4 and to come down, because there was work for them. This too Cowan did not do. Gaspard testified that when he called Cowan and the latter said he did not know when the ST-4 was going out, he told Cowan that he had seen that Respondent was advertising in the New Orleans papers for enginemen and A.B.'s and that he understood Office Man Gilland was recruiting new people for Respondent. Gaspard, as he testified, indicated to Cowan that there "were a lot of good A.B 's" presently available, mentioning some from the ST-4, but Cowan laughed this off. Cowan testified that Gaspard, a few days before the ST-4 left drydock (which was July 27 ) had indeed called him and asked when the vessel was coming out, that he told Gaspard he did not know, whereupon Gaspard asked, "How about a jobs" Cowan, as he testified, replied he did not know "when I will need AB 's on there," and that Gaspard "laughed and he said `Hell, I was just kidding . . . I'm going deep sea thanks to you, . I'm making enough money going deep sea. I don't want a job."' Cowan's version of his conversation with Gaspard was at once vulnerable on the score of probability : it would hardly seem natural for an employee to trouble to inquire when his own vessel was coming out of drydock, then to ask for a job on another vessel, only to follow this up by saying he was "just kidding . . . I don't want a job." Cowan's version is additionally vulnerable because his asserted statement that he did not know when he would need A.B.'s is contrary to what the record shows: this con- versation , whether in the first or second half of July, was in a month in which Respond- ent hired 37 new men after having hired 15 in the last half of June. Further, Gasp- ard's testimony that Respondent had advertised for enginemen and A.B.'s, as he told Cowan, is reinforced by Cowan's testimony that newspaper advertising was a constant source of recruiting of new people , and the substantial number of new hirings in the period from the second half of June throughout July would indicate that this was TIDELANDS MARINE SERVICE, INC. 315 a period in which Respondent was recruiting and hence using this acknowledged medium for it 27 At the same time that Cowan testified he told Gaspard he did not know when he would need A.B.'s, he also testified he had earlier put in a call for Gaspard at the address left Eby the latter. Here he stressed that the address and telephone number left was a cocktail lounge in a New Orleans hotel, patronized by seamen, but that the answer was that Gaspard was out to deep sea. It happens that before the hearing Respondent received from the General Counsel's representatives the data concerning the interim employment and earnings of the various complainants. The information concerning Gaspard shows that sandwiched in between two periods of unemployment from June 9 to July 30 (when Gaspard finally went on an extended voyage) is an 11-day period of seagoing employment, between June 20 and July 1. Cowan testified that in the call put in for Gaspard before the conversation initiated by Gaspard's call, the information was that Gaspard had gone to sea. E. A. Adams, who testified he put in the call, revealed that it was a person-to-person call, presumably made during the day. Since Gaspard could hardly be expected to be glued to the telephone at the lounge or hotel all day, it is difficult to conceive of a call which, if made, was more calculated not to reach its object. Adams testified he had heard a voice at the other end call out that he had gone to sea. But if there was any intention to reach Gaspard, it would have seemed normal to leave a message or drop him a note. That Respond- ent knows how to contact a person if it wants to would appear from the letter of reinstatement it sent Gautreau. The failure to take reasonable measures to establish contact with Gaspard, taken in connection with the futility of Gaspard's call to Cowan, when Respondent was actually hiring new men, rather compels the inference there was no intention to reemploy Gaspard from the day of the layup of the ST-4, job or no. The same conclusion follows in respect to Kennedy. In Kennedy's case there could be no claim he could not be reached, for when the ST-4 was laid up, Kennedy was put to work by the drydocking company on the very vessel being laid up- the ST-4. Kennedy testified the job was temporary, but Cowan testified that when Kennedy called to ask when the ST-4 was coming out of drydock and was told by Cowan he did not know, Kennedy, in turn, said he had "steady" employment with the shipyard and he was not interested in a job with Respondent. Kennedy was a licensed A.B. and it is hardly likely that he would have preferred a job at the ship- yard, or have so told Cowan. But if the last was what Kennedy preferred he would hardly have been likely to have bothered, first to call Cowan, and then to ask him when the ST-Il was going out, as Cowan admitted Kennedy did So far as this observer is concerned, Cowan did himself a special disservice by his absurdly in- credible version of this conversation with Kennedy. Here was a lad who was the living embodiment of the absence of guile. Cowan's attempt to pervert the inquiry of the open-demeanored Kennedy, which the latter testified he made two or three times, concerning when he could go back to work, into a call having its purpose to advise that he did not want to go back at all, apart from its utter ludicrousness, had a quality, I am constrained to note, which bordered rather closely on the reckless. We have previously indicated that Felker, the craneman, as Supervisor Hayes had instructed him to do, appeared on the ST-4 ready to resume his duties the day it was leaving drydock. When Felker showed up on the outgoing STS, Hayes told him to call Cowan. Felker did so from the boat. According to Felker, Cowan said he had been replaced. According to Cowan, he said the ST-4 was dispensing with a craneman. Cowan testified Felker was not even laid off like the others. He was regarded as being still on duty and they had been searching far and wide for him because Respondent needed cranemen. But if that was so, Cowan being now voice-to-voice with the much-desired Felker, could have told him how much they were in need of him elsewhere and to stand by for an assignment. There is no suggestion of a word to Felker concerning this. For all Felker was led to believe, this was the end of the road for him. Until now, we have been told how the various men were not available when they were wanted, or not wanted when they were available. We also have two men who, when they called, were told according to Cowan to come right over, there were jobs for them. These were enginemen David Moore and John Murry. Cowan testified Moore called on his and Murry's behalf and he answered that he was indeed hiring and he had jobs for them too. The only gimmick was that Moore, as Cowan testified, called from Port Arthur or Beaumont, saying he and Murry were there. 2' Gaspard testified that the ad, which appeared in the New Orleans Times Picayune, had been under a box number which he traced to Respondent. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moore never testified , so we do not know how he followed up on this call. Murry testified, on the other hand, that when he was in New Orleans about 4 or 5 months after the layoff, he called at an office in New Orleans at which Office Assistant Gilland was recruiting new men. Respondent indicates that in November it had such an office in New Orleans and that the man put in charge was E. A. Adams, whose job was similar to Gilland's. At any rate, whether it was Gilland or Adams, the person entrusted by Respondent with that function in New Orleans told Murry, according to the credited testimony of the latter, that he would first check with the main office at Grand Isle, and the next day he told Murry he could not hire him "because of the trouble you had on the island." Murry, whose employment with Respondent went back to 1953, had had no "trouble" of any character. The regularity with which each of the crewmembers found themselves "on the beach," with coincidence upon coincidence piling up all to their detriment and with various explanations canceling each other out, indubitably brings into question the probability of things just happening that way rather than being by design. It is difficult to conceive of men being left out that way despite the ample availability of new positions unless they were not wanted at all. Since the quality of their work is not impugned, and we must assume Respondent was acting out of rational motives, we manifestly cannot ignore the elements in the record which alone give rational content to what must be inferred to be a calculated exclusion from work. Those elements center around Cowan's avowed hostility to the Union and his efforts to insure its defeat in the anticipated election. There is not evi- dence here, as in prior cases, that Cowan specifically expressed a prior intention to be rid of any member of this crew. But it does appear that the ST-4 included two of the most active leaders and solicitors on behalf of the Union. These were Jerome Gaspard and Chester Holtz. Gaspard, in 1955, spearheaded the movement for NMU, during which he had the encounters with Cowan, as reviewed earlier. When the SIU entered the picture in February, Gaspard went over to them, and in the course of it he and Holtz, who handed out the Union's literature and pledge cards, openly fraternized with the organizers of the SIU. This evoked the comment from Cowan to Gaspard, "I see you still hanging around your Union buddies." George Jacobus, who entertained organizers for the Union and who thought he had managed to keep it a secret, was told by Cowan, about a week before the election, that his wife was understood to have been exchanging notes with one of the union organizers, with the comment that he had thought Jacobus was a good "company man." 28 John Murry, as will be recalled, shortly before the election was shown a list of names by Cowan and asked which of these he understood to be for the Union and upon Murry's protesting his ignorance, showed him his own name, asking him, "How does this name seem to hit you?" As will be further recalled (supra, footnote 13), Cowan solicited the votes of employees on the ST-4 right up to the election, specifically Murry, while he and another employee were waiting to be called in to vote and Jacobus, when he handed him the mail ballot, in which he took that occasion to ask Jacobus about the attitudes toward, and the activities on behalf of the Union of employees on the vessel, such as Gaspard, Holtz and Murry. Cowan's expressions of bitterness and disillusionment at the size of the SIU vote have been noted, as was also his statement that he could avenge himself on the "53 liars" in the gulf and that he knew who they were. Also observed has been the fact that one with an avowed hostility to the Union, who embarks upon the systematic quest to ascertain identities of union supporters, can reasonably be said to have a purpose in obtaining such information. It is thus a reasonable inference that Cowan's hostility extended toward the crew of a vessel actively identified with union support like the ST-4 as it did in respect to individual employees shown by direct evidence to have been the specific target for such activity. Not all of the laid-off group were outstandingly active for the Union, however. Moore and Kennedy were identified as supporters of the Union, and Felker signed 28During Jacobus' cross-examination, Respondent's counsel, with Cowan at his side at the counsel table, suggested that Jacobus' conversation with Cowan concerned his wife's having been arrested on a charge of prostitution Jacobus, who seemed less disturbed about the question than attorney for General Counsel, made it clear that this last occurred not in 1956, but in the summer of 1955, when his present wife, who was then only en- gaged to Jacobus, was mistakenly arrested by the authorities due to the similarity of her name to that of another person. The future Mrs. Jacobus was soon completely cleared. Cowan, when he took the stand, never pressed the suggestion that the 1956 conversation related in any way to the 1955 incident. TIDELANDS MARINE SERVICE, INC. 317 a union pledge card. Givens, an electrician who was retained on the ST-4 throughout, and Bourg, who was sent to another rig, were identified by some employees on the ST-4 as men who had signed union pledge cards. Edward LeDuc wound up on another vessel and ultimately on the ST-2, but so far as appears his role in the Union had been unknown until, as will be recalled, Supervisor Reams of the ST-2 discovered LeDuc's organizing role the day he collusively discharged him. The record would thus not warrant a blanket finding that all of the eight persons laid off when the ST-4 drydocked, whatever the preexisting motive, were discriminated against by the mere fact of the layoff. We must take into account the efforts they made to indicate their availability and Respondent's rejection of them despite their manifest availability and the existence of jobs at which they could have been placed. This would rule out those employees who did not testify and concerning whom we have no particulars regarding later efforts to obtain employment-Moore, Annino, and Holtz. It would also rule out Jacobus, who construed the letter to him, of the kind previously quoted, as an outright discharge and left Grand Isle, with apparently no information concerning where he could be found. On the other hand, it would include Jerome Gaspard, Percy Kennedy, John Murry, and Trout Felker. They did contact Cowan, when Respondent was taking on new people, and made known, their availability. Since not all the dates can be stated with precision, we shall make the approximation which is most favorable to Respondent. Cowan testified his talk with Kennedy was about 2 weeks after the layup. We shall set the date as of the end of the payroll period embraced thereby, or June 30. Gaspard testified his call to Cowan was on July 8 or 18. The period in his case will commence on the later date, or July 18 Since Felker had contemplated being on his days off until the ST-4 went out, his period of discrimination began July 27, 1956, the day on which the ST-4 went out of drydock. (This is not on the assumption that he should have gone out on the ST-4, but on the basis of Cowan's assertion that the operation was in need of cranemen and that the only thing which accounted for Felker's not going out again was his unavailability, a factor which no longer applied when Felker called Cowan right from the ST-4 on July 27.) John Murry specifically applied to be taken back when he called at Respondent's recruiting office in November 1956, and was refused because of the "trouble he had on the island," which, in context, and considering the absence of any other "trouble," could only have referred to his support of the Union. Since the specific day in November does not appear, the commencement date will be the last day of that month-November 30. It is accordingly found that because of their support of the Union, Respondent discriminated against Percy Kennedy on and after June 30, against Jerome Gaspard on and after July 18, against Trout Felker on and after July 27, and against John Murry on and after November 30, 1956, by failing to take them back to work after a layoff, despite the availability of positions for them. C. Concluding findings What appears is that Cowan's admittedly strong interest in defeating the Charging Union was not limited to counterpropaganda as he claimed. His interrogation of employees such as Lee, Murry, and Gautreau, indicates that he was bent on ascertain- ing the identities of union supporters; and his discharge of Gautreau after receiving confirmation from him that he had joined the Union indicates that the purpose of his seeking to elicit the information was hardly innocuous. Cowan's expressions of bitterness toward the "53 liars" on the gulf who voted for SIU and his statement that the would be rid of them are coercive insofar as they were made to rank-and-file employees such as Dunn and Raynor, as was also his statement that he knew who they were 29 So too, in the context of this case as a whole, was Cowan's interrogation of Percy Kennedy and his fellow applicant concerning their union sentiments at the time he hired them. Insofar as his expressions of hostility toward the 53 who voted for the Charging Union took the form of instructions to Supervisors Reams and Jackson to get rid of union supporters and to find a pretext for doing so, Cowan's action constituted interference, restraint, and coercion, independ- ently of whether or how these instructions were carried out, for an instruction to a supervisor to engage in discriminatory conduct does not have the immunity of normal management communication 30 The same applies to Cowan's instructions to Super- visor Hatfield to get rid of Wagner, where Cowan's own motivation, whether disclosed to Hatfield or not, was to eliminate Wagner because he was a supporter of the Union. 29 N.L R.B v Nashua Manufaeturing Corporation of Texas, 218 F. 2d 8186, 887 (C.A 5). 30 H N Thayer, 99 NLRB 1122, 1125, enfd . in part and remanded in part, 213 F. 2d 748 (C.A. 1), cert. denied 348 U S. 883. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although, as I have found, Cowan was motivated to discriminate against com- plainants because they were or he deemed them to be union supporters, the General Counsel has not established that such discrimination was in fact accomplished in re- spect to all complainants. However, it has been established in respect to 8 of the 16 postelection terminations alleged, namely, Charles Dunn, John P. Murphy, and Curtis Stewart on the ST-6, Philip Wagner on the ST-1, and Jerome Gaspard, Percy Kennedy, John Murry, and Trout Felker of the laid-up ST-4 (although not as of the date of the layup, as the General Counsel contended). In refusing to predicate findings of illegal action on the uncorroborated testimony of Supervisors Jackson and Reams, I did not mean to endorse Cowan as a witness. It would seem manifest from the numerous contradictions, improbabilities, and absurdities in his narrations, and the general character of his testimony, that I am far from being too much more enchanted with the superior than I am with his two chosen representatives. His own admission that he broached to them the technique of stratagem to hide what he professed to be his true motivation for getting rid of an employee were in themselves not calculated to elicit the highest moral qualities from his lieutenants. However, since the burden of proof is at all times on the General Counsel, I did not deem Cowan's impaired credibility to have the kind of rehabilitating effect on Reams and Jackson which would have warranted acceptance, as against Cowan's denials, of testimony by them which was uncorroborated. The result is that none of the discharge cases to which Reams testified are sustained. The sustained cases of Dunn, Murphy, and Stewart of the ST-6, and Wagner of ST-1, concerning which Jackson testified, are based upon corroborating testimony of the most reliable character, most notably revealing admissions by Cowan, and a surrounding context lending compelling support to the inference of antiunion motivated discrimination. By discharging James C. Gautreau, Charles G. Dunn, John P. Murphy, Curtis R. Stewart, and Phillip R Wagner and by failing to take back, after a layoff and despite the availability of jobs and their demonstrated availability for work, Jerome Gaspard, Percy Kennedy, Trout Felker, and John Murry, Respondent discriminated against them for the purpose of discouraging membership in the Union, in violation of Sec- tion 8(a)(3) and (1) of the Act. By interrogating Vergil Lee, John Murry, and James C. Gautreau concerning the affiliation of themselves and other employees with the Union, by interrogating George D. Jacobus, when he handed him his ballot, concerning the attitude of fellow crewmembers toward the Union, by interrogating Demarco concerning what Stewart was saying about the Union, Cowan, in the circum- stances here disclosed, infringed upon the rights of employees in violation of Sec- tion 8(a)(1). Respondent also invaded the rights of employees by Cowan's conduct in personally soliciting the votes of Dunn and Murry while they were waiting for their ballots and of Jacobus when he handed him his ballot; by his statements to Raynor and Dunn that he would retaliate against the 53 persons who supported the Union in the election, and by his instructions to supervisors to find a way to get rid of employees because of their support of the Union. A dismissal of the complaint will be recommended in respect to the remain- ing eight alleged discriminatees Also recommended for dismissal will be the al- legations of the complaint attributing to Cowan a promise of a raise and threats to close down the operations if the Union came in. This last, testified to by Stewart, Demarco, and Jacobus, was always linked to the argument that the wage scale, as promised by the Union, was incompatible with the limitations of Respondent's contract with Humble. Also recommended for dismissal will be the allegations attributing interrogation and threats to various alleged "agents" or "supervisors" of Respondent in the persons of certain tool pushers, and of Gilland, the office man. The record does not sustain the allegations that any of these persons en- gaged in the conduct alleged. Hence, we need not determine whether these per- sons were "agents" or "supervisors" of Respondent in the context cited. D. The missing witnesses at the reopened hearing In the Statement of the Case, it is mentioned that at the original hearing, counsel for Respondent demanded production of the pretrial statements of certain wit- nesses for use on cross-examination, and that this was denied on the authority of the then controlling decision in Great Atlantic and Pacific Tea Company, Na- tional Bakery Division, 118 NLRB 1280, in which the Board held that the doctrine of Jencks V. U.S., 353 U.S. 657, did not apply to its proceedings 31 On the date 21 While denying the motion of Respondent as of right, at the original hearing, I granted the motion for production of the pretrial statements of the first three witnesses as a matter of discretion, because I thought a proper foundation had been laid for the production of their statements under the doctrine of N L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 185 F. 2d 285 (C.A. 2), and NL.R.B. v. Jamestown Sterling Corp., TIDELANDS MARINE SERVICE, INC. 319 the original hearing closed, the only witness whose pretrial statement to the Board's field examiner was produced was Herman Jackson, the General Counsel having produced it in deference to my opinion, somewhat emphatically given, that a foun- dation for its production had been established on his cross-examination. As stated, after the hearing closed, on the strength of the supervening decision in Ra-Rich Manufacturing Corporation, 121 NLRB 700, I initiated steps culminat- ing an a reopened hearing for the purpose of permitting further cross-examination of 10 named witnesses in the light of their pretrial statements. Five of these (0. L. Reams, Charles Dunn, James Gautreau, Trout Felker, and Robert Farrar) ap- peared and underwent further cross-examination. Five did not appear. Curtis Stewart, George Jacobus, James Demarco, and Jerome Gaspard were either un- available or could not be located. The fifth was Jackson, whose pretrial statement to the Board's agent, as I have stated, was produced at the original hearing, and he was questioned concerning it in the course of a lengthy and searching cross- examination. I included him in the order of reopening because it appeared that the Regional Office had a still earlier statement of his, which had been made to a notary, warranting comparison with his testimony and his statement to the Board agent. Jackson, apparently, had "had it," for he did not respond to the subpena to appear at the reopened hearing. Additionally, although not named in the order of reopening, there was Benny Raynor, who was killed on duty shortly after he testified in the original hearing Since the right to cross-examination is a fundamental one, if the result of the unavailability or nonappearance of the absent five and the deceased Raynor at the reopened hearing was to have deprived Respondent of that right, I would have felt obliged to strike the testimony of the missing persons. However, the test of whether the right has been accorded or denied is not a mechanical one, but turns on whether there has been a "full and fair" exercise of that right in the given instance. See 98 Corpus Juris Secundum, Witnesses §§ 362, et seq. Since the most important of these witnesses was Jackson, I turn to him first. His direct testimony took less than a day (a part of the afternoon of the first and the morning of the second day of hearing) and consumed 85 pages His cross-examination consumed more than a day and a half extending over 237 pages of transcript, in the course of which, as noted, his pretrial statement to the Board's field examiner was produced and he was examined extensively on it. It was as full and searching and, I can say, as effective, a cross-examination as I have wit- nessed, and it was followed by another half-day of redirect and re-cross-examina- tion. As the memorandum on my amended order of reopening indicates, the de- cision as to whether to have Jackson recalled after this grueling ordeal was prompted by the existence of the earlier pretrial statement, which I had not seen, and which I thought could be a useful basis of comparison with his other statement and with his testimony. The earlier statement is now in the record and, so far as ap- pears, contains nothing which is calculated to illumine further the issue of credu- bility, and Respondent points to none. Indeed, the decision I have reached con- cerning his credibility and that of Reams, who did appear at the reopened hearing, can fairly be said to eliminate any conceivable disadvantage to Respondent in his failure to be present at the reopened hearing, and I am satisfied there is none. On the contrary, I am satisfied that there was a full and fair cross-examination of Jackson in every substantive sense of the term. The unlocated witnesses and ,the deceased Raynor can be grouped together. All of them were cross-examined at the original hearing searchingly and fully 32 Re- 211 F. 2d 725 (C A 2) The General Counsel appealed that ruling and the Board, May 2, 1958, sustained him on the authority of its Great A c€ P decision. 321 would hardly deem the number of transcript pages conclusive of such an issue, but neither can one fall to be impressed with the consistent length of the cross-examination of each of these witnesses in relation to the direct. The number of transcript pages for these witnesses is as follows: Witness Direct Cross Redirect I Re-Cross Curtis Stewart --_--------------------------------------- 22 28 Benny Raynor------------------------------------------ 14 35 Jerome Gaspard--------------------------------------- 13 12 12 James Demarco-- -------------------------- ----------- 5 9 1 4 George Jacobus----------------------------------------- 15 15 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not have the pretrial statement of these witnesses then, but at the reopened hearing, they were produced and placed on the record. As I ruled at the hearing, they are not in evidence as probative of their contents (see supra, footnote 4). Also, they are not in evidence as corroborative of their testimony at the hearing.33 They are in evidence for impeachment purposes only-to give Respondent the opportunity to point to variances from or contradictions with their testimony impairing their credibility Respondent has not pointed out any. If it had done so, the burden of the absence of the witness to explain the contradic- tions would have been on the General Counsel as the party who produced the witnesses and relied on them. The above seems to me to be the reasonable middle ground between the two ex- tremes of leaving the testimony of these witnesses completely unaffected by possible variances or contradictions in the pretrial statements on the one hand, and totally deleting the testimony on the other. Indeed, although, as I have ruled, the prior consistent statements cannot, in the circumstances, be used as corroborative of a witness' testimony (supra, footnote 33), nevertheless, insofar as the pretrial statements are free of material variance from or inconsistency with the testimony, they have a legitimate bearing on whether the right of cross- examination has been "fully and fairly exercised," 34 in the sense necessary to avoid the Draconic step of nullifying the many days of testimony on both direct and cross-examinations given by the witnesses. To that extent, the comparison of the pretrial statements with the testimony is entirely proper for its bearing on whether further cross- examination would be likely to have altered the present state of the testimony. We have that question here in a different posture from that which existed at the time I issued the amended order of reopening. At that time, I overruled the General Counsel's proposal that the reopening of the hearing be conditioned on the Respondent's assuming the responsibility of producing the witness and showing in advance a con- tradiction between the pretrial statement and the testimony. In so doing, I stated that we must view the matter then under consideraion as if the winesses were still under cross-examination, btu I expressly left open the kind of issue confronting us now, where the unavailability of certain witnesses is an existing reality. This poses the question of whether there is a fair and rational mean between the two extremes of ignoring the statements on the one hand and erasing their testimony on the other. For the reasons stated, I am convinced we need not grasp either nettle. After careful consideration, I am firmly of the conviction that Respondent's right of cross- examination was fully and fairly exercised in respect to all witnesses . The testimony will remain in the record. The weight hinges upon all the applicable criteria such as consistency of the testimony within itself and with any out-of-court statements of the witness, consistency with the established external context, the demeanor and general impression of candor conveyed, etc. My appraisal of the credibility of these witnesses, as with all witnesses, has been based upon a combination of all of these factors. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist from them and take certain affirmative steps to effectuate the policies of the Act. It has been found that certain employees were discriminatively discharged or not taken back on certain dates. James Gautreau is to be made whole for the period from April 6 to May 14, and Philip Wagner from May 17 to 21, 1956, the later date in each case being when Respondent respectively took them back. The other seven are to be made whole for the period ending April 13, 1957, when, so far as appears, Humble Oil took over the servicing of its rigs and this operation of Respondent ceased. The commencement dates, all in 1956, will be: Charles G. Dunn and John P. Murphy, May 15; Curtis Stewart, July 5; Percy Kennedy, June 30; Jerome Gaspard, July 18; Trout Felker, July 27; and John Murry, November 30.35 While Respondent still renders limited service to Humble Oil through a corps of seven mechanics stationed at Grand Isle, they are, as E. A. Adams put it, "strictly hot shot" and were not in the bargaining unit embracing the class of employees here involved. The requirement of reinstatement will therefore be made contingent on Respondent's resuming the operations in the tidelands area which entailed the em- 13 See 58 American Jurisprudence, "Witnesses," at sections 828, 829 At the hearing, this issue was left open I am satisfied that the weight, and better, authority is against wising prior consistent statements as corroborative, except under special circumstances, which are not present here 84 Cossack v. US, 63 F 2d 511 (CA. 9). 11 The formula of F. W. Woolworth Company, 90 NLRB 289, should be employed TIDELANDS MARINE SERVICE, INC. 321 ployment of the class of persons here involved (cranemen, enginemen, A.B.'s, deck- hands ). Immediately upon thus resuming operations, Respondent shall offer rein- statement to Dunn , Murphy, Stewart, Gaspard, Kennedy, Felker, and Murry, to their former or substantially equivalent positions , without loss of seniority or other rights and privileges (The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827, 829 ), and in the event of failure to do so, shall make them whole for resulting pay losses from date of resumption to date of offer 36 Since, by reason of cessation of operations , Respondent cannot now reach the working force here involved through the usual medium of posting of notices, another method must be used. It appears that Respondent used the New Orleans Times Picayune for recruiting purposes . It will be recommended that a notice be published in New Orleans Times Picayune 1 day during each of 2 successive weeks immediately after this report, and in the event of resumption of operations, 1 day for each of the 2 weeks during the preparatory period immediately preceding actual operations. Also, upon such resumption, the notice will undergo the usual 60-day posting 37 Because of the pervasive hostility to self-organization underlying the practices found, a broad order, in the language of Section 8(a)(1) will be recommended in order to insure the "benefits of prevention and prophylaxis " 38 against commission of future transgressions.39 Upon the foregoing findings and the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. By discriminating in respect to the hire and tenure of employees for the pur- pose of discouraging membership in the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 2. By interfering with, restraining , and coercing employees in the exercise of their rights as guaranteed in Section 7 of the Act in the above manner, and through the interrogation of employees and applicants concerning the union affiliation and atti- tudes of themselves and fellow employees, threatening to be rid of employees who support the Union and conveying that their identities are known , and instructing supervisors to discriminate against or devise pretexts for getting rid of employees because of their support, sympathy , or affiliation with said Union, and personally soliciting employees to vote against the Union during an election actually in process, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (1),of the Act. 3. The above unfair labor practices affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommendations omitted from publication.] ' Respondent asks to keep the case open pending the determination of the "suitability" of certain complainants for reemployment on the basis of data supplied by the FBI. All of these have been rendered academic because their cases have been dismissed However, Respondent has information that one , John Patrick Murphy, was arrested in 1950 on sus- picion of having embezzled "several hundred thousand dollars from Sherman Laboratories." Respondent is not sure it Is the John P Murphy of this case and asks to keep the matter open until we know. Whether the large-scale financial manipulator suspect of 1950 wound up as a maintenance man for Respondent In 1950 has intriguing facets, which, unhappily to our human curiosity , are not relevant to this already long-protracted proceeding. The request will be denied a7 Such affirmative action as shall already have been taken may be denoted by the appropriate tense 31 Hutcheson , "Judging as Administration, Administration as Judging ," 21 Texas Law Rev. (1942), 1, 6 '* N L R B. v. Cheney California Lumber Company, 327 U S. 385 SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is hopefully the last lap in a proceeding in which the hearings, begun in the spring of 1958 , concerned alleged violations occurring in 1956. The In termediate Report was issued June 151, 1959. It had been based on a record developed during a hearing conducted in New Orleans from April 15 to June 26, 1958 (the "main" hearing), and a supplemental hearing from November 18 to 20, 1958 (the "first" or the "pre-remand" supplemental hearing). On January 20, 1960, the Board issued its order reopening the record and remanding the case for further 322 DECISIONS Oh NATIONAL LABOR RELATIONS BOARD hearing.' This hearing on the remand was held in New Orleans on November 24 and 25, 1961, in Jackson, Mississippi, on November 26, 1961, and again in New Orleans on January 30, 1962, and might be termed the "second" or the "post- remand" supplemental hearing. The Record on Which This Supplemental Intermediate Report Is Based The situation giving rise to the Board's remand and, indeed, earlier to the supplemental hearing of November 1958, which preceded the Intermediate Report, was the modification of the Board's doctrine governing the requirement for the produc- tion of pretrial statements of the General Counsel's witnesses. This occurred after the main or original hearing had closed. During that hearing, Respondent, after the end of the direct examination of 11 of the 16 witnesses called by the General Counsel, demanded the production of their pretrial statements for use on cross- examination. The General Counsel refused, relying on the section of the Board's Rules as then phrased, which, inter alta, shielded the General Counsel's files from outside scrutiny, except upon his written consent. Respondent contended that this Rule was superseded by the doctrine of the Supreme Court in Jencks,2 which upheld a defendant's right to the pretrial statements of the witnesses put on by the prosecu- tion, for use on cross-examination, and moved that I direct the production of these documents. The matter was then controlled by the Board's decision in The Greac Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280, holding that the doctrine of Jencks, which was a criminal proceeding, did not apply to a proceeding before an administrative agency, and hence that the section of its Rules previously cited still controlled. Deferring to Great A & P, I held Respondent was not entitled to the pretrial statements as a matter of right and denied the motions to direct production of these documents on that basis, leaving open the right to renew the demand upon laying a further foundation therefor.3 On August 28, 1958, the Board came down with Ra-Rich Manufacturing Corpora- tion, 121 NLRB 700, which, overruling A & P, held the Jencks doctrine to be applica- ble and hence that a party, on proper demand, is entitled, for use on cross-examination, to the pretrial statements of witnesses for the General Counsel after completion of their direct examinations. On September 3, 1958, I wrote the parties calling attention to Ra-Rich, and directed the General Counsel to make available to Respondent all pretrial statements which it had unsuccessfully demanded at the hearing. Respond- ent was asked to notify me which witnesses it wanted recalled for further cross- examination in the light of their statements. The General Counsel showed Respond- ent the pretrial statements of all 16 witnesses, without regard to whether their pretrial statements had been requested at the original hearing 4 Respondent then 1126 NLRB 261 2 Jencks v United States, 353 US 657. 3I indicated that I would direct their production in the exercise of my discretion where a specific "necessity" therefor appeared in any given instance During the later stages of the cross-examinations of the first three witnesses in the case (0 L Reams, Herman Jackson, and Trout Felker) I ruled that such a necessity had been shown and directed their production on the basis of classic doctrine preceding Jencks and embodied in such cases as NL.RB. v. Quest-Shop Mark Brassiere Co., Inc, 185 F 2d 285 (CA 2), and N L.R B v Jamestown Sterling Corp , 211 F. 2d 725 (C.A. 2). The General Counsel filed an interlocutory appeal to the Board from this direction, and the Board, on May 2, 1958, sustained the appeal saying: "See The Great Atlantic and Pacific Tea Company, National Bakery Division, 118 NLRB 1280," without addressing itself to the validity of the determination that a specific foundation had been established in the given instances on grounds apart from Jencks. Ultimately, and during a still later stage in the cross-examination of Jackson, I did pre- vail on the General Counsel to withdraw his resistance in respect to Jackson. The General Counsel produced the pretrial statement Jackson had made to the Board's field examiner, which was then assumed to be the only pretrial statement made by him Developments after close of the main hearing and in the wake of the Board's supervening decision in Ra-Rich Manufacturing Corporation, 121 NLRB 700, indicated that the various wit- nesses, including Jackson, had made earlier statements under private auspices (I e , the Union's), which were turned over to the Board's agent and reconfirmed by them at about the time they made the fuller statements with the Board's field examiner. Thus Jackson remained, albeit to a lesser degree, in the same category as the other witnesses, whose pretrial statements were altogether withheld. 'These were, in the order in which they testified* (1) 0 L. Reams, (2) Herman Jackson, (3) Trout Felker, (4) Curtis Stewart, (5) James Gautreau, (6) Benny Raynor, TIDELANDS MARINE SERVICE, INC. 323 demanded further cross-examination of all but two of these witnesses, the two excep- tions being Raynor, who had meanwhile died, and Joseph Montgomery, whom Respondent had not cross-examined. I limited the further hearing to the 10 in that group whose statements had been demanded, thus excluding Wagner, Kennedy, and Lee, whose statements had not been demanded, and Murry, in respect to whom Respondent had acquiesced in a substitute arrangement, whereby the substance of his pretrial statement had been put on the record and he was cross-examined in the light thereof. At the first supplemental hearing, held in November 1958, five of the witnesses directed to be produced (Reams, Dunn, Gautreau, Felker, and Farrar) appeared and were cross-examined further. Of the five who did not appear, four (Stewart, Jacobus, Demarco, and Gaspard) could not then be located, and Jackson had failed to respond to a subpena. The Intermediate Report, issued June 15, 1959, was based on the main hearing and the November 1958 supplemental hearing. In that report, I treated the issue of whether the testimony of the witnesses who had not appeared for further cross- examination should be retained in the record or be stricken. Being of the view that there had nevertheless been a full and fair cross-examination of these witnesses, I held their testimony could be retained, albeit scrutinized closely as against their pretrial statements, which were put into the record. On the record thus made, I determined that some portions of the General Counsel's complaint had been sustained and others not; that Respondent had engaged in various violations of Section 8(a) (3) and (1), including discrimination against 9 of the 16 persons claimed to have been discriminated against, and recommended a remedy adapted to the conditions then assumed to be prevailing. The General Counsel and Respondent filed exceptions. Respondent, in addition to the merits, challenged the Trial Examiner's procedural determinations in the wake of Ra-Rich. In its Decision and Order of January 20, 1960, the Board did not reach the merits. It determined that the supplemental hearing of November 1958 should have extended to 13 of the 14 witnesses whom Respondent had wanted produced for further examina- tion and that the scope of further cross-examination at that hearing had been unduly limited, thus requiring that further cross-examination be had of all 13, including the 5 who had appeared at the November 1958 hearing and had undergone cross-examina- tion in the light of their pretrail statements. It held also that the testimony of such witnesses as are not produced for such further cross-examination, whatever the cause, is subject to being stricken. The Board accordingly remanded the case for further cross-examination of the 13 in question 5 and the rendition of a Supplemental Intermediate Report in the light of the record thus made. At the post-remand hearing, held October 24 to 27, 1961 and January 30, 1962, further cross-examination was held of 7 of the 13 witnesses named in the Board's remand 6 The six who did not appear are named below.7 Pursuant to the terms of the remand the testimony of the six named in footnote 7 and of the deceased Raynor is stricken. The record thus consists of all of the testimony of the remaining nine of the witnesses for the General Counsel who are named in footnote 4.8 It includes also the testimony of the 16 witnesses put on by the Respondent. The entire record as thus constituted, consisting of the matters developed at the postremand hearing,9 as well as during all the stages preceding it, has been carefully examined anew and subjected to a new appraisal This has been facilitated in large part by the fact that despite the intervening years, the case has remained rather fresh in the Trial Examiner's memory. Upon the record and my observations of the witness, as thus indicated, I hereby supplement and modify my original Intermediate Report in respect to the following: (7) Charles Dunn, (8) Jerome Gaspard , ( 9) James Demarco , ( 10) Robert Farrar, (11) Joseph Montgomery , ( 12) Phillip Wagner, ( 13) Percy Kennedy, ( 14) Vergil Lee, (15) John Murry , and (16) George Jacobus 5 These are all persons named in footnote 4, above , except Montgomery, the deceased Raynor, and Murry. 9 These were : Jackson, Felker , Gautreau , Dunn, Gaspard, Kennedy , and Wagner Felker was examined at the veterans hospital in Jackson , Mississippi , on October 26, 1961 7 Reams , Farrar, Lee , Demarco, Stewart , and Jacobus , the last named having mean- while died 9 Jackson , Felker , Gautreau , Dunn , Gaspard , Montgomery , Wagner, Kennedy , and Murry. 6 The record of which was corrected on notice to the parties 681-492-63-vol. 140-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT Parts I and II of the original report, relating to commerce findings and the Charging Party's status as a labor organization, are reaffirmed. III. THE UNFAIR LABOR PRACTICES A. The organizational campaign and the conduct preceding the election 1. Occurrences during the campaign of NMU, preceding that of the Charging Union The findings are reaffirmed except that the discussion of the testimony of Vergil Lee, implicating Captain Cowan in an alleged promise of a wage raise, though not credited by me in the original report, is, under the terms of the remand, stricken altogether. 2. Preelection conduct during campaign of Charging Party a. Interrogation of employees The finding of interrogation of Vergil Lee by Captain Cowan is stricken for the reasons previously given. The remaining findings are reaffirmed Charles G. Dunn and James C. Gautreau testified at the main hearing and at both supplemental hearings. These witnesses, now undergoing cross-examination for a third time, the last two being in the light of the pretrial statements, were most impressive in their directness and candor. Each re- flected more than ever the qualities of reliability and stability which, in many ways, set them apart from the common run of the persons hired in that operation. Their testimony, with allowance for a variance on a minor point by Dunn, was impressively consistent and confirmed my confidence in their veracity. The findings concerning Cowan's conversations with them are reaffirmed. b. The discharge of lames C. Gautreau The findings are reaffirmed. B. The conduct after the election 1. The Respondent's reaction to the results of the election and Cowan's expression of retaliatory intent toward the supporters of the Union The testimonies of Benny Raynor and George Jacobus having been stricken, so too are the findings of the separate conversations held with each of them by Captain Cowan. While Reams' testimony has been stricken, the record retains Cowan's testimony, in which he admitted that he had instructed Reams to find a stratagem for getting rid of De Lapouyade on a pretext which would mask what Cowan asserted was the true reason. Cowan admitted to having given like instructions to Supervisor Jack- son in respect to Stewart and to Supervisor Hatfield in respect to Wagner. By Cowan's admission, it was he who initiated the suggestion of resort to deceptive de- vices for getting rid of employees. Based upon this and the generally unreliable character of Cowan's testimony on controversial issues, I had, in the original report, credited Reams' and Jackson's testimony that Cowan had instructed them to get rid of the union supporters on their vessels on some pretext. Although I found this was the motivation that Cowan had instilled in Reams in respect to the men on his vessel, I nevertheless, in the original report, found against the General Counsel in respect to the three discharges accomplished by Reams (De Lapouyade, Farrar, and LeDuc). This was based on the fact that despite the pre- existing motivation inhering in Cowan's instructions to, Reams, the evidence did not establish that the discharges of these three persons had been in effectuation of Cowan's instructions. The corrupting influence of Cowan on Reams carried over to the point where the former used Cowan's instructions to advance an interest of his own, he having collusively arranged with Farrar and LeDuc for their discharges. The result was so to discredit Reams that I could not rely on his version of how he effectuated the discharge of De Lapouyade, and since the latter never testified, and there was no other testimony concerning the manner in which the discharge was brought about, there was an insufficiency of proof that the antiunion motive for Cowan's instructions to Reams carried over into the manner in which Reams later terminated De Lapouyade. TIDELANDS MARINE SERVICE, INC. 325 The result of striking Reams' testimony is to eliminate the following two findings: (a) that Cowan told Reams that there were 53 men who voted for the Union who were to be gotten rid of, and (b) that after Reams discharged De Lapouyade, Cowan also was after him to discharge Farrar. Not stricken, however, is the finding that Cowan had instructed Reams to discharge De Lapouyade on a pretext, and that after Reams did so Cowan praised him for it. These findings are based not on the testi- mony of Reams but of Cowan, who admitted to having given the instruction to use the stratagem and to having praised Reams for excusing it, albeit for a hidden rea- son other than De Lapouyade's known union support. Cowan's admission to having given like instructions to Supervisors Jackson and Hatfield in respect to Stewart and Wagner, respectively, bears upon his general character, and is an element considered in evaluating his testimony concerning controverted matters As between Dunn, who testified that Cowan, in response to Dunn's request for time off during the hot weather, told him "there are fifty three of you so and so fellows that are not good company men, and I will get my revenge and you can go right now if you want to," and Cowan, who denied it, there is hardly any issue as to who was telling the truth. The finding that Cowan made the statement to him as testified to by Dunn is reaffirmed. The above, taken in connection with Cowan's own admissions, are factors in evaluating Jackson's testimony as against Cowan's. I have had another chance to observe Jackson and have reread his testimony. My conclusion that he should be credited on controversial matters only when corroborated was a rule of caution applied on the basis of his shabby performance in his testimony concerning his interview with Attorney Brown. Despite this, it must, in all fairness, be said that his testimony concerning Cowan's instruction to him not only stood impressively together, but was confirmed in all essential particulars by Cowan himself in respect to the discharges of Dunn, Murphy, and Stewart, and even more impressively by Supervisor Hemphill, whom Cowan sent down for the specific purpose of getting rid of Stewart after Jackson reported to Cowan that Stewart had been highly circum- spect and had given him no reason, in the form of even a pretext, to discharge him. Also considered are Cowan's interrogation of Murry, as well as Kennedy and a fellow applicant, the findings concerning which are hereby reaffirmed. The findings concerning Cowan's statements and instructions to Jackson are reaffirmed. 2. The discharges on the ST-6, Jackson's vessel a. The instructions concerning specifically named union supporters on the "ST-6" For reasons previously stated, the findings concerning Cowan's instructions to Jackson are reaffirmed. b. The discharges of Dunn and Murphy For like reasons, the findings in respect to them are reaffirmed. c. The alleged discriminatory discharge of Virgil Schrage The finding based on the insufficiency of the evidence is reaffirmed. As in the case of De Lapouyade, who had been discharged by Reams, Jackson's version of how he effectuated ,the discharge of Schrage did not establish that it was in execution of Cowan's general instructions as found. d. The discharge of Curtis R. Stewart The testimony of Stewart has been stricken pursuant to the terms of the remand So too, for the same reason, is the finding, based on Raynor's stricken testimony, con- cerning Cowan's conversation with Raynor and Hassell Daws in regard to Stewart, and of the conversation between Raynor and Supervisor Hemphill after the latter discharged Stewart. Also stricken is Demarco's testimony that Cowan sent him to the ST-6 before the election to "talk it up with the boys" and had specifically asked him about what Stewart had been saying about the Union. These are minor aspects of the totality of the evidence rather formidably mani- festing the antiunion motivation for the discharge of Stewart. As earlier indicated, Cowan, who admittedly gave the instructions to find a "way" to get rid of Stewart, and Supervisor Hemphill, who executed Cowan's mission to do so, impressively con- firmed Jackson's testimony on all points. So much so that even were Jackson's testi- mony to be omitted, the testimony of Cowan and Hemphill independently serves to demonstrate that Stewart was discharged because of his union leadership. Taken in 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD connection with Jackson's testimony, and the other corroborative elements recited in the original report, the ultimate conclusion of discriminatory intent is inescapable. The finding that Stewart was discriminatorily discharged in violation of Section 8(a)(3) and (1) is reaffirmed. 3. The discharge of Phillip R. Wagner on the ST-1 This is another person admitted by Cowan to have been singled out for dis- charge, with attendant instructions to the supervisor to do so for some reason other than the actual motivation. Supervisor Hatfield, in getting rid of Wagner, protested to him that this was not his doing but Cowan's. Cowan's own testimony confirms that his rescission of Hatfield's action a few days later was not based upon any repudiation of its purpose but upon the ineptness of its execution: the reason given by Hatfield for the discharge was too insubstantial to stand scrutiny, and so he rescinded the action as a "mistake." The issue is the same as in Stewart's case: what was the reason for Cowan's admitted desire to be rid of Wagner and for his admitted instructions to resort to a deceptive device for doing so? The probabilities, considered in connection with Cowan's manifest purpose in getting rid of all union supporters, point to the conclusion that the motivation which Cowan was seeking to hide by the stratagem was not Wagner's untidiness but his active support of the Union. The findings in respect to Wagner are reaffirmed. 4. The discharges on the ST-2 by Supervisor Reams For the reasons stated in the original Intermediate Report, as amplified in an earlier part of this Supplemental Report, I reaffirm the finding that the General Counsel has not established his case in respect to the discharges of De Lapouyade, Farrar, and LeDuc. To clear up any misunderstanding: in finding that Reams had arranged the discharges of Farrar and LeDuc collusively with them, I do not wish to be understood as suggesting that Cowan was the innocent target of a conspiracy. There was indeed collusion between Reams and these two dischargees, as I have found. But it was a backfiring of the very corruption to which Cowan ad- mitted in instructing Reams to use a deceptive device in getting rid of an em- ployee. Reams turned out to be a more apt pupil than Cowan had counted on, and used corrupt devices to advance not Cowan's purposes but his own. The result was not only to destroy the cases of Farrar and LeDuc, who were in col- lusion with Reams, but also to leave De Lapouyade's case bereft of sufficient evidence that his discharge was in execution of the discriminatory motive which I have found existed. In that connection, I have considered Cowan's admission that when Reams informed him of De Lapouyade's discharge, he expressed his gratification over it. However, I do not deem this sufficient to meet the General Counsel's affirmative burden. Accordingly, I adhere to my original finding that De Lapouyade's case was not made out by the requisite preponderance of the evidence. 5. The layup of the ST-4 and the layoff and failure to recall members of its crew Felker, Gaspard, and Kennedy underwent cross-examination at the remand hear- ing, Felker now for the third time, the last, as stated, being at the veterans hos- pital. The effect is to leave intact the ultimate finding as stated in the concluding sentence of the section.io As to the evidentiary findings, they too stand except those relating to the two conversations with the now deceased Jacobus, which are stricken. The back- ground finding of Cowan's reference to the 53 who voted for the Union is modi- fied to conform with Cowan's statement to Dunn, rather than to the deceased Raynor, whose testimony has been stricken. Upon a rereading of the original testimony and reading of the new, one is more than ever struck by the incredible explanations for the incredibly unbroken series of coincidences attending this ill-fated crew, beginning with the failure to follow the usual practice, testified to by Respondent's own witness, Saucier, of putting the crew of a laid-up vessel "somewhere else," to the alleged unavailability 10 Kennedy was confused as to the sequence between his inquiries of Cowan and certain of his pretrial statements, but there is still hardly any question of who, as between him and Cowan, gave the truthful version of the conversations between them as recited in the original report. TIDELANDS MARINE SERVICE, INC . 327 of jobs for any crewmember who called to inquire fora job, and the alleged avail- ability of jobs, when a crewmember happened not to call. Taken as a whole, one can hardly escape the conviction that Cowan's explanations were a tissue of fabrications. Under established doctrine, this betrays a purpose to conceal the true reason for the adverse action taken against the men, and considered in the light of Cowan's manifest interest and purpose, constitutes additional and mde- dependent evidence of discriminatory intent. C. Concluding findings These are modified in accordance with the modifications of the evidentiary find- ings, previously stated. Thus the findings of coercive interrogations of Murry, Gautreau, Kennedy, and a fellow applicant stand. Those relating to Lee, Jacobus, and Demarco are stricken. The finding of Cowan's expression of retaliatory in- tent toward the 53 men who voted for ,the Union, as made to Dunn, stands. That made in the conversation testified to by the deceased Raynor is stricken, includ- ing Cowan's statement to Raynor that he knew who the 53 men were. The findings of Cowan's personal solicitation of the votes of Dunn and Murry stand. That relating to Jacobus is stricken. The findings relating to Cowan's instruc- tions to Supervisor Jackson to get rid of known union supporters on a pretext stand. So, too, do the same findings stand concerning Cowan's instruction to Supervisors Hatfield and Hemphill to find a way to get rid of Wagner and Stewart, respectively. Whether Cowan specifically imparted to the latter two his antiunion motivation, his instruction to them to employ deceptive devices in getting rid of the employees they discharged was an enlistment of their aid in pursuit of an il- legal purpose, which was accomplished. N. THE REMEDY The original remedy provided for backpay without reinstatement to Gautreau and Wagner for the periods between their discriminatory discharges and their re- employment. For the remaining seven," a cutoff date of April 13, 1957, had been provided, with revival in .the event of failure to offer them reinstatement upon resumption by Respondent of operations in the Tideland area in the Gulf of Mexico. This was based upon the assumption that except for a corps of mechanics stationed at Grand Isle to render special services to Humble Oil, of a kind which Respondent said the seven discriminatees in question were unequipped to render, Respondent had wholly ceased operations, and that until these operations were resumed there were no jobs for any of these seven. Developments at the remand hearing indicate that the assumption may have been premature and that its content should have been left, in the usual manner, for determination at the compliance stage on the basis of evidence. Thus, despite the asserted nonresumption of operations, Respondent has stated that it has offered these seven jobs at Grand Isle. Although I excluded the letters themselves as being premature insofar as they were intended to show compliance with the remedial reinstatement requirement, the assertion that there were jobs available for them opens a line of inquiry as to when, in fact, such jobs, or any other jobs, became available for any of them, their equivalence to the old, etc. Under these cir- cumstances, it would seem appropriate that the remedy be phrased in the conven- tional terms-leaving the matter of availability or nonavailability of positions for them from the time of the discrimination for determination at the compliance stage on the basis of a record. Nothing in the remedy is intended to award backpay to these persons for periods during which, even if there had been no discrimination against them, they would not normally have been employed. It simply means that in place of the assumption of unavailability of jobs after April 13, 1957, as made in the original remedy, the matter is left open for determination at the compliance stage after the issue of liability itself is finally disposed of. The Recommended Order embraces the understanding that "whatever the Re- spondent has already done toward compliance with the [Recommended Order] will not be required to be redone and only such things, if any, as have been left undone will be required to be done." (N.L.R.B. v. Davis, et al., d/bla Davis Lumber Com- pany, Inc., 172 F. 2d 225 (C.A. 5) ), with the issue of whether Respondent has done or left them undone kept open for resolution at the compliance stage. Also left open for the compliance stage is the question of whether even if the offers should be determined not to have met the "full reinstatement," test of the convene "Dunn, Murphy, Stewart, Kennedy, Gaspard, Felker, Murry. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional 8(a) (3) remedy in a manner operating to cut off the running of the backpay period, the men were not thereby in any event given an opportunity to reduce their pay losses. This calls into play such questions as the good faith of the offers, the reasonableness for the refusal of the offerees to avail themselves thereof, etc., which again should be determined on a record specifically dealing with the subject. These are all matters which should await the compliance stage after ultimate disposition of the basic issue of the liability itself. The dates of the commencement of the backpay liability, all in 1956, remain as before-Dunn and Murphy from May 15; Stewart from July 5; Kennedy from June 30; Gaspard from July 18; Felker from July 27; Murry from November 30. The backpay periods for Gautreau and Wagner remain, as before, from April 6 to May 14, and May 17 to 21, respectively. Wagner, at the hearing on remand, spoke of his having been "entitled to two days off" during that 4-day period. It is not clear whether he would have taken that time off even if he had not been dis- charged. This too is a matter to be considered on compliance. Backpay is to be computed in accordance with the formula of F. W. Woolworth Company, 90 NLRB 289. Reinstatement is to be offered in accordance with the principle enunciated in The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 63 NLRB 656. If jobs on such basis are presently unavailable for some or all of the discriminatees for nondiscriminatory reasons, they shall be placed on a preferential hiring list in the manner enunciated in The Jefferson Company, Inc., 110 NLRB 757, 761, and Clayton E. Smith and Willard Smith d/bla Clayton-Willard Sales, 126 NLRB 1325, 1328. The broad cease-and-desist requirement remains in effect for the reasons originally stated. CONCLUSIONS OF LAW Conclusions of Law Nos. 1 and 3 remain unchanged. No. 2 is modified by striking "and conveying that their identities are known." Upon all the findings and conclusions in the Intermediate Report, as modified by this Supplemental Intermediate Report, and upon the entire record of this case, the Trial Examiner, pursuant to Section 10(c) of the Act, hereby issues the following: RECOMMENDED ORDER Tidelands Marine Service, Inc., its agents, officers, 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, or any other labor organization, by dis- charging, laying off, or refusing to recall or otherwise discriminating against any employee because of his support of, sympathy, or affiliation with such labor organization. (b) Coercively interrogating employees or applicants for employment concerning the union affiliation or sympathies of themselves or fellow employees; threatening that those who have voted for the above Union or any other labor organization will be discharged; soliciting employees' votes during an election; and instructing super- visors to discriminate against or to devise pretexts for getting rid of employees because of their support of, sympathy, or affiliation with said Union, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist said Union or any other labor organization, and to engage in or to refrain from engaging in concerted activities, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Make whole James C. Gautreau and Phillip R. Wagner in the manner set forth in the section of this supplemental Intermediate Report entitled "The Remedy." (b) Offer to the persons named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, or, if such positions are presently unavailable, place them on a preferential hiring list for the filling of future vacancies; and make them whole for any loss of pay suffered as a result of the discrimination against them from the respective dates of discrimination, as found, to the offer of reinstatement or placement upon a preferential hiring list, as the case may be, in the manner set forth in the remedy section of this Supplemental Intermediate Report. The persons TIDELANDS MARINE SERVICE, INC. 329 are: Charles G. Dunn, John P. Murphy, Curtis Stewart, Jerome Gaspard, Trout Felker, Percy Kennedy, and John Murry. (c) Preserve and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, record of operations and their durations, and any and all other data relevant to or bearing upon compliance with (a) and (b) above. (d) Post and publish the attached notice marked "Appendix." 12 Copies, to be furnished by the Regional Director for the Fifteenth Reigon, shall be duly signed by Respondent's representative. Immediately thereafter, the same shall be published in the New Orleans Times Picayune for 1 day during each of 2 successive weeks. Respondent shall post and maintain such notice for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by other material (e) Notify the Regional Director for the Fifteenth Region, in writing, within 20 days from the receipt of this Recommended Order, what steps it has taken to comply with its provisions.i3 IT IS FURTHER ORDERED that in respect to any alleged violations not herein found to have occurred, the complaint be dismissed. 12 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 131n the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, you are notified that: WE WILL NOT discharge, lay off, refuse to take back, or otherwise discriminate against any employee because of his support of, sympathy, or affiliation with Seafarers' International Union of North America, Atlantic and Gulf Districts, AFL-CIO, or any other labor organization. WE WILL NOT coercively question any employees or applicants for employ- ment concerning the sympathy or affiliation of themselves or any other employee with the above Union or any other labor organization; threaten to discharge or otherwise discriminate against any employees because of their support of, sym- pathy, or affiliation with the Union, or any other labor organization; personally solicit the votes of employees during an election actually in process, or instruct any of our supervisors to discriminate against or to devise pretexts for getting rid of any employee because of support of, sympathy, or affiliation with the above Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist the above Union or any other labor organization, or engage in or refrain from engaging in concerted activities, all as guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer to Charles G. Dunn, John P. Murphy, Curtis Stewart, Jerome Gaspard, Trout Felker, Percy Kennedy, and John Murry immediate and full reinstatement to their former or substantially equivalent positions, without prej- udice to their seniority or other rights and privileges, or if such positions are presently unavailable, place them on a preferential hiring list for the filling of future vacancies; and WE WILL make each of them whole for any loss of pay suffered as a result of the discriminations against them WE WILL also make whole James C. Gautreau and Phillip R. Wagner for any loss in pay by reason of the discrimination against them. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to join or support the above Union or any other labor organization, or not to do so as they wish, except to the extent that this right could be affected by any contract with a labor organization , made in conformity with Section 8 (a) (3) of the Act, which conditions retention of employment on member- ship in a labor organization. TIDELANDS MARINE SERVICE, 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. Employees may communicate directly with the Board 's Regional Office, T 6024 Federal Building, 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411 , if they have questions concerning this notice or compliance with its provisions. Reserve Supply Corporation of L.I., Inc. and Local 1205, affili- ated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America. Case No. 2-CA- 8103. December 27, 1962 DECISION AND ORDER On April 3, 1962, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 attached Interme- diate Report. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended that these allegations be dismissed. Thereafter, the Respond- ent, the General Counsel, and the Charging Union each filed exceptions to the Intermediate Report with supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a) (1) when Seaman, Respondent's general manager, asked Adams, the president of the Independent Union, whether it was true that "the boys at Pine Aire have been talking to the Union" (Local 1205, Teamsters) ; when Supervisor Berg threatened Vannoy that he might be transferred to another warehouse 25 miles from his place 140 NLRB No. 23.