Tidelands Marine Services, Inc.

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in a labor organization as a condition of employment, as au- thorized in Section 8 (a) (3) of the Act, as amended. MOORE DROP FORGING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Transit Building, Fourth and Vine Streets , Cincinnati, Ohio, Telephone No. Dunbar 1-1420, if they have any questions concerning this notice or compliance with its provisons. Tidelands Marine Services , Inc. and Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District , AFL-CIO. Case No. 23-CA-1501. August 03, 1963 DECISION AND ORDER On March 19, 1963, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. The Trial Examiner also found that Respondent had not engaged in cer- tain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, Respondent and General Counsel filed exceptions to the Intermediate Report, and the latter also filed a supporting brief. 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 Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications stated below. The Trial Examiner found that the Respondent did not discrim- inate against employees Roy Lee Klaus and Theodore Elkins in viola- tion of Section 8(a) (3) of the Act when it selected them from u num- ber of union adherents for discharge on September 10, 1962. The General Counsel contends that these two employees along with em- ployee Jim McLain were the ringleaders of the Union and were for that reason discharged as part of the Respondent's concerted and un- 144 NLRB No. 1. TIDELANDS MARINE SERVICES, INC. 177 lawful campaign against the Union.' We find, contrary to the Trial Examiner, that a preponderance of the evidence, which is described below, supports the General Counsel's position. The record shows that the Respondent contracted with Humble Oil & Refining Company to operate the latter's boats and on May 6, 1962, took over the personnel of Brown & Root, Inc., which had, performed those services for Humble for a number of years.2 Clifton Weaver, who had been with Brown & Root since 1949, but had had very little to do with the boat operation, became the Respondent's port captain in charge of that operation and took over from Humble the functions of hiring, firing, and supervision.3 As detailed in the Intermediate Report, Weaver, who admitted knowledge of the organizational activi- ties of the boat operators when he took up his new position with the Respondent '4 promptly embarked upon a course of unlawful anti- union conduct during the ensuing months. Thus, the Trial Examiner found, and we agree, that Weaver interfered with the employees' free- dom to engage in organizational activities in violation of Section 8(a) (1) of the Act by granting a wage increase to employees on or before May 9, 1962; asking prospective employees whether they were union members; conditioning the employment of applicant Raymond Sons in early August 1962 on his promise to cross a picket line should one be established; and using James Rountree, a new employee hired on January 3, 1962, for surveillance of the union activities of the other employees.' We also agree with the Trial Examiner that the Respondent further combated the Union by unlawfully refusing to bargain with its representatives in violation of Section 8 (a) (5) of the Act after its certification on August 31, 1962,6 and by discrim- inatorily discharging Sons on September 28, 1962, in violation of Section 8 (a) (3) of the Act, soon after Weaver learned from Rountree The complaint makes 8 ( a) (3) allegations as to Klaus and Elkins, but not McLain In a letter to the employees , dated May 9, 1962, the Respondent stated that: "Tide- lands is the affiliate of Brown & Root . . . and this change will not affect your record of service of [ sic] your participation in the employees benefit program." As indicated in the Intermediate Report, the employees remained under the same welfare and retirement plan, and when Klaus and Elkins were terminated in September 1962, both were placed with Brown & Root with no new hiring procedure and the same welfare fund protection. 3 However, Woody Frazier, a Humble superintendent, who had been in complete charge of the day-today boat operations and was familiar with the work performance of the employees, continued to determine the routes as well as the boats to be dispatched and retained absolute authority for deciding the number of men needed for the entire opera- tion. Weaver testified that on May 10 , 1962, he went over the schedule with Frazier who told him that there were three or four boat operators too many. As indicated below, Weaver took no action to reduce the work force until September 10, 1962, and in fact added thereto in early August 1962, when he hired Raymond Sons. 4 The first meeting of the Union among the boat operators was held on May 2, 1962, and the Union filed its petition for an election 9 days later. c It was Rountree who recruited his father-in law, Sons, when Weaver asked Rountree if he knew anyone who would be willing to cross the picket line in the event one were set up. Both Rountree and Sons testified to this effect. Weaver admitted that he asked Sons "if he would run a picket line" but denied that he would not have hired Sons if the latter had not expressed "a very devout hate against the union." 'The Union won the election held on July 13, 1962, by a vote of 12 to 6 178 DECISIONS Or NATIONAL LABOR RELATIONS BOARD that Sons had changed his antiunion attitude and had "sold out" by joining the Union on September 13, 1962 7 As noted in the Intermediate Report, Rountree quickly disclosed himself to Weaver as opposed to the Union and was used by him to observe the union activities of all the other employees. According to the credited testimony of Rountree, he and, Weaver discussed the Union "between 50 and 100 times" after Weaver ascertained from Rountree that he was opposed to the Union.' Weaver testified cor- roboratively that Rountree "at the very outset was more or less a set of ears" for him and reported from time to time concerning union activities and whether various employees were for or against the Union. In connection with the foregoing reports, the Trial Examiner pointed out that Rountree at the hearing repeatedly referred to Klaus, Elkins, and McLain as the three "ringleaders" of the Union. The Trial Examiner did not credit these statements on the ground that the "facts in evidence" did not support Rountree whose "testi- mony as a whole showed a marked tendency to exaggerate."' In so finding, it appears, however, that the Trial Examiner did not take cognizance of Weaver's supporting testimony on this issue.' Thus, the record shows that, in response to the question of the Respondent's counsel as to whether Rountree before late September 1962, had told Weaver that Klaus, Elkins, and McLain were "the 3 key union men," Weaver replied, "He had." Weaver then stated that he did not recall the occasion when he was told about these three employees, "but he [Rountree] had told me shortly after I went on the job [May 1962] that Roy Lee Klaus was the key union man, and he had told me that Jim McLain was a union man, and he didn't have to tell me that Ted Elkins was." In answer to the ques- tion of counsel for the Charging Party during the same hearing day, "And it didn't take you long from the time you went down on the job to find out that Mr. Klaus was one of the ringleaders for the union, one of the main or principal organizers?" Weaver replied, "That was one of the first things Mr. Rountree told me." Weaver was then asked by counsel for the Charging Party as to when he had found out that Elkins "was one of the ringleaders for the Union." 7 The Trial Examiner found that Weaver 's testimony that Sons had quit and his denial that he discharged Sons because the latter joined the Union was, in view of Sons' credited testimony to the contrary and Weaver 's "pervasive antiunion bias" and earlier resort to illegal methods, "unpersuasive , implausible, indeed, almost incredible on its face." 8 According to Rountree's credited testimony as corroborated by Weaver , Rountree's sur- veillance and reports to Weaver continued until September 27, 1962, when Rountree told the latter that he and Sons had joined the Union and he did not want Weaver "asking him any more questions about the Union." As noted above the Trial Examiner credited Rountree's statement that Weaver then replied, "You have sold me out." 9 Yet, as indicated herein and in the Intermediate Report, the Trial Examiner did in fact credit much of Rountree's testimony and found that Weaver's testimony concerning Sons was "unpersuasive , implausible, indeed, almost incredible on its face." TIDELANDS MARINE SERVICES, INC. 179 Weaver first replied, "I don't recall the circumstances surrounding Elkins' participation in the union," but, upon further questioning, stated, "I knew before the election how he stood." As indicated in the Intermediate Report, the Trial Examiner found that Weaver knew that Klaus acted as a union observer at the election and as a union steward and was openly active in support of the Union. Although the Trial Examiner found on the basis of some of Elkins' testimony that his activities in signing an authorization card, at- tending but not speaking at union meetings, and talking to others in favor of the Union did not significantly single Elkins out among union sympathizers, it is noteworthy that Elkins also testified that he carried on organizational activities among the men from May until the election in July 1962, and that Weaver testified that "Mr. Elkins very strongly indicated to me that he was for the Union." In any event, it is clear from Weaver's admissions that he was told by Rountree that Klaus, Elkins, and McLain were the ringleaders of the Union in contrast to the other employees who were merely union adherents.10 It was against the foregoing background that Frazier on behalf of Humble on September 6, 1962, repeated his earlier statement, made on May 10, 1962, concerning the need for a reduction in force 11 and directed Weaver to put into effect a schedule which eliminated Roun- tree, McLain, and an employee named Lee Horton. However, Weaver decided to follow Frazier's schedule only as to McLain and also chose for discharge on September 10, 1962, ringleaders Klaus and Elkins, who were the two most senior employees and had 10 years' service as compared to Rountree and Sons, antiunion employees, who were retained although they had but 9 months and 6 weeks of service, respectively. Weaver admitted'that he told Rountree, who was still in his good graces in early September 1962 as his antiunion confidant, that he had "saved" Rountree's job after Frazier proposed his removal. As for Sons, whose conversion to unionism had not yet taken place or been made known to Weaver, it is noteworthy that he was retained at this time despite the Respondent's contention in regard to Sons' later discharge that Sons had been hired only as a temporary employee. 10 According to Rountree, after the election weaver made the proposal, which he aban- doned as too complicated, that Rountree "get McLain , Elkins, and Klaus drunk ," get them arrested for creating a disturbance, and in that way destroy them as witnesses Weaver admitted telling Rountree that if he [Weaver] "was man enough" he would like "to arrange a setup" leading to the arrest of "some of these men " However, Weaver, who testified that he gave up the plan as "wrong," stated that he did not recall that "names were named" in connection therewith. 11 The General Counsel did not question the propriety of such a reduction but, as stated above, contended that Respondent's selection of Klaus and Elkins as ringleaders of the Union for termination was discriminatorily motivated. 727-083-64-vol. 144-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Weaver described Klaus as a good boat operator, Weaver gave as the reason for discharging Klaus the "strained relations" between him and Frazier.12 Yet, as the record shows, Frazier, for whose feelings Weaver showed such solicitude, was not sufficiently troubled by Klaus to suggest him for termination. While Weaver explained that Elkins was chosen for discharge because of "an in- different attitude" toward his work, Frazier, who knew Elkins for a decade, apparently had a sufficiently high opinion of his perform- ance not to suggest him for termination. That Weaver's purpose was in reality the removal of ringleader Elkins is further borne out by the fact that Weaver thought well enough of Elkins' performance to arrange for his transfer back to Brown & Root. It is significant also that Weaver explained at the hearing that he arranged for the transfer of "staunch union supporter" Klaus to Brown & Root be- cause the Respondent felt that otherwise it would be faced with charges of unfair labor practice and discrimination against Klaus. In view of the foregoing, we are persuaded that the reasons given by Weaver for terminating Klaus and Elkins were pretexts and that their selection for discharge was not the result of mere coincidence or chance selection, as suggested by the Trial. Examiner. We find, rather, that Weaver selected Klaus and Elkins for discharge in pref- erence to other employees because he believed that these men were ringleaders of the Union. Accordingly, we find that the Respond- ent's choice for discharge of Klaus and Elkins, who together with McLain were considered by it to be the three ringleaders and key union people, was an integral part of its aggressive and unlawful campaign to combat the Union. We therefore find that the Respond- ent violated Section 8(a) (3) and (1) of the Act by terminating Roy Lee Klaus and Theodore Elkins on September 10, 1962. Ac- cordingly, we shall order that the Respondent reinstate them to their former employment and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Tidelands Ma- rine Services, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging or otherwise discriminating against its employees because of their exercise of the right to,self-organization or to join labor organizations. u According to Weaver, Frazier reported about a week earlier that he "caught Klaus sleeping on the job," and Frazier "expressed a very strong dislike " for Klaus. TIDELANDS MARINE SERVICES , INC. 181 (b) Refusing to bargain collectively with Inland Boatmen 's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as the exclusive bargaining representative of all its employees in the appropriate bargaining unit with respect to rates of pay , wages, hours of em- ployment, and other terms and conditions of employment. (c) Granting wage increases to its employees for the purpose of discouraging their union activities, engaging in surveillance of the union activities of its employees, interrogating applicants for em- ployment concerning their union sympathies , and asking prospective employees other than those sought as replacements for striking em- ployees whether they are willing to cross picket lines at their own place of employment.13 (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act, or to refrain from any or all such activities.14 2. Take the following affirmative action which is designed to effec- tuate the policies of the Act : (a) Upon request , bargain collectively with Inland Boatmen's Union of the Seafarers International Union of North America, At- lantic, Gulf, Lakes and Inland Waters District , AFI -CIO, as the exclusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (b) Offer to Raymond Sons, Roy Lee Klaus, and Theodore Elkins immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them in the manner set forth in the instant Decision and the section entitled "The Remedy" in the Intermediate Report. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records , timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under this Order. 13 As we agree with the Respondent that this section of the Recommended Order is too broad, we are narrowing the scope thereof. 14 In accordance with the contention of the Respondent, we are narrowing this section of the Recommended Order because Respondent is located in Texas, a right-to-work State 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its docks at Point Barrow and Bacliff, in Trinity Bay, Texas, copies of the attached notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respond- ent's representative, be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 11 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership by any of our employees in Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or in any other labor organization, by dis- charging, laying off, or in any other manner discriminating against any employee in regard to his hire or tenure of employment, or any other term or condition of employment. WE WILL NOT grant wage increases to our employees for pur- poses of discouraging their union activities, engage in surveil- lance of the union activities of our employees, interrogate appli- cants for employment concerning their union sympathies, or ask prospective employees other than those sought as replacements for striking employees whether they are willing to cross picket lines at their own place of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to join or assist Inland Boatmen 's Union of the Seafarers Inter- national Union of North America, Atlantic, Gulf, Lakes and In- land Waters District, AFL-CIO, to bargain collectively through representatives of their own choosing, to engage in concerted TIDELANDS MARINE SERVICES, INC. 183 activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL, upon request, bargain collectively with Inland Boat- men's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL- CIO, as the exclusive bargaining representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is : All our employees on the following named crew boats : T. J. Fuson, Sid Moore II, Rosetta, Miss Bessie, E. E. Mc- Gill, G. C. Nicklow, R. K. Tracy, Mr. Jay, Nelda, Linda Lanay, and John Sue, but excluding office clerical employees, all other employees not directly employed on the above-named crew boats, all tug, off-shore, or outer Gulf employees, and all supervisors within the meaning of the Act. WE WILL offer Raymond Sons, Roy Lee Klaus, and Theodore Elkins immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their sen- iority and other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimi- nation against them. All our employees are free to become, or remain, or to refrain from becoming or remaining, members of any labor organization. TIDELANDS MARINE SERVICES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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 and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Of- fice, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capital 8-0611, Extension 296, if they have any ques- tion concerning this notice or compliance with its provisions. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A hearing before Trial Examiner Thomas A. Ricci was held in the above-entitled proceeding at Houston, Texas, on January 23, 24, 25, and 28, 1963, on complaint of the General Counsel against Tidelands Marine Services, Inc., herein called the Company or the Respondent. The issues litigated are whether the Respondent has violated Section 8(a)(1), (3), and (5) of the Act. After the close of the hearing, briefs were received from the Respondent and the General Counsel. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find that Tidelands Marine Serv- ices, Inc., is a corporation having its principal office in Houston, Texas, and operates boats in the inland waters of Texas and Louisiana, and in the Gulf of Mexico, pro- viding services to oil and refining companies. During the past 12 months, a repre- sentative period, in the course and conduct of its business operations the Respondent performed services for customers outside the State of Texas, which services were valued at more than $50,000. I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE UNFAIR LABOR PRACTICES A. The issues The events which gave rise to this proceeding started at the beginning of May 1962, when Inland Boatmen's Union of the Seafarers International Union of North Amer- ica, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, herein called the Union, launched an organizational campaign among a group of about 18 boat oper- ators, sometimes called captains or skippers, working in inland waters on Trinity Bay, Texas; they were at that time direct employees, and on the payroll, of a company called Brown & Root, Inc. Their work consisted then, as it still does, of operating boats owned by Humble Oil and Refining Co. to carry workmen of that company from two docks-one at Bacliff and the other at Point Barrow-to Humble's oil operations on water locations . On May 6, after the boat operators had held their first union meeting, the work of operating these boats for Humble was discontinued by Brown & Root, Inc., and a company called Tidelands Marine Services, Inc., the Respondent here, contracted with Humble to perform the same services with the same operators. Organizational activities continued. Following a petition filed by the Union an election by secret ballot was held on July 13, under supervision of the Board's Re- gional Director for the Twenty-third Region, in which 12 employees voted in favor of the Union and 6 against. After investigating objections to the election filed by the Respondent and finding them to be without merit, the Regional Director, on August 31, 1962, issued a certification of representative in favor of the Union. In September the Respondent refused to bargain with the Union on demand. Further, on September 10 the Respondent discharged two employees-Theodore Elkins and Roy Klaus-and on October 28 it discharged a third man-Raymond Sons. The allegations of the complaint can reasonably be separated into three distinct elements. One is that through its agents the Respondent engaged in conduct which illegally restrained and coerced the employees in their exercise of the right to carry on self-organizational activities and thereby violated Section 8(a)(1) of the Act. The second consists of three allegations, that the Respondent discharged Elkins, Klaus, and Sons because they engaged in union activities and for the purpose of discouraging such activities, and thereby violated Section 8(a)(3). The third and last aspect of the case is that, in violation of the mandate of Section 8(a) (5) of the Act, the Respondent refused to bargain with the Union, despite the fact that that labor organization was the exclusive majority representative of the employees in- volved. I will report the evidence respecting the last allegation first. B. The refusal to bargain The Union filed its petition for a representation election on May 11, 1962 (Case No. 23-RC-1911). It was processed as a regular representation proceeding by the TIDELANDS MARINE SERVICES, INC. 185 Regional Director of the Board's Twenty-third Regional Office pursuant to Section 102.67 of the Board's Rules and Regulations , Series 8, as amended, following en- actment of the Labor-Management Reporting and Disclosure Act of 1959. In the course of that proceeding the Regional Director issued an Amended Decision and Direction of Election on July 5, 1962, and pursuant thereto held an election among the boat operators on July 13. The Respondent, as the employer there, filed with the Regional Director objections to conduct affecting the results of the election, the Regional Director investigated the objections, and on August 31, 1962, he issued his Supplemental Decision and Certification, in which he' overruled the objections and certified the Union as the exclusive collective-bargaining agent under Section 9(a) of the Act. Thereafter the Union called upon the Respondent to bargain with it in accordance with the certification. The Respondent refused to do so, and in a letter dated September 24, 1962, wrote to the Union ". . . this is our refusal to recognize your union as the properly chosen collective-bargaining representative of our employees in the unit, and we refuse to enter into collective-bargaining nego- tiations with you until your certification has been confirmed by competent authority after full consideration of the issues." In justification of its admitted refusal to bargain the Respondent advances, in its answer, what can be described as a confession and avoidance type of affirmative defense. Conceding the formal issuance of the certification by the Regional Director, by clear implication the Respondent attacks the legality of the entire delegation by the Board, to its Regional Directors, of authority to process representation proceedings and make determinations under Section 9(c) of the Act.' By explicit contention the Respondent also questions the validity of the Regional Director's findings in the representation proceeding that the Union is a labor organization within the meaning of the Act, and that the objections to the election, filed by the Respondent, were without merit. This aspect of the affirmative defense is basically an assertion that, even assuming the entire delegation of authority to the Regional Director to be valid, in this instance he "violated" the Board's own rules intended to govern his actions. More precisely the Respondent questions the correctness of the Regional Director's finding in his Amended Decision and Direction of Election, that the Union is a legally constituted labor organization, and the adequacy of his investigation of the objections as a basis for the conclusion, in the Regional Director's Supplementary Decision, that they were insufficient to warrant holding a hearing or setting the election aside. In its answer the Respondent denies both that the Union is a labor organization within the meaning of the Act and that the certification issued by the Regional Director is a proper one. Counsel for the Respondent stated at the start of the hearing that he was prepared to offer evidence to support the entire affirmative defense as set out in the answer. I ruled that such evidence is not admissible at a hearing before a Trial Examiner on a complaint alleging a violation of Section 8(a) (5) of the Act based upon a Board certification following a representation proceeding. The argument addressed to the validity of the delegation of authority in represen- tation proceedings to Regional Directors is purely a legal one and, in my opinion, may not be reappraised by the Trial Examiner in the total scheme of the statute. I view the Board's action in promulgating the rules and the regulations on this subject as I do any other of its decisions of law, policy, or construction of the statute as amended? The Trial Examiner is bound by Board decisions, which can only be attacked by direct appeal to the Board itself, or on review in the courts in proceed- ings under Section 10(c) of the Act.3 As to the two specific assertions that the Regional Director erred in his decisions in the representation proceeding, on the first-a finding that the Union is a qualified labor organization-the Respondent filed a request for review with the Board under Section 102.67 of the Rules and Regulations. The request was rejected as untimely filed. With respect to the second asserted error by the Regional Director-his finding that the objections were without merit-the Respondent did not file any request for review by the Board. Proceeding in the view that the delegation of authority to the Regional Director is legally valid, I think a certification of representatives issued by a Regional Director must be accorded the same binding effect, in subsequent unfair labor practice pro- ceedings, as attach to a certificate of exclusive majority representative status issued 126 F R 3885, et seq. See also Section 3 (b) of the Act, as amended. 2 See Wallace Shops, Inc., 133 NLRB 36 3lnsurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768. 186 DECISIONS OP NATIONAL LABOR RELATIONS BOARD by the Board itself. The underlying objective sought to be achieved by the delegation of authority was to expedite representation proceedings by eliminating extended and time-consuming recourse to the Board in Washington in each and every instance, and to limit the Board review to matters of special moment and only in accordance with detailed proscribed appeals procedures.4 This statutory purpose would be de- feated if any and all actions of the Regional Director were subject to complete re- evaluation by the Board as a matter of course. Indeed, to hold otherwise would result in duplication of administrative proceedings, the very opposite of the statutory objective of the delegation. The Board has held that the validity of a certification of representatives duly issued by the Board may not be put in issue by the employer in a complaint proceeding alleging violation of Section 8(a)(5) based on that certification,5 but may only be reviewed, in enforcement proceedings, or review proceedings, in the circuit court of appeals .6 Accordingly, on the basis of the findings and conclusions of the Regional Director duly made in the representation proceedings, I find: (a) Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. (b) All employees employed by Tidelands Marine Services, Inc., on the following- named crew boats: T. J. Fuson, Sid Moore II, Rosetta, Miss Bessie, E. E. McGill, G. C. Nicklow, R. K. Tracy, Mr. Jay, Nelda, Linda Lanay, and John Sue, but ex- cluding office clerical employees, all other employees not directly employed on the above-named crew boats, all tug, offshore, or outer Gulf employees, and all super- visors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. (c) At all times since on or about August 31, 1962, the Union has been the certi- fied representative for the purposes of collective bargaining of a majority of the em- ployees in the above-described bargaining unit, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. The record shows, and the Respondent admits, that by its letter of September 24 to the Union, the Respondent refused to bargain with it as exclusive representative of the employees in the aforesaid bargaining unit. Accordingly, as the Union was at that time their certified majority representative, I find, as alleged in the complaint, that from September 24, 1962, and thereafter, the Respondent refused to bargain with the Union and thereby violated Section 8(a) (5) of the Act. C. Interference, restraint, and coercion The first union meeting among the boat operators was held on May 2, 1962. At that time, and for many years, they had been paid by check issued by Brown & Root, Inc., but their sole supervision came from overseers employed by Humble Oil, which owned the boats and whose men were transported in them. Frazier, a Humble superintendent, hired and discharged the men, scheduled their work, and had com- plete charge of their day-to-day operations. Smith, a Humble mechanical super- visor, saw to the mechanical maintenance and repair of the boats , and also assigned 4 In commenting upon the underlying purposes of the delegation at the time of its promul- gation, Chairman McCulloch stated: "It should provide a major speedup in NLRB case handling in line with the policy of President Kennedy for the independent regulatory agencies. By relieving the Board of a substantial part of its total caseload in the future, the new plan will free the Board to reduce its large backlog and dispose of its other cases involving unfair labor practices more promptly and carefully." 48 LRRM 75. 5 0 K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F. 2d 74 (CA. 5). e Section 9(d) of the Act reads: Whenever an order of the Board made pursuant to section 10(c) is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of 'this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under section 10(e) or 10(f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript. By stipulation of the parties all pertinent documents from Case No. 23-CA-1911 have been received in evidence here. TIDELANDS MARINE SERVICES, INC . 187 dock or housekeeping chores to the boat operators when they were not required to run the boats out on the water in regular shifts. On May 6, the Respondent entered the picture, made a regular lump-sum con- tract with Humble, and continued the same services which the men had been doing before. Clifton Weaver, many years with Brown & Root, and more recently one of its assistant superintendents, became the Respondent's port captain in immediate and complete charge of the operations. From that moment on supervision over the operators shifted from Humble's supervisors to Weaver. Weaver testified he knew that there was an organizational campaign going on when he took over his new job. Immediately (by May 9 at the latest) the Respondent granted a wage increase of about $40 per month (from $16.09 to $18.25 per day) to all the men. On May 11, the Respondent invited all of the employees to a barbecue, where, over beer and food, they were asked to voice their "gripes." They did, and com- plained of having to go fishing for shrimp with Humble Oil officials; they said this was hard work, not a normal part of their duties, and distasteful to them. They said the same of being required, albeit also during paid time, to do mechanical repair work on private cars of Humble supervisors, as well as on the boats them- selves when in drydock. They spoke of a possible wage differential for night duty, and for those operators who ran boats under customs license, and were called captains. They also asked for paid sick leave. About 2 weeks later, Weaver called all the men to a second meeting at a hall in Baytown, again to discuss with them their gripes. In general the same matters were discussed. In addition there was talk of vacations. Over the years, the men had received a 1-week paid vacation annually, but were given to understand that it was not a committed benefit in their employment conditions but only a gratuity given by Humble, their employer's customer. Somehow, word got around that they were no longer going to enjoy this vacation. Weaver and Stevens, his su- perior, who was also at this meeting, said they would see what they could do about this as well as the other gripes. Shortly after this second meeting the Respondent announced an increase of 50 cents daily for night-shift work, and an additional 50 cents per day for "captains," on whatever shift, both retroactive to May 6. It also announced that, with Humble's approval. the employees would henceforth have a regular paid vacation as in the past. With time, the shrimp fishing and repair of privately owned automobiles was also eliminated , although at times the men were still required to operate the boats with others doing the fishing. The request for paid sick leave was rejected. There is no allegation that the changeover from Brown & Root to the Respondent corporation was in itself a device to discourage continued union activity and there- fore illegal; nor is there substantial direct evidence so indicating. It is alleged, however, that the $40 monthly increase, the 50-cent daily differential for night work and for captains, as well as elimination of the fishing chores and private auto- mobile repair work, were improvements in conditions of employment granted by the Respondent because of the advent of union activities and in order to discourage them. Whether this was the motivation of the Respondent on these concessions turns upon appraisal of both the timing of the events and the evidence touching upon the activities and intent of Weaver, the port captain. He was in complete and sole charge of the operations; apparently his was the principal voice in the Respondent' s decisions on these matters. Weaver explained at the hearing that his prime responsibility when he first took charge of all the boats, and the very objective which he set for himself was to study and understand the personalities of the boat operators, to survey their problems, to make them happy and efficient, and to establish a unit of which all could be "proud." He also admitted, with complete candor, that he was determined to make his best effort to persuade the employees to his antiunion point of view, and to cause them to reject the Union in the election which he knew their organizational campaign had as its goal . Toward this end-keeping the Union out of the boat operations-his fervor carried him far beyond the limits of legal expressions of opinion and persua- sion. He used a new employee, Rountree, who had been hired in January 1962 and who quickly disclosed himself opposed to the Union, to keep an eye on the activities of all the others. I credit Rountree's statement that his confidential intimacy with Weaver on this matter-he said the two of them discussed the Union "between 50 and 100 times"-started with Weaver asking him how he felt about the Union. Other than saying that in these conversations "one or the other" brought up the subiect, Weaver did not testify to the contrary. "At the very start," Weaver testified. "Mr. Rountree was reporting to me from time-to-dime on things that he would pick up and hear concerning union activities, the practices that the men were using there in my absence. He was more or less a set of ears for me around those men down there ... and I would ask him from time to time if he's heard anything new . . . if he 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard anything, he would disclose it to me." And regularly Rountree did keep the port captain informed of how individual men felt toward the Union, even visiting Weaver at home in the evenings to report. There is further testimony, a good deal of it conflicting, indicating that Weaver made other coercive statements, direct or implied, in which he threatened dismissal in reprisal and announced predetermined futility in further union activities. Accord- ing to Rountree, immediately before the July 13 election Weaver said the Respondent "would never give us a union contract, regardless of what the National Labor Rela- tions Board, the Federal Government, or anyone else said," "that if the Union won the election that they were going to get rid of these people in some way " Rountree also testified that Weaver referred to Grand Isle, another operation of the Respondent, and said "those people had voted the Union in down there and all of them had been run off and the same thing would happen to the boys at Point Barrow and Bacliff." 7 Weaver expressly denied much of this testimony as given. He explained that in saying the Union would not get a contract he meant because of the delays that were to be expected in consequence of the objections to the election, and further litigation. He denied any threats of discharge, and insisted that all he did was warn the men a number of times that he could replace them if they went on strike. As to the situation at the Respondent's Grand Isle location ". . . I was using that as an illustration, that Grand Isle situation down there as an illustration to show that this might be a prolonged situation." Rountree said that a month earlier York, a Brown & Root superintendent, had asked him if he knew about the Union, and then added: "I want to let you fellows know; and you can go back and tell the rest of them, that we are not going union and that you people can be replaced if necessary." York did not testify and the testi- mony relating to him stands uncontradicted. The Respondent argues that nothing he may have said can in any way be used against it. I am by no means sure of this contention. When the 18 men transferred from Brown & Root to Tidelands, they did not change employee status in every sense; they remained under the same welfare and retirement plan, called Brown & Root, Inc., Employees Retirement and Savings Plan. When two of them were released in August, both were placed by Weaver with Brown & Root, again with no new hiring procedure, and again with the same welfare fund protection. And later, the entire Tidelands Marine Services, Inc., was taken over as an affiliate of that same retirement and savings trust fund. Although I do not know precisely how, obviously there must be a substantial identity of interest of some sort between these companies, and therefore York's outright threat to the boat operators cannot be ignored. Rountree also testified that before the gripes were aired, Weaver said "they wanted to find out what our gripes were, being as we were going union, or talking about hav- ing an election, and they said they wanted to try to eliminate as many of them as they could." Klaus testified that Stevens spoke to him just before the barbecue started. Stevens is still a Brown & Root superintendent and is also, according to Weaver, his superior on this Tidelands operation. Klaus quoted Stevens as saying: "What is the idea of you all going union? . We are going to try to better you all's working conditions. That is why we are here today." Stevens was not called to testify. Much of Rountree's testimony was contradicted by Weaver, but on this point-why were the "gripes" considered and the improvements in working condi- tions made-Weaver's own testimony strongly indicates that the motive underlying the quick action was to counteract the union activities. In recounting the talking that went on at the barbecue meeting on May 11, Weaver testified: . I was asked if this union business brought on the change, and I had pre- viously stated that it was problems that had been brought to our attention, and I stated, and I don't recall who asked me the question, but I said "yes." . . . the question was asked me, whoever it was asked me, was "was the union the reason you are changing from Brown & Root to Tidelands?" And I said "yes." Weaver also admitted that in hiring employees since becoming port captain for this Respondent, he asked them whether or not they were union members Early in August, he hired Rountree's father-in-law, Raymond Sons. Rountree testified that the hiring started with Weaver asking Rountree if he knew anyone who would cross a picket line if it should be established, and that he offered his father-in-law as fitting the requirement. Weaver conceded the correctness of this testimony and added 70n December 29, 1962 , the Board issued its Decision and Order in Tidelands Marine Service, Inc, 140 NLRB 288, in which it found that the Respondent had illegally dis- charged , in violation of Section 8(a) (3) of the Act, 12 employees at its Grand Isle operation. TIDELANDS MARINE SERVICES, INC . 189 that he did ask Sons, before hiring, whether he favored the Union. Sons answered no, and, on Weaver's further inquiring, promised to cross any picket line. It is clear therefore, on the basis of his own testimony, that in his plans to assure ultimate defeat of the Union in any election, Weaver was prepared to use, and in fact resorted to, illegally coercive methods. Although Weaver spoke of his purpose as being to resolve problems, and to make the boatmen one "happy family," the fact remains that as soon as the men started to organize-within days of their very first union meeting-they found themselves with a $10 monthly raise and in company of supervision receptive to their other com- plaints. The changeover from Brown & Root to the Respondent to them meant nothing more than that Weaver replaced Frazier and Smith as their immediate boss. They had been dealing with two Humble Oil men; now they looked to Weaver. At the hearing the Respondent made much of the fact that the various companies are- in a very legal sense-separate corporate entities. But Brown & Root and Tidelands are affiliated, the employees of both groups are covered by a single Brown & Root retirement plan, and Weaver still can shift employees from one company to the other with apparent authority. He knew of the initial union campaign before he arrived, and virtually conceded a connection between the union activities and the new develop- ments he brought. In the sense that employees' economic demands which prompt them to turn to a union, alert the employer to "problems," Weaver did have prob- lems, as he testified. When, however, these problems are forthwith resolved by direct concessions to the employees, the inference that the curative action was taken to offset the union activities is highly persuasive. The conclusion of such causal rela- tionship gains strength here by the fact that Weaver resorted to other illegal methods to combat the Union. He used Rountree as a direct agent for surveillance of the union activities of the other employees.8 He inquired of applicants for employment to assure that they would be opposed to any union.9 He actually made it a condition of employment to Raymond Sons that he must promise to refrain from concerted activities in the event of a strike by his fellow employees.i9 In these total circum- stances, I am satisfied on the record as a whole that the 50-cent per hour differential in pay, and the $10 monthly increase was a benefit given the employees with an under- lying purpose of influencing them away from their prounion resolve. I find that by such action the Respondent violated Section 8(a) (1) of the Act. I also find that by Weaver's conduct in surveilling the union activities of the operators, and asking ap- plicants for employment whether they were union members, and in asking Sons would he be willing to cross picket lines at his very place of work, the Respondent also com- mitted violations of Section 8(a) (1). The General Counsel's brief also suggests that Weaver made two money loans to Rountree as a reward for his spying upon other employees. Company records show that on May 31 Respondent advanced $100 to him and on August 31 an additional $500. He has been repaying the money regularly without interest. The record also shows that Weaver made money loans to McLain and Hiser, other boat operators, and that before the Tidelands takeover from Brown & Root, Cleland had also been advanced $200. Weaver said, and the record seems to support him, that the loans to employees are not uncommon, and he explained the loans to Rountree on the grounds that Rountree requested the first because his wife was in the hospital and the second be- cause of unpaid hospital bills and accumulated notes on his car, which he needed for work and might otherwise lose. Rountree's testimony shows that there was a relationship between the loans and his wife's hospitalization. He also testified, quite precisely, but before the company records were received in evidence, that the $500 loan was given to him "the day we got the letter saying that the Company was Tide- lands Marine Services, and not Brown and Root as before," and that Weaver at that time told him "I had helped out during the campaign against the Union, and that he would help me out by loaning me the $500." Weaver limited this conversation to talk about hospital bills and automobile debts. By May 9, of course, Rountree had not yet given Weaver any assistance against the Union, and he was clearly in error as to the timing of the loan. I think so great an error-of 4 months-in the timing of so substantial a loan, must be attributed to Rountree's overenthusiasm to support the charge and assist the Union once he had switched sides. Similarly excessive devotion appeared in his willingness to report to Weaver while he felt antagonistic to the union adherents. There are other indica- tions in his testimony that he sometimes permitted his cause to carry him away. He 8 Twin Table & Furniture Co., Inc., 133 NLRB 1113. 8 The Murray Ohio Manufacturing Company, 134 NLRB 175. 10 E. L Dell, Jr., trading as Waycross Machine Shop, 123 NLRB 1331. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explained pointedly how at the May 11 barbecue "just about everybody, in unison," asked for better wages, "they was raising all kinds of Cain," how Weaver promised what he could do, and how later the pay was raised from $96 to $109 per week. But the fact is that these raises had already been received by the men before the barbecue was held. I do not credit the statement he attributed to Weaver regarding the $500 loan, and, as others also received the loans. and as Rountree's debts could as well explain the advances, I cannot find that by making these loans to him the Respondent committed violations of Section 8(a)(1) of the Act. Whatever change was made in the vacation arrangements of these men in May 1962, could not have been a matter of material significance. Despite the length of the record, no clear picture emerges of the relationship among the three com- panies-Brown & Root, Inc., Tideland Marine Services, Inc., and Humble Oil. To all intents and purposes, for years the operators had their conditions of employment, down to the last minutiae, dictated by Humble Oil. Their only relationship with Brown & Root was that their paychecks were drawn on that corporate entity. No one came forth with any rational explanation of this arrangement. In these cir- cumstances, when supervision over them, and control of all their conditions of em- ployment, shifted to the Respondent, and they emerged with the same 1-week paid vacation annually, it can hardly be said that such a material change was made in their pay structure as to warrant serious consideration of the matter as a possible device for improperly influencing their attitude toward the newly arrived Union. D. The discharge of Klaus and Elkins On August 9, a month after the election won by the Union, the Company had 18 boat operators on its payroll, plus Sons, who was hired a week or two earlier pri- marily as a substitute for vacationers. On the 10th it discharged three men, Klaus, Elkins, and McLain. The reduction in force was ordered by Humble Oil, the sole customer for these inland water operations; in direct consequence the Respondent's contract with Humble was rewritten to provide a lesser bulk sum in payment for the services. So far as this record shows the move was dictated strictly by economic considerations, and the General Counsel's brief concedes that no contrary contention is made. The complaint alleges that in selecting three men for release, Weaver picked on Klaus and Elkins because he knew they favored the Union, and that as this was his reason, their discharges constituted illegal discrimination against them in violation of the Act. It is not claimed that McLain's discharge was anything but a normal incident of a regular business operation. There is no direct evidence, nor does the General Counsel claim otherwise, showing that the Respondent's antiunion campaign was aimed at Klaus and Elkins individually, as distinguished from what can fairly be called its opposition to union activities generally, or its displeasure with all those employees who revealed their prounion sympathies. Both Klaus and Elkins testified that no representative of management ever voiced a threat of discharge or other discrimination against them personally. In sum, therefore, the case respecting Klaus and Elkins is based on circumstantial evidence, with a number of related facts, none of them involving the two men specifically, collectively urged as supporting an inference that the Respondent's motive must have been to punish them for their union activities. As in all cases of this kind, there are certain facts pointing to the inference urged by the General Counsel. Other aspects of the total situation weaken the suggested inference, and support instead the Respondent's contention that these men, like McLain, were selected only because three men had to go, and that there was positive and perfectly legal reason for selecting each of them. The affirmative burden is upon the General Counsel; a balanced picture fails to support the com- plaint; the Respondent may not be found guilty simply because its assertion of just cause fails. If a preponderance of the evidence as a whole does not prove the ultimate complaint allegation, it must be dismissed." The principal prop in support of the General Counsel's theory is the fact that Weaver, opposed to the Union, did not limit his activities in this area to mere speech; he took positive illegal steps toward ultimate achievement of this goal. The im- provements he quickly instituted-higher wages and satisfaction of other gripes- prove that his conduct would not necessarily stop short of other illegal activities. Weaver knew that Klaus was openly active in support of the Union; Klaus was selected steward by the other employees, acted as observer for the Union at the July 13 election, and frankly told Weaver, more than once, of his attitude and his position as steward. Shortly after the election Weaver said to a number of the 11 Glen Raven Silk Mills, Inc., 101 NLRB 239, enfd. as modified 203 F. 2d 946 (C.A. 4). TIDELANDS MARINE SERVICES, INC. 191 men that he felt bad because some of them had promised to side with him and then voted for the Union instead. To Klaus he said: "I knew all along that you were for the Union." 12 Elkins' activities did not significantly single him out among the union sympathizers. He signed a card, went to union meetings, and talked to others in its favor. Weaver also knew how he felt. Immediately after the election, he shook hands with Elkins and Rountree. To Rountree he said the man had been constant in his antiunion views; to Elkins he said: "You stuck to your religion all the way through the whole thing," meaning with respect to his union beliefs. Elkins candidly conceded, "The only thing I did was attend the union meetings. . . . I didn't speak out at the meet- ings any time." He also said that he spoke to none of the Respondent's officials, including Weaver, about the Union; he even admitted he "might have" attempted to hide or deny from anyone where he stood on the union question. There is no real disagreement over what Weaver said to either of the two men when he removed them from the Respondent's payroll. He explained to each how he had no choice but to eliminate three men; to Elkins he said his reason for choosing him was because of an "indifferent attitude." To Klaus he said the selection was made because of "strained relations" between Klaus and one of the Respondent's customers. Neither of the men protested the discharge. Weaver found a job for Elkins at a Brown & Root installation 30 miles away, as a truckdriver and general helper, and for Klaus at a Brown & Root shipyard 45 miles away, where, as a mechanic or pipefitter, Klaus earned as much, if not more, than he did as a boat operator.13 12 On July 31, 10 days before the discharges, Brown, the Respondent's attorney, inter- viewed 11 of the operators in the presence of a professional court reporter who made a complete stenographic transcript of the interviews. Brown did this in a hotel room ad- jacent to a public building where a Board field examiner was then taking statements from these men as part of his investigation of the objections to the election. The lawyer's purpose was to seek to obtain evidence supporting the objections. Klaus testified that in his talk with Brown on that occasion the lawyer -called him a "ringleader" of the Union, said he had ways of knowing who the ringleaders were, and added, "You all will never get a contract with the Union." From the witness stand Brown denied having made any such statements to Klaus or to any other employees. I credit Brown on this point. Pugh, the court reporter, appeared as a witness and presented both a typewritten transcript of Brown's conversation with Klaus, and the original continuous stenotype tape which he made at the time and from which the tran- script was taken. The tape was available for inspection by all parties in the hearing room. Pugh testified that he took the consecutive statements of the several employees without interruption, that he recorded all that was said between Klaus and Brown in their conversation, and that there was nothing said by either of them which he did not reproduce through his machine. There is nothing in the transcript, received in evidence, supporting Klaus' testimony attributing the critical language to the lawyer. I have absolutely no reason to discredit the strictly impartial and objective reporter, whose evidence fully corroborates the denial of Brown. 18Both men testified they would have preferred to remain as boat operators. Clearly Elkins' new work was less desirable than he had had; in fact it petered out entirely so that in a few months there was so little for him that he ceased going to it altogether, with- drew his participating share in the welfare and pension plan, and severed all connection with either Tidelands or Brown & Root . Klaus' new job, while distant from home, does not appear to ha.e been necessarily a less desirable assignment. As originally worded, the complaint phrased the discriminatory action as a transfer to lass desirable work. During the hearing the -General Counsel amended it to read "trans- ferred or terminated" Klaus and Elkins. Brown & Root, Inc., was never made a party to the proceeding and the General Counsel has not contended that whatever happened to the men at their new work reflected illegal discrimination against them. In his brief the General Counsel states: "Without conceding the matter, we will assume that Klaus ar_d Elkins were discharged by Tidelands on September 10. Therefore, except for mr;cters which might arise at the compliance stage, the subsequent work history of Kl:aus and Elkins for Brown & Root will not be discussed." Although as explained abov ,, there is a confused picture as to the relationship, or affiliation between Brown & _ Root and the Respondent, I cannot find that for purposes of this proceeding the two cosnpanies should be viewed as a single employer. Accordingly, I will view the issue -here, as I think the pleadings compel, simply as whether Weaver's removal of the me-,, from the Respondent's payroll was an illegal act. The General Counsel also exprea;ly disclaims any Injunctive order against Brown & Root. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing Weaver explained in greater detail why he chose these men, and the Respondent brought out pertinent facts, both through Weaver and from Klaus and Elkins themselves, which tend to support Weaver's asserted basis for selection. The following facts are unquestioned on the record. Not long before these events, Weaver had occasion to warn all the operators, including Klaus, that sleeping on the job was strictly forbidden and that anyone caught at it would be subjected to summary discharge. About a week before September 10, Frazier, the Humble Oil superintend- ent in charge of the oil operations serviced by the Respondent's boat crew, and the man who himself had long directly supervised their work, came upon Klaus lying down with his shoes off, and formed the impression he was asleep. He reported the fact to Weaver. Confronted with the accusation by Weaver, Klaus denied he had been asleep. Another employee, who had entered the room after Frazier left it, asked by Weaver, was unable to say who was telling the truth. Weaver then told Frazier of his inquiry into the matter, that he could not be sure who to believe, and that Klaus positively denied having been asleep. Frazier's reaction was to become highly resentful, and he accused Klaus of calling him a liar. After discussing the matter with Respondent's counsel, Weaver decided to pass the incident over, and on Thursday, the day before the Respondent learned that the boat crew would have to be reduced, he spoke to Klaus, told him he could stay, but warned him directly that future offense would bring quick dismissal. At the hearing Weaver stated that with the Klaus incident fresh in his mind, he chose him for discharge a few days later because he had to choose somebody. He argued the importance of maintaining good relations with Frazier, the Humble Oil officials with whom he had most frequent contact. As to Elkins, Weaver testified he really had three reasons for choosing him, al- though at the moment of discharge he spoke only of an "indifferent attitude." He listed them as marital trouble (which Elkins' wife brought to his place of work), a heart condition (also reported to Weaver by Mrs. Elkins and which assertedly en- dangered Elkins at work), and a lackadaisical attitude toward his work, reflected primarily in general demeanor, or appearance, and neglect in the care of his boat. And it is a fact that Elkins had personal problems at home, that his wife asked Weaver and Stevens, in person and by telephone, to try to help "straighten him out," that she told Weaver her husband suffered from a weak heart, and that she feared his con- tinued work on the water It is also true that Elkins had recently been given ex- tended tests in a VA hospital, and carried certain pills which he used to take. As to the general assertion that he was sloppy in dress, or careless of the housekeeping chores in the care of his boat, there is only the conclusionary statement of Weaver, although Elkins did not offer any express contradictions I do not believe the record as a whole warrants the conclusion that the Respond- ent deliberately selected Klaus and Elkins for layoff to discourage union activities. Apart from the indirect evidence pointing a finger of suspicion at the choice of 2 of the most senior men among the 18, when only 3 had to be released, and the opposing facts which lend some support to the contrary insistence that they were chosen be- cause of totally unrelated considerations, there are 2 significant and very pertinent facts in the total picture which cannot be ignored, and which, in my opinion, greatly weaken the inference of illegality urged by the General Counsel. First: 3 of the 18 men has to be released; this without regard to union activities at all. It was a decision dictated strictly by economic necessity. Second: ignoring for the moment Weaver's testimony that within a month of the July 13 election, almost all the men were wearing union buttons and sporting union books, and thus openly revealing their attachment to the Union, there is the fact that in the election a month earlier 12 of the 18 men had voted in favor of the Union If, on August 10, Weaver had reached blindly into a hat to choose three for discharge, the highest probability is that he would have come up with two union adherents among the three. And this is precisely the percentage-two out of three-from among the dischargees that the complaint says were consciously picked for union reasons. The record shows that McLain, the third man released, was also in favor of the Union, and that the Respondent knew it Indeed, the evidence warrants a finding that McLain was more active and more outspoken than Elkins. In the course of the hearing, and in his brief, the General Counsel vaguely sought to inject the thought that perhaps the Respondent's knowledge of McLain's activity underlay his selection also. The insinuation is totally foreign to the complaint, and I could not fairly count noses in this fashion. So far as this case is concerned, McLain's discharge must be treated as nothing more than a perfectly proper company decision, having nothing to do with his uniomactivities, and that is how I will view it. In the light of the very pertinent numerical facts, an argument made by the Re- spondent's counsel at the close of the hearing assumes disturbing proportions. Aware that Klaus had been 10 years on these boats, and that he had been chosen steward and union observer at the election, the Respondent had to decide, neverthe- TIDELANDS MARINE SERVICES, INC. 193 less, who among the 18 had to be selected. If, in the light of all the factors that company officials normally consider, these particular matters were to be given controlling weight in favor of Klaus' selective retention, the decision would neces- sarily have been a discrimination against others because they had been lukewarm toward the Union or opposed to it. The point is as well illustrated with Elkins. He did very little for the Union. In his own words: "The only thing I did was attend union meetings ... they [the Union] didn't know too much about my activities among the boys . . . I hadn't told him [Weaver] anything. I didn't bring up the conversation with the company men about the Union." In view of his own testimony, it seems Elkins was selected, from among the three men laid off, and placed in the complaint, for no reason other than the fact that he favored the Union. The record as a whole shows that perhaps all 12 who voted prounion on July 13 did as much as he. Should the Respondent have gone out of its way to select a nonunion man in place of Elkins in order to avoid this charge now? There are other contentions made in support of the complaint. In the discharge conversation there was reference to Klaus being a union steward. While on direct examination Klaus quoted the port captain as simply stating Klaus could no longer be steward. On cross-examination he added it was he who first brought up the subject at all, and that Weaver then said the Point Barrow boatmen would have to use someone else. As it was Klaus who spoke of the matter first, and as the new job was to be 45 miles away, Weaver's reply cannot fairly be said to prove that the purpose of removing Klaus was to prevent his continuing as steward. The Gen- eral Counsel also argues that the Respondent violated established seniority practices when it released Klaus and Elkins, and that this too shows an ulterior motive. The only evidence supporting this assertion again is the testimony of Klaus, who said that sometime in 1953 a former supervisor told him there was a seniority system, and that 4 months before his discharge a roving relief post was opened and his request for it was granted because he was senior man Weaver denied the existence of any seniority system. Absent any other evidence of seniority practice over a 10-year period, and in view of the fact that the entire operation passed to new management in 1962, I do not think that on this record a substantial seniority system has been proved. A more persuasive finger of suspicion points to Weaver, at least where Klaus is concerned, in the fact that a suggested new schedule of shifts, prepared by Humble Oil to support its insistence that less men were needed, eliminated not Klaus and Elkins, but Rountree and another man instead, in addition to McLain. In his contracted schedule, Weaver laid off Klaus and Elkins, with McLain. The General Counsel correctly says that if Frazier had really been incensed towards Klaus because of the sleeping incident, he would have suggested his removal. It is still a fact, how- ever, that these men were employees of the Respondent, under Weaver's and not Frazier's supervision, and while Weaver's selection certainly shows he preferred to layoff Klaus and Elkins instead of Rountree and another, the principal question is still whether he selected these two for layoff from among all 18 of the boatmen be- cause of their particular union enthusiasm. His favoritism for Rountree at that time is clear beyond question. But would it have been less an illegally discriminatory selection if instead of replacing Rountree with Klaus, he had pointed a finger at another of the many operators who by this time were openly parading their union sympathies? The Respondent's assertion as to the reasons why Weaver selected Klaus and Elkins is a perfectly plausible one, and the evidence bears out the factual situation respect- ing both men upon which the Respondent rests. Discharges there had to be, and it was inevitable that in the selection some union adherents would be caught. It has not been shown that the Respondent's conceded antiunion campaign was directed' against these two men in particular; coercive conduct violative of Section 8(a) (1) of the Act, while indicative of union animus generally, cannot of itself support a find- ing that in a situation of this kind there was also an intent to violate Section 8(a) (3) by deliberate discharges. I have considered the fact that both Klaus and Elkins had been on these boats almost 10 years, longer than any of the other men. I also have in mind that Weaver's repeated statements to the effect that the Union would have hard sledding before winning a contract, even in the context of contemplated litigation, reveals a long- range program to defeat the Union and that elimination of any union adherents would necessarily militate in favor of such a plan. On balance, weighing all the details set out in this report and the many other nuances of phrasing in the record too detailed and minor to repeat here, I conclude that the General Counsel has failed to carry the burden of proving the alleged discrimination by a preponderance of the evidence. Even assuming that the direct threat to get rid of union men, voiced 3 months earlier by York, the Brown & Root superintendent, were properly chargeable to the Re- 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent, it was at best a general statement , again reaching Klaus and Elkins only indirectly , and not as a pinpointed , directly material element of proof. E. The discharge of Raymond Sons Raymond Sons was hired by Weaver on or about August 1, 1962 . This was the father-in-law of Rountree , who acted as Weaver's ears among the employees to report on their union activities . Weaver had asked Rountree if he knew anyone who could cross a picket line because the port captain was looking for such persons. When Rountree brought his father -in-law from his home in Louisiana to Weaver, the port captain asked Sons if he favored the Union , and if he was willing to cross any picket line . Sons said he was opposed to the Union and promised to cross a picket line should it be established. Sons ceased working for the Respondent on September 28, and what was said to him and by him at that time presents a question of credibility primarily between Weaver on the one hand and Sons and Rountree on the other . Sons says he was discharged; Weaver said the man quit . The complaint alleges that Weaver dis- charged Sons because the day before he learned that both Rountree and his father- in-law had changed their minds and both joined the Union. For the 7 or 8 weeks that Sons worked , the major portion of his assignments was to run regular boats as a skipper while the long-time employees took their 1-week vacations. He also did other kinds of dockwork, painting and cleaning boats and doing the general housekeeping and maintenance required . At the hearing both the General Counsel and the Respondent offered much testimony on the question whether Weaver had promised Sons permanent employment or only temporary relief work while the vacation season was on . Apparently the General Counsel anticipated an affirmative defense that Sons was released for lack of work; it was not until Weaver testified towards the end of the hearing that he first asserted that Sons had not been discharged at all. The Respondent seems to have attempted to rebut the assertion of permanent hiring in order to make Weaver 's testimony about the termi- nal conversations more credible. The question as to how long the Respondent had agreed to keep Sons is really irrelevant to the issue of whether he was discharged, legally or illegally, on September 28, because Weaver's position at the hearing is that there was work for Sons even then and that he was prepared to continue him at work. Sons and Rountree both joined the Union on July 13 and on the 27th Rountree told Weaver to seek no further information from him about the employees' union activities because he had joined them. According to Rountree , Weaver's response was, "Well , you have sold me out . . . how does Raymond feel?" and then Rountree said his father-in-law was union too-"a hundred percent." Weaver recalled Roun- tree telling him he had had a change of heart and that his response was: "Jack, why did you do it? . you have sold me out." At first he said he did not recall specifically any mention of Sons also having joined the Union , or that he inquired concerning Sons; later in his testimony he said he "believed" Rountree did tell him how his father-in-law now felt about the Union . In view of Weaver's admission, and his past practice of inquiring about the employees ' shifting positions concerning the Union, I credit Rountree thus far in this conversation and find that Weaver in fact inquired whether Sons also had changed his attitude. Rountree went on to testify that Weaver then said , "If Raymond is going union I don't need him anymore because we are not going to go union. . . I just won't put up with it. I am going to let him go." Weaver flatly denied having uttered these words. He did testify instead that he just asked Rountree to have Sons call him at home that evening . Rountree said he repeated this conversation , as set out here, to his father-in-law when he relayed the message that he was to telephone Weaver. When Sons testified he vacillated on this point, and at one stage he said he did not recall Rountree telling him Weaver had said he was to be discharged because of the Union. Rountree's testimony as a whole reveals a marked tendency to exaggerate in order to support the compaint ; he repeatedly referred to the three "ringleaders" as Klaus, Elkins , and McLain, although the facts in evidence do not support him. I feel he may have been attempting simply to give substance to the charge, which listed all three. In these circumstances , I am not sure I can accept his testimony, contradicted by Weaver , in such detail . In any event, as will appear below, I think it clear, even without this literal admission charged by Rountree to Weaver, that Sons was in fact discharged and because he had decided to join the Union. As instructed Sons telephoned Weaver that evening. His testimony is that Weaver said, "You went union . . . we don't have no more work for you," and that he, Sons, then said he would come in for his money the next day . Again there is conflict TIDELANDS MARINE SERVICES, INC. 195 in the testimony. Weaver said all he told Sons was to report to Point Barrow the next day, explaining, at the hearing, that this was because he had not yet decided exactly what work to assign him for the day. There is no question, however, that Sons appeared at Weaver's office the next morning in his street clothes instead of his working apparel and that Weaver paid him off with one check that was regularly due and another for the partial week ending the night before. Here again, the two men gave conflicting versions of what was said. According to Sons he simply said, "I just told him I had come to get my check," and that Weaver had the regular paycheck ready and then went to his car where he filled out the partial one and delivered it to Sons. According to Weaver he asked Sons why he was in street clothes, Sons answered, "I heard I was fired because I joined the Union," and Weaver countered with: "Let's get the record straight. Now, just what did I tell you in that telephone conversation." At this point, as Weaver testified, Sons became incoherent-"he hemmed and hawed around, and to me I never did understand what he said." He said he gave Sons the regular check and then Sons asked for his last one, and Weaver paid him off. Considering the total circumstances of the moment and the undisputed genesis of Sons' original hiring, I believe Sons' testimony that the evening before Weaver told him he was no longer needed and the next mormng simply paid him off. It is true Sons was not a very articulate witness, and he may well have erred in saying Weaver spoke of the Union, in either of these conversations. He really was not sure as to such words the evening before. But as to whether or not he was discharged, his story was clear, direct, and straightforward. This was not a matter as to which he was likely to be careless with words. And the substance of his testimony was perfectly understandable and logical on its face. Moreover, despite his inability to read or write, he impressed me personally as an honest man, making his best effort to relate things as he recalled them. Against his story, I find Weaver's version of the incident unpersuasive, implausi- ble, indeed, almost incredible on its face. He hired Sons only because he was looking for someone to help him combat the Union one day, and assured himself he would have such a supporter in Sons before putting him to work. When, on September 27, Rountree told him Sons had changed color, Weaver felt, as he him- self testified, he had been "sold out." The most likely thing he would do then was exactly what Sons quoted him as saying-"I don't need him any longer." Sons came far from home for this job; whether or not he correctly understood Weaver as promising him permanent employment, he bought a car in anticipation of long- term work. There is not the slightest hint in the record of any reason why he should have suddenly decided to just quit. Instead, the most likely explanation appearing for his coming to the office in street clothes would be that Weaver did tell him the night before that he was through. No one had trouble understanding Sons at the hearing; if a question relating to his earlier affidavit had not arisen, I would never had known he is unable to read. Yet Weaver would have it that with the man's job at stake, he just "hemmed and hawed" unintelligibly. I have in mind also that Weaver had already revealed a pervasive antiunion bias, even to the extent of resorting to illegal methods some months earlier to implement his design. Considering all of the pertinent facts, and the demeanor of the two men, I find that Weaver discharged Sons on September 28, as Sons testified. I also find, on the record as a whole, that he did so because Sons had joined the Union, and that by such action the Respondent discriminated against Sons in violation of Section 8(a)(3) of the Act, as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with its operations as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate the effect thereof. It has been found that the Respondent unlawfully refused to bargain with the Union as the exclusive majority representative of the employees in the appropriate unit. Accordingly, I shall recommend that it cease and desist from such refusal and, on request, bargain in good faith for such employees with the Union. 727-083-64-vol. 144-14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the coercive conduct, both in words and in deed, which was found to have illegally interfered with the employees' statutory freedom to engage in self-organiza- tional activities, I shall recommend that the Respondent be ordered to cease and desist therefrom. Remedial action respecting the illegal discharge of Raymond Sons requires that the Company reinstate him to his former employment and to make him whole for any loss of earnings he may have suffered in consequence. I shall therefore recom- mend that the Respondent be ordered to reinstate him and make him whole, pursuant to the formula regularly followed by the Board,14 for his loss of earnings, with inter- est at 6 percent per annum on any moneys due. Implicit in the Respondent's defense to the discharge allegation of Sons is the contention that his employment was intended to be of short duration anyway. And there is testimony indicating that he was hired because a man was needed. then as a relief boatman for operators who normally take vacations during the following months He was, however, used for other work, and, although the quantum of such other work was reduced on September 10, when the total complement was cut, some of it did remain. Indeed, on Weaver's own insistence, there was more work for Sons the very week when he was released. Moreover, there still remained one operator, at least, who had not yet taken his vacation, and it is quite probable that had Weaver not decided to discharge Sons for a reason unrelated to work needs, he might well have been continued until Christmas, when that man indicated he planned to be off. This likelihood is also indicated by the fact that in November the Respondent added a man to its payroll. In any event, with the Respondent taking the position that Sons was not discharged, the question of how long his employment would have continued was not really litigated at this hearing and it is therefore not possible now to make a definite find- ing on this record. I therefore defer such an inquiry, consistent with 'established Board practice, to the compliance stage of the proceeding. If it should be established, to the Board's satisfaction, that Sons' employment would have been terminated by any set date subsequent to September 28, 1962, absent any illegally discriminatory motive, that fact will be a pertinent consideration in the calculation of whatever payment may be due him under the provisions of this remedial order. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall there- fore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Tidelands Marine Services, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Tidelands Marine Services, Inc., on the following named crew boats: T. J Fuson, Sid Moore II, Rosetta, Miss Bessie, E. E. McGill, G. C. Nicklow, R. K. Tracy, Mr. Jay, Nelda, Linda Lanay, and John Sue, but ex- cluding office clerical employees, all other employees not directly employed on the above-named crew boats, all tug, offshore, or outer Gulf employees, and all super- visors within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Inland Boatmen's Union of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, was, on August 31, 1962, and at all times since has been, the exclusive representative of all the em- ployees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By discharging employee Raymond Sons, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By refusing to bargain collectively with the Union as the exclusive representa- tive of the employees in the aforesaid appropriate unit, as found above, the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (5) of the Act. 14 F. W. Woolworth Company, 90 NLRB 289. PRODUCTION ENGINEERING COMPANY 197 7. By the foregoing con iuct, by granting wage increases to its employees, by surveilling the union activities of its employees , by interrogating applicants for employment concerning their union sympathies, and by asking prospective employees whether they are willing to cross picket lines at their own place of work, the Re- spondent has interfered with, restrained, and coerced employees in their rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Production Engineering Company and Mattie C. Worsham. Case No. 10-CA-5269. August 03, 1963 DECISION AND ORDER On June 28,1963, Trial Examiner Frederick U. Reel 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 Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the Respondent's exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its order the Recommended Order of the Trial Examiner.' 'The following shall be added immediately below the signature line in the Appendix attached to the Intermediate Report: NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case, heard before Trial Examiner Frederick U. Reel at Atlanta, Georgia, on June 3, 1963, pursuant to a charge filed March 4, 1963 , and a complaint issued 144 NLRB No. 24.