St. Louis Harbor Service Co.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Louis Harbor Service Company and International Long- shoremen's Association, Local 1652, AFL-CIO St. Louis Harbor Service Company, Alton Transportation Com- pany, Arsenal Island Fleeting and Towing Company, and Eagle Fuel and Supply Company and Rivers and Harbors Asso- ciation, Charles C. Wykert, Jr. Inland Boatmen's Union of the Seafarers' International Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO and Rivers and Harbors Association. Cases Nos. 14-CA-3099, 14-CA-3103,14-CA-3103-2, and 14-CB-1101. December °28, 1964 DECISION AND ORDER On May 11, 1964, Trial Examiner Thomas Y. Maher issued his Decision in the above-entitled proceeding, finding that the Respond- ent, St. Louis Harbor Service Company, had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) and (2) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. With respect to certain other unfair labor practice allegations the Trial Examiner recom- mended dismissal. Thereafter the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent, Inland Boatmen's Union of the Seafarers' International Union, filed cross- exceptions and a supporting brief.' 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 [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, and the record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted hereafter. We concur in the Trial Examiner's finding that Respondent St. Louis Harbor Service Company violated Section 8(a) (1) and (2) of the Act by maintaining and enforcing a contract containing a clause granting preferential layoff and recall treatment to RHA 2 members in good standing and by otherwise assisting RHA. In so finding," we 1 Respondent IBU-SIU also filed a motion to dismiss General Counsel's exceptions. The motion is hereby denied. 2 Otherwise known as Rivers and Harbors Association. 150 NLRB No. 57. ST. LOUIS HARBOR SERVICE COMPANY 637 rely on actions and events occurring within -the 6-month period prior to the filing of the charges. As no exceptions were filed to the Trial Examiner's holding RHA's certification to be without "force and effect," we adopt it pro forma. Contrary to the Trial Examiner, we find that Respondent St. Louis Harbor Service Company and Respondent IBU-SIU violated Sec- tion 8(a) (1) and 8(b) (1) (A) of the Act, respectively, by their inter- rogation of employees Pearman and Ohlendorf. The two employees were summoned to the Respondent Company's office by its president, Fred Leyhe. Both Leyhe and Attorney Souders, the latter represent- ing the IBU-SIU, were present and questioned the two men. Leyhe asked if the. employees thought they had been discriminated against by the transfer of the vessel Louise Leyhe, how they felt about the Company, and whether they thought they had been treated fairly. He also asked which employees had gone to the Board's offices. Souders asked them what they had told the Board agents, which other employees had given statements, and the circumstances under which these statements had been taken. The Trial Examiner concluded that neither the Company nor the Union had violated the Act because they had not requested copies of the employees' statements to the Board agents. He further concluded that Souders was not an agent of the Company and that in any event, as this was the only question- able conduct on the part of SIU, it fell short of interference or coercion. We do not agree. We have previously held that where an employer requests of em- ployees copies of statements they had given to Board. agents in. the investigation of a charge, he interferes with the Board's processes and the employees' exercise of their statutory rights.3 We see little or no distinction in asking employees for copies or statements or, as in the present case, asking employees what the statements contain. In either event, it is the kind of interrogation which we have found unwarranted and unlawful. As noted, the interrogation took place in the Company's office and was conducted by both company and union representatives. Under all the circumstances, we find the inter- rogation was a joint undertaking and conclude that the Respondent Companies and the SIU thereby violated Section 8(a) (1) and 8(b) (1) (A) of the Act, respectively. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondents, St. Louis Harbor Service Company, :Alton Transportation Company, Arsenal Island Fleeting and Towing Com- 8Tewas Industries, Inc., et al., 139 NLRB 365 , affd. In part 336 F. 2d 128 (C.A. 5) ; Winn-Dixie Stores, Inc., and Winn-Dixie Louisville, Inc., 143 NLRB 848. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, and Eagle Fuel and ' Supply Company, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a)_ Unlawfully assisting or contributing support to Rivers' and Harbors Association, or any other labor organization of its employees. (b) Recognizing Rivers and Harbor Association, or any successor thereto, as the representative of its employees unless and until such labor organization is hereafter certified by the National Labor Rela- tions Board as the majority representative of the Respondents''em- ployees in a unit determined to be appropriate for collective bargain- ing, following a Board-conducted election. (c) Interrogating employees as to the contents of statements they made to agents of the Board. .(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Withdraw and withhold any recognition granted to Rivers and Harbors Association unless and until it has been hereafter certi- fied in the manner aforesaid by the National Labor Relations Board. (b) Post at its premises at the foot of Market Street, St. Louis, Missouri, copies of the attached notice marked "Appendix 'A.",4 Copies of said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by a representative 'of the Respondents, be posted immediately upon receipt thereof, and 'be maintained for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees or prospective employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or cov- ered by any other material. (c) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent Companies have taken to comply herewith. It is further ordered that so much of the complaint in this proceed- ing as alleges violations of the Act against the Respondent Com- panies, excepting the violations of Section 8 (a) (1) and (2) previ- ously noted, be dismissed. B. The Respondent, Inland Boatmen's Union of the Seafarers' In- ternational Union, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, its officers, agents, and representatives, shall : * In ,the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order". ST. LOUIS HARBOR SERVICE COMPANY 639 1. Cease and desist from : (a) Interrogating the employees of the Respondent Companies as to the contents of statements they made to representatives of the Board. (b) In any like or related manner interfering with, restraining, or coercing the employees of the Respondent Companies in the exercise of rights guaranteed them by Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at its offices and meeting halls, and at the offices of the Respondent Companies, copies of the attached notice marked "Ap- pendix B." 5 Copies of said notice to be furnished by the Regional Director for Region 14, shall, after being duly signed by a repre- sentative of the Respondent Union, be posted immediately upon re- ceipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees of said employers are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. It is further ordered that so much of the complaint in this proceed- ing as alleges violations of the Act by the Respondent Union, except- ing the violation of 8(b) (1) (A) noted previously, be dismissed. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order". APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT unlawfully assist or contribute support to Rivers and Harbors Association, or any labor organization of our employees. WE WILL withhold any recognition of Rivers and Harbors Association unless and until it is hereafter certified by the Na- tional Labor Relations Board as the majority representative of our employees in an appropriate bargaining unit. WE WILL NOT interrogate employees concerning statements given to agents of the National Labor Relations Board. 775-692-65---vol. 150-42 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere' with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities. for the purpose of col- lective bargaining, or, other mutual aid or protection, or to refrain from any or all such activities, except ;to the extent that such right may be affected by an agreement requiring membership, in .a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as_ amended. .. , . . ST. Louis 'HARBOR SERVICE COMPANY, ALTON TRANSPORTATION COMPANY, ARSENAL' ISLAND FLEETING AND TOWING COMPANY, EAGLt FUEL - ' AND SUPPLY COMPANY, ' Employers. 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, 4459 Federal Building, 1520 Market Street, ' St. -'Louis, , Mis= souri, Telephone No. Main 1-8100, Exteiision 4142, if, they have any question concerning this notice or compliance with its. provisions. APPENDIX B NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF ST. LOUIS HARBOR SERVICE COMPANY, ALTON' TRANSPORTATION COMPANY, ARSENAL ISLAND FLEETING AND TOWING COMPANY, AND EAGLE FUEL AND SUPPLY COMPANY , 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 give notice that: , ' , ;, WE WILL NOT interrogate our members or employees of the- above-named employers concerning statements given to agents of the,National'Labor Relations Board. WE WILL NOT in any like or related manner interfere , with employees' rights under the National Labor Relations, Act, as amended. - , INLAND BOATMEN'S UNION OF THE SEAFARERS', IN- TERNATIONAL UNION1 ATLANTIC, GULF, LAKES AND INLAND WATERS DISTRICT, AFL-CIO, 'Labor Organization. Dated ' B ---------------- ----------------------------,--------- y (Representative) , (Title) ST.' LOUIS HARBOR SERVICE COMPANY 641 - 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,' 44.59 Federal:; Building, 1520 Market Street, St. Louis, Mis- souri, Telephone No. Main 1-810.0, ' Extension 4142, if they have any question conce'r`ning this notice or compliance with its provisions., TRIAL EXAMINER'S DECISION STATEMENT OF TEE CASE ' Upon charges and amendments thereto filed on various dates between June 24 and September 17,,-1963, by International Longshoremen's Association, Local 1652, AFL-CIO, herein referred to as the ILA; Rivers and Harbors, Association, herein referred to as RHA (and also alleged in the complaint to be an unlawfully aided and assisted labor organization); and Charles C. Wykert' Jr., who will not be referred to hereafter,' the Regional Director for Region 14 of the National Labor Relations Board, herein called the Board, issued a consolidated complaint on behalf of the General Counsel ,of the,,Board on September 20, 1963, against St. Louis Harbor Service Company, Alton Transportation Company, Arsenal Island Fleeting and Towing Company, Eagle Fuel and Supply Company, and Inland Boatmen's Union of the Seafarers' International Union, Atlantic, Gulf, Lakes and, Inland Waters District, AFL-CIO, Respondents herein, alleging violations of Section 8(a) (1), (2), and (3), and 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. In their duly filed answers Respondents, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices.2 Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher ,on-October 21, 22, and 23 and November 5, 1963, at St. Louis, Missouri, where all parties were represented' by counsel and afforded full opportunity to be heard. The hearing on November 5 was adjourned to a later date for the sole purpose of taking the testimony of one Earl Johnson who was unavailable at the first hearing, recuperating from an accidental injury, and who thereafter on November- 5 failed to appear at the hearing in answer to a subpena ad testificandum. Before enforce- ment of- the aforesaid +subpena by the United States' Court for the Eastern, -District of Missouri had been procured, Johnson was shot and killed in a tavern in St. Louis, Missouri, on the evening of December 3, 1963. Edward Grogan, a witness in these proceedings, secretary-treasurer of the RHA, a Charging Union herein, and a signer of the charges, has since been indicted for Johnson's murder and is presently awaiting trial. It has not been established that this fatality bore any relation to any issue in these proceedings, and Johnson has now become permanently unavailable as a witness. However, during' the period intervening between the last day of hear- ing and my order closing it,, several motions have been addressed to 'me by the parties, together with opposition'thereto. 'These have been considered by the and have been incorporated into the record as Trial Examiner's exhibits. I refer spe- cifically to Respondent SIU's motion to set hearing date, and General Counsel's opposition to it, and to General Counsel's motion to close the hearing and Respond- ent SIU's opposition to it.. All of these embody the issue, urged by Respondent SIU, that Grogan's character as established by his indictment for Johnson's murder casts doubt upon the charges, filed by him as an officer of the RHA' and affects his credibility as a witness in these proceedings. For reasons which I have set forth in more detail "hereafter, I would deny the SIU's motion to set a further hearing and grant the motion to close over its objection insofar as the motions and oppositions relate to,'Grogan's credibility (infra, footnote 22). As the several motions pertain 1 Apart from his signature on' the charge in Case No 14-CA-3103-2, an allegation in the,complaint! to the effect that he was discriminatorily discharged, and the denial of said allegation by both 'Respondents in their respective answers, no other reference to Wykert appears in the record of this case In the absence of evidence of any unfair labor prac- tice with respect to him, therefore, I dismiss so much of the allegation as pertains thereto. 2burin g the course of the hearing General Counsel amended his complaint to allege a further violation of 'Section 8(a) (1) and 8(b) (1) (A), to which Respondents inteipose'd their respective denials.' ' ' 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Grogan's status as a Charging Party, it has been well established that the char- acter of a signatory to a charge is of no legal consequence 3 and I therefore deny the motion to set further hearing and grant the motion to close for this further reason. I accordingly closed the hearing by order of March 17, 1964, and set a period of time within which briefs might be filed. On March 23, 1964, after the close of the hearing, Respondent SIU filed further motions with me directed to dismissal of certain paragraphs of the complaint, to the inclusion in the record of certain exhibits previously admitted into evidence, and to strike certain remarks of counsel from the record. The motion to dismiss will be disposed of in the course of my Decision herein. The documents sought to be included in the record have been so included by the mechanic of my admission of them in evidence and the motion is accordingly denied in that respect as surplusage. The motion to strike is hereby granted without opposition as to that portion of the transcript of hearing in this proceeding from page 116, line 16, through and includ- ing page 117, line 13. Briefs have been filed with me by Respondent Company and the General Counsel. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of each witness appearing before me,4 I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT COMPANIES The several Respondent Companies herein are engaged in towing, storing, fueling, and servicing tugs and barges on the Mississippi River and its tributaries, and particularly in and about that area of the Mississippi River designed as the port of St. Louis. It is apparent from their nature that such operations are an integral part of interstate commerce. As it is conceded that the Companies annually derived revenues in excess of $50,000 I conclude and find that they are engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED It is admitted that the ILA and Respondent SIU are labor organizations within the meaning of Section 2(5) of the Act and I so conclude and find. With respect to Rivers and Harbors Association (RHA), there is in evidence a collective-bargaining agreement between it and Respondent St. Louis Harbor Service Company. Upon this fact and the testimony of Fred Leyhe, president of that Company, that he negotiated this contract with officers of RHA on behalf of his employees whom he knew to be members thereof, I conclude and find that RHA is likewise a labor organization within the terms of Section 2(5).6 HI. THE UNFAIR LABOR PRACTICES A. The integrated character of the Respondent Companies' operations The essence of this case is the Respondent Companies' proclivity for separate corporations, forming new and reorganizing old ones. A review of the credible testimony of Fred H. Leyhe revealed that at the time of the hearing he was president s N.L.R.B. v. Indiana t Michigan Electric Company, 318 U.S. 9; N.L R B v. Fulton Bag d Cotton Mills, 180 F. 2d 68 (C.A. 10). * Unless I specifically Indicate to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me Is based, at least in part, upon each demeanor as I observed it at the time the testimony was given. Cf. Retail Clerks Inter- national Association AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB 1680, 1682, and footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I do not rely upon or I reject in part or entirely any testimony of any given witness, it Is my intent thereby to indicate that such whole or part of the testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2). To the extent that I credit any witness only in part, I do so upon the evidentiary rule that it is not uncommon "to believe some and not all" of a witness' testimony. N L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2). 5Section 2(5) of the Act defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or In part, of dealing with em- ployers concerning . . . wages, rates of pay, hours of employment, or conditions of work." ST. LOUIS HARBOR SERVICE COMPANY 643 of six enteiprises 6 and vice president of one .7 Of these he had a quarter interest in Alton Transportation Company, a third interest each in St. Louis Harbor Service Company and Notre Dame Fleeting and Towing Company , and a half interest each in Eagle Boat Store, Eagle Fuel and Supply Company, Eagle Wharf and Towing Company, and Arsenal Island Fleeting and Towing Company . He exercised direct control over the operations of each. One office is maintained for handling the business of all seven corporations and the records of each are maintained by the same clerical and supervisory employees. Each one of the foregoing enterprises performs some separate segment of the Companies' total operations . Thus Eagle Boat Store, as its name implies, was a ship's chandler selling supplies to the river trade , and Eagle Fuel dispensed fuel and lubricating oils to the same clientele . Notre Dame Fleeting operates what amounts to a parking area for barges coming into the St. Louis Harbor to be un- loaded or that are awaiting a tow elsewhere after having been unloaded. Eagle Wharf and Towing was organized to purchase and maintain a boat called the Charles West, tied up permanently at the foot of Market Street , St. Louis, and used as headquarters for all the Companies' operations. The remaining three enterprises figure most prominently in this proceeding: Alton Transportation Company , hereinafter referred to as Alton, St. Louis Harbor Service Company, hereinafter referred to as Harbor Service , and Arsenal Island Fleeting and Towing Company, hereinafter referred to as Arsenal . Each own or have owned motor tugs and are engaged primarily in tug service , the movement of the barges of other owners to points in and around the St. Louis harbor area which comprises a stretch of the Mississippi river extending downriver from Alton, Illinois, 34 miles to Jefferson Barracks Highway Bridge. From time to time the tugs of one or other of these companies are in "line service," the movement of barges of other owners from port to port on the Mississippi river and its tributaries. All seven enterprises exist , as we have seen, for some functional purpose within the overall structure ; four of them, Eagle Wharf, Eagle Fuel, Arsenal , and Notre Dame, have no employees and exist for the purpose of owning property-Eagle Wharf owning the Charles West, Notre Dame owning and leasing barge storing areas and facilities , Eagle Fuel owning the supply facilities as well as the boats Eagle Oiler and Eagle Fuel No. 1, and Arsenal owning the two tow vessels, Captain Buck Leyhe and Louise Leyhe.8 Eagle Boat Store hired employees who appear to have constituted the administrative complement of the entire operation . Thus in addition to those charged with the responsibility for purchase and sale or groceries and supplies, it hired employees who dispatched vessels and handled the books and the general clerical and supervisory duties necessary to the management of all seven enterprises. The remaining two companies, whose operations generated the controversy herein, Harbor Service and Alton , owned and operated boats and hired employees to man them, although President Leyhe testified that, as of the date of the hearing, Harbor Service had no employees , and one of the contentions herein was that at a critical date Alton had no employees (infra). At varying times in 1962 and 1963 the follow- ing boats were chartered to either Harbor Service or Alton: Davey Crockett, Spencer, Louise Leyhe, Totem Kole, Eagle Oiler. To determine the details of the ownership, transfer, or chartering of each of these boats at this point, however, would not be feasible for reasons of practicality and presentation but will be considered in the next section of this report (infra). Suffice it to say that boatownership among the several companies was fluid in every sense of the word. The complicating factor in the operation of these latter companies , insofar as this case is concerned, is that there was a frequent , indeed a constant, transfer of boats from one company to the other, as well as the sale or charter of boats to and from other owners. This, it appears, is symptomatic of the water transportation industry. Insofar as there were at pertinent times herein transfers and assignments of boats from one segment of the overall company to another, President Leyhe credibly explained that this was done for economic reasons and as part of a scheme of corporate reorgani- zation designed to improve the holdings and revenue income of the several stock- 6 Alton Transportation Company, St Louis Harbor Service Company, Arsenal Island Fleeting and Towing Company, Eagle Boat Store, Eagle Fuel and Supply Company, and Notre Dame Fleeting and Towing Company. 7 Eagle Wharf and Towing Company. 8 As it will appear hereafter this boat's transfer from one corporation to the other was a subject of the initial charge herein . My finding of its ownership as-of the date of the hearing is in no way related to such transfer and is made here to fully describe the companies' operations. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holders of the separate corporate entities., I accordingly find and conclude, upon his testimony, that no charter,t assignment, or transfer of any tug, to or among any of these enterprises was effected for anything but economic reasons, excepting only the Louise Leyhe, whose transfer will be the subject of further discussion hereinafter (infra). Furthermore, under applicable law it is clear, as General Counsel has alleged in his complaint, that all of these companies were so integrated in operation and con- trol as to constitute a single employer and I so conclude and finds _ - B. Sequence of current transactions The Alton Company was incorporated in March 1962 and thereafter in April or May 1962 acquired the Spencer from American Commercial Barge Line by charter agreement dated March 15, 1962.10 This being a bare boat charter; i.e., without a crew, a crew was hired by the Company's marine superintendent, Earl Johnson, and the boat was placed in tug service moving barges about St: Louis Harbor. Within 6' months of its charter the services of the Spencer were solicited by American Com- mercial for its Chicago operations under the continuing operation of Alton and it left the'St. Louis scene. To replace the Spencer in-the St. Louis tug service American Commercial, again by bare boat charter agreement, leased the Davey Crockett to Alton on June 28, 1962, operating it thereafter until about October 1962, ;with a crew hired by Johnson, at which time it was placed in "line service" towing barges to other ports on the river. In their respective periods of service,both boats-were dispatched by Carl Seaton who performed these duties for St. Louis Harbor Service as well as for Alton, in line with the practice of common operation and control. At-some unde- termined time prior to December 1962,the Spencer returned to the St. Louis area and was operated by Alton until its charter expired on April 15, 1963. Alton's charter-.of the Crockett expired at the end of January 1963. Alton actually owned or chartered no boats other than the above two. During the same period, however, other boats were owned by, one or more of the other companies and operated by another. During 1962, for example, the Totem Kole was operated by Eagle Fuel but, having sunk on June 18, it was actually out of commission for 6 months until December 1962. When it returned to operation in December the Totem Kole went into harbor or tug service under the operation of Harbor Service Company. During the intervening time, however, Harbor,Service Company operated in its place the Captain Buck Leyhe, a larger boat using two screws, both having been supplied by employees Grogan and Lauderdale whose place in the picture. will be discussed at an appropriate later time herein (infra). Although operated by,Harbor Service the Buck Leyhe was owned by Arsenal,-having been.purchased in June 1962. Harbor Service Company also operated the Eagle Oiler after January. 1963, it having been previously operated and owned by Eagle Wharf, Company. , It also appears from the record that Harbor Service operated the Totem Kole on its return to service in December 1962 and until late January 1963, but what happened to this boat thereafter is not clear. On March 30, 1963, the Arsenal Company acquired the Louise Leyhe which it operated until the boat broke down on June 6. Arsenal then chartered the boat to Alton for operation in the tug service. Beginning on June 24 when it was put into commission the Louise Leyhe began actual operation under the.Alton charter. A reading of the foregoing transactions may well suggest inherent contradictions and general confusion. In the findings I have made-I can lay claim to neither accuracy, completeness, nor consistency because the record itself partakes of the same deficiency. Indeed there is a thread of testimonial discrepancy running through, many items supplied by President Leyhe, called as a witness for the General. Counsel and whose credited testimony forms the basis of my findings herein... It would be appropriate to note here, therefore, that these appear to be, but, a byproduct of the industry. and the style in which it operates- generally and are in no way a reflection upon- Leyhe's credibility. As he testified he relied upon voluminous records and, with the, approval of all parties concerned, frequently consulted with his accountant and members of his staff. In the light of all of this I am of the firm opinion that, the foregoing is the best available description of the Respondent Companies' operations during the period in question, directed in particular as it is to the Louise Leyhe, Davey Crockett, and Spencer, and with less than a full description of the operations of the other boats. , e Overton Markets. Inc.; et al., 142 NLRB 615 ;, Aluminum Tubular Corporation and American Flagpole Equipment Co., Inc., 130 NLRB 1306. 10 General Counsel states in his brief that it was to President Leybe, as an,individual, that this boat was chartered. The record does not state in what capacity it, was that Leyhe accepted the charter and under all the surrounding circumstances I find it to. be in his capacity as president of Alton, the company which thereafter operated the boat. ST. 'LOUIS HARBOR SERVICE COMPANY 645 C. The labor relations situation 1. The certifications involved The Companies' labor relations !program appears to have been no less complicated than their operating structure. And it is out of this complexity that the present dispute arises. On March 20, i962, immediately following Alton's incorporation, a repre- sentation petition in Case No. 14-RC-4271 was filed by the SIU, claiming to represent Alton's employees., A consent agreement was signed on April 2 by President Leyhe for Alton and Attorney Souders for the SIU. The case was assigned to Field Exami- ner J. Robert King of the Regional Office who arranged for the election to be con- ducted aboard -Alton's vessel the Spencer. At this election, held on April 6, the SIU obtained d majority of the votes-cast and was certified thereafter on April 16, 1962, by the Regional Director, as the bargaining representative of Alton's employees. There- after, on June 6, 1962, Alton and SIU entered into a contract covering engineers, deck- hands, and cooks on all boats owned by the Company and specifically excluded crews of boats "of subsidiary or affiliated companies." The contract contained a union- security provision whereby the parties agreed that SIU would supply qualified person- nel who would-be required to join the Union after 30 days' employment. The term of the contract was for 2 years but there was provision for reopening for wage negotia- tions on May 15, 1963. During the term of the original contract the employees involved were the crew of the Spencer and, after the Spencer's transfer to Chicago, the crew of the Davey Crockett. ' On May 15, 1963, the parties entered into a new agreement of 3 years' duration, the sole effect of which was to renegotiate the wage rates, as provided for in the earlier agreement, and to extend the original contract for an additional 2 years." It is this wage revision and extension which General Counsel alleges to have been a con- tract "enforced and maintained in effect by both Respondent Employer and SIU not- withstanding the fact that SIU did not at the time of the execution of said contract represent an uncoerced majority of the employees in-'a unit appropriate for such purpose." 12 Meanwhile, as Respondent Company was recognizing SIU as representative of Alton's employees first on the Spencer and then on the Crockett, a'second representa- tion petition was filed with the Board. This one, in Case No. 14-RC-4459, was filed on November 2, 1962, by Rivers and Harbor Association (RHA) also alleged in the complaint to be company aided and assisted. The petition was signed by employee Edward Grogan, designated as secretary-treasurer. The petitioning organization was headquartered at the foot of Carr Street, St. Louis; Missouri, the same address as the Respondent Company's, where, according to President Leyhe, the Companies shared office and desk space and the use of telephone facilities with the RHA. Earl Johnson, marine superintendent of the Company and an admitted supervisor, was instrumental in forming the RHA. And in the matter of retaining counsel it was President Leyhe who referred Grogan to Attorney Dowd.13 The RHA petition claimed the representation of the employees of both St. Louis Harbor Service Company and the Eagle Boat Store Company and indicated that it was currently being recognized as the bargaining representative and that a contract then in force between the RHA and the named employers was due to expire a year thereafter on October 15, 1964.14 In the course of processing the RHA's petition the Board's field examiner assigned to the case, Robert B. Albers, sent a formal notification of the filing to President Leyhe of, Harbor Service. Including therein was the following paragraph: If you have any labor agreements at the location named in this letter, state names of unions and their representatives (with addresses ),, and give expiration dates of the contracts. If copies of these contracts are available, we would 71I have compared the documents word for word and find them to be identical except- ing only the extended terminal date, an increase of the engineer daily wage rate by $4 53, the deckhand,rate by 72 cents, the cook-rate by 80 cents, the creation of a wage rate for assistant engineer at $30 24 per day, and the omission (obviously typographical) from the earlier contract of a provision governing the cleaning of refrigerators' and storerooms. 'It is to be noted that during the course of the hearing counsel for the General Coun- sel stated that "the original . contract is unquestionably in line with the certification of Alton's employees " 13 The undenied admissions of Grogan which I accept. !'This information appearing on the petition in Case No. 14-RC-4559 ( RHA) and the contract itself, both admitted into evidence,, is corroborated by President Leyhe's credited testimony. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appreciate your sending one of each to us. Similarly, if any union is claiming to represent any of your employees at the specified location, state their names, and names and addresses of their representatives. The notification closed by requesting Leyhe to return an enclosed questionnaire relat- ing to the Employer's business and the extent to which it was in interstate commerce. On this questionnaire there was included the following request: Describe briefly the nature of your business; also state whether it (the establish- ment involved) is one of a chain or one of several separate but related enterprises. To which Leyhe replied on November 9, 1962, simply: "Towing and Fleeting." 15 A consent-election agreement was signed on November 9, 1962, by President Leyhe in behalf of Harbor Service, Grogan for the RHA, and by a representative of the National Maritime Union (NMU) which had intervened in the meantime. Although the record does not indicate its precise timing in relation to the signing of the foregoing consent-election agreement a conference was held at the Board's offices preparatory to conducting the election. Present were President Leyhe, his attorney, Robert J. Griffith, employee Grogan, RHA's attorney, Edward L. Dowd, and Field Examiner Albers.16 Included in the general discussion at this conference was "a very general discussion about all the activities of the boat company down there." In addition to this, however, Attorney Dowd credibly testified that while the SIU's current contract relationship with the Company was discussed there was no indication that it was aware of the filing of the petition and no SIU representative was present at the hearing. It was concluded by those present, according to Dowd, that as the SIU had made no request to intervene it would not appear on the ballot. At no time thereafter did the SIU intervene in the proceeding and it is its urgent contention throughout the instant case that its lack of opportunity thus to intervene deprived it of the opportunity to participate in the election and perhaps represent other of the Company's employees. At the election thereafter conducted on November 19, 1962, aboard the Charles West, headquarters of both the Respondent Company and the RHA, RHA received 22 of the 23 votes cast and was thereafter certified by the Regional Director on November 28, 1962, as the bargaining representative of St. Louis Harbor Service Company's employees. 2. The employees' union affiliations The previously executed contract between St. Louis Harbor and RHA alluded to in the RHA representation petition continued in force and the dues of employees covered by it were deducted by the Company. These employees, it will be recalled (supra), were, as of that date, the crew of the Captain Buck Leyhe and of the Eagle Oiler, a boat owned by Eagle Wharf Company at the time and not acquired by Harbor Service until January 1963.17 Thereafter members of'other boat crews were signed up by the RHA; i.e., by Grogan. Thus when the Totem Kole went back into service in Decem- ber 1962 its crew came from RHA. The Eagle Oiler's crew continued to be from RHA when Harbor Service acquired that boat from Eagle Wharf in January 1963. It is the union status of the crew of the Louise Leyhe, however, that presents the principal issue here and the facts concerning it, and indeed the ownership status of the boat is quite confused. When the Louise Leyhe was acquired on March 30, 1963, it was by the Arsenal Company which operated it, with the Eagle Boat Store dispatching it for several months thereafter (supra). Harbor Service, the party to the RHA contract and the designated employer in Case No. 14-RC-4459 in which RHA was certified as employee representative, never owned or operated the Louise Leyhe.18 Nor does the composition of the crew appear to have been com- pletely RHA. Thus President Leyhe testified that his crew "was procured from the boys that was working on our dock and the boys who had just left the Spencer," the latter employees being part of the unit in which the SN had been certified (supra). It is General Counsel's contention that because Alton was sailing no boats between April 15 and June 24, 1963, it had no employees. When the charter of the Spencer expired on April 15 there was in Alton's employ aboard the boat a deck- hand named Morgan of whom Respondent's bookkeeper Bill credibly testified that by his past long service he had accumulated 30 days of "swing time"; i.e., accumu- 15 At the conclusion of the questionnaire Leyhe added, "Our Harbor Fleeting and Towing enterprises have exceeded $50,000 during the three-fourth year period in 1962." 1e The details of this conference are based upon the credited testimony of Attorney Dowd, corroborated in part by President Leyhe. 17 President Leyhe testified that the Eagle Oiler's crew voted in the November election. 28 The credited testimony of President Leyhe. ST. LOUIS HARBOR SERVICE COMPANY ' 647 lated annual leave. During this time and at least until May 15, 1963, Alton had at least one employee, Morgan, a member of the SIU and covered by the existing con- tract between that union and the Alton Company. D. The transfer of, the "Louise Leyhe" to Alton On June 6, 1963, the Louise Leyhe was chartered by Arsenal'to'the Alton Com- pany and on June 24 the actual operation was also assigned to Alton. As this transfer is the crux of General Counsel's claim of discrimination by Respondent Company in favor of the SIU and of Respondent SIU's alleged restraint and coer- cion of employees and the causing of discrimination by Respondent Company against certain employees, I shall set forth in detaiLthe reasons assigned by President Leyhe for the transfers, which reasons I credit: The St. Louis Harbor Service Company was losing money and losing it rapidly. That certainly would eliminate considering assigning the LOUISE LEYHE to the St: Louis Harbor Service Company. The Alton Transporta- tion Company had made a good record of operation of boats both here and in St. Louis, Chicago, and in general line runs. The LOUISE LEYHE is a modem boat and we anticipated gleaning some of this reputation as far as the boat itself was concerned. We (Harbor Service) were getting complaints, numerous complaints, which I cited to these gentlemen in my affidavit, complaints involving service, moving barges to docks on time, getting complaints on service of our oil business and supply business, and our general reputation as a service enterprise was being run down rapidly. In operation of boats it is essential that you have good personnel and per- sonnel interested in the welfare of the company, personnel that are going to perform on a revenue basis. Now, the Alton Transportation Company had operated several boats in the St. Louis harbor and elsewhere on the river. We had received a letter of commendation from American Commercial Barge Line for operation. We had a good reputation. With the St. Louis Harbor Service Company obtaining employees through the Rivers and Harbors Asso- ciation, it was becoming more difficult allthe time to try to obtain employees to this association that could do our job * * * * * * * During the months of April and May (1963) there seemed to be a general breakdown of our operation. Many of our employees were leaving, like the president of the union (Grogan), and many others. We have a port captain who left us the first part of June. After that period of time there seemed to be fewer and fewer people who could be identified as members of the Rivers and Harbors Association and in order to operate a boat and get a crew you have to have some stability. Earlier in the hearing when asked why the charter had. been transferred Leyhe described the economic reasons thus: The Arsenal Island Fleeting Co., not only owns two boats, but it also leases real estate on the Illinois shore for fleeting purposes. The LOUISE LEYHE was bought by the Arsenal Island Fleeting Company because George Capps and myself were the purchasers of the LOUISE LEYHE. The Arsenal Island Company was not an actual operating company, and we wanted to put the LOUISE LEYHE to an operating towboat company, and also contemplated under this move was the fact that we were going to move on the purchase of stock of some of these other companies. We were going to utilize the Alton Transportation Company as an operating company. - * * * * * * * In addition to that we did have a good reputation as far as the operation of the DAVEY CROCKETT and the SPENCER, and we had received a great deal of criticism from various customers in the months of March, April and May, which indicated that we were not getting proper service from employees of the other companies. ' What I am saying is basically the Rivers and Harbors Association had some good men, but we also were being supplied men who were not good men who were affecting our business drastically. For example, we had one man that 648' DECISIONS OF NATIONAL LABOR RELATIONS -BOARD was supplied to us that went out on a fuel job, smoked a cigarette while fuel was being pumped aboard, and when the Captain called him to task he became very smart with him. Secondly, we had several people on the vessel who told us that several of these men had gone out drinking. Thereafter, when'asked by me at the hearing why he transferred the Louise Leyhe from whatever company it was with to the Alton Company, Leyhe continued: You must'have specifics to -start anything, and, No. 1, there was a business reason 'to begin with., I mentioned, I believe, in the beginning of my testimony- that we had contemplated ownership of, transfer of ownership of the corpora- tions and Alton Transportation Company had been agreed as the. operating company. No. 2 is the LOUISE LEYHE was operating in St. Louis Harbor for approximately three weeks. The engine was' practically blown up due to negligence and nothing but negligence and it cost us something .like three to four to five, thousand dollars to put a practically`new'boat back into shape. At.the time of this happening it was decided we could not run this boat with nondescript crews because we didn't know who we were going to get. TRIAL. EXAMINER: When you transferred this boat to the Alton Company did the crews go with it? The' WITNESS: No sir, and this is what apparently caused all the trouble. We started the LOUISE off on her initial run we had an SIU crew because we felt we had to conform with the contract. TRIAL EXAMINER: You started with a new crew when it'went over to the Alton? - The Wi'TNEss: There may have been one or two of the other chaps. TRIAL'ExAMINER: What happened to the old crew? The WrrNEss: They continued to work for us on the old boats. As time elapsed the old crew has been absorbed to the LOUISE. On the 'morning, the"Louise Leyhe was put into service, June 24, two' seamen appeared in search of that particular boat, stating to company employees on the dock that they had been sent there from the SIU. - When the Louise Leyhe shipped that morning it carried these two new crew members and employee John Ohlendorf, an operator or pilot on the boat and previous to its shipping an employee of Harbor Service and member of; RHA. The other crew members shipping on the Louise Leyhe on, that morning were not identified but both Grogan -and employee Pear- man' testified without contradiction that a number of the employees, presumably RHA members, refused to ship, but did so on the following day.10 About the time of the sailing of the Louise Leyhe, or shortly before, Supervisor Charles Norton appeared on the scene and informed the men that the ship had been transferred to Alton. On either this occasion or later in the day he also informed the men that they should make the necessary arrangements with the SIU as its contract with Alton (supra) would thereafter include the newly assigned boat. -- Later on June 24 Lou Colvis, International representative of the SIU, appeared at the dock in answer to a rumored threat from Grogan that he was afraid to put in an appearance at the dock. While present on the premises, with- out incident, Colvis talked to a number of the employees concerning the benefits to be derived from joining the SIU and in his conversations with the men denied that a "deal" had been made "to steal the LOUISE LEYHE," as claimed by Grogan.' Colvis did state to the men at the time that he had been requested to furnish' a crew and had done so. When it was protested that some of the current crew would be displaced, Colvis.informed the men that all they needed to do would be to sign with the SIU and they would ship out 20 In this respect it is to be noted that the protesting employees did ship with the boat on the following day after signing appli- cations to join the SIU.21 - And,President Leyhe testified without contradiction that no employee was either displaced or lost any time due to the transfer. Indeed one employee, Vaughn, admitted to -having received a promotion from deckhand to operator as a direct result of the transaction. la This is a synthesis drawn from the undenied testimony of Grogan and Pearman. See infra, footnote 22.. There is nothing in the record to support General Counsel's version of this Incident to the effect that Pearman shipped out "after a one-day lay-off." 21 There is some testimony in the record that certain overtures were made by Grogan to bring the R13A. membership into the International Longshoremen's Association (ILA). Whether this be so or not is of no relevance to any issue in this proceeding and I find it unnecessary to make any finding with respect to that organization. 2 'Employee Pearman testified he was given 30' days in which to join upon signing his application."' ' ' ST. LOUIS HARBOR SERVICE COMPANY 649 One final commentary on this June 24 incident is in order.,, It is alleged, that Colvis threatened that he"had or would bring pressure upon the Company's custom'- ers to cease doing business with it because its employees did not belong to the SIU. As Colvis credibly denied this allegation and there is no credible evidence' to sup- port it, I recommend it be dismissed.22 - - E. Analysis of Respondent Employer's operational relationships and of its con- tractual relationships with Respondent SIU and the RHA together-,with ultimate conclusions thereon Out of the foregoing welter of confusion many bones of contention protrude: (1), the single-employer status of the several companies, (2) the yalidity of the several official certifications, (3) the Companies', alleged assistance and support of 22 The foregoing account is based upon the credited testimony, of Colvis. In so credit- ing him I particularly rely_upon,his denial of the threats to place_pressure upon-.company customers attributed to him by witnesses Pearman, Vaughn, and, Grogan. Elsewhere in my account of the events occurring on June 24 I credit the testimony of Supervisor Norton upon my observation of film as he testified. 1 do not credit generally the testimony of either employees Grogan - or Pearman nor , of= employee-Vaiighn who testified on related matters. I do on 'occasion rely upon their testimony when it con- stitutes an admission `against their respective interests, is on a subject ,'within their peculiar knowledge, or is corroborated by--the testimony of credible witnesses. Grogan's appearance on the stand and'at the hearing was such as would inspire little credence. He was ill at ease, hesitated and stammered' as he answered 'questions put to him by cross-examining counsel, and on numerous occasions evaded questions put to him. Illustrative of this was his failure ever to directly answer whether the RHA' men refused to sail on June 24, 1963. Furthermore, as I have 'credited President Leyhe, also called by General Counsel, as a forthright witness, I'necessaiily ieject such testimony of Grogan as conflicts with Leyhe's account Similarly I have ,credited SIU Representative Colvis (supra), and I do this simply because his appearance, manner, and general con- duct impressed me as being that of a reliable man, a judgment which I feel competent to make Because Colvis has credibly denied the statements and conduct attributed to him by Grogan I discredit Grogan for this additional reason. In further respect to Grogan's credibility as a witness I note Respondent SIU,s motion to reset hearing to assess the character of Grogan following his indictment for the, murder of Marine Superintendent Earl Johnson. To the extent that this motion is 'directed to Grogan's credibility as a witness I deny it at this time, inasmuch as indictment for a crime is not a' proper subject for impeachment (N L.R B: v. Baldwin Locomotive Works, 128 F. 2d 39, 46 (CA. 3)) and his conviction has not been shown to have been had. Robert Pearman was equally unimpressive. in his demeanor as a witness. I do accept his account of what transpired at the Board office and in Respondent Company's office when questioned by Leyhe and SIU counsel, it being corroborated in part by other testi- mony and constituting answers to leading questions suggested by cross-examining counsel who had been present at the meeting being described. Otherwise,, however, and particu- larly as to testimony concerning meetings with Representative Colvis, I discredit him, his testimony being at odds with an affidavit given earlier to Board representatives. Fur- thermore, as I have credited Coivis•for reasons previously stated, I necessarily do not credit any testimony of Pearman' s conflicting with it. . . Henry Vaughn's demeanor on'the witness stand persuades me of his lack of credibility. Describing a man's conduct in this respect is not always possible., Thus, for example, a witness need not be rolling his eyes, constantly wetting his lips, and casting about furtive glances to convey an impression of untruthworthiness, and certainly Vaughn indulged in none of these theatrics. He did, however, by the tone of his answers, the inflections of his voice, and his 'general attitude as he sat on the stand, impress me as a man whose testimony I should question-and I do. In addition to this I find certain inaccuracies in his testimony that should serve to justify my impression's, if this •be necessary. Thus, for example, when testifying that SIU Representative Colvis had made threats -directed at the Company,'s business Vaughn quoted him as stating, "I have been putting pressure upon the Company under SIU not to deal with Eagle Boat Store and that's it, and he said that's why the business has been falling." This is clearly a misquotation, for the witness is actually quoting Colvis as threatening to have one part of the integrated enterprise (Alton, "the company under SIU"), not do business with another part of it, the boat store. Any other possible interpretation of this quotation would serve only to accentuate its inaccuracy. Additionally, Vaughn's cross-examination was interspersed with so many failures to remember and so many uncertainties that in my opinion this alone 'casts serious doubt upon the facts he actually claims to have remembered. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the RHA and of the SIU, (4) the alleged restraint and'coercion of employees by the SIU and by the Companies, (5) the alleged discrimination against employees by the Company, and (6) the causing of the discrimination by the SIU. To ade- quately set forth General Counsel's contentions as to these matters and the Respond- ents' respective defenses would, in my estimation, serve only to confuse a situation already far gone. Rather, I will allude to the contentions and defenses as I plod to the conclusions I will ultimately reach. In the first place it is to be noted that General Counsel has placed himself on both sides of what appears to be a critical issue. By paragraph II, E, of the com- plaint he alleges that: Harbor, Alton, Arsenal, and Eagle are and at all times material herein have been affiliated businesses with common offices, ownership, directors, and opera- tors and constitute a single integrated business enterprise; the said directors and operators formulate and administer a common labor policy for the afore- mentioned four companies affecting the employees of said companies. This, it would seem, is the conventional language used by the Board and the courts to describe a single employer 23 and I find and conclude the several enterprises herein to be such. Elsewhere in the complaint, however, it is alleged that the Respondent Employer and SIU by contract of May 15, 1963, entered into rela- tionships which bore the taint of unlawful assistance, support, restraint, coercion, and discrimination. To reach this position General Counsel moves in an opposite direction by relying upon the certification, in Case No. 14-RC-4459, of the RHA, a labor organization which is alleged in the complaint to be unlawfully assisted and supported,24 and by questioning the validity of the certification in Case No. 14-RC- 4271 of Respondent SIU. Thus in essence it is suggested that the several certified units might more properly have been one; or, in the opposite alternative, that the corporate fragments actually constituted separate employers, and perhaps separate bargaining units. 1. The unlawfully aided and assisted RHA It behooves us to first dispose of the RHA. The complaint alleges and the record discloses the following clause in the contract maintained in effect between St. Louis Harbor and RHA, executed a month before that labor organization filed its repre- sentation petition with the Regional Office: ARTICLE II SECTION 6-CLASSIFICATIONS The Union and the Company agree that the following classifications shall determine not only the pay scale of the employee, but shall also be consid- ered in the event a lay-off is necessary, and shall be considered for re-calls when necessary. A. CLASSIFICATIONS 1. "Class A" an experienced employee in good standing with the Union. 2. "Class B" a semi-experienced employee in good standing with the Union. 3. "Class C" an experienced employee but not a member of the Union. B. All employees of the Company who, as of the signing of this agreement have presently acquired a seniority rating of "Class A" or "Class B" because of agreement, past employment, or practices, shall retain such seniority rating with the Company subject to the provisions of this agreement. Respondent Employer admits to this allegation 'in its answer and President Leyhe frequently throughout his testimony concedes that St. Louis Harbor Service obtained its seamen through RHA (see supra). Upon such admissions of the implementa- tion of a contract granting mandatory preferential employment to members of the sa N.L.R.B. v. Stowe Spinning Company, et al., 336 13 S. 226, 227; N.L.R.B. v. Gibraltar Industries, Inc, & International Trailer Co., Inc., et al., 307 F. 2d 428 (C.A. 4) ; Overton Markets, Inc., et at., 142 NLRB 615; Aluminum Tubular Corporation and American Flag- pole Equipment Co., Inc., 130 NLRB 1306. 2413y its charge in Case No. 14-CA-3099 the ILA initially alleged the unlawfully aided and assisted status of the RHA. That the ILA did not, however, participate further in this proceeding does not affect the validity of its charge. N.L.R.B..,v. Indiana & Michigan Electric Company, 318 U.S. 9. ST. LOUIS HARBOR SERVICE COMPANY, 651 RHA it is clear that Respondent Employer render a species of aid and assistance to that organization which is proscribed by Section 8(a)(2) of the Act and I so con- clude and find.25 Quite apart from the conclusion I have reached based upon the maintenance of contractual relations with RHA, the evidence is clear and undisputed that RHA was a creature of the Respondent Company's designing. It shared office space, tele- phone facilities, and meeting place with the Company; the Company's marine super- intendent, the late Earl Johnson, was one of its guiding lights. The Company entered into a contract with it on October 15, 1962, a full month before the RHA had filed its representation petition with the Board,' and with nothing in the record to suggest that a claim of majority status had previously been either made or acknowl- edged. When legal advice was sought by the RHA, President Leyhe recommended an attorney whom its secretary-treasurer, Grogan, might consult. I do not deem it necessary to burden this report with citation of authority to establish that such conduct has been consistently held to constitute employer assistance and support of a labor organization forbidden by Section 8(a)(2) and I so find and conclude here. 2. The status of the RHA's certification Because the certification of this unlawfully aided and supported Union appears to affect the representative status of the SIU and the rights of all the employees it must next be explored.26 In the first place the above-mentioned RHA contract with its unlawful hiring preference clause and also an outstanding certification of the SIU-in another bar- gaining unit were in existence prior to the filing by RHA of the petition in Case No. 14-RC-4459. In addition there is the matter of several critical omissions in infor- mation supplied by the Company to the Board. Thus in a questionnaire returned by President Leyhe, he failed to supply, as requested in a letter sent him by the Board's Regional Office; the.name of the SIU as being a union with whom the Com- pany had contractual relations, and which was "claiming to represent any of [his] employees"; and he likewise failed to describe, as requested, the nature of his busi- ness, stating "whether it is.one of a chain or one of separate but related enterprises." (Supra.) 27 m Galveston Maritime Association, Inc ; et al., 139 NLRB 352 ; Marcus Trucking Com- pany, Inc., 126 NLRB 1080, 1103. 26 The following colloquy between counsel for Respondent SIU and General Counsel describes the certification problem inherent in this case thus: Mr. SOUDERS : I asked General Counsel this morning whether he was attacking certification and at one time he said he was not, and this is a pure attack on the certifications again, is he saying he is or is not attacking the certifications. I think we are entitled to know what he is trying to do. Mr. WEIL: The General Counsel is concerned with the matter of the unit in these proceedings, what the appropriate unit is. We have one type of fish that we are examining if the appropriate unit is all employees of all seven of the companies, an- other if the appropriate unit is all employees manning the motor vessels operated by those of these companies that are operating motor vessels, we have another type if we have two different kinds of units, one a unit of vessels engaged in mixed line and harbor work, and another for vessels engaged solely in harbor work There may be two appropriate units and there may be one appropriate unit. I am not prepared at this time to say which is the' appropriate unit, however, the unfair labor practice that is alleged as one, type of unfair labor practice if there are two units, and another' if there is one. s : • s t s c If you say a unit pursuant to a consent election cannot be examined by the Board, if he is of this opinion I would point out to him that the cases are to the contrary. TRIAL EXAMINER: Are you presenting for examination by me and ultimately by the Board units already set forth, Cases 14-RC-4271 and 14-RC-4459? Mr. WEIL: Yes. 27 The foregoing misrepresentations by the Company, although clearly of assistance and support to the RHA's petition, were not alleged as further violations of Section 8(a) (2). As I encouraged rigid adherence to the pleadings in all evidence presented I do not deem the matter to have been fully litigated. and will accordingly make no findings thereon. Local 542, International Union of Operating Engineers, AFL-CIO (Elmhurst Contracting Co., Inc.), 141 NLRB 53, 55, enfd. as modified 329 F. 2d 512 (C.A. 3). 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And finally, _in any' consideration of the status of RHA's certification there must be a scrutiny of the circumstances whereby the previously certified SIU received no notice of the later representation proceedings and.no ample opportunity to inter- vene (supra). If, as General Counsel had' alleged in the instant complaint, all seven of Respondent's enterprises constitute a single employer, and on the evidence he has presented I have so, found and concluded, it would be difficult now, or at any time previously, and despite the Company's failure to supply the pertinent infor- mation, to also contend that in effect the Company is not a single employer. Having already found that it is, I cannot accept the suggestion that by the second certifica- tion (that of RHA in Case No: 14-RC-4599) the unit found in the earlier certifica- tion of the SIU was either swallowed up or'rendered inappropriate. Mindful of the circumstances under which the RHA was certified; namely, without benefit of a full disclosure to the Board of the facts involving the. Company's structure and labor relations (supra). I am compelled to the conclusion that the RHA unit established requires reevaluation, as may the unit represented by the SIU. - Accordingly, for the purposes of my findings and conclusions herein I deem the certification of RHA in Case No. 14-RC-4459 pursuant to a consent election agreed to be of no force and effect.28 3. The status of the SIU and its contracts After the SIU was certified by a vote of the employees of Alton back in April 1962, it commenced negotiations for a contract with the Company which they exe- cuted on June 6, 1962: This contract, the General Counsel conceded at the hearing, "is unquestionably in line with the certification of Alton's employees." - The certifi- cation in Case No. 14-RC-4271 thus -implemented by contract does not, therefore, appear to have been in issue at that chronological point in General Counsel's case. What created the issue was the charter expiration of both the Spencer and Davey Crockett during the contract term. These were the only two boats owned by the designated ,employer,.Alton,.when they were disposed of in early 1963. Consequently when in May 1963 the contract was renegotiated as to wages pursuant to its terms (supra), no Alton 'boats were sailing; and no boat personnel except Morgan (supra) was then employed., This contention, claims the General Counsel, brands the contract with its renegotiated wage rate as a vehicle for Section 8(a)(3) and 8(b)(1)(A) and (2) violations, inas- much as no "employees were hired by Alton nor represented by SIU during- this brief period. This is an extremely narrow interpretation of the law. What it suggests is that any total depletion of a work force, however, temporary, places the contracting par- ties in-jeopardy of the Board's processes. General Counsel has supplied me with no authority to support this type of anomaly and I find none. On the contrary, a con- sideration of the facts would suggest that no authority for such proposition exists. Here we have a series of routine transactions common to the water transport industry which culminate in leaving one of several integrated boat operators temporarily with- out boats. Nothing in the record suggests that Alton, (or any of the related-employers, for that matter) was going out of business, or changing its line of business, or con- tracting out a segment of its busineess. The overall management of the seven inte- grated employers had simply depleted Alton's tugboat inventory and was, as the facts disclose, in the process of replenishing that inventory for operations in the immediate future. This it did beginning on June 6, 1963, for the involved corporate, as well as practical, operational reasons already discussed (supra); and by so doing, accord- ing to General Counsel's theory, manifest such unlawful motivation as would throw out the temporarily fallow contract. I reject the theory. A sharper view of the circumstances surrounding the wage reopening of the 1962 contract in May 1963 suggests the possibility of an even more fanciful result. Thus everyone concedes the first contract was proper, and clearly it was reopened in proper fashion and in accordance with its terms. Speculating upon what would have occurred had it not been reopened, and had there not been the newly agreed-upon wage rates (the allegedly unlawful new contract), a logical extension- of General Counsel's argument would be that merely by relinquishing the charter of the two boats, as was done, and by thus depleting the work force, however temporarily. Respondent Company thereby effectively invalidated the existing contract and destroyed the outstanding certification. This would indeed be too facile a weapon to place in the hands of parties contracting to establish working conditions among employees, and I would recommend the Board not accept it. For under such a theory, for example, an employer owning a single boat could never safely lay it up for repairs without hazarding the dilemma of-either an unfair labor practice charge or a new Board election among his employees. 28 U.S. Chaircraft, Inc., 132 NLRB 922. ST. LOUIS HARBOR SERVICE COMPANY 653 Moreover,- it appears from the record- that one employee of Alton, Morgan, was actually on "swing time" or annual leave on May 15, 1963,-when the new contract was executed. As it was concededly the practice in the industry to consider individuals on leave to be employees, it actually cannot be argued that Alton was without employ- ees on May 15 when it executed the renegotiated contract with Respondent SIU. Upon consideration of all the foregoing I am' persuaded that the certification of the SIU as Alton's employees was proper, that the 1962 contract was a valid and legal one pursuant to the certification, that the May 15, 1963, contract was merely a renegotiation for the wage rates as provided for in the earlier contract, and that when it was renegotiated and thereafter maintained in full force and effect the par- ties did so under the same outstanding certification- in -contemplation- of law. I accordingly reject as unfounded any allegation directed to the impropriety or ille- gality of any collective-bargaining contract' between Respondent Company and Respondent SIU and recommend that so much of the complaint as would find such conduct to violate the Act be dismissed. - - 4. The sailing of the Louise Leyhe The climax of General Counsel's case is the sailing of the Louise L i eyhe on June 24, 1963, without the RHA crew. Conceivably this could be interpreted as a violation of Section 8(a)(3), but I fail to see how,. under, the facts presented, it could violate Section 8(b)(1)(A) or (2), there being nothing in the record to suggest that the SIU had anything to do with the transfer of the boat from one owner to the other, or even had advance knowledge of it. If, as General Counsel claims, Respond- ent Employer effected the transfer to get a better grade of personnel; i.e., those sup- plied under an SIU hiring agreement, that 'might be a form of discrimination in favor of the SIU if the employer were motivated'by an intent to encourage or dis- courage union 'membership. But if the `SIU simply stands on its contract and sup- plies employees to the employer who `has contracted for such in'the certified bar- gaining unit, such action neither causes the employer to-discriminate nor attempts to cause him to do so. The SIU was simply fulfilling the hiring provisions of its con- tract 29 I would recommend, therefore, that so much of the complaint as alleges that the SIU, by its conduct in supplying a crew to the Louise Leyhe before, on, or after June 24, 1963, constituted a violation of Section 8(b)(1)(A) and (2)', be dismissed. On the other hand, the Respondent Employer's conduct in this matter could be considered as discrimination under the Act if,'in,the language of 'Section 8(a)(3), it discriminates "to encourage or discourage membership in any labor organization" (and that, of course, includes unlawfully aided and assisted labor organizations). I do not read President Leyhe's stated reasons (supra) for effecting the transfer of the boats to Alton to be contrived or intended to encourage or discourage, union membership in either the RHA or SIU, respectively. An overall study'of the'record persuades me that this case is before us only because Leyhe appeared willing to sign up with any labor organization or hire any variety of union. members that would keep his boats sailing efficiently.. He did reject or, was at least critical of employees who happened to belong to the ill-conceived RRHA, not because they, belonged to it, or because he preferred they belonged to SIU or some other organization, but purely and simply because their workmanship was so poor that his company (Harbor Service) was in bad repute. Thus he stated; "We-.could not run this- boat with non- descript crews because we didn't know who we -were going to get." ' I have carefully studied the testimony of Leyhe in which he details his reasons for the transfer (supra) and nowhere do I detect the slightest inference' that' he was motivated by antiunion, or anti-RHA, or pro- would conclude and find the transfer'and the resulting personnel' changes to'be per- missible under the Act 30 I would accordingly' dismiss so much of the complaint as alleges that by transferring the Louise Leyhe to Alton the Respondent Company vio- lated Section 8 (a) (1), (2), and (3) of the Act. 29 I am aware of testimony to the effect that SIU Representative Colvis made certain statements to employees in the nature of threats to cause employers doing business with the Respondent Employer,to cease doing business with said Respondent because the em- ployees were not members in good standing of the SIU. As has been noted (supra), I„have rejected this testimony and, have credited Colvis,:denial that he so stated'at any ,time. But in any event the statements referred to were ,alleged to have been made after ,the Louise Leyhe had been transferred to Alton. In such a chronological 'posture they cannot be viewed as evidence of motivation before, the transfer: S0 Central States Petroleum Union, Local 115' (Standard Oil Compdny), 127 NLRB 223, 228-229. 654 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD Under the circumstances of the foregoing findings and conclusions and with par- ticular reference in this respect to General Counsel's allegation that SIU's majority status was a "coerced" one L find no "coercion" other than the permissible, variety implicit in the proviso to Section 8(a) (3) of the Act, where employees may, be required by agreement of the parties to a collective contract to join the Union on, or after 30 days following their employment. As the agreement was thus valid and proper at all times, I conclude and find that the proscriptive limitation of the proviso is not applicable to it, and the-membership required because of it cannot be thereby viewed as coerced. In summary, therefore, I would conclude and find that in the transaction transfer- ring the Louise Leyhe to the Alton Company the SIU did nothing except implement its contract with the Respondent Employer and was in no way responsible for the latter's part in the transaction. I accordingly recommend that so much of the com- plaint as alleges a violation of Section 8(b)(1)(A) or (2) in this respect be dis- missed. I would further find and conclude that Respondent Employer's transfer of the Louise Leyhe to Alton did not have the effect of interfering, restraining, and coercing or discriminating against its employee members of the RHA, nor did it unlawfully aid or support the SIU. I conclude and find therefore that Respondent Employer did not violate Section 8(a)(1), (2), and (3) of the Act. F. Other and related alleged unfair labor practices 1. Grogan's demotion Independent of the foregoing transactions employee Edward Grogan, ' RHA's secretary-treasurer, was experiencing considerable difficulty in the performance' of his employment duties as dispatcher. The radio dispatching of tow tugs, fuel, and supply boats to various points in and about St. Louis Harbor as required by the changing and continuing needs of the harbor traffic involves an expeditious use of the Companies' floating stock to insure that a maximum of service is derived from each boat with a minimum of expenditure of time and mileage, together with the maintenance of satisfactory relationships with the customers using the service. With respect to Grogan's difficulties and his eventual demotion, Supervisor Norton credibly testified that Grogan frequently committed errors in the maintenance of the dispatch records which resulted in the overcharging of customers; he would unnecessarily call out a crew to man a tug or supply boat on a towing or supply job that could have been more economically, handled by a boat already in service; he would retain a crew on a boat past the time it would be normally necessary to hold them; and he would frequently dispatch a boat to a distant part of the harbor when it would have been more readily and economically handled by dispatching a boat that was closer at hand. Norton credibly described Grogan's demotion as follows: I did advise Mr. Grogan after one complete boo-boo where we lost consider- able revenue from his dispatching that he could no longer dispatch our tugboats and I would prefer that he go back to the deck from where. he came and start performing deck work on which there was work available for him. Grogan stated "he would have to see," but although called back thereafter by Norton on several occasions, and on at least one occasion by President Leyhe, he did not appear for work, stating on each occasion that he was tied up on other matters, mainly labor affairs.` Upon the foregoing findings and conclusions with respect to Edward Grogan's employment, I conclude and find that he was demoted for cause and that he thereafter voluntarily quit his employment. I accordingly recommend that so much of the complaint as alleges Grogan's termination to violate Section 8(a) (1) and (3), and as constitutes an element of a violation of Section 8(a) (2), be dismissed. 2. Respondents' alleged unlawful preparation for trial During the course of preparation for the hearing in the instant proceeding Attorney Souders representing Respondent SIU visited the Respondent Company's office on October 16, 1963, for the purpose of checking payrolls and other company records in preparation for the up-coming hearing. During the discussion that ensued between Souders, President Leyhe, and. other representatives of the Employer, it was learned that certain of the employees had recently visited the Board's office and discussed with representatives there certain transactions and conversations which had occurred with SIU Representative Colvis on June 24, the day (supra) the Louise Leyhe first shipped out under Alton's operation. Whereupon employee Keith Bill, an office employee of the Company who was present at the time, called employees Pearman and Ohlendorf to the office, explaining to them that Leyhe wanted to talk to them. Pearman and ST.' LOUIS HARBOR SERVICE COMPANY 655 Ohlendorf testified' at' some length-ds• to the 'questions, put to them on this occasion but wire unable to'indicate in-many instances'who of the several Respondent's'rep- resentatives -made, each of `the ''several inquiries 31' Thus Attorney' Souders' asked Pearman "what' Mr: Colvis had said on the dock," referring to the incident alleged as•a violation in paragraph '15 of the complaint' Wherein it was claimed (contrary to my finding, supra) that Colvis threatened to put pressure on the Company's custom- ers. Souders' also 'asked Pearman who was present when Colvis was talking to the men. He then inquired as to what Pearman had told representatives of the Board concerning this incident, and- who else had given similar statements, and the circum- stances under which the 'Board -statements'weie taken. President Leyhe inquired of Pearman how he felt about the Company, and if he thought he had been treated fairly. He also asked him whether'he thought'ahy of the employees had been dis- criminated, against, by the transfer of the Louise Leyhe, to which Pearman replied that he knew of no such discrimination.,, Finally Leyhe asked him which employees had gone to the Board, and Pearman named those who did. Employee Ohlendorf's account of the discussion accords with Pearman's, the ques- tions being'directed to what information was given to the Board representatives. Ohlendorf could, not 'recall what' if anything Souders asked him but he did recall Leyhe asking him if he thought he was being treated fairly. When prompted at the hearing by Attorney Souders, Ohlendorf did recall Souders telling him they wanted to find out what the case'"was all about before going into the hearing. Under' the same circumstances he recalled•beiiig asked about Colvis' statements; as Pearman.had been asked, and what he had told the Board representatives. ' It is General Counsel's contention that the, foregoing conversations constituted inter- ference, restraint, and coercion on, the part of-the Respondent Company in violation of Section 8(a) (1)' of the Act. , Clearly the evidence shows that President Leyhe inquired as to how the' employees felt about the Company and if they felt that they had been fairly treated. Although • he did ask Pearman who went to the Board offices, I find nothing in the' record to suggest that he or other representatives of the Company inquired as to what transpired at the Board office.' As I am referred to no authority that would suggest ,that such limited inquiries as were attributed to Leyhe constitute unlawful restraint, I will recommend that the complaint be dismissed in this respect,as it applies to the Respondent Company. In this regard I am aware of the Board's most recent holdings wherein interrogation of employees as to statements given to the Board constitutes interference in violation of Section 8(a)(1)32 and that requests of employees for,, copies of such statements also constituted restraint and coercion in violation of Section 8(a) (1).33 But unless I were to find, contrary to the facts herein, that Attorney Souders, asked questions concerning this statement in the capacity of agent for the Respondent Company, the Board's holdings are not applica- ble for Leyhe's or any other company representatives. General Counsel further contends, that by,the foregoing discussions and questions Respondent SIU violated Section 8(b) (1) (A). I do not agree. Section 8(b) (1) (A) prohibits unlawful union restraint and coercion, but there is ample authority, includ- ing a fullsome legislative history,' to establish that employee interference was not pro- scribed. As the cited cases; with two exceptions, relate only to employer interference with employee rights,, I have no basis to anologize to find them applicable to union restraint and coercion of employees. The Winn-Dixie and W. T. Grant cases, how- ever, do find specific employer conduct to constitute restraint and coercion, as well as interference. But the, conduct proscribed there was "the, Respondent's request for copies, of employees; statements to .the General Counsel" which request the Board held would "exert an inhibiting effect on the employee willingness to give a statement at all." Here, on the contrary, the SIU attorney inquired only what it was the employees told the Board representative, p• refacing 'his inquiry by stating that the questions were for the ,purpose - of preparing for trial and that the employees ques- tioned were free to answer or not answer as they chose. While I am inclined to see a fundamental difference between ,circumstances surrounding the Winn-Dixie and Grant cases on the one hand, and this,one on the other, I am not disposed to execute ai Although I , have not relied upon testimony of these two employees generally, I do credit their corroborating account of this conversation, in the company office on October 16; uncontradicted as they are in substantial part, and particularly in view of the conceded fact that the conversations actually took place., 3a Surprenant Mfg. Co., 144 NLRB 507; Hilton Credit Corporation, 137 NLRB 66; Teccas Industries, Inc.; et at., 139 NLRB 365, 368. 33 Winn-Dis;ie Stores, Inc., and Winn-Diote Louisville, Inc., 143 NLRB 848; W. T. Grant Company, 144 NLRB 1179. 775-6965-vol. 150-43 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conduct even in the interest of assuring an attorney the opportunity to more fully represent his client in the preparation for trial. The conduct in both Winn-Dixie and W. T. Grant differs, however, from that in the instant case in respects other than the distinction between request and demands for statements there and the mere inquiry concerning them here. Thus in the instant case, unlike the cited cases, the inquiries were made by the attorney of a Respondent whose conduct has been found to be lawful in all other respects (supra). Because, therefore, this interrogation is the only questionable conduct found to be attributable to Respondent SIU in this proceeding, I would find and conclude that "when viewed in the context in which the interrogation occurred [it] falls short of interference or coercion [and] is not unlawful." 34 G. Summary of conclusions Upon the foregoing findings I have concluded that the several enterprises of the Respondent Company constitute a single employer. Under the circumstances by which the representative of Alton's employees was certified I have concluded that Alton's employees constitute an appropriate unit for collective-bargaining purposes, such a conclusion being without prejudice to the Board finding a larger or different unit to be appropriate in a proceeding properly brought before it. Without reference to the appropriateness of the unit in which RHA was certified as employee repre- sentative, I conclude that that organization has been unlawfully aided and supported by the Respondent Company in violation of Section 8(a) (2). While I have found that at all times relevant herein the Respondent SIU repre- sented the employees of Alton pursuant to the terms of its certification in Case No. 14-RC-4271, I nevertheless reject the certification of RHA in the subsequent Case No. 14-RC-4459 as well as the unit determination made therein, it having been issued without full consideration of all the facts involved, including any apparent consideration of the SIU's certified representative status and the unit determination previously made. In consequence I have found that at all times relevant the SIU was the representative of Alton's employees, that its original contract, including the union-security provisions, was valid, and that its renegnotiated contract was but a renegotiation of wage rates as originally agreed upon. I therefore conclude that neither by execution nor by maintenance of these contracts, nor in any other man- ner, including the actions of its Representative Colvis, has the SIU restrained or coerced the employees herein nor has it caused or attempted to cause Respondent Employer to discriminate against them. In so finding I further conclude and find that in its relationship with the SIU Respondent Company has not violated Section 8(a)(1), (2), or (3). I did find that Attorney Souder's inquiry of employees concerning affidavits given by them to the Board restrained and coerced these employees in that limited respect, but because these inquiries constituted but an isolated incident in an overall context of lawful conduct I concluded that they did not constitute a violation of the Act. And finally I have found that Respondent Employer demoted employee Grogan from his position of dispatcher for reasons of inefficiency and not because of his union leadership or activities. I accordingly conclude that Respondent did not thereby violate Section 8(a) (3). In final summary I would conclude and find that the Respondent SILT has not vio- lated the Act in any manner and recommend that the complaint be dismissed in its entirety as to it. I have found that the Respondent Employer by its recognition, support, and assistance of the RHA violated Section 8(a)(1) and (2) of the Act. In all other respects, however, I would conclude and find that the Respondent Employer has not violated the Act and recommend that the complaint be dismissed excepting only the violations noted above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the several Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. 34 Blue Flash Express, Inc., 109 NLRB 591, 593. See also Briggs IGA Foodliner, 146 NLRB 443. METROPOLITAN LIFE INSURANCE COMPANY V. THE REMEDY 657 Having found and concluded that the Respondent Employer rendered unlawful aid and assistance to the RHA, and has thereby interefered with, restrained, and coerced employees who were members of the RHA, I shall recommend that it cease and desist therefrom or in any like or related manner unlawfully interfering with, restrain, or coerce its employees. Although it has been generally established on the record that the RHA is now nonexistent, I shall nonetheless recommend that the Respondent Employer affirma- tively withdraw and withhold all recognition it has granted the RHA or any other labor organization as representative of its employees, other than those employees of Alton Co., until such time as a representative has been chosen in an appropriate bargaining unit pursuant to a Board-conducted election. As the SIU has been found to be properly certified as the representative of Alton's employees, I shall not require Respondent Employer to withdraw and withhold recognition of it pending any future determination by the Board of the representative status of all Respond- ent Employer's employees. [Recommended Order omitted from publication.] Metropolitan Life Insurance Company and Insurance Workers International Union, AFL-CIO. Case No. 13-CA-6511. Decem- ber 29, 1964 DECISION AND ORDER On October 2, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and Recommended Order. 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 Mem- bers Fanning and Brown]. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions of the Respond- ent, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 150 NLRB No. 59.