Reading & Bates, Inc.

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reading & Bates, Inc. and Patrick La Riviere and Alaska Petroleum Crafts Council and International Union of Petroleum Workers, affiliated with Seafarers International Union of North America , AFL-CIO. Cases 19-CA-3343,19-CA-3345, and 19-CA-3355 May 22,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 12, 1967, Trial Examiner Maurice Alexandre issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision, supporting briefs, and answering briefs.' The Charging Parties filed a statement joining in General Counsel's exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. 1. The Trial Examiner found, and we agree, that Robert W. Moore and three other employees were discriminatorily discharged in violation of Section 8(a)(3) of the Act because of their union sympathies and activities. However, in finding that Moore's sleeping on the job on one occasion provided a pretext for termination, the Trial Examiner nevertheless stated that Moore (1) was not ill at the time of that incident and (2) appeared to have a penchant for loafing on the job. The General Counsel excepts to (1) and (2) and contends that these findings are not supported by the evidence. We find merit in this position. The record shows that many employees were suffering from influenza and Moore testified on both direct-and-cross examination and without con- tradiction that he was ill at the time of the fore- going incident. Moreover, there is no evidence beyond this episode to indicate that Moore had a penchant for loafing. We therefore find, contrary to the Trial Examiner, that there is no adequate basis for finding that Moore was not ill or that he had a propensity for loafing on the job. Accordingly, we hereby disavow said findings of the Trial Examiner. 2. The Trial Examiner found, and we agree, that Respondent, in instituting a 10-percent wage increase on January 26, 1966, retroactive to January 23, 1966, was motivated by a desire to forestall union organization of platform B employees and thereby violated Section 8(a)(1) of the Act. As the Trial Examiner by inadvertence did not incorporate this finding in his Conclusions of Law and made no reference thereto in the cease-and- desist portion of his Recommended Order, we shall make the appropriate modification in the Order. 3. The General Counsel contends, and we agree, that the Trial Examiner's proposed notice to the employees is incomplete on the ground that it does not meaningfully address itself to all of Respondent's unfair labor practices, particularly its unlawful acts of interrogation and the unlawful wage increase. We shall therefore expand the notice to cover these violations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Reading & Bates, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Reletter paragraphs 1(b) and (c) as paragraphs 1(c) and (d) and insert the following new paragraph 1(b): "(b) Granting increases to encourage employees to abandon and defeat the Union." 2. Reletter paragraphs 2(b) and (c) as paragraphs 2(c) and (d), and insert the following new paragraph 2(b): "(b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 3. Substitute the following Appendix in lieu of the Appendix presently attached to the Trial Examiner's Decision. ' Respondent's request for oral argument is denied because the record, exceptions, and briefs adequately set forth the issues and the positions of the parties 164 NLRB No. 96 READING & BATES 813 IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found in the Trial Examiner's Decision. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT discourage membership in International Brotherhood of , Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, or any other labor organization of our employees, by unlawfully discharging them or otherwise discriminating in regard to their hire , tenure of employment, or any other terms or conditions of employment. WE WILL NOT interrogate our employees concerning their membership or activities on behalf of the above Union, or any other labor organization , or make threats of reprisal or promises of benefit because of such activity. WE WILL NOT grant wage increases to encourage employees to abandon or defeat the Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the above Union, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or any other mutual aid or protection. WE WILL offer Robert E. Evans, Floyd Langston , Claude Hebert , and Robert W. Moore immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges , and pay them for all back wages lost as a result of their unlawful discharges. All our employees are free to join or refrain from joining any labor organization, except to the extent that such right may be affected by an agreeement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. READING& BATES, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4532. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE ALEXANDRE, Trial Examiner: This matter was heard before me at Anchorage, Alaska, from August 15 through 19, 1966, upon the consolidated complaint of the General Counsel, issued on June 20, 1966,1 and amended at the hearing,2 alleging that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer as amended at the hearing, Respondent denied the commission of any unfair labor practices. The issues presented are: 1. Whether or not the Respondent, through certain named supervisors,3 violated Section 8(a)(1) by unlawfully I Based upon charges filed on March 15, 1966, by Patrick La Riviere, on March 18, 1966, by Alaska Petroleum Crafts Council, and on March 28, 1966, by International Union of Petroleum Workers, affiliated with Seafarers International Union of North America, AFL-CIO During the hearing, Respondent twice moved to strike the charges of March 18 and 25, 1966, and to dismiss the complaint insofar as it was based on such charges, on the ground that such charges were not filed in good faith, inasmuch as the dischargees named therein had not been consulted by the Charging Parties and did not know that the charges were filed, and because the charges contained statements which would allegedly be established as false in a collateral proceeding. In the course of oral argument presented by Respondent in support of its motion, which I denied, statements were made which prompted me to admonish counsel to refrain from any attack upon each other's integrity Thereafter, Respondent sought and obtained leave to withdraw not only its motion to strike the charges , but also all argument and observations made in connection therewith , conceding, inter alta, that the admonition to counsel had been appropriate In its brief, Respondent again refers to irregularities and misconduct in connection with the charges , and requests that the proceeding be remanded for further investigation thereof The request is denied It is hornbook law that a charge does not constitute either a pleading or evidence , that it is merely a jurisdictional prerequisite to the issuance of a complaint , and that it may be filed by anyone with or without the permission and knowledge of those named therein Moreover, the motion to strike the charges having been voluntarily withdrawn, it cannot now be revived , The formal appearance of Peter B Walton, Esq , for the council was entered at the commencement of the afternoon session on the third day of the hearing. 3 Donald R Stewart, Charles Coleman, William J. L'Hirondelle, Omega Walker, David Brown, and Dwain C Foster. Respondent's answer admits , the record establishes , and I find, that these individuals were supervisors 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogating and threatening to discharge employees, and by instituting a wage increase on or about January 26, 1966, in order to frustrate organization by its employees 4 2. Whether or not Respondent violated Section 8(a)(3) and (1) by discharging five-named employees. s Upon the entire record,", my observation of the witnesses, and consideration of the briefs filed by the General Counsel and the Respondent following an extension of time, I make the following: FINDINGS AND CONCLUSIONS7 1. THE UNFAIR LABOR PRACTICES A. Background In September 1965, preparatory to fulfilling its contract to drill offshore oil for Pan American Oil Company in Cook Inlet, situated near Anchorage, Alaska, the Respondent began assembling a permanent all-weather floating platform which it called platform B. Drilling for oil began about December 15, 1965. In the latter part of that month or the beginning of January 1966,8 Pan American hired six roustabouts to assist Respondent's employees on platform B. Such roustabouts, who were unionized, received higher wages than their counterparts on platform B; and upon learning of such higher wages, Respondent's roustabouts complained to their supervisor, Jessie Curl. Sometime during the first week or 10 days of January, Curl expressed the opinion to his supervisor, William J. L'Hirondelle," that Respondent's pay scale was out of line, and L'Hirondelle thereupon brought the matter to the attention of Donald R. Stewart, who was then superintendent in charge of Respondent's Alaska operations. On January 10, employees Claude Hebert and Patrick La Riviere decided to ascertain how many of the employees on platform B wished to unionize. Accordingly, Claude Hebert and La Riviere, along with employees Chester Quick and Jess Taylor, signed a blank sheet of paper (hereafter called the petition or the list) which was then circulated for the signatures of other employees on the platform. Stewart testified that he first learned about the petition when he overheard a conversation between employees Stuckey and Benson in January 1966, that he did not know what petition they were talking about, and that he then "started listening" to conversations of employees on the platform. Stewart admitted that as a result of the information which he received concerning Curl's complaint, he thought that the petition related to an attempt to obtain a wage increase; that he wanted the employees to be satisfied with their working conditions; and that he wished to know what complaints they had regarding wages. However, he gave contradictory testimony as to whether he discussed the petition with Supervisors Coleman, L'Hirondelle, Brown, and Walker, and as to whether he asked Coleman and L'Hirondelle what the petition was for. Coleman testified that Stewart informed him that it was his duty to find out what, if ' Respondent's answer admits the wage increase. 5 Robert E. Evans, Floyd Langston, Claude Hebert, Dan B Hebert, and Robert W Moore Respondent's answer alleges that the discharges were for cause. 6 The General Counsel's unopposed motion to correct the transcript is granted No issue of commerce is presented The complaint alleges and the answer admits facts which establish that Respondent is anything, the employees wished so that they could be satisfied, and that Coleman replied that he "would find out if there was any trouble amongst us." B. Interference, Restraint, and Coercion 1. Interrogation and threats (a) The General Counsel relies on the following testimony to establish unlawful interrogation and threats by Respondent' s supervisors. Employee Claude Hebert testified that on January 11, the day after he and Patrick La Riviere began circulation of the petition, Supervisor Coleman called him into his room on platform B, stated that he wished "to find out about this petition," asked who had started it, and specifically inquired whether "Pat" had started it. Initially, Hebert professed ignorance as to what petition Coleman referred to. He then admitted that he had signed it, but denied knowledge as to whether it was started by La Riviere. Employee Robert W. Moore testified as follows. A few days after the petition began circulating, Coleman stated that he had information that Moore had the petition in his possession and that if so, Coleman wanted it. Although Moore had the petition, he denied that fact because he wished to obtain additional signatures and to deliver it to the union office, and feared that Coleman would take it from him. On the following day, Coleman called him into his office and asked what he "thought about that union deal" and why he wanted a union, and Moore told him his "gripes." After telling Moore that he was a good worker, Coleman stated that he "would hate to see a man like you go"; and after informing him that the employees working on a platform operated in Alaska by Sante Fe Drilling Company were then voting for the union and that seven men had already been discharged, Coleman stated that "You can always find some excuse to run a man off." Employee Hilton Bell testified that in early January, Coleman asked him whether he had signed the petition; that upon receiving an affirmative answer, Coleman asked why and was told "Because everybody else did"; that about a week later, Coleman asked Bell to disclose who was circulating the petition and the latter replied that he did not know; that about the time of that conversation, Coleman again asked Bell whether he knew who was circulating the petition; and that upon receiving a negative reply, Coleman stated that "if he did, he would run him off. ""' Employee Milton Fikes testified that early in January, Coleman asked in a jocular manner whether he had heard about the "union deal," and that he replied: "Yes, I signed the list." Employee Darral Palmature testified that sometime in January, Coleman asked whether he "had heard about La Riviere's union list," received a negative reply, and stated: "I don't see what these boys want a union for ... I wouldn't want one. . . . It seems mighty communistic to me, telling me what I could do and what I couldn't do." Palmature further testified that about a week later, Coleman asked him whether he had signed "that an employer engaged in commerce within the meaning of the Act I find such facts to be as pleaded. " All dates hereinafter mentioned relate to 1966 unless otherwise indicated Also known as "Running Bear " Employee Bell testified that the term "run off" meant discharge READING & BATES 815 union list"; and that he replied affirmatively, stating that the men needed more money. Employee Raymond Six testified that about February, during a jocular conversation, Coleman asked what he knew about the petition. Employee Ronald Wild testified that in early March, Supervisor Foster told him that Coleman had asked Foster "to find out who these union people were" and had stated that "he was going to fire them"; that Foster asked Wild whether he knew who they were; and that at about that time, Supervisor L'Hirondelle asked him "who was working on organizing the union out there." Employee Palmature testified that on March 10, Supervisor Foster stated that he had to fire employee Floyd Langston, and asked whether Langston "wasn't fouled up in that union." I credit the foregoing uncontradicted testimony,'' and find that it establishes unlawful interrogation and threats by Respondent's supervisors. The widespread character of the attempts to ascertain who began, circulated, and signed the petition, and which employees were attempting to organize a union, necessarily had a coercive effect upon at least some of Respondent's employees. Moreover, the employees questioned were neither advised of the purpose of the interrogation nor reassured that there would be no reprisals against those who had circulated or signed the petition. On the contrary, Coleman's threats to fire those circulating the petition showed that the interrogation did not involve idle curiosity, had no valid purpose, and was deadly serious despite its jocular context on two occasions. Since the circulation and signing of the petition in order to ascertain how many employees were interested in unionizing constituted protected activity, the interrogation and threats regarding such activity interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. (b) The General Counsel also relies on the following testimony by La Riviere. About January 23, while Supervisor Brown was present, Coleman stated to La Riviere that "he would like to see the union list" and might want to sign it himself, but La Riviere professed ignorance of any list. About 5 or 10 minutes after Coleman and Brown left, the latter returned and, in the presence of employees Milton Fikes and Anthony Norris and using obscene language, angrily accused La Riviere of trying to get everyone fired and stated, "You are in trouble now." On the following day, when La Riviere told Coleman of his conversation with Brown, Coleman asked him how he was doing with his list. About 1 or 2 hours later, Brown apologized to La Riviere, stating that he was sorry about "last night," that he no longer knew what was right or wrong "about this union matter," that he "had seen this union thing happen one time before," and that "It makes everybody mad." In its brief, Respondent attacks La Riviere's credibility. Although La Riviere testified that he signed the petition about January 20, the record shows that it had disappeared about January 13, and since he was one of its originators and was active in circulating it for signatures, it is reasonable to believe that he must have known about when it disappeared. The record further shows that he deliberately injured himself to obtain workmen's compensation because he anticipated discharge'12 an act which bespeaks his unreliability. Accordingly, absent corroboration, I would not credit La Riviere's testimony. The record, however, contains corroboration. Neither Coleman nor Brown contradicted La Riviere's testimony regarding his conversations with them. Employee Norris corroborated Brown's obscene language, and employee Fikes corroborated the obscene language, threat, and subsequent apology. Employee Palmature testified that during one of his conversations with Coleman, referred to above, the latter stated that he had asked La Riviere, in the presence of Brown, to show him the petition, that La Riviere denied knowledge of the petition, and that Brown later became angry. Palmature further testified that Coleman informed him that Brown had called La Riviere an obscene name. Although a portion of Palmature's testimony consisted of hearsay, it was not objected to. And since Coleman did not contradict such testimony, I find that it has corroborative value. Accordingly, I credit La Riviere's testimony and find that he was unlawfully interrogated by Coleman and threatened by Brown. (c) The General Counsel also relies on the testimony of employee Dan Hebert that on January 26, Coleman asked him whether he had seen the petition that was being circulated by some employees who want things a little better, and that Coleman stated: "As long as we can get those boys up from Louisiana they will never organize. "13 According to Dan Hebert, he had just returned to platform B after 5 days' leave, and had not heard of the petition prior to Coleman's reference thereto. He further testified that he was told on January 26 or 27 by employee Claude Hebert that he and La Riviere had prepared a petition to see whether they could obtain sufficient support for a union on the platform, and that the petition was then out on the crane. In its brief, Respondent attacks Hebert's credibility. The record shows that the two Heberts were friends and perhaps relatives, and that they discussed union matters on several occasions. It thus seems improbable that Dan Hebert would have heard of the petition for the first time as late as January 26 or 27, and from Coleman rather than from Claude Hebert or another employee. Moreover, since Claude Hebert testified that the petition disappeared about January 13, it is implausible to believe that he told Dan Hebert on January 26 or 27 that the petition was then out at the crane. Accordingly, I do not credit Dan Hebert's testimony regarding his conversation with Coleman on January 26 or 27, and find that it fails to establish a violation of Section 8(a)(1) of the Act. 2. The wage increase It is undisputed that Respondent instituted a 10-percent wage increase for platform B employees on January 26, retroactive to January 23. The General Counsel contends that Respondent adopted the increase in an attempt to frustrate organization of a union on platform B. Respondent insists that its supervisors were unaware that the employees on platform B were seriously considering unionization , that the wage increase merely followed an annual pattern, that the increase was necessary in order for Respondent to remain competitive in a tight labor " Respondent's brief does not discuss any of such testimony except to rely upon Moore's denial to Coleman that he had any knowledge of the petition. 12 According to the uncontradicted testimony of employee Anthony Norris 13 Superintendent Stewart testified that Louisiana was about the only place where experienced personnel could be recruited for platform B, and that many of the employees on the platform had been obtained from that State 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD market , and that it had no relationship to union organization. I agree with the General Counsel. The record shows that Superintendent Stewart learned about the existence of the petition , began listening to employee conversations, and asked Coleman and L'Hirondelle to find out what the petition was for. Stewart admittedly believed that the petition had something to do with a wage increase, but he undoubtedly also suspected that it related to unionism as well . That was Supervisor Walker's admitted belief. Moreover, Coleman, L'Hirondelle, and Foster interrogated a number of employees regarding the "union petition" and union activity. After the disappearance of the petition, it was replaced by blank cards which were circulated for signature by the employees who desired to unionize. Although the employees sought to conceal the cards, Stewart admittedly learned of them from supervisors. Indeed as Stewart testified, in view of the close proximity in which all the personnel lived on the platform, there were not many secrets among them . 14 I find that Superintendent Stewart and other supervisors were aware, prior to the wage increase of January 26, that platform B employees were seriously considering unionization. Although Respondent had engaged in collective bargaining in the past and had hired known union adherents, 15 it does not necessarily follow that its supervisors would take no action to prevent the formation of a union on platform B. Superintendent Stewart admitted that he had been antagonistic toward unions in the past, felt that a union was not needed on platform B, and would have been very concerned if the platform were unionized because he feared union interference in his conduct of Respondent's affairs. Coleman admitted to somewhat similar views. Based on these admissions and the interrogation and threats already referred to, I find that Stewart was interested in preventing unionization of the employees on platform B. I further find that Stewart gave contradictory evidence regarding the circumstances relating to and the reasons 14 The platform measured approximately 110 by 125 feet, consisted of two stories, and contained two drilling rigs and other equipment, living quarters for the employees , a dining room, a galley, recreation room , radio room , a heliport, and other necessary facilities . By January 1966, the platform was fully manned with approximately 50 employees divided into six crews, i e., three crews for each of the two rigs. Under the practice followed, two crews operated the two rigs for a 12-hour shift for 10 days, two crews remained off duty but on board for a 12-hour shift for 10 days, and two crews were off duty on shore for 5 days As a result, there was a crew change every 5 days 11 I note in this connection that experienced employees were difficult to obtain and retain on platform B is Stewart's testimony was that soon after a general wage increase was instituted in the industry in California on January 1, he began to give consideration to recommending an increase for platform B employees , that he advised his superior in Respondent's Houston office, Thornton , regarding the California wage increase and recommended an increase for platform B employees, that when Coastal Drilling Co , a California company which competes with Respondent for labor, increased wages on January 17 , he notified Houston regarding the amount of the increase , and that on January 26 , he was authorized to grant a 10- percent increase 17 Contrary to the claim in Respondent's brief, I find that the record does not establish a pattern of wage increases in the month for the wage increase . On direct examination , he testified that he recommended the increase in order to keep pace with an industrywide wage raise in California on January 1.16 On cross-examination , he testified that he made no reference to competitors when he recommended the wage increase ; that because Respondent had granted a pay increase every year since its offshore operations had begun , he assumed that there would be an increase in January;" and that he suggested an increase of 15 cents an hour in order to keep pace with the spiraling cost of living.18 In view of such contradictions , both reasons advanced for the wage increase are suspect. 19 In addition, I do not credit Stewart's testimony that in his telephone conversation with Thornton, he did not refer to unions or to the dissatisfaction of platform B roustabouts over the fact that the union roustabouts temporarily assisting them received higher wages. As already found, Stewart had learned about such dissatisfaction and the petition , suspected that the petition related to unionization , and instructed Coleman to ascertain the employees' complaints so that they could be satisfied. It would have been most unusual for him to have failed to report this problem to Thornton. In this connection, I note that Stewart did not call Thornton until after Curl complained about the higher wages re- ceived by the union roustabouts. Finally, the relationship between the wage increase and the union petition is shown by the testimony of employee Norris. According to Norris, at the time Coleman announced the increase to the men, Coleman asked what they thought of the union now. Although Coleman denied that he stated anything other than the amount and retroactive date of the wage increase, I credit Norris' testimony. Coleman was a partisan and somewhat evasive witness. Norris, who was still employed by Respondent at the time of the hearing, gave testimony which was both favorable and unfavorable to the Respondent. In sum, I find that the wage increase was motivated by a desire to forestall organization of platform B and thus violated Section 8(a)(1) of the Act. of January During negotiations in 1963 between Respondent and Alaska Petroleum Crafts Council, one of the Charging Parties herein, the parties failed to agree to a contract proposing, inter alia, wage increases effective July 1, 1964 , and January 1, 1965 Superintendent Stewart testified that Respondent adhered to the pay scale provided in the proposal , but instituted the 1965 increase in the spring rather than in January , because it had no offshore operations in the latter month. 1" Stewart's testimony was that in view of his assumption that a wage increase would be made as in the past , the only questions to be decided were the effective date and amount , that during the first or second week in January , prior to the increase adopted by Coastal Drilling Co., he telephoned his Houston office and recommended a 15-cent -per-hour wage increase because it would take that amount to keep the employees on a par with their earnings the preceding year , that he made no reference to his competitors , and that on January 26, Thornton informed him that a 10-percent increase, which equaled 30 cents an hour, had been decided upon in order to remain competitive with other drilling contractors in the area who had raised wages. Stewart testified that Thornton did not refer to any specific competitor, but on further cross-examination stated that Thornton approved the wage increase because of the increase adopted by Coastal Drilling Co on January 17. 1" Responden .'s brief makes no claim that the spiraling cost of living played any part in the wage mci ase READING & BATES 817 C. The Five Discharges 1. Robert E. Evans a. The evidence Evans had worked for the Respondent in 1960 and 1964. During his employment in the latter year, he was a member of a Teamsters local, and Superintendent Stewart knew that he was a union member. About November 1, 1965, Supervisor L'Hirondelle offered Evans a job as a mudman20 because he needed someone who knew what he was doing. Evans accepted the job, and Supervisors Coleman and Walker both felt that he did good work. He was discharged by Walker on February 15. Evans signed the petition in January in the hallway just outside the washroom, which was a meeting place for the employees on platform B. After the petition disappeared, he was active in seeking signatures on blank cards to determine how many employees on the platform were interested in unionizing; but as far as he was aware, no supervisors knew of the cards. In addition, he openly wore union buttons on his cap while on the platform; and in February, in response to an inquiry by Supervisor Coleman, he explained that the buttons were Teamsters dues buttons. Supervisor Walker testified, although somewhat equivocally, that he did not know that Evans was a union member. In January or February, Coleman found a blank Teamsters bargaining card on his desk, asked L'Hirondelle whether he had ever seen it before, and received a negative reply. Coleman testified that he did not believe that he talked to Superintendent Stewart or to any of the other supervisors about the card. Stewart testified that Coleman told him about the card; that later the same day, L'Hirondelle also told him about it; but that he never talked to Walker about bargaining cards. Walker gave evasive and contradictory testimony as to whether or not the petition and a bargaining card or cards were mentioned or discussed in any of his conversations with Stewart and Coleman; but admitted that he believed that the petition and/or cards related to a union, and that he preferred not to have a union on platform B. In the early morning on February 15, Evans was awakened by Supervisor Walker, who handed him a termination slip without comment. Evans testified that his work had never been criticized and that he had not been warned of possible discharge; that following his discharge, he could not locate Walker on the platform and asked Supervisor Brown why he had been discharged, but the latter was not aware of the discharge; that 3 days later, he asked Office Manager Bryson why he had been fired and blackballed in the oil field, and Bryson stated that he did not know; and that he later asked Coleman why he had been fired but Coleman did not answer the question. Walker testified on direct examination that he was told that Evans spent considerable time standing around drinking coffee; that in February, he told Evans that he would have to show more interest in his job; that about 10 p.m. on February 14, he found Evans sitting on the mud pump drinking coffee instead of mixing mud; that he then and there decided to fire Evans; and that he gave him a termination slip the following morning. On cross- examination, Walker testified he awoke Evans at 5 a.m. that morning to give him the termination slip so that he would have time to catch the 8 a.m. helicopter. Walker further testified on cross-examination that it is dangerous to operate the platform when it is shorthanded; that employees are asked to "double up," i.e., work beyond their normal shift, only in an emergency and for a short time; that he could not recall whether the platform was shorthanded at the time he fired Evans; that employees were hard to get; that it was not customary to fire an employee at a time when the platform was shorthanded if it was not known whether or not replacements were immediately available; that it was not practical to fire an employee without assurance that a replacement was immediately available, because it was more practical to retain an employee who might be a little slow in performing his duties than to be without anyone to do the work; that he could not recall whether there was an extra man on the platform at the time he fired Evans or whether he had a replacement for him that day or the following week; that when he fired Evans he had another man in mind who could take his job; that he put that man in Evans' job but could not recall his name; that the man was not "a mud man"; that it is possible that he did some doubling up when he replaced Evans the day after his discharge; and that he later obtained a replacement for the man who was put in Evans' job. On redirect examination, Walker testified that Respondent tries not to tolerate keeping an employee on the platform if he is not performing his work or is away from his work station; that it tries to correct that situation as soon as possible by relieving the employee or firing him and getting someone to replace him; that some off-duty employees were ordinarily available for emergency overtime work and could usually be reached; and that he did not believe that Respondent had ever been unable to obtain an off-duty replacement for an employee who had been relieved or fired. Superintendent Stewart testified that there is normally a scarcity of good personnel; that in the wintertime, he had even greater difficulty in maintaining full crews because some men do not enjoy the shipboard-like conditions on platform B; that the platform was shorthanded and six roustabouts were sent by Pan American to assist Respondent's employees in January; that some of the roustabouts were still on the platform at the time of the hearing in August; that Stewart had been told of Evans' union membership by L'Hirondelle; and that he was sure that Evans was replaced because each crew has a required number of men. b. Analysis and conclusions I agree with the General Counsel's contention that the discharge of Evans was motivated by antiunion considerations. I do not credit Walker's testimony that he did not know that Evans was a union member. Superintendent Stewart knew it. Supervisor Coleman knew that he was a member of the Teamsters. Stewart discussed the petition and cards with at least some of the supervisors, and the latter interrogated and threatened a number of employees regarding union activities. In addition, Stewart and Walker both gave evasive and 20 The job involved caring for he mud pits and mixing chemicals and muds for the drilling op-ration. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conflicting testimony as to whether they had discussed the petition and cards. In my opinion, it would be naive to believe that Walker was not apprised of Evans' Teamsters affiliation and of the Teamsters card which Coleman found on his desk. Indeed, Respondent's brief states that "Evans was very active on behalf of the Teamsters, [and] known to be so." I find that Walker knew of such affiliation. Respondent argues that Evans' known union membership had never prejudiced his employment with Respondent, and hence that there is no basis for concluding that his discharge was motivated by his union activity. I disagree. Although Superintendent Stewart employed union members on platform B,21 it does not follow that he would not and did not oppose organization of the platform employees. It is one thing to tolerate union memberships by some employees; it is quite another to permit union organization by a majority of the employees. Stewart was admittedly antagonistic to unions and had openly displayed his hostility, and there is no reason to suppose that he concealed his views from the supervisors on platform B. Nor is there any reason to believe that Walker's similar antiunion attitude was not influenced by the views of his superior. In these circumstances, and considering the interrogation and threats already found, it is not unreasonable to believe that Walker concluded that the Teamsters were seeking to organize the employees on platform B and that it was desirable to eliminate an active Teamsters member by discharging Evans. The circumstances surrounding Evans' discharge tend to support that interpretation of Walker's conduct. From Walker's testimony regarding his admonition to Evans regarding his coffee drinking, it does not seem that he was especially exercised about the situation. Certainly, he did not warn Evans that he would or even might be discharged therefor. Moreover, despite Respondent's explanation, it seems odd that Walker should find it necessary to awaken Evans at 5 a.m. to discharge him. Respondent has suggested no urgent reason for getting Evans off the platform on the 8 a.m. helicopter. Walker's precipitate action is particularly strange in view of the fact that an experienced mudman was not immediately available on the platform to replace Evans, that the need to replace Evans may have compounded an existing shortage of employees on the platform, and that it was admittedly preferable to retain an unsatisfactory employee until a replacement was obtained because of the danger inherent in being shorthanded. In contrast, although there had been even greater provocation for firing Employee Claude Hebert the preceding January, Supervisor Brown testified that Hebert was not discharged because there was no immediate replacement (see discussion below). In sum, I find that Walker's concern regarding Evans' coffee drinking constituted a pretext , that Evans was discharged because of his activities in connection with the attempt to organize the employees on platform B, and that his discharge violated Section 8 (a)(3) and (1) of the Act. 2. Floyd Langston a. The evidence Langston had worked for Respondent in 1963 and 1964. He was recruited again in the early part of 1965 in Louisiana, and Respondent paid his fare to Alaska. Shortly before Christmas of that year, he reported for duty on platform B where he worked as a mudman. Supervisors Coleman and Foster were both of the opinion that Langston was a good worker. He was discharged by Foster on March 10. Langston testified that he could not recall whether he signed the petition; but that he signed a blank card in January, later went to the Teamsters hall to obtain bargaining cards, received signed Teamsters cards from other employees on platform B, obtained the signature of two employees on the day before his discharge, signed a Teamsters card on the day of his discharge, and took the cards to the Teamsters hall on an unspecified date. He further testified that no supervisor saw the signed cards in his possession or knew that he had received signed cards from other employees. Prior to March 6, Langston had never been told that his work was unsatisfactory. He testified that beginning about that date, he had the flu and the quality of his work decreased; that on March 10, Supervisor Foster, his immediate superior, informed him that he was discharged pursuant to orders from Coleman, who had stated that he was not keeping up his work; that Foster indicated that he had talked to Coleman for about an hour about the matter; and that Foster then asked whether Langston had had "anything to do with this union." Foster testified as follows. About March 8, his immediate superior, Coleman, instructed him to talk to Langston because he was not paying attention to and keeping up with his work.22 So far as Foster knew, Langston had always kept up; but when asked by Foster, Langston admitted that he had been a little slack in his work. Foster admonished Langston to improve and the latter agreed to try. It was evident that most of the employees on the platform did not feel well at the time;23 "everybody got lax on their job"; and although Langston did not state that he was sick, it is very possible that he was. Langston's performance thereafter improved. On March 10, Coleman instructed Foster to discharge 21 I have already noted his difficulties in obtaining and keeping employees on the platform. 22 Foster, who was called as a witness by the General Counsel, furnished the foregoing testimony on direct examination On cross-examination, he gave the following conflicting testimony as to what Coleman had instructed him to tell Langston Q When Mr Coleman discussed with you this situation of Mr. Langston didn't he lust say to you, "I think you better be taking a closer look at Floyd, he isn't picking them up and laying them down fast enough and keeping his attention to his work" A That is more or less what he said, yes, sir Q And did he say to you that you ought to fire him or anything like that, what did he say to you to do? A tletoldmetotalktohim Q So, then, two or three days later Mr Coleman reported to you that he had observed Floyd not performing his work properly , being away from his work, and asked you to indicate to him that if he didn 't want to stay and keep up with the work that he would have to let him go, didn't he? A Yes. 21 On March 11, during an influenza epidemic , Respondent arranged for a physician to examine and treat a number of employees on platform B When asked on cross-examination whether there was much sickness on platform B at that time, Coleman replied , "There could have been " READING & BATES 819 Langston. Coleman agreed at the time that it appeared that Langston had improved. Foster, who did not expect that Langston would be fired, tried to persuade Coleman not to discharge him24 and asked Coleman: "Well, if he is keeping up why don't we try to keep him?" Coleman replied that it seemed that Langston no longer took an interest in his work, and that if he was going to "pull slack on his work," there was no room for him on the platform. Foster thereupon carried out Coleman's instruction to discharge Langston. Coleman testified as follows: The quality of Langston's work began to fall off about 3 or 4 days before he was discharged. On March 7, he found Langston away from his duty station and pointed out work which needed to be done. About that time, he told Foster that the mudroom was not being properly attended to and that things had to change. Foster agreed. Later, in response to an inquiry from Foster as to whether Langston had improved, Coleman replied that Langston "did perform exact duties . . . and nothing more." When asked at the hearing whether there was anything wrong with that, Coleman testified that Langston "still wasn't watching the mud," that he knew that because he continued to find Langston away from his duty station, and this occurred at least six times on March 10. Accordingly, he instructed Foster to discharge Langston on that date. The next morning, while waiting for the helicopter, Langston admitted to Coleman that he had not kept up his work. Coleman testified that he would rehire Langston if he applied for work, but he never asked for reemployment. b. Analysis and conclusions There is no doubt that the quality of Langston's work deteriorated prior to his discharge. Nevertheless, he had been a valued employee of the Respondent prior to that time, and the deterioration began only several days before the discharge. In such circumstances, the discharge seems rather sudden. Moreover, there is considerable doubt as to the extent to which he fell down in his work. Foster, his immediate superior, was not disturbed by Langston's performance and failed to confirm Coleman's testimony that he agreed that the mudroom was not being properly cared for. Also, Foster was aware that lax performance was common on the platform owing to the influenza epidemic at that time.25 In any event, after Foster talked to Langston pursuant to Coleman's instructions, 26 his work improved and Foster did not expect that Langston would be discharged. And although Coleman apparently agreed that this was so when Foster tried to persuade him to retain Langston, he nevertheless refused to change his mind. Such refusal is especially strange, since the record shows that experienced personnel was difficult to obtain and that a shortage of employees on the platform created a dangerous situation. In addition to the foregoing considerations, the record contains evidence which links the discharge to Langston's organizational activities. Thus, although Langston believed that his possession of signed Teamsters cards was unknown to any supervisor, the fact remains that after receiving instructions from Coleman to discharge Langston, Foster asked employee Palmature whether Langston was involved with the Union, and I credit Langston's uncontradicted testimony that he was asked the same question by Foster at the time of his discharge. For these reasons, and considering the independent violations of Section 8(a)(1) already found, I find that Coleman either knew or suspected that Langston was involved in union activity, and instructed Foster to discharge him because of such activity. Accordingly, the discharge violated Section 8(a)(3) and (1) of the Act. 3. Claude Hebert a. The evidence Claude Hebert had worked for the Respondent in 1959 and 1961. He was hired again in Louisiana by the Respondent, which paid his transportation expenses to Alaska, and he reported for duty in September 1965 on platform B, where he operated a crane. He was discharged by Supervisor Coleman on March 11. As already noted, Hebert along with employee La Riviere began the petition on January 10, was interrogated about it the next day by Coleman, admitted that he had signed it, thereafter obtained signatures on the petition during January, but testified that the petition never passed through his hands in the presence of a supervisor. During February, he arranged for Teamsters bargaining cards to be sent to him on platform B, distributed cards to several employees on the platform, signed a card on February 20, and returned signed cards to the Teamsters Union. According to employee Wild, Hebert and employee Moore were often mentioned as the main union sympathizers on platform B. During the first week of January, while operating a crane, Hebert negligently permitted a 3,000 pound armature to fall 6 feet. As a result, the armature shaft was bent, it took 3 weeks to have it repaired, and Supervisor Brown reprimanded Hebert. Brown testified that he reported the incident to Superintendent Stewart, told Supervisor Coleman that he thought Hebert should be replaced, but that he did not discharge Hebert at that time because he "didn't have anybody to replace him at the moment." Walker testified that in January or February, Hebert refused to unload a boat with his crane because of rough weather, but finally agreed, and proceeded to unload it without difficulty. Walker further testified that in January or February, he requested Hebert to be less reckless in handling equipment because he was endangering other employees, and to shout less when giving instructions to those under him. Hebert admitted that he had been cautioned once about going to the locker room to meet employee Mouser, instead of following the usual practice of waiting for a relieving employee to arrive. Coleman testified that about a month prior to Hebert's discharge, he informed Hebert that Supervisors Knott, Walker, and Brown, as well as other employees, had complained about him; that Knott, 24 During the conversation of March 10 in which, as found above, Foster told employee Palmature of his instructions to fire Langston and in which he asked Palmature whether Langston was "fouled up in that union," Foster also stated that he thought that Langston had been doing a pretty good job and that he was going back to try to persuade Coleman to reconsider the discharge. 25 Coleman's testimony was less than candid when he was questioned regarding illness on platform B. 26 1 accord little probative weight to Foster's response to the leading question propounded on cross-examination, and find that Coleman did not instruct Foster to warn Langston of possible discharge. 298 -668 0-69- 53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who was Hebert's immediate supervisor, wanted to fire him because nobody could work around him; that Coleman, who knew that Hebert's wife was sick and that he had financial difficulties, offered to give him one more chance before discharging him; and that Hebert agreed to improve. Thereafter, his work improved but then fell off again. Hebert testified that that was the last time he received any complaint prior to his discharge. About 8:30 a.m. on March 11, Hebert was in the electrician's shack on platform B, discussing union matters with Dan Hebert, when Coleman entered the shack momentarily and left. An hour later, Coleman discharged him. Employee Moore testified that on that date, Coleman walked past him, pointed to the shack, and said, "Your buddies are in there"; that he went to Coleman's office and asked what he meant by that remark; and that Coleman replied, "nothing, it was just a beef." Coleman testified that he did not know whether Dan Hebert was in the shack with Claude Hebert at the time, and that he did not remember seeing or talking to Moore after leaving the shack. He further testified that Claude Hebert did less than 5 minutes' work between 7 and about 9:30 a.m. on March 11; that although Hebert could not have had any work to do in the shack, he was there for about an hour on that date; that finding Claude Hebert in the shack was the "immediate thing" that caused his decision to discharge him; and that shortly thereafter, he informed Hebert that he no longer needed his services on the platform. Coleman further testified that he "was short a crane operator because [he] terminated Claude Hebert." There is conflicting testimony as to whether employee Moore was assigned to operate the crane on the night of March 11 and was replaced by employee Hill the next day, or whether he was assigned to help Hill with the crane that night. It is undisputed, however, that Coleman instructed Moore, who had worked from 6 a.m. to 6 p.m. on that day, to resume work at midnight, and that the latter worked until noon the following day. Claude Hebert testified that while on the plane to Anchorage following his discharge, he told Supervisor Brown that he knew he had been discharged because he had union cards; and that Brown replied that "he didn't know why Charlie27 was fighting the union so hard." Employee Palmature testified that on March 10 or 11, while sitting in front of Claude Hebert and Brown on the plane to Anchorage, he heard the two men "talking about Claude and a couple more of the boys getting run off," and that Brown stated "that he wasn't going to fight the union like Charlie was, he was going to try to get along with the men." Claude Hebert testified that about 5 days after his discharge, Supervisor Knott told him that he had asked "Charlie" whether the latter "did the right thing," and that Charlie replied, "Yes, I got the right man. I am fixing to get another one." Hebert further testified that about 3 weeks after his discharge, he went to see Superintendent Stewart, whom he had known for a long time ; that he talked to Stewart about obtaining transportation back to Louisiana and they did not discuss his own discharge; but that Stewart stated that the employees were causing him considerable trouble; and that Hebert's reply was that Stewart had caused considerable trouble by having the employees fired. b. Analysis and conclusions It is obvious that Respondent had ample provocation to discharge Hebert for cause. The question is whether he was in fact discharged for cause or because of protected activity. I find that such activity was the reason for his discharge. It is understandable that Respondent would not carry out its alleged desire to discharge Hebert in early January, when he operated the crane negligently, because there was no immediate replacement for him. However, Respondent had ample time to find a replacement between that time and March 11, during which period it continued to be dissatisfied with Hebert's performance. Nevertheless, Respondent merely continued to warn him. This indicates that the dissatisfaction was only mild. When he was finally discharged, a replacement had not yet been obtained, the discharge admittedly left the platform shorthanded, and Respondent found it necessary to direct employee Moore to return to work at midnight on March 11, even though he had already worked from 6 a.m. to 6 p.m. that day. The admitted danger inherent in being shorthanded was thus compounded by Moore's two 12- hour shifts separated by little time to sleep, as well as by the illness prevalent on the platform at that time. These considerations suggest that it was not until Claude Hebert was found discussing union matters in the electrician's shack that his performance became intolerable to the Respondent; and this view receives support from Coleman's remark to Moore that his "buddies" were in the shack.28 In addition, employee Palmature corroborated Claude Hebert's testimony that during a discussion of the discharge on the flight to Anchorage the following day, Supervisor Brown admitted to Hebert that Coleman was actively fighting unionism on the platform. In addition, according to Hebert, several days after his discharge, Supervisor Knott told him that Coleman had stated that he had the "right man." Brown did not contradict the testimony of Hebert and Palmature, which I credit. I also credit Hebert's testimony regarding Knott's conversation with Coleman. Although that testimony was hearsay, no objection thereto was raised at the hearing, Coleman did not contradict the testimony, and Respondent did not call Knott as a witness I find that Coleman overheard Claude Hebert's conversation in the electrician's shack regarding the Union and concluded, correctly, that Hebert was active in promoting unionism on the platform; that Coleman discharged Hebert because of his activity on behalf of unionism ; and that Hebert's shortcomings as an employee are merely an afterthought advanced by Respondent to conceal its real motive. Respondent argues that Hebert's failure to discuss the discharge with Superintendent Stewart, whom he had known for many years, shows that his participation in union activities had nothing to do with his discharge and that even Hebert did not believe it did. I disagree. It is apparent from his discussion with Brown following his discharge that Hebert believed he was fired for union activities. Moreover, it is clear that Hebert held Stewart responsible for the discharge. Since Stewart had not countermanded the discharge by the time of their conversation 3 weeks later, and in view of Stewart's 27 Presumably Coleman convincing and I do not credit it I credit Moore's testimony that t" Coleman's testimony that he did not know whether Dan Coleman saw Moore and made the reference to his "buddies" Hebert was in the shack , and that he did not remember seeing or which Moore did not understand , since such testimony dovetails talking to employee Moore after leaving the shack, is not with admitted facts. READING & BATES 821 statement that the employees were causing him considerable trouble, there was no reason for Hebert to believe that a discussion of his discharge with Stewart would be fruitful. Accordingly, I find that the discharge of Claude Hebert violated Section 8(a)(3) and (1) of the Act. 4. Robert W. "Buddy" Moore a. The evidence Moore was hired to work on platform B as a helper in September 1965, worked briefly as a crane operator, returned to his job, and was then transferred to welding. He was discharged by Coleman on March 13. On January 10, Moore failed to report for work because he was drunk. On the following day, when he returned to the platform, Coleman put him back to work with a warning not to repeat the offense.29 Thereafter, Moore signed and helped circulate the petition; and as already found, when questioned by Coleman shortly after the petition began to circulate, although denying that he had the petition, he in effect admitted his desire for a union, was told that he was a good worker, and was impliedly threatened with discharge for union activity by Coleman, who stated that an excuse therefor can always be found. Moore later signed a Teamsters bargaining card, but did so in the privacy of his room, gave the card to employee Claude Hebert, and never saw it again. Employee Wild testified that along with Claude Hebert, Moore was often mentioned as one of the main union sympathizers on platform B. It is undisputed that sometime on March 13, Moore went to sleep during work time; that while making his rounds on the platform, Supervisor L'Hirondelle discovered that fact; and that he thereupon reported his observations to Coleman. The time of day is in dispute. Moore testified that he went to bed about 3 o'clock in the evening. L'Hirondelle testified that he found Moore asleep in the "morning." Coleman testified that L'Hirondelle made his report about 9 a.m., and that Moore later admitted that he had stopped working at 2 a.m., about 2 hours after he went on duty. Shortly after his report to Coleman, L'Hirondelle returned to Moore's room and informed Moore that Coleman had stated that this would be a good time for him to go home. Moore had earlier requested leave to visit his home and was under the impression that L'Hirondelle's statement signified approval of his request. He accordingly sought out Coleman and asked when he should return. On direct examination, Moore was asked four times regarding the ensuing conversation. The substance of his testimony was that Coleman told him that he was discharged because he failed to work at a time when the platform was shorthanded; that he informed Coleman that no one had told him to do so at the time; and that Coleman did not reply. On cross-examination, he testified that he also informed Coleman that he had the flu. Coleman testified that Moore told him that he could not find anything to do and went to bed, and that he discharged Moore for that reason. Moore left the platform shortly thereafter. He testified that on the following day, March 14, while travelling with Coleman on the plane to Anchorage, he asked the latter to tell him the real reason for his discharge; that Coleman stated that he could not tell him; but that Coleman replied affirmatively when Moore asked whether he would hire him on some other job. Employee Norris testified that while sitting behind the two men at the airport on that day, he overheard Moore's inquiry for the reason he was fired, and that he understood Coleman's answer to be, "if we were down south, I could tell you more." Coleman's testimony regarding that conversation was that Moore asked whether he could go back to work, that Coleman replied that some day he probably would put him back to work, that Moore asked Coleman to help him obtain a job on the Gulf Coast, and that Coleman agreed to help him. b. Analysis and conclusions It is unnecessary to resolve the conflict as to whether Moore went to sleep at 2 a.m. or at 3 p.m. on March 13 since it is clear, and I find, that the incident took place during Moore's working time.30 Contrary to the contentions of the General Counsel, I further find that Moore was not ill at the time of the incident," and that Moore was given a reason at the time Coleman discharged him, namely, sleeping on the fob 32 Such conduct was considered to be a serious matter by Respondent, and the record shows that L'Hirondelle's brother had been discharged for similar conduct. Moreover, Moore had been warned on January 11 about his failure to report for duty on the preceding day. It thus appears that Respondent had ample cause to discharge Moore. On the other hand, contrary to Respondent's contention, I find that Respondent's knowledge of Moore's union sympathy and activities is supported by Coleman's interrogation of Moore, the latter's admission that he favored a union, and his reputation as a leading union proponent on the platform. In addition, Coleman impliedly threatened to discharge him for union activity, stating that an excuse can always be found, and later made an oblique reference to the presence of his "buddies" in the electrician's shack. If the record contained nothing more, I would conclude that the General Counsel has not sustained his burden of proof. and that Coleman discharged Moore for sleeping on 29 Moore had been on his regular 5-day leave Coleman testified that 90 percent of the employees who quit fail to report for duty after their leave, that sometimes an employee who had failed to report for duty for the first time would be permitted to go back to work if he returned prior to the arrival of his replacement, that Coleman assumed that Moore had quit; and that he had called for a replacement 30 According to Moore, his shift on March 13 was from 6 a in to 6 p in According to Coleman, Moore was scheduled to work from midnight to noon on March 13 Under either version, Moore went to sleep during worktime, and no contrary contention has been made 31 Moore did not testify on direct examination that he told Coleman that he went to sleep because of illness, and referred to illness for the first time on cross- examination In addition, Moore appears to have had a penchant for loafing on the job, and admitted that at midnight on March 12, after being told by employee Hill that he was taking over Moore's temporary operation of the crane pursuant to Coleman's instruction, he went to bed because he did not know of anything else he could do except to return to welding the following morning Moore also admitted that the platform was shorthanded, that each employee was required to do all he could to help keep the operations going, that he was capable of performing a number of different tasks, that it was not necessary for him to be given orders from hour to hour as to what to do, and that he normally went on to other work whenever he completed a task 32 There is, however, nothing to show that any supervisor knew that Moore had gone to sleep during working hours on March 12 as well as on March 13 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the job. I am, however, unable to reach that conclusion in view of the testimony, which I credit, that Coleman refused to reveal his true reason for the discharge during his conversation with Moore at the airport on March 14.'3 Such refusal was a most peculiar response from one who claimed to have discharged an employee for sleeping on the job and who specified that reason at the time of the discharge. Had Coleman in fact discharged Moore for that reason, it is strange that he should have refused to repeat the reason. Absent some reasonable explanation for his refusal, I conclude that he implemented his threat to Moore and had found "some excuse to run a man off." Accordingly, I find that Moore's misconduct was merely a pretext, and that Coleman discharged him because of his union sympathy and activity, thereby violating Section 8(a)(3) and (1) of the Act. 5. Dan B. Hebert a. The evidence Dan Hebert was employed by the Respondent as an electrician in Louisiana from July 1962 to May 1965, when he was transferred to Alaska. He then worked for several months under the supervision of L'Hirondelle on the Venmac, a tender utilized by the Respondent in connection with an offshore drilling barge. About September 1965, he was transferred to platform B where he worked under Coleman's supervision, then returned to the Venmac for a time, and finally worked again on platform B until March 13, when he was discharged by Coleman. Hebert testified that during the period from January 27 until he was discharged, he discussed the union with, and expressed a prounion attitude to, a number of employees, largely in the living quarters on the platform. In early March, he told Supervisor Foster that the employees wished to be unionized and asked for Foster's views. Hebert further testified that he signed a Teamsters bargaining card on March 10,34 and confirmed Claude Hebert's testimony regarding the occasion on March 11 when Coleman entered the electrician's shack while the two Heberts were discussing union matters. L'Hirondelle testified that he and Hebert frequently disagreed about the number of hours worked which the latter recorded on the drilling reports reviewed by L'Hirondelle;3' that he told Hebert he was "padding his time"; that Hebert sometimes corrected the figures but at other times L'Hirondelle made the correction with Hebert's consent; that when he transferred Hebert to platform B in September 1965, he advised the platform supervisors to watch Hebert for possible padding of time; and that he did not think there was any need to discharge Hebert since the latter had corrected the time reports in his presence. Coleman testified that he was advised of Hebert's padding of overtime; that in September or October 1965, in reply to an inquiry by Coleman, Hebert admitted that he had not worked the 8 hours which he had recorded for a particular day; and that Hebert stated that John Bush, Respondent's overall electrical supervisor, had told him that whenever he worked along with contract electricians furnished to Respondent by an electrical company, he "could just as well be drawing as much money as they are."36 According to Coleman, he told Hebert that Bush was not running the payroll, that Coleman would make the decisions, and that he wanted only the number of hours actually worked to be recorded.37 Hebert testified that he and Coleman never discussed the arrangement he had with Bush. Supervisor Brown testified that on an unspecified day in February, Hebert worked from noon to 6 p.m. but recorded 12 hours of work in the drilling report; that Brown so informed Supervisor Walker; and that he later saw that the 12 hours had been changed to 6 hours in the report. Hebert testified that Walker asked him whether he was reporting time not spent on the platform ; that he could not approve a report of time worked while Hebert was not officially on duty; but that Walker did not warn him of possible discharge. Hebert further testified that on the occasions when his overtime reports were corrected, he did not object. Superintendent Stewart testified that on one occasion, he noted a greater amount of overtime on Hebert 's report for the first pay period in February than that which appeared on the report of an electrician who had worked on the same job with Hebert, and that he asked Coleman to investigate . Coleman testified that he discussed overtime with Hebert in February. Hebert testified that when Coleman complained about excessive overtime, he replied that he was not working any time not required of him, and that Coleman made no reply. Coleman testified without contradiction that on March 10, Hebert arrived on the platform about 1:30 p.m. and could not have worked more than 5 hours, since he stopped at 6 p.m.; that the next morning, he noticed that Hebert had recorded 12 hours in the drilling report; that when he called the matter to his attention , Hebert agreed to change the figure but did not keep his promise ; and that he was paid for 12 hours. Coleman further testified that during the same conversation , he instructed Hebert to hook up certain indicator lights without stopping until the work was completed; that Hebert could have worked 14 hours on that job but recorded 18 hours; and that on the following day, March 12, he talked to Hebert about the matter, referred to the fact that Hebert had argued with him regarding the overtime on March 10, and stated that he was not going to argue about the subject any more. II Moore's testimony regarding such refusal was corroborated by employee Norris Coleman did not expressly contradict either Moore or Norris Assuming that his testimony may be regarded as tacitly contradicting them, as between Coleman and Norris, I give greater credence to the latter's testimony for reasons already stated above 14 Superintendent Stewart testified that during a conversation with Hebert about March 25, the latter stated that he signed the card after his discharge, i e., after March 13 as On both the Venmac and platform B, it was the practice for each electrician to record his own working hours w Hebert's version of the arrangement was different from the one described by Coleman Hebert testified that it was necessary for him, on his days off, to spend considerable time at an electrical warehouse in Anchorage obtaining electrical parts which were missing from the materials sent to platform B by Respondent from Houston , that because Bush was aware of no company provision for reimbursing employees who worked on their own time, he told Hebert to add the time he worked while on leave to the number of hours worked on platform B, and to report the sum of the figures as the number of hours worked on the platform, and that Hebert followed that practice in recording his time 3' Superintendent Stewart testified that Bush had no authority to alter the company pay scale, and that Bush had never talked to him about the method of compensation of electricians on platform B or about the compensation of any platform employee while he was off duty READING & BATES 823 Later that day, Coleman communicated with employee Renfrow, an electrician who was then off duty, and told him to return to the platform. On the next day, March 13, Coleman instructed Renfrow to go to work. According to Hebert, Renfrow informed him that Coleman was going to fire him, Hebert then sought out Coleman to ask for an explanation, and Coleman told him that his "traces hadn't been tight enough"38 and questioned him about his overtime reports. Hebert testified that he replied that all time which he reported had been worked and that it was usual to warn a man and give him a chance to tighten his traces; but that Coleman stated that he did not wish to argue about the matter, and discharged him. Coleman's version of the conversation was that when Hebert asked why Renfrow had returned, he replied that he was tired of reports claiming time not worked on the platform, that Hebert's traces had not been tight, that he was either daring Coleman to fire him or merely seeing how much money he could make by padding the payroll, and that Renfrow would take his place. Hebert further testified that on March 24 or 25, Superintendent Stewart asked him whether he would drop the charges filed with the Board if he was restored to his job. Stewart testified that he merely asked Hebert what he knew about the charges. b. Analysis and conclusions I agree with the Respondent's contention that Dan Hebert was discharged for padding his overtime. His implausible testimony concerning his conversations about the petition on January 26 or 27, discussed above, shows that he knew nothing about the petition until after it had disappeared. His subsequent organizational activities on the platform consisted largely of expressing prounion views. And there is nothing in the record which even suggests an unlawful motive for his discharge other than the incident involving the electrician's shack. Standing alone, that incident is insufficient to establish that his discharge was discriminatory. On the other hand, it is undisputed that Hebert's overtime reports had been corrected with his approval on a number of occasions so as to reduce the number of working hours for which he received payment. It is true that Respondent had tolerated overstatements of overtime by Hebert for many months despite the fact that Bush had no authority to approve payment for work while an employee was off duty, and despite instructions that Hebert report only authorized overtime. It is also true that Coleman's tolerance did not become exhausted until shortly after the incident at the electrician's shack. However, the circumstances immediately preceding Hebert's discharge are wholly consistent with the view that Coleman eventually concluded that he could no longer overlook Hebert's continued disregard of his instructions regarding overtime. Thus, on March 10, Hebert again inflated his overtime, Coleman ordered him to correct the figure, he agreed, but he failed to do so and was overpaid. Two days later, Hebert again overstated his overtime and Coleman finally, and understandably, lost his patience and decided to discharge Hebert. It may well be that Coleman suspected that Dan Hebert was assisting Claude Hebert in organizing the employees and was delighted to rid the platform of another union adherent. But I am persuaded that he would have discharged Dan Hebert on March 13 because of his inflated overtime reports irrespective of any suspicions he may have harbored regarding union activities by Hebert. Accordingly, I find that the discharge was for cause and did not violate the Act. II. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Affirmatively, I shall recommend that Respondent offer to Robert E. Evans, Floyd Langston, Claude Hebert, and Robert W. Moore immediate and full reinstatement to the respective positions which they held at the time of their discharges, or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing if necessary employees hired subsequent to such discharges. I shall further recommend that Respondent make each of them whole for any loss of pay suffered because of his discriminatory discharge by paying to each a sum of money equal to that which he would have been paid by Respondent from the date of his discharge to the date on which Respondent offers, or has already offered, reinstatement as aforesaid, less his net earnings, if any, during the said period.39 The loss of pay under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Finally, I shall recommend that the complaint be dismissed insofar as it alleges unfair labor practices which have not been established. CONCLUSIONS OF LAW 1. By unlawfully interrogating its employees concerning protected activities, and by threatening them with discharge therefor, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging Robert E. Evans, Floyd Langston, Claude Hebert, and Robert W. Moore because of their protected activities, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The allegations of the complaint that Respondent engaged in unfair labor practices by Coleman's interrogation of and remarks to Dan B. Hebert on January 26, and by discharging Dan B. Hebert, have not been sustained. an Hebert understood the term to mean that he was not diligent in his work He testified that he had received no prior complaints about the quality of his work "'" In its brief, Respondent makes no reference to its offer, made in open hearing on August 16, 1966 , to reinstate Evans, and no opinion is expressed herein respecting any of the problems involved in that offer Among other things, the record does not disclose whether Evans accepted and Respondent fulfilled its offer 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Reading & Bates, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concerning protected activities, and threatening them with discharge therefor. (b) Discouraging membership in any labor organization by discriminating against any of its employees in regard to their hire, tenure, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of any of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Offer to Robert E. Evans, Floyd Langston, Claude Hebert, and Robert W. Moore immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay they may have suffered by reason of Respondent's 40 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's 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 discrimination against them, in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and make available to the Board or its agents on request, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Recommended Order. (c) Post at its office in Anchorage, Alaska, at platform B, and at all other places where it customarily posts notices to employees of the said platform, copies of the notice attached hereto and marked "Appendix. "40 [Board's Appendix substituted for Trial Examiner's Appendix.] (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.41 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(1) which have not been established, and insofar as it relates to the discharge of Dan B. Hebert. be substituted for the words "a Decision and Order " 41 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "