M & W Marine Ways, Inc.

M & W MARINE WAYS, INC. M & W Marine Ways, Inc. and International Brotherhood of Boilermakers, Iron Shipbuilders , Blacksmiths , Forgers & Helpers, AFL-CIO. Cases 15-CA-2698 and 15-RC-3203 June 8,1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION MEMBERS BROWN, JENKINS, AND ZAGORIA On September 28, 1966, Trial Examiner John M. Dyer issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. In addition, the Trial Examiner found that Respondent did not engage in such conduct as would warrant setting aside the election in Case 15-RC-3203. Thereafter, the General Counsel filed exceptions with a supporting brief, and the Respondent filed a cross-exception to the Trial Examiner's Decision and a brief in opposition to General Counsel's exceptions and in support of the Trial Examiner's Decision. 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, with the following modifications. We do not agree with the Trial Examiner's finding that Foreman Frey's questioning of employee Bourgeios was not violative of Section 8(a)(1) of the Act. The allegation concerning the interrogation of Bourgeois was based upon Frey's questioning Bourgeois, shortly before the election, as to how he felt about the Union. The Trial Examiner, pointing to the fact that Bourgeois had previously worn a union badge, found this to be noncoercive. However, considered in the context of Respondent's other While we agree with the Trial Examiner that Respondent did not violate Section 8(a)(3) of the Act when it discharged Ernest Jones, we do not adopt his finding and conclusion that Respondent had no notice that employees were engaging in union activity at the time From the record, it is clear, and the Trial 191 unfair labor practices, and its avowed opposition to organization of its employees, we find this incident to be violative of Section 8(a)(1). In doing so, we specifically note our disagreement with the Trial Examiner's assumption, as indicated by his reliance on Bourgeois' having worn a union badge, that interrogation of employees concerning union attitudes and beliefs can have no restraining effect where the employee questioned has at some time manifested prounion sympathies. Nor do we agree with the Trial Examiner's failure to recommend that the election be set aside on the basis of Frey's statement to Jacobi that a lot of things could happen to change the prospective union victory and that employees who supported the Union would be discharged if the Union won. The Trial Examiner found that the threatening remarks, though violative of Section 8(a)(1), furnished insufficient grounds for setting the election aside. In doing so, he relied on the fact the single 8(a)(1) violation occurred midway in an organizational campaign of 3 months' duration, was not shown to have been communicated to any other employees, and hence was an isolated incident having no effect on a campaign involving 60 employees. In our opinion, the Trial Examiner, in reaching this result, neglected to give weight to all cogent factors bearing upon the impact on an impending election of an unfair labor practice during the critical period. Thus, the instant threat was made in the context of an election campaign charged by Respondent's openly expressed opposition to the Union.' Shortly before the petition was filed, Respondent through its supervisory personnel coercively interrogated employees, threatened discharge of union supporters, and closure of the plant if the Union were designated. Concededly, these unfair labor practices, having occurred prior to the filing of the instant petition, may not be considered as independent grounds warranting our setting aside the election; but, as the Board has held, such conduct may be considered in evaluating the weight to be afforded an allegedly isolated unfair labor practice occurring within the critical period.2 Against this background, and considering the Employer's continuous antiunion campaign throughout the critical period, and the nature of the alleged objectionable conduct, we are unwilling to assume, as did the Trial Examiner, that the threat made to Jacobi, whom Frey described as his right- hand man, was not communicated to employees, so as to reiterate to the employees the lengths to which Respondent would go to avoid union organization. In these circumstances, it is reasonable to infer that the Examiner so found , that several supervisors had already committed acts of interrogation with employees who in their discussions with the supervisors indicated interest in and support for the Union 2 Dee's of New Jersey, Inc , 161 NLRB 204 165 NLRB No. 24 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawful 8(a)(1) threat during the critical period could have been influential in the outcome of the first election.3 Accordingly, we shall set the first election aside.4 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, and hereby orders that the Respondent, M & W Marine Ways, Inc., New Orleans, Louisana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: IT IS HEREBY ORDERED that the election held in Case 15-RC-3203, November 10, 1965, be, and it hereby is, set aside and we shall direct a second election. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be conducted among the employees in the unit found appropriate , at such time as the Regional Director for Region 15 deems appropriate. The Regional Director shall direct and supervise the election, subject to National Labor Relations Board's Rules and Regulations Series 8, as amended . Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election , including employees who did not work during that period because they were ill , on vacation , or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement thereof and who have not been rehired or reinstated before the election date, and employees engaged in an economic strike which commenced more than 12 months before the election date and who have been permanently replaced. Those eligible shall vote whether or not they desire to be represented for collective- bargaining purposes by International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO. 9 See, e.g , Harvard Coated Products Co., 156 NLRB 162. 4 Member Jenkins, for the reasons stated by the Trial Examiner, does not agree that the interrogation of Bourgeios was coercive, or that the election should be set aside , and would, accordingly , affirm the Trial Examiner on these issues. TRIAL EXAMINER'S DECISION JOHN M. DYER, Trial Examiner: The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO (herein called the Union), filed an 8(a)(1) and (3) charge against M & W Marine Ways, Inc. (herein variously called the Respondent, the Company, or M & W) on August 30, 1965,' alleging that on that day Respondent discharged Ernest Jones because of his membership and activities in behalf of the Union and that by other acts and conduct Respondent interfered with and coerced its employees. On the following afternoon, August 31, the Union filed a petition for an election in Case 15-RC-3203, and contemporaneously filed a form entitled "Request to Proceed," so that the representation case could go forward and not be blocked by the charge. On September 28, the Union and Respondent entered into a stipulated agreement for a consent election. According to Respondent's counsel, on that date he first learned the Union was asserting that Jesse Ortega had been discriminatorily discharged. Respondent' s counsel in a letter to the Regional Office dated October 7, 1965, stated Respondent had been assured on September 28, that an amended charge alleging the discriminatory discharge of Ortega had been filed together with an additional Request to Proceed waiving the allegation of Ortega's discharge as a possible later objection to the election; but that on October 7, it learned that neither an amended charge nor an additional Request to Proceed concerning Ortega's discharge had been filed. Respondent protested and asserted it was proceeding on the assumption that the Jones and Ortega discharges were waived by the Union in proceeding with the representation case. On October 8, 1965, the Union filed an amended charge adding Jesse Ortega's name but leaving the date of discharge for both Ortega and Jones as August 30.2 The Union simultaneously filed an additional form Request to Proceed.3 On November 10, 1965, a Board election was held, in which 14 votes were cast for the Union, 40 against, and 3 ballots were challenged. By letter dated November 12, and received by the Region on November 16, the Union filed objections to the election. Following an investigation, the Regional Director, on February 28, 1966, issued his report on objections recommending to the Board that a hearing be held to resolve issues raised by the petitioner's objection concerning a speech made by Respondent's General Manager Wall shortly before the election, and concerning issues of interrogation , spying on union activities, threatening employees with plant closure, requesting employees to report on activities of other i Unless otherwise given, all dates herein occurred in 1965. 2 The complaint and testimony establish that the Ortega termination occurred September 3. 3 The body of the Request to Proceed (Form NLRB-4551) is as follows- The undersigned hereby requests the Regional Director to proceed with the above-captioned representation case, not withstanding the charges of unfair labor practices filed in Case No. . It is understood that the Board will not entertain objections to any election in this matter based upon conduct occurring prior to the filing of the petition. It is self-evident that this form contains no language which could be interpreted as a waiver of any events which occurred after the filing of the petition M & W MARINE WAYS, INC. employees, and the discriminatory discharge of Jesse Ortega, all of which, with other alleged misconduct, were alleged as 8(a)(1) and (3) violations in the complaint in this matter issued on the same date. The Regional Director recommended that a consolidated hearing be held on the representation and unfair labor practice cases. On April 12, the Board adopted the Regional Director's recommendations and ordered the consolidation of the two cases noting that Respondent's argument concerning waiving of certain conduct was without merit since under Board rules conduct occurring after the filing of the petition can be urged as objections. Respondent's answer which admitted some events, such as the discharge of Ernest Jones, the granting of raises in November 1965, and the termination or departure of Jesse Ortega, denied that any of its conduct or actions violated the Act. At the April 20-22, 1966, hearing, all parties were given full opportunity to examine and cross-examine witnesses and helpful briefs have been received from the General Counsel and Respondent and have been considered. On the record in this case, and on my evaluation of the reliability of the witnesses, based both on the evidence received and on my observation of their demeanor while testifying and while present in the hearing room, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Louisiana corporation with its principal office and place of business in Plaquemine Parish, Louisiana, where it is engaged in the building and repairing of barges, tugs, and ships at its location on the Harvey Canal. Respondent annually purchases in excess of $50,000 in steel products from companies located outside the State of Louisiana, which products are delivered to it. Respondent annually performs services valued in excess of $50,000 for companies engaged in interstate and foreign commerce. Respondent admits the above facts and I find and conclude that Rcspondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues Charles Wall is the general manager of Respondent, its secretary-treasurer, and with Murph, the principal owners of the Company. A second company, known as Walmurco, apparently was started around March 1965, by Wall and Murph, with Wall as the general manager and president. Wall is the operating head of both companies . Walmurco's location is some distance from M & W, on the Harvey Canal. Walmurco's drydock was built at the M & W yard using Walmurco employees and M & W employees as they were needed, so that some M & W employees were under 193 Walmurco supervision on occasions. O. C. Frey is the superintendent at M & W. "Buddy" Canulette was made the operating manager at M & W after Frey went to Walmurco. Under both Frey and Canulette are various supervisors and some nonsupervisory leadmen. Ernest Jones, the initial alleged 8(a)(3), was hired by O. C. Frey, at the M & W shipyard in 1963. After working some 3 or 4 weeks, Jones was badly burned in a shipboard fire at M & W. Canulette pulled Jones from the fire and extinguished Jones' flaming clothing. Jones nearly died as a result of his severe burns and was in the hospital several months and home approximately 7 months, returning to work in the late summer of 1964. While in the hospital, Jones was visited on a number of occasions by Charles Wall and the two discussed some of their background, including Jones' earlier history as a union organizer and his attempts to organize unions in a number of companies, including some in the New Orleans area. In latter 1963, Wall was hospitalized for about a week and had the room across the hall from Jones, leading to more conversation between the two. Jones' badly burned legs caused him discomfort since they were weak and sensitive to heat. On his return to work, Jones would sometimes mention to supervisors that particular jobs caused him discomfort because of the position in which he had to stand, or because of the amount of heat present. Jones did second or third class welder's work4 and was apparently paid second class wages. Pertinent to an interpretation of the facts in this case, is an attempt to understand the personality of Ernest Jones. His deep, raspy voice, his speech, his ample size and general mannerisms, reminded me of braggadocio characters portrayed by the deceased movie actor, Wallace Berry. If allowed a chance to give a long answer, Jones would expand and expound on the theme of his testimony, adding depth and character to it by injecting descriptive phrases or comments. His testimony was something he apparently had in mind as a whole picture, which he needed to present as a whole. Where his testimony was interrupted by questions or an objection, the style was broken, and the flavor lacking, but when allowed to expand, Jones was a master storyteller. For example he expanded on his original description of various arguments he testified he had with Wall by injecting that Wall had called him a communist and adding that Wall told him to go to the Labor Board. Such additions to testimony conceivably could come about as a result of revived memory from going continuously over a happening and recalling additional facts, particularly if the testimony accorded with objective facts or was corroborated by others. But such is not the case here. Respondent's witnesses, one after the other, agreed with some of the minor facts Jones provided, but disagreed entirely with most of the major facts on which his case rests. Jones, for instance, claimed he was a good welder and never received any criticism concerning his work. Several Respondent witnesses discussed Jones' poor work and the criticism and suggestions offered to him. In fact, a witness who testified for the General Counsel characterized Jones' work as among the worst in the yard. Jones' talkativeness, of which Respondent's witnesses continuously complained, was evidenced by Jones' garrulous testimony and his ability and penchant for 4 Second and third class welder's work consists mainly of welding on flat and sometimes vertical surfaces. First class work includes welding overhead or in any position. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressing himself fulsomely. In addition, objective evidence, such as Respondent's records relating to his dates of work and raises did not agree with Jones' recollection. Jones was sitting in the hearing room as Respondent's witnesses testified about his shortcomings. Jones, who started his testimony as a supremely confident man, appeared more and more restless as the hearing proceeded, and he visibly slumped, with his face showing his discomfort. He appeared at times to rally, but to me, on the whole, appeared shaken by the critical testimony. Perhaps, the final blow to Jones' credibility was administered by Jones himself. He admitted during cross- examination that he had a very poor memory and stated that when something important happened to him, he would take notes, since taking notes made him remember the incident. He stated that he took no notes whatever regarding any of the events concerning which he testified, and relied entirely on his self-described poor memory. Jesse Ortega is a welder who had worked for Respondent about 2-1/2 months at the time of his termination . Ortega evidenced some difficulty in understanding some of the questions put to him, a difficulty which might be ascribed to his Spanish lineage and to his greater familiarity with the Spanish language. Ortega was a fairly straightforward witness and his testimony and that of Supervisor Frey concerning his termination are not irreconcilable. Essentially there are three issues presented by these consolidated cases: 1. Were Ernest Jones and Jesse Ortega terminated because of their individual union activities? 2. Did Respondent's agents coercively interrogate and threaten its employees and did the raises it granted in November 1965 violate Section 8(a)(1) of the Act? 3. Did the termination of Ortega, the granted raises in November 1965, and other alleged 8( a)(1) actions, in combination with a speech given by General Manager Wall, inhibit the employees' freedom of choice in the representation election? B. Jones' Discharge Jones acknowledged that "Buddy" Canulette knew he was a union member when he first came to work, since he and Canulette had both worked at Todd Shipyards, where, Jones states, he was the chief union steward. He acknowledges also that Mr. Wall learned of his union affiliations during the time he was in the hospital. Jones testified that in March 1965, "Buddy" Canulette fired him, stating that he couldn't do the work. He followed Canulette to the office saying he wanted to see Wall and Wall joined them. He states he told Canulette he was a liar if he said he had ever squawked about his work, that Wall was looking for a fall guy, since Wall thought Jones was trying to bring in a union, but Wall was wrong. He testified Wall said that maybe Jones wasn't going to organize them but he was going to set up Martin, the union agent, to-do so. Jones claims that he told Wall he had no intention of bringing the Union in on him then, and they walked back into the office where he told Wall all the good parts about having a union. He states he told Wall that he was not after his shop as much they were after the Avondale Shop and that he would put the Company "on ice" if Wall would promise to give the men a vacation after 1 year's service, recognize seniority, and hire some dischargees from the Avondale Shop. Jones says he told Wall that this arrangement was to be just between the two of them, and if the boys "moved" (by which he meant if the employees started organizing a union) he couldn't do anything about that. He states Wall said he didn't want to be a martyr, would think about it, and would have Canulette put him back to work. Jones saw Canulette was put back to work and a week or two later told Canulette "Now since I have been fired and I am back to work I want more money" and Canulette stated he would see what he could do about it. After hearing nothing for 2 weeks, Jones had a conversation with Wall and told him that he needed more money. After some discussion he states Wall said he would talk to Canulette about it and he got his raise a week or two later which would have been mid-April according to Jones' time estimates. Jones said he told other employees that he was responsible for their getting a raise shortly after this, since he had spoken up and gotten his raise. Jones testified that prior to his discharge by Canulette, William Melancon, a supervisor, whom Jones called a pusher, tried to discharge him on several occasions. He states that he told Melancon that he would have to get Charlie Wall or "Buddy" Canulette to back'him up that he was fired, that he wouldn't take Melancon's word for it. Jones also stated he felt that it was on his recommendation that Melancon was relieved of his supervisory duties. In another conversation with Wall, Jones says he asked Wall why he didn't hire two men from Avondale. He states Wall said the two men wore union badges. Jones states he told Wall that he was supposed to help the men and since he was "on ice," he had conditions to live up to. He states that after talking to Wall, he talked to Canulette, telling him that he was to hire two men, the Perkins boys. He states that Canulette told him he would hire them and Jones should have them there by 8 o'clock the following morning and to be sure to keep the shop "on ice." He states on the following day he saw Wall and told him that the Perkins boys had gotten a job elsewhere. Jones' next declamation is that in June he asked Wall why he had not posted a notice regarding the vacations, since he and Wall had agreed on a company policy. On the same day Wall put up a notice stating that the policy was to give a 1-week vacation to 4-year men and to drop the required 1 year each successive year until the 1-year men would get a 1-week vacation. Jones states that he took a 2- week vacation the same week this notice was posted. As to the agreement about vacations Jones said that shortly before he got his raise, he had a conversation with Wall about vacations, in which he referred to a commitment Wall made to give the 1-year men a vacation, and that he, Jones, had already told all the 1-year men that they were going to get a vacation. After his 2-week vacation, Jones stated work was slack at M & W and he asked for an additional 2 weeks off, at which time he went to work for another employer named Buck Kreibs. He states that after returning from this employment he had an occasion to show Charlie Wall his check stub, that he made $3.39 an hour, or 66 cents an hour more than he was making at M & W He states he told Wall that Wall had treated him good but they treated him well over at Buck Kreibs and paid him a lot more and if the opportunity ever came for him to go there, he would leave M & W and go to work for Kreibs. He says he also told Wall that he needed a raise since he could make so much more at Kreibs. According to Jones, Canulette told him on Friday, August 27, that he was getting his raise. Jones' story of the discharge is that on Monday, August 30, after getting Hill's approval for a change in his job assignment, Hill came to him a few minutes later and discharged him. He states, he said to Hill, "Oh, this old M & W MARINE WAYS, INC. thing again," and went to see Charlie Wall concerning his discharge. Jones testified that when he came from his vacation, the Union started organizing M & W, and that he found an occasion at that time, a month prior to this discharge, to tell Wall that the Union was breathing down his neck and he was no longer "on ice." On reaching the office, Jones states he asked Wall if he wanted the door closed and that Wall then called him a ". . double- crossing ...." He answered by reminding Wall he had warned him 3 or 4 weeks previously that the Union was fixing to take him, and Wall said that Jones was supposed to keep the Union out. Jones replied that he didn't organize it. After more strong language between the two, Wall ordered him off the property. Taken by itself Jones' testimony would make a forceful case that he was discharged for not preventing the Union from coming into the plant. But when his story is placed in the context of other events, large gaps appear which make it evident that the story is not completely true. Jones' testimony, of necessity, makes it clear that Jones felt he was a big man in the Company with sufficient leverage to dictate policy to General Manager Wall and that his job was perfectly secure. Jones' testimony also indicates he feels he is one of the union leaders and could decide union policy as well. Respondent's view of Jones makes a completely different picture. According to O. C. Frey, he considered discharging Jones because of his poor welding prior to Jones' accident in the fall of 1963. Canulette said that the supervisors underneath him complained regularly about Jones' poor work and that he decided to discharge Jones early in 1965 for sloppy work Jones had done on a barge. After welding, the barge was tested with air pressure, and the number of air leaks was so enormous, he told Jones he was fired, took him to the office, and told the girl to make out his time. He denied ever praising Jones' work, saying he only tried to encourage him to do better In the office, Jones complained to Wall that Canulette fired him, Wall said that he was fired and Canulette left the office. Wall testified that this discharge took place in January 1965, and he placed the time by personal events which occurred at that time. According to Wall, Jones showed him his burned legs saying, "They are trying to fire me, I can't work nowheres else" and asked what Wall would do about it. Wall told him he would speak to Canulette and for Jones to go back to work. Wall did not remember the particulars of any further conversation between them, and denied Jones had threatened to go to the Labor Board, stating that if he had been so threatened, it would have been his natural reaction to tell Jones to go to the Board. When Jones returned to Canulette, he told him Wall said to put him back to work. Canulette told Jones to wait and went to the office to see Wall. Wall told him he felt responsible for Jones' burned legs and to tolerate Jones and try to work him, since Jones couldn't work any place else. Wall corroborates this conversation. Canulette told Wall it was a big pill to swallow, since he was continually receiving complaints from foremen about Jones' work. Canulette received a number of complaints from Melancon that Jones butchered frames when he was working. He told Melancon there was nothing he could do about firing Jones, since Wall felt responsible for Jones' physical condition and they should put up with him and keep him working. After that, when Melancon complained about Jones' work, they would shake their heads and keep working him. When Sam Hill replaced Melancon, Hill complained to Canulette on the average of twice a week 195 about Jones' poor work. Canulette told Hill that Wall felt responsible for Jones' physical condition, that they couldn't do anything about him and since Wall wanted to keep him on, they would just have to work him as best they could. Supervisors Hill, Frey, and Cedatol and fellow employee Mitchell, all testified to the poor quality of Jones' work. All the men agreed that Jones was used mainly on flat work and in places where he couldn't do too much damage. Jones placed a number of conversations regarding the Union with Wall in March and April prior to the time that he received his raise from $2.63 to $2.73. Jones was not positive as to the dates. The employment records show that Jones received this 10-cent raise on February 28. This objective evidence corroborates Respondent's testimony. Therefore all of the conversations which Jones testified took place in March or April, if they in fact occurred, preceeded February 28. Thus all of Jones' conversations with management prior to his raise, would have taken place more than 6 months before the initial charge was filed, so that even if Jones were credited, Section 10(b) would preclude findings of violation here. The raise Jones contends he got on the last full day he worked, August 27, is not shown on his payroll record. In considering Canulette's discharge of Jones, there is no particular reason advanced by Jones or the General Counsel as to why Canulette would have picked the first months of 1965 to discharge Jones because of his union affiliations. Jones' union predilections were known to Respondent long before this date and so far as the record shows, neither Jones nor anyone else had started any organizing campaign or other union activity which would have prompted the "Union oriented" discharge Jones claims occurred. It is not until after this discharge that Jones testified he started to talk a deal with Wall about keeping Respondent "on ice." Therefore, Canulette's attempted discharge at that time had no antiunion inspiration, but must have been motivated by Jones' poor work as Canulette testified. Hill and Wall agree that on August 30, Wall was telling Hill he had to get more production. Hill told Wall he couldn't because he had people on his payroll who couldn't do the work. When Wall asked why he didn't do something about it, Hill said that he couldn't. At this time Jones walked up and said he wanted to change jobs because his assignment bothered his legs. After Hill permitted him to do so, he pointed to Jones as one of his main problems saying it was impossible to fire him and asked Wall what Jones had on the Company or on Wall that kept them from firing him. Wall said Jones had nothing on the Company or him, but that he felt sorry for Jones since he had been hurt in the fire, and they kept him on since he needed a job. Hill retorted that Wall's feeling sorry for Jones didn't help Hill when Wall came around asking why the work wasn't being done. Wall said that since Jones showed him his check from Buck Kreibs, it was evident that he could find work elsewhere and it was no longer necessary to keep him out of sympathy. Wall told Hill he could discharge anybody that wasn't doing his work. Hill requested assurance that he meant what he said and upon receiving it, immediately left to discharge Jones. On August 30, nothing of any import concerning the Union had occurred which would have raised a question about the Union coming in at that time. Jones testified that several weeks before his discharge he told Wall that the Union was "fixing to come in on him" and that he was no longer "on ice." If Jones' 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement is true then Wall would have had no reason to discharge him on August 30, since nothing occurred on, or immediately before, this date to bring it up. Jones seeks to take care of this discrepancy by stating he reminded Wall that he told him earlier he was no longer "on ice." Late that day the initial charge was filed in Jones' behalf, but it was not until the following day that the representation petition was filed. So Respondent, other than Jones' alleged conversation with Wall, would not have been apprised of the Union's readiness to move on it, until it received a copy of the petition. Thus there is no union action or reaction shown to have pulled the trigger of Jones' discharge and we are left with Jones' poor-quality work as the only reasonable cause for the termination. I have no doubt but that Jones talked about the Union a number of times to a lot of people, including General Manager Wall, while he was working at Respondent. Wall testified Jones was always saying something about the Union to him and talked to him so many times, he paid no attention, not knowing what to believe Jones could or would do, except for his knowledge that Jones did have something to do with the Union. Jones' statement that he had made a deal with Wall that the 1-year men were to get a vacation is contradicted by the vacation notice which was put up, and Jones' statement that he told Wall to put up the notice the week he, Jones, took his vacation, is disproven by Jones' employment records which show Jones took his vacation (a 2-week leave without pay) from June 20 to July 5, or more than a week after the vacation notice was posted. Again the objective evidence corroborates Respondent and disproves Jones' testimony. Similarly, Jones' 2-week time off to work for Buck Kreibs, ended in August, the week prior to his discharge, and not earlier in July as his testimony sought to establish. If Wall ever thought that Jones might organize him, he had no reason to become suddenly fearful on August 30, 1965. He had known for a period of nearly 2 years that Jones was a union protagonist who had tried to organize various companies for which he worked. There were no overt union acts performed by Jones or by anyone else in either the winter of 1965 or on August 30, to cause Wall to suddenly decide that Jones had to be discharged. Simply stated, Jones' testimony does not hang together when matched with the remaining testimony and with objective evidence and it appears that Jones is attempting to fabricate a case rather than present objective facts which make a case. His case in essence is that he was mistakenly discriminatorily discharged for bringing in the Union, although he had sought to keep it out. It may be that Jones is convinced this was the reason he was discharged and it is because of this that he testifies as he does. But the testimony presented does not show this to be the case. One additional example of his testimony failing, since objective evidence denies it, was that Jones testified there was a general raise of 11 cents a man after he got his 10- cent raise in what he termed April, actually February 28. On cross-examination, Jones stated his testimony in this regard was based only on his remembrance of going around telling the men that they got such a raise. Objectively, the list of all raises granted employees, Respondent's Exhibit 6, shows there were 14 raises given in February, all of which preceded Jones', and 13 raises given in March. Seven of these took place on March 1, the day after Jones' raise, six of which were for lower-ranked employees who were raised 12 to 16 cents an hour and one of a higher-ranked employee. The other March raises were; one 11-cent raise on the 14th, a 15-cent raise on March 20, and four raises on March 29 of 10 or 15 cents. It is possible that in an attempt Jones felt warranted to keep or solidify his job, Jones may have offered to keep the Union out of Respondent; but it is improbable to conceive that Wall would have relied on such a promise from Jones. As Wall stated, it was impossible to know what Jones could or would do. The examples of Jones' boasts bear out Wall's observations. From my observation of the witnesses and their demeanor and from their testimony, I cannot credit any portions of Jones' testimony which is not corroborated either by other witnesses or by any objective evidence. Jones is familar with Unions and apparently had some familiarity with Labor Board proceedings, and I believe that Jones' testimony was predicated by what he felt was necessary to prove a case of discrimination. There being no corroborative testimony to establish that Jones was discriminatorily discharged, and in fact, all the testimony which is corroborated establishing that there was no discrimination, I am obliged to make that finding. C. The Alleged Discriminatory Discharge of Jesse Ortega Jesse Ortega, a welder, worked for Respondent under "Whitey" Frey for about a month and under Canulette and other supervisors for the balance of his 2-1/2-month tenure. According to Ortega, his union activity consisted of signing a union card in August, attending some union meetings, and getting three or four others to sign cards. Witnesses for Respondent described Ortega as a good welder who spent a lot of time off his job either getting "cokes" or talking to other men. The version of the conversation which led to the discharge of Ortega, is substantially the same whether given by Ortega or by Frey as corroborated by Jacobi. All of Respondent's witnesses denied having any knowledge that Ortega was favorable towards or working for the Union. In fact, most of Respondent's witnesses and some of General Counsel's witnesses state that other employees were known as union adherents or leaders rather than Ortega. To establish company knowledge of Ortega's prounion sentiment, General Counsel offered the testimony of two witnesses. Jacobi originally testified that Ortega's name was brought up in a conversation with Supervisor Frey as a union sympathizer. Jacobi was unsure whether this occurred while employees were wearing union buttons or not, but was sure Ortega's name was not mentioned with the names of Dufrene and Bourgeois whom Frey predicted would have a limited term of employment if the Union came in. Jacobi said the men had discussed who might be involved in the Union and Ortega's name was mentioned then, but the testimony is not clear who brought up Ortega's name in Jacobi's conversation with Frey. Jacobi indicates that in the conversation when Ortega was named, Frey said something about changes around the yard. It is not clear whether there was one or more conversations in which Frey said Wall would close the plant if the Union came in. The most I can, with certainty, conclude is that in a conversation, somewhere around the time union buttons were worn, either Frey or Jacobi brought up Ortega's name and Jacobi said he heard Ortega was for the Union. Bourgeois testified on direct examination that 3 to 4 days before Ortega was discharged, Frey asked him if anyone had spoken to him regarding the Union, that he replied no, and Frey asked if he knew Jesse Ortega. He M & W MARINE WAYS, INC. replied , he didn't know him well and Frey said "I think he is one of the instigators." On cross-examination , Bourgeois stated that Frey did not mention Ortega's name but nodded towards Ortega, and Bourgeois makes no mention of the instigator statement. Shortly after making this statement , Bourgeois changed his testimony to state that Frey, after asking if he knew Ortega and receiving the reply not very well, said , "I think he is going to be the instigator." Bourgeois was then shown the affidavit he had given to the Board in which he said Frey came up to him and asked if any of the men talked to him about the Union; that he replied no one has and that Frey motioned in the direction of Ortega. Bourgeois was further cross-examined as to a statement he had given to Respondent's representatives in which he said he had no reason to believe Ortega was fired because of the Union and that the only time the Union had ever been mentioned to him by Frey was in a completely different conversation. As to the Jacobi conversations , I believe that on one occasion he and Frey discussed a number of people who might be union sympathizers and in discussing various people, Ortega's name was mentioned . I do not believe that Frey told Bourgeois that Ortega was one of the instigators. Such a flat statement when contrasted with his statement to the Board , his statements to Respondent's counsel , and the contradictions in his testimony , make it appear to be an afterthought . Therefore , I do not believe that Respondent had knowledge of Ortega's union activity, except for the random appraisal by Frey and Jacobi that Ortega might be sympathetic to the Union . The paucity of Respondent 's knowledge of Ortega's minimal union activity persuades me that union considerations were not a part of the reasons for Ortega's termination. Respondent's testimony regarding Ortega as expounded by Canulette, Cedatol, Frey, and Hill, was that Ortega was a capable welder who would do excellent work as long as he stayed on his job . The problem with Ortega according to these four Respondent witnesses was that Ortega would leave his job at the slightest provocation to go get something to drink and would invariably try to get other men to go with him. Again according to Respondent's witnesses , he was warned time after time that if he wanted to go get a coke, to do so and come back, but not to take people with him. Canulette testified that on one occasion Ortega was stationed beneath a barge to weld leaks in the plates which were to be found by flooding the interior of the barge with water. Where the water leaked through, there Ortega was to weld . After telling Ortega precisely what to do, the water test was started and Canulette yelled for Ortega to start welding and not getting a response went underneath the barge and found Ortega missing. Canulette searched for him and found him drinking a coke. Ordered back to the barge , Ortega was not able to make the welds since by that time enough water was in the barge to build up a head of pressure on the holes. Canulette and the supervisors underneath him attempted to keep Ortega by himself where he could not talk with, or possibly influence other men to go with him when he went on a break . When Ortega was loaned to Frey, he was told by Canulette of Ortega's predilections for leaving the job for cokes and for talking and for taking other men with him. On the day of his termination Ortega was working for Frey. Frey testified that in the amount of time Ortega was supposed to have been working , he could have produced 30 to 40 feet of welding but had produced only 10 feet. From testimony adduced by Respondent , it is apparent 197 that Ortega was not at his job on three or so occasions when Frey made his rounds to check the work. Ortega stated that on the final occasion after going to the bathroom and on his way back, Frey whistled for him to stop, asked him where he had been, but apparently didn't believe his answer. Ortega stated that Frey said he was not satisfied with his work, didn't believe that he was doing his job, and that he was loafing. Ortega and Frey then discussed whether Ortega was working at his best or not. Frey testified he told Ortega that he would have to do better than he had been doing and Ortega said that he was doing the best he could. Ortega testified that Frey told him he wasn't satisfied with his work and wanted him to knock it off. Ortega said he asked if Frey wanted him to pick up his things and that Frey said yes. According to Jacobi who overheard most of the conversation , Frey told Ortega that he would have to do substantially better or he would have to knock him off. Ortega said that he was doing the best he could and asked if Frey wanted him to roll up . Frey said if he couldn 't do any better he might as well roll up. Ortega said he would roll up and Frey replied , "All right then you are discharged." Frey corroborates this discharge statement. The weak evidence of Respondent 's knowledge of Ortega's minimal union activity coupled with the nature of the discharge and the corroborated testimony of Ortega's work habits , prevents any finding that Ortega was discharged in violation of Section 8(a)(3) of the Act. D. The Employer's Wage Increases of November 15, 1965 The complaint alleges that Respondent granted wage increases in latter November 1965 for the purposes of defeating the Union 's organizing efforts and to discourage union and other concerted activities of its employees. There are no allegations in the complaint concerning any promises of wage increases if the Union were kept from the plant , nor any allegations that wage increases were denied because the Union was on the scene. As supporting evidence , the General Counsel relied mainly on the fact that a large number of wage increases were granted to employees on November 15, 1965, during the period when the Union was filing objections to the election , which fact Respondent admitted in its answer. Respondent's answer added that the wage increases were granted subsequent to the representation election of November 10, which the Union lost , and denies that the reasons for the increases were as alleged by the General Counsel. Respondent 's Exhibits 6 and 14 contain the wage increases that were granted to all employees at M & W and at Walmurco from January through December 1965. Respondent's Exhibit 14, the Walmurco payroll exhibit, shows that Walmurco's first payroll was in March 1965, and the first raises granted to Walmurco employees were in May when seven employees received wage increases. Wage increases for the Walmurco employees from June through August are comingled with the M & W raises in Respondent's Exhibit 6. In September there was one Walmurco increase, another in October , four in November, and none in December. Respondent's Exhibit 6, the M & W payroll exhibit, shows 2 increases in January, 14 in February, 13 in March, 16 in April , 8 in May, 3 in June, 7 in July, 5 in August, 7 in September, 8 in October , 37 in November, and 1 in December. Of the 37 M & W employees who received raises on November 15, 5 days after the union election, 8 employees had received 1 raise during the period of 299-352 0-70-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January to November 15, 11 had received 2 raises, 4 had received 3 raises, and the remaining 14 received only this 1 raise in that year. It appears from Respondent's Exhibit 6, that some of the wage rates for various work classifications were raised by this November increase, such as the apparent previous top rate for a first class welder going from $3.26 to $3.35. In explanation of why so many people were raised in this one period, Respondent's witnesses Canulette and Wall credibly testified that during the period of the union campaign, they had been counseled by their attorneys to hold merit increases to a minimum and that they followed this advice. Both men also credibly testified that following the hurricane which caused severe destruction in the New Orleans area in September, repairing and new construction work, together with an increase in work from other I sources such as NASA, and more work in the shipyards, resulted in the manpower situation, which had been reasonably free, becoming very short and they were forced to compete wagewise to retain their skilled workers. It may also be noted that Respondent presumably had not received copies of the Charging Party's objections to the election at the time the raises were instituted. The objections to the election although dated November 12, 1965, show from the time stamp that they were received by the Regional Office on November 16,1965. The deciding factor in this situation, however, is that there appears to be no indication from any independent source that the purpose of the raises was other than as explained by Respondent. General Counsel urges that Manager Wall's speech on November 8, a week before granting of these raises, in which Wall stated that Respondent was paying the second highest wages on the west bank of the Harvey Canal, and would continue to pay the highest possible wages, but contrary to the union propaganda would not pay more unless it was possible to do so, illustrates that the purpose of the speech was to demonstrate the futility of choosing a union, since employees were told they couldn't get a raise, and then were granted a raise a week later with the consequent inference that the raise was a reward for rejecting the Union. General Counsel contends that this was a general wage increase and that Manager Canulette so testified. But as noted above, an analysis of this wage increase shows that some rates were raised but that not all the employees got raises although approximately 55 percent to 60 percent of the employees did. This is not a general wage increase but a large number of merit increases plus some wage rate revisions. I must presume that these raises were on a merit basis and because of the competition for skilled labor in that area there being no testimony to indicate otherwise. I could not presume, without additional independent evidence to show this wage raise was used to discourage union organization, that is something exterior to the actual happening itself, that this wage raise was for such a purpose. The fact of a wage raise in and of itself does not create an irrebuttable presumption of discrimination or antiunion motivation in granting it at that particular time. Certainly the explanation advanced is reasonable and if the fact of a wage raise occurring at that particular time was considered as a rebuttable presumption, it has now been rebutted. Accordingly I find that the wage increases granted by Respondent on November 15, 1965, were not granted for the purpose of defeating the union organizational efforts or to discourage union or other concerted activities. E. Alleged Interrogations and Threats "Buddy" Canulette testified that when Jones and Stowe were hired he knew they were union members and after hiring Mitchell, Odenwald, and Parker and observing that that the manner and style of their work indicated they were from the construction field, and verifying this from their personnel records, he concluded that they were or had been union members. Canulette testified he hired a number of employees who had worked at the Todd Shipyards, which he knew from having worked there to be a union operation. Odenwald testified that Canulette spoke to him once about the Union prior to the election, acknowledging the conversation possibly took place in August since it occurred before Wall's first speech to the employees of September 3. He said Canulette questioned him as to what he knew about the organization of the Union and who was involved in it. Odenwald denied to Canulette that he knew anything about the Union. Canulette testified that the conversation between himself and Odenwald occurred substantially as Odenwald related it. James C. Mitchell testified on direct examination for both the General Counsel and Respondent in the presentation of their respective cases. Mitchell testified that Canulette asked him how he felt about the Union and he replied he didn't feel he could talk about it. Canulette verifies that this conversation took place, and says it occurred prior to Respondent's first consulation with its attorney on September 2. Mitchell said the conversation occurred in mid-September, prior to a speech he heard Wall give, and although not identifying the written version of Wall's first speech, he remembers phrases which appear in this speech I conclude that the conversation as described occurred sometime prior to September 2, and in the context of other Canulette statements conclude it occurred in the latter part of August. Employee Stowe stated that about mid-August Canulette told him he heard that Stowe was going to "pull the yard" (strike) and he answered he didn't know about that. He stated Canulette asked what was going on, and he replied that the Union was coming in strong. Canulette asked him how many union cards were out and Stowe replied he didn't know exactly, but the Union would win by about 3 to 1. He states Canulette also asked him who was bringing the Union in and whether he was a union man. He replied that Canulette knew he was or he wouldn't be talking to him about the subject. Respondent's counsel did not ask Canulette to deny or explain any of this testimony. Stowe also testified that later in the same day he heard Hill and Canulette talking to Ernest Jones, during which Jones disclaimed any responsibility for the Union saying that he didn't bring it in. He states that during the conversation Canulette said the Company could not afford a Union. One or two days later, Sam Hill told Stowe he was going to fire everybody that voted for the Union and Stowe told Hill he had been a union member for 25 years and to go ahead and fire him. Hill told Stowe to tell the people you'll vote for the Union, but vote for the Company. During his testimony, Hill was not asked by Respondent's counsel to explain or deny Stowe's testimony. The questioning of Odenwald, Mitchell, and Stowe by Canulette was not for any legitimate purpose since as Canulette testified, he was sure they were union members. The questioning was not in an effort to respond to a union recognition request but from the words themselves was an attempt to delve into the union organization , to see how it M & W MARINE WAYS, INC. 199 had progressed, and who was leading it. Canulette's questioning of Mitchell appears to be an attempt by Canulette to confirm his suspicions of Mitchell's union sympathy. I find and conclude that Respondent, by its supervisor and agent, E. L. Canulette, violated Section 8(a)(1) of the Act by interrogating employees concerning their own union sympathies and activities and as to the union activities and desires of its other employees. As noted above I have found that these interrogations occurred in mid- or latter August 1965, and therefore preceeded the filing of the instant representation petition. I further find that Respondent, by its supervisor and agent, Sam Hill, violated Section 8(a)(1) of the Act by his threat to discharge employees who voted for the Union. Hill's entreaty to Stowe to tell others to vote for the Union but to personally vote for the Company is not a violation of the Act. Since as noted above, Hill's threat occurred prior to the filing of the representation petition, it will not be considered as part of the objections. The complaint also alleges that General Manager Wall violated Section 8(a)(1) of the Act by interrogation and threats in the first part of March 1965. Ernest Jones offered the testimony intended to substantiate these allegations. In considering the Jones' 8(a)(3) allegations, I have indicated both the timing difficulty (Section 10(b)) and my reservations as to Jones' credibility. The 10(b) date in this matter is February 28, 1965. Since Jones' testimony is that his conversations with Wall occurred several weeks before he received a raise, and the records show he received the raise on February 28, and as I have indicated supra I will not accept Jones' testimony as credible unless independently corroborated, I can not find that Wall violated Section 8(a)(1). Fred Jacobi, who was called as a witness both by the General Counsel and Respondent, testified that a week or 10 days before Ortega was terminated, Supervisor Frey said that a lot of things could happen to change things in the yard between that time and the election. Several times Frey said that Wall would close down the yard if the Union was voted in and that the men would all be out of work, that Wall would not work the yard if it went union. Jacobi also testified that in his first speech Wall said he would not close the yard whether the Union was voted in or not .5 Jacobi testified that in mid-October, with no one else present, he and Frey were discussing the Union and Frey told him that a lot of things could happen to change the prospective union victory. Frey asked him who had mentioned the Union to him and he replied that two fellow employees, Dan Bourgeois and George Dufrene, had. Frey continued that something could happen to fellows such as Bourgeois and Dufrene, that their days would be numbered if the Union got in. Frey testified that he had received instructions from Canulette as to what he could and could not say concerning the Union. Frey testified that he was friendly with Jacobi and considered him his right-hand man, and talked to him about the Union in various conversations. He denied talking to Jacobi about Ortega but stated that he did discuss how the yard might fare if they went union, but denied saying the yard would close down if the Union came in. On cross-examination, Frey stated that after receiving the "do and don'ts" instructions, he listened to the employees talking about the Union rather than initiating conversations about it. On one occasion, Jacobi mentioned to him the names of employees he thought were participating in the Union, that they heard a number of rumors and Jacobi told him that Dufrene and Bourgeois were union members. Where there is a conflict in testimony between Jacobi and Frey, I am constrained to believe Jacobi. Jacobi who is still employed by Respondent testified directly, and appeared to me to make an honest effort to state to the best of his memory what occurred. I believe that Frey attempted to follow the injunction of the "do's and don'ts" in retrospect rather than at the time he was speaking to Jacobi, and thus claimed that he did not initiate conversations regarding the Union, although appearing to be more than a willing recipient of whatever knowledge he could gain from them. I accept Jacobi's estimate that the conversation concerning the possible plant shutdown took place a week or more prior to the time that Ortega was discharged, which means that it occurred prior to the time the Union filed its representation petition and I cannot consider the statement as part of the Union's objections. I find that Supervisor O. C. Frey's threat that union sympathizers could be discharged, and that the plant would close down if it went union and that Mr. Wall would not operate the plant with a union and his interrogation as to who were union members or sympathizers, violated Section 8(a)(1). As to the October conversation between Jacobi and Frey, I find that Frey interrogated Jacobi as to who had mentioned the Union to him and thereafter threatened that these named individuals' days would be numbered if the Union got in. The threat and the interrogation by Frey violate Section 8(a)(1). Daniel Bourgeois testified that shortly before the election, Supervisor O. C. Frey asked him how he felt about the Union and he replied that it really did not matter because he did not know how long he was going to be there. He stated that Frey asked him if Jesse Martin (a union business agent), was involved with the Union at Plastic Applicators (another company not connected with Respondent) when Plastic Applicators closed down. Bourgeois replied no, that was another Martin who was with the Teamsters' Union. According to Bourgeois, Frey told him he never figured him to be much of a union man. Frey testified that he first believed the union organization was functioning when some of his employees started wearing union badges, and that to his surprise Bourgeois and Dufrene wore badges. He stated that he had a conversation with Bourgeois shortly before the election in which they discussed another company, Plastic Applicators, which had a union and whether M & W would or would not benefit from a union and Frey asked Bourgeois his opinion of it and Bourgeois replied he did not have much of an opinion. In the context of Bourgeois wearing a union badge, I do not believe that a question by Frey as to Bourgeois' In his September 3 speech, Respondent's Exhibit 2, Wall Please be assured that , will not close down the yard because stated that although Jones told him Ile thought Wall was we may have an election. nor will I close down the yard if we discharging hull because Jones was trying to organize a union, he base a picket line, nor will I close down the yard if the Union fired Junes because he was an unsatisfactory employee and they wins the election all knew it As to closing the yard Wall said 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opinion of the benefits to be obtained from having a union in a small plant, or asking if it was the same union that was at another plant, constitutes coercive interrogation under the Act. Accepting that Frey did make such inquiries of Bourgeois, I do not find them to violate Section 8(a)(1). III. OBJECTION TO THE ELECTION-Case 15-RC-3203 Referring to the finding concerning the October conversation between Jacobi and O. C. Frey, supra, this is the single 8(a)(1) violation I have found which took place within the time period for consideration as an objection to the election herein. I have previously considered the speech referred to in Objection 3(a) in connection with the raises granted by the Respondent on November 15, and found that such raises were not violative of the Act. The speech considered by itself is not, nor was it alleged to be, violative of Section 8(a)(1). I do not find that the matters in the speech specifically referred to by the Regional Director in his report on objections, would disturb the desired laboratory conditions for an election. I further find that the speech has no material connection with the single 8(a)(1) conversation between'Jacobi and Frey which took place in mid-October. It appears to me that a single 8(a)(1) conversation between one supervisor and one employee, midway in a 3-month campaign, with no indication that the contents thereof were made known to any other employee, is an isolated incident which could not be said to have any material effect on a campaign embracing over 60 employees. I therefore find and conclude that there are no material or substantial issues of fact affecting Objections 3(a) and 6 and that such objections are without merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section II, above, which have been found to constitute unfair labor practices in violation of Section 8(a)(1) of the Act, occurring in connection with Respondent's business operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices which constitute violations of Section 8(a)(1) of the Act and it shall be recommended that Respondent cease and desist therefrom and take certain affirmative action which is designed to effectuate the policies of the Act. On the basis of the foregoing findings of fact and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, M & W Marine Ways, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees as to their union membership, activities, or desires, and the union activities, membership, and desires of other employees; by threatening to close its plant if the Union were voted in; and by threatening that employees would be discharged for engaging in union activities or for voting for the Union, Respondent violated Section 8(a)(1) and 2(6) and (7) of the Act. 4. Respondent did not discriminatorily discharge Ernest Jones or Jesse Ortega in violation of Section 8(a)(3) and (1) of the Act. 5. Respondent did not commit any other unfair labor practice as alleged in the complaint other than those specifically found herein. 6. Respondent did not engage in such conduct as would warrant setting aside the election in Case 15-RC-3203. RECOMMENDED ORDER It is recommended that M & W Marine Ways, Inc., of Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union membership, activities, or desires, or the union membership, activities, or desires of others of its employees. (b) Threatening to close its plant if the Union were voted in by the employees, or that it would discharge its employees if they voted for a union or engaged in union activities. 2. Take the following affirmative action which I find necessary to effectuate the purposes of the Act: (a) Post at its plant in Plaquemine Parish, Louisiana, copies of the attached notice marked "Appendix.-6 Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.7 IT IS FURTHER RECOMMENDED that 011 allegations of the complaint not specifically found to be violations of the Act be dismissed. IT IS ALSO FURTHER RECOMMENDED that the objections to the election in Case 15-RC3203 be overruled and that 6 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 be substituted for the words "a Decision and Order." T In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " M & W MARINE WAYS, INC. 201 the Regional Director for Region 15 certify the results of said election. APPENDIX NOTICE TO ALL EMPLOYEES to discourage membership in International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths , Forgers & Helpers, AFL-CIO, or any other union. All of our employees are free to become or remain union members, or to refrain from becoming or remaining union members as they may desire. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT try to discourage you in any desires you may have to be represented by a union, by threatening to fire employees if they vote for or support a union or by threatening to close the plant. WE WILL NOT ask our employees about their union desires or membership or the union desires or membership of other employees in order to discourage any union desires you may have. WE WILL NOT in any similar or related manner seek M& W MARINE WAYS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391.