G & H Towing Co.

G & H TOWING COMPANY 589 G& H Towing Company and General Drivers' Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Inland Boatmen 's Union of the Seafarers Interna- tional Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO and General Drivers' Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica G& H Towing Company and General Drivers' Local Union No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner and Inland Boatmen's Union of the Seafarers In- ternational Union of North America , Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, Intervenor. Cases 23-CA-2413, 23-CB-689, and 23-RC-2626 November 30, 1967 DECISION, ORDERS , AND CERTIFICA- TION OF REPRESENTATIVE By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On December 19, 1966, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent Employer and the Respondent Union had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that the Respondent Employer had not engaged in certain other unfair labor practices alleged in the complaint. In addition, the Trial Examiner found that certain instances of violative conduct by the Respondents during the critical preelection period did not war- rant setting aside the election held March 16 through April 8, 1966, and recommended that the objections to the election be overruled and an ap- propriate certification be issued. Thereafter, excep- tions to the Decision and supporting briefs were filed by the General Counsel and by General Drivers' Local Union No. 968, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Team- sters), Charging Party in Cases 23-CA-2413 and 23-CB-689 and Petitioner in Case 23-RC-2626, and by Inland Boatmen's Union of the Seafarers In- ternational Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (Seafarers), Respondent in Case 23-CB-689 and Intervenor in Case 23-RC-2626. Pursuant to the provisions of Section 3(b) of the Act, 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,2 and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent in- dicated below. The facts, set out more fully in the Trial Ex- aminer's Decision, are briefly these: The latest con- tract between G & H and the Seafarers, which covered both supervisors (licensed personnel) and employees (unlicensed personnel) on tugboats, ex- pired April 5, 1966. Most of the licensed personnel tried to break away in January 1966, forming a separate organization, Masters, Mates, and En- gineers Towboat Organization (MMETO). Its peti- tion for an election was dismissed by the Regional Director February 8 because it was for a unit of su- pervisors. The Teamsters, who from January had been organizing among unlicensed personnel, sup- ported MMETO's attempt to gain an election; the Seafarers opposed it. On a petition filed February 3 by the Teamsters, a consent election among un- licensed personnel was held March 16 to 17, with special voting provisions on April 8 for the crew of a tug at sea during the regular voting days. Since the Seafarers contract expired before the close of the election, extensions (carrying at least up to the time of the hearing) were negotiated and signed by the Respondent Employer and the Seafarers. The Seafarers won the election. After February 8, most licensed personnel from MMETO joined Marine Officers' Association (MOA), a Teamsters affiliate. MOA struck for recognition on April 7. That day there was a fight between MOA picketers and a group led by 1 The Trial Examiner inadvertently failed to rule in his Decision on Respondent Union's motion to dismiss the complaint in Case 23-CB-689 because the complaint covered matters not included in the charge. We deny the motion. The 8(b)(1)(A) and (2) allegations of both the charge and the complaint relate to conduct arising from the same campaign by the Respondent Union to interfere with employees in their choice of a bar- gaining representative . N.L R B v Kohler Company, 220 F 2d 3, 6 (C.A 7). 2 In his brief to the Board , counsel for Respondent Union made charges of "forgery," and said the Region was guilty of "collusion with the Charg- ing Party," that it "abused Board process" and that its conduct in this case "misuses public money and trust." We reject these accusations , none of which finds any support in the record , and rebuke counsel for injecting in- vective into the proceeding 168 NLRB No. 82 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seafarers Patrolman Butts. Pizzitola and Talevich, employees who favored the Teamsters, refused to cross the MOA picket line, which remained in ef- fect until about April 29, and participated in the picketing. They asked for their jobs back about May 3, but were told there were no jobs open for them at the time. The Teamsters filed charges and amended charges against the Respondents on June 9, 21, and 22, 1966, and filed objections to the election. A consolidated complaint was issued on July 21, charging the Respondent Employer with violations of Section 8(a)(1), (2), and (3) of the Act and the Respondent Union with violations of Section 8(b)(1)(A) and (2) of the Act. 1. The Trial Examiner found that the Respond- ent Employer did not violate Section 8(a)(2) and (1) by announcing or enforcing a discriminatory no- solicitation rule of general application. We agree. He also acknowledged the fact that Pizzitola, who was working actively for the Teamsters, was kept off company property for most of the election cam- paign, but he concluded the General Counsel had not proved that Pizzitola's exclusion violated the Act. For the reasons given below, we cannot agree with this conclusion. The Trial Examiner found that Galveston Port Captain Pressler, an official of Respondent Em- ployer, G & H Towing Company (G&H), expelled Teamsters adherent and organizer Pizzitola from a company tug January 26, 1966, saying, "I have got orders from higher up, that you have been passing Teamster junk around and you are going to have to get off company property." He also credited Piz- zitola's testimony that Tug Captain Robbins told him 2 days later "I heard that on your time off, they don't want you on these boats," and that on April 7 another tug captain, Murphy, said to him, "Dago,3 you are going to have to get off the boat, I got or- ders if you are on this boat on your time off, to either call the law or if you don't get off or give me any trouble, but to get you off this boat." The Trial Examiner nevertheless concluded that G&H in- hibited Pizzitola from organizing on board its ves- sels "because of a feared propensity to violence" rather than a desire to weaken the Teamsters cam- paign. The record leads us to a different conclusion. Pizzitola, a G&H employee for many years, was a key organizer for the Teamsters. He testified that he often spent off-duty time visiting and playing cards on other tugs. Within days of joining the Teamsters cause, he was compelled to leave one of the Company's tugs for passing out Teamsters material, and he later received two confirmations of the prohibition against his visiting company proper- ty during his time off. Pizzitola's exclusion from company tugs except when he was on duty himself is in marked contrast to the frequent visits for or- ganizational purposes of the Seafarers nonem- ployee representatives.' The Trial Examiner states that G&H was motivated by worry about Pizzitola's propensity for making trouble when it ordered that he be expelled from its Galveston tugs on January 26. This ex- planation of the Respondent's motivation is incon- sistent with Supervisor Pressler's statement to Piz- zitola that day that the Company wanted him off its property because he had been passing out Team- sters material. Further, the Trial Examiner credited Pizzitola's testimony about later confirmations from Captains Robbins and Murphy that G&H was continuing to bar him from organizing for the Team- sters on company property. The Trial Examiner erred in substituting a conjectural motive for G&H's acts when uncontradicted evidence proved its antiunion motivation. Moreover, the Respond- ent Employer was not deterred by any fear of violence from permitting Seafarers representatives to board the tugs, even though their organizing ef- forts were marked by threats and altercations. In view of the foregoing, we find that Pizzitola's propensity for violence was utilized by the Re- spondent Employer as a pretext, and that Pizzitola was excluded from the tugs because he was orga- nizing for the Teamsters. We accordingly find that the Respondent Em- ployer, by barring key Teamsters organizer Piz- zitola from its property during almost the entire election campaign while permitting nonemployee Seafarers representatives to carry on intensive elec- tioneering on the tugs, gave assistance to the Seafarers and thus violated Section 8(a)(2) and (1) of the Act. 2. We agree with the Trial Examiner that the Respondent Employer violated Section 8(a)(2) and (1) of the Act by dealing with a union negotiating committee that included supervisors.6 3. The Trial Examiner found that Respondent Employer's extension of its expired contract with the Seafarers from April 5, 1966, while the voting was still in progress, and in view of the Teamsters rival claim,7 violated Section 8(a)(2) and (1). He found that G&H had interfered with "the em- Pizzitola's nickname is Dago ' The Seafarers greatly increased the number of visits by its profes- sional personnel during the campaigning aboard G&H's tugs, and their visits were largely devoted to such activities as inducing employees and licensed personnel to sign petitions disavowing pledge cards or authoriza- tions they may have given previously to the Teamsters. 5 Pizzitola's actual character and propensities are irrelevant , the issue is whether G&H acted on the basis of a certain view of Pizzitola's character or, rather, because of a desire to weaken the Teamsters or- ganization drive We note the Trial Examiner's observation (at fn. 8 of his Decision) that Pizzitola withdrew from potentially violent confrontations during the election campaign 6 The Trial Examiner noted that a clarifications committee was active and a 1966 negotiating committee was formed within the 10(b) period, both containing supervisors These facts were alleged in the complaint and admitted by the Respondent Employer. ' The hearing took place August 30 to September 2, 1966, inclusive. G & H TOWING COMPANY ployees' right to freely select their own representa- tive without coercion or interference from any par- ty" by "bargaining" with the Respondent Union while there was a real question concerning representation. In our view, contrary to the Trial Examiner, the Respondents engaged in no bargain- ing, and their actions did not infringe on employees' rights. A review of the pertinent facts is useful at this point. The contract between G&H and the Re- spondent Union expired April 5; the representation election for the most part had been held in March, once was extended to April 8 only so as to include one crew that was at sea when the rest of the men voted. G&H and the Seafarers agreed after the March election to extend the contract through April. When the Teamsters objections to the elec- tion blocked certification of the winning Seafarers, further extensions were made, running at least to the date of the hearing. Unlike the situation in Shea Chemical Corpor- ation,I relied on by the General Counsel, where the employer and a union with a claimed card majority negotiated a "complete two-year collective bargain- ing agreement," the parties here only extended the termination date of their existing contract from time to time so as to avoid a lapse in contractual relations while awaiting resolution of the representation question. No changes were made in wages or any other contractual terms during this period. There is no evidence that the parties engaged in any bargain- ing, or even introduced preliminary proposals. Thus, consistent with what we said in Shea, G&H pursued a neutral course by neither "bargaining col- lectively with the incumbent or any other union" nor "refusing to permit the incumbent union to con- tinue administering its contract ...." We find no violation in the extensions of G&H's contract with the Seafarers. 4. We agree with the Trial Examiner's conclu- sion that the Respondent Employer did not violate Section 8(a)(3) and (1) by terminating Pizzitola's and Talevich's employment for refusing to cross the MOA picket line to report to work, and refusing-to reemploy them when they applied for work on or about May 3. We also agree that the Respondent Union did not violate Section 8(b)(1)(A) and (2) for its part in the same incidents. The Trial Examiner found that the refusals of Pizzitola and Talevich to come to work across the MOA picket line were not protected. We find it un- necessary to determine this question, and do not adopt the Trial Examiner's reasoning- in this respect. For, assuming without deciding that the 6 121 NLRB 1027 s 121 NLRB at 1029. We do not believe that Swift and Company, 128 NLRB 732, requires a different result. There we held that an employer violated Sec. 8(a)(2) by agreeing to extend a contract beyond its termina- tion, later amending it to improve wages and working conditions , and then signing a new master agreement - all while there was a real question con- 591 conduct was protected, we nevertheless conclude that Respondent Company did not violate the Act by refusing to reemploy them. At most, Pizzitola and Talevich placed themselves in the position of economic strikers by refusing to come to work across the MOA picket line, and Respondent was privileged permanently to replace them in order to continue its normal operations.10 Here the un- disputed evidence shows that the Respondent Em- ployer's tugs operated without interruption and with a full crew while Pizzitola and Talevich were out. When Talevich later asked a G&H official about getting his job back, he was told that he had been permanently replaced. The record indicates that Pizzitola was similarly replaced. Accordingly, we find that even if the conduct of these employees was protected, Respondent was acting within his rights by replacing them when they made them- selves unavailable for work, and that it was under no obligation to restore to them their former jobs and seniority positions when they finally signified their willingness to resume work. 5. We agree with the Trial Examiner's finding that the Seafarers violated Section 8(b)(1)(A) of the Act by threatening physical harm and inflicting inju- ries on supervisors and nonsupervisory employees of G&H. The incidents in which Seafarers Patrol- man Lightfoot told Chief Engineer Blanton "talk like that will get people in trouble" and said to Chief Engineer Holmes that "if those Teamsters come in here somebody will get hurt" are both 8(b)(1)(A) violations, as the Trial Examiner found. We also af- firm his finding that the Respondent Union, through its agent, Patrolman Butts, was responsible for the April 7 picket line violence against striking super- visors, in violation of Section 8(b)(1)(A). Although the coercive conduct was directed mainly at licensed personnel, we find, in agreement with the Trial Examiner and for the reasons stated in his Decision, that it had the natural and foreseeable ef- fect of coercing employees in the exercise of their, rights and therefore was violative of Section 8(b)(1)(A). The Trial Examiner found that Lightfoot's state- ment to employee Talevich, "I will be back down here later and take care of you," was too ambiguous to warrant a finding that it was a threat. In assessing the different versions of this incident given by the two participants, however, the Trial Examiner re- jected Lightfoot's claim that the remark was made in connection with rectification of Talevich's wel- fare fund problems, finding Lightfoot "evasive." He credited instead Talevich's testimony that Lightfoot spoke, shaking his finger in Talevich's face, after he cerning representation. The short-term extensions in the instant case, preserving the contractual status quo pending resolution of the representa- tion matter, are plainly distinguishable. 10 See Redwing Carriers, Inc.,'137 NLRB 1545, The Cooper Ther- mometer Company, 154 NLRB 502, and cases cited in fn. 3, thereof. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been told of employee dissatisfaction with the Seafarers. The Trial Examiner's credibility findings on this point preclude him from relying later in his Decision on the discussion of Talevich's welfare complaints to show an ambiguity in Lightfoot's statement. We accept the finding that Lightfoot spoke after an angry exchange about abandoning the Seafarers, and we hold that his statement that he would "take care" of Talevich because of Talevich's dissatisfaction with the Seafarers was a threat and violated Section 8(b)(1)(A). 6. We shall overrule the objections to the elec- tion, and order the issuance of an election cer- tificate, as recommended by the Trial Examiner. We agree with the Trial Examiner's findings that there was no evidence of a no-solicitation rule of general application, that some incidents of pressure by the Seafarers occurred either before the critical preelection period or at a time when they could have had little effect on the outcome, and that the competing unions had sufficient opportunity to present their arguments to the voters. Although we have found that G&H unlawfully refused to permit Pizzitola to solicit for the Teamsters on company property while he was off duty, and we accordingly find some merit in the objections based thereon, we do not believe this single limitation on the Team- sters campaign prevented the employees from re- ceiving an adequate presentation of the Teamsters position and arriving at a true and uncoerced ex- pression of their own choice. Uncontradicted testi- mony establishes that many supervisors spoke in favor of the Teamsters on the tugs, and that Team- sters material was posted on bulletin boards in the boats. After Pizzitola was excluded from company property - he continued to campaign from nearby dock areas and the like - the Teamsters made no at- tempt to send in other organizers. We cannot assume that such organizers would have been barred by G&H. We agree with the Trial Examiner that the Lightfoot threat that "talk like that will get you in trouble" cannot be considered as a basis for setting aside the election, since it occurred before the February 3 filing of the Teamsters petition." i We find that Lightfoot's threat to Holmes that "some- body will get hurt" was an isolated occurrence, as the Trial Examiner concluded, and we further agree that only limited weight can be given to the April 7 picket line incident, which occurred after most of the ballots had been cast.' 2 CONCLUSIONS OF LAW We adopt the Conclusions of Law from the Trial Examiner's Decision, with the following modifica- tions: 1. In Conclusion 3, delete the words "extending its contract with the Respondent Union during the existence of a real question concerning representa- tion" and insert the words "discriminatorily limiting Teamsters organizer Pizzitola's access to its pro- perty." 2. In Conclusion 6, change "Respondent" to "Respondents," add a period after the word "Act," and omit the remainder of the recommended Con- clusion. THE REMEDY Having found, in agreement with the Trial Ex- aminer, that Respondents have engaged in certain unfair labor practices, we will adopt the Trial Ex- aminer's recommendation that they be ordered to cease and desist from such practices and post ap- propriate notices. Since we have found certain addi- tional unfair labor practices, among them the dis- criminatory barring of Pizzitola from company pro- perty during his off-duty hours, we will modify the Recommended Order by adding a requirement that G&H cease and desist from such conduct against Pizzitola or any other employee. ORDERS Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner directed to the Respondent Union, and adopts as its Order the Recommended Order of the Trial Examiner directed to the Respondent Employer, as modified below, and hereby orders that the Respondents, In- land Boatmen's Union of the Seafarers Interna- tional Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, and G & H Towing Company, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Orders, as herein modified: 1. Substitute the following for section 1(a) in the Recommended Order directed to the Respondent Employer: "(a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in 11 Goodyear Tire and Rubber Company, 138 NLRB 453. The addi- tional 8(b)(1)(A) violation we have found in Lightfoot's threat to "take care" of Talevich also occurred before the representation petition was filed, and similarly cannot be considered as a basis for setting aside the election. 12 This incident might have affected the six votes cast on April 8 - although no evidence was presented to show that the late voters knew of it - G & H TOWING COMPANY 593 Section 7 of the Act, by discriminatorily excluding George Pizzitola, or any other employee, from its property on nonworking time." 2. Substitute the following for section 1(b) in the Recommended Order directed to the Respondent Employer: "(b) Interfering with the administration of the Inland Boatmen's Union of the Seafarers Interna- tional Union of North America, Atlantic, Gulf, Lakes and Inland Waters District , AFL-CIO, by conducting collective -bargaining negotiations with any committee representing said Union which in- cludes in its membership any supervisors within the meaning of Section 2 (11) of the Act." 3. Substitute the following for the first indented paragraph of Appendix B: WE WILL NOT interfere with , restrain, or coerce our employees in the exercise of their rights guaranteed them in Section 7 of the Act, by discriminatorily excluding George Pizzitola, or any other employee, from our property on such employee's nonworking time. 4. Substitute the following for the second in- dented paragraph of Appendix B: WE WILL NOT interfere with the administra- tion of the Inland Boatmen 's Union of the Seafarers International Union of North Amer- ica, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, by conducting collective- bargaining negotiations with any committee representing said Union which ,includes in its membership any supervisors within the mean- ing of Section 2(11) of the Act. Cases 23-CA-2413 and 23-CB-689, on charges and amended charges dated June 9, 21, and 22, 1966, alleges in substance that Respondent Employer engaged in unfair labor practices proscribed by Section 8(a)(1), (2), and (3) of the Act and that Respondent Union engaged in unfair labor practices within the meaning of 8(b)(1)(A) and (2) of the Act. Thereafter, consolidated therewith for hear- ing, report , and recommendations were certain objections to conduct affecting the results of the election in Case 23-RC-2626. Both Respondents answered, denying the unfair labor practices alleged. Respondent Union's mo- tion to intervene in Case 23-CA-2413 was granted prior to the hearing by the Regional Director. Upon the entire record in the case and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Employer at all times material has been a Texas corporation operating out of the ports of Freeport, Houston, Corpus Christi, and Galveston, Texas, the business of harbor, deepsea, and foreign towing. Re- spondent Employer annually provides services valued in excess of $50,000 to enterprises engaged in interstate or foreign commerce. Respondent Employer, at all times material, has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent Union and the Charging Party both are and have at all times material been labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES CERTIFICATION OF REPRESENTATIVE It is hereby certified that the Inland Boat- men's Union of Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, has been designated and selected by a majority of the employees of the Employer in the appropriate unit as their represent- ative for the purpose of collective bargaining and that, pursuant to Section 9(a) of the Act the said labor organization is the exclusive representative of all the employees in such unit for purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WELL, Trial Examiner: This consolidated proceeding was heard at Houston, Texas, on August 30 thru September 2, 1966 , inclusive, pursuant to due notice. The consolidated complaint, which was issued on July 21, 1966, together with an order consolidating A. Background For many years , the Respondent Employer has been engaged in the tugboat business in various ports in the State of Texas. The Respondent Union has represented all operating personnel of the Respondent Employer under a succession of contracts going back at least to the early 1950's. The contract entered into in April 1963, which was placed in evidence, provides for recognition of the Respondent Union as representative of all personnel on tugs and other vessels owned and operated by the Respondent Company. The contract contains provisions for all licensed and unlicensed personnel which includes the captains , mates, and engineers, both chief and assistant, all of whom are stipulated to be supervisory, as well as the deck hands, oilers, and cooks who comprise the unlicensed personnel and who are employees within the meaning of the Act. In early January, or earlier,' licensed employees of the Respondent , seeking to sever themselves from the unit represented by the SIU, formed an organization which they called the Masters, Mates, and Engineers Towboat Organization (hereinafter MMETO) and on January 6, 1966, filed a petition with the National Labor Relations Board seeking an election among Respondent's licensed personnel. Both unions involved herein intervened in that ' Unless otherwise specified, all dates are in 1966. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case. The petition was dismissed on February 8 on the grounds that the unit consisted of supervisory employees. In the meantime, sometime in January, the Charging Party commenced an organizing campaign among the un- licensed employees of Respondent which was supported to some extent by MMETO, and resulted in the filing by the Charging Party of the petition in Case 23-RC-2626. During the month of January and at least until Febru- ary 8, there was widespread organizing activity taking place on all the company vessels,2 during the course of which licensed personnel sought support both for Respondent Union and for MMETO among themselves; licensed personnel sought support among unlicensed per- sonnel both for the Teamsters, the Charging Party and for the Respondent Union and unlicensed personnel sought support both for and against the Respondent Union. At the same time, Respondent Union's patrolmen and of- ficers freely boarded the Company's vessels, both for the purposes normal to its incumbency as the bargaining representative of both licensed and unlicensed employees and for the purpose of campaigning among both licensed and unlicensed personnel in an effort to retain its incum- bent status as their collective-bargaining agent. The record is clear that the incidence of visits by Respondent Union's professional personnel on board the vessels was greatly increased during this period of time over that preceding this period of time. While the Respondent Union appeared to attempt to show that its increased visits to the vessels were due solely to its attempt to ad- minister its contract with the Respondent Employer and to divine from the licensed and unlicensed personnel their opinions as to goals to be sought by Respondent Union in negotiations for a new contract, it is clear that their activi- ties consisted to a large extent in attempting to counteract the organizing campaigns of the Charging Party and MMETO. For example, commencing with the filing of the petition on February 3, Respondent Union's patrol- men visited the various vessels of the Respondent Em- ployer with a petition addressed to the Regional Office of the Board stating in essence that the signers had not signed pledge cards or authorized the Charging Party to represent them in collective bargaining and stating that if their "names should appear on any such pledge cards (such authorization) is hereby revoked." Eight sheets of such a petition were entered in evidence (G.C. Exhs. 6a-h) bearing the names of 117 persons, each with a so- cial security number and a rating. The ratings indicate that 43 or 44 of the 117 signers were licensed personnel. Business Agent Walter Breeland of the Charging Union, who was in charge of the Charging Union's drive among the unlicensed personnel, testified that he made no attempt to board any of Respondent Employer's vessels for the purpose of organizing. There is no indication on the record that any other nonemployee representatives of the Charging Union took part in the organizing campaign. Pursuant to a stipulation for certification on consent election, an election among the unlicensed employees commenced on March 16 and 17. Because one vessel was at sea during this period it was agreed that the ballot- ing polls would be continued until its return on April 8, at which time the unlicensed personnel on that vessel voted when it arrived in Galveston Harbor. In the meantime on March 22, by a letter of agreement, the Respondent Em- ployer and Respondent Union agreed to extend their con- tract which was due to expire on April 5 until April 30. Thereafter, the contract extension continued at least until the date of the hearing. At sometime between February 8, when MMETO's petition was dismissed by the Acting Regional Director, and April 7, the licensed personnel sought representation by the Marine Officers' Association, a Teamsters af- filiate. The MOA demanded recognition and on April 7, commenced to strike in support of its demand. On the morning of April 7 when the strike started, a fight took place at the Company's dock in Houston, between the picketing licensed personnel and a group of partisans lar- gely unidentified but apparently lead by the Respondent Union's Patrolman Butts. Two unlicensed employees, George Pizzitola and Leonard Talevich, both of whom had been active supporters of the Charging Union, refused to cross the picket line and commenced par- ticipating in the picketing. The strike apparently ended on April 27 or 29. On May 3, Pizzitola and Talevich at- tempted to return to work but were told that their jobs had been filled. The record does not disclose either the number or per- centage of the licensed personnel that took part in the strike, nor whether any of them returned to the employ of Respondent Employer after the strike. The strike was ap- parently unsuccessful. It appears that Respondent Em- ployer still recognizes the Respondent Union as the representative of its licensed personnel. In order to con- tinue its operation, Respondent Employer promoted some of its unlicensed personnel to supervisory positions and apparently recruited other employees both licensed and unlicensed. It appears that at the time the strike ended and at all times during the strike, all vessels were in normal operation, although the record does not dis- close whether they were fully manned.3 Timely objections were filed by the Charging Party, Petitioner in the representation case, alleging in broad, conclusionary language, that the Employer and the Inter- venor engaged in objectionable conduct and alleging, specifically, (a) disparate treatment in permitting super- visory employees to campaign during work hours for the Intervenor but not for the Petitioner, (b) the promulga- tion and enforcement of a discriminatory solicitation rule, (c) the refusal of access to Respondent's premises to representatives of Petitioner, while permitting Inter- venor's representatives access at all hours, (d) engagement by officials, adherents, and representatives of the Intervenor in a course of threats and violence and intimidation of both supervisory and nonsupervisory em- ployees, (e) the assault on April 7, by Intervenor's representatives on licensed personnel in the presence of unlicensed personnel, (f) the discharge of licensed per- sonnel who were leading the opposition against further representation by the Intervenor, (g) subjection of em- ployees to coercive interviews concerning voting inten- tion and union activities, (h) intimidation and coercion by both the Employer and the Intervenor by threats of loss of benefits, loss of jobs, and physical violence, and finally, 2 Captain Leech testified that Respondent Employer operated 24 tug- boats during the relevant period. 3 Captain Leech testified without contradiction that there is no legal requirement that any licensed personnel have Coast Guard licenses on board the Company's vessels G & H TOWING COMPANY (i) by the Employer hiring additional employees through Intervenor's hiring hall for the purpose of influencing the election. B. Issues In addition to the issues raised by the objections, the complaint raises three general issues: 1. Whether the Employer assisted the Respondent Union by: (a) enforcing a no-solicitation rule discrimina- torily against the Charging Party; (b) extending the terms and conditions of its preexisting contract during the pen- dency of a real question concerning representation; and (c) by bargaining with a committee representing the Union, which included supervisors. 2. Whether Respondent Employer and Respondent Union have violated Section 8(a)(3) and Section 8(b)(2), respectively, by the discharges or failure to reinstate em- ployees Pizzitola and Talevich. 3. Whether the Respondent Union violated Section 8(b)(1)(A) of the Act, by threats to employees on or about January 1 and February 8, and4 by the physical violence involved in the April 7 fight at the Houston facilities. C. The AllegedAssistance 1. The no-solicitation rule On January 26, Pizzitola commenced working for the Teamsters on his time off. He went aboard the Respond- ent Employer's vessels based at Houston and dis- tributed Teamsters literature to the employees during the early morning, while the vessels were tied up at the dock. No resistance to his organizing effort occurred. There- upon, about 9 a.m. he set out for the Company's Gal- veston dock about 50 miles away. About noon, he went on board the company vessels at the Galveston dock aboard the tug Laura Haden. He testified there was a cook on the Laura Haden that "started mouth- ing off, so I just left the galley and I went over to the tug Grampus." While talking to one of the captains on the Grampus Pizzitola heard his name called over a public address system, and told the captain "I guess they're going to probably ask me to get off, don't want me passing this Teamsters stuff around." Pizzitola attempted to slip off the Grampus without being caught but ran into "Slim" Pressler, the port captain at Gal- veston, and Harry Chapin, the director of marine per- sonnel and safety at Galveston. According to Pizzitola, Pressler said "Dago,5 I have got orders from higher up, that you have been passing Teamster junk around and you are going to have to get off company property." Piz- zitola answered, "Mr. Pressler, I'm going, I will be glad to leave." As Pizzitola was leaving, the cook, who was identified as one Stubblefield, ran up "cussing and raising the devil" and said "can't we do something with this man," Pressler said "George is leaving I told him to leave and he is go- ing," and the cook said in effect, "can't we keep this man from passing around this kind of trash and junk and stir- ring these men up, there ought to be something done about this." Pizzitola testified that thereafter, he made no attempt to organize on board the company vessels. How- 4 Subpar. 9(c) of the complaint alleging an additional threat was withdrawn by the Charging Party upon the failure of a witness to appear 595 ever, on the second day thereafter, his next watch, he had a conversation with Captain Robbins, who was ap- parently the master of the tug on which he was employed and asked Robbins "Robbins, have you heard anything about me not supposed to be aboard the-boats on my time off." Robbins answered "Yah, I heard that on your time off, they don't want you on these boats." On April 7, the day the strike started, Pizzitola went aboard the tug Marathon. Murphy, who until that morn- ing had been an unlicensed employee but became a cap- tain with the commencement of the strike, came over to Pizzitola and said, "Dago, you are going to have to get off the boat, I got orders if you are on this boat on your time off, to either call the law or if you don't get off or give me any trouble, but to get you off this boat." Pizzitola told Murphy he was going to get off and apparently started ar- guing with Murphy when Respondent Union's Patrolman Lightfoot came up. Pizzitola addressed Lightfoot and asked him, "Did you make the remark that you would run me off the dock up there." Lightfoot answered, "I sure did." Pizzitola rejoined, "Well, you're a liar." Murphy stepped in between the two and said, "Dago, don't start nothing now." Lightfoot said, "Well, you knew when to leave didn't you" and Pizzitola said, "Ya, I'm smart enough to leave, I figured he was going to get the goon squad, I'm not just dumb enough to stay there." At this point Pizzitola left the Marathon. Captain Leech testified that he was in the Houston of- fice on the morning of July 26 with Captain Wilson, the director of safety, and Wilson received a telephone call from a cook, Stu Monast. Wilson talked to Monast and then told Leech "we have a commotion going on on the tubs in Galveston and Pizzitola is down on the boat, he's causing a disturbance." Leech testified that he ordered Wilson to get on the telephone and call his office in Gal- veston and "Get the man off the boat right away because we don't want any trouble down there." Wilson called Harry Chapin, his assistant in the Galveston office, and told Chapin to tell Pizzitola to get off the boats. Asked whether at any time during these telephone calls or other- wise the name of the Teamsters Union or any union was mentioned, Leech testified, "I never heard it." Asked, "As far as you were concerned at that time it was nothing to do with any kind of union of any kind" he answered, "No sir." Leech further testified that until he received a letter from Teamsters attorney, Wolf, on the 28th, that he had no information that Pizzitola was working for the Teamsters or had any connection with the Teamsters. Leech further testified that at no time did G & H Towing Company have a no-solicitation rule and that no steps had been taken to prevent the Teamsters or any other union from soliciting membership of G&H employees. Chapin was called and testified that he received a call from Cap- tain Wilson on January 26, and that Wilson "indicated to me over the phone that he had information that there were unauthorized personnel on the boat, he didn't give me any name. He asked me to go down and see what I could find out." Chapin stated that he went down to the boats and saw George Pizzitola coming off one of them. Pizzitola commented "I am leaving now," whereupon Chapin assumed that he was the unauthorized personnel that Captain Wilson spoke of and went back to his office. On cross-examination, Chapin testified that he saw at the hearing 5 Pizzitola's nickname is Dago. 336-845 0 - 70 - 39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pressler on this occasion and "obviously he (Pressler) had gotten a phone call at or about the same time" or so he assumed. He stated that he did not know whether or not Pressler had a conversation with Pizzitola before he (Chapin) saw Pizzitola, and that he would not necessarily have heard whether Pizzitola was paged that morning over the loudspeaker system. He further testified that he, Pressler, and Pizzitola walked off the boat together and that a cook named Stubblefield came out of the galley of the tug Wansley, but he did not recall Stubblefield saying anything. Pressler was never called as a witness nor was Murphy or Robbins. Discussion From the above incidents General Counsel and the Charging Party deduce the existence of a no-solicitation rule. It is clear that at all times personnel on board the various tugs operated by the Respondent Employer talked freely about the campaign, urging each other to support the various parties in the two contests. It is equally clear that written material supporting both the Teamsters and the Respondent Union were posted on board some, if not all, of the vessels on the bulletin boards and there is no evidence of any official action on the part of Respondent Employer to inhibit such posting or such discussion. Teamsters Business Agent Breeland testified that he never made any attempt to go on board any com- pany vessel, not because of any purported rule, but because he felt that it was not necessary.6 Breeland also testified in response to a question whether anyone else who was soliciting for the Teamsters complained about being unable to see unlicensed people on the boat, "Again, yes, but not specifically that I remember, like, to call names, or that I could pin down." It is clear then that the only incidents on which General Counsel's theory is based-are those involving Pizzitola; there is no evidence of any other manifestation of a no- solicitation rule. I cannot deduce a rule from one application. I credit Pizzitola that Pressler told him that he had to get off the boat and stop circulating the Teamsters literature on board boats, and I credit Pizzitola's testimony that on two later occasions, he was informed to the same effect. None of these statements to Pizzitola are denied and there is no showing that Pressler, Robbins, or Murphy, or any of them were unavailable at the time of the hearing. In view of the fact that apparently anyone other than Pizzitola was permitted to organize on board the vessels on or off their working time, I am led to inquire why Pizzitola's or- ganizing efforts were singled out by Respondent Em- ployer. Respondent Employer contends that Pizzitola was warned off the boat on the first occasion because of his propensity for making trouble. This propensity was in my opinion demonstrated to some extent by Pizzitola's ad- mitted record of conviction for a violent assault.7 It is also 0 Breeland testified "It seemed rather foolish at the time to pursue something that would get me on one of the boats." 7 Pizzitola admitted that he had spent 87 days in jail when he was con- victed of entering a home with a pistol and assaulting someone therein. B Which probably had no substantial basis in fact in view of the fact that on each occasion when violence , against the background of the union or- ganizing campaign, appeared imminent , Pizzitola withdrew to avoid trou- ble. clear from his reported conversations with Lightfoot that Pizzitola was to some extent a pugnacious person and that on January 26, when he was asked to leave the Com- pany's boat in Galveston, he had some sort of an argu- ment with a cook aboard one of the boats which caused the cook to act in an excited fashion. From his attitude under cross-examination, it appears to me that he is of a rather excitable temperament and feels deeply about the issues in the instant case. I am convinced and I find, on the record before me, that only George Pizzitola was in- hibited in organizing on board the Company's vessels and that this inhibition was imposed upon him by the Em- ployer because of a feared propensity to violence." Accordingly, I find that the General Counsel has not proved by a preponderance of the evidence that a no-sol- icitation rule as such was in effect at any time and I shall recommend that the complaint be dismissed insofar as it so alleges. 2. The inclusion of supervisors on the bargaining committees It is admitted that the Respondent Employer and Respondent Union historically have bargained with a union committee which included six employees, one each elected by the masters, the mates, the engineers, the deck hands, the oilers, and the cooks. Professional union agents were spokesmen for the negotiating team but it ap- pears that, at least to some extent, the employee and su- pervisor members of the committee had a voice in negotiations for new contracts and in the continuing clarifications committee to which disputes regarding the contract were referred during the life of the contract.9 The General Counsel contends that by negotiating with such a committee the Respondent Employer violated Section 8(a)(2) of the Act under the doctrine set forth by the Board in the Nassau and Suffolk case.' 0 The Employer contends that inasmuch as the unit in- cluding supervisors was certified by the Board (prior to 1947) and has so operated since, coupled with the fact that men commonly transfer or are transferred between licensed and unlicensed (i.e., supervisory and nonsuper- visory) positions, there is no failure of the arrangement to meet the test of the law. Employer further questions "the right of the Charging Party or the General Counsel to challenge the arrangement" but cites no authority for this proposition. The Respondent Union contends that an ex- ception should be carved out of the Nassau rule, arguing that because there was a strike in 1957 and a last minute settlement before strike in 1963, the parties have always engaged in arm's-length bargaining and until supervisory participation is shown to be "an actual interference with employee rights, there is no logical reason to disturb the committee makeup." Respondent Union also argues that because of the historical composition of the unit, super- visors should have a voice in the contract which covers them and argues that each delegate represents only his own group of employees. Respondent Union finally con- 9 No 10(b) issue is raised by the parties . In any event it appears that although no new contract had been negotiated within the 10 (b) period, the clarifications committee was active within that time and a negotiating committee was formed preparatory to the 1966 contract negotiation which included both licensed and unlicensed personnel. 10 Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174, 187. G & H TOWING COMPANY 597 tends that the Nassau case is distinguishable because there supervisor dominated the collective-bargaining negotiations. In the Nassau case, the Board found a violation in the fact that the employer had bargained with a union negotiating committee which included master mechanics who comprised the first line of supervision on the em- ployer's construction crews. The Board stated in Nassau: Despite the large measure of control exercised over master mechanics by the Union, the mechanics remained in part agents of their employers with a resulting divided loyalty and interests.... employees have the right to be represented in collective-bar- gaining negotiations by individuals who have a sin- gle-minded loyalty to their interests. Conversely, an employer is under a duty to refrain from any action which will interfere with that employee right and place him even in a slight degree on both sides of the bargaining table. There is no evidence that em- ployers were responsible for the naming of any master mechanics to the Union's negotiating com- mittee but they were under a duty, we think, when confronted with the union negotiating committee which included their own agents, to protest the com- position of the committee and to refuse to deal with it because it was tainted with an apparent employer interest. The Board found that by failing to register such a protest the employer interfered with the administration of the union in violation of Section 8(a)(2) and (1) of the Act. t' The Board of course is not a slave to its rules nor so strictly bound by precedent that it cannot make ap- propriate exceptions. I have considered the various argu- ments advanced and conclude that no exception is here warranted. Respondent Employer questions the right of the Charging Party or General Counsel to challenge the arrangement. The Nassau case and the other cases cited above indicate that the Board has this right and has exer- cised it. The argument that this is an historical arrange- ment was raised and considered by the Board in Nassau in which there was also an historical arrangement and similarly the factor of what the Respondent Employer terms "The elastic flow of men between licensed and un- licensed positions and vice versa" too was present in the Nassau case. Respondent Union's attempt to distinguish Nassau because in that case supervisors "dominated the collective bargaining negotiation" must fail. The holding in Nassau is specifically to the contrary (p. 187) where the Board pointed out that two of the eight members of the bargaining committee were low-grade supervisors and there was no evidence of domination by supervisors. Similarly, in the Powers case, cited above, the Board found a violation even though the single supervisor on the bargaining committee was a borderline supervisor. Regarding they argument that the committee makeup should not be disturbed unless supervisory participation is shown to be an actual interference with employee rights, it is the' sense of the cases cited above, in my opinion, that it is the act of the Employer in acquiesing that constitutes the violation herein. The rule as stated and restated by the Board requires no showing that the danger which led the Board to impose the rule must be realized before the Board can act. In neither of the cases above cited in which a violation was found is there any hint that the presence of an employer's agents on the bar- gaining committee led to any denegation of the em- ployees' position in negotiations . Evidence that super- visory negotiators in fact actively coerced employees' negotiators by threats and promises is not necessary. It is the more subtle interference of divided loyalty with which the Board is concerned. The Respondents make much of the fact that each delegate is said to represent only his group, i.e., cooks represented only cooks, and captains only captains, and indeed there are portions of the record that would seem to indicate that this is the fact but these portions refer to specific negotiations regarding cooks' or captains' wage rates and conditions of employment peculiar to the grade or position in the Employer's employment. It is clear that the individual groups did not conduct separate negotia- tions but rather that a union spokesman spoke for all per- sonnel in a group negotiation and it is clear that many if not most of the provisions in the contract are common to all employees, whether cooks or captains. In fact, the evidence indicates that all the negotiators voted on each of the provisions, that is to say all had an equal voice in the vote as for example to the rates paid to mates. Presumably, the engineers' delegate would have a voice in the provisions regarding the welfare plan or vacation pay or salvage claims, each of which affected engineers' conditions of employment as well as oilers. It appears therefore, to me, that the argument that each delegate represented only his own group must fail because each delegate in representing his own group necessarily must have an effect as to all provisions in the contract common to two or more groups. Finally, the argument that super- visors, since they are covered by the contract, should have a voice in its negotiation, might have appeal if there were any reason why supervisors must be covered by the contract, but there is none. The law envisages the contra- ry situation and there is no inherent disability in the con- cept of a separate contract for supervisors. I find, under Nassau, a violation of 8(a)(2) and (1) is clearly shown. 3. The extension of the 1963 contract General Counsel contends, under the rule in Shea Chemical Corporation, 121 NLRB 1027, that Respond- ent Employer violated Section 8(a)(2) by entering into an agreement with the Respondent Union on March 22, extending the 1963 contract, which was due to expire on April 5, thru the month of April and thereafter until the date of the hearing. Respondent Employer contends that its extension of the contract was lawful and necessary stating, "We are certain the Trial Examiner is entirely familiar with the no- contract, no-work idea. The alternative to extending the contract was to close down the operations." There .is no evidence in the record to indicate that the "no-contract, no-work idea" was in any way concerned herein, nor is 11 The Nassau rule was considered and sustained in Anchorage Busi- nessmen's Association, 124 NLRB 662; National Gypsum Company, 139 NLRB 916; Banner Yarn Dyeing Corporation, 139 NLRB 1018, and the Powers Regulator Company, 149 NLRB 1185 The rule as refined by these cases was stated by the Board in Powers to be as follows: when an employer , without protest , deals with a union negotiat- ing committee which includes a supervisor in its membership, the em- ployer thereby interferes with the administration of the union in viola- tion of Section 8(a)(2) and (1) of the Act 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there any evidence to establish that the Employer's only alternative to extending the contract was to close down the operations. The Respondent Union argues that no real question concerning representation existed as required under the Board's Decision in William Penn Broadcasting Com- pany, 93 NLRB 1104. Thus, the Respondent Union ar- gues that the election having been conducted and a majority of the ballots having been cast for Respondent Union, it was free to bargain with the Respondent Em- ployer even though objections to the election are pending before the Board citing N.L.R.B. v. National Container Corp., 211 F.2d 525, 536 (C.A. 2). The Respondent Union argues that areal question concerning representa- tion can exist only if the objections pending before the Board are found to be meritorious. Thus, since Respond- ent Union contends that the objections are, in fact, without merit (which will be dealt with below), no question concerning representation, in fact, existed at the time the contract was extended, nor at any time since. In National Container Corporation, 12 the respondent took precisely the same position of that taken by Re- spondent Union herein, and the Examiner found that there was no violation under the Midwest Piping rule 13 because the employer proved to be correct in its judgment that the objections were without merit. The Board found, however, that the objections should be sustained and therefore found it unnecessary to decide whether the Wil- liam Penn case was properly applied by the Trial Ex- aminer. The Board instead found that the question con- cerning representation had not been finally determined, as meritorious objections were then still unresolved and no final action had been taken by the Board in the represen- tation proceeding. The court, in considering the same issue on appeal, stated _ National, by entering into a collective bargaining agreement with Local 444 during this very period, wrongfully usurped this function, in effect decided for itself that Local l's objections had no merit, and determined that recognition of Local 444 was ap- propriate. The finding of the Board that in so acting National violated -the neutrality which the Act im- posed upon it, in violation of Section 8(a)(1) of the Act, and contributed unlawful assistance to Local 444, in violation of Section 8(a)(2) of the Act, was clearly proper. Thus both the Board and the court decisions leave open the question whether if the objections were found to have no merit, a violation would take place. I found no case in which the Board has considered the issue that it expressly reserved in National Container (supra). The rule -con- tended for Respondents, in effect, is that a question con- cerning representation permits an employer to bargain with one or the other union subject to the peril of being found guilty of a violation if he guesses wrong. Here, for instance, if the Board were to find that the objections have merit, and order a new election, Respondent Em- ployer would be guilty of an unfair labor practice in renewing its contract. On the other hand, if the Board were to find that the objections have no merit, then no real question concerning representation could have ex- " 103 NLRB 1544. 13 Midwest Piping & Supply Co., 63 N LRB 1060, 1070. 14 St Louis Independent Packing Company, 129 N LRB 622; Reliance Fuel Oil Corp., 129 NLRB 1166; Dui akte Co, Inc, 132 NLRB 425. isted and the Respondent is guilty of no violation in ex- tending its contract. The Board has had occasion to consider whether the fact that the assisted union subsequently won the election rendered the question concerning representation "un- real" and decided the question in the negative.14 The ra- tionale of the Board's rule is that an employer may not in- terfere with the employees' free choice by itself disposing of the issue raised by a valid petition. It is the preserva- tion of the employees' right with which the Board is con- cerned; clearly the intent of the employer is irrelevant. The Respondent Employer cannot be heard to say that no issue was raised by the Charging Party's objections to the election, when the Regional Director, on June 23, found that the objections and the evidence bearing thereon raised substantial and material issues of fact, credibility, . and policy which can best be resolved by a hearing and no objections were filed thereto by any party. As I understand the cases, the vice of an employer's ac- tion in bargaining with the incumbent during the existence of a real question concerning representation is not that the employer might or does guess wrong, thereby favor- ing a minority union, but rather that it conflicts with the public policy, to give the maximum protection to the em- ployees' right to freely select their own representative without coercion or interference from any party. The em- ployer may not arrogate to itself the jurisdiction with which Congress has invested the Board, to determine, under its laboratory conditions, the employees' choice and to further determine whether those laboratory condi- tions existed at the time the choice was made. Respondent Employer and the Respondent Union further contend that, assuming there was no merit to the objections, the action of Respondent Employer in signing the extension agreement could not have affected the results of the election inasmuch as all ballots had been cast at that time with the exception of six which remained to be cast when the absent boat returned to Galveston Harbor and which were subsequently cast on April 8. There is no evidence whether or not the six voters on the absent boat knew about the signing of the contract. The General Counsel points out that the boat was in radio contact with the shore and assumes therefrom that, they did. Respondents apparently assume that they did not. I see no valid issue raised by the argument. No one knew, on March 22, what the balloting showed. For all anyone knew, the six votes for which the election was kept open could have been decisive. Similarly, there is no evidence that any attempt was made to keep the extension secret, and the very fact that the Board agent and presumably representatives of each of the parties of the election necessarily had to reach the six employees before they could vote, render it possible and perhaps probable that they would have learned of the extension of the contract. If as the Employer contends, the employees were swayed by the "no-contract, no-work idea" this might very well have been the first question they asked, since the contract would have expired prior to their landfall. I do not find the argument persuasive. As the Board found in cases cited above, 15 the question concerning representation remains a "real" one even though the assisted union sub- 15 St Louis Independent Packing Company, supra; Reliance Fuel Oil Company, supra, Duralite Co., Inc, supra; and Iowa Beef Packers, Inc., supra G & H TOWING COMPANY sequently won the election. In other words, the gamble does not become valid merely because the Respondent Employer won. In accordance with the above discussion, I find that, whether or not the objections are found to have merit, the Respondent Employer, by extending its contract during a period of time when a real question concerning representations existed, violated Section 8(a)(2) and (1) of the Act. 16 D. The Discharges of Pizzitola and Talevich Pizzitola and Talevich were both unlicensed employees each with considerable seniority with the Respondent Employer. Both were involved in the Teamsters organiz- ing effort and both took part in the tallying of the ballots on April 8. On April 7, when the licensed personnel raised their picket line, Pizzitola and Talevich refused to cross it. It is clear from the record, in each case, that their refusal was based on their friendship for and sympathy with the licensed personnel in their efforts to break away from the Respondent Union. There is no evidence that either of them was motivated by any hope or expectation that the strike would result in any change in their own representa- tion, wages, or working conditions. Each was offered an opportunity to continue his employment. On the day after the tallying of the ballots, both Talevich and Pizzitola joined picketing and each continued picketing until the strike ended on or about April 29. It appears that neither was informed that the picket line was going to be taken down on the 29th and each became aware of it shortly thereafter. At this time, each communicated with Captain Wilson who was in charge of personnel for the Respond- ent Employer. Pizzitola testified that he asked Captain Wilson if he still had a job or was he fired, and Wilson an- swered that he could not say that Pizzitola was fired but he had been replaced permanently, and he would be glad to accept Talevich back to work for the Company but Talevich would have to go through the SIU hiring hall first. Captain Wilson also stated to Talevich that since he had not shown up for work for a month or more, he had been replaced. Pizzitola called on the Respondent Employer's port agent, Dubose, and asked him if he had a job. Dubose an- swered that Pizzitola would have to call Captain Wilson and stated that he did not think Pizzitola was going to have any luck. Pizzitola thereupon called Wilson and asked if he was fired or not. Wilson said, "No, you're not fired, you refused to come to work." Pizzitola said, "Well, I told Mr. Dubose and all that I wasn't crossing that picket line." Wilson answered, "Well, you were not fired, you quit." Wilson also said that he would be glad to accept Pizzitola if he came back through the union hall. Neither Pizzitola nor Talevich went to the hiring hall to attempt to be dispatched to the Respondent Employer. Neither has been recalled at any time since by the Em- ployer. The General Counsel contends that Pizzitola and Talevich were discriminated against on three separate grounds: first, because they were terminated because they honored the Teamsters picket line; second, that even if they were not terminated as economic strikers the Em- 16 There is no real issue that the extension of an existing contract is in every way comparable to the negotiation of a new contract or renegotia- 599 ployer had a duty to reinstate them at the conclusion of the strike unless they had been permanently replaced and the Employer offered no proof that they had in fact been replaced permanently; and finally, General Counsel con- tends that in any event the Respondent Employer dis- criminated against the two because he conditioned the reinstatement on dispatch by the Respondent Union's hiring hall which condition was unlawful because the con- tract requiring dispatch through the Union's hiring hall had been unlawfully extended. The Charging Party contends that the hiring hall consitutes illegal support to the Respondent Union and that, therefore, it is a violation of Section 8(a)(3) for the Employer to require employees to seek dispatch through the hiring hall. Respondent Employer contends that the strike was unprotected, that neither employee made a proper request for reinstatement (contending that neither employee requested reinstatement of Captain Wilson) and finally, that there were no openings for employment at the termination of the strike inasmuch as all ships were then operating. Finally, the Respondent Union contends that the con- tract validly requires the use of the hiring hall and in any event even without a contract the Employer had a right to require employees to use a hiring hall and that the em- ployees had been lawfully replaced. Basic to the determination of the issue presented are two questions. First, were the alleged discriminatees em- ployees within the meaning of the Act or to put it another way were their strike activities protected under the Act? And second, in any event and with regard to the General Counsel's third contention and the Charging Union's con- tention, were Pizzitola and Talevich after the conclusion of the strike in the position of applicants for employment. The right to strike is not absolute. The employees by collective bargaining can waive their right to strike with what is commonly known as a no-strike clause and in Mastro Plastics Corp., 350 U.S. 270, 279-284, the Supreme Court held that employees retain their right to strike in the face of a no-strike clause only if they strike solely against the unfair labor practices of the employer. There is no contention here that Talevich and Pizzitola were engaged in an unfair labor practice strike. Both testified that they refused to cross the licensed em ployees' picket line and thereafter joined in the picketing in support of the licensed employees' demand for recogni- tion of the MOA as their collective-bargaining represent- ative. Therefore, assuming for the purposes of argument that, as Respondents contend, the contract had been validly extended and was in effect at the time of the strike, the participation by the two employees was a breach of the contract and their discharge would be law- ful. See Simmons, Inc., 134 NLRB 1038, and Complete Auto Transit, Inc., 134 NLRB 652, 657. The General Counsel's position appears to be that the two employees were not strikers per se but that they en- gaged in the protected activity of refusing to cross a picket line. Surely the law is settled that employees' refusal to cross a picket line to perform work is an exer- cise of Section 7 rights and ordinarily Section 8(a)(1) pro- tects employees exercising such rights against employer retaliation. See the Cooper Thermometer Company, 154 NLRB 502. But basic to the right protected by Section 7 tion of the existing contract. This issue has been decided in a number of cases, among them , Swift and Company, 128 N LRB 732. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the concept that the right pertains to the employees' concerted activities for employees' mutual aid and pro- tection. Thus in the sympathy striker cases in which the Board has found that the sympathy strikers were pro- tected, the Board found that the employees engaged in the sympathy strike were making a common cause with the employees engaged in the primary strike and, ac- cordingly, their own "aid and protection" was involved. If the strikers with whom the employees are making com- mon cause are not themselves employees engaged in pro- tected activity, I can see no reason why the sympathy strikers should achieve a protection greater than that of the primary strikers. Here the primary strike, by the licensed employees, was not protected. In Fontaine Con- verting Works, Inc., 77 NLRB 1386, employees walked out not to advance their own interests but to further the interests of their foreman who they believe was demoted because of the appointment of a new general foreman. Under those circumstances the Board found that their concerted activity was unprotected. The rule in Fontaine has never been questioned and it has been cited recently.17 I can see no valid distinction between the situation in the instant case regarding Pizzitola and Talevich and the strikers involved in the Fontaine case. Both were striking in support of their supervisors' aims and in each case their supervisors' aims were clearly distinct from the employees'. This is not like the situation in Summit Mining Company, 119 NLRB 1668, where the strikers were found to be engaged in protective activity when their strike protested the discharge of a supervisor and a rank-and-file employee. The Board concluded that the strike was caused by the employees' belief that their own interests were involved since the supervisor, as well as the rank-and-file employee was an applicant for mem- bership in the union, and the movement to reinstate each of them was initiated and supported by the union. Ac- cordingly, without reference to the no-strike clause in the contract, I find that Pizzitola and Talevich were engaged in unprotected activities and could be discharged therefor; that the Employer voiced the discharge in terms of permanent replacement does not appear to affect the result. If the Employer had a right to discharge them, he had a right to replace them or to treat them, as he did, as quits. As to the second issue, whether the Employer violated the Act by requiring the two employees to go to the union hall for dispatch rather than by reinstating them, as I read the record, I do not believe that the issue is reached. The record clearly disclosed that both Talevich and Pizzitola sought reinstatement. Neither was prepared to come back to the Employer's employment as new employees without seniority and under whatever other disabilities new em- ployees would suffer under whatever contract the Em- ployer ultimately signed with whichever union won the election. Pizzitola on cross-examination testified that he would not go back through the union hall. When Captain Wilson told him that they would be glad to take him back if he would go back through the hall, he said, "No thank you, I'll just get hold of the Labor Board." Asked, "you are not going to go through the union hall?" He answered, "Not and lose my seniority and go back to the bottom of the list, no I wouldn't." Asked whether anyone had told him he would lose his seniority, he answered, "Well, if you lose-your job you automatically lose your seniority." When Talevich was told that the Company would be glad to accept him back but he would have to go through the SIU hall first, he replied that he did not want to listen to something like that; he just wanted to know whether he was fired or not. In view of the fact that neither employee made any ef- fort to seek employment as a new hire, I can see no merit in the General Counsel's and Charging Parties' theory that the requirement by the Employer that they should re- gister at the hall served to discriminate against them. Ac- cordingly, since I find no merit in the 8(a)(3) and 8(b)(2) allegations of the complaint, I shall recommend that they be dismissed. E. The Alleged Restraint and Coercion by Respondent Union General Counsel in the complaint contends that Respondent Union engaged in various acts of coercion by threatening employees with physical violence and bodily injury for their "lack of fealty to the respondent union" for engaging in activities on behalf of the Teamsters and by the infliction of physical violence on individuals who were picketing the Respondent Employer on behalf of the MOA. The record discloses that early in January Patrolman Lightfoot of Respondent Union came on board the tug Atlas at Corpus Christi, Texas. He was engaged in a discussion of the welfare plan with Chief Engineer Blan- ton and a deckhand identified only as "Frenchie." When Talevich came into the galley where the discussion was taking place, Blanton and Frenchie were apparently argu- ing with regard to the welfare benefits and one of them stated that they would just as soon not have a welfare plan. Lightfoot replied that, "If you got rid of the welfare plan, you would have to get rid of the Union." Blanton said, "That would probably be a good idea." Lightfoot became angry and said, in essence, "That is what you have been trying to do, talk like that will get people in trouble." Lightfoot started to leave and Talevich said, "Wait a minute" and that he wanted "to hear the answers to the questions that Blanton and Frenchie had asked Lightfoot." Lightfoot asked Talevich if he was with them. Talevich said that he was and Lightfoot shook his finger in Talevich's face and said, "I will be back down here later on and take care of you." Lightfoot testified that he was on the Atlas at that time trying to ascertain if there were any complaints about the welfare benefits. He stated that Talevich complained about a claim that he had in and he ascertained that Talevich had moved several times since putting the claim in. Whereupon Lightfoot told him that he would check it and would come back to see him later. Lightfoot also placed Patrolman Butts on the scene and stated that Butts talked to' Chief Engineer Blanton most of the time but that he did not clearly recall the conversation. Both accounts of the incident are fragmentary. I credit Talevich to the extent that he testified that the discussion was in fact a rather heated argument rather than Lightfoot who characterized it as a routine visit. From the whole record it is clear that the employees of G&H, both licensed and unlicensed, were considerably upset about what they considered to be inadequate handling of the Valley Forge Flag Company, 152 N L R B 1550 G & H TOWING COMPANY 601 welfare plan, and I have no doubt that the conversation was heated. However fragmentary the two accounts of the incident may be, they clash directly in one important particular. Lightfoot contends that he made the statement that he would come back and see Talevich in the context of a discussion concerning a claim by Talevich under the welfare provisions of the contract. Talevich on the other hand contends that Lightfoot made the statement "I'll be back down here later and take care of you" in a context of a general discussion of the fact that the employees present no longer liked the SIU as their representative and that it had nothing to do with any discussion regard- ing his claim. Lightfoot was called by the General Coun- sel and examined as his witness and later was called by the Respondent Union and examined as their witness. In neither case did I find his demeanor satisfactory. He was evasive and forgetful and appeared to answer reluctantly when questioned by counsel for the General Counsel. His demeanor added no luster to his credibility. On the other hand, I found Talevich's testimony regarding this incident credible and his reaction under cross-examination in my opinion enhanced the credibility of his account. Ac- cordingly, I find that in accordance with Talevich's story Lightfoot, in fact, shook his finger in Talevich's face and stated, "I will be back down here later on and take care of you." The second alleged violation of Section 8(b)(1)(A) also concerned Lightfoot. Chief Engineer Elwood N. Holmes was called to the galley of the tug Bonita by an employee, McGee, and found Lightfoot and Jose Perez, identified as a clerk at the union hall, and several other persons sitting around the galley. Lightfoot asked Holmes to sign an SIU card. Holmes declined to do so stating that he was finished with the SIU and was in favor of the MMETO. Lightfoot asked if Holmes had signed a Teamsters card and Holmes denied that he had signed one but said that that did not mean he would not sign one. Lightfoot an- swered, "Well, you know if those Teamsters come in here somebody is going to get hurt." Holmes said, "Are you threatening me?" And Lightfoot answered, "No." Lightfoot's account of this conversation was similar, but he attempted to throw it in a different light. I quote his ac- count in full, "We had a discussion in general. We were just chewing the fat, more or less, and we were talking about welfare and everything in general, the contract, and Mr. Holmes got a little shook up there. I had made a statement, I said, `Well, you know if lots of you guys break away, you know, some of them will get hurt.' And Mr. Holmes stopped me there and he said, `What are you doing threatening me?' And I said, `No, you know, when you break away like this, you know what you have here,' and I said, `You break away, lots of guys will lose their benefits and pension plan and everything else'; and I said `you might get hurt."' Questioned by Lightfoot's counsel, "When you used the words `get hurt,' you were referring to men losing their contract rights?" Lightfoot answered, "Right." This conversation took place around February 8 at which time both petitions had been filed. It appears more probable to me that the conversation was as Holmes re- ported it. I view Lightfoot's testimony that he explained his statement that somebody is liable to be hurt as mere embroidery and I credit Holmes.18 Having found the two statements to have been made as the General Counsel contends, the issue remains whether those statements, in context, are violative of the Act. The Act, in pertinent portion, provides that it shall be an un- fair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of their rights guaranteed in Section 7. The Board has held that the test is not whether the employees were in fact restrained or coerced but whether the statements made, taken in con- text, are reasonably calculated to restrain or coerce em- ployees to whom they are addressed or to whose atten- tion they came. Both statements are by their nature am- biguous, but in context there can be little doubt that a statement that "talk like that will get people in trouble" referring to talk about getting rid of a union and a state- ment "If the Teamsters come in somebody was going to get hurt" are of a threatening nature. The third statement addressed to Talevich "I will be back down here later and take care of you," in the face of the fact that Talevich had apparently been complaining to him about the Union's failure to take care of his welfare claim, is, in my opinion, too ambiguous to warrant a finding that Lightfoot was personally threatening Talevich. It appears to me he could as well have been referring to Talevich's claim. It is not necessary that a threat be clear and unam- biguous if it is in a form which reasonably implies a coer- cive message to employees. For instance, the statement by a union agent to employees on strike that "they had better not go into the plant if they knew what was good for them" was found violative.19 Similarly a statement "if this keeps up somebody might get hurt" fairly raises an inference that employees working in spite of the Union's strike were threatened.20 Similarly a statement that the Company was "asking for trouble" was deemed by the Board violative of Section 8(b)(1)(A).21 I consider that statements that "somebody is going to get hurt if the Teamsters get in" and "talk like that will get people in trouble" must be considered a threat in violation of Sec- tion 8(b)(1)(A) and I so find. The Fight on April 7 On April 7 the licensed personnel commenced picket- ing. Early that morning while Jorgenson, Goodwin, Bag- get, Palmer, and Thurman were on the picket line at the Employer's property at Houston, a group of five or six employees came out of the entrance to Respondent Em- ployer's dock and came to Jorgenson who was wearing a picket sign. One of their number, Salty Wilburn,22 asked if the pickets "had an observer." Earl Goodwin, who was handing out leaflets, asked what Wilburn meant and Wil- burn answered, "It don't matter what it is, if you don't have one, we have orders to take this picket line down." The group moved toward the two pickets and Goodwin hastily said, "We have an observer in the car out there" '" Respondent Union contends that this could not be a violation because there is no showing that any employee, as distinguished from licensed personnel, was present at the time However, Holmes placed McGee there at the start of the conversation as well as a number of other persons whom he could not otherwise identify. Accordingly, I reject the argument. •0 The Higbee Company (Painters, AFL), 97 NLRB 654 'O Highway Truckdrivers and Helpers, Local 107, IBT (Virginia- Carolina Freight Lines), 123 N LRB 551. =i Local No. 888 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers (Miami Plating Co.), 144 N LRB 897 22 Not to be confused with Union Agent Wilburn 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and they stopped.23 The group of employees withdrew and went to a nearby ILA hiring hall where a pay telephone was located and one of the group made a telephone call. Ten or fifteen minutes later Jose Perez, identified as the clerk at Respondent Union's hall, and Patrolman Butts arrived in two cars. They passed through the picket line and got out of their cars. Perez joined the group at the ILA hall and Butts walked up to Jorgenson and signaled the group to come toward him. He seized the sign hanging around Jorgenson's neck, and said, "Give me this sign." Jorgenson took it off and gave it to him and turned to walk away. He looked around and saw Perez making motions as if to hit him and swung at Perez to protect himself. Ap- parently neither one landed any blows. At this time an unidentified person tackled Jorgenson from behind, knocking him to the ground and as Jorgenson started to get up he found Butts attempting to kick him. He grabbed Butts' legs and pulled him to the ground then struggled to his feet and tried to shake off the man on his back. At the same time, an unidentified person struck Palmer, who had supplanted Goodwin on the picket line during the interval between the crowd first coming out of the Employer's premises and the arrival of Butts, and knocked Palmer's glasses off and blooded his head. It appears, thereafter, there was general fighting ultimately broken up by the ar- rival of police who appear not to have caught any of the assailants all of whom disappeared.24 The above account is taken largely from the testimony of Robert Jorgenson whom I credit. Neither Butts, who was present in the hearing room, nor Perez was called as a witness. The only witness called by the Respondent Union who testified about the violence was James Sammon. Sammon stated that Butts did not attack Jorgenson, but that Jorgenson took off his picket sign, which consisted of two cardboard signs hung by lines over Jorgenson's shoulders, and ap- peared to attack Butts with it. Sammon said he was too far away to hear what was said. As to the incident with Palmer, who, incidently, is Sammon's brother-in-law, he testified first that Palmer, "started fighting with another guy" but on cross-examination testified that he did not know whether Palmer started the fight or if he defended himself; the only thing he knows is that he saw him fighting. He did not go to his brother-in-law's aid but proceeded through the picket line to the company dock.25 There can be no question that the Respondent Union, through its agent, Butts, is responsible for the picket line violence. Respondent Union, however, argues that the Board is without jurisdiction to predicate a violation of 8(b)(1)(A) on the conduct of the Union. Respondent Union argues that "the record is clear that antipathy on the part of the Seafarers toward the picketing licensed employees was premised on the latter's violation of the no-strike provisions of the contract." On what part of the record Respondent relies for that conclusion, it does not say, nor can I find any support for the statement in the record. Rather the antipathy on the part of the Seafarers resulted from the disaffection of the employees, both licensed and unlicensed, and their attempts to get a new bargaining agent, and it appears to me that the record is clear in this regard. The antipathy was well demonstrated prior to the strike. It is clear that an attack on supervisors as such is viola- tive of Section 8(b)(1)(A) especially where employees are aware or may reasonably be expected to become aware of the attack.26 Nor is the fact that the violence directed against supervisory employees was not primarily motivated by employees' exercise of their Section 7 rights, as distinguished from supervisors' attempts to change their bargaining representative, dispositive of the issue. The record is clear that the supervisors and the em- ployees had at least by the time of the strike made com- mon cause of their resistance to further representation by the Respondent Union. The action of the Respondent Union against the picketing supervisors cannot help but have had a coercive impact upon employees whose loyal- ties to the Respondent Union were similarily being chal- lenged, and there is no question that Respondent Union was interested in retaining (or obtaining) the loyalty of the nonsupervisory employees who were used to break the supervisors' strike.27 Accordingly, inasmuch as the attack on supervisors clearly would have the effect of coercing employees in the exercise of their rights, I find such at- tacks to be a violation of Section 8(b)(1)(A) of the Act. IV. THE OBJECTIONS The Charging Union's (Petitioner's) objections to the election, set forth above, are largely predicated on the same matters alleged as violations by the General Coun- sel. As to the following, no evidence was submitted: 1. Disparate treatment in permitting supervisory em- ployees to campaign during work hours for the Intervenor but not for the Petitioner. 2. The discharge of licensed personnel for leading the opposition against further representation by the Interven- or.28 3. The hiring of additional employees through Inter- venor's hiring hall for the purposes of influencing the election. As no evidence was adduced to support the above, I will recommend that they be dismissed. The objections allege the promulgation and enforce- ment of a discriminatory no-solicitation rule and the refusal of access to Respondent's premises to representa- tives of the Petitioner while permitting Intervenor's representatives access at all hours. The two objections were supported only by the incident with regard to Piz- zitola, discussed above. As the incident in question took 21 The attorney for MMETO was sitting in a car a little way from the picket line 24 After the departure of the police, Butts walked out from behind the ILA hall and passed directly in front of Goodwin, who was then on the picket line, and said to Goodwin that he was next. 25 Sammon, who by his own testimony, appears to have been somewhat of a "double agent" in the organizing campaign clearly revealed his animus against the MOA in his testimony His attempted characterization of Jorgenson as the aggressor and his inability to identify any of the five or six persons he saw fighting other than Palmer, Jorgenson, and Butts, as well as his demeanor on the witness stand, lead me to discredit his testi- mony with regard to the incident. 26 Communications Workers of America (Ohio Consolidated Telephone Co), 120 NLRB 684, 686, Local 888, etc (Miami Plating Co ), supra, International Woodworkers ofAmerica (Smith Lumber Co.), 116 NLRB 507, 508. 29 The record indicates that 88 percent of the supervisors joined the MMETO, presumably as a result of disaffection with Respondent Union The record does not reveal whether any of those supervisors who took part in the strike returned to the employ of Respondent Employer, but reveals that the striking officers' positions were filled in large part at least by the promotion of unlicensed employees. 2' This has apparent reference to the discharge of one Captain Bruce which took place before the petition was filed and accordingly not within the critical period I declined to accept evidence with regard to Bruce's discharge. G & H TOWING COMPANY 603 place before the petition was filed and as no evidence of either a no-solicitation rule or of any refusal of access to any representative of any party during the critical period was adduced, I find that these objections are not sup- ported by the evidence and I recommend that they be dismissed. Charging Union also objected to the subjection of em- ployees to coercive interviews concerning their voting in- tention and union activities and to the intimidation and coercion by the Employer of employees by threats of loss of benefits , loss of jobs , and physical violence. The record reveals no evidence of intimidation and coercion by the Employer. As to the subjection of employees to coercive interviews , the record as a whole discloses that licensed employees representing both unions throughout the criti- cal period campaigned for their respective choices. There is no evidence that any managerial or supervisory persons other than licensed personnel on the vessels did any cam- paigning for either union. There is no evidence that in their campaigning licensed employees for either union made any threats or promises of benefit or otherwise communicated with employees in a coercive or intimida- tory manner. In view of the coexistent campaign among the licensed personnel and the fact that under the circum- stances employees could not logically attribute to the Em- ployer the opinions being voiced by the licensed person- nel, I find nothing in the activities of the licensed person- nel during the critical period which I consider to be calcu- lated to interfere with the employees' freedom of choice. Therefore , I shall recommend that the objections with re- gard to this issue be dismissed . The remaining objections which relate to the course of threats and violence and in- timidation by Respondent Union and the April 7 fight on the picket line at Houston are supported on record only by the incidents set forth in the discussion of the unfair labor practices above. Of those only two occurred during the critical period , the February 8 threat and the April 7 fight. Concretely, the record reveals potential objectionable conduct in three particulars within the critical period. One, the February 8 threat in the presence of at least one employee to Patrolman Lightfoot; two, the March 22 ex- tension, effective April 6 , of the collective-bargaining agreement between Respondent Employer and Respond- ent Union, and three, the picket line violence, led by Respondent Union's Patrolman Butts on April 7, against the licensed employees' picket line in the presence of un- licensed employees of the Respondent Employer. The Board has frequently asserted that violations by an employer of Section 8(a)(1) during the critical period be- fore an election, a fortiori comprise objectionable con- duct. I perceive no valid distinction in this regard between violations of 8(a)( 1) by an employer and viola- tion of 8(b)(1)(A) by a labor organization. Accordingly, it would appear that the three items of violative conduct set forth above , which took place during the critical period, warrant setting aside the election. However, a combina- tion of circumstances peculiar to this case leads me to the conclusion that such a result would be inappropriate. The election was conducted on three dates, March 16 and 17 and April 8. A hundred and twenty-four ballots were cast. Of these 118 were cast on March 16 and 17, the remaining 6 on April 8, by voters who had been at sea during the intervening period . The tally of ballots revealed that 24 ballots were cast for the Petitioner, 100 for the Intervenor, and 27 ballots were challenged. Obvi- ously then , the vast majority of the dispositive ballots were cast before two of the three incidents took place; the extension of the contract on March 22, and the fight on April 7. No effect stemming from these two actions could have seriously reduced the disparity between the votes for the Petitioner and those for the Intervenor. The Board has traditionally been loath to disturb the results of an election which is clearlys dispositive and that is the situa- tion here. Excluding the two incidents which took place after a majority of the ballots had been cast, there is left only one incident upon which the objections could validly be based, i.e., the February 8 threat by Lightfoot delivered to a supervisory employee in the presence of one and possibly more nonsupervisory employees . In my opinion, viewing that threat from this angle, it appears to be an iso- lated statement in a context of intensive campaigning by both unions involved in the election process. In my opinion, such a threat, uttered in the presence of one and certainly no more than five employees out of 162 eligible voters, is insufficient to be considered an interference with the employees' free choice of bargaining representa- tive. Accordingly , I shall recommend that the objections in their entirety be overruled and that the appropriate cer- tification be issued. CONCLUSIONS OF LAW 1. Respondent Employer is an employer within the meaning of Section 2 (2) of the Act and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union and the Charging Union are labor organizations within the meaning of Section 2(5) of the Act. 3. By bargaining with a union committee which in- cluded its own supervisors and by extending its contract with the Respondent Union during the existence of areal question concerning representation , Respondent Em- ployer interfered with, assisted , and contributed support to Respondent Union and thereby engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(2) and (1) of the Act. 4. By threatening employees with harm and by physi- cally assaulting supervisory employees of Respondent Employer in the presence of nonsupervisory employees of Respondent Employer, Respondent Union has restrained and coerced employees and engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Except to the extent that violations of the Act have been specifically found herein , the preponderance of the evidence fails to establish that Respondent engaged in other violations of the Act and it will be recommended that the allegations of the complaint to that extent be dismissed. THE REMEDY Although Respondent Employer violated Section 8(a)(2) of the Act the normal remedy for that violation, which results in setting aside the contract and invalidating the certification of the Respondent Union, would permit the Charging Union to accomplish indirectly through the filing of an unfair labor practice charge what it could not 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accomplish directly by filing objections to the election. The contract was executed prior to the rise of the question concerning representation and is presently in a temporary state of extension, apparently pending the out- come of this litigation. The Respondent Union has been selected by an overwhelming majority of the employees concerned thereunder. Neither the contract nor the cer- tification is, in my opinion, the fruit of the Respondents' unfair labor practice. Having in mind the policy of the Act that employees should be permitted, to the greatest extent possible, the enjoyment of representation by their selected collective-bargaining representative, the withdrawal of recognition, or setting aside of the contract would not, in my opinion, effectuate the policies of the Act. However, inasmuch as orders dealing with unfair labor practices have a preventive as well as remedial pur- pose and effect, I recommend that the Respondent shall cease and desist from infringing upon the rights guaran- teed by Section 7 and post appropriate notices.29 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent Union, its officers, agents, and representatives, shall: 1. Cease and_ desist from: Restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees with bodily injury or inflicting violence on supervisory or nonsupervisory employees. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its offices at Houston, Galveston, Corpus Christi, and Freeport, Texas, copies of the attached notice marked "Appendix A."30 Copies of said notice, on forms provided by the Regional Director for Region 23, Houston, Texas, after being duly signed by Respondent Union's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, Houston, Texas, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent Employer, its of- ficers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining , or coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, by entering into collective-bargaining negotia- tions and a contractual agreement or by extending any ex- isting agreement with Inland Boatmen 's Union of the Seafarers International Union of North America, Atlan- tic, Gulf, Lakes and Inland Waters District , AFL-CIO, or any labor organization at a time when the claim of another labor organization has raised a real question con- cerning representation. (b) Interfering with the administration of the Union set forth above by conducting collective-bargaining negotia- tions with any committee representing said Union which includes in its membership any supervisors within the meaning of Section 2(11) of the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at Respondent's offices at Houston, Gal- veston, Freeport, and Corpus Christi, Texas, copies of the attached notice marked "Appendix B."32 Copies of said notice, on forms provided by the Regional Director for Region 23, Houston, Texas, after being duly signed by Respondent Employer's 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 by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, Houston, Texas, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.33 " North Electric Company, 129 NLRB 675 30 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order" Si 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 Re- spondent has taken to comply herewith." See fn 30, supra. 5See fn 31,supra APPENDIX A Notice to All Members of Inland Boatmen's Union of the Seafarers International Union of North America, Atlan- tic, Gulf, Lakes and Inland Waters District, AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer 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 restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees with bodily injury or engage in infliction of violence on supervisory or nonsupervisory employees. INLAND BOATMEN'S UNION OF THE SEAFARERS INTER- NATIONAL UNION OF NORTH AMERICA, ATLAN- TIC, GULF, LAKES AND IN- LAND WATERS DISTRICT, AFL-CIO (Labor Organization) Dated By (Representative) (Title) G & H TOWING COMPANY 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 members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611, Extension 4721. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaran- teed them in Section 7 of the Act, by entering into collective-bargaining negotiations and a contractual agreement or by extending any existing agreement with Inland Boatmen's Union of the Seafarers Inter- national Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or any 605 labor organization at a time when the claim of another labor organization has raised a real question concerning representation. WE WILL NOT interfere with the administration of the Union set forth above by conducting collective- bargaining negotiations with any committee representing said Union which includes in its mem- bership any supervisors within the meaning of Sec- tion 2(11) of the Act. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed by Section 7 of the Act. Dated By G & H TOWING COMPANY (Employer) (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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611, Extension 4721.