International Organization of Masters, Mates & Pilots

INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS International Organization of Masters, Mates & Pi- lots and Alice Brittain. Case 23-CA-6426 June 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On March 23, 1978, Administrative Law Judge Robert C. Batson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE ROBERT C. BATSON. Administrative Law Judge: This pro- ceeding under the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (herein called the Act), was heard before me in Houston, Texas, on July 7 and 8, 1977,1 based on a complaint and notice of hearing issued by the Acting Regional Director for Region 23 on April 12, growing out of a charge filed on March 8 by Alice Brittain. an individual, alleging that International Organization of Masters, Mates & Pilots, herein called Respondent, vio- lated Section 8(a)(3) and (1) of the Act by discharging her on or about March 7. All parties participated throughout the hearing by counsel or other representatives and were afforded full opportunity to present evidence and argu- ments, and to file briefs. Briefs have been received from counsel for the General Counsel and counsel for Respon- dent. Upon the entire record, including careful consideration All months and dates hereinafter are 1977 unless otherwise indicated. of briefs, and my observations of the testimonial demeanor of the witnesses testifying under oath, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a multistate national organization with its principal office and place of business located at New York, New York, and with an office and place of business locat- ed at Houston, Texas. where it is engaged in the business of representing its members in collective bargaining with vari- ous employers concerning wages, hours, and other terms and conditions of employment. During the 12-month pe- riod immediately preceding the issuance of the complaint herein, which is a representative period, Respondent de- rived gross revenues from its members as payments of dues, fees, and assessments in excess of $500,000, of which in excess of $50,000 was transmitted to it at New York, directly from its Houston, Texas, office. During this same period of time, Respondent maintained collective-bargain- ing agreements with various employers, including Lykes Steamship Company; Delta Steamship Line; Sea Land Service; and Watermans Steamship Company, each of which is engaged in the ocean transportation business and derives annual revenues in excess of $50,000 from such business. The complaint alleges, the answer as amended at the hearing admits, and I find that at all times material herein Respondent is, and has been, an employer engaged in com- merce within the meaning of Section 2(2). (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The complaint alleges, and Respondent's operative an- swer to the complaint denies, that Office & Professional Employees International Union, Local #129, AFL-CIO, herein called OPEIU, is a labor organization within the meaning of Section 2(5) of the Act. Joyce F. Bokemeyer, a business representative for OPEIU Local #129. testified that OPEIU received into membership employees of em- ployers and that OPEIU existed for the purpose of dealing with employers concerning the wages, hours, and other terms and conditions of employment of their employees. OPEIU is clearly a statutory labor organization. I find that at all times material herein OPEIU is, and has been, a labor organization within the meaning of Section 2(5) of the Act. III 1HE ALLEGED UNFAIR LABOR PRACTICES The Facts The sole question presented in this proceeding is whether Alice Brittain was discharged on March 7, because she sought to have Respondent execute a contract on her be- half with OPEIU, and/or in this endeavor obtained the assistance of some of Respondent's members, as the Gen- eral Counsel claims; or because of her neglect of duties: 236 NLRB No. 100 835 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defiant insubordination; disobeying direct orders; disrupt- ing office procedure; and/or her involvement in the intra- company (union) political activities in manners constitut- ing real or imagined disloyalties to her immediate superiors, as Respondent contends. A. Background Alice Brittain was first hired by Respondent as a file clerk at its Houston, Texas, port office, then designated as "Local 20," on March 25, 1965. A short time later, appar- ently with the encouragement of her employer, she joined OPEIU Local #129, and has remained a member since that time. She worked under the immediate supervision of the port agent, who is elected by Respondent's members registered at the port, and in his absence, the assistant port agent, who is likewise elected. During her entire tenure of employment, until December 17, 1976, when Susan C. Hes- ter was hired by Port Agent Wilkins as an anticipatory replacement for Brittain whose termination appeared im- minent, Brittain was the only nonelected office employee at the Houston port office. In 1970 Respondent abolished the designation of "Lo- cals" for its several port offices and created the Offshore Division wherein it consolidated into that organizational structure all such offices. The offshore division consists of three areas; east coast, west coast, and gulf coast, each of which has an area vice president, who, it appears has some authority with respect to policymaking decisions, over the ports in his jurisdiction. The policymaking body of the off- shore division is the Offshore Division Executive Council, herein called ODEC. which is composed of the three inter- national officers, the three area vice presidents, and all port agents, with a total of 17 members. While the record herein does not disclose what, if any, role ODEC plays in estab- lishing overall labor relations policy with respect to the office employees of the several port offices or with respect to negotiating labor agreements with OPEIU for such em- ployees in offices where such agreements have been negoti- ated, it appears that, at least, as to the such employees not under contract, ODEC must approve wage increases and as a policymaking function determine whether overtime work will be permitted. 2 Brittain was hired by and worked under the immediate supervision of Captain Robert N. Polumbo, who had been the Houston port agent for 18 years at the time of his de- feat in early 1975 by Captain Wilkins. At the time of Brittain's discharge she was classified as plans agent and secretary and was paid $200 per week. As plans agent, Brittain's duties were to pay by check Respondent's mem- bers who were assigned to ships in port owned by various steamship companies to relieve the regularly assigned com- pany officers. In this function they are referred to as port relief officers, hereinafter PRO. In making such payments, Brittain was acting as an agent for the various steamship companies who had deposited moneys for this purpose with the International to be held in trust. The International's New York office would transfer moneys as 2 The foregoing findings are based on the credited testimony of Port Agent Wilkins and documentary evidence presented at the hearing needed for this purpose to Houston. She would also com- pute and make vacation payments, the checks for which were drawn on Respondent's New York account. In addi- tion, she also handled welfare claims and pension and va- cation credits for Respondent's members. Her secretarial duties consisted mainly of doing correspondence for the port agent. It appears that some effort was made by the Internation- al and ODEC to keep the wages of its office employees in line with those of OPEIU based on local scales. However, from time to time, some effort was made by Local # 129 of OPEIU to obtain a written agreement for Brittain. On April 14, 1971, Alma E. Herring, business agent for Local #129, wrote to Port Agent Polumbo stating in substance that, while Brittain was satisfied with her working condi- tions, wages, and benefits, she desired a written contract to insure job security and a continuation of such benefits. The record does not disclose whether Polumbo responded to the request. On January 30, 1976, the same business agent for Local #129 wrote Port Agent Wilkins stating: Please be advised that your employee, Ms. Alice Brittain is performing the duties of Classification 1, chief clerk as outlined in the master contract that we have with all Labor Union offices in Houston and sur- rounding areas. The weekly salary for chief clerk is $241.30, plus fringe benefits. I trust that you will be able to pay the salary com- mensurate with job duties. While the 1971 letter from OPEIU constitutes a request to negotiate a collective-bargaining agreement on behalf of Brittain, the 1976 letter is merely a notification to Respon- dent of the OPEIU scale in the Houston area and expresses a desire that Respondent pay Brittain union scale.3 In early 1973, Brittain was being paid $150 per week. Port Agent Polumbo advised her that because of the Union's financial situation they could not afford to give all secretaries a wage increase and told her that in lieu thereof she could work through her lunch hour and receive over- time pay.4 Brittain began this practice and, although she received two additional raises, continued it throughout her employment. On August 16, 1974, Brittain was informed by letter from Internationals secretary-treasurer, Captain Robert J. Lowen, that her salary had been increased to $175 per week retroactive July 1, 1974. During the 1975 campaign for port agent between Port Agent Polumbo and Captain Wilkins, Brittain actively campaigned for her longtime boss, Polumbo. It appears from the testimony of both Brittain and Wilkins, that the thrust of her campaign against Wilkins was to tell the members that the first thing Wilkins would do if elected would be to fire her. Upon Wilkins assuming the position of port agent, Brittain confronted him and asked, "What 3 As discussed more fully hereinafter. Port Agent Wilkins did, in Septem- ber 1976, use this letter as a basis for obtaining a retroactive wage increase for Brittain. 4There is no suggestion in the record that the workload at that time necessitated such overtime work. 836 INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS about me? Am I fired?" Wilkins replied that he knew Brit- tain had campaigned strongly against him, but that he had no intentions of firing her "as long as you do your job and remain half way loyal to me." Wilkins testified that he liked "Alice" personally and thought that she would even- tually come around to his way of thinking.' Wilkins also suggested at that time that Brittain began taking her lunch hour rather than working overtime. It is abundantly clear that Brittain did not come around to Wilkins' way of think- ing and her allegiance remained with the "old regime." However, until September 1976, she and Wilkins main- tained a distrustful but tolerable working relationship which began deteriorating when Wilkins advised her that, if he were successful in obtaining a wage increase for her, she may have to cut down on her overtime. B. Sequence of Events Leading to Brittain's Discharge At the September 1976 ODEC meeting, Wilkins, in addi- tion to obtaining the wage increase for Brittain, also intro- duced a resolution that Respondent endeavor to create a pension plan for the secretaries who were not under con- tract or who had no pension plan at all. International Comptroller Harry Seidman was instructed to do a feasibil- ity study with respect to such a pension plan. While Wilkins had been instructed to cut down on Brittain's overtime by Seidman prior to the September meeting, and had so informed Brittain, he continued, until November 1976, to approve overtime from 5 to 11 hours a week at a rate of $8.57 an hour. On September 16, 1976, Joyce Bokemeyer, business rep- resentative for OPEIU #129, wrote to Captain Arthur Holdeman, gulf Coast area vice president, stating that Brit- tain had telephoned her that day conveying his request for the OPEIU wage scale to be considered in connection with the new budget considerations. The letter also protested Brittain's wages, working conditions, and lack of a written agreement through which her grievances could be resolved. Bokemeyer enclosed a copy of the OPEIU contract in ef- fect with other union offices in the Houston area and re- quested that Holdeman execute same on behalf of Respon- dent. On September 27, 1976, Holdeman replied to the letter, informing Bokemeyer, in relevant part, that ODEC had granted Brittain a $25-a-week raise retroactive to Jan- uary 1, 1976, and noted that he had informed the Council of the possibility of signing a contract for three girls in the Texas area. According to Holdeman, in order to avoid this, "the Council put through a pension and pay raise." At the November ODEC meeting, Comptroller Seidman reported on his efforts to locate or create a vehicle to re- ceive and administer pension funds for the secretaries. Seidman had discussed with the "head of the OPEIIU" in New York, the feasibility of bringing all the secretaries in all offices into one group and create a fund into which Respondent would contribute lump-sum past service pen- sion credits. Apparently this was not feasible since OPEIU did not serve some areas in which Respondent maintained offices, Seidman recommended the creation of the Inland ' The foregoing findings are based on a sanrhsith of the credited csrli- mony of both Brittain and Captain W'ilkins Division for the purpose of administering the pensions.' Wilkins testified that there was also some discussion con- cerning the overtime work being claimed by Brittain, from which he concluded "I was told rather clearly to cut out all overtime." Based on portions of the unimpeached minutes of the November 17 meeting, it appears that Wilkins was warranted in his conclusions in that regard. The portions of the minutes from which Wilkins con- cluded that overtime was to be abolished as read into the record are from pages 78 and 79 of the minutes, as follows: Captain Anderson: (port agent) Say, for example, whatever we pay them according to this scale, the union will be reimbursed so much of this from the Plans. Mr. Seidman: Right. Now, yea, so much. Basically, yes, the Joint Employment Commission will reimburse us X amount of dollars for their secretaries. I did ask Paul (Wilkins) to attempt to cut out this overtime for his secretary. lie said he would do every thing possible to cut it out. Now, the other people who do get overtime are one or two gals out in the Port of San Francisco. That is held to the extreme limits. From page 81 of the minutes the following was read into the record: Captain Cummings: (apparently a Port Agent) May I continue? It seems like we should set a policy here. Some of them get overtime. Apparently only one or two do get overtime, and none of the rest of them get oxertime. Now, it should be uniformly, I believe. Mr. Seidman: Ford, (Cummings) there is a policy, and the policy was to try to have no overtime if at all possible. I hat policy' was set. When the Offshore Divi- sion came into affect, there was a lot of overtime, up and down the line, in all the Ports. Every secretary had overtime galore. We did cut it down to practically nothing. Like I said, we did have one Port where the overtime was excessive. It was requested to that port agent that he cut it out. Upon his return to Houston from the November ODEC meeting, and Brittain's return from vacation. Wilkins told Brittain of the creation of the Inland Division and the pen- sion plan in which she could obtain credit for up to 12 years of past service and that the Union would make a lump-sum contribution into the plan for that purpose. le further advised Brittain that ODEC had ordered that over- time be cut out and expressed the opinion that if she would cut down on the "bull sessions" she would have time to do her work. Brittain objected that it was impossible to do the work without overtime to which Wilkins reiterated that if she would cut down on the "bull sessions" she could do it and reminded her that her reliefs had done the work easily. Wilkins told her if she could not complete the work during her regular hours to leave it for the following day. Brittain became angry and told Wilkins that she worked for the I he Inland )l )i ln rp *Car to0 he a I.hrr ,orsinizatlon reated for Re- ,i.lidnt's nilcai,nlr~l e¢lllhOces ;is ', ell .1 a ehicle to administer the pcelnsn Pl'.n flr the s-relareSlc elrnirrhip in ()PI l t or .an other labor orvalnilaoI,1 .i t uld itil prc.ude p rtlmp.illln In the pension plan 837 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership and reminded him that her money was reim- bursed by the plans which was reimbursed by the steam- ship companies.7 Wilkins testified that Brittain also told him to go to hell, that she did not work for him, and that she would do as she pleased and continue to submit over- time. Brittain denies this portion of the conversations For 2 or 3 weeks after being instructed to cease working overtime Brittain continued to do so but did not submit vouchers for the work. Wilkins was out of town during this time. According to Brittain, in early December she talked with Comptroller Seidman, who told her that ODEC had not ordered that overtime be cut out completely, but merely cut back. Upon Wilkins return to Houston, Brittain con- fronted him with Seidman's alleged interpretation of the ODEC action with respect to overtime, but Wilkins refused to back off from his view that no overtime would be per- mitted. Brittain told Wilkins that if he would not authorize overtime she wanted to take her lunch hour. That day, contrary to her usual practice, Brittain left the office for her lunch hour. The following day at noon both Wilkins and assistant Port Agent Massey started to leave the office and Brittain suggested to Wilkins that they should work out a lunch schedule. According to Brittain, Wilkins be- came angry and stated, "Alice, I want you to cut this crap out now.... You can have a lunch hour once a week. And you will get out the work, all of the work, in the same amount of time, and without any overtime." Wilkins does not specifically deny this conversation, but testified that for 12 years Brittain would never go out for lunch since the location of the office is in what might be considered an undersirable area but had brought her lunch each day and ate in the office. He further testified that it was not true that she worked through her lunch hour. Wilkins testified that he "begged" her to take off for lunch and go outside the office but she refused to do so until then. In any event, Brittain telephoned Area Vice President Holdeman and talked with OPEIU Business Representa- tive Bokemeyer about Wilkins' alleged refusal to give her a lunch hour. According to Brittain, Holdeman told her it would violate the Federal Wage and Hour Law to deprive her of her lunch hour and to put in whatever overtime she thought necessary and submit it to the New York office. By letter dated December 16, 1976, Holdeman advised Wil- kins that since ODEC had expressed a desire to reduce 7The foregoing findings of fact with respect to this conversation are un- disjputed. The resolution of this case turns upon inferences to be drawn from undisputed testimony and facts rather than upon the few relevant direct credibility conflicts. Brittain impressed me as being extremely cognizant of her great personal interest in the outcome of this case and whose testimony was colored by such personal interest Iherefore. I am persuaded that Wil- kins' version of the conversation. which is, in part. corroborated by Assis- tant Port Agent Raymond Massey. is the more accurate As might be ex- pected Brittain was upset and angered to learn that she could no longer receive overtime pay for working during her lunch hour and sometimes after hours and weekends, which overtime pay had amounted to from $30 to $60 or $70 a week. but must settle for her $25-a-week raise. Her subsequent defiance of Wilkins' instructions not to) work overtime and her submission of vouchers for such overtime without Wilkins' approval tends to demon- strate that she considered herself Immune from ans disciplinary action hb Wilkins, which is the substance of what she told Wilkins in this November conversation. overtime, and, thus, not pay Brittain for her lunch hour, Brittain was to be given the lunch hour. He further ob- served that failure to do so may violate Federal law. Holdeman also noted that he had never been able to con- tact the Houston office before 9 or after 4, and concluded by stating: Now the secretaries in the other offices of the Union work not more than seven (7) hours: some only 6-1/2. If you can squeeze seven (7) hours of work out of your secretary between the hours of 0900 and 1600 and still give her the legally required time off for lunch, I don't believe there will be much to complain about. Brittain testified that Bokemeyer, likewise, had told her to work the overtime and apply for payment. However, Bokemeyer denied that she had advised Brittain not to fol- low Wilkins' instructions with respect to overtime. On December 17, 1976, Wilkins hired Susan C. Hester and assigned her initial duties as a dispatcher. He told Hes- ter that she should learn Brittain's job because he was going to have to fire her as soon as the time was right and then Hester would be the secretary. Wilkins expressed the desire that Brittain quit because of the members' feelings about her. He indicated to Hester that the reasons were political "old regime, and there was a new regime." Wilkins further mentioned to Hester that "Alice" had 12 years' ser- vice and he did not want to see her lose her pension credits. Wilkins told Hester she would have to report at 8:30 a.m. as Brittain did until after Brittain's dismissal. However, Hester negotiated an 8:45 a.m. reporting time for personal reasons. Wilkins told her that he expected her to be loyal to him. Some time after her hire, Captain Anderson (appar- ently another port agent) also talked with Hester about loyalty and asked if she understood what it was. Some time in December, Wilkins ordered Brittain to re- port at 8:30 a.m. rather than the 9 a.m. reporting time as directed in a letter by the gulf coast area vice president, Arthur Holdeman, dated August 26, 1975. After Brittain's confrontation with Wilkins concerning Seidman's alleged interpretation of ODEC's instructions with regard to over- time wherein she vowed to continue to work overtime, she expressed to Bokemeyer the fear that she was going to be fired because of the overtime dispute with Wilkins. On December 23, 1976, Brittain effectuated her avowed intentions to work overtime and submit claim for payment. She prepared a voucher for payment for 11 hours overtime claiming her lunch hour for each working day from De- cember 14-23 and 3 additional hours overtime for Decem- ber 20. This claim was not submitted to Wilkins for ap- proval, but was mailed by Brittain directly to New York. Brittain testified that she placed a copy of the voucher on Wilkins' desk after she had mailed it which Wilkins found several days later. On December 31. 1976, Brittain submit- ted an additional claim for 4-1/2-hours overtime directly to Captain Robert Lowen, International secretary-treasurer with a cover letter stating: Dear Sir: In order to comply with the port agent, Mr. Paul Wilkins' instructions that all the work must be done, and on time (both for the union secretary and plans 838 INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS agent), it was necessary to put in the enclosed over- time. Please note that I was ordered by the port agent to report to work 30 minutes earlier than the hours set by Captain Holdeman in his letter of August 26, 1975. (Copy enclosed) As per advice by business representa- tive, Mrs. Joyce F. Bokemeyer, of the OPEIU, I am submitting this overtime. On January 14, Brittain submitted directly to Holdeman a claim for 14 hours and 40 minutes overtime, which had also not been approved by Wilkins. In the cover letter to Holdeman, Brittain notes, "I realize that this was against the instructions of Wilkins, but I feel the members' wishes should come first." Brittain was not paid for any overtime worked during December 1976 and January 1977. At the January 12 Houston Port meeting Captain George Roberts, a member of Respondent, introduced a motion to have International President Scavo negotiate a contract with the secretarial union. The motion passed. Upon being informed of this event, on January 16, Boke- meyer wrote International Secretary-Treasurer Lowen, inter alia: I was delighted to receive the information on the fol- lowing resolution that was put in motion by Captain Roberts, seconded by Captain Haley and carried by a majority of the membership at the last I.O.M.M. & P. union meeting of January 12, 1977. Be it resolved that the membership hereby in- struct President Frank Scavo to negotiate with the Secretarial Union OPEIU for the protection against anti-labor and unfair labor practices of some elect- ed union officials. For this I want to thank all those union members who care enough for another union member to recognize the fact that the secretaries need a contract in order to eliminate that undue harrasment (sic) that is shown to them for political reasons. Bokemeyer then indicated that she was aware of Brit- tains' situation and would like to start negotiations for a contract. The record does not reveal whether there was an answer to this letter. According to Respondent, the catalyst which precipi- tated Brittain's discharge on March 7, rather than March 25, or later, which date would make her eligible for maxi- mum pension benefits, was an altercation between Captain Roberts and Assistant Port Agent Massey, which Respon- dent contends was the result of Brittain's "contrived ef- forts." Apparently, by March, while no official campaigns for the position of port agent and perhaps other offices were underway, members had begun to discuss, and campaign for, their favorite candidates for the nominations which would be made in June. Respondent's members were free to have personal documents as well as work-related docu- ments duplicated on the office copying machine. However, it is not disputed that the copying machine was not to be used for duplication of any political related materials. Ac- cording to Brittain, on March 3, at or about 9 a.m., Cap- tain Roberts brought her his PRO and asked to have some "papers" duplicated. She volunteered to copy the papers on the office machine since she had nothing to do except Roberts' PROs. At or about the time she finished the dupli- cation and returned the documents to Roberts, Assistant Port Agent Massey came into the office. 9 Both Massey and Roberts left the office but Massey returned a few minutes later and inquired of Brittain what she had copied for Rob- erts. Brittain replied that she did not know since she had not read the papers. Massey again asked what she had cop- ied for Roberts and Brittain replied that she had done for Roberts the same as for any member and had copied what- ever he brought, without question, and told Massey that Roberts was in the "hall" and he could ask Roberts if he wanted to know. Brittain testified that Massey then com- plained generally about her work but would not give her any specifics. ° Susan Hester observed and overheard this exchange be- tween Masse) and Brittain and went into the "hall" and told Captain Roberts that Massey was harrassing Brittain. Roberts returned to the office and asked Brittain if Massey was harrassing her and upon receiving an affirmative re- sponse Roberts told Massey that it was a mighty little man who would harrass the secretaries and invited Masse)' into the "hall" so the members could witness their conversation. Brittain testified that while she did not overhear the entire episode in the hall she heard Massey accuse Roberts of being an organizer for OPEIU and of harrassing the dis- patcher. Roberts denied this and Massey then called Rob- erts a "ship wrecker" at which time Roberts became angry and told Massey if he repeated that, he would, "knock your teeth down you throat." Masse), removed his optical glass- es and repeated the statement to Roberts. Roberts hit mas- sey and Massey yelled for some one to call the police, that Roberts was killing him. The police were not called. Mas- ses returned to the office with a bruised eye and said to Brittain "see what your contrived effort has caused."" Massey then telephoned Wilkins who was in San Fran- cisco and reported the altercation with Roberts and stated that he had been trying to instruct Brittain in her work when Roberts accused him of harrassing her. He made other complaints to Wilkins concerning Bnttain's alleged excessive use of the telephone for personal calls and her failure to timely have the members' checks prepared and her general failure to carry out Wilkins' orders. Wilkins thereupon told Massey "this is the last straw." that he was going to have to let her go. C. The Discharge On March 7, when Wilkins returned to Houston, he had Hester prepare the following termination notice for Brit- tain: 9 M1iasse' was In charge of the office since Wilkins was out of town " Nasses testlfied that he asked Brittain If the papers duplicated for Roberts aere political and Brittain Ild him to ask Roberts He further stales thai he did not harass her. but inquired as to how mans PRO checks she had to do Brltlain responded that Masses should write her a letter if he had a.n questllolls '' 1 he foregoing findlngs are based on a sssthesls of the credited testl- niollns of Britllain. ester, and 1Masse, Roberts did not testifs 839 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To whom it may concern: Re: Termination of employment of Mrs. Alice Brit- tain, Office Secretary. Port of Houston. Mrs. Alice Brittain's employment by the Offshore Division of I. O. M. M. & P. and the Plans of the Offshore Division was terminated effective March 7. 1977; as a result of repeated neglect of duties, and general insubordination. She has steadily decreased her attention to duties. and increased her involvement in other affairs of the Union, including the writing of unauthorized letters. Circulating Petitions, making lengthy telephone calls, and submitting unauthorized overtime. The overtime, created by using her time conversing with members in the hall and on the telephone during working hours; while claiming she can not get her work done during her seven hour day, without the payment of overtime, at home, nights and weekends. Several relief secretaries, (including her daughter) did the work competently and easily during working hours, while she was absent from her duties or on va- cation. She spends a lot of her time complaining to mem- bers and their wives about her workload, working hours and conditions and her pay without any over- time. Her work shows mans errors, and many complaints from New York headquarters, including check over- payments and underpayments to members. It is regrettable that she elected to egnore [sic] the repeated warnings she has been given the past two (2) years while we were trying to retain her job. Her actions finally left us whith [sic] no alternative but to terminate her services. Fraternally. Paul Wilkins, Port Agent Houston, Texas P.S. Since Mrs. Brittain's twelve (12) years service, for possible pension credits, will expire in March of this year; out of common decency, I recommend that she be given full pay and credits for the twelve (12) year period. Word of Brittain's termination spread throughout the gulf coast area rapidly and the "furor and controversey" it caused among the members is reflected by the attendance at the March 9 membership meeting which was character- ized by Wilkins as the "largest ever," and included several other port agents and Holdeman. According to Wilkins, who usually presides at these meetings, Holdeman physi- cally took over the chair and presided over the meeting which involved solely the issue of Brittain's discharge. The membership voted 72 to O, with 2 abstentions, to have Brittain reinstated.' lloldeman then called Brittain and advised her of the action of the membership and Wilkins had withdrawn his dismissal letter.) He instructed her to report to work at the usual lime on March 10. Brittain l This vote was clearly an ultra vires act on the part of the membership and cuiuld only have the effect eof expressing their disagreement with Wil- kins' actluns. t Wilkins denied that he withdrew the termination letter reported to work on March 10 and found Hester occupying her chair. Assistant Port Agent Massey informed her that Wilkins had instructed him to ;cll her if she "turned to" (did any work) she would lose her 12 years' pension credits. Scavo was evidently advised of the action of the mem- bership, for on March 10 he sent a telex to Holdeman, with a copy to Wilkins stating: "I will make my decision regard- ing the status of Alice Brittain secretarz [sic] after I have received a full report." Brittain remained at the office dur- ing regular working hours each working day, until March 30, but apparently did little or no work pursuant to Wil- kins' instructions. She was paid for this time. During this time Wilkins received advice from International Secretary- Treasurer Lowen and others that his first discharge letter to Brittain was not good, and was told by some that it would not "hold water," which prompted him to write a second letter on March 30, which purports to be a supple- ment to the March 7 letter. The letter is as follows: Ms. Alice Brittain 2015 Dorothy Pasadena, Texas Dear Ms. Brittain: As a supplement to my recent letter and to elabo- rate the reasons for your dismissal from your position, listed below are the specifics of your repeated neglect of duty and general insubordination: I. The increased carelessness and inattentiveness to your job functions resulting in numerous errors direct- ly affecting the membership of the Masters, Mates & Pilots. 2. Your carelessness and inattentiveness to your du- ties has resulted in numerous complaints from New York headquarters with regard to overpayment and underpayment in benefits to members of the Masters, Mates & Pilots. 3. Although your job responsibilities have not in- creased, you have repeatedly requested overtime to complete work that should have been completed dur- ing regular working hours. 4. The inordinate amount of time spent on the tele- phone for personal reasons. 5. Your submission of overtime vouchers for over- time work that was not authorized. 6. Your increased involvement in the internal af- fairs of the Masters, Mates & Pilots resulting in a lack of attention to and neglect of your clerical functions. 7. Your general lack of respect and insubordination to your superiors. 8. Your instigation and complicity in an altercation between Captain George Roberts and Assistant Port Agent, Ray Massey. For the above reasons, your conduct left me no al- ternative but to terminate your services, effective March 7, 1977. You are hereby advised that your pres- ence in the union office is not desired since you have become a disruptive force in the operation of this of- fice. Very truly yours, Paul Wilkins, Jr. 840 INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS Port Agent, Houston PW/mg cc: Frank Scavo Harry Seidman Steve Maher A. Holdeman R. Lowen Attorneys RF Also, on March 30, International sent the following telex to Wilkins: 3/30/77 President Scavo ATTENTION PAUL S. WILKINS I RECEIVED YOUR TELEX REGARDING A SUPPLEMENTAL DIS CHARGE LETTER YOU GAVE TO MS ALICE BRIllIAIN. HOU:STON BRANCH SECRETARY. IT HAS BEEN THE POLI(CY OF THE ORGANI ZATION FOR THIS OFFICE TO SUPPORT THE PORI AGENTS IN THEIR DISPUTES REGARDING OFFICE EMPI.OYFFS WAORKIN(i L N- DER THEIR AUTHORITY FOR THE TIME BEING. MISS BRITTAIN IS TO BE CONSIDERED OFFIl- CIALLY DISCHARGED AND HER PAY WILL BE STOPPED EFFECTIVEF FRIDAY, APRIl. IST. HOWEVER, BECAUSE OF THE FURROR AND CONTROVERSY BY Tlil MEMBERSHIP IN AND AROUND THE HOUSTON AREA CREATED By THE DISCHARGE OF MISS BRITTAIN, I AM GOING TO PI T THIS ON THE AGENDA OF THE OFFSHORE DIVISION EXECUTIVE (COUNCIL FOR FURTHER CONSIDERATION I EXPECT THAT I WILL. CAL. THIS COUNCEL MEETING WITHIN A WEEK OR SO FRANK T SCAVO INTERNATIONAL. PRESIDENT Thus, the discharge of Brittain was finally' concluded. The record does not disclose what, if any, action was taken at the Council meeting referred to by Scavo in his March 30 telex. D. Analysis and Conclusions As noted supra, footnote 8, the resolution of the issue of Respondent's motivation in discharging Brittain turns, not upon material credibility resolutions, but upon inferences warranted by the undisputed relevant facts. It is true, as argued by the counsel for the General Counsel in his brief. that Respondent had knowledge of Brittain's membership in the OPEIU, and of the sporadic efforts made to obtain a written labor relations agreement for her which efforts were intensified after September 1976, when Brittain was informed that it would probably be necessary to reduce her lucrative overtime. Prior to that time there had been only one request to execute such an agreement, April 14, 1971. Subsequently, on September 16, 1976, such requests were made to Holdeman, and on, January 17, to Lowen. As indicated above, the election in which Wilkins defeat- ed Port Agent Polumbo was preceded by a bitter campaign into which Brittain injected herself as an advocate of Po- lumbo. It appears that this struggle for the position of port agent in Houston was merely an extention, or element, of a longstanding feud between Scavo and Holdeman. While the record herein does not reveal the origin or nature of the feud it is evident that the membership of the Houston Port. and perhaps the entire Union were sharply divided. Evi- dent also, is the fact that Wilkins and Massey, the so-called "new regime," were aligned with the Scavo faction, while Captain Roberts, Brittain. and probably Polumbo, were aligned with Holdeman. This case is immersed in that po- litical feuding and the actions of all participants herein must he analyzed in that context. With respect to the General Counsel's claim that Re- spondent demonstrated hostility and animus towards Brittain's efforts to secure a union contract, I find little support in the record for such contention. True. Respon- dent had an acknowledged policy and practice of not en- tering into labor relations agreements for single employee units. As to such units, it appears that Respondent made some effort to maintain comparable wage scales. albeit, sometimes not successful, as in the case of Brittain. While the Board would not certify a bargaining representative or issue a bargaining order in a single-employee unit, such single-unit employees are certainly protected by the Act and an employer may not discriminate against them for engaging in activities designed to obtain representation. However. I do not deem the mere existence of a policy of a multiunit employer not to enter into written agreements for single employee units to constitute evidence of animus to- wards union activities. The only other acts possibly constituting evidence of ani- mus to be gleaned from this record is the accusation by Port Agent Wilkins on January 17, upon his receipt of a copy of Bokemeyer's letter to Lowen alluding to Captain Roberts' motion at the January 12 union meeting, that Roberts was an organizer for OPEIU and he would not tolerate union against union and under no circumstances would he sign a contract. Massey also called Roberts an OPEIU organizer during their altercation on March 3. Granted, a statement that "there is no way" an employer will sign a labor contract generally warrants an inference that such employer would not bargain in good faith, and, thus, demonstrates union animus. However, given the cir- cumstances here, including Respondent's policy with re- spect to single unit employees, such inference is not war- ranted. Moreover. this statement was made by Wilkins long after his decision to discharge Brittain and he correct- ly concluded that Brittain was attempting to inject the Union into the picture to forestall her discharge for dis- obeying his orders with respect to overtime and her contin- ued involvement in intracompany (union) political activi- ties. Under the circumstances of this case, including the ani- mosity between Wilkins and Roberts arising, not from Roberts' assistance to Brittain in her attempt to get a writ- ten union contract, but from Roberts' continuing alle- giance to the Holdeman faction. i.e., the "old regime." in the intracompany (union) political struggle, I deem Wil- kins' and Massey's accusations that Roberts was an organ- izer for OPEIU to constitute meager evidence of union animus. First, predicated upon the foregoing admitted company knowledge of Brittain's union activities and evi- dence contended to establish animus toward such activi- ties. the counsel for the General Counsel argues that a pri- ma facie case of discriminators discharge is established DECISIONS OF NATIONAL LABOR RELATIONS BOARD since Brittain was blameless for the fight between Roberts and Massey which Wilkins asserted was the "straw that broke the camel's back" and which precipitated her dis- charge. He further argues that his contention that the alter- cation was merely a pretext for discharge is bolstered by the fact that several of the reasons given by Wilkins in his March 30, letter to Brittain were unsupported by any evi- dence and some totally refuted. Specifically, the counsel for the General Counsel contends that items I and 2, relat- ing to increased carelessness and inattentiveness to her job function resulting in numerous complaints from New York headquarters is unsupported by any evidence. Secondly, while tacitly conceding, as he must, that Brit- tain defied Wilkins' instructions to cut out overtime work, and hence the overtime pay by assertedly working overtime and submitting vouchers for payment without Wilkins' ap- proval, the counsel for the General Counsel contends that this disobediance "dealt solely with her wage, hours and terms and conditions of employment" and such constituted protected concerted activity. Thus, he makes the nebulous argument that she was exercising a Section 7 right to deal with her employer since she was seeking the assistance of Wilkins' supervisors in her dispute with him about the overtime issue. In his brief, counsel for the General Counsel erroneously asserts that Respondent's third reason for Brittain's dis- charge involved her being named as a codefendent in a lawsuit brought by Port Agent Ford Cummings to recover funds distributed to former officers and secretaries by the trustee for Local 20 upon its dissolution. This was not as- serted as a reason for discharge either in the discharge let- ter or at the hearing. Wilkins testified that, about Decem- ber 1976, he learned that Brittain was using the same attorney as her codefendants which strengthened his belief that her allegiance remained with the old regime. Counsel for the General Counsel is also in error in as- serting that Respondent contended as a fourth reason for discharge that a letter written by a former secretary, Betty Sue Lanclos, indicated Brittain was formerly involved in "backdoor shipping." Wilkins testified that the letter, from which an inference might be drawn that Brittain was so involved, concerned him, but did not assert that as a rea- son for discharge. The burden rests, as it must, upon the General Counsel to establish by a preponderance of credible evidence that Respondent's discharge of Brittain was motivated, at least in part, by her union or protected concerted activities. The counsel for the General Counsel failed to satisfy that bur- den here. As noted above, the distrustful but tolerable working re- lationship between Brittain and Wilkins began deteriorat- ing when Brittain was advised in November 1976 that her lucrative overtime would have to be cut out, and she subse- quently vowed to continue working overtime and submit claims for payment. By December 17, it is evident, based on the credited testimony of General Counsel's witness, Sue Hester, that Wilkins had concluded that Brittain would be terminated "when the time was right." Hester was hired to train as Brittain's replacement. Wilkins made clear to Hester that Brittain's proposed termination was prompted by her continued loyalty to the "old regime." Wilkins also told Hester that he did not want to see Brittain lose her 12 years' seniority. Also in December, according to Bokemey- er, another witness for the General Counsel, Brittain ex- pressed the fear that she was going to be fired because of her dispute with Wilkins about the overtime issue. There is no suggestion by Bokemeyer, the OPEIU representative, that Brittain's efforts to obtain a written contract contrib- uted to her fear of discharge, but only her defiance of Wil- kins' orders to cut out the overtime. It is well settled by the Board and the courts that "absent a showing of anti-union motivation an employer may dis- charge an employee without running afoul of the fair labor laws for a good reason, a bad reason, or no reason at all." N.L.R.B. v. O. A. Fuller Super Markets, Inc., 374 F.2d, 197, 490, 491 (C.A. 5, 1967). I find no merit in the General Counsel's contention that Brittain's defiance of Wilkins' orders to cut out her overtime became protected concerted activity because, after disobeying the order, she sought the assistance of Wilkins' supervisors to obtain payment for her overtime work. Such flagrant disobedience is certainly good cause for discharge. Where such good cause is shown it is incumbent upon the General Counsel to establish by an "affirmative and pervasive reason why the employer rejected the good cause for discharge and chose a bad one." See Firestone Tire & Rubber Company v. N.L.R.B., 539 F.2d 1335 (C.A. 4, 1976). True, Respondent clouds the issue of its motivation in the discharge of Brittain by attempting to buttress its good reasons for the discharge with reasons it failed to establish, specifically that the quality of Brittain's work deteriorated incurring complaints from the New York office. However, I am unwilling to infer, under the circumstances here, that because some of the asserted reasons will notwithstand scrutiny, all of the asserted reasons should be rejected. In short, I find that Brittain's discharge was motivated by her defiance of Wilkins' orders to cut out her overtime and her submission of vouchers without Wilkins' knowl- edge or approval to Captain Holdeman and the New York office. True, Wilkins welcomed the opportunity to get Brit- tain out of the office because of his reasonably grounded belief that her allegiance remained with the "old regime" and her presence in the office and association with the membership would be detrimental to him in the upcoming election. Indeed, Wilkins could have fired her for that rea- son alone without running afoul of the Act. However, this is undoubtedly a motive that he would prefer not to assert to the membership in view of Brittain's apparently good rapport with most of the membership. I know of no cases, and counsel for the General Counsel cites none, where the Board has held that an employee may with impunity be insubordinate to, and/or disobey orders of, a superior so long as the insubordination or disobedi- ance stems from a dispute relating to terms and conditions of employment. On the contrary, the Board has consis- tently held that where an employee gives an employer a good reason to discharge, the mere fact that he has en- gaged in protected activity does not immunize him from discipline including discharge. See Kennedy & Cohen of Georgia, Inc., 218 NLRB 1175 (1975); Golden Nuggett, Inc., 215 NLRB 50 (1974), and Klate Holt Company, 161 NLRB 1606 (1966). 842 INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS Considering the above, I find no merit in counsel for the General Counsel's contention that Brittain's discharge was triggered by the altercation between Massey and Roberts in which he contends she was not implicated. As noted the decision to terminate her had been made long before and I am persuaded that, as Wilkins testified, he was trying to keep her on until she had acquired her full 12 years' service for pension credits. Moreover, I am not convinced that Brittain's responses to Massey's legitimate inquiry with re- spect to what she had duplicated for Roberts and her sug- gestion that Massey ask Roberts were not designed to pro- voke a confrontation between them. This entire episode is immersed in the political feuding heretofore noted and even if it were found to be the cause for discharge such would not violate the Act. Accordingly, I find that the General Counsel has failed to establish by a preponderance of the evidence that Re- spondent terminated Alice Brittain because of her union or protected concerted activities. CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. The Respondent has not violated the National Labor Relations Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section I(hc) of the National Labor Relations Act, I issue the following recom- mended: ORDER 14 It is hereby ordered that the complaint be, and it hereby is. dismissed in its entirety. 1 In the event no, exceptions are filed as prosided b) Sec 102 40 of the Rules and Regulations of the Nallonal Labor Relations Board. the findings. conclusions. and recommended Order herein shall. as provided In Sec 1i12 48 of the Rules and Regulations, he adopted hb the Board and become it, findings. cinclusion. and Order. and all objections thereto shall he deemed walved for all purposes 843