Edward Transportation Co.

EDWARDS TRANSPORTATION CO. 3 Edwards Transportation Company and Inland Boat- men's Union of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO. Case 15-CA-3613 December 7, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On July 8, 1970, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be disinissed. Thereafter, Respondent filed exceptions to the Trial Examiner's unfair labor practice findings and a supporting brief, and the General Counsel and the Charging Party filed briefs in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. As more fully set out by the Trial Examiner, Respondent operates about 21 tugboats in Louisiana. Following an organizational campaign, the Charging Party and Respondent signed a Stipulation for Certification Upon Consent Election. The election was held on February 14 and 24, 1969, and the Union received a majority of the votes. Respondent then filed objections which are currently pending. The complaint alleges that preceding the election, Respondent engaged in, and employed a deckhand, Frank, to engage in, surveillance of union activity in violation of Section 8(a)(1) of the Act. The Trial I The Board has reviewed the affidavit of Leroy Jones and finds without merit Respondent's contention that the Trial Examiner erred in refusing to compel the General Counsel to furnish the affidavit to Respondent for use in cross-examining Jones The affidavit, which was given to a Board agent in connection with Case 15-RC-4057, does not relate to the subject matter of Jones' testimony in this proceeding The Trial Examiner's ruling is Examiner concluded that Respondent did employ Frank to spy on union organizational activity, that Frank made periodic reports to Respondent's person- nel manager, Stewart, and that Stewart used this information to deny union organizers access to Respondent's boats. The Trial Examiner's conclu- sions are based on the following facts found by him and supported by credited evidence: Soon after the Union began its organizational campaign, Frank voluntarily went to Stewart and offered to find out which employees favored the Union and to report the names to Stewart. Stewart agreed, and, thereafter, Frank went from boat to boat gathering information and reporting to Stewart.2 On February 7, 1969, Stewart drove Frank to a motel. During the ride Stewart told Frank that the union organizers were also staying at the same motel. When Frank checked into the motel he heard a shortwave radio in the next room and concluded that the organizers were in the next room monitoring the activity of Respondent's boats. Frank then telephoned Stewart who told him to find out which boats the organizers were going to visit. Later, Respondent's dispatcher, Falls, arrived at the motel, listened through the wall to the radio, gave Frank money, and told him to stay at the motel and to find out where the organizers were going. Falls assured Frank that he would receive his full salary plus expenses. Frank stayed at the motel from February 7 until February 13, the day before the election. During that time, Frank became friendly with the union organiz- ers who believed that Frank was staying at the motel because of an old injury. Frank accompanied the organizers throughout the week and made daily reports of their activities to Stewart either by telephone or handwritten notes. Prior to Frank's arrival at the motel the organizers had boarded Respondent's boats without incident, but beginning with Frank's arrival the organizers were met by company personnel who prevented them from visiting the crews. Although the Trial Examiner found that Frank was not an entirely credible witness, particularly with respect to his activities immediately prior to his arrival at the motel, he credited Frank's account of the events described above which occurred when and after Frank arrived at the motel, based in part on demeanor. Unlike our dissenting colleague, we find that the Trial Examiner was not required to discount everything Frank testified to because he did not believe all of it. Nothing is more common than to consistent with Sec 102 118, National Labor Relations Board Rules and Regulations, Series 8, as amended, and with Byrne Dairy, Inc., 176 NLRB No 40 2 This conduct was outside the 6-month limitation period provided for in Sec 10(b) of the Act and was received only as background to the violation alleged in the complaint 187 NLRB No. 2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believe some and not all of what a witness says. N.L.R.B. v. Universal Camera Corp., 179 F.2d 749 (C.A. 2). The probative force that should be given an Examiner's report reaches its highest significance when an issue turns on credibility. Rocky Mountain Natural Gas Co. v. N.L.R.B., 326 F.2d 949 (C.A. 10). The Board will not overrule a Trial Examiner's credibility findings except where the clear preponder- ance of all the relevant evidence convinces the Board that the findings are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Having carefully reviewed the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing those findings. We therefore adopt the Trial Examin- er's conclusion that Respondent violated Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Edwards Transportation Company, New Orleans, Louisiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting: I am unable to agree that there is substantial credible evidence in the record to support the findings, which is essentially based on the testimony of deckhand Frank, that Respondent employed Frank to engage in surveillance of union activities. From the outset the Trial Examiner found that Frank's testimony was contradicted by the documen- tary evidence. Thus, according to the payroll records, Frank did not serve on the particular boats on the particular days to which he testified, nor did he call Stewart from his home at the time he said he did. Relying in part on Frank's demeanor, the Trial Examiner characterized Frank's testimony as to these and other events as "suspect," and "incorrect." In addition, the Trial Examiner found that Frank "appeared to be testifying under considerable emo- tional stress"; "was not a forthright witness"; con- cealed matters on direct examination ; and "was probably endeavoring to conceal what actually happened." Likewise, I regard as significant that Frank is completely discredited by the Trial Examiner with respect to two other allegations in the complaint, and those findings were not excepted to. In these circumstances, Frank's unsupported testi- mony (which the Trial Examiner called not entirely trustworthy, even with regard to the crucial events herein) alone is insufficient to warrant a finding that the General Counsel has sustained his burden of proof. The Trial Examiner seems to have found that, though the General Counsel's witness was dishonest, he was less dishonest than Respondent's witness. To me, in the determination of litigated facts, the testimony of one who has been found so unreliable cannot provide that preponderance of the evidence which the statute requires. Therefore, I would dismiss the complaint in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner : This case was tried at New Orleans, Louisiana, on May 19-20, 1970, pursuant to a charge filed on August 4, 1969 ,1 by Inland Boatmen's Union of the Seafarers' International Union of North America, Atlanta, Gulf, Lakes and Inland Waters District, AFL-CIO, herein called the Union, and pursuant to a complaint issued on April 10, 1970. The primary issues are whether the Respondent , Edwards Transportation Compa- ny, herein called the Company, (a) employed a deckhand to act as a company spy at a motel where the Union had organizing headquarters, (b) made threats of discharge, violence, and loss of benefits, and (c) created the impression of union surveillance, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel , the Company, and the Union, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company is engaged in the business of marine towing at New Orleans and other places in Louisiana, where it annually receives materials valued in excess of $50,000 directly from outside the State . The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company operates a fleet of about 21 tugboats in Louisiana . The Union began organizing the nonsupervisory personnel on the tugboats , and on December 11, 1968, filed a petition for an election . On January 15, the Company and the Union signed a stipulated consent-election agreement. The election was held on February 14 and 24, and the ' All dates, unless otherwise indicated , are in 1969 EDWARDS TRANSPORTATION CO. Union received a majority of the votes. On March 4 the Company filed timely objections , which are still pending. Inasmuch as the Union's charge herein was not filed and served until August 4, none of the Company's conduct before February 4 is alleged to have violated the Act. (Three allegations in the complaint, that Personnel Manager Billy Stewart unlawfully interrogated , and made threats to, an employee on February 7, were withdrawn at the trial when the company records revealed that the alleged conduct, even if proved, would have occurred before February 4.) However, as background, the General Counsel did introduce testimony by another employee of asserted company conduct occurring before February 4, in support of the contention that later, during the week preceding the February 14 balloting, this employee, deckhand Louis A. Frank, was "a paid spy for the Company." As held in Local Lodge No. 1424, International Association of Machinists [Bryan Mfg. Co.] v. N. L R. B., 362 U.S. 411, 416-417 (1960), such "earlier events may be utilized to shed light on the true character of matters occurring within the [Sec. 10(b) 6- month] limitations period." Former employee Frank testified that in the latter part of December 1968, he voluntarily went to Personnel Manager Stewart and offered to go out and find some information about the Union. (Frank testified that he wanted a promotion from deckhand , paid $15.50 a day, to wheelman, paid $27 a day.) Steward indicated that he thought Frank's idea was a good one and stated (in Frank's words), "Go find out who all was for the Union, and if they done something wrong on the boat, he was going to let them go." Thereafter, Frank went from one boat to another, "went along with" the crew "like I was for the Union," and "the ones that was for it, I would write down on a piece of paper, and I would give that information back to Billy Stewart," until about February 3. (The evidence shows that he worked on three tugboats in the latter part of January and early February, but does not disclose where he was assigned in December and early January.) Personnel Manager Stewart , on the other hand, testified that he never talked to Frank about the Union before February 7. Frank' s and Stewart's credibility will be discussed hereafter. It is not disputed that during his employment with the Company, he received two injuries: one to his nose on Thanksgiving Day 1967 and one to his eye in November "the following year," 1968. B. Allegation of Company Spy 1. Going to motel and being paid Deckhand Frank and Personnel Manager Stewart both testified that on or about Friday, February 7, Stewart drove Frank to the K'Teri Motel (in Chalmette, Louisiana) where they knew union representatives were staying, and that Frank thereafter reported to Stewart information about the Union's activities. However, neither Frank nor Stewart gave a satisfactory account of the circumstances. a. General Counsel's version 5 Frank, testifying for the General Counsel , gave incorrect testimony that he had been on leave, rather having gone from a boat to the motel. He testified that he was on the tugboat Keith Sterling for a few days, that he switched to the D'Artagnan, and that on leaving the D'Artagnan, he contacted Stewart in the Company's Chalmette office for a loan, and then went home (about 200 miles away). He testified that he was not sure of the dates, but he believed thathe left the D'Artagnan about February 3, and that about February 6 he telephoned Stewart about returning to work. The payroll records show that he had been on the Keith Sterling, and that on January 23 he left that tugboat and boarded the D'Artagnan, which he left at Chalmette a day later, on January 24. Therefore, it would appear that if Frank did go home after leaving the D'Artagnan, he did so on January 24 (not February 3). More important, however, the payroll records show that if he thereafter placed a telephone call from his home to Stewart to get permission to return to work, this happened in late January (not February 6). The records show that he returned to work on January 30, aboard the tugboat G. C. Linsmier, and that he left that boat at 2:30 p.m., February 6. Therefore, according to the company records, Frank could not have been at home on February 6. Frank nevertheless testified that when he called from home about February 6, Personnel Manager Stewart said he could return to work. Then when he arrived at Stewart's office about February 7, Stewart advised him that the boat would not be in until the next day. According to Frank, Stewart gave him a loan for 1 day 's rent, gave him a ride to the motel, and on the way "told me to be careful and keep my eyes and ears open, that the SIU men from the union hall were there, and to report if anything might be helpful." When Frank got to his room, he found that he was in a room next to where the Union had its shortwave radio, monitoring the radio conversations between the Company's tugboats. He telephoned Stewart, who told him to keep his ears open, that he might be able to determine which boats the union men would be visiting . Thereafter , Dispatcher Joe Falls arrived from Stewart's office, listened to the Union's monitor for a while, and told Frank that he "should stay over for another few days anyhow." Falls told him that he would be paid his full salary while staying in the motel, plus expenses, and advanced him more than enough money in cash to pay for a week's rent. Later Frank talked again to Stewart, who "said it would be very helpful" if Frank could get all the information , and that "I would be on the payroll." Frank signed a "slip" (or receipt) for each of the advances that week. On direct examination , Frank gave no information about being instructed by Personnel Manager Stewart to use Frank's 1967 nose injury as an excuse for being at the motel. According to Frank, he went to the motel to wait a day for the arrival of a boat; whereas the documentary evidence shows that he had been on a boat since January 30, and that he left the boat at 2:30 p.m. the day before, February 6. On cross-examination, when he appeared to be testifying under considerable emotional stress, he gave information which at least implied that spying was his purpose for going 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the motel in the first place. Upon being asked if he ever told anybody that he moved into the K'Ten Motel directly from off a boat, he testified that he had-that he told one of the union officials in the motel, "just like Billy [Stewart] told me to tell them . . . that I had got hurt or got inured" On redirect examination, he testified further that when he checked into the motel, he told them "I was hurt, that I was going to the doctor the next day." (He did visit a doctor, but that was in Houston-about 365 miles away-10 days later.) Frank then volunteered that the Company "didn't want them to know that I was set up in there for spying on them". On recross-examination, Frank was asked whether he testified that "going to the motel" was more or less his idea and whether he volunteered to do it. He responded, "Well, Mr. Billy Stewart didn't want me to say anything about it or get him in trouble either. I was thinking about my job,just like everybody else was." For some undisclosed reason, Frank concealed other matters as well when testifying on direct examination. For example, he testified on direct about engaging in union activity surveillance for the Company, beginning in December. He gave no hint that he had volunteered to do this until he was asked by company counsel on cross- examination, "Louis, didn't you initially go to Billy Stewart and volunteer to go out and find some information about the Union." Frank then answered, "At first I did, yes. He thought it was a pretty good idea." (I note that even though the company counsel asked this question about Frank initially volunteering, Stewart later denied that he had ever talked to Frank about the Union until they rode together to the motel on February 7. 1 discredit Stewart's denial.) Frank's testimony is also suspect because he indicated that he had given incorrect information a year earlier, when he gave a prehearing affidavit to a Board agent in support of the Company's election objections. He testified that when he gave that March 11 affidavit, he was frightened and worried about his job, and was "doing what Billy Stewart wanted me to do." In determining his credibility, I have also considered his testimony that after he gave the affidavit, he lost friends and was called a "two-timer"; that when the Company "didn't give me the job that they had promised me," he reported his surveillance activity to the union officials who helped him get a wheelmanjob, which he did not keep because he could not get along with the captain; that he was currently unemployed; and that when he was subpenaed by the General Counsel, he spoke to both Personnel Manager Stewart and the Union before testify- ing. Having considered all the foregoing, and having observed his demeanor on the stand, I have concluded that Frank was not an entirely forthright witness, and find that he was probably endeavoring to conceal what actually happened when he testified that he originally went to the motel to wait a day for a boat. A question remains whether or not Frank's testimony should be credited to the extent that he testified that he stayed at the K'Ten Motel about a week before the February 14 election as a paid spy for the Company, and that Personnel Manager Stewart instructed him to use his 1967 nose injury as an excuse for being there. b. Company's version General Manager Stewart, while correctly testifying that deckhand Frank left the boat on February 6, gave a most dubious account of how Frank stayed at the motel without any money being advanced to him, and how Stewart showed no interest in Frank's surveillance of the Union's activities. Stewart testified that Frank called on February 6, from the G. C. Linsmier, said that his nose was bothering him, and got approval to leave the boat. The next morning, February 7, Frank was "just middling around more or less in the office and you know, he told me, the splinters were in his nose and bothering him, and all I said, Louis,you should go see a doctor." (Emphasis supplied.) Frank asked if he could hitch a ride with Stewart, who was going to the post office. Stewart testified, "I said, sure, you can. So I dropped Louis off in front of the K'Teri Motel." Stewart then added, "I don't remember discussions from the office to the motel that was of any significance or ordinarily I would remember it." Q. Okay, did he say he was staying at the K'Teri? A. Yes, he has stayed at the K'Teri Motel. Q. And did you tell him that the union people were staying in there? A. I mentioned to him, I said, "Now, Louis, the men from the union are staying here also. " Q• * s ► s s Now, when is the next time that you heard from Louis about the Union? A. Louis called me . . . around 8:30 or 9 o'clock at my home . . . and he says, "I am in the K'Teri Motel, and I am right next door to the union people." I said, "Well, Louis, I mean, well, so what?" He said, "well, I can hear a radio, a boat radio. I can hear boats talking." I said, "Well, what are you going to do, Louis." He said "I am going to stick around and see what is going on." I said, "Well, okay, Louis, I appreciate your calling but there is nothing I can do." So that was our conversation. Q. Was anything said about a transmitter or a receiver? A. He says "I hear boats talking so apparently they got a transmitter in there, a receiver in there." I said, "Well, they can have a receiver ... . Anyone can have a monitoring device. [Emphasis supplied.] Stewart denied giving any money to Frank, or giving Dispatcher Falls money to give to him. Stewart testified that he keeps company money for expense purposes, but that Falls does not and that Falls has no authority to give out money. (Falls did not testify.) Stewart denied telling Frank that he would be paid his wages. Thus, according to Stewart's testimony, Stewart merely mentioned to Frank that he should see a doctor (without making any appointment or offering him any money to live on while away from work); Frank asked for a ride to the motel, and Stewart casually mentioned that union representatives were staying there; Frank himself decided to "stick around and EDWARDS TRANSPORTATION CO. see what is going on" after the union radio was discovered, even though (Stewart claims) they had never discussed the Union before, and despite Stewart's purported advice that Frank should see a doctor; and Stewart indicated no interest in what the Union was doing, and gave Frank no advance either to pay the rent or to live on. In his testimony, Stewart mentioned nothing about telephoning the Houston office, reporting Frank's need for money, or arranging to have Frank paid his wages as advance maintenance. Frank's need for living expenses was revealed by the next company' witness, General Manager John E. Redding, from the Company's Houston office. He testified that Stewart telephoned him on the evening of February 6 or the morning of February 7 and reported that Frank had to leave the boat because of the nose injury and that "Louis would need some money while he was off the boat for advance maintenance." Redding testified that he instructed the bookkeeper "to pay Louis on this boat as advance maintenance," that the check was issued "probably" on February 6 or 7, and "was sent to him immediately." This testimony would explain how Frank was able to stay for a week at the motel, and would tend to confirm Stewart's testimony that the Chalmette office did not advance Frank any money that week (contrary to Frank's testimony). But the documentary evidence contradicted Reddmg's testimo- ny. The payroll records show that Frank's paycheck was not written and sent to him on February 6 or 7. It was written on February 17, when it was given to Frank personally in Houston-after Frank had already checked out of the motel and after the February 14 balloting-when Frank was in Houston for a physical examination for his 1967 nose injury. (Although arguing in its brief that "There was no other money paid to Frank," the Company conceded that the signing of a "slip" for each advance-as contended by Frank-"would have been in accordance with the company practice on wage advances, and any cash would have been deducted from his pay.") When shown the payroll records, Redding offered no explanation how Frank's reported need for money was met in the meantime. Redding testified, "It was a question of getting it to him right then . . . we knew he was off the boat, and knew he needed the money, I gave them instructions to get him the money as quickly as they could . . . the check was not made until the 17th and I don't know why it was not made, because normally we get it out quicker." Evidently Redding (who impressed me as an honest witness) did not know or recall that the February 17 paycheck was given to Frank m person, or what arrangements had been made to advance Frank money in the meantime. I credit Frank's testimony about being told he would be on the payroll and about receiving several advances in cash during the week before the election. (The records show that he was paid his full wages, at $15.50 a day, on the G. C. Linsmier from January 30 through February 12, wages at the higher rate of $18.50 a day for February 13 through 15, and wages at $15.50 a day for Sunday and Monday, February 16 and 17, when he was in Houston for the physical examination. Redding testified that the wages could be collected from the insurance company as advance maintenance.) Although General Manager Reddmg impressed me as a 7 credible witness, Personnel Manager Stewart did not. Stewart appeared nervous and tense while testifying, and at times would take a deep breath or a long pause before answering, as if he were attempting to fabricate testimony favorable to the Company rather than reveal what actually happened. He not only gave some dubious testimony, as indicated above, but he also gave conflicting testimony as shown hereafter. c. Conclusions Both the Company and the General Counsel had only one witness to testify about the circumstances of Personnel Manager Stewart taking deckhand Frank to the motel where the union organizers were staying, and Frank's decision to engage in surveillance there . Neither of the two witnesses proved to be entirely trustworthy. Even if Stewart's testimony were believed that Frank left the G. C Linsmier because his nose (injured over a year earlier) was bothering him, the evidence shows that the Company agreed to pay Frank his full wages while he was engaging in surveillance of the Union-rather than proceeding to see a doctor for the physical examination. However, after weighing all the evidence , I consider it more likely that neither Stewart nor Frank gave a factual account of how Frank happened to go to the motel in the first place. As previously indicated, Stewart's denial that he had ever discussed the Union with Frank is discredited. Although Frank is found not to be a forthright witness, he appeared to be more trustworthy than Stewart. Where there is only a choice between the word of one or the other, without credible evidence or circumstances supporting Stewart's testimony, I credit Frank's testimony as bemg more likely to be reliable. Accordingly I find, as testified by Frank, that when Frank volunteered in December 1968, to engage in union activity surveillance, Stewart indicated that this would be a good idea and asked Frank to find out who were for the Union on the various boats where he worked. I also credit Frank's testimony that after he discovered a union radio in the room next to his in the motel, both Stewart and Dispatcher Falls suggested to him that he engage in the surveillance, while assuring him that he would be paid full wages while doing so . I further credit Frank's testimony that Stewart told him to use the prior nose injury as an excuse to conceal his real purpose for staying in the motel during the week before the election. I therefore find, as alleged in the complaint, that deckhand Frank was the Company's agent during the week preceding the February 14 balloting when Frank was engaged in the alleged union activity surveillance. C. Alleged Spying on Union Representatives As deckhand Frank credibly testified, Union Organizer Tom Walsh came to Frank's room on the first or second day of Frank's stay in the motel, and invited him to Walsh's room for coffee. Before going to Walsh's room, Frank telephoned Personnel Manager Stewart and reported the invitation. Stewart told Frank to get all the information he could: what boats the organizers were visiting, which employees had union authorization cards to be signed, and which employees were signing them. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Frank spent much time with the union organizers, pretending to be interested in helping them organize. As he obtained information (who were coming to the motel to visit the union agents, who were signing pledge cards, when and where the organizers planned to visit the tugboats, etc.), he reported it to Stewart daily, over the telephone, in person at the office, and in written notes. Stewart admitted that Frank reported to him that week about the union activity, both by telephone and when Frank "would drop by the office just about every day." Stewart also admitted receiving the written notes from Frank during this time. (Stewart claimed that he did not know what happened to the notes.) When asked if Frank ever told him "where the union organizers were going," Stewart first denied it, stating "No. He may have said where they had been, but he never came out and said they are going here or there, right like that." (Emphasis supplied.) Then, in response to other questions, he changed his testimony. He testified that Frank would call and report that "they said they were going this way or that way and that was about it." Later on cross-examination, he testified that Frank quite often "had his docks mixed up. . .Frank may tell me that, well, they are going to Good Hope and the boat actually might be going to Norco or may stop at another dock." (Still later, Stewart testified that he did not recall whether Frank kept in contact with him by telephone that week-despite his earlier testimony about receiving telephone calls from Frank.) Thus, Personnel Manager Stewart admittedly received reports from Frank about the Union's organizing activities after, as has been found, he agreed to pay Frank his full wages while staying in the motel to obtain the information. I therefore find, as alleged in the complaint, that during the week preceding the February 14 balloting, the Company "by its agent, Louis A. Frank," engaged in surveillance and reporting of the union activities of its employees, and "engaged in surveillance of the union activities of its employees by spying upon certain union agents at the K'Teri Motel in Chalmette, Louisiana, and reporting to Respondent which of its boats said union agents were visiting," in violation of Section 8(a)(1) of the Act. Even if credited, Stewart's testimony that he did not use the information in any way would not be a defense to the unlawful spying. However, the evidence indicates that Stewart did utilize the information about where the union agents were going to meet the boats, by dispatching company personnel to the docks to prevent the agents from visiting the tugboat crews. (I discredit Stewart's testimony, at one point, that his only source of information where the organizers were going was the boat captain or wheelman, that "at times they would call and say, well, the men are on their way down here. I see them on the levee or something like that nature." He elsewhere admitted that Frank reported such information to him.) D. Other Alleged Section 8(a)(1) Conduct 1. Creating impression of surveillance On direct examination, deckhand Frank testified that on February 14, as he and three other employees were being driven to the polls to vote, General Manager Redding and Personnel Manager Stewart "stopped us before we got to the polls and told us that [prounion employee] Broussard was soliciting or talking for the Union before we had a chance to vote, and for us to stay away from him." He testified that Redding and Stewart were riding in a green Ford or Mercury. On cross-examination, Frank testified that this happened somewhere on the highway, but that he did not remember how the company officials stopped them, which way the green car was facing, or "whether we was parked on the shoulder or whether we were side to side." It was raining hard. Stewart denied that this happened . He testified that after he and Redding met with union representatives to help set up the voting arrangements, they got in their car (a blue Chevrolet), backed up about 50 to 75 yards, and waited there until after the balloting was over . The union representatives were parked nearby . This testimony is corroborated by Redding (who impressed me as an honest witness). None of the union representatives was called to deny that they were parked nearby the company car, or that the company officials remained at that location throughout the balloting . I discredit Frank's testimony about the matter, and discredit Stewart's denial inasmuch as it is corroborated by Redding and not disputed by the union representatives. Accordingly, I find without merit the allegations in the complaint that the Company created the impression of surveillance on February 14. 2. Alleged threats Following the election, deckhand Frank worked for the Company from February 24 to March 10, March 20 to 25, and May 6 to 17 . He testified that sometime after he returned to work, he went to Personnel Manager Stewart's office. The telephone rang. Frank answered it and called Stewart because it was a collect call. Stewart returned to the room, accepted the call, and said that Port Engineer L. Z. Walker wanted to speak to Frank. (Frank had stated in a pretrial affidavit that the telephone rang and Stewart answered it.) According to Frank, Walker "asked me if I knew where Broussard lived . . . or where he was working" and "told me that he would get him in a bar and get him drunk and take him out back and get a bunch of boys to beat him up and get the truth out of him." Port Engineer Walker, whose office is in New Iberia, Louisiana, denied placing a collect call , testifying that he would have no occasion to do so because he daily placed calls to the Chalmette office by direct dialing, and because he has a company telephone in his home and has a company credit card for placing calls. He denied having the telephone conversation with Frank, testifying that he is an elderman in the Mormon Church, is strictly against consuming alcoholic beverages , and does not frequent bars. I credit his denial. Frank further testified that on the same occasion, while he was in Stewart's office, Stewart stated "he'd find out sooner or later who signed" and "if they do something wrong on the boat, that he'd just go ahead and fire them"-that all the Union "wanted to do was to take our money." Not only is this much the same threat as Frank testified was made by Stewart in December 1968 (before the election), but it appears that such a threat (concerning EDWARDS TRANSPORTATION CO. 9 the signing of cards) would not as likely be made after the election . I also note that the evidence clearly shows that Frank had much difficulty ir. remembering dates. I therefore find that the General Counsel has failed to prove that this threat was made on or after February 4, within the 6-month limitation period. Frank also testified that "I'd say around between March and May," when he was on the G. C. Linsmier, Personnel Manager Stewart came on board and said "if we wanted the Union, go get the Union, but there won't be any more loaning of money, and the ones that don't show up after ten days off to go back to work, we would let them go, just have to find another job." Frank testified that the G. C. Linsmier was working around Venice, Louisiana, at the time, that the boat runs "on up to Baton Rouge" and other places, and that it was tied up on the day Stewart came on board. I credit Frank's testimony that the threats were made, and discredit Stewart's unsupported denial. However the General Counsel has again failed to prove that this conduct occurred within the 6-month limitation period. The evidence shows that Frank was on the G. C. Linsmier from January 30 until he left the boat at Venice on February 6. The General Counsel has failed to prove that Stewart boarded the boat on or after February 4. In his brief, the General Counsel contends that Frank may have been confused about the name of the boat, and that a finding should be made that the threats were made sometime between February 24 and May 15. However, to the contrary, I find that from the content of the threats (including the statement, "if we wanted the Union, go get the Union"), they were made before the election, not afterwards. Accordingly, I find that the alleged threat by Walker was not made, and that the threats made by Stewart were not proved to have been made on or after February 4, within the 6-month limitation period. CONCLUSIONS OF LAW 1. By employing a deckhand to act as a company spy, by engaging in surveillance of the Union's organizing headquarters through the conduct of the paid agent, and by also engaging in surveillance of its employees' union activities through this agent, the Company interfered with the employees' Section 7 rights and thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The General Counsel has failed to prove that the Company's threats of discharge and loss of benefits occurred within the 6-month limitation period. 3. The Company did not, after the election, threaten violence or create the impression of surveillance of its employees' union activities. THE REMEDY The Respondent will be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights, and to post appropriate notices. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I issue pursuant to Section 10(c) of the Act the following recommended: ORDER Respondent, Edwards Transportation Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Employing any person to engage in surveillance at a union's organizing headquarters. (b) Engaging in surveillance of its employees' union activities. (c) In any like or related manner interfering with the rights of employees guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post on each of its boats and at its Chalmette, Louisiana, office copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director of Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.3 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 2 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order and all objections thereto shall be deemed waived for all purposes in the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Oider of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 3 In the event that this recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT pay any employee to engage as a company spy at the organizing headquarters of Inland Boatmen's Union of the Seafarers' International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, or any other union. WE WILL NOT engage in surveillance of our employees' union activities. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT unlawfully interfere with our employ- This is an official notice and must not be defaced by ees' union activities. anyone This notice must remain posted for 60 consecutive days EDWARDS TRANSPORTATION from the date of posting and must not be altered, defaced, COMPANY or covered by any other material. (Employer) Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, T6024 Dated By Federal Building (Loyola), 701 Loyola Avenue, New (Representative) (Title) Orleans, Louisiana 70113, Telephone 504-527-6361.