Moore-McCormack Lines, Inc.

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moore-McCormack Lines, Incorporated and Rafael Pagan. Case 2-CA-11268 June 25, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 10, 1968, Trial Examiner Herbert Sil- berman issued his Decision in the above -entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision . Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs. 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 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 recommenda- tions of the Trial Examiner with the following modifications. The complaint alleges in substance that Respon- dent violated Section 8(a)(1) of the Act by (1) threatening employee Pagan with discharge at a meeting held by the Union on November 26, 1966, because of certain concerted activity he had al- legedly engaged in , and (2 ) subsequently discharg- ing Pagan for engaging in such activity. The com- plaint specifically identified the alleged activity as initiating a protest of employees concerning Respondent 's failure to compensate them at an overtime rate . In support of the 8(a)(1) allegations, the General Counsel relied upon the evidence relat- ing to this particular activity to establish the separate violations. The Trial Examiner dismissed the complaint in its entirety. In so doing the Trial Examiner found that Pagan was not discharged for a reason proscribed by the Act, but was discharged for breach of a com- pany rule prohibiting an employee from leaving his duty station without permission. With regard to the alleged threat of discharge, the Trial Examiner found that "on the occasion in question [ Super- visor] McKay threatened to discharge Pagan ... not ... because of his activities in connection with the overtime pay question, but because McKay [a union member] had heard that Pagan had filed charges against McKay within the Union for dis- crimination." The Trial Examiner's dismissal of the 8(a)(1) discharge allegation rests in large part upon his credibility resolutions, to which the General Coun- sel has excepted . It is the Board's well established policy not to overrule a Trial- Examiner's credibility determinations unless the clear preponderance of all relevant evidence convinces us that his resolu- tions were incorrect.' On this record we cannot find that the credibility rulings are clearly wrong. In view of the credibility accorded the Respondent's witnesses in presenting its reason for the discharge, we find the evidence adduced by the General Counsel insufficient to establish that the reasons given by the Respondent were pretextual. However, with regard to the alleged unlawful threat, on the testimony credited by him, the Trial Examiner concluded that at the meeting specified in the complaint, Supervisor McKay, in fact, threatened fellow union member Pagan with discharge because McKay believed Pagan had filed charges against him with the Union. It is immaterial that Pagan in fact had not filed intraunion charges and that McKay made his threat at a union meet- ing. The suspected activity is among those pro- tected by Section 7 from employer interference under penalty of violating Section 8 (a)(1). The threat made by McKay was to exercise his super- visory authority to affect Pagan 's tenure of employ- ment and it would be enough to make out a viola- tion that McKay's threat was based on his mistaken belief that Pagan had engaged in such union activi- ty.2 Since the essential elements of an unlawful threat are encompassed by the general language of the complaint, the threat established in this record comes within the scope of the allegation in the complaint. Accordingly, we find that the threat found by the Trial Examiner violated Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice , we shall order that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action to effectuate the policies of the Act. 'Standard Dry Wall Products , Inc., 91 NLRB 544,545, enfd. 188 F.2d 362 (C.A. 3) 172 NLRB No. 37 2 Peru Associates, Inc., 170 NLRB 643 ai fn. 5. ORDER MOORE-McCORMACK LINES, INC. 279 Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent, Moore-McCormack Lines, Incorporated, New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge for filing charges with the Union. (b) In any like or related manner, interfering with, restraining, or coercing employees in the ex- ercise of their right to self-organization , to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choos- ing, or to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment in con- formity with Section 8(a)(3) of said Act. 2. Take the following affirmative action which the Board deems necessary and appropriate to ef- fectuate the policies of the Act: (a) Post at its premises copies of the attached notice marked "Appendix. "3 Copies of said notice, on forms provided by the Regional Director for Re- gion 2 of the National Labor Relations Board, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in con- spicuous places , including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: After a trial in which both sides had the opportu- nity to present their evidence, it has been found that we violated the law by committing unfair labor practices and we have been ordered to post this notice and to keep the promises that we make in this notice. WE WILL NOT threaten our employees with discharge for filing charges with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of any rights guaranteed to you by the National Labor Relations' Act, as amended. In this connection, WE WILL respect your rights to self-organization , to form, join , or assist any union, to bargain collectively through any union or representative of your choice as to wages, hours of work, and any other term or condition of employment. You also have the right, which WE WILL also respect, to refrain from doing so. MOORE-MCCORMACK LINES, INCORPORATED (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge filed on March 28, 1967, by Rafael Pagan, a complaint, dated May 31, 1967, was issued alleging that the Respondent, Moore-McCormack Lines, In- corporated, herein called the Company, has en- gaged , and is engaging, in unfair labor practicees within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended . Respondent by its amended answer denied the material allegations of the complaint 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, in addition , set forth three affirmative defen- ses. A hearing in this proceeding was held in New York, New York, on August 11, September 26, 27, and 28, and October 12, 1967. Thereafter, briefs were filed on behalf of the General Counsel and the Respondent which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent, a Delaware corporation , maintains an office ce and place of business at 2 Broadway in the City and State of New York and at various other places in the United States. It is engaged in operat- ing oceangoing vessels, including the SS Argentina, in domestic and foreign commerce . Its business operations involve the transportation of passengers, goods, articles, and commodities between different States of the United States and between the United States and foreign countries. In the course and con- duct of its interstate and international business ac- tivities, Respondent performs services valued in ex- cess of $500,000 annually . Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED National Maritime Union of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues full complement of passengers in their work sec- tions. Further, on November 26, 1966, at a meeting with employees, including bedroom stewards, aboard the SS Argentina, and in connection with the bedroom stewards' protests, McKay threatened Pagan with discharge because he allegedly had in- itiated the protests . Finally, the complaint alleges that Respondent discharged Pagan on November 29, 1966, because in concert with other bedroom stewards he had been protesting the failure of Respondent to compensate the stewards at over- time rates when they were working with full sec- tions. The threat alleged to have been made by McKay on November 26, and Pagan 's dischar*e on November 29, 1966 , are alleged in the complaint to constitute violations of Section 8(a)(1) of the Act. The Company's amended answer denies the material allegations of the complaint . In addition, as affirmative defenses it alleges: 1. Pagan was discharged for cause because of his failure to report to his designated work station and after a search for him failed to reveal his whereabouts. 2. The applicable collective-bargaining agree- ment contains a comprehensive grievance procedure and pursuant thereto a representative of the Union discussed Pagan 's discharge with representatives of the Company and agreed that there was a proper basis for the discharge . There- fore, Pagan's grievance having been determined to be without merit by the Union , he is barred from filing the unfair labor practice charges upon which the instant complaint is based. 3. Prior to the issuance of the complaint herein Respondent offered Pagan employment on its ves- sels in the same capacity he held at the time of his discharge and such offer of employment was re- jected by Pagan. The Union has been for many years the recog- nized collective-bargaining representative for un- licensed personnel employed on Respondent's oceangoing vessels, including the SS Argentina. The most recent collective-bargaining agreement between the parties is effective for the period from June 16, 1961, to June 15, 1969. The principal questions herein involve Rafael Pagan, who was employed by the Company as a first-class bedroom steward for 14 years from 1952 until his discharge on November 29, 1966. The last 7 years of his employment were aboard the SS Ar- gentina . The complaint alleges that from about Au- gust 10, 1966, to November 29, 1966, various bedroom stewards aboard said vessel , including Pagan, in concert protested to Respondent's agents, Hugh McKay, second steward aboard the SS Argen- tina, and Patrick J. Sullivan, assistant manager of marine relations of Respondent , the failure of the Company to compensate the bedroom stewards at an overtime rate of pay for periods when bedroom stewards were required to perform services for a B. Sequence of Events 1. The overtime pay question General Counsel 's theory of this case is that Respondent's alleged unlawful conduct occurred in response to the concerted efforts of the bedroom stewards aboard the SS Argentina to obtain 2 hours' overtime pay for each day they serviced a full sec- tion of cabins regardless of whether they in fact worked 2 additional hours on such days. During the times material hereto, the normal hours of work of the bedroom stewards aboard the SS Argentina were: 9 to 11:30 a.m.; 12:30 to 3:30 p.m.; and 7 to 9:30 p .m.; their supervisor was McKay. Prior to 1966, each bedroom steward was as- signed 13 rooms to service . Following complaints by the stewards that they were unable to complete their work within the designated 8 hours, the number of cabins assigned to each steward for ser- vice was reduced to 10. However , 2 months later, the bedroom stewards ' complement was reduced, MOORE-McCORMACK LINES, INC. 281 and the stewards again were assigned 13 rooms to service , which reopened the overtime problem. In the summer of 1966, between July 7 and Au- gust 10, while the SS Argentina was in Stockholm, Sweden , during voyage #6 , T. J. Walker ( assistant to the vice president, national representative of contract enforcement of the Union), held a meeting with the crew aboard the vessel . Pagan testified that Walker said that "all the bedroom steward[s] work- ing with ... full section [s], [were] going to be enti- tled to 2 hour [ s] overtime daily." However, this testimony was not corroborated by any other crewmembers and was contradicted by Walker. Walker testified: I informed the men ... [ that an] agreement tentatively ... was reached between the com- pany and the union, due to the work loads that the [bedroom stewards ] brought to the atten- tion of contract enforcement , Vice President Barisic and myself, that they were unable within their spread of hours to give first class service to the passengers in their sections where some of the bedroom stewards had nine, ten, eleven and up to thirteen rooms. We reached agreement that two hours basi- cally, if approved and had to be worked, would be given to the men to help them carry out the service required for a normal work day. This was explained to the crew . They were under the impression that the two hours was what they considered blanket, whether they worked or whether it was approved or not . [ Emphasis supplied. ] Walker further testified that the Union has never sought blanket overtime, that is , payment for hours which were not worked.' I credit the testimony of Walker. It is likely, how- ever, that Pagan and other bedroom stewards mis- understood Walker and may have believed that Walker said that whenever they had a full section of rooms to service they were entitled to 2 hours' overtime pay whether or not the hours were worked.' Following the meeting with Walker the bedroom stewards applied for overtime pay for the Baltic cruise (voyage #6) because they had been servic- ing full sections . Slips claiming overtime pay were filled out by the individual stewards and were given to their union subdelegate, Ayuzo, who, in turn, presented the slips to McKay. McKay disputed the overtime claims by stamping the word "disputed" on each slip. At the termination of the voyage, the overtime slips were turned over to Victor A. Sum- mers, port patrolmar of the Union, who discussed the matter with Patrick J. Sullivan, Respondent's assistant manager of marine relations . Sullivan eventually approved the overtime payments.3 While the vessel was at sea during Pagan's last voyage aboard the SS Argentina, from October 28 to November 29, 1966, the bedroom stewards held a meeting at which they selected Enrique Escala- toro as their delegate to receive overtime slips and to present the slips to McKay for approval. Two or three days later the slips were returned to the bedroom delegate stamped "disputed" and signed by McKay. Thereafter, Pagan and other bedroom stewards resubmitted their overtime slips to the steward's delegate, a cook named Jimmy, who told them that the overtime problem would be discussed when the ship arrived in New York. After the ship's arrival in New York, Sullivan authorized payment for those stewards who had submitted claims, in- cluding 20 hours' overtime for Pagan.' 2. McKay's accusations against Pagan There is no evidence that Pagan was more active than any other bedroom steward in pressing claims for overtime pay for periods not worked. Pagan specifically denied lodging any protest about the subject with McKay or any other company official or with his union delegate . Pagan testified, "I never talked to nobody [about any] claim for overtime." Nevertheless, Pagan testified that he was accused by McKay of responsibility for the bedroom ' The applicable collective -bargaining agreement , in article IV, provides: Section 2 . Authorization for Overtime Work. Overtime shall in no case be worked without the prior authorization of the Master or per- son acting by authority of the Master. Section 4 .... overtime shall commence at the actual time such employee reports for duty and such overtime shall continue until the employee is released. s Jorge L. Valentin , a bedroom steward aboard the SS Argentina and a witness called by General Counsel, testified that subsequent to the recur- rence of the overtime problem , a group of about 20 stewards met with Union Vice President Barisic who "told us there was no blanket overtime since 1945 . We had to work ou[ r) time in order to collect .... [ H le agreed that if we worked this overtime we must get paid for it." Valentin further testified that he receives permission from his department head before he works overtime. s Captain Guy Paul Moore , assistant director of labor relations for Respondent, testified that overtime is a continuing problem on board Respondent's vessels. He testified further that on voyage #6, which ter- minated on August 10, 1966, 2 hours' overtime pay was given to the bedroom stewards on board the SS Argentina for a total of 33 days apiece When asked if this was for hours not worked, he testified, "I don't think so. We were told that these men had worked. Mr. McKay said they hadn't worked , or rather than hadn 't worked had not received his approval." He also testified that the claims had been for 4 hours' daily overtime per man, but negotiations between the Union and the Respondent reduced the time to 2 hours after the Union assured the Company that the men had worked those hours. ' The 20 hours of overtime represented 2 hours per day for the portion of the cruise from New York to Rio de Janeiro (October 28 to November 7) when Pagan services a full section . No overtime claim was made by Pagan for the return portion of the trip, because then his section was not full Patrick Sullivan testified that 10 bedroom stewards submitted claims for 2 hours' overtime per day for 10 days, October 28 to November 7, based on having worked with full sections , and that McKay had disputed the claims, but the claims were paid by him Sullivan explained that these pay- ments were authorized by his superiors, Captain Cecire or Captain Moore. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stewards' efforts to obtain overtime pay for hours not worked. According to Pagan, on Sunday, Oc- tober 30, 1966, between 3 and 3:15 p.m., McKay asked Pagan how many rooms he had yet to ser- vice. Pagan answered three . McKay then asked if he thought he "was going to get overtime ." Pagan replied ". . . yes, sir, I entitled to overtime because I got my full section." McKay then said, ". . . you is an instigator to raise it to another bedroom steward to claim for overtime ." Then, according to Pagan's further testimony , McKay instructed him to stop work at 3:30 p .m., the end of his shift, and told him that Mateo Nalupa, the chief bedroom steward, would finish Pagan 's cabins. McKay denied that he called Pagan an "instigator" and Nalupa, who was present on the occasion referred to by Pagan, cor- roborated McKay's testimony in this respect. I do not credit Pagan 's account of this conversation with McKay. Jorge L . Valentin, another bedroom steward aboard the SS Argentina , testified that one day dur- ing the return portion of the same voyage McKay engaged him in a conversation at his work section during which McKay said, " I know between you, Escalatoro and Pagan are bringing me up on charges and trying to get rid of me on this ship. "5 Valentin denied the accusation and said, "Mr. McKay , you're the best man we ever had here, we have nothing against you, there are no charges against you." The conversation terminated when Escalatoro came by and McKay began to speak with him.6 An event more directly connected with Pagan's discharge and which the complaint alleges con- stitutes a violation of Section 8(a)(1) independent of the discharge, took place on the night of Satur- day, November 26, 1966. At about 10:30 p.m. a meeting of the ship's (union ) committee, which was open to the Union's membership , was held in the female employees ' lounge . Delegates from each of the three departments (deck , engine, and stewards) were present, as were many of the ship 's crew, in- cluding McKay, Pagan, and several other bedroom stewards. During this meeting , the question of stewards' overtime pay was discussed . McKay ex- plained to the meeting that he was not authorized by the Company to pay the stewards overtime for hours not worked. Sometime later during the meet- ing McKay pointed his finger at Pagan and ex- claimed that he had heard that Pagan had filed charges against McKay within the Union for dis- ' Valentin testified that " I knew what [ McKay ) meant but there was no charges against him " ' McKay denied having made the remark attributed to him by Valentin However , I credit Valentin 's version of the disputed conversation. r The summary of what occurred at the ship 's committee meeting of November 26, 1966, and of the other events described in this Decision reflect my findings after having given consideration to all the evidence ad- duced at the hearing , both testimonial and documentary The findings reflect my resolutions of the conflicts and inconsistencies in the evidence I have omitted from the summary of events certain evidence which, while not irrelevant, I do not consider necessary to the explication of my deci- crimination and that, nevertheless, he was going to discharge Pagan .7 ( Earlier on the same day, McKay had logged Pagan for having been absent from his duty station without permission.) 3. Pagan 's discharge In the early afternoon on Saturday, November 26, 1966, the SS Argentina departed the port of San Juan, where it had stopped on the return portion of a South American cruise. According to Pagan, he completed his work early that afternoon and left his station before 3:30 p.m. On McKay's instruction Pagan was logged for being absent from his duty station. The procedure which is followed aboard the ves- sel when an officer wishes to discipline a seaman for an infraction of a rule is to cause a log entry to be made. Thereafter, the staff captain conducts an investigation and, if appropriate , assigns a penalty. The action is subject to the grievance procedure of the collective-bargaining agreement. On November 26, the following log entry was made concerning Pagan: OFFENCE COMMITTED (Describe Specifically) ABSENT FROM ASSIGNED STATION . Missed from section by Second Steward at 1400 hours. Second Steward could not find him in pas- senger or crew area. At 1430 hours Second Steward told Yeoman to tell him to report To Second Steward. Yeoman could not find him. Time Lost: 1400-1530 : 1-1/2 hours. The next day the staff captain conducted his in- vestigation at which were present , among others, Pagan and the union committee . According to Pagan , when he arrived at the staff captain's cabin, the ship's (union ) chairman said that Pagan was the individual whom McKay threatened with discharge at the union meeting . The staff captain , Comrie, proceeded to read the log entry, quoted above. Pagan testified that Comrie then asked where he was at 2:30 p.m. the previous day and Pagan replied, "I was in my room." The action taken against Pagan , as reflected by the log, was: "Fined a total of $2.84 equal 1-1/2 hrs. pay. Dismissed at termination of voyage."8 When the vessel returned to New York on November 29, 1966, Pagan's discharge was reviewed by Patrick Sullivan and port patrolman for the Union, Victor Summers, at a grievance ses- sion with the ship 's committee on board the vessel. sion The fact that I have not in this Decision summarized such evidence does not mean that I have overlooked , or have failed to give consideration or "weight" to, such evidence. To set forth in detail all the testimony that was adduced at the hearing , to catalogue my resolution of every conflict in testimony, and to include an analysis of each document received in evidence would unduly encumber this Decision without , in my opinion, providing sufficient compensating benefit to the parties in understanding the principal factual and legal bases for my conclusions. See Walker's, 159 NLRB 1159, 1161. " A mere dismissal does not bar the seaman from being hired on another vessel of Respondent or from being rehired on the same vessel at a later date MOORE-McCORMACK LINES, INC. 283 Summers took the position that discharge was too severe penalty for the offense committed by Pagan even though it was the second offense in a few months.' However, Sullivan adamantly held to the position that the discharge must be sustained because Pagan had been discharged from the vessel approximately 3-1/2 months earlier, upon the conclusion of voyage #6, on a very serious charge .10 Sullivan ex- plained that on August 2, 1966, Pagan was logged and disciplined for having refused to render assistance to a passenger upon her request. Such a complaint is considered most serious because the Company depends upon referrals and repeat voyages for its passenger business." The grievance concerning Pagan 's discharge was referred to Sullivan 's superiors and after further meetings between company and union representa- tives the Union abandoned the grievance. C. The Opposing Contentions 1. Respondent's position regarding Pagan's discharge According to Respondent, " Pagan was discharged because, in blatant violation of Com- pany rules, he admittedly left his post on sailing day, a time when an attendance report of the crew must be made to the master . An unsuccessful ex- tensive search was made for him by three persons, Second Steward McKay, Yeoman Amaya, and Assistant Steward Vazquez. When he could not be found, he was logged."1 Respondent points out that the complaint alleges that Pagan was discharged because he was believed to be the individual who initiated the demand for payment of overtime at the rate of 2 hours per day whenever all cabins in the bedroom stewards' respective sections were occupied, even though no overtime was to be performed . It argues that the only evidence in the record tending to support the averment that Pagan was considered an "instiga- tor" of the stewards ' efforts to obtain overtime was the remark allegedly made by McKay to Pagan on October 30, 1966, and "[ i]t is significant that from this time on to the day Mr. Pagan was fired, not a single word was said by Mr. McKay to Mr . Pagan- or by Mr. Pagan to Mr. McKay-about overtime." Respondent further argues : "Even Mr. Pagan does not claim he was fired for the reasons alleged in the Complaint. He testified that Mr. McKay, his superi- or, said that he would fire him because Mr. Pagan threatened to report him to the Union , of which they were both members, on a charge of dis- crimination . Such charge had absolutely nothing to do with the overtime dispute . In fact, Mr. Pagan re- peatedly admitted that he had never spoken to any- body about the claim for overtime." 2. General Counsel's position regarding Pagan's discharge The theory of General Counsel in this case is that the bedroom stewards aboard the SS Argentina had been "complaining continuously " about being de- nied 2 hours' overtime pay for every day that they serviced a full section of cabins , that to discourage such complaints, "someone had to be a scapegoat" and Pagan turned out to be the scapegoat although he "did not play a more active role than any other steward" in connection with the complaints about overtime pay.13 With respect to the reason assigned by the Company for Pagan 's termination , "General Counsel concedes that , although the punishment of permanent discharge may be severe , he has no basis to dispute Respondent's judgment if the reason for the discharge did not fall within the purview of the Act. General Counsel does contend, however, that the discharge in this case was of a pretextual na- ture, the true reason being Pagan 's protected con- certed activities, and, therefore , a violation of the Act." " In his brief, General Counsel refers the Trial Examiner to Guy Moore's testimony in which he asserted, "Every trip or two I am hearing the name of Pagan and a problem . ."The record establishes that the "problem" Pagan was involved in consisted of the overtime claims. However, contrary to General Counsel, the record shows that Pagan's prior offense was completely unrelated to any overtime claim. 10 Sullivan testified that the staff captain has the authority to recommend three separate types of dismissals: (I) dismissal, (2) dismissal and not to be rehired aboard the particular vessel, and (3) dismissal and not to be hired aboard any company vessel. Sullivan testified that in Pagan's case the staff captain recommended a simple dismissal, but it was his (Sullivan's) deci. sion that Pagan was not to return to the SS Argentina. However, he did not record his decision. " At the time of the first discharge it was agreed, after several discus- sions between officials of the Company and the Union, that the violation was a serious one, but in consideration of Pagan's long employment record he would be permitted to return to the vessel after receiving a warning and missing one voyage without pay. "Captain Guy Paul Moore, assistant director of labor relations, testified that upon review of the case, the Company upheld the dismissal because "Mr. Pagan was on probation as of the offense in August, 1966. 's Thus, in his brief, General Counsel asserts: The evidence clearly established that Pagan was one of about twenty bedroom stewards supervised by McKay ... Nothing in particular distinguished him from other stewards In 1966 , following Walker's announcement concerning overtime , he filled out an overtime slip, presented it to an elected sub-delegate to submit to McKay , as did the other stewards, and, following McKay 's rejection of the claims, resub- mitted his slip, and eventually was granted authorization from Sullivan on two occasions to receive overtime pay . All this was performed within the framework of the contractual relationship between the Union and Respondent Neither Pagan nor any other steward acted in a manner to indicate that the overtime claims were not being made as part of a concerted action by all the stewards who had full sections. Summers was their official union representative while Ayuzo and Escalatoro were elected sub-delegates. These were the individuals who presented the claims for all the affected stewards, all within the framework of the contract. n s s s There is no evidence in the record that Pagan at any time protested either as an individual or as a representative of the other bedroom stewards to McKay , Sullivan or any other Respondent official about overtime pay He operated through proper channels, as did the other stewards, by submitting his overtime claims in writing through his union representatives. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKay testified that on Saturday, November 26, as the SS Argentina was scheduled to leave Puerto Rico at 3 p.m., he had to check the bedroom stewards to ascertain their whereabouts . Whenever the vessel leaves a port he makes a report to the staff captain regarding personnel absences. He began his check about 1:30 p.m. About 2 p.m. he came to Pagan 's section . Unable to locate Pagan, McKay waited a few minutes, then checked other areas, and returned to Pagan's station about 10 to 15 minutes later. By this time he had "seen all the other men." After waiting for Pagan another 10 to 15 minutes , he telephoned his yeoman , Amaya, and instructed Amaya to search for Pagan . McKay then looked for Pagan in the crew's messroom but did not see him there . Shortly before 3 p.m., he requested an assistant second steward to locate Pagan . After a "quick run around " the latter notified McKay that he could not find Pagan. About 3:05 or 3:10 p.m., Amaya reported that he could not find Pagan . McKay instructed Amaya to make a log entry and give it to the staff captain. About an hour later, Amaya informed McKay that he had seen Pagan. Amaya testified that he searched for Pagan in his work section, the U-deck aft (open air recreation area for the crew), the gangway, Pagan 's cabin, and the messroom . Failing to find him, he reported to McKay, then logged Pagan and brought the log to the staff captain. Pagan testified that he completed his section that day at 10:30 a.m. In the afternoon from 12:30 to 2 p.m. he walked around his section performing no work. About 1:45 p.m. another steward, Flor Colon, asked Pagan to help Colon clean his section. Pagan serviced one of Colon's rooms until about 2:30 p.m. after which time he went to the linen room. He then went to his room, stayed there 3 to 4 minutes, and went to the crew 's recreation room where he remained until at least 3:30 p.m . General Counsel called three of the crew to corroborate this testimony. Flor Colon testified that Pagan helped him between 2 and 2:30 p.m. Rodriguez, a bedroom steward, testified that Pagan came into the room they shared at about 3 p.m. Finally, Au- gustin Santiago, a butcher, testified that he saw and spoke to Pagan in the crew's messhall between 2:30 and 3 p.m. Santiago's testimony conflicts with Pagan's ex- planation in several material respects: Pagan testified that he was in the recreation room for an hour until 3:30 p.m. and most of the crew was there. Santiago, on the other hand , testified that he (Santiago) was in the recreation room between 2 and 3 p.m., that the only other person present was Miguel Eutierses and that between 2:30 and 3 p.m. he spoke briefly with Pagan as Pagan passed by en route to his room. General Counsel in his brief vigorously attacks the credibility of McKay and Amaya and their testimony describing their search for Pagan. He asks, "Where was Pagan during the period between 2:00 p.m. and 3:30 p.m., Saturday, November 26? He must have been somewhere on the ship? Had McKay and Amaya really been seeking him out, they could not help finding him." He argues that "Pagan , confirmed by witnesses, was able to account for all this period." Unfortu- nately, the argument is firmer than the supporting evidence. The only substantial corroboration of Pagan 's testimony concerning his whereabouts dur- ing the 1 -1 /2 hours in question was given by Flor Colon, and his testimony accounts only for the period between 2 and 2:30 p.m. According to Pagan, except for 3 or 4 minutes in his own room he spent the next hour in the recreation room. However, this is contradicted by Santiago. Thus, while there is no question that Pagan was aboard ship between 2:30 and 3:30 p.m. on November 26, I cannot, based upon the evidence adduced at the hearing, agree with General Counsel that "had McKay and Amaya really been seeking him out, they could not help finding him." In any event, Pagan 's whereabouts during said 1 -1/2 hours is of small importance in this case because it is un- disputed that Pagan was "absent from his assigned station" between 2 and 3:30 p.m. on November 26, 1966, which is the offense for which he was logged. The issue here , and General Counsel specifically so concedes, is not whether Pagan 's absence from his station was a punishable offense , but whether Pagan was discharged for such reason or for an al- together different reason and one which is proscribed by the Act. General Counsel attacks Respondent's defense on two grounds. First, he argues that the rule prohibiting stewards from leaving their assigned work sections during their normal working hours was promulgated by McKay on voyage #8, the voyage preceding Pagan 's last voyage on the SS Ar- gentina, "so that a violation of the rule could be used by [McKay] to discharge anyone he so desired." However, McKay and assistant second steward Vazquez testified that Respondent always has had a rule providing that before an employee on duty may leave his station , he must obtain per- mission from one of his supervisors.'' Respondent introduced in evidence a notice from McKay to the bedroom stewards, which was circulated among the bedroom stewards during voyage #8, which reads as follows: During working hours no Bedroom Steward to be out of his section without checking with su- pervisor, either Chief B. R. Steward, Asst. Second Steward or 2nd. Steward. "Chief bedroom steward Mateo Nalupa also testified that bedroom stewards are supposed to be in their sections during working hours unless they receive permission to leave from one of the supervisors. MOORE-McCORMACK LINES, INC. No Bedroom Steward to be in passenger stateroom unless door open and signal down.15 McKay explained that a notice such as the one quoted above , from time to time , is circulated among the stewards to remind the older stewards of the rule, and to inform new bedroom stewards of the existence of the rule. Upon review of all the evidence introduced with respect to the subject , contrary to General Counsel, I find that the rule described by McKay was in ef- fect during the times material hereto and that General Counsel did not prove that the rule was adopted for the first time on voyage #8 or was adopted for discriminatory purposes. General Counsel's alternative attack upon Respondent's defense is that "except for Pagan's logging on voyage #9 no one had ever been logged for a violation of this rule." However, General Counsel did not prove that there had been any in- stance where McKay had caught a bedroom steward in substantial violation of the rule and had not logged such steward[1° Thus, Augustin Ortiz testified that he "take[s] a chance" when he leaves his duty section without permission. Manuel Zam- brano testified that McKay had told him always to stay at his station during working hours and that he never leaves his station during morning working hours even when he has nothing to do "because you never know if they are coming inspecting. You have to be in your section in the morning." Zam- brano further testified that there are no inspections in the afternoon and that he sometimes leaves his station without permission when he finishes his work during duty hours. Jorge L. Valentin testified that during the return portion of voyage #9 he had left his station for a few minutes and upon his return to his station he was questioned by McKay about his absence . McKay then told him "that I am not supposed to be out of my section at anytime, that I'm supposed to notify the headman if I'm going any place because I could get fired for that." Even Pagan who testified that the stewards could leave their duty stations and go to their rooms once they completed their work also testified, as follows: Q. Are you under any circumstances su pp -posed to leave your section during your work- ing hours? A. No, sir. Q. You are supposed to be there, right? A. Supposed to be there. [A]fter we finish the section, we hang around . '" Pagan testified that he had not read the notice although the chief bedroom steward, who had a copy of the notice in his hand, described its contents to Pagan. " McKay testified that if " a man went down in the messroom and took a cup of coffee ten minutes and went back to his station, I would not log him," but would log a man who was out of his station for 45 minutes. 17 Thus, Rodriguez testified that prior to voyage #t8 there was no such 285 . Some people go downstairs 10 or 15 minute[s ] before the spread hour [end of as- signed duty period] .... [S]ome ... bedroom steward[s] stay [at] the[ir ] station[s]. While the testimony of other witnesses called by General Counsel suggests more general violations of the rule which prohibits bedroom stewards from leaving their stations during duty hours without per- mission," such testimony is not sufficient to con- vince me that McKay was aware of such violations and habitually condoned them . Thus, contrary to General Counsel, I find no significance in the fact that Respondent has failed to demonstrate previous loggings of bedroom stewards for violations of the rule. D. Conclusions I find that General Counsel has not proved by a preponderance of the evidence that Rafael Pagan was discharged for a reason proscribed by the Act but, on the contrary, I find, as argued by Respon- dent, that Pagan was discharged for a breach of a company rule which prohibits bedroom stewards from leaving their stations during their duty hours without permission. The complaint also alleges that Respondent on November 26, 1966, at the ship 's committee meet- ing aboard the SS Argentina violated Section 8(a)(1) of the Act by reason of the fact that McKay "threatened its employee , Pagan, with discharge because he had allegedly initiated the protest [about overtime pay]." The evidence does not support this allegation of the complaint. On the occasion in question McKay threatened to discharge Pagan . However, the threat was not directed to Pagan because of his activities in con- nection with the overtime pay question,18 but because McKay had heard that Pagan had filed charges against McKay within the Union for dis- crimination. Accordingly, I shall recommend that this allegation of the complaint also be dismissed. CONCLUSION OF LAW Respondent has not violated Section 8(a)(1) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusion of law, and upon the entire record in this case , I recommend that the complaint in this case be dismissed in its entirety. rule and that at one time McKay specifically advised him that he need not report before leaving his station if he completed his work . Flor Colon testified that although the rule had long been in existence the supervisors had become lax in their inspections of the sections and therefore he did not adhere to the rule. '" The evidence shows that his activities in this regard were inconsequen- tial.