Waterways Harbor Investment Co., Inc.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waterways Harbor Investment Company, Inc; Waterways Harbor Service, Inc.; Waterways Meat Investment Co., Inc.; Waterways Meat Co., Inc.; Waterways Oil Investment Co., Inc.; Waterways Oil Company, Inc.; Waterways Marine Supplies & Service, Inc. and National Maritime Union of America, AFL-CIO. Case 26-CA-3194 October 31, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 6, 1969, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondents filed exceptions to the Decision and a supporting brief.' 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 entire record in the case, including the Trial Examiner's Decision, the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. The Trial Examiner found, and we agree, that Respondents' violated Section 8(a)(1) of the Act by coercively interrogating its nonsupervisory employees concerning the Union activity.3 The record shows that the Company received the Union's request for recognition on October 10, 1968, and that, within the next 4 or 5 days, Vice President Luttrell and Manager Embry had canvassed some 14 employees about the organizing activity. Their interrogations of these employees failed to incorporate any safeguards,' conveyed an implied threat of a shutdown,' and included statements such as ". . . this company can't stand any union." Such interrogation clearly interfered with employee organizational rights. It further establishes the depth of Respondents' hostility towards the Union and a determination to deal swiftly and decisively with the organizational activity. The Respondents' request for oral argument is hereby denied, since in our view the record, exceptions and brief adequately present the issues and positions of the parties 'In light of the finding that the seven Respondent corporations constitute We also agree with the Trial Examiner's finding that the Company's discriminatory treatment of five union adherents - Ben Scott, James Belcher, Lucky Ellison, Jerry Edington, and William Worley - violated Section 8(a)(3) and (1) of the Act. The timing of the discrimination, the concurrent coercive interrogations, the close positive correlation between union card signers and those eliminated from fobs,' the abrupt and selective manner of implementing the employment decisions, and the implausibility of the Company's attempted explanations - all support the finding of unlawful job discrimination. The Company was plainly determined to rid itself immediately of the Union element within its work force and thus promptly cripple the organizational effort. As more fully set forth in the Trial Examiner's Decision, the October 13 discharge of deckhand Ben Scott in the Oil Company clearly flowed from his involvement "in that union deal." The alleged failure to wear a lifejacket was manifestly a pretext for eliminating Scott - the only nonsupervisory employee in the Oil Company to sign a union card ' The Company also sought to get rid of other union card signers and did so when President Tarver, upon learning the results of Manager Embry's interrogations, quickly ordered the shutdown of the Harbor Service Company, which eliminated the deckhand jobs of Belcher , Ellison, Edington, and Worley, and then barred those complainants from consideration for jobs in other Respondent Companies. "a single integrated enterprise," performing related services and having common officers and labor policy, we shall at times refer to Respondents as the "Company " Individual companies will be referred to as the "Oil Company," the "Harbor Service Company," etc 'The Company's interrogation, as well as its job discrimination , extended to several "boat operators" who were later determined to be supervisory employees , and thus excluded from the Act's protection While the conduct towards these supervisory boat operators cannot in itself be held unlawful, it is relevant in evaluating the Company's treatment of the nonsupervisory employees and their union activity 'Struksnes Construction Co. Inc, 165 NLRB No 102 'While Vice President Luttrell generally expressed his shutdown warning in terms of a prediction as to how Company customers might react to unionization , Luttrell admitted that the adverse customer reaction was only his "opinion" and that none of the customers had communicated any intent to curtail business in the event the Company became unionized Clearly, Luttrell' s "prediction" was neither based on "objective fact," nor related to "demonstrably probable consequences beyond his control " N L R B v Gissel Packing Company , 395 U S 575, 618 We find it to constitute a threat of Company retaliation for employee union activity 'Eleven of the 13 employees who had signed union cards by October 10 (including 6 supervisory boat operators) were no longer employed as of October 14 While one of the card signers (boat operator Byberg) was discharged for reasons totally unrelated to the union activity, there is nonetheless such a high percentage of union adherents in the group discharged as to indicate something more than economic decision making The Company points out that it did retain two employees (boat operator Reed and deckhand Hopper) who had signed union cards, and that it offered a job in the Oil Company to deckhand Jerry Howard who may have signed a card However , it appears that Reed and Hopper had wavered in their support for the Union, and that the Company may have been unaware of Howard 's union sympathies at the time it offered him the job 'The Company also fired two Oil Company boat operators involved in the Union activity 179 NLRB No. 72 WATERWAYS HARBOR INVESTMENT CO., INC. 453 Respondents assert that the October 13-14 discharge of the four employees resulted solely from a prior economic decision to shut down the Harbor Service operation. In this connection, the Company did show that it was losing money on the Harbor Service,' and, in August, had informed the Coast Guard of its intent to close this operation "somewhere around the first of October." A stockholder's resolution on September 30 authorized the corporate dissolution and liquidation of assets of the Harbor Service Company.' While these facts indicate the Company was moving towards a shutdown in the near future, we are not persuaded that the employment decisions and precise time schedule for the closing were formulated before the Union arrived on the scene. Rather, the record establishes that the Company continued the Harbor Service on into the second week of October without even mentioning the possibility of closing to the Harbor Service employees10 or to its customers. Company President Tarver testified that he had previously made a "firm decision" to carry out the closing "in an orderly fashion." The advent of the Union, with its heavy support from Harbor Service employees, clearly upset this committment to an "orderly" discontinuance. Thus, the record shows that President Tarver, upon hearing Manager Embry's report on the interrogations, directed Embry to ". . . close the harbor business up." This direct link to the Union activity in addition to the Respondents' entire hostile reaction to the organizing effort amply indicate the unlawful basis for the decision to implement the Harbor Service shutdown at this time. That Harbor Service losses was not the only determinant is evident from the simultaneous discharge of the Union adherents in the Oil Company. In short, we find, in agreement with the Trial Examiner, that the Union activity was the overriding factor in the decision to close the Harbor Service on October 13. As already indicated, Respondents' determination to eliminate the complainants encompassed more than the shutdown of the Harbor Service operations. That their severance be total and permanent was then accomplished by not considering the complainants for jobs in other companies, and favoring, instead, nonunion employees and new hires. Thus, it appears that the Company experienced considerable turnover in its deckhand classification and that job vacancies were filled 'However, we do not adopt the Trial Examiner's somewhat conjectural conclusions as to why President Tarver continued to operate in the face of those losses The significant fact is that the Company did continue operating until the Union made its appearance 'President Tarver testified that the formal stockholder action was necessary for favorable income tax treatment of the transfer of Harbor Service assets to the holding company, and that the Internal Revenue Service permitted 12 months from the date of the resolution in which to negotiate and dispose of those assets "The only reference to a shutdown during the October 11-15 interrogations was Luttrell' s warning that unionization , not business losses, might result in closing And , it appears that this warning was not addressed to the Harbor Service employees through employee transfers. In fact, union card-signer Worley, a deckhand discharged from the Harbor Service, had previously worked 9 to 10 months in the Oil Company. Yet when he requested a transfer back to the Oil Company upon his discharge, Manager Embry quickly denied it, saying . . he didn't need [Worley], and that was it." At the same time, the Company hired a new employee for a deckhand or tankerman job in the Oil Company. Two other union supporters in the Harbor Service - deckhands Belcher and Edington - had prior experience as grocery deckhands in the Marine Supplies Company. But, rather than mention a grocery deckhand opening on October 13 to Belcher or Edington, the Company filled the position with a new employee. In addition, the Company made offers to retain at least two nonunion Harbor Service employees for jobs in other Companies. The net result of this selective process was the permanent exclusion of the discharged union adherents from any employment in Respondent Companies." With respect to the remedy for the discrimination practiced against the four Harbor Service employees, we do not find adequate the Trail Examiner's recommendation that backpay accrue from October 13-14 only until Harbor Service would have been liquidated in a legal fashion, without discriminatory motivation.' z For it fails to take account of the other component of the Company's discriminatory treatment of these employees, namely, the denial of job opportunities for which they would have been considered absent the Company's resolve on and after October 13-14 to be rid permanently of these complainants. These employees would not be made whole for the discrimination against them if we failed to consider the employment in other companies that was denied them." Accordingly, we shall order Respondent to offer immediate and full reemployment, in jobs substantially equivalent to their Harbor Service deckhand jobs, to Belcher, Ellison, Edington, and Worley in other Respondent Companies, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, those hired in such jobs on and after October 13, 1968. We shall also order that the Respondents make whole these complainants for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reemployment, less his net earnings during such period, with backpay computed on a quarterly basis, As more fully set forth in the Trial Examiner's Decision, the Company's attempt to portray the discriminatory selection as a "distill[ing] down" to a work force of "superior" employees is not substantiated in the record We do find appropriate the usual reinstatement and backpay order recommended by the Trial Examiner to remedy Scott's unlawful discharge "As we have sought to make plain, we are satisfied that, had the Harbor 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with 6 percent interest , in the manner established in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order, the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents, Waterways Harbor Investment Company, Inc., Waterways Harbor Service, Inc., Waterways Meat Investment Co., Inc., Waterways Meat Co , Inc., Waterways Oil Investment Co , Inc., Waterways Oil Company, Inc., and Waterways Marine Supplies & Service, Inc , Memphis, Tennessee, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and substitute the following "(a) Offer to employee Ben Scott immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination in the manner set forth in the The Remedies section of the Trial Examiner's Decision "(b) Offer to employees James C. Belcher, Jerry Roscoe Edington, Lucky E. Ellison, and William L. Worley immediate and full reemployment in positions in other Respondent Companies substantially equivalent to those they previously held in the Harbor Service Company, without prejudice to their seniority or other rights and privileges, and make whole these employees for any loss of earnings suffered by reason of the unlawful discrimination against them in the manner set forth above in this Decision "(c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 2. Reletter paragraphs 2(b), (c), and (d) to 2(d), (e), and (f). 3. Delete the fifth indented paragraph of the Appendix (Notice to All Employees) to the Trial Examiner's Recommended Order and insert the following: Service's shutdown on October 13 been prompted by business considerations alone, with Respondents holding no animus against the complainants because of their union activity, those employees would have been placed in other available employment When comparable employment became available for each complainant under nondiscriminatory hiring standards should be readily ascertainable WE WILL offer to Ben Scott reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of our discrimination against him. WE WILL offer to James C. Belcher, Jerry Roscoe Edington, Lucky E. Ellison, and William L. Worley immediate and full reemployment at jobs substantially equal to their old ones. We will also make Belcher, Edington, Ellison, and Worley whole for any loss of pay suffered by them by reason of our discrimination against them. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner Upon charges duly filed,' a complaint issued on November 13, 1968 by the Regional Director of Region 26 of the Board, in which violations of Section 8(a)(1) and (3) of the Act were alleged, and the answer of the respondent, in which the commission of any unfair labor practice was denied, I heard this case at Memphis, Tennessee, on December 9 and 10, 1968 Subsequent to the hearing, counsel for the General Counsel, for the Respondent and for the Charging Party all filed briefs with the Trial Examiner. Upon the record so made, and in view of my observation of the demeanor of the witnesses, I hereby make the following findings of fact. 1. THE RESPONDENT Waterways Harbor Service, Inc., Waterways Meat Co , Inc , Waterways Oil Company, Inc. and Waterways Marine Supplies & Service, Inc. (hereinafter referred to collectively as the Waterways companies or as the Respondent) are, and at all material times have been, Tennessee corporations with places of business in Memphis, Tennessee The other companies that appear in the caption of the proceeding, i.e. Waterways Harbor Investment Company, Inc , Waterways Meat Investment Co., and Waterways Oil Investment Co., Inc. are holding companies that own the stock of the respective operating companies The operating companies, except the harbor service company, were acquired in May 1967 by John W. Tarver who owns the stock of each of the companies and is president of each of them. The harbor service company was established by Tarver in September 1967. The Respondent admit that the Waterways companies are, and at all material times, have been affiliated business concerns with common officers, ownerships, and directors, and constitute a single-integrated enterprise, whose agents formulate and administer a common labor relations policy for the Waterways companies, and I so find. As the names of the various Waterways companies, suggest, the Waterways Oil Company, Inc (hereinafter referred to as the oil company), supplies oil refueling service for midstream Mississippi River vessels; Waterways Marine Supplies & Service Inc. (hereinafter referred to as the marine supplies company) supplies 'The original charge was filed on October 15, 1968, the first amended charge was filed on October 17, 1968, and the second amended charge was filed on November 1, 1968 WATERWAYS HARBOR INVESTMENT CO., INC. 455 groceries, hardware and other items to Mississippi River boats at midstream and Waterways Harbor Service, Inc. (hereinafter referred to as the harbor service) provides barge movement and placement in and around the harbor of Memphis. During the past 12 months, the Waterways companies, in the course and conduct of their business operations, sold and distributed products, the gross value of which exceeded $500,000. During the same annual period, the Waterways companies received goods valued in excess of $50,000 which were transported to their place of business in interstate commerce directly from States of the United States other than the State of Tennessee. The Waterways companies admit that they constitute employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and I so find. II. THE LABOR ORGANIZATION INVOLVED The National Maritime Union of America , AFL-CIO (hereinafter referred to as the NMU ), is a labor organization that has sought to organize the employees of the Waterways companies. III THE UNFAIR LABOR PRACTICES A The Organizational Campaign The organizational campaign that precipitated the present proceeding was launched by Robert Collilieux, Patrolman-Organizer of the NMU, on or about September 21, 1968. The union was seeking to organize the deckhands and boat operators employed on the vessels of the Waterways companies. Collilieux himself solicited signatures to union authorization cards, and handed out other cards to various Waterways employees In all, Collilieux succeeded in obtaining signatures to union authorization cards from 13 of the employees of the Waterways companies. Six of these signers were deckhands. The only deckhand working for the marine supplies company to sign a union authorization card was James T. Hopper, III, and the only deckhand working for the oil company to sign a union authorization card was Ben Scott However, union authorization cards were signed by four of the six deckhands working for the harbor service company; i e , James C. Belcher, Lucky Ellison, Jerry Edington and William L Worley.' In addition to the deckhands, a union authorization card was also signed by Raymond Barnes, who was a tankerman,3 and by six of the nine boat operators, who have, apparently, the title of "Captain "0 R. C. Byberg was the only boat operator of the marine supplies company who signed a union authorization card. However, all three of the boat operators for the oil company, whose names were J. W. Cole, Ray Johnston and Gordon A. Reed, signed union authorization cards, and two of the three boat operators for the harbor service company, Floyd Barefoot and William M. Couey, signed union authorization cards. 'The two nonsigners were Jerry E Howard and Lewis A Wilkins The latter was , however on sick leave, having suffered an injury in an accident, apparently 'By Coast Guard law, a tankerman must be aboard when fuel oil is discharged from a boat, and he must have a license as a tankerman But a deckhand is also eligible to have a license as a tankerman , and some deckhands have such licenses 41t does not appear to be clear from the record whether the title of "captain" as applied to the boat operators is a courtesy title The boat operators were supervisory employees,' but deckhands and tankermen were, of course, nonsupervisory employees. On October 10, Collilieux sent the following telegram to the general manager of the respondent- This wire serves as official notification that National Maritime Union AFL-CIO has been authorized as the bargaining representative by a majority of your non-supervisory employees at your marine facilities in Memphis. We therefore request immediate meeting for the purpose of obtaining a letter of recognition from your company covering said personnel to be followed by meeting for concluding a collective bargaining agreement The telegram of October 10 was received by the respondent before noon that day, and its contents was at once communicated to John W. Tarver, the president of the Waterways companies. On October 11, Robert Luttrell, the vice president of the Waterways companies, and the overall supervisor and manager of their operations, responded to Collilieux's telegram by letter as follows In reply to your wire of October 10 claiming to have been authorized as the bargaining representative by a majority of our non-supervisory employees at our marine facilities in Memphis, we do not concede that you represent our employees As a matter of fact, it is our information that if you represent any of our employees, they are relatively few. B. The Interrogations When the union's telegram arrived on October 10, Tarver had to be reached in Greenville, Mississippi. He is a certified public accountant, and a member of a firm of CPA's - Saxton, Tarver, Kirbey and Bradley - that is located in Greenville. Only about half of Tarver's time was devoted to the Waterways businesses, the day-to-day operations of which were directed by Luttrell assisted by Charlie Embrey, who was manager of operations. Upon learning about the union activity, Tarver instructed Luttrell and Embrey to contact his lawyers and obtain advice as to how to conduct themselves. One of the pieces of advice that they received from Tarver's lawyers was to refrain from questioning employees as to whether they were for or against the union This advice they proceeded to disregard, however, in its entirety The interrogation of the employees was admitted by Embrey and Luttrell when called as witnesses by counsel for the General Counsel, although their admissions were not candid and had to be helped along by reminders of what they had deposed in their prehearing affidavits Apparently, Embrey went into action first but Luttrell was not far behind, either in effort or number of employees interrogated The evening of Friday, October 11, Gordon A. Reed, who was the boat operator, and two of his deckhands, Robert A. Tims and Gerald D. Holley, all of whom worked for the oil company, and who were aboard the Laura B, were "on the way up in Wolf River" Embrey went and caught the boat for the express purpose of questioning them about the union, and his interrogation of them took place in the pilot's house on the Laura B Embrey invited Reed, Tims, and Holley to tell him what they knew about the union. Reed and Tims "volunteered" namely, confessed, that they knew about the union but 'The supervisory status of the boat operators was not immediately apparent, however, it was subsequently established 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holley declared that he knew nothing about the union, Reed also "volunteered"that he had signed a union authorization card, and Tims that he had not signed a union authorization card. Asked specifically whether he had told the employees to whom he talked that they did not have to answer his questions about the union, Embrey testified. "No, sir, I don't recall saying anything like that." On Saturday night, October 12, Embrey continued his interrogations. He telephoned to Floyd Barefoot, one of the three harbor service boat operators, and asked whether he could come out to his home to talk to him. "Sure, come ahead," Barefoot told him. Arriving at the latter's home, he asked him to tell him what he knew about the union activities that were going on. Barefoot admitted his complicity, and probably also that he had signed a union authorization card but added that although "he went along with them on it," he had not been the one who had started it Embrey asked Barefoot why some of the employees had not come to him and talked to him, so that he could find out what was wrong, and also expostulated that in the past the employees had always talked things out with him On Sunday morning, October 13, Jerry Edington, one of the harbor service deckhands, was standing in front of the coke machine, having dust punched in, when Embrey walked up to him and asked him whether he was "part of this bear pack." Edington asked Embrey whether he was referring to the union, and when Embrey replied in the affirmative, Edington admitted his association with the bear pack. Thereupon Embrey remarked to Edington. "Well, this company can't stand any union." On October 12, Luttrell interrogated George Walker, an assistant hardware order filler for the oil company, about the union. According to Luttrell, he told Walker that he did not want him to supply the names of those employees who had signed union authorization cards but that he wanted an opportunity to give Walker "our side of the story as far as the economic effects of having a union at the company." Walker admitted that he knew about the union activity but told Luttrell that he had not signed a union authorization card, and that "he didn't want to have anything to do with it." Luttrell then told Walker that 95 percent of the company's customers were nonunion and that the unionization of the company would seriously curtail its sales - "possibly shut us down" was the way that Luttrell put it That same day Luttrell talked also to Gerald W Ward and R. C. Byberg, both of whom were boat operators for the marine supplies company, and the latter of whom was chief boat operator. Luttrell conveyed to Ward and Byberg substantially the same message that he had given to Walker, namely that a union could be responsible for the shutdown of the company's operations. During Luttrell's conversation with Ward, the latter told him that he had been approached to sign a union card but that he had declined to do so, and during his conversation with Byberg, the latter told Luttrell that he could not understand how a union could affect the company or him. Apparently, this led Luttrell to tell Byberg that "if he wanted a union he should go to work for a company which had one." Asked whether he had talked to any other employees about the union, Luttrell testified- "I talked to a good many of them. "I'd have to have a list to tell you." Furnished with a list, Luttrell proceeded to name 10 other employees to whom he had talked in the days following the receipt of the union's telegram. Seven of these ten employees worked for the marine supplies company - Jack E Belcher (a grocery order filler), Lonzie Carter (a truckdriver), James T. Hopper, III (a grocery deckhand), Georgia Sherrod (a maid), Sandra K Cranford (a dispatcher), Thomas D Howard (a dispatcher) and Vera C Smith (a dispatcher). Three of the ten employees worked for the meat company - Wesley C. Jacobs and Waddell McBride, who were butchers, and Curtis Tarrance, who was a janitor Luttrell told all 10 of these employees substantially what he had told Walker, Ward and Byberg. C. The Discharges Immediately after the interrogations - indeed while they were still proceeding - the Respondent began a series of discharges of its employees. The first two to be discharged were Gerald W. Ward and R. C. Byberg, the discharges occurring during Saturday evening, October 12. These two discharges were wholly unplanned and had nothing to do, apparently, either with the union situation, or with Tarver's decision to go out of the harbor service business. It seems that there was discovered a shortage in a $1,000 fund that was used on the grocery boats for making change, cashing checks and the like. Ward was discharged as the operator responsible for the shortage, and Byberg, as his superior, was also held to be at fault. All the other discharges were in some way connected with the union situation On October 13, the Respondent discharged William L. Worley and Lucky L. Ellison, two of the deckhands in the harbor service, and on October 14 the respondent discharged Jerry Roscoe Edington and James C. Belcher, another two of the deckhands in the harbor service. They constituted four of the six deckhands in the harbor service, and they were the only deckhands who had signed union authorization cards, the other two deckhands in the harbor service, Jerry E Howard and Lewis A. Wilkins being the nonsigners. The discharges of the four deckhands who signed union authorization cards are alleged to have been discriminatory. Each of them was called in, and told that the company was going out of the harbor service business, given 2 weeks' severance pay, and dismissed. In addition, Raymond Barnes, the tankerman, who had signed a union authorization card, was discharged but his discharge is not alleged to have been discriminatory only because he did not wish to bring charges against the Respondent. On October 13, the Respondent also discharged Ben Scott, one of the four oil company deckhands. Scott was the only oil company employee who had signed a union authorization card, and his discharge, too, is alleged to have been discriminatory. Scott himself did not testify with respect to his discharge but some of the circumstances surrounding his discharge were revealed by Jennings W Cole, the boat operator for whom he worked, and who was himself discharged the same day. About 8 a.m. on October 13, Cole, who was going off duty, was called into Embrey's office. Embrey closed the door and asked Cole what he thought about the union Cole replied that it seemed like a good thing to him. Embrey asked why he thought so, and Cole mentioned some futile attempts that the employees had made to get meetings with management. Just then the telephone rang, and Embrey asked Cole whether his deckhand, Ben Scott, was there, and Cole replied that Scott had gone home. Embrey then asked Cole whether Scott was "in that union deal," and Cole replied in the affirmative, he also told Embrey that Scott and he had signed union authorization cards. Embrey then asked Cole "how Scott was doing, if WATERWAYS HARBOR INVESTMENT CO., INC. he was wearing his life jacket," and Cole told Embrey that he was not wearing his life jacket. Cole had in a fact complained to Embrey on several occasions about Scott not wearing his life jacket but he testified nevertheless that there was nothing wrong with Scott's work. At the end of the interview Embrey told Scott that he could go but about 3 p m that same day Embrey called Cole on the telephone and told him that he was discharged On October 13, the Respondent also discharged Ray Johnston, the second of the two boat operators for the oil company who had signed union authorization cards. Johnston was called to Embrey's office, and Luttrell was also present during the interview. But Embrey never got to the point of opening the conversation by telling Johnston that he was discharged, for as soon as the latter entered the office, he remarked to Embrey: "I guess you want to give me mine too " Embrey replied. "Well, I want to talk to you about this and see what you thought." Johnston repeated "Well, you might as well give me mine, too, because I'm in it as deep as anybody else." Embrey then proceeded to tell Johnston that they were closing down the harbor service and letting several of the men go So far as Johnston was concerned, Embrey explained that they were letting him go since he had a bad record for "tearing up equipment." Embrey was referring to an accident in which Johnston had been involved about 8 months previously. Embrey then added: "We don't want a union down here and we don't want any operators that don't want to go along with the Company " Embrey further expressed the wish that the employees had gotten together and came and talked to him "about this thing" before they got into it so that they could have worked something out. On October 13, the Respondent also discharged Floyd Barefoot and William M Couey, two of the three boat operators who had signed union authorization cards, and one of whom, Barefoot, had been interrogated in his home by Embrey. D. The Respondent 's Explanation of the Discharges According to Tarver, the discharges were all connected, directly or indirectly , with a decision on his part to go out of the harbor service business because of continuing losses. When Tarver had acquired the Waterways companies in May 1967, a motor vessel , the Bill B , had been used sometimes for spotting and tieing barges but he was not in the harbor service business on any considerable scale. When in September 1967 Tarver decided to go into the harbor service business , he had to expand his fleet greatly. In addition to the Bill B , he had the Laura B , the Charlie Embrey and the Robert S but these were fuel flat boats in the oil service, and the last two named were obsolete. There was also a small grocery boat, the Charlie Smith, but this served the marine supplies company Tarver now acquired two additional vessels, the Jeff T and the Annilou , which were of 750 horsepower, and were equipped with electric winches and high-powered lifts to handle the tows, as well as with ample living quarters for the crews The Jeff T and the Annilou represented an investment of $300,000. Besides the vessels, it was necessary to acquire river docking facilities , which cost more money. It became apparent before long, however, that the harbor service business was proving unprofitable. It seems that in the Memphis harbor there was an old established firm , Warner and Tample, in the harbor service business, and Tarver could make no headway against its competition .' By June 1968, according to Tarver, he had made "a firm decision" to go out of the 457 harbor service business "in an orderly fashion, " as he put it. With this in mind , he took steps to dispose of the Jeff T, the Annilou and the Bill B by sale or charter, and to acquire two new fuel flat boats to replace his obsolete fuel boats, the Robert S and the Charlie Embrey The two new fuel boats were ordered from the LeMay Barge and Supply Company of Greenville , Mississippi , and the first of the two boats, the Mallard, was delivered and licensed by October 9 In September the Bill B had been sold for cash but neither the Jeff T nor the Annilou have as yet been sold . The second fuel boat has not yet been delivered by LeMay but Tarver testified that he expected it to be delivered in January 1969 According to the further testimony of Tarver, when towards the end of September he learned from LeMay that the Mallard would be delivered about October 10, he gave orders to Luttrell on October 1 to discontinue the harbor service in the payroll period nearest the middle of the month of October , and at the same time, he and Luttrell agreed that they would seize the opportunity, arising from the availability of some of the harbor service employees for other work, to revamp the work force as a whole, retaining those whom they considered to be superior employees , and getting rid of the undesirable employees As Tarver put it, they decided "to distill our force down to the people that we considered most efficient , most interested in the Company , and that we considered superior employees ," or, as Tarver put it at another point , "we agreed at that time specifically which ones would be retained or transferred to another company, and which ones would be let go." Tarver, Luttrell and Embrey insisted throughout their testimony, that they made these decisions on October 1 before they had received the union 's telegram and before they had the slightest inkling that any union was attempting to organize their employees. E Concluding Findings The two basic issues in the present case are whether the interrogations conducted by the Respondent's agents were legitimate, and whether they discriminated against the five employees who were discharged on October 13 and 14, 1968. The two issues are closely related. A peculiarity of the present case is, moreover, that employees of the Respondent who were subsequently determined to be supervisors, namely the boat operators, were also interrogated and discharged, together with the five nonsupervisory employees. Although the Respondent is not legally answerable for its conduct, insofar as the supervisory employees are concerned, this conduct may be taken into consideration in evaluating its conduct towards its nonsupervisory employees. Undoubtedly, the interrogations conducted by Luttrell and Embrey were coercive, and were therefore unlawful, insofar as the nonsupervisory employees were concerned, for not only did they seek to obtain knowledge concerning the activities of the employees with respect to the union but conveyed to them a scarcely veiled threat that the 'in April, the harbor service sustained a loss of $2,293 49, in May of $3,447 25, in June of $4,977 48, in August of $1,350 43, and in September of $3,865.28 However, in July, the harbor service showed a small profit of $619 34, and the business must have broken exactly even for the other months of the year, for there is a statement in evidence (Resp Exh 5), which shows that the total loss for the year down to the end of the month of September was $15 ,314 59 This figure is obtained by adding the losses for the months of April, May, June, August, and September and subtracting the profit for the month of July 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business might have to be shutdown if the union activities continued, and were successful. Counsel for the Respondent seek valiantly to represent the interrogations by Luttrell and Embrey as mere attempts to put before the interrogated employees the economic effect that a union would have on the operations of the business and "to investigate the Union's claims of representation." Actually, Luttrell and Embrey were engaged in threatening the job security of the employees, and in obtaining information which they could use in carrying out their discriminatory schemes. It is obviously frivolous to contend that they were engaged in the disinterested investigation of a question of representation when the respondent had rejected out of hand the union's claims of representation before Luttrell and Embrey had even embarked upon the interrogations Embrey himself understood perfectly well what he was up to, for despite all attempts to get him to say that he was investigating the union's claims of representation, he persisted in saying that he "was trying to find out what was going on." While the coercive interrogation of employees is not in itself proof that their employer also discharged some of them subsequent to the interrogations, it is nevertheless an important indication that the employer in question is ill-disposed towards the unionization of his business, and lends credibility to allegations that the interrogations were followed by discriminatory discharges. In the present case, moreover, the interrogations have more than the usual significance, for they tend also to negate Ito some extent the contentions of the Respondent's witnesses that they made their decisions on the discharges of employees on October I before they ever knew of any union activity, and hence that this activity could in no way have influenced their decisions. Counsel for the General Counsel argues that if, as the respondent claims "it had irrevocably decided on October I to close the harbor business why did Luttrell, knowing this, couch his conversations with employees only in terms of a possible closing of the business as the result of a successful union campaign if, in fact, immediate closing was already a certainty?" This argument rests upon premises that are to a large extent invalid. The threat of a shutdown was made by Luttrell to a number of the employees but these employees included none of the harbor service employees Since the respondent had no intention, prior to the appearance of the union on the scene, of shutting down the marine supplies business or the oil business, it could logically threaten the shutdown of these businesses after it learned that union activities were under way. However, Embrey did interrogate two of the harbor service employees, Floyd Barefoot and Jerry Edington, and while the threat of a shutdown was not made to either of them by Embrey, his very failure to say anything about the shutdown of the harbor service to either of them, the expression of his regret to Barefoot that the employees had not come to him with their grievances, and his warning to Edington that "this Company (i e , the harbor service company) can't stand any union" is inconsistent with the assumption that their fate had been determined already While the interrogation of Edington was more casual than that of Barefoot, this circumstance in no way detracts from the force or significance of the warning issued to the former. There are, moreover, other significant indications in the record that the decisions "to distill down" the personnel were not made until after the union drive had been launched. These indications are plainest in the case of the discharges of deckhand Ben Scott and boat operators, Cole and Johnston for the very reason that they were employees of the oil company rather than employees of the harbor service that was being shut down. The evidence shows that in fact the union situation was responsible for their discharges, and that they were not discharged until their support of the union had become known. According to the respondent's witnesses, Scott, who worked for Cole, was an "unsatisfactory" or "undesirable" employee It is a rather remarkable circumstance that as witnesses for the respondent neither Luttrell nor Embrey provided a single detail that would illustrate Scott's alleged faults as an employee. Scott worked under the general supervision of Embrey and the immediate supervision of Cole. But the main burden of justifying Scott's discharge was put on Luttrell, who knew only what Embrey reported to him in the most general terms, and Embrey himself did not venture beyond stigmatizing Scott as unsatisfactory. It was thus left to Cole to reveal, when called as a witness, that Scott's only fault as a deckhand was that he sometimes did not wear his life jacket. But the fact that Scott's discharge followed only upon Cole's revelation that Scott had signed a union authorization card connects his discharge with this revelation rather than with the "distilling down" of the employees on October 1. It is not possible to understand why Embrey would have been interested in Scott's union activity on October 13 if it had already been decided on October I to discharge him. It is also difficult to understand why Embrey had not discharged Cole the morning of his interview with him if the decision to discharge him had in fact been made almost 2 weeks previously. The respondent is, moreover, in the rather anomalous position of having discharged Scott in reliance on the complaints of a supervisor-Cole-who was himself discharged as unsatisfactory the very same day! In the case of Johnston, Embrey as good as told him that he was being fired because of his union activities by telling him that the company did not want a union or operators who did not go along with the company The conduct of Tarver on learning from Luttrell and Embrey the extent of the union activities also belies the Respondent's contention that the time for going out of the harbor service business had already been fixed and determined. Tarver repeatedly declared during his long tenure on the witness stand that it was a matter of indifference to him whether any of his employees belonged to a union But Embrey, while attempting to avoid the embarrasment of connecting his instructions with the surge of union activity, nevertheless testified that as soon as Tarver was informed of the union activity he "just said we'd bring the boats in and tie them up, we were going to close the harbor business up" (emphasis supplied) But, according to the same witnesses, this was a decision that had already been firmly made on October 1. Embrey was always a reluctant witness but he never was as reluctant, as well as evasive, as when he was testifying concerning what Tarver told him when the latter learned of the union activity that was in progress. The Respondent's assertion that the selections for discharge were made before the union activity began also runs counter to the high degree of correlation between the number of the union adherents who signed union authorization cards and the identity of those discharged The 13 union authorization card signers fared very badly indeed in the selecting process No less than 10 of the 13 who had signed union authorization cards were discharged. Ben Scott, who was the only oil company deckhand of four so employed to sign a union WATERWAYS HARBOR INVESTMENT CO., INC. authorization card, was discharged There were six deckhands in the harbor service, and the four of them who signed union authorization cards, namely Belcher, Ellison, Edington and Worley, were the four who were discharged Byberg was the only boat operator in the marine supplies company who signed a union authorization card to be discharged, although his discharge was, apparently, for just cause. All three of the oil company boat operators signed union authorization cards, namely Cole, Johnston and Reed, and two of the three were discharged. In the harbor service two of the three boat operators who signed union authorization cards, namely Barefoot and Couey, were the two who were discharged, while the third, Walden M. Whitehead, the nonsigner was retained Tarver, Luttrell and Embrey made much of the fact that they had retained, or offered to retain in their employ, several of their employees who had signed union authorization cards, these being Gordon Reed, one of the oil company boat operators, Jerry Howard, one of the harbor service deckhands, and James Hopper, III It is well-settled, however, that a discriminatory motive in the case of the discharge of some employees is not disposed of by a showing that the employer did not discriminate against others, or failed to weed out every union adherent ' In the present case, moreover, there is reason to doubt that Jerry Howard, who was offered a job but turned it down on the ground that he would be doublecrossing the employees who were supporting the union, actually signed a union authorization card, and Reed, as well as Hopper do not appear to have been the staunchest of the union adherents, for both of them came to Tarver either to disavow the union, or confess union membership and Tarver did not fix with indubitable precision just when these acts occurred In the case of Reed, Tarver testified that the disavowal occurred "Monday or Tuesday or Wednesday," and he added rather enigmatically; "It was after that Sunday when everyone's employment status had been resolved" (emphasis supplied) According to Tarver, however, everyone's employment status had been fully resolved on October 1, which was a Tuesday rather than a Sunday In the case of Hopper, Tarver, in testifying that Hopper had come to him and "volunteered that he had signed a Union card" merely added: "He had already been retained . " The most baffling of all the evidence given by the respondent's witnesses in the present case was on the subject of the extent of their knowledge of the union activities of their employees Both Tarver and Embrey testified that they had absolutely no knowledge of any union activity until the union's telegram was received by them about noon on October 10 Tarver, asked if he had any such knowledge before then, replied "None whatsoever." Yet in replying to the union's telegram the next day Luttrell did not enter a total disclaimer of any knowledge, for he stated that it is our information that if you represent any of our employees, they are relatively few" (emphasis supplied). Tarver also testified that at the time Luttrell was consulting his lawyers his best information was that "if any of these employees were interested in the union, there couldn't be more than two or three of them " The Respondent's reply to the union's 'See N L R B v W C Nabors , Co , 196 F 2d 272, 276 (C A 5), cert denied 344 US 865, and earlier cases there cited, N L R B v Shedd-Brown Mfg Co, 213 F 2d 163, 174-175 (C A 7), Nachman Corporation , NLRB 337 F 2d 421, 423 (C A 7) In N L R B v Puerto Rico Telephone Co, 357 F 2d 919, 920 (C A I), the court put the same thought in a different way "A violation of the Act does not need to be wholesale," it said "to be a violation " 459 telegram, as well as Tarver's own testimony, would seem to indicate at least that even before the receipt of the union's telegram they were not wholly ignorant of the fact that the union was attempting to organize the employees Even more baffling is the total disclaimer entered by Tarver of any knowledge of who had signed union authorization cards even as of the time of the hearing! "As of right now," he declared under oath, "until we walked into this Courtroom, I don't know who signed cards and who didn't."' Tarver so testified despite the fact that both Luttrell and Embrey had given testimony concerning their interrogation of the employees in which they had admitted that some employees had told them that they had signed union authorization cards and others had told them that they had not signed union authorization cards. It can hardly be doubted, moreover, that whatever Luttrell and Embrey learned in the course of their interrogations were duly reported to Tarver. Indeed, Tarver in the course of his testimony revealed that various employees who had been retained had come to him and "volunteered" the information that they had signed union authorization cards, and cited these confessions as proof that it was a matter of the utmost indifference to him whether any of his employees chose to belong to a union. The admissions of the Respondent's witnesses, and the testimony of Scott, Johnston, and Edington who were witnesses for the General Counsel, establish at the least that the Respondent had positive knowledge of the union activity of Edington, Reed, Barefoot, Scott, Cole, and Johnston, and equally positive knowledge that Walker, Ward, Tims, and Holley had not engaged in any union activity. Adding the names of those who had "volunteered" that they had signed union authorization cards, it would seem to be quite clear that the Respondent's knowledge of the union activities of its employees was quite extensive long before the hearing. Considering further that Luttrell had interrogated no less than 13 of the employees and Embrey had interrogated another three, it would seem reasonable to hazard the conclusion that the Respondent's knowledge of the union activities of its employees was encyclopaedic in nature It is true that the burden is on the General Counsel to establish knowledge on the part of the employer of the union activities of discharged employees. But the proof of knowledge need not be direct, it may be inferential;' and the circumstantial evidence in the present case that the Respondent's motives were discriminatory is very strong There are numerous reasons for rejecting the Respondent's proffered explanation of the discharges, despite the fact that it is true that the harbor service company was not being profitable, and that Tarver was planning to go out of the harbor service business for some months before the commencement of the union campaign The evidence indicates nevertheless that he was procrastinating from month to month in carrying out his decision, and that the procrastination ended only when the threat of unionization appeared. It is easy to understand, moreover, the reasons for Tarver's procrastination Every man hates to admit to himself that he has made a mistake in going into a particular business venture , and is likely to This declaration is echoed in the Respondent's brief in the argument "At the hearing before the Trial Examiner, the Respondents learned for the first time the names of those employees who had signed cards with the Union " 'See N L R B v Schell Steel Products, Inc, 340 F 2d 568, 572 (C A 5), and earlier cases there cited , N L R B v Ambox, Inc , 357 F 2d 138, 142 (C.A 5), N L R B v Lexington Chair Co , 361 F 2d 283, 291 (C A 4), N L R B v Superior Sales. Inc, 366 F 2d 229, 234 (C A 8) 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be loathe to cut his losses and to get out He is particularly likely to remain in a quandary when his losses are not overwhelming and he has a large investment in the business which will be seriously impaired if the business is terminated abruptly In most months of 1968, Tarver's losses in the harbor service while substantial do not appear to have been staggering , and in one month it even showed a small profit , which would encourage him to hope for better days While Tarver never admitted, of course, that his losses in the harbor service business were not unbearable , the mere fact that in testifying about them he kept on explaining that the losses should be put at higher figures , and thus in effect criticized his own accountant 's financial statements - a role that he assumed as a CPA - indicates that he himself did not regard the losses as forbidding enough . It must not be forgotten that the harbor service company was only one of the Waterways businesses , and constituted in reality only one of the departments of the Waterways enterprise The full impact of the losses in the harbor service business cannot be accurately gauged unless one knows how well the other Waterways businesses were doing, and Tarver failed to offer any financial statements that would show how the Waterways companies were doing as a whole group Even assuming that the losses in the harbor service business were considerable they would have to be weighed against the impairment of the investment in the business which included two vessels , the Jeff T and the Annilou, which cost $300,000, and were specially designed for the harbor service business To lay these vessels up would tend to deteriorate them, which is clearly shown by the fact that Tarver had to put the vessels into drydock in Greenville for cleaning The fact that Tarver went out of the harbor service business before either of these two vessels had been disposed of, by either sale or charter, and before the second of the vessels needed in the remaining businesses had been completed suggests that his exit from the harbor service business was rather precipitate Tarver himself testified that he had decided in June 1968 to go out of the harbor service business "in an orderly fashion " Yet in October 1968 he went out of the harbor service business in anything but an orderly fashion. Indeed , Tarver's exit from the harbor service business was so abrupt that its customers were not even informed that it was being discontinued , and advised to make other arrangements. The taking of such steps would have been less important, of course, if the harbor service business had been the only one in which Tarver was engaged But, since he was engaged in a group of related businesses, of which the harbor service business was only one , he would normally have wanted to retain the good will of his harbor service customers by giving them adequate and timely notice of his intentions. Asked to explain his failure to do so, Tarver could only give the rather lame and contradictory excuses that he was attempting to squeeze as much as he could out of the harbor service business, and that it was common knowledge in the Memphis harbor that he was going out of the harbor service business. If Tarver's intentions were indeed common knowledge , his customers would be making other arrangements , and Tarver would be deprived of the extra dollars which he was, supposedly, seeking. Moreover, it would hardly augment the good will of his customers to allow them to rely on rumors. As for the whole procedure of "distilling down" the body of employees when an excess number of harbor service employees became available , it seems odd and irrational when the personnel situation of the Waterways companies is considered. The closing of the harbor service made available primarily a group of five deckhands (not counting the temporarily incapacitated Wilkins), and a group of three boat operators. These two group of employees were at the opposite ends of the personnel scale, so far as skills are concerned While the boat operators would be skilled employees, it would hardly seem that the deckhands would be employees of any very special qualifications. One could speak of boat operators as skillful employees whose retention would seem desirable if at all possible but one cannot speak of the deckhands in the same terms The chief problem of the Waterways companies, so far as the deckhands were concerned, would seem to have been to get enough deckhands to man the boats, whether these boats were in the marine supply service, the oil service, or the harbor service The Waterways companies had some boat operators who had 4, 6, and even 8 years of seniority But the 13 deckhands who were employed in the same three services in October 1968 were all without a single exception recent employees Nine of these 13 deckhands were first employed in 1968, and the other 4 were first employed in 1967, 3 of these 4 having been employed late in 1967'° It is evident that the turnover in deckhands must have been tremendous, and that getting any deckhands at all, whether good, bad, or indifferent, must have been a major problem The "distilling" process would seem to make sense only in the case of the boat operators but the alleged discriminatees were all deckhands. The "distilling" process would also have as its necessary corollary that the harbor service employees, whether boat operators or deckhands, had failed to give satisfaction to their employer for some time, and it makes one wonder how they could have been tolerated so long. Luttrell attempted to answer this riddle by explaining that he was hesitant to seek replacements in view of the impending closing of the harbor service. But those hired in 1967 were retained for a considerable number of months before there was any firm decision to go out of the harbor service business, and as for those who were hired in 1968, one would suppose that there would be little compunction in letting unsatisfactory deckhands go precisely for the reason that their tenure was fated to be brief In any event, one can hardly believe that the proffered explanation would apply to such boat operators as Cole and Johnston who had been hired, respectively, as far back as 1964 and 1962. If they were indeed unsatisfactory or undesirable employees, Luttrell and Embrey had had years to get rid of them, and all these years preceded, of course, the decision to close the harbor service business. When they finally made their decision as to which of the three boat operators they should discharge, they discharged Cole and Johnston, and decided to retain in the oil service, boat operator Walden M Whitehead, who had been hired by them on September 10, 1968, just 3 weeks before they decided, allegedly, to go out of the harbor service business! They also decided to retain Jerry Howard as a deckhand, although he had been hired a day later than Whitehead on September 11, 19681 So remarkable were these decisions to let Cole and Johnston go and to retain Whitehead and Howard that the respondent's witnesses were driven to an excess use of derogatory adjectives in the case of the former and to superlatives in the case of the latter Tarver, for all that he had little, if any, personal knowledge of the work of his crews, pronounced Whitehead to be "probably the best "The hiring dates are shown on G C Exh 2 WATERWAYS HARBOR INVESTMENT CO., INC. overall operator in our entire fleet," going far beyond the encomiums of either Luttrell or Embrey, whose favorite superlative was "superior," which they applied indiscriminately to deckhand and boat operator alike. On the other hand, the respondent's witnesses were eager to seize upon and to exaggerate even the most trivial faults of the union supporters whom they were discharging They attempted to make much of Scott's failure to wear his life jacket, a fault that endangered nobody's life but his own, and they attempted to make even more of the fact that Cole had once lost a fuel ticket, although there were meters on the boats to measure the amount of oil dispensed Considering that Tarver, Luttrell and Embrey endured the alleged derelections of the discharged employees with equanimity until they joined the union, and that they involved themselves in contradiction after contradiction in attempting to explain the discharges, the conclusion may be hazarded that the discharged employees were not as unfit for further service as they pretended that they were. Perhaps the most damaging evidence against the respondent is the fact that on October 13, the very day that the discharges of the employees commenced, the Respondent employed two new employees, who had never previously been on its payroll, without offering either of the jobs that had become available to any of the harbor service deckhands who were being discharged, and whom, according to Tarver, he would have reemployed if any deckhand jobs were available. The two new employees were Thomas Teague, who was employed as a grocery deckhand in the marine supplies company, and Richard Tims, who was employed as a tankerman in the oil service. Tarver, Luttrell and Embrey floundered hopelessly around in the mire of their own contradictions as they attempted to explain the employment of Teague and Tims despite the availability of the whole harbor service complement, and the availability of no less than two vacancies for deckhands in the oil service These two vacancies had been created by the dismissal of Ben Scott and Jerry Howard's refusal of a job as deckhand in the oil service when it was offered to him To the embarrassment of the Respondent's witnesses, it was brought out that two of the discharged deckhands in the harbor service, James C. Belcher and Jerry Edington, had been grocery boat deckhands before they had been employed in the harbor service. In view of this experience, there was an added reason for offering Belcher and Edington jobs as grocery boat deckhands. The Respondent's witnesses had, however, a seeming reason for disregarding them. They testified that there was a substantial differential between the pay of a harbor service deckhand and a grocery boat deckhand. This was true but the reason cannot be regarded as completely satisfactory, for the Respondent's witnesses conceded that they had not offered the jobs to any of the harbor service deckhands whom they were dismissing, and that they did not, therefore, let the latter decide whether to accept the lesser pay. After all, the lesser pay was certainly better than no pay at all. That an employee who was being terminated solely because of the closing down of the operation in which he was employed would seek to be transferred to one of the operations that was being continued is shown by the case of William Worley, one of the four harbor service deckhands. In the interview in which he was discharged by Embrey, Worley requested Embrey to transfer him back to the oil service where he had worked for some 9 or 10 months before being transferred to the harbor service. Embrey told Worley that he did not need 461 his services, and it is not established, moreover, that there was any pay differential between the oil service and the harbor service, so far as deckhands were concerned." The Respondent's witnesses had an even harder time in attempting to explain the hiring of Tims as an oil boat deckhand, apart from the readiness of Worley to take the job It seems that the great virtue of Tims in their eyes was that he had a license as a tankerman. But he was employed as a deckhand, and his possession of a tankerman's license was at most a minor convenience, since it was not necessary to have a tankerman aboard a boat in discharging fuel oil; every boat operator had a tankerman's license, and his presence would be sufficient Of the four oil boat deckhands employed on October 13, only one, R D. Ferguson, had a tankerman's license, and Howard, who was slated for the job but had declined it, had not had a tankerman's license. Moreover, among those just discharged was Raymond Barnes, who was a tankerman, and the only reason that Tarver could think of for not turning to Barnes was that, compared to Tims, Barnes was "inferior," a category that he applied uniformly to all the prounion employees. But if Barnes could have qualified as a tankerman although he was "inferior," it becomes difficult to understand the special virtue which, according to the respondent's witnesses, inhered in being a tankerman, and deprived Belcher, Ellison, Edington and Worley, supposedly, of the capacity to qualify as tankermen because they, too, were inferior. Towards the end of his cross-examination, Luttrell, when pressed to explain why he had not offered a job to one of the discharged employees and had hired two new employees, hinted at the real reason when he declared- "I wouldn't consider that any of the men would want the job, particularly after Mr Howard said that he was with the men up on the hill " (Emphasis supplied ) What Luttrell was saying in effect was that after Howard had refused to proffered transfer to the oil service for fear that he would be suspected of doublecrossing the employees who were supporting the union he just assumed that all the terminated deckhands in the harbor service would do likewise! This was a remarkable assumption in itself but it would have been all the more remarkable if Luttrell did not in fact know that the harbor service employees were supporting the union. On more than one occasion in the course of his testimony, Tarver protested that he had no animosity towards unions, and that it made absolutely no difference to him whether his employees supported a union. But his employees themselves did not share, apparently, Tarver's own view of his attitude towards unions, if one is to judge from two incidents. One of these incidents involved Ray Johnston's anticipation of his discharge because of his union activity that has already been related. The other incident involved Jack Belcher, who was a grocery order filler and substitute boat operator in the marine supplies service, and who was the uncle of James Belcher, one of four deckhands in the harbor service What happened in this instance was volunteered by Traver himself during his direct examination. Shortly after his nephew's discharge, Jack Belcher came to Tarver and told the latter that he wanted to discuss his nephew with him. He told Tarver that his nephew had had a lot of pressure brought on him by the union but that he did not really want,any part of it, "There is no support in the testimony of the respondent 's witnesses for the contention made in the brief of counsel for the respondent that "the pay for deckhands in the Oil Service and Supplies & Service company were substantially below that of a deckhand in Harbor Service " 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that if Tarver would take him back he would personally guarantee his conduct. According to Tarver, he replied that he did not even know Jack Tarver's nephew, that he had been let go simply because the harbor service was being closed down, and that "his union activity or lack of it had nothing to do with it." Tarver added, further however, that if his nephew put in an application for employment in the future it would be considered but that he would do nothing that might make it appear that he would reward somebody for disavowing the union. Counsel for the respondent seek to reinforce Tarver's protestations of lack of antiunion animus by a rather curious argument of their own They argue that the respondent had no occasion for indulging in any union prejudice, bias or animosity because "there were and are no unionized concerns in the Memphis Harbor serving and servicing midstream the vessels and barges which move up and down the river " But this is the classic situation for the development of antiunion animosity. If the respondent were unionized, and its competitors remained ununionized, it would obviously be at a competitive disadvantage. Finally, counsel for the respondent also call attention to the fact, which they characterize as "interesting," that of the five complainants directly involved in the discharges "only too bothered to testify and Worley simply stated that Embrey told him he was being discharged because the Harbor Service was going out of business." If this is a complaint, it is without a proper basis. While the burden always rests on the General Counsel to prove discrimination by substantial evidence, he is not under any obligation to call as witnesses each and every alleged discriminatee In the present case, it is apparent that no purpose would have been served by doing so, since four of the five complainants were, allegedly, discharged for the same reason, namely the closing of the harbor service. While the fifth complainant Scott was discharged for a different reason, the testimony of Cole under whose supervision he worked was more than sufficient to illuminate the true reason for his discharge. Presumably, counsel for the General Counsel called Edington because he had been interrogated by Embrey, and he called Worley in rebuttal to counter the false testimony of Embrey with respect to Worley's failure to seek a transfer to the oil service. It is hardly an accurate description or summary of Worley's testimony to say that he "simply stated that Embrey told him he was being discharged because the Harbor Service was going out of business." Actually, Worley's testimony was extremely damaging to the respondent, since it established that when faced with his discharge he did seek a transfer to the oil service. Moreover, counsel for the General Counsel could complain with greater justice of the failure of the respondent to call as a witness a single one of the alleged paragons who took the place of one of the discharged employees But, obviously, this case must be decided by weighing the testimony of the witnesses who were called rather than the testimony of the witnesses who were not called IV. THE REMEDIES In view of the broad scope of the respondent ' s unfair labor practices , which include not only the coercive interrogations of its employees but also discriminations with respect to the hire and tenure of their employment, I shall recommend a broad form of cease-and -desist order designed to effect all the guarantees of Section 7 of the Act. Insofar as affirmative relief is concerned, the case of Ben Scott, who was discharged from the oil service in which the respondent is still engaged, must be distinguished from the cases of William L. Worley, Lucky L. Ellison, Jerry Roscoe Edington, and James C Belcher, who were deckhands in the harbor service, which the respondent closed in order to defeat the organizational attempt of its employees The case of Ben Scott presents no special problems, and to remedy his discharge, I shall recommend by way of affirmative relief, that the respondent offer to him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed by him, discharging, if necessary, any.new employee hired subsequent to the date of his discharge in order to replace him I shall also recommend that the respondent make Ben Scott whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement less his net earnings during the said period. The amount of backpay is to be determined in accordance with the formula prescribed in F W Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in accordance with Isis Plumbing & Heating Co, Inc, 138 NLRB 716. The problem in the case of the other discriminatees arises from the fact that their jobs have been abolished as a result of the closing of the harbor service. As the operation of this service was unprofitable, and the Respondent did intend, eventually, to go out of this business, I shall not recommend that the Respondent be required to resume its operation. However, if the Respondent is unable to dispose of the Jeff T and the Annilou, or is unable to dispose of them for adequate considerations, it is possible that the respondent may decide of its own accord to resume the harbor service business In that event, I recommend that the obligations of the Respondent with respect to reinstatement and backpay in the case of Worley, Ellison, Edington and Belcher shall be the same as in the case of Ben Scott The same obligations shall exist also if the Respondent does not resume the operation of the harbor service business but jobs become available for deckhands in the oil service, since they may obtain substantially equivalent employment in that service, which is an integral part of the Respondent's operations. In the event, however, that no jobs are available, either in the harbor service, if it should be resumed, or in the oil service, the names of the discriminatorily discharged deckhands in the harbor service shall be placed upon a preferential hiring list, in the order of their seniority, and they shall be offered jobs as they became available either in the harbor service or in the oil service, and the obligations of the Respondent towards these employees for backpay shall continue until they have either been offered employment by the Respondent, or they have obtained substantially equivalent employment with another employer. However, notwithstanding the failure of the four discriminatees to secure substantially equivalent employment with another employer, the backpay obligation shall terminate at such time as the Respondent has disposed of the vessels and equipment for the harbor service and it is fully apparent that the harbor service would have been liquidated at such time in any event. To take care of any contingencies that cannot now be forseen, I recommend further that the WATERWAYS HARBOR INVESTMENT CO.,,INC. Board reserve the right to modify the backpay and reinstatement provisions of its order. CONCLUSIONS OF LAW 1. The various Waterways companies included in the caption to this proceeding are, and at all material times have been, affiliated business concerns with common officers, ownerships and directors and have constituted a single-integrated enterprise whose agents formulate and administer a common labor relations policy for the said Waterways companies. 2. The said Waterways companies are engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. National Maritime Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4 By interrogating their employees coercively with respect to their union activities and sympathies on October 11, 12, and 13, 1968, the Respondents have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and have thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 5. By discharging their employees, Ben Scott, William L. Worley and Lucky L. Ellison on October 13, 1968, and by discharging their employees Jerry Roscoe Edington and James C. Belcher on October 14, 1968, the Respondents have discriminated with respect to the hire and tenure of their employment, and have thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , I recommend that the Respondent companies enumerated in the caption to this proceeding, their officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating their employees coercively concerning their union activities or sympathies. (b) Threatening to discontinue any of their operations if their employees continue their union activities, or otherwise threatening their job security (c) Discouraging membership in National Maritime Union of America , AFL-CIO, or any other labor organization of their employees , by discharging any of their employees , or in any other manner discriminating against them with respect to the hire or tenure of their employment , or any term or condition of their employment. (d) In any other manner interfering with , restraining, or coercing their employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act. (a) Offer immediately to Ben Scott , William L Worley, Lucky L. Ellison , Jerry Roscoe Edington , and James C. Belcher reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them , in the manner and to the extent set forth in section IV of this Decision entitled 463 "The Remedies." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying all payroll records and other data necessary to give effect to the backpay requirement. (c) Post at its general office at Memphis, Tennessee, copies of the attached notice marked "Appendix."' 7 Copies of said notice, on forms to be provided by the Regional Director for Region 26, shall, after having been duly signed by respondents' representative, be posted by respondents immediately upon receipt thereof and be maintained by them 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 Respondents to assure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondents have taken to comply herewith " "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees coercively concerning their union activities or sympathies. WE WILL NOT threaten to discontinue any of our operations if our employees continue their union activities, or otherwise threaten their job security WE WILL NOT discourage membership in National Maritime Union of America, or any other labor organization of our employees, by discharging any of our employees, or in any other manner discriminate against them with respect to the hire or tenure of their employment, or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . WE WILL OFFER to Ben Scott, William L. Worley, Lucky E. Ellison, Jerry Roscoe Edington, and James C. Belcher reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. All our employees are free to become or remain, or to refrain from becoming or remaining members of any 464 labor organization DECISIONS OF NATIONAL LABOR RELATIONS BOARD WATERWAYS HARBOR INVESTMENT COMPANY, INC. Dated By WATERWAYS MARINE SUPPLIES & SERVICE, INC. (Employers) WATERWAYS HARBOR SERVICE, INC. WATERWAYS MEAT INVESTMENT CO WATERWAYS MEAT CO., INC. WATERWAYS OIL INVESTMENT CO. WATERWAYS OIL COMPANY, INC. (Representative ) (Title) Note Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161