South Point Barge Co., Inc.

SOUTH POINT BARGE COMPANY, INC. 173 South Point Barge Company, Inc., and South Point Towing Company, Inc. and David Michael Lancas- ter, and James Martin Lancaster. Cases 9-CA-6602-1, 2 and 9-CA-6840-1, 2 November 8, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 27, 1972, Administrative Law Judge' Almira Abbot Stevenson issued the attached Deci- sion in this proceeding., Thereafter, Respondent filed exceptions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt her recommended Order. We agree with the Administrative Law Judge that Respondent discharged David Lancaster on May 25, 1971, because of his suspected union activities. According to Lancaster's credited testimony, Dallas Bradshaw, Respondent's vice president and general manager, told him that he would have to let him go because "he had received a letter from the Labor Board that every day he worked me, he had to pay my brother, James Martin Lancaster." Bradshaw also said, "You come back after this Union bit blows over." The Administrative Law Judge discredited Bradshaw's version of the discharge interview, that David Lancaster was laid off for lack of work and that he would be recalled if work picked up. It is noted that the Respondent, during this same period, had, as found by the Board, discriminatorily dis- charged David's brothers, James Lancaster and Charles Lancaster, as well as another employee, James Corbin.3 In these circumstances, and in view of no credible explanation for the discharge, we agree with the finding of the Administrative Law Judge that the Respondent suspected that David Lancaster, along with his brothers, was engaged in attempting to organize Respondent's operation, and discharged him for the same reason it discharged them. His discharge therefore violated Section 8(a)(1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, South Point Barge Company, Inc., and South Point Towing Company, Inc., of South Point, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said Order. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 In the absence of exceptions, we adopt, pro forma, the finding of the Admimstrative Law Judge that James Lancaster was discharged for cause, and thus not in violation of the Act. 3 South Point Barge Company, Inc, South Point Towing Company, Inc, 195 NLRB No 168. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALMIRA A. STEVENSON, Trial Examiner: This consolidat- ed proceeding was heard at Huntington, West Virginia, on May 17, 1972. A copy of the charge in Case 9--CA-6602-1, -2, filed by David Michael Lancaster November 18, 1971, was served on the Respondent November 22, 1971; the complaint issued February 8, 1972. A copy of the charge in Case 9-CA-6840-1, -2, filed by James Martin Lancaster February 22, 1972, was served on the Respondent February 28, 1972; the complaint issued March 23, 1972, and was amended May 5, 1972. The cases were consolidat- ed March 23, 1972. The issues are whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by (1) discriminatorily discharging or laying off David Michael Lancaster May 25, 1971, because of his interest in, sympathy for, and/or activities on behalf of Inland Boatmen's Union of the Seafarers International Union of North America, AGLIWD, AFL-CIO (herein called the Union) and in order to discourage membership in the Union; and (2) discriminatorily discharging James Martin Lancaster February 21, 1972, because of his sympathy for, membership in, and activities on behalf of the Union and/or because of his protected activity in protesting the Respondent's pollution of the waterways. I find that the Respondent violated the Act as alleged in discharging David Lancaster, but did not violate the Act in discharging James Lancaster. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respon- dent, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION South Point Barge Company, Inc., an Ohio corporation, is engaged in the business of cleaning and repairing barges from its location at South Point, Ohio. During the year preceding February 8, 1972, a representative period, it performed services in interstate commerce for customers located outside the State of Ohio valued in excess of $50,000. 200 NLRB No. 28 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Point Towing Company, Inc., an Ohio corpora- tion, is engaged in the business of fleeting and towing barges from its location at South Point, Ohio. During the 12 months preceding May 1971, it performed services in interstate commerce for customers located outside the State of Ohio valued in excess of $50,000. The Companies admit, and I find, that they constitute a single employer, at all times material herein engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. They are referred to herein as the Respondent. The Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology The Respondent originally hired David Lancaster and James Lancaster, brothers, in early 1970. David was a deckhand and James was a pilot. A third brother, Edgar Lancaster, was a supervisor for the Respondent. David Lancaster testified that he got mad because of low pay and no time off during long hauls and quit three or four times. He always returned to the Respondent's employ. His last absence was for a period unspecified in the record and was caused by his being hospitalized for alcoholism. His brother Edgar put him back on the payroll May 16, 1971.1 On May 18, 1971, the Respondent fired James Lancaster and another employee, James Corbin, because of their union activity, as found by the Board in a prior proceeding involving most of the parties here involved. 195 NLRB No. 168. On May 25, 1971, Dallas Bradshaw, vice president and general manager, terminated David Lancaster under circumstances described below, alleged by the General Counsel in this case to be in violation of the Act. On May 29, 1971, the Respondent fired Charles Lancaster, brother of the three Lancasters involved in this case, because of his union activity, as found by the Board in 195 NLRB No. 168. About 7 months later, on December 10, 1971, the Respondent reemployed James Lancaster as a laborer. On February 21, 1972, the Respondent terminated James, also alleged herein as a violation of the Act. B. David Lancaster David Lancaster testified that Dallas Bradshaw, on May 25, 1971, told him he would have to let him go because "he had received a letter from the Labor Board that every day he worked me he had to pay my brother, James Martin Lancaster"; and that Bradshaw added, "You come back after this Union bit blows over." 2 1 David Lancaster was uncertain as to the date he returned to work. I credit the testimony of Vice President Dallas Bradshaw, which he stated was based on company records, that the date was May 16, 1971. 2 The Trial Examiner's Decision adopted by the Board indicates that David Lancaster gave substantially the same testimony in the prior proceeding as to this conversation. However, this May 25 layoff was not alleged nor found to be unlawful in that case. At the hearing herein, David The General Counsel also presented evidence that although the Respondent refused David's requests for any kind of work, during the 4 months subsequent to David's termination it hired four men consecutively for the night watchman job which, the General Counsel contends, David was qualified to fill. Vice President Bradshaw testified that after David had been off (Bradshaw did not know David had been in the Hospital), Edgar Lancaster put David back to work on May 16. Bradshaw testified that he laid David off May 25, and told him "we didn't need a deckhand because if I did I would have to put Jim back on when an opening came open. Jimmy was laid off. I had to put Jimmy back on .. . before I could hire [David] back." It was Bradshaw's testimony that he laid David off for lack of work, and that he told David he would call him back if work picked up. Bradshaw also testified that although David could have done the work of night watchman, Bradshaw did not recall him for that job as it was a salary job paying $90 for 48 hours' work. The credibility of Bradshaw's testimony as to the discharge interview is undercut by the finding of the Board in the prior proceeding that James had not been laid off but had been discriminatorily discharged. David's version of the interview in which Bradshaw referred to a letter from the Labor Board about James is difficult to interpret, particularly as the charge alleging James' May 18 discharge to be unlawful apparently was not served on the Respon- dent until May 27, 2 days after David's discharge interview, and the record does not suggest any other Labor Board letter Bradshaw could have been talking about. As the Respondent had discriminatorily discharged James, however, I am inclined to believe that the statement was an attempt at some kind of pretext. In these circumstances, I credit David Lancaster, and discredit Bradshaw's testimo- ny as to the discharge interview and as to the reason for the discharge as well. We are left with no satisfactory explanation by the Respondent for David's termination. There is equally no satisfactory explanation for its failure to offer David one of the successive night watchman openings. The Respondent's counsel, at the hearing and in his brief herein, indicates that David was considered unsuitable for the job of night watchman because he drank on the job. There is uncontroverted evidence, however, that although David drank during his days off, he never drank on the job. Moreover, neither Bradshaw nor any other member of management testified that this was the reason he was not offered one of these openings. As set forth above, Bradshaw conceded that David was qualified for the job, and gave an entirely different, and in my opinion, very weak reason for failing to offer it to him. It is thus clear that the reasons advanced by the Respondent for its termination and refusal to rehire David Lancaster were unsatisfactory, shifting, inconsistent, and smacked of pretext. It is also clear that the discharge of also testified that during one of several trips to the premises after this layoff, President Mike Vighanco told him that his hands were tied but David could return to work "after this Union stuff blowed over." As this testimony vanes from that which the Decision shows David gave in the prior proceedings, I do not credit it, even though Viglianco did not testify at the hearing in this case. SOUTH POINT BARGE COMPANY, INC. 175 David occurred during the same period of time in which the Board has found that the Respondent committed several unfair labor practices, including the discriminatory discharge of James Lancaster I week before, and of Charles Lancaster 4 days after, David's discharge. In these circumstances, I am persuaded, and find, that although there is no evidence that David Lancaster was engaged in any union activities, the Respondent suspected he was engaged, along with his brothers, in attempting to organize the plant3 and discharged him for the same reason it discharged them. His discharge therefore similarly violated Section 8(a)(1) and (3) of the Act 4 C. James Lancaster James Lancaster testified as follows: On December 20, 1971, about 10 days after his return to the Respondent's employ as a laborer, James observed Vice President Viglianco pumping styrene out of a barge into the river, and told Viglianco, "I couldn't permit this. It was my duty to stop it due to the fact that I had a tankerman's license . . . and I told him about the fine we were subject to, $500 to $2500 or a year imprisonment" for polluting the river. "And I told him I would have to report this to the Coast Guard which I did..... James obtained this tankerman's license from the Coast Guard and it allowed him to pump, load, unload, and repair tank barges without being supervised by one holding a pilot's or a master's license.5 As the holder of a tankerman's certifi- cate, it was his duty to report such activity to the Coast Guard and he was subject to a fine if he were a party to pollution of the waterways. Bradshaw replied that "it was dirty of me that I would stoop so low to report him to the Coast Guard. He said if the Company didn't do these certain little jobs, how did I expect him to many any money." That evening, Viglianco told James not to report for work the next day as there was no work for him. James informed the Company four or five different times that he could not allow it to pump barges into the river, and on each occasion reported the Company to the Coast Guard. On one of these occasions, in late January, Viglianco asked James "why I always insisted on causing him trouble." Vice President Vighanco told James in late January he would make a good foreman, but "you can't be faithful to the company and the Union." James replied that he might consider such an offer after the Union got in. After his 1- day layoff of December 21,6 James was laid off 7 or 8 days in January and 3 days in February before his termination. On February 21, 1972, Bradshaw ordered James and another employee to "put the blowers" on a tank barge. James, however, pulled out the barge's "certificate of inspection papers" and found the barge had had a caustic soda cargo.? He then told Bradshaw he could not put the blowers on because "it was too dangerous, it might explode and caustic soda will burn you." James added that "we" were subject to a fine and imprisonment. Bradshaw thereupon went down through the barge opening up the hatches, to see what was in the barge, and James followed him closing the hatches because in James' opinion it was dangerous cargo. When Bradshaw returned to topside, he told James "if you are not going to help, punch your timecard, go up the hill, you are fired." James replied that Bradshaw could not fire him, only Viglianco could, and that he was returning to the duty of throwing bricks out of an old boiler, to which he had been previously assigned. When Viglianco arrived, James asked him whether, in order to keep his job, he had to put the blowers on that tank barge "knowing that it might explode and you can get severe burns from it." Viglianco replied in the affirmative, and James told him, "I can't do it because of the danger of it, of the $2500 fine and a year imprisonment if we are caught." Viglianco said that caustic soda was not danger- ous, and that "I had caused him more trouble than any man he has ever known." James told Viglianco he would have to report him to the Coast Guard. When Viglianco affirmed that James was fired, James said he would see Viglianco in court, and Viglianco replied, "Well, go get your lawyers and your Union men." James testified that he subsequently learned that caustic soda will not explode. He insisted, however, that it is an "acid" which will burn you if you blow it with the type of portable electrical blowers not approved by the Coast Guard, which he would have been required to use, and that he refused to do so because he thought it was dangerous. The Respondent presented no evidence contrary to the above. Bradshaw testified that the Coast Guard visited the Respondent several times during James Lancaster's last period of employment, checking out complaints that it was polluting the rivers. He testified that the Coast Guard "found nothing," according to a report received from the Coast Guard about the middle of April 1972. It is the General Counsel's position, as I understand it, that the Respondent seized on James' refusal to obey the order that he blow out the barge as a pretext to get rid of him because of his known union adherence and/or his protests of the Respondent's pollution of the river. In my opinion, the record does not support this contention. There is no evidence that the Respondent tolerated a refusal to obey a work order by any other employee or by James Lancaster before his union sympathies were known. The General Counsel's contention that the Respondent failed to reinstate James to a substantially equivalent job as ordered in the prior proceeding is not properly before me, and was not fully litigated in this proceeding. James 3 Southern Household Products Company, 180 NLRB 369; Big Y Supermarkets, 173 NLRB 405, 415. 4 In the prior proceeding, in which David Lancaster gave substantially the same testimony as to what Bradshaw said in discharging him, the Board found Bradshaw's remark about David's returning after the Union business was over not i o be coercive under Section 8(a)(1) In my opinion, however, it reveals an association between David and the Union in Bradshaw's mind. 5 Although James Lancaster had been employed in the past as a pilot, he testified he did not have a pilot's or a master's license. 6 James also testified that he did not work December 28, but he did not give the reason. He said he took off 2 days during this period. 7 I do not credit James Lancaster's testimony that the barge belonged to American Chemical Barge Line and that it had 2 to 3 inches of liquid caustic soda in its hold. It stands to reason that so much liquid could not have been blown out but would have to be pumped out. The Respondent's evidence that the tank was owned by Allied Chemical Corporation, had already been emptied, and had only to be dried out by blowers is more consistent with James' testimony that he was instructed only to "put the blowers" on the barge. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressed the opinion that the Respondent laid him off on the occasions referred to above and assigned onerous tasks to him as punishment for his union adherence. However, there is no credible evidence that he was the only laborer laid off during that period. There is also no credible evidence that work was available for him during the times he was laid off.8 As to the allegedly onerous tasks which were assigned to him, some of them were performed by others also, and it is equally possible that those tasks represented make-work given in lieu of additional layoffs. In these circumstances, I see no reason for construing Viglianco's statement regarding James' foreman potential to be "a subtle attempt by Respondent to take Lancaster out of the bargaining unit . . . thereby affording immunity to Respondent for his future discharge," as the General Counsel contends. Unlike the layoff of David Lancaster, which occurred in an immediate context of other unfair labor practices, this discharge of James Lancaster occurred some 9 months after such antiunion violations were committed, in a context remote from any such conduct. I conclude, therefore, that the evidence fails to show that antiumon considerations played a part in James' discharge. My conclusion is the same with regard to the contention that James' discharge was caused by his protests against the Respondent's purported pollution of the rivers. Thus, according to James Lancaster's own testimony, he had lodged such protests and had reported the Respondent to the Coast Guard on several occasions. Although manage- ment was well aware of this, and expressed annoyance, it revealed no disposition to discipline him for this conduct. It was not until James Lancaster flatly refused to obey a direct work order that Bradshaw, subsequently supported by Viglianco, fired him. The evidence establishes to my satisfaction that James' refusal to obey the order to blow out the barge was not in any way related to pollution of the waterways. There is no evidence that blowing out the barge would, or that James thought it would, pollute the waterways. Accordingly, I conclude that a preponderance of the evidence fails to support the General Counsel's contention that James Lancaster's discharge was motivated by either his known union sympathies and/or his protesting the Respondent's pollution of the waterways, novel and interesting as the latter contention is. I find that the Respondent discharged James Lancaster because he refused a direct order to put the blowers on a barge which had contained caustic soda. I further find that the reason James refused was because he thought it would explode and burn him. The General Counsel does not contend that the 8 James' testimony on the layoff of other employees was ambiguous His testimony regarding the availability of work lacked specificity and struck me as merely uninformed opinion . I therefore do not credit him on these points 9 N.LRB v Kohler Company, 220 F.2d 3, 10-12 (C.A. 7); N.LR.B v. Illinois Bell Telephone Co, 189 F.2d 124, 127 (C.A 7) Cf N.LRB. v Washington Aluminum Co., 370 U S. 9 I would also be proscribed from finding that James Lancaster's conduct derived protection from Sec. 502 of the Act, which provides, in part. " nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act." Aside from other considerations, prior cases turning on this provision discharge for the reason found was unlawful. The Respon- dent rested its case without offering any evidence on the issue, and the parties neither argued nor briefed it. I therefore have considerable doubts that the issue was fully litigated. Based on the evidence which is in the record, however, I would conclude that James' conduct, for which I have found he was terminated, was not protected by the Act. Thus, as far as the record shows, James acted alone in refusing to obey the order given him. Although he testified that another employee was also ordered to "put the blowers on," there is no evidence that that employee, or any other, joined in or even knew about James' refusal to carry out Bradshaw's order. Nor is there any indication that James was concerned for the safety of any employee other than himself. James' conduct was therefore not concerted, and consequently not protected by Section 7.9 Accordingly, I conclude that James Lancaster was discharged for cause, and recommend dismissal of the complaint as to him. REMEDY In order to effectuate , the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found, and in view of the nature thereof and the prior unfair labor practices found by the Board, to cease and desist from infringing in any manner on its employees' rights guaranteed by the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). Having found that the Respondent discriminatorily discharged David Lancaster, I also recommend that it be ordered to offer him immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges , and to make him whole for any loss of earnings suffered by the reason of the discrimination against him, plus interest at 6 percent per annum. F. W. Woolworth Co., 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716. I also recommend the posting of appropriate notices. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 10 ORDER The Respondent, South Point Barge Company, Inc. and South Point Towing Company, Inc., of South Point, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any deal with the status of employees who walk out in violation of no-strike agreements. See Stop & Shop, Inc, 161 NLRB 75; Curtis-Mathes Mfg. Co., 145 NLRB 473; Fruin Colnon Construction Co., 139 NLRB 894, set aside 330 F 2d 885 (C.A. 8); Knight-Morley Corp, 116 NLRB 140, enfd 251 F.2d 743 (C.A. 6) Cf. Redwing Carriers, Inc, 130 NLRB 1209, modified 137 NLRB 1545, enfd. 325 F.2d 1011 (C.A.D C.). io In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall as provided in Sec 102 48 of the Board's Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be waived for all purposes. SOUTH POINT BARGE COMPANY, INC. employee because of his suspected interest in, sympathy for, and/or activities on behalf of Inland Boatmen's Union of the Seafarers International Union of North America, AGLIWD, AFL-CIO, or any other union. (b) In any manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer David Lancaster immediate and full reinstate- ment to his former job, or if his job no longer exists to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the section of the Trial Examiner's Decision entitled "Reme- dy (b) Notify David Lancaster immediately, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, after dis- charge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve, and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its South Point, Ohio, location copies of the attached notice.'1 Copies of the notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days of the date of this recommended Order what steps the Respondent has taken to comply herewith.12 IT Is FURTHER ORDERED that the complaint in Case 9-CA-6840-1, -2 be dismissed in its entirety. ' In the event that the Board's Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 12 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 177 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the National Labor Relations Act, as amended, and we have been ordered to post this notice: WE WILL NOT discharge any employee because of his suspected interest in, sympathy for, and/or activities on behalf of Inland Boatmen's Union of the Seafarers International Union of North America, AGLIWD, AFL-CIO, or any other union. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer David Lancaster immediate and full reinstatement to the job he held prior to his discharge on May 25, 1972 or if his job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges. WE WILL make whole David Lancaster for any loss of pay he may have suffered as a result of the discrimination against him, plus interest at 6 percent per annum. SOUTH POINT BARGE COMPANY, INC. AND SOUTH POINT TOWING COMPANY, INC. (Employer) Dated By (Representative) (Title) WE WILL immediately notify David Lancaster if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202 Telephone 513-684-3696.