Sabine Towing & Transportation Co., Inc.

SABINE TOWING & TRANSPORTATION CO. Sabine Towing & Transportation Co., Inc. and John E. Lazenby, Randolph S. Svendsen, and Numa Louis Juneau, Jr. Sabine Towing & Transportation Co., Inc. and Seafar- ers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO. Cases 23-CA-4020-1, 23-CA-4020-2, 23-CA- 4020-4, and 23-RC-3606 August 10, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On November 27, 1972, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter , exceptions, supporting briefs, and answering briefs were filed, and Respondent filed a motion to reopen the record , which the General Counsel opposed. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, with certain modifica- tions set forth 'below. We find merit in the exceptions filed by General Counsel and Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO (hereinafter "SIU") to the Admin- istrative Law Judge's failure to find that Respondent unlawfully denied to SIU's nonemployee organizers access to Respondent's deep sea oil tankers during the preelection period of April to June 1971. The election was held among the unlicensed crew- men who worked on the tankers . It is undisputed that Respondent refused the request made by SIU on April 6, 1971, for access to its tankers . The request included an offer to discuss "plans and conditions which will be fair to both sides." Respondent also refused to supply the SIU with an advance schedule of port stops for the ships to which the unit employees were assigned . After being refused access to the tank- ers, the SIU requested a list of employees with their home addresses and telephone numbers. Respondent 1 The Respondent and Intervenor Sabine Independent Seaman's Associa- tion have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administra- tive Law Judge's resolutions with respect to credibility unless the clear pre- ponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 Members Fanning and Jenkins while otherwise agreeing with the Admin- istrative Law Judge's conclusions and findings, except as modified herein, would not under any circumstances defer the instant controversy to arbitra- tion 423 refused to provide this and implied that the Excelsior list 3 would be provided 10 days before the election. In fact, the SIU received the Excelsior list, containing the names and addresses only, on May 6, 1 month before the election was scheduled to begin. When confronted with Respondent's refusal to al- low the organizers to go aboard the tankers, the SIU business agent who was directing the organizing in- structed the organizers to meet the ships wherever and whenever they could find them in port and try to talk to the crewmembers in the unit when they came off the ships. Two SIU organizers testified as to the diffi- culties they encountered in attempting to contact the unit employees at their homes or in port. Except in regard to specific matters discussed hereinafter, their testimony was largely uncontroverted, and the Ad- ministrative Law Judge apparently credited them in general. With regard to home visits it was established that when the SIU received the Excelsior list a month be- fore the election, the list showed 107 employees living in Texas and another 61 with addresses in eight other States. Fifty-two of the addresses had no street ad- dresses. Of the Texas employees, 82 lived within 40 miles of Port Arthur, another 13 lived within 90 miles, and 12 lived farther away. There were 33 employees with addresses in Louisiana, but these were scattered over a large area. The SIU was able to find a listed telephone number for about three-fourths of the em- ployees. Respondent refused to supply a vacation list and the SIU had no other reliable source of informa- tion as to when employees were on vacation and thereby possibly available at home. (The regular tank- er stops at ports all along the Atlantic and Gulf coasts and some Caribbean Islands would not normally have allowed time for employees to go to their homes.) The major part of the organizing effort, therefore, was concentrated on the ports, where, as the business agent directed, the organizers attempted to meet the tankers as they docked and look for unit employees who would be willing to talk to them. Because the SIU was unable to obtain more than about 12 to 14 hours' advance notice of scheduled port arrivals, the organiz- ers were not always at the docks at the times the tankers arrived and the crewmen began to leave. Even when the organizers were there in time there were difficulties in identifying unit employees, in talking to more than one at a time when a group of them was going by, and in overcoming their reluctance to stop and talk. In the case of some employees the reluctance was a matter of personal preference, but in many cases it involved the pressure of other time commit- ments, such as someone waiting for them, or the pres- ence of supervisors or other company representatives J See In. 14, infra 205 NLRB No. 45 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought to be hostile to the SIU. Each tanker went into port about eight times a month for 17 to 35 hours. The crewmen were allowed ashore all or part of that time, depending on whether they were scheduled for "watch" or loading duties. Some went ashore seldom or not at all during this period. While a tanker was in port the organizers roamed the bars and taverns that seamen were known to frequent and attempted to converse with unit em- ployees they could find there or in the streets. In this way they managed to reach some crewmen they could not talk to on the docks, but they did not regard the barroom talks as satisfactory. Although the Administrative Law Judge did not question the authenticity of the foregoing, he conclud- ed that since the evidence shows a major effort by the SIU to contact the employees, the General Counsel failed to meet his burden of proving that the SIU's efforts were ineffective. In particular, the Administra- tive Law Judge concluded that the General Counsel's failure to establish how many employees could and could not be reached in personal contact was fatal to his case. We think the Administrative Law Judge er- red in this. This case involves us in the familiar balancing of interests between an employer's property rights and its employees' right to information about union repre- sentation. N.L.R.B. v. The Babcock & Wilcox Compa- ny, 351 U.S. 105 (1956). Since this is a case where the employees essentially are housed within the Employer's premises, i.e., the tankers, the general proposition of law applicable to it is that, absent legiti- mate business considerations, the Employer may not deny nonemployee union representatives direct, per- sonal access to such premises, for the purpose of dis- cussing unionism with the workers concerned, unless other adequate channels of communication with such workers are demonstrably available.4 Consistent with this approach to the problem of balancing the legiti- mate interests of the parties, the lawfulness or unlaw- fulness of a refusal of access must be determined on the basis of the geographical location of employees and other relevant objective facts existing at the time the request is made.' If, as here, the Union decides to attempt to contact the employees despite the refusal of access, neither it nor the General Counsel thereby assumes the burden of proving that the actual results of its attempt were inadequate. Aside from other con- siderations adequately set forth in prior cases, assign- ing such a burden would encourage unions to seek a remedy from this Board whenever access might be denied in a questionable case, and discourage them from making the organizing effort anyway in the hope of achieving the desired result more expeditiously. To thus prejudice a union because it undertook such le- gitimate attempts at self-help would result in an un- necessary burden on the Board, and would advance no meritorious policy we can think of. Should the union go ahead with its attempt and still fail in its organizational campaign, such a result should not prejudice its right to have litigated the reasonableness of the refusal of access when it occurred. If the union succeeds in gaining representative status despite the refusal of access it could still, if it chose, file a timely charge with respect to the refusal. If in either case the Board should then decide that under all the circum- stances a violation of the Act had occurred,' the sub- sequent events might well be considered in determining whether an order to grant access was a necessary or appropriate remedy. We are not saying here that, once a prima facie case is made out with respect to the apparent inadequacy of a union's alternate channels of communication, the evidence may not be rebutted by convincing evidence that the inadequacy was more apparent than real and that reasonable alternatives were in fact available to the union. In proving the availability of reasonable alternatives it presumably would be permissible to show what steps the union did in fact take, and what success it achieved in communicating with the em- ployees. It does not follow, however, that such proof is the burden of the General Counsel, or that a prima facie case is rebutted merely by showing that many employees were contacted. We find that the General Counsel in the instant case made out a prima facie case that Respondent refused access to the SIU under circumstances indi- cating that alternative channels of communication were inadequate. In fact they were inadequate partly because Respondent made them so. Although Re- spondent was not required to provide the SIU with port and vacation schedules, telephone numbers, or even names and addresses in advance of the Excelsior list, had it done so we would have a more difficult case before us in assessing the adequacy of alternative channels of communication. As it is, the Union was relegated in large part to trying to collar employees on a catch-as-catch-can basis during their brief stays in port. The demonstrably available channels of com- munication simply did not satisfy the employees' right to be given the benefit of the SIU's position on the issues raised by the election campaign, especially in light of the hostility to the SIU to which they were exposed aboard ship, as manifested in the other unfair labor practices found herein and the otherwise legal 4 Alaska Barite Company, 197 NLRB 1023, TXD at sec 111, C, 1 5 Id, TXD at sec III, C, 2, N L R B v Lake Superior Lumber Corporation, 6 Cf American Federation of Musicians, Local 76, AFL-CIO, 202 NLRB 167 F 2d 147, 151-152 (C A 6, 1948) No 80 SABINE TOWING & TRANSPORTATION CO. activities of the incumbent Union. In opposition to the General Counsel's evidence, both through cross-examination of the SIU organizers and through witnesses presented by the incumbent Union, it was shown that many employees were in fact personally contacted by the SIU organizers and actually talked to them about the SIU or, given the uncoerced opportunity, declined to. There is some dispute about the number of employees contacted un- der these circumstances . Out of approximately 167 eligible voters, the two SIU organizers who were most active in the campaign admitted contacting 84. They did not know how many other employees were con- tacted by 13 other organizers who played smaller parts in the effort. Testimony by 52 defense witnesses would indicate that at least 107 employees, including nonwitnesses admittedly contacted by the two organ- izer-witnesses, were contacted by SIU organizers. The Administrative Law Judge did not attempt to resolve this difference, and we find it unnecessary to do so.' Whichever figure is taken as a point of departure, it would be substantially reduced by eliminating those contacts made in taverns under conditions of noise, drunkenness, and other distractions that make it im- possible for us to say that such barroom contacts constituted a demonstrably available adequate chan- nel of communication.' We find that the showing of actual personal contacts by the SIU is insufficient to rebut theprima facie case made by the General Coun- sel. In Sioux City and New Orleans Barge Lines, Inc., 193 NLRB 382, a case similar in many respects to the instant case, the Board found a violation of Section 8(a)(1) in the employer's refusal to allow union repre- sentatives access to its towboats. The United States Court of Appeals for the Eighth Circuit denied en- forcement of the Board's Order.9 In denying enforce- ment, however, the court of appeals relied on evidence in the record which convinced it that permitting such access would have resulted in substantial interference with or detriment to the employer's shipping opera- tions. While the court disagreed with our finding that the evidence of interference or detriment was insuffi- cient in Sioux City, we find that, even in comparison to the record evidence in Sioux City, the evidence of probable interference or detriment in the instant case is negligible.10 We find, in conclusion, that this Re- ' There was also a difference in the time period referred to by the General Counsel and the defense witnesses 8 Cf Alaska Bartle, supra, TXD at sec III, C, 2 9 N L R B v Sioux City and New Orleans Barge Lines, Inc, 472 F 2d 753 (1973) 10 We note that in its request for access the SIU suggested that the parties discuss "plans and conditions " under which its representatives (at least some of whom were in fact experienced seamen and one was a former employee of Respondent) could go aboard See The Interlake Steamship Co, 178 NLRB 425 spondent has not demonstrated a substantial business justification in denying to its employees their only adequate channel of communication with representa- tives of the SIU, and that Respondent has by such denial violated Section 8(a)(1) of the Act and inter- fered with the ability of the employees to exercise their free choice in the election. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) and interfered with the employees' free choice in the election, by the action of W. Scott Clark in soliciting employees to sign a petition opposing the SIU. We do not rely, however, on his observation that Respondent admit- ted in its answer herein that Clark was a supervisor, or on his finding that the petition, after being drafted at a meeting of employees, was typed by a radio oper- ator employed by Respondent. As to the admission of Clark's supervisory status, it is too ambiguous to rely on." Notwithstanding, the record amply supports the Administrative Law Judge's finding that at all times in question Clark was a supervisor. The finding that a radio operator typed the petition is an inadvertent error (the typing by a radio operator having occurred on a different ship) which likewise does not affect the validity of the ultimate finding of Respondent's res- ponsibility for Clark's actions.12 Respondent and Intervenor, Sabine Independent Seaman's Association (SISA, the incumbent Union), assert that Clark's participation in the employee meet- ing was in his capacity as a member of SISA, not as a company supervisor. Having found that Clark was a supervisor, and noting that at the time the meeting in question occurred he was the supervisor of employ- ees who attended the meeting, his conduct herein is presumptively chargeable to Respondent unless, de- spite his supervisory status, he was acknowledged to be a member of the bargaining unit." Clark cast a challenged ballot in the election and the challenge was not resolved because it was not determinative of the outcome. Absent a showing that Clark was in the unit, and in light of Respondent's other antiunion conduct, 128 Respondent's answer was a flat denial of access which stated , in part, the following "The Company's rules prohibit nonemployees from boarding these vessels unless on the ship's business " Thus it would appear that the prohibition against any "visitor," under which the Respondent now asserts it operated, was actually a selective, not an absolute, rule 1 The complaint, at par 8, alleges that certain persons, including Clark, were, at all material times, supervisors within the meaning of the Act. The answer admits the allegations of par 8 of the complaint "except that William Scott Clark is a Cook and Relief Steward 12 We also correct hereby the following additional inadvertent error. The Administrative Law Judge, at JD sec II , C, 3, noted that Chief Engineer Spencer Owen "testified that he was a member of SISA [the incumbent Union ] " Owen actually testified that he was a member of Sabine Indepen- dent Seagoing Officers Association (SISOA) It does not appear that the Administrative Law Judge placed such reliance on his mistaken identifica- tion of Owen with SISA as to warrant the conclusion that any prejudice resulted 13 Montgomery Ward & Co, Inc, 115 NLRB 645, 647, Nassau and Suffolk Contractors' Association, Inc, 118 NLRB 174, 181-182 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we conclude that Clark should be held as acting on behalf of management, and that he therefore unlaw- fully coerced employees to sign a petition opposing the SIU. Respondent moves to have the record reopened for the purpose of admitting additional evidence regard- ing the discharge of employee John Lazenby. The Administrative Law Judge found, and we adopt his finding, that Lazenby was discharged in violation of Section 8(a)(3). Respondent would have us consider, in support of the discredited testimony of Captain Walter Smith, an affidavit and attachment purporting to show that on a certain date on which Smith testified he made a telephone call regarding Lazenby, he did in fact call his home office. The Administrative Law Judge's rejection of Smith's testimony on this point was based on the testimony of other witnesses that the message regarding Lazenby was sent by ship radio on a later date, and the mere fact that Smith placed a call to the office on the day he testified he discussed the Lazenby matter would not in itself tend to contradict the testimony of the other witnesses. We therefore deny Respondent's motion. THE REMEDY Having found that Respondent unlawfully denied the SIU access to its tankers, we shall add to the Administrative Law Judge's recommended Order a requirement that Respondent grant access to SIU rep- resentatives, subject to reasonable regulations. It is possible that, in other circumstances, it would be ade- quate to require the providing of information, such as port and vacation schedules, which would give the Union a better opportunity to contact employees without going aboard the tankers. Since Respondent also refused to give this information when requested, however, we deem it inappropriate in this case to re- quire the Union to make a second attempt to contact the employees on shore. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge , as herein modified, and hereby orders that Respondent, Sabine Towing & Transportation Co., Inc., Port Arthur, Tex- as, its officers , agents, successors , and assigns, shall take the action set forth in the recommended Order of the Administrative Law Judge, as modified below: 1. Add the following as paragraph 1(a) and renum- ber existing paragraphs 1(a) through (e) accordingly: "(a) Continuing or giving effect to policies or com- pany rules pursuant to which representatives of Sea- farers International Union of North America, Atlan- tic, Gulf, Lakes and Inland Waters District, AFL-CIO, have been denied access to employees on its vessels, for the purpose of soliciting their support during their free time, or for the purpose of consult- ing, advising, assisting, or otherwise communicating with them during their free time in regard to their rights to self-organization; provided, however, that nothing herein contained shall be construed to pro- hibit Respondent from making and enforcing reason- able regulations with respect to visits to its vessels by such nonemployee union representatives." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the election conducted in June 1971 in Case 23-RC-3606 be, and it hereby is, set aside, and that Case 23-RC-3606 be, and it is, remanded to the Regional Director for the purpose of conducting a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER KENNEDY, concurring in part and dissenting in part: I would affirm the Decision of the Administrative Law Judge in its entirety. The record in this case, in my judgment, does not warrant reversal of the Administrative Law Judge's conclusion with respect to Respondent's denial to nonemployee organizers access to its property. I joined my colleagues in finding a violation in Sioux City and New Orleans Barge Lines, Inc., 193 NLRB 382, because the record in that case satisfied me that the employees were sufficiently inaccessible as to make "ineffective the reasonable attempts by nonem- ployees to communicate with them through the usual channels." N. L. R. B. v. The Babcock & Wilcox Compa- ny, 351 U.S. 105, 112 (1956).14 In the instant case, however, the Administrative Law Judge is correct in his finding "that the General Counsel' s case fails for lack of proof that the Company's denial of access to its ships during the critical period deprived the SIU nonemployee organizers a reasonable opportunity to communicate their message to the crewmen." The General Counsel offered the general testimony of two principal organizers for the SIU, Glidewell and Willard, as to difficulties in communicating their mes- sage to crewmen . As noted by the Administrative Law Judge, they admitted on cross-examination, however, that they had contacts with 71 of the 168 crewmen. General Counsel offered no rebuttal evidence to the 14 The Eighth Circuit denied enforcement of the Sioux City case, 472 F 2d 753 (1973) SABINE TOWING & TRANSPORTATION CO. 52 crewmen who testified about their contacts by rep- resentatives of the SIU. Employee Harley Kenney, who had signed a card for the SIU in April, testified that Glidewell visited him and stated: "There are only twenty men that we have not seen." As noted by the Administrative Law Judge, Kenney's testimony is un- disputed because Glidewell was not called in rebuttal to refute it.15 With the record in this posture, I do not believe that it can be said that alternative effective means of direct communication with employees are not available. In addition to my disagreement with my colleagues as to their appraisal of the facts in this record, I feel obliged to disassociate myself from the discussion of "General Counsel's burden of proof" and `prima facie case" set forth in the opinion of the majority. It is unclear to me what the majority conceives to be the General Counsel's burden of proof in this type of case. Similarly, the majority opinion discusses `prima facie case" without providing guidance as to what constitutes a prima facie case. As I read the Babcock & Wilcox decision of the Supreme Court and subse- quent cases, this Board is not empowered to order access to nonemployee union representatives until the General Counsel proves that union efforts through usual channels are rendered ineffective by reason of the inaccessibility of employees. 15 General Counsel admits in his brief to the Board in support of his exceptions that "some sort of contact was made with most of the employees prior to the election " These contacts cannot be dismissed lightly as "ineffec- tive" simply because some of the contacts were in bars or at gates or docks APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after trial, that we violated Federal law by discharg- ing three employees for supporting the SIU and by otherwise interfering with our employees' right to join and support a union: WE WILL offer full reinstatement to Numa Louis Juneau, John Lazenby, and Randolph Svendsen, with backpay plus 6-percent interest. WE WILL, subject to reasonable rules and regu- lations, allow nonemployee SIU organizers to have access on our tankers to our employees dur- ing their free time for the purpose of soliciting their support, or for consulting, advising, meet- ing, or assisting our employees in regard to their 427 rights to self-organization. WE WILL NOT discharge any of you for support- ing Seafarers International Union, AFL-CIO, or any other union. WE WILL NOT encourage you to sign any antiun- ion petition. WE WILL NOT warn any of you of harm for sup- porting a union. WE WILL NOT tell any of you that we will not hire SIU or other union applicants. WE WILL NOT unlawfully interfere with your union activities. SABINE TOWING & TRANS- PORTATION CO, INC (Employer) Dated By (Representative) (Title) 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Dallas-Brazos Building, 1125 Brazos Street, Houston, Texas 77002, Telephone 713-226- 4296. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were tried at Houston, Texas, on Decem- ber 21-23, 1971,' and on January 6, April 11-13, May 8-9, and 30-31, and June 1-2 and 5, 1972. The charges were filed by three individuals (John E. Lazenby and Randolph S. Svendsen each filing a charge on June 30, and Numa Louis Juneau, Jr., filing a charge on August 16), and the complaint was issued on November 18. Pursuant to a Board order dated December 8 in the representation case, the complaint and representation cases were consolidated for trial on De- cember 14. The primary issues in the complaint cases are whether the Company, the Respondent, (a) unlawfully de- nied access by nonemployee union organizers to employees on board its five deep sea tankers, (b) engaged in certain coercive conduct during the election campaign, and (c) dis- criminatorily discharged three union supporters in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. In the representation case, the petition was filed by the 1 All dates are in 1971, unless otherwise stated 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SIU (Seafarers International Union of North America, At- lantic, Gulf, Lakes and Inland Waters District, AFL-CIO) on April 2. After interventions by incumbent SISA (Sabine Independent Seamen's Association) and the NMU (Nation- al Maritime Union of America, AFL-CIO), a stipulated consent election was held between June 9 and 23 in a unit of "All unlicensed employees on all sea-going ships of the Company, including boatswain, quartermasters, able sea- men, ordinary seamen, pumpmen, oilers, wipers, firemen- watertenders, cooks and messboys," excluding "stewards, radio operators, guards, watchmen and supervisors as de- fined in the Act." With approximately 167 eligible voters, there were 93 votes for SISA, 60 for SIU, 2 for NMU, 1 for none, and 11 challenged ballots, a number insufficient to affect the results of the election. The SIU and NMU filed timely objections. There being no exceptions filed to the Acting Regional Director's November 19 report and recom- mendations on the objections, the Board on December 8 adopted the recommendations, overruling all the NMU ob- jections and 3 of the SIU objections, and authorizing a consolidation for trial of the 10 remaining SIU objections and the issues in the complaint cases. 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, Company, SIU, and SISA, I make the following: FINDINGS OF FACT I JURISDICTION The Company, a Delaware corporation, maintains an of- fice and place of business in Port Arthur, Texas. It annually transports goods and materials from various States to other States in interstate commerce, receiving therefor gross reve- nue in excess of $50,000. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the SIU, SISA, and NMU are labor organizations within the mean- ing of Section 2(5) of the Act. It ALLEGED UNFAIR LABOR PRACTICES A. Alleged Unlawful Denial of Access 1. The setting The main question in this proceeding is whether the SIU nonemployee organizers were unlawfully denied access to the unlicensed seaman on board the Company's five tank- ers. (The NMU's organizational efforts were minimal.) Between November 1970 and the following June when the election was held, the SIU engaged in a major effort to organize the deep sea crewmen who work and live above the tankers, which operate mostly coastwise to various Gulf and Atlantic ports. The SIU assigned over 15 organizers, some of them operating over a large area and going from port to port to meet the ships, but most of them organizing primar- ily in the vicinity of the ports of their regular assignments. Although the Company refused to permit the SIU organ- izers to board the ships in port to communicate with the seamen, the SIU was able in 5 months to get pledge cards signed by the necessary 30 percent of the 160-odd unli- censed crewmen for filing the April 2 petition. (The evi- dence does not disclose how many of the 88 or 89 cards submitted with the petition were valid cards from current employees. Evidently the cards constituted less than a ma- jonty.) The complaint does not allege to be unlawful the Company's denial of access druing this first part of the organizing drive. During this organizing period before April 2, the Compa- ny was permitting noncrew officials of the SISA (the incum- bent independent or company union) to campaign on board against the SIU. On March 28, SISA Secretary-Treasurer Darrell Hicks met the SS Guadalupe at Pascagoula, Missis- sippi, called a meeting of the unlicensed crew in the crew's mess immediately before dinner, and talked against the SIU. On March 30, 2 days later, Hicks and SISA President James "Peewee" Clark met the SS Trinity at Pascagoula about 3 a.m., had the crew awakened, and held a meeting with them in the crew's mess. Hicks testified that both Clark and he talked at the meeting, and that he gave the crewmen about a 30-minute "pep talk," campaigning against the SIU. (In this meeting, and also on the SS Brazos, he talked to the crewmen about not being able to come aboard after a peti- tion was filed.) In meeting the ships, both Clark and Hicks were acting in a dual capacity, representing the Company as well as the SISA.2 This dual capacity is considered in connection with SIU's access to crewmen in port, and the testimony about purported fear of crewmen to talk in the presence of Clark and Hicks. (The complaint does not allege that the SISA is an illegally assisted or dominated labor organization.) It was during the crucial period of April, May, and June-between the filing of the petition and the holding of the election-that the Company is alleged to have unlawful- ly denied access to the ships, as requested by the SIU in writing on April 6. SISA Officials Clark and Hicks were not allowed aboard the ships during this time, but the SISA ship's delegates continued to hold anti-SIU meetings, with the apparent knowledge of the Company. As discussed lat- er, a company supervisor (Relief Steward W. Scott Clark) participated in one of the shipboard meetings at which peti- 2 Not being unlicensed crew members working aboard any of the ships, they were not in the stipulated bargaining unit (although the Company later included Clark's name on the Excelsior list) Neither was paid any salary by SISA On March 30, Clark (who was on the Company's shore payroll) brought crewmen aboard the Trinity from the Port Arthur office, and Hicks came on board as a salaried "agent" for the Company in Pascagoula As revealed by Relief Captain Walter Smith, Hicks ordered supplies and repairs for the ship, and sometimes helped in obtaining crewmen when needed "he scouted around and had a list of seamen out of work," and "if he had someone available to fulfill our requirements, he would [presumably after getting approval from Employment Agent James Lewis' office] send them on down" to the ship, after sending "them to the doctor for their examination " Hicks' responsible position with the Company was also revealed at the trial when Personnel Director Otis Barnes testified that on occasions during the sickness of Operating Coordinator Jabo Young (the management representa- tive who assisted counsel at trial in the presentation of the Company's de- fense), Hicks had taken the pay aboard the ship (a function also performed by Employment Agent James Lewis) I discredit Hicks' denial that he ever told Employment Agent Lewis about seamen being available, and credit the testimony of SIU Organizer James Willard (formerly employed by the Com- pany) that he had been present when Hicks recommended that someone be hired SABINE TOWING & TRANSPORTATION CO. tions were drafted , affirming support of the SISA and op- posing any outside union or an election. (Steward Clark spoke against an outside union in the April 4 meeting on the SS Colorado, and signed the petition which concluded, "We would like no interference from any outside maritime unions." The petition was typed by the radio operator, a member of the ship 's licensed personnel.) Pursuant to SISA Secretary-Treasurer Hick's encouragement, that they speak up for and defend the SISA, the ship's delegates (elected by the SISA members) carried on the anti-SIU campaign aboard the ships. On all or most of the ships, there were also crewmen supporting the SIU . The alleged discriminatory discharge during the election campaign of two of them is in issue, as well as a supervisor's statement to one of them that he could get his "head bashed in" if he kept "mouthing that SIU around the ship." There were various election issues involving comparative contractual provisions ; e.g., wages, overtime pay, welfare, pension, and retirement benefits, vacations, and grievance handling. But a key issue was protection or loss of jobs. Whereas the SIU sought access to the employees to commu- nicate the message that the employees would have both job security and greaterjob opportunities through a hiring hall, "The SISA [as summarized in its brief] urged the crew mem- bers that a hiring hall would open Sabine boats to other SIU members and jeopardize their present job security." There is evidence that Employment Agent Lewis also made this SISA campaign contention. 2. Request to board ships On April 6 (4 days after the petition was filed), the SIU requested in writing permission for its representatives "to go aboard your deep-sea tanker fleet . . . for the purpose of enabling the Union to communicate directly with the crew members in support of its organizational efforts." It cited the Board's holdings in Interlake Steamship Co., 174 NLRB 308 (1969), and 178 NLRB 128 (1969), and offered "to discuss with you plans and conditions which will be fair to both sides." The Company denied the request on April 8, stating its belief that the Union "will have ample opportuni- ty to contact these employees during their off-duty time while the vessels are loading and discharging cargo and through correspondence ." It also stated that it would be "exceptionally hazardous" to permit nonemployees "to board the vessels for purposes you request ," and against company rules for nonemployees, "unless on the ship 's busi- ness." It made no response to the SIU's offer to discuss "plans and conditions" for boarding (as had been offered in the cited Interlake case ( 178 NLRB at 129), in which the Board rejected the employer's "expressed fears of the conse- quences of permitting access for organizational purposes.") 3. Home visits The Excelsior list, which the SIU received on May 6, showed that the 168 listed persons lived in 9 different States: 107 in Texas , 33 in Louisiana , 11 in Florida , 8 in Mississippi, and 9 in other States (2 each in Alabama, Arkansas, Califor- nia, Georgia, and I in Nevada). No street address was shown for 52 of them (who lived in rural areas or in small 429 towns). The SIU was able to find a listed telephone for about three-fourths of them . A major problem was to learn which of the crewmen were on vacation, and then to find them at home. The Company refused to supply SIU with a vacation list, and the information received by questioning crewmen about who were off the ship often proved unrelia- ble. The Excelsior list, with the available telephone num- bers, was broken down into geographical areas and sent to SIU organizers in various ports. When information was received about a crewman being on vacation , an organizer would be assigned to try to contact him. SIU Organizer Thomas Glidewell , who concentrated on the Texas-Louisi- ana area for home visits, made many telephone calls to the homes of crewmen, but found very few to be at home. When visiting the homes, he would usually find that they were on the ship, or off on vacation but not at home. (Eighty-two of the Texas employees lived in a radius of about 40 miles of Port Arthur, another 13 lived within a radius of about 90 miles, and the remaining 12 lived in different parts of the State, up to several hundred miles away. There were no street addresses shown for 24 of them . In Louisiana, the homes were scattered in a large area over the southern half of the State, and over half of them had a box, instead of a street number, listed for their address.) James Willard, the other SIU organizer who testified, also made some home visits in Texas and Louisiana. He testified that he found about half of the people he went to visit to be at home, but he was not asked how many of these home visits occurred during the crucial 3 -month period . Glidewell received tele- phonic reports from organizers assigned in other areas about generally unsuccessful efforts in finding crewmen at home. The General Counsel did not offer evidence of the total number of crewmen actually visited in their homes by the various organizers during the April-June period . Later in the trial, SISA called a total of 52 crewmen who testified about their contracts with the SIU during the 3-month peri- od. A total of 14 of them testified that they had been visited in their homes during that period. 4. Literature distributed The SIU mailed a considerable amount of literature to the crewmen. Although SIU Business Agent Paul Drozak (who assigned the organizers in the campaign ) testified that nearly half of the literature mailed each time to the persons on the Excelsior list was returned, the returned mail was not saved to substantiate the extent of the returns . There was also a certain amount of SIU literature taken aboard by SIU supporters, and mailed to crewmen on board. The evidence is in conflict about how long some of this was allowed to remain in the mess halls or lounges and on the bulletin boards. SISA supporter James Ballard credibly testified that he removed SIU literature from the bulletin boards and mess tables on the SS Brazos and threw it away. SIU sup- porter Robert Thompson credibly testified that on the SS Guadalupe, he saw Relief Captain B. R. McCluskey remove SIU literature from the bulletin board and throw it in the mess trash can. (McCluskey testified, "Not any time that I know of," when asked if he ever removed any union litera- ture.) Other SIU literature was thrown overboard. John 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Riggs, a General Counsel's witness (as confirmed by SISA witness Bobby Gaylor) saw SIU literature on a far table in the Trinity mess hall for a couple of weeks. About 40 percent of the SISA witnesses did not testify about seeing SIU litera- ture on board. 5. Organizers' contacts in port The issue, about which most of the evidence at the ex- tended trial was offered , was whether access to the crew- members at the gate or docks, and in bars and taverns frequented by seamen, afforded the SIU nonemployee or- ganizers a reasonable opportunity to communicate their message to the crewmen. The tankers, each with an unlicensed crew of about 25-28, are customarily in port for 17 to 35 hours about eight times a month . In port, the crewmen are permitted to go ashore when not on watch (4 hours on and 8 hours off), and not working days (from 8 a.m. to 5 p.m.), or loading stores. a. Evidence of inaccessibility The General Counsel did not present evidence of the total number of crewmen who could not be reached with the SIU message at the docks and gates and in the taverns during the crucial period between the filing of the petition on April 2 and the holding of the election in June . Instead, he offered testimony of two of the principal SIU organizers , Glidewell and Willard, who testified about the "numerous realistic problems" involved in organizing at the dock gates , Inter- lake Steamship Co., 178 NLRB 128 (1969), and the unsuita- bility of "some waterfront bar or lounge" as a place to discuss union campaign issues when the seamen are "seek- ing pleasure and relaxation." Organizers Glidewell and Willard gave a number of rea- sons for limited success in talking campaign issues at the gate or at the dock. The seamen would be eager to leave if someone was waiting for them . It would be difficult to talk with more than one if the seamen were leaving in a group. There was a problem of getting unfamiliar seamen identi- fied as members of the crew in time to talk to them before they left. Many of the crewmen would not talk, or take literature, in the presence of a ship 's officer, or in the pres- ence of SISA officials Darrell Hicks and Peewee Clark (who served in the dual capacity , representing both the Company and SISA), and one or both of these SISA officials were present much of the time at the "home" ports in the Gulf area. In some of the ports , the organizers were able to go onto the dock, where they attempted to talk with the crew- men taking on stores . Such talk was usually quite limited: some of the crewmen indicating they did not want to talk "by looking over their shoulder to see if the chief mate was watching." (As an experienced seaman himself , Glidewell gave this explanation for the fear on the part of the crew- men: "If you give a seaman enough time he is going to mess up, I don't care who he is. . . . So all you have to do is lay for him . He is going to be late sooner or later. . . . You can cut him right to the very minute of coffee time . You can get rid of him. And the guys know this. . . . And there's very few nonunion steamship companies left, and that means, say, he is with Sabine, and he did get fired . . . his position is, `Where do I go now?"') Some of the seamen would neither speak nor identify themselves as they left the gate. Some would not go ashore, particularly when away from the home ports. Sometimes the crewmen were willing to take a ride with the organizer into town or to a bar , giving the organizer more time to talk with them. After leaving the dock or gate, the organizers would at- tempt to locate the crewmen in bars or taverns frequented by seamen . (Some of the seamen would spend their time ashore in various other ways.) When the seamen could be found and identified as members of the unlicensed crew, there were many obstacles to communicating the union message : high noise level or the entertainment, seamen drinking too much for serious discussion, the presence of a wife or girl friend or supervisors from the ship , or interfer- ence from an SISA official. On cross-examination by the Company and SISA coun- sel, Organizers Glidewell and Willard were questioned about their contracts with each person on the Excelsior list from November 1970 until the June election. (Therefore the organizers' answers were not confined to the contacts made in the April-June period.) Testifying from memory, without any records or reports from the various organizers (except Glidewell's copy of the Excelsior list bearing symbols he no longer remembered), the two organizers admitted home or other contracts or discussions with 23 of the crewmen who later testified for SISA, plus an additional 48 employees (totaling 71 contacts.) They also testified that 13 crewmen (3 SISA witnesses and 10 others) had refused to talk to them. They denied having had the opportunity to talk with the remaining 84 persons on the Excelsior list (168 minus 84). b. Evidence of accessibility SISA called 52 crewmen (nearly a third of those on the Excelsior list), who testified about the SIU contracts during the April-June period. In summary, 14 of them testified that the SIU had visited them in their homes; another 32 (total- ing 46) testified that the SIU had contacted them elsewhere (in bar, at gate or dock, or had given them a ride or had telephoned them); one (Wesley Stone) was never contacted; and five avoided any contact or refused to talk with SIU. Thus, 46 SISA witnesses claimed that they had been con- tacted at home or elsewhere between April and June, where- as Organizers Glidewell and Willard had admitted contacting only 23 of them, from November to June. Some of the testimony by the SISA witnesses is in general agreement with that of Organizers Glidewell and Willard. At least six of the SISA witnesses testified about themselves and/or others seldom going ashore . Some of them indicated that a bar or lounge was an inappropriate place to talk about a union : they were interested in drinking and enjoy- ing themselves, and did not want to be disturbed. While some would stop and talk at the gate , there was testimony that the seamen were usually in a hurry to leave . Some did not frequent the bars. Unfortunately, though, it seems that some of the testimo- ny (as contended by the General Counsel) was "obviously exaggerated or misrepresentation of facts to curry favor" with the Company. I note that Joseph Meyer finally admit- SABINE TOWING & TRANSPORTATION CO. ted, "I just pulled it out of the air, I guess," after reducing from 20 to 30, to 8 to 10, the number of hours he estimated he spent with SIU representatives "discussing the campaign issues." I also note that other purported contacts , cited in SISA's brief, totaled about 15 to 20 hours (Draydon Moore), 15 to 25 hours (John Reynolds), and 10 to 20 hours (Ralph Dominque). Other witnesses gave varying numbers of purported contacts (some lengthy and repeated), and testified about SIU organizers talking to crewmen individu- ally and in groups, and buying the drinks. The General Counsel did not offer any rebuttal. I there- fore have no way of knowing whether the specific testimo- ny, given by SISA witnesses, had refreshed the memory of Organizers Glidewell and Willard, or whether they would have denied the specifics. Moreover, many of the SISA witnesses testified about contacts with other SIU organizers, who were never called to testify. Also, there remained undis- puted the testimony by SISA witness Harley Kinney that about April, Glidewell went to his home and showed him a list of crewmembers for each ship (not the later Excelsior list), counted the X's by the names , and said that "only 20 men we haven't seen. . . . By the time I talk to you we will have seen 12 more, and I hope to see 1 of the others, myself, and that will be 9 we haven't seen." (After so testifying, he conceded that "those figures do not add up ," but claimed that Glidewell "told me definitely there were 20 men they hadn't seen. And I was kind of surprised.") Even if Glide- well had made such. a statement, and it was true, it would have referred primarily to contacts (of unspecified lengths) during the card-signing period , and not to the critical period from April to June , when a key election issue was job securi- ty, and SISA was claiming (as President Peewee Clark told Robert Thompson) that if the SIU won, SISA members would be "replaced by SIU people." Nevertheless, rebuttal testimony by Glidewell on the matter would have been helpful in making credibility findings and determining the extent of the SIU contacts during the campaign. 6. Contentions of the parties The General Counsel argues that the crewmen on the five tankers, when not beyond the SIU nonemployee organizers' reach at sea, are "off to their homes scattered over several States, pursuing their various needs and interests ashore in far-flung ports-of-call, or, perhaps, seeking pleasure and relaxation in some waterfront bar or lounge . It would be a gross miscarriage of justice to hold that Respondent's em- ployees were `reasonably accessible' to the Union." N.L.R. B. v. Babcock & Wilcox Company, 351 U.S. 105 (1956); Central Hardward Co. v. N.L.R.B., 407 U.S. 539 (1972); Interlake Steamship Co., 174 NLRB 308 (1969), and 178 NLRB 128 (1969). The SIU argues in its brief that it takes time to win a seaman's confidence, and to explain the cam- paign issues, and that the "fleeting encounters on the docks" are insufficient when competing against "an entrenched company union." It also downgrades "waterfront saloons" as a place for serious discussion. Both the Company and SISA, relying also on Babcock & Wilcox, contend that access to the ships was not necessary because the SIU was able to reach the crewmen with its 431 message through "widespread" or "abundant" contacts in port and through the distribution of literature. Concerning home visits, the Company contends that the testimony by SIU representatives "does not leave the impression of any sincere effort" to make them, whereas SISA contends that "it seems highly likely that there was substantial additional home contact" than those admitted by the SIU representa- tives who testified. In Babcock & Wilcox, 351 U.S. at 113, the Supreme Court discussed the governing consideration for determining whether nonemployee organizers are entitled to access to company property: The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the lo- cation of a plant and living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. [Emphasis supplied.] Elsewhere in the decision, the Supreme Court held that an employer could validly post his property against nonem- ployee distribution of union literature "if reasonable efforts by the union through other available channels of communi- cation will enable it to reach the employees with its mes- sage," provided the employer "does not discriminate against the union by allowing other distribution." 351 U.S. at 112. (Here, although the Company permitted noncrew SISA offi- cials to board the tankers and campaign against the SIU in meetings held in the crew's mess before the April 2 filing of the petition, it prohibited both the noncrew SISA officials and the SIU organizers from boarding the ships during the critical period from the filing of the petition until the hold- ing of the election in June .) Also in the same decision, the Supreme Court held that "when the inaccessibility of em- ployees makes ineffective the reasonable attempts by non- employees to communicate with them through the usual channels, the right to exclude from property has been re- quired to yield to the extent needed to permit communica- tion of information on the right to organize." Ibid. 7. Concluding findings After weighing all the evidence, I find that the General Counsel's case fails for lack of proof that the Company's denial of access to its ships during the critical period de- prived the SIU nonemployee organizers a reasonable op- portunity to communicate their message to the crewmen. The General Counsel tried the case on the theory that the SIU did not have reasonable access to the employees at the dock and in the bars, or at the employees' widespread homes. However, in offering his proof, he stopped at intro- ducing evidence of the difficulties encountered, without being prepared to introduce evidence of the actual number of employees who could not be reached through such ef- forts. He produced on this issue only 2 of over 15 organizers, 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and neither of them was prepared to testify other than from memory about the contacts made among the 160-odd crew- men. Neither of them produced any records or reports of their own or other organizers, showing how many the SIU could or could not reach with its message during the April- June period. Then when 52 crewmen were called and ques- tioned in detail by the SISA and company counsel about the SIU contacts in that period, the General Counsel failed to rebut their testimony. It is true that there was a large number of crewmen whom SIU Organizers Glidewell and Willard denied contacting and who were neither called nor specifically mentioned by the SISA witnesses. However, I do not find, as argued by the SIU, that this demonstrates that the SIU was not able to contact and discuss the campaign issues with them. Al- though Glidewell and Willard were two of the principal organizers, they gave only their memory of who were con- tacted; they could not testify whether other organizers, in other ports, had contacted them. As previously noted, the SISA continued to have anti- SIU meetings on board after the filing of the petition, and SISA ship's delegates continued to campaign against the SIU. However, this was activity by the employees them- selves and did not entitle the nonemployee organizers to go on company property. General Dynamics/Telecommumca- tions, 137 NLRB 1725, 1728-29 (1962). I also find that the one instance in which a company supervisor (Relief Steward Clark) participated in one of the anti-SIU meetings and signed the petition against any outside union during the Apnl-June period does not lay the predicate for a different result. The General Counsel strongly relies on the Board's hold- ings in the representation case, Interlake Steamship Co., su- pra, 174 NLRB at 309, 178 NLRB 128, in which the Board held that where the crewmen spent virtually all of their time on board the Great Lakes vessels "beyond the reach of reasonable union efforts to communicate with them" (citing Babcock & Wilcox, and "the means of direct and personal solicitation were severely limited," the employer was re- quired to honor the union request for reasonable means of access to the employees aboard ship when in the major ports. However in that case, in which the election was set aside, there were no findings or allegations as to what efforts the union made to contact employees personally during the 4 to 8 hours when two-thirds of the crew were permitted to go ashore. Here, the evidence shows a major effort by the SIU to contact the employees, but the General Counsel has failed to meet its burden of proving ineffective the attempts to contact and discuss the campaign issues with the crew- men at the gates or docks, at the bars and taverns, while providing them transportation, or in telephone conversa- tions or home visits during the critical period. (In the cir- cumstances of this case, including the nature of the key issue of job security, I consider the effectiveness of distributing literature of lesser importance: "mail is no substitute for face to face contact," N.L.R.B. v. Tamiment, Inc., 451 F.2d 794, 798 (C.A. 3, 1971).) The General Counsel having failed to prove that the deni- al of access to the ships was unlawful, I shall therefore dismiss the allegation that the denial violated Section 8(a)(1) of the Act. B. Other Alleged Interference 1. Statement by Steward Ebanks Steward James Ebanks, a supervisor on the SS Trinity, was the immediate superior of John Lazenby, a new mess- man who had been on board less than 2 months. While the ship was in Piney Point, Maryland, about March 24-25, Lazenby visited the SIU's seamanship school there. Upon returning to the ship, Lazenby enthusiastically talked about the SIU and the school, and showed Ebanks some literature from the school. A day or so later, at sea, Lazenby and Ebanks were in the storeroom with messman John Riggs. As Lazenby credibly testified, Ebanks told him, "You know, you keep mouthing that SIU around this ship, that is a good way to get your head bashed in or a knife in your back .. . because these old men on here aren't going to stand by and let some young punk come in and change things around." (Riggs did not have as clear a recall as Lazenby about what was said. He remembered Lazenby saying in the storeroom he thought SIU was better than SISA, when Ebanks cau- tioned Lazenby about talking about the SIU on board, say- ing something like, "You should be careful what you say because you can lose your job or you can get in trouble.") Ebanks, who impressed me as not being a credible witness, not only denied saying anything to Lazenby about getting stuck with a knife or getting his head bashed in, but denied even knowing that Lazenby was a SIU supporter. ( I note that a SISA witness, cook Vincent Martin, testified that Lazenby talked about the SIU "all the way back to Pasca- goula," and that another SISA witness, boatswain Marvin Reed, testified that Lazenby spoke a lot in favor of the SIU in the mess hall at dinner, and "seemed to be the most influenced" by the SIU school.) I discredit Ebanks' denials. Although Ebanks was not personally threatening Lazenby with harm, I find that the warning by Ebanks, Lazenby's immediate supervisor, that "mouthing that SIU around this ship" was "a good way to get your head bashed in or a knife in your back"-particularly in the context of the organizing campaign and the captain's insistence on that same trip that Lazenby was quitting rather than taking off a trip, as dis- cussed later-was coercive and tended to interfere with the organizational rights of the employees in violation of Sec- tion 8(a)(1) of the Act. 2. Interference by Relief Steward Clark W. Scott Clark (brother of SISA President Peewee Clark) was a relief steward on the SS Colorado. (The evidence clearly shows that as a relief steward, he possessed and exercised the same supervisory authority as the steward. Serving as a supervisor, he effectively recommended the discharge of messman Randolph Svendsen, as discussed later. In its answer, the Company admitted that Scott Clark "At all times material herein" was its agent and a supervisor within the meaning of Section 2(11). Although Clark also had the rating of cook or chief cook, he was serving in the supervisory capacity of relief steward at all times in question herein.) On April 4 (2 days after the SIU filed the election peti- tion), Scott Clark took an active part in the calling and SABINE TOWING & TRANSPORTATION CO. holding of a special meeting on board to oppose the SIU. SISA witness Charles Wiltz (who impressed me as an hon- est, forthright witness) was one of the messmen serving under Clark at the time. Wiltz credibly testified that Clark told him to be at the meeting, and messman Svendsen credi- bly testified that he saw Clark write the notice of the meet- ing on the mess hall bulletin board . The SISA ship's delegates, councilmen Judson Godbold and Robert Gore officially conducted the meeting, but, as SISA witness Wiltz credibly testified, Scott Clark seemed to be in charge, and explained that there was going to be an election and talked about signing a petition. (Clark testified that "we had gotten a letter that we was going to be organized," and "what we were trying to do" was "to try to stop it.") SISA witness Bobby Gaylor (who impressed me as being eager to give testimony favorable to the Company) conceded that Clark, as well as others, stated his opposition to any outside maritime union. SISA witness Emery Faul also testified that Clark spoke in favor of the petition. The petition, drafted at the meeting and taken to be typed by the radio operator (a member of the licensed personnel), was addressed to the NLRB, dated April 4, and read (in all capitals): We the undersigned held a meeting aboard the S/S COLORADO at 6 p.m. Sunday 4th day of April 1971. The meeting was held for the purpose of signing this letter letting it be known that we are in good standing with the Sabine Independent Seamans Assn. and that we would like no interference from any outside man- time unions. As Wiltz credibly testified Clark stated that if anyone had signed a pledge card, he should not sign the petition, and that no one was forced to sign it, but "the more names we had the better off it was for us." Svendsen credibly testified that it was Clark who answered when Svendsen and another crewman asked questions about signing the petition if some- body had signed an SIU pledge card. Clark admitted, "I had as much part" in the meeting "as anybody else." (I discredit SISA witness Jerome Hartman's testimony that Clark was not at the meeting . I also discredit SISA witness Grover Ikner's testimony that the meeting "was my own idea" 100 percent, that it was Gore who wrote the notice on the bulle- tin board, and that Clark did not take any part in the meet- ing, "Not that I know of." I also discredit Gore's testimony that he did not remember Clark "having anything to say" at the meeting, and that he (not Clark) posted the notice on the board. Gore conceded that they had "talked around there a couple of trips" about the matter.) With the excep- tion of SISA delegate Grover Ikner, who inadvertently failed to sign, all of the other 27 crewmen on board (includ- ing those who had signed SIU pledge cards), plus Steward Clark, signed the petition. Later, as Wiltz credibly testified, he talked to Clark about changing his mind and Clark per- sonally scratched off Wiltz' name from the petition. (Clark testified that one copy was sent to the NLRB, one to the SISA office, and one to each of the other four ships as a suggestion that "if they didn't want an election, to do the same thing. . . . Maybe we could avoid it by each ship sending a copy.") Neither the Company nor SISA discusses in its brief this interference, by a compnay supervisor, with the employees' 433 organizational rights. I find that by his participation in the calling and holding of the meeting , and signing the petition, Relief Steward Clark "solicited employees to sign a petition opposing the SIU," as alleged in the complaint, and that the Company thereby coerced the employees in their Section 7 rights, in violation of Section 8(a)(1) of the Act. 3. Statements by Employment Agent Lewis a. To Swearingen On June 2, Employment Agent James Lewis (an admitted supervisor) went aboard the SS Trinity to pay off the ship. He talked to wiper Keith Swearingen who was scheduled to go on vacation. As Swearingen credibly testified, Lewis ex- plained why a relief was not there: "He said that they .. . couldn't find any wipers right now because . . . they were having to check everyone out . . . make sure that they weren't getting any SIU men aboard ship . . . because of this election. They didn't want to have any SIU instigators . .. aboard ship." Thereafter Lewis-repeating the SISA key campaign contention-told Swearingen that he would be better off staying with the SISA because the SIU was "just trying to get the ships and not the men," and that Swearingen had a permanentjob with the Company as long as he wanted it, but he would not with the SIU. Although called as a defense witness, Lewis was not questioned about this conversation . The alleged coercion is not mentioned in the Company's brief. Employment Agent Lewis was the company official or representative to whom all the crewmen looked for their employment. In agreement with the General Counsel, I find that Lewis' statement about SIU applicants for employment being screened out-particularly in the context of his com- ments about Swearingen not having a permanent job if the SIU won the election (which was scheduled later that month)-was coercive and tended to discourage employee participation in the organizational efforts. I therefore find that the Company thereby interfered with the employees' exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. b. To four other crewmen About a month earlier, on May 9, Employment Agent Lewis made a similar statement to four other employees, according to Guadalupe wiper Numa Juneau . On that Sun- day evening, Juneau had gone with fellow crewmen Bennie Ballard and Robert Ackerman and with Grover Ikner, an SISA delegate on the SS Colorado, to Lewis' office to pick up mail. They were in the office over 30 minutes , discussing various matters, including employment, unions, and the election. During the discussion , according to Juneau, Lewis took some files from the filing cabinet, opened several of them to show the employees the applications he had received, and "told us" from the different companies the applicants had worked for, "whether they was SIU or NMU, and that he would not hire these people because he didn't want them in the company union" or "he didn't want them in the Compa- ny taking up our jobs." This testimony was bolstered on 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination when Juneau gave the details, that Lewis read from one of the applications, "Texaco" (an "NMU company"), which Juneau testified he remembered because "Ackerman's father is chief engineer for Texaco." Then, as the four employees were leaving , Lewis said "to be sure and not mention a word about the conversation that we had in the room because [Lewis] could get fired over it." (It devel- oped at the trial that the Company had written the officers and supervisors on April 8, urging them to be careful to preserve the Company's neutrality. Lewis claimed that he did not receive this communication and denied that Person- nel Director Barnes spoke to him about the matter. To the contrary, Barnes credibly testified that he discussed with Lewis "that we was to stay neutral on the situation, and we had a letter from the Company to that effect.") When called as a defense witness, Employment Agent Lewis gave a most implausible account of what happened. He testified that Ackerman asked him if there were many seamen on the beach. "I put my hand on a pile of applica- tions that were laying on the desk," and said, "I have this many . . . from the West Coast, from the East Coast, from all over the United States," thumbing through the stack of applications about an inch or inch and a half high. Then Ackerman asked "if any of those were SIU or NMU. I said I didn't know " (Emphasis supplied.) I find it inconceivable that Lewis would be telling Ackerman that he did not know whether the applicants were SIU or NMU in view of the common knowledge in the industry, admitted by Lewis him- self, that a seaman's affiliation is revealed by the companies for which he works. Lewis denied saying he would not hire any of those applicants , or telling the crewmen not to men- tion the conversation . I note that Lewis testified that after the filing of the election objections (in which it was alleged that Lewis showed employees the applications and stated that SIU and NMU members would not be employed, but not to tell anybody), he talked to Ikner, Ballard, and Acker- man-not to Juneau-"asked if I had showed them any applications or documents in my office," and received nega- tive responses . (This questioning is considered in connec- tion with Juneau's later termination.) I also note that when Lewis was asked on the stand whether anyone with the Company had asked him to explain what happened con- cerning the allegation in the objections about him, he an- swered "No." To the contrary, Personnel Director Barnes (who impressed me as a more trustworthy witness ) testified that he had gone over the objections with Lewis , and had talked to Lewis about whether Lewis had done what was alleged. In resolving the conflict between the testimony of crew- man Juneau and Employment Agent Lewis, I find the high- ly contradictory testimony of the three other crewmen of little value. Benny Ballard, called by the General Counsel, corroborated Juneau's testimony about Lewis stating these union applicants would not be hired. However, he appeared not to have as good a memory as Juneau . Moreover, he gave conflicting testimony and impressed me as being an SIU supporter who was less than a candid , forthright witness. Ikner, an SISA delegate, appeared to be just as partisan on the other side (and gave, as indicated above , discredited testimony concerning the April 4 meeting on the Colorado and Relief Steward Clark 's participation). He claimed that Lewis indicated that no jobs were available at the time for the union applicants. The remaining witness Ackerman, gave testimony in great conflict with all the others. He claimed that when the four crewmen went into the office, he asked Lewis whether voting for the SIU or NMU would put him out of a job, and Lewis answered, "I have got some records here that show what happened when the tugs went union. You can see for yourself." According to Ackerman, he and the other three crewmen looked at the tugboat re- cords, which showed "the guys that had to leave" when the SIU came in. (Ikner and Lewis testified after him. Ikner testified that he did not see any tugboat records and "didn't hear anything about that." Lewis testified that Personnel Director Barnes' tugboat file was on his desk that weekend, but that he did not hand it to Ackerman, and did not see anybody flip through it. Moreover, nothing in the file con- cerned the replacement of employees when the tugs went union.) There appears to be merit to the General Counsel's contention that "Ackerman, in a pathetic and transparent attempt to offer testimony which he assumed would please his employer, spun his fantastic testimony out of the whole cloth." I also find to be fabricated Ackerman's claim that after this incident Juneau told him that the SIU would give him a full Class A book if he would testify that Lewis "tried to get us to not vote SIU" and showed them "union records and stuff." He, like Ballard and Ikner , impressed me as being too untrustworthy as a witness for me to rely on his testimony in resolving the conflicts in the testimony given by Juneau and Lewis. When testifying, Juneau impressed me as an honest, forthright witness. After weighing his testimony about what was said in Lewis' office that evening , and comparing it with the implausible account given by Lewis, I credit his version of what was said and find, as alleged in the complaint, that Lewis "told employees that the Respondent would not hire job applicants with previous SIU and NMU affiliations or loyalties." (This occurred about a month before the election, and was similar to the above-found statement by Lewis to wiper Swearingen about 3 weeks later. Whether, and under what circumstances, Lewis would hire SIU and NMU em- ployees on other occasions, I find not to be determinative.) Accordingly I find that, by making this statement to the four employees during the critical election period, the Com- pany engaged in coercive conduct , interfering with the exer- cise of the employees' Section 7 rights. C. Alleged Discriminatory Discharges 1. John Lazenby When the SS Trinity arrived in Piney Point, Maryland, about March 24, messman John Lazenby visited the SIU seamanship school there and obtained some literature on how to obtain an able seaman's endorsement. Steward Ebanks later saw Lazenby looking at the literature and Lazenby told Ebanks that he had obtained the information from the SIU school. Ebanks asked "why didn't I get some- thing for the stewards department?" Lazenby (who had ear- lier asked the captain for a transfer) stated he was not interested in the steward's department, but wanted to get either on deck or engineering. SABINE TOWING & TRANSPORTATION CO. 435 Before this, as Lazenby credibly testified, he had been talking on board in favor of the SIU, and had often talked to Steward Ebanks, comparing the SIU with SISA. After leaving Piney Point, as previously found , Lazenby was en- thusiastically talking to crewmen about the SIU and its school, and Ebanks warned him that if "you keep mouthing that SIU around the ship," that was a good way to get his head bashed in, etc. Lazenby replied that "if I couldn't have my own right to choose who I wanted to vote for, what was the use in having a constitution ." (I discredit Ebanks' denial of any knowledge that Lazenby favored the SIU.) On that same return trip , as Lazenby credibly testified, he talked to Steward Ebanks about leaving the ship at Pasca- goula, taking a trip off, and catching the ship in Houston either 4 days later or upon its return there in about 14 days. Ebanks agreed to talk to the captain about it. At breakfast the next morning, Relief Captain Walter Smith mentioned the request for a trip off and Lazenby "told him that my wife was expecting" and having problems, and that he want- ed to go home and get things with her and some financial obligations straightened out. Smith replied , "0. K., whenev- er we call in to the office I will ask for your relief." Later, however, Lazenby was told by messman Riggs that the ship had radioed the office that Lazenby had quit. (Riggs, who was then serving as lmenman, credibly testified that about a day or two out of Piney Point, he was cleaning the captain's room and overheard Captain Smith talking to the radioman about messages to be radioed to the home office. Riggs told Lazenby about this because, as Riggs credibly testified, Riggs had heard Lazenby talking to the steward about taking a trip off, and had heard Lazenby mention he was hoping to get a trip off.) Lazenby immedi- ately spoke to Steward Ebanks about what Riggs had heard, and Ebanks "told me that all he did was tell the captain what I told him . . . that I wanted a trip off." Lazenby asked the steward to talk to the captain and get it straight- ened out, but Ebanks said, "No, I am not going to say anything to him . He has already sent it in." Lazenby asked if he could talk to the captain about it and Ebanks said, "I wouldn't if I was you." Following Ebanks' advice , Lazenby said nothing further to the captain until the ship docked in Pascagoula and Lazenby signed off. Captain Smith handed him the leaving-service form which was marked, "Re- signed." Lazenby protested that he had not quit , and re- fused to sign the form . Smith responded, "Well, I don't give a damn if you sign it or not. . . . I am tired of messing around with you." Lazenby left the ship and went to Em- ployment Agent Lewis' office the following morning. He again denied quitting, but Lewis insisted that he had. (The Company concedes that Captain Smith terminated Lazen- by.) According to this account, which I credit after weighing all the evidence, Lazenby first asked his immediate supervi- sor, Steward Ebanks, for a trip off, and then talked to Cap- tain Smith, who agreed to permit it. Then when Lazenby learned that the ship had radioed the office that Lazenby had quit, Lazenby requested Ebanks to straighten out the matter. Ebanks, who on the same return trip had warned Lazenby about "mouthing that SIU around the ship," not only refused, but advised Lazenby not to talk to the captain about it. This evidence suggests that Smith, within the knowledge of Ebanks, had decided to terminate this enthu- siastic SIU supporter, after first agreeing to permit him to take a trip off. In its brief, the Company contends that Lazenby intend- ed to quit but, "apparently for some reason of his own," changed his mind. Even if this had happened, Captain Smith's explanation at the trial for not permitting Lazenby to change his mind suggests a discriminatory motivation for terminating Lazenby, as discussed later. But Captain Smith's account of what happened was dis- proved by other company witnesses. He testified that, at breakfast the morning after the ship arrived in Piney Point, Lazenby "approached me and said he would have to quit when we got back to Pascagoula." According to Smith, "a couple of hours later," he used a pay telephone on the dock, called Employment Agent Lewis, and "told him Lazenby was quitting when he got back to Pascagoula, and that I would need a replacement for him." On "the following day," March 25, the ship sailed. Thus, according to this testimony, Smith telephoned for a replacement from port on March 24, the day before sailing. He positively testified that while at sea, between Piney Point and Pascagoula, he was not in touch with the home office by radio concerning Laz- enby. Yet, both Employment Agent Lewis and Personnel Director Barnes gave testimony disproving this. In general agreement with messmen Lazenby and Riggs, Lewis testi- fied that about March 26 or 27, when the ship was at sea, he received the call for a replacement via "ship-to-shore telephone." Likewise, Barnes testified that the captain called from sea, by radio-telephone, stating that Lazenby was quitting and that a replacement was needed. Captain Smith next testified that, about half way to Pas- cagoula, Lazenby changed his mind and wanted a trip off instead of wanting to quit. But Steward Ebanks gave contra- dictory testimony. According to Smith, when the ship was along the Florida coast, Ebanks "told me that Lazenby had ... decided that he wanted a trip off instead of quitting," and later the same day, Lazenby "told me much the same thing." Ebanks, on the other hand, testified that Lazenby came to him, stated that Captain Smith had misunderstood him, and wanted Ebanks to get it straightened out with the captain: "that he didn't mean to quit but wanted to take a trip off." (Ebanks finally gave this testimony, after being shown his pretrial affidavit. Originally, he testified that he had had only one conversation with Lazenby about leaving the ship, and that was in Piney Point on March 24-the same date Captain Smith claimed Lazenby gave notice of quit- ting.) Thus, instead of admitting what actually happened (that Captain Smith sent the message by radio from sea that Lazenby was quitting-as revealed by company witnesses, Lewis and Barnes, and by the General Counsel's witnesses, Lazenby and Riggs), Smith denied sending any radio mes- sages at sea concerning Lazenby and claimed that he tele- phoned from the dock in Piney Point, days earlier. Then instead of admitting that while at sea Lazenby was asking for Ebanks' help in straightening out a misunderstanding (about wanting a trip off and not quitting-as revealed by Ebanks as well as Lazenby), Smith claimed that Ebanks reported to him that Lazenby changed his mind. I discredit the testimony that Lazenby quit, and that Smith so notified 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the home office from the dock in Piney Point, and also the testimony that Lazenby later changed his mind After weighing all the evidence, I draw the inference that this incorrect testimony was given to conceal Captain Smith's discriminatory decision to terminate Lazenby when he per- sisted in his enthusiastic support of the SIU despite Ebanks' warning to him about "mouthing that SIU around the ship." Moreover, even if Lazenby had given notice of quitting in Piney Point and had later changed his mind, Captain Smith's stated reason for not permitting Lazenby to take a trip off was clearly pretextual. When asked why he insisted that Lazenby had to get off the vessel, Smith answered, "I had his replacement ordered already and they had more than likely hired a man to replace him." This was obviously not the real reason, because a replacement would be needed, regardless of whether Lazenby was taking a trip off or quit- ting. (Smith had not checked to determine if a replacement was available. Employment Agent Lewis, who hired a re- placement on March 28 or 29, testified that he would have assigned the replacement somewhere else if not needed on that ship.) Both Smith and Ebanks impressed me as being less than candid, and I discredit their denials that they were unaware of Lazenby's SIU support. I also discredit, as un- trustworthy, the contradictory testimony of two SISA wit- nesses, cook Vincent Martin and boatswain Marvin Reed, regarding what Lazenby said about leaving the ship. Martin testified that he heard Lazenby say, in front of Reed, that Lazenby was going to quit (but nothing about a trip off), and Reed testified that he heard Lazenby say only that he was getting off, not that he was quitting. It would seem quite unlikely that they heard Lazenby talk about leaving the ship without hearing him say anything, at least during the latter part of the trip, about merely wanting a trip off. Accordingly I find that whether or not Lazenby ever mentioned quitting, the Company discriminatorily dis- charged him because of his SIU support, in violation of Section 8(a)(3) of the Act. 2. Randolph Svendsen On April 10, messman Randolph Svendsen was 5 or 10 minutes late returning from shore to set the table and serve the noon meal, and he was discharged. (Many of the crew members were ashore, and there was only one table for Svendsen to set.) The General Counsel contends that Svendsen's immediate supervisor, Relief Steward Scott Clark, had learned about Svendsen's SIU support and had "resolved to get rid of him when the first circumstance which could serve as a pretext was presented." The Compa- ny contends that Svendsen was terminated "for being late for the performance of this duties." Steward Clark (who had relieved the regular steward about a week after Svendsen came aboard the SS Colorado on February 23) adnuttedly recommended to Relief Cap- tain Levi Rollins that Svendsen be discharged (purportedly for "Unsatisfactory work & always late," as stated on the leaving-service form). Rollins admitted never having before terminated a messman under such circumstances or for un- satisfactory work, and testified that Clark, who has sailed as "relief steward possibly a year and a half," never recom- mended that anybody else be fired. (Rollins also admitted that there was no difference between Clark's and the regular steward's direction of the work of the messmen.) Although Clark was the immediate supervisor over the steward's department, he was taking an active part in the effort to keep out the SIU. As previously found, he had participated in the April 4 SISA meeting (less than a week earlier), telling one messman to attend, writing the notice on the board, talking at the meeting against an outside union, answering questions asked at the meeting, and signing the anti-SIU petition. At that meeting, Svendsen asked "what would happen if we signed this petition and somebody did sign an SIU pledge card," and Clark "said he would get in a lot of trouble with" the NLRB. The ship was then at sea, on the way from Houston to Tampa. About a day later, as messman Svendsen credibly testi- fied, he was in messman Maurice Oliver's room, telling Oliver "I signed a pledge card and that I was representing the SIU." Just as he said this, he saw Oliver staring at the door, and heard somebody clear his throat. It was Scott Clark, who "just told me I was late for work, I ought to go down and set my table." (I credit this testimony, although Oliver did not recall it. Oliver testified that Clark was his immediate superior and his "boss.") Although denying that he knew Svendsen was supporting the SIU, Clark testified that he "sure did" get the impression that Svendsen was opposed to the SISA because he overheard Svendsen say he was forced to sign the April 4 petition. Svendsen credibly testified that before this, he and Stew- ard Clark "got along fine, never had any trouble." He had overslept on several occasions, but Clark had never said anything to him about it. "I was never late coming back from shore. It was just when we were out at sea. That is why he never did say anything because he knew where I was at." But after this, Clark "was always nagging at me, always on my back." On April 10, at Norco, Louisiana, Svendsen received Clark's permission to go ashore after breakfast, to return at II o'clock. (He positively testified that Clark did not tell him to be back at 10:30.) However upon returning, he could not enter the first gate without a pass, and had to go around to the second gate to get permission from the guards to enter. He estimated that he arrived at the ship about 11:10 a.m., and proceeded to set the table. (He testified that he regularly worked from 11 to 1 o'clock at the noon meal. The SISA agreement provides for dinner, or lunch, to be served from 11:30 to 12:30, and Captain Rollins testified that lunch is served at the same time at sea and in port.) Svendsen was sent to the captain's office, where Captain Rollins said that Clark wanted him dismissed. When Svendsen said the stat- ed reason on the leaving-service form, "Unsatisfactory work & always late," was incorrect, Rollins said, "Well, if you want your money so you can get home you have to sign this paper." He signed it. (Rollins denied that Svendsen ques- tioned the discharge, and testified that Svendsen merely said, "Well, you can't win them all.") As the evidence by the defense witnesses developed, it turned out that in Tampa, following the April 4 petition- signing meeting, Steward Clark had talked to Captain Rol- lins about Svendsen being late and "oversleeping quite of- ten." Rollins testified, "I merely stated that we would give the boy another chance," and told Clark to talk to him. "We SABINE TOWING & TRANSPORTATION CO. just discussed between us the possibility of letting him go when we got in Norco." When asked if he told Clark to tell Svendsen that he was getting one more chance, Rollins conceded, "I don't believe I did." Then on April 10, after Svendsen went ashore in the morning , Rollins told Clark, "Well, if he is not here by 11:00 bring his overtime sheet up and we will let him go." Clark, on the other hand, did not admit this prearrangement to discharge Svendsen if he did not return by 11 o'clock. Clark testified that he told Svend- sen "to make sure to be back to set up his table, which we start setting the table at 10:30. . . . 11:00 o'clock he wasn't back. Five minutes after 11 :00 here he came back. And the men had already started eating." Clark claimed that he went to the captain and made a report, and the captain " told me to give him his overtime." The company and SISA witnesses gave widely conflicting testimony about how often Svendsen had been late. At one point, Clark testified that it was "Every other day or just about every day." At another point he testified that if he did not wake Svendsen up, "He would dust sleep right through the meal." When asked how many times he slept through the meal, he admitted, "He never did." Oiler Jerome Hart- man (who gave the false testimony that he knew Clark had not been at the April 4 meeting) testified that "quite a few times" Svendsen did not show up at all for a meal : "about three or four times, I guess." Pumper Gaylor testified that "most of the times he wasn't on time," and that "At least four times" the crew would have to get their own meals because Svendsen was too late to serve. Gaylor also testi- fied, "We always had trouble even having the place cleaned up while he was even aboard and working," and that "He was one of the worst" messman he had ever observed. The presentation of such obviously exaggerated or fabricated testimony did not add to the persuasiveness of the Company's defense. After weighing all the evidence, I find that Captain Rol- lins' testimony reveals what actually happened in Tampa, after Steward Clark learned that Svendsen represented the SIU on the ship. Rollins and Clark "discussed between us the possibility of letting him go when we got in Norco," but decided to give him "one more chance"-without telling him so. Later they decided to discharge Svendsen if he did not return to the ship sharply at 11 o'clock, even though many of the seamen were ashore and there was only one table to set (I discredit Clark's and Rollins' testimony that Svend- sen was due back at 10:30-a full hour before the contract time for starting to serve the meal. Clark testified that the messman could "clean up the mess, whatever had to be done, and set the tables and get ready to serve" in 15 min- utes. Moreover, I note that on cross-examination , messman Oliver testified that after Svendsen's discharge, Clark told Oliver why and said that Svendsen was "10 minutes late"-not 40 minutes, as Svendsen would have been if he had been due back at 10:30. I also discredit Clark's claim that the 12 o'clock watch was already eating at 11:05.) Then, when attempting to justify the discharge, the Company put on evidence which, if true, would undoubtedly have caused the Company to discharge Svendsen without arranging for the 11 o'clock deadline, or at least to give him a last-chance warning. 437 I find that the evidence clearly shows that the Company discriminatonly discharged Svendsen because of his SIU support in violation of Section 8(a)(3) of the Act. 3. Numa Juneau The discharge of wiper Numa Juneau presents the curi- ous situation, of the ship captain testifying that he notified the personnel director by radio-telephone that Juneau was being discharged and a replacement was needed, yet the personnel director (as well as Juneau) believed that Juneau was going on vacation , and did not learn about the dis- charge until 2 weeks later. As argued in the General Counsel's brief, Juneau was the employee who had been identified (through negative an- swers from employees Ikner, Ballard, and Ackerman) as the one who "leaked" to the SIU's attorney the information, alleged in the SIU's election objections , that Employment Agent Lewis had showed the employees some employment applications in his office (on May 9, as found above) and had told the employees that SIU and NMU members would not be employed."Thereafter, on board the SS Guadalupe, Juneau's immediate supervisor (First Assistant Engineer Miles Coleman) found some SIU literature which Juneau had been carrying around in his pocket. The General Coun- sel contends that the Company "knew that Juneau was not only supporting the SIU, but was working closely with it in an effort to get the election set aside," and that the Compa- ny discriminatorily discharged him. The Company con- tends that Juneau was discharged for cause. The ship captain, Herman Buffington, who claimed that he discharged Juneau in Carville , Louisiana, on July 23 (3 weeks after the SIU objections were filed), testified that he talked to Personnel Director Barnes by radio-telephone and told Barnes that he was terminating Juneau and needed a replacement. However, when Barnes was called by the Gen- eral Counsel on the last day of the trial, he testified that he had no reason, "none at all," to suspect that Juneau was not going on vacation until August 6, when he received through the mail the ship's papers, including Juneau's leaving-ser- vice form (Form 15). He then saw, as the "Reason for leav- ing vessel," that "Vacation" had not been checked, but that "Discharged" had been. He also noticed something which he testified was unusual : the space after the instruction, "If employees . . . was discharged give stated reason," was left blank. He radioed Captain Buffington, asked why Juneau was discharged, and received the reply that Juneau was discharged for unsatisfactory service . Meanwhile, as admit- ted by Barnes, Juneau had been given his vacation pay and his transportation, to which Juneau would not have been entitled if he had been discharged . The Company offers no explanation for the direct conflict between Buffington's and Barnes' testimony, over whether Buffington radioed Barnes at the time that Juneau was being discharged . (Evidently Employment Agent Lewis was on vacation at the time. He did not testify about this matter .) Barnes' testimony tends to corroborate Juneau's account of what happened. Juneau testified that he had been working over 120 days, 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from March 8 until July 23; that Captain Buffington grant- ed his request for a vacation ; and that the ship's radioman had gotten in touch with his wife by radio, "and I talked to her like on the telephone ," to arrange for her to meet him in Carville. (The radioman did not testify.) After docking, the captain handed him the leaving-service form, which had none of reasons for leaving vessel checked. "I asked him could I draw my travel pay and go on to the office and get my vacation check, and he said, `Yes, go ahead,' because my wife was waiting for me out on the pier, and I was in a hurry. And I signed it and left" after being paid $30 in cash ("a twenty and a ten," the "only money that I had because I was perfectly broke at the time") for transportation from Car- ville to Port Arthur (about 200 miles). It is undisputed that the following week, about July 26 or 27, Juneau passed the test and received his fireman -water- tender ticket. He showed the new endorsement to Personnel Director Barnes, who said , "maybe you can relieve Smitty" (Guadalupe fireman-watertender Earl Smith). "I told him that maybe later because I had just got off on vacation and I wanted . . . to stay home with the wife and baby for a while." Later, when Juneau offered to relieve Smith for a vacation, Barnes told Juneau that he had been fircd. It is also undisputed that at the conclusion of this conversation, Barnes commented to Juneau, "You can't do nothing without the Company finding out about it." (Emphasis supplied.) Captain Buffington testified that on July 23, "I called him to my office . . . and told him at that time that his services was being terminated." Although so testifying, he also claimed that, on the day before, "I called him to my office and informed him that he would be discharged ." (This is not mentioned in his pretrial affidavit.) As already indicated, Buffington testified that he also radioed Personnel Director Barnes that he was terminating Juneau , but Barnes' testimo- ny later revealed that this was not true . Buffington denied giving Juneau any transportation pay, but failed to produce any record of the cash payments he made to employees for transportation. Even apart from the fact that Juneau impressed me as an honest, forthright witness (as indicated above), I cannot believe that he would have pretended to be on vacation, and have taken the actions he did, if he had in fact been dis- charged before leaving the ship . It seems inconceivable that he would have shown his new fireman -watertender endorse- ment to Personnel Director Barnes, and later offered to relieve the fireman on the same ship , if he had known he had been discharged . On the other hand it is clear , from Person- nel Director Barnes' credible testimony , that Captain Buff- ington falsely claimed that he had radioed Barnes at the time that Juneau was being discharged. Accordingly I find that Juneau was given his vacation on July 23, and that at some later time , Captain Buffington checked the word "Discharged" on the leaving-service form. Concerning the purported circumstances of the dis- charge, the defense witnesses gave much conflicting, shift- ing testimony . Captain Buffington testified that Juneau was "just useless in general ," whereas Juneau's immediate su- pervisor, Assistant Engineer Coleman , at one point admitt- ed that Juneau's work performance was "generally pretty good." Chief Engineer Spencer Owen testified that Coleman "actually made the decision" to discharge Juneau "after discussing it with me"; whereas Captain Buffington finally revealed that he had been personally observing Juneau for weeks, and had repeatedly talked to both Owen and Cole- man concerning complaints about Juneau , telling them to try to straighten him out, and checking to see if Juneau had straightened out. On the other hand , Coleman testified that he made his recommendations of discharge to Owen, that he presumed Owen talked to the captain about it, and that the only thing that Captain Buffington said about it to Coleman was that the captain "would inform Juneau that he would be terminated when we got in port ." (I note that Owen testified he was a member of SISA .) Buffington gave conflicting testimony about whether he personally talked to Juneau before informing him of his discharge . Concerning warnings, Coleman at one point testified that he warned Juneau of discharge "Three or four times" (none of them mentioned in his pretrial affidavit). Later when asked the total number of times he talked to Juneau , with or without warnings, concerning job performance, failure to be on time, or any displeasure with his work, he estimated, "Three or four times." (Coleman denied having any discussion with Juneau about going on vacation, whereas Juneau testified that he talked to Coleman about it , and the SISA witness, wiper Ackerman , testified that Juneau "told me he was leaving for his vacation.") When Coleman was asked by company counsel why Juneau was discharged, he answered (as paraphrased in the Company 's brief), "Juneau was dis- charged for not being at work on time and for talking too much to the firemen when he should have been working." (Juneau admitted that Coleman warned him twice about talking to the firemen , but never about not reporting to work on time . Concerning overstaying breaks, Juneau testi- fied that he did not have a wrist watch , and often took his breaks late.) Chief Engineer Owen testified that Juneau could do the jobs assigned to him, and that he knew Juneau was preparing to take the test for fireman-watertender. All three of the witnesses , Buffington, Owen, and Cole- man, appeared to be attempting to build a case against Juneau, instead of factually reporting what had happened. After hearing all the testimony, I am convinced that Juneau was a good employee, who was ambitious and studying to advance himself, but that these company witnesses belated- ly seized upon, magnified, and misrepresented his relatively minor shortcomings in an effort to justify his discriminatory discharge. (I agree with the General Counsel that the mul- tiplicity of purported warnings of discharge was fabricated.) Although Owen claimed that Coleman actually made the discharge decision, I find that Captain Buffington had been personally observing Juneau for weeks, seeking a pretext for discharging him. (I discredit his denial of knowledge of Juneau's SIU support.) Whether Buffington discharged Ju- neau before or after he left the ship, I discredit the stated reasons for the discharge and I find that the real reason was Buffington's decision to get rid of this SIU supporter who had supplied the SIU attorney with some information for the election objections filed about 3 weeks earlier. Accordingly, I find that the Company discharged Juneau because of his SIU support , in violation of Section 8(a)(3) of the Act. SABINE TOWING & TRANSPORTATION CO. 4. Proposed deferral At the trial, the Company moved to dismiss the allega- tions in the complaint that employees Lazenby , Svendsen, and Juneau were discriminatorily discharged, asserting that under the ruling in Collyer Insulated Wire, 192 NLRB 837 (1971), the Board should defer to the available grievance and arbitration procedure under the SISA agreement. I de- nied the motion. Now in its brief, the Company moves to dismiss the alle- gations concerning Lazenby "because it was shown that Lazenby knew he could have arbitrated his discharge and did not see any use to pursue it after the President of the SISA had interceded for him." Lazenby did testify that he orally appealed to SISA President Peewee Clark when the Company was contending that Lazenby had quit, and that Clark told Employment Agent Lewis "that I didn't quit, that I had asked for a trip off." Then Lewis put Lazenby's name at the bottom of a waiting list, of about 17 or 18 names, and never called him. (Now the Company concedes that Lazen- by was terminated.) It is obvious what Lazenby meant by the answer, "What was the use?" when asked why he did not file a grievance. He believed he was being discharged during the organizing campaign for supporting an outside union, and opposing SISA. As held in Kansas Meat Packers, 198 NLRB No. 2 (1972), the Board does not defer to arbitration where the facts and circumstances establish an apparent antagonism between the interests of the alleged discriminatee on the one hand and both parties to the collective -bargaining agree- ment on the other . I therefore-apart from other consider- ation-deny the motion. III REPRESENTATION PROCEEDING A. SIU Objections 1. Discriminatory discharge The election petition was filed on April 2. On April 10, as found above, the Company discriminatonly discharged the SIU supporter, messman Svendsen, when he was 5 or 10 minutes late returning to the SS Colorado to set the table for lunch . Meanwhile, on April 4, Svendsen has asked in a shipboard SISA meeting (at which his immediate supervi- sor, Relief Steward Clark , was urging the crew to sign an anti-SIU petition) what would happen "if we signed this petition and somebody did sign an SIU pledge card." Thereafter, the steward overheard Svendsen tell another messman that Svendsen had signed a pledge card and was representing the SIU, and later recommended his discharge. In agreement with the SIU , I find that Svendsen's discri- minatory discharge, under these circumstances, interfered with the employees' free choice of representation . I there- fore sustain SIU's Objection 1. 2. Campaigning for anti-SIU petition As found, Relief Steward Scott Clark took an active part in calling and conducting a special SISA meeting on the SS Colorado on April 4, to encourage the crewmen to sign an 439 anti-SIU petition, confirming the crew's membership in SISA and opposing "interference from any outside mari- time unions." At the time and for weeks before, Clark was the immediate supervisor over the steward's department, responsibly directing the work and possessing the authority (which he later exercised) of effectively recommending dis- charge. While serving in that supervisory capacity, he told one messman to attend the meeting ; wrote the notice of the meeting on the bulletin board ; talked in the meeting against any outside union; answered questions which were asked; and signed the petition himself . Not only was this supervisor taking this active part in the anti-SIU campaign, but the Company's further participation was indicated to the em- ployees by the typing of the petition by the radioman (a member of the licensed personnel). Clark himself testified that a copy of the petition was sent to each of the other ships as a suggestion that "if they didn't want an election, to do the same thing. . . . Maybe we could avoid it by each ship sending a copy" to the NLRB. SIU's Objection 13 alleges that supervisors "carried on an active campaign among the captive crews" of the ships. I find that this conduct by Supervisor Clark (found above to be an unlawful interference with the employees' organiza- tional rights) interfered with the employees ' free choice of representation, and I sustain Objection 13 to that extent. 3. Threat of job loss As found, Employment Agent James Lewis went on board the SS Trinity on June 2, and after explaining to wiper Keith Swearingen why a vacation relief was not available, he repeated the SISA key campaign contention about job tenure. (Concerning a relief, Lewis "said that they .. . couldn't find any wipers right now because . . . they were having to check everyone out . . . make sure that they weren't getting any SIU men aboard ship . . . because of this election. They didn't want to have any SIU instigators ... aboard ship.") Lewis then "told me that I would be better off staying with the Independent Union than with the Seafarers International Union because the SIU were just trying to get the ships and not the men, that I would be lost with them. I wouldn't have a job. . . . He said I had a permanent job with Sabine as long as I wanted it , and with the SIU I wouldn't have that." (Although called as a wit- ness, Lewis was not questioned about this conversation.) In Objection 13, the SIU alleged in part that company supervisors and officials were threatening the firing of em- ployees if they voted for the SIU, making false charges as to the SIU and its motives in seeking bargaining rights, and abetting and approving such activities on the part of SISA. It is one thing for the incumbent SISA to be predicting the loss of jobs if the SIU won the election . That was a matter of opinion, disputed by the SIU. I find it quite anoth- er thing, however, for the Company to be making such a warning to the employees . Here the statement was made by the Company's employment agent, to whom all the crew- men looked for hiring and continued employment. In un- equivocal language, Lewis was saying that if the employees voted SISA, Swearingen would have "a permanent job" with the Company "as long as I wanted it," but that if they 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voted for the SIU, "I wouldn't have a job." This was not a prediction of something beyond the Company's control. The employee would not be losing his job, in the event of an SIU victory, unless the Company terminated him. And Employment Agent Lewis obviously was in a position to know whether or not he would be terminated. I find that Lewis' warning to wiper Swearingen, of the loss of permanent employment if the SIU won, not only consti- tuted a threat of termination, but is the type of threat which would most interfere with the employees' exercise of a free and untrammeled choice in the election . I therefore sustain Objection 13 to this extent. (The objections did not specifi- cally allege Lewis' other statements to Swearingen.) 4. Threat not to hire As previously found, Employment Agent Lewis, in viola- tion of Section 8(a)(1), told three crewmen from the SS Guadalupe and one from the SS Colorado, in Lewis' office on May 9, that he would not hire the persons whose applica- tions he showed them because they had been working for SIU of NMU companies (indicating membership in those unions), and that he did not "want them in the company union" or "taking up our jobs." I sustain SIU's Objection 10 to the extent that it alleges this threat not to hire SIU and NMU applicants, and find that the threat interfered with the employees' free choice in the election. 5 Newspaper article On April 12, an article appeared in the Houston Post (a daily newspaper with a wide circulation), entitled "For 2 seamen it's long wait between ships." The four-column arti- cle included a photograph of a man standing in front of the SIU hall in Houston. Although not indicated in the article, the photograph was taken on a holiday, when the hall was closed. Under the picture was written, "Men wait ... and wait . . . and wait." The article described the long waiting of two Class C men-i.e., persons with the lowest priority for referrals. SISA admittedly distributed this clipping with its campaign literature. The SIU alleged in Objection 3, without proof, that the Company instigated the article, and in Objection 4 that the article "created an atmosphere ... which made it impossi- ble for a fair and free election ," because it gave a false picture that the SIU was not able to find employment for its members. SISA contends that its "use of the article was part of the open, free wheeling uninhibited political debate that is so desirable in any election process," and that "Noth- ing in the factual context of this case indicates that the crew members could not critically evaluate the article and make an informed decision based on all materials available." I find that even if the newspaper article created a false impression, it appeared about 2 months before the election, in sufficient time for the SIU to answer. I overrule Objec- tions 3 and 4. 6. Denial of access to ships The SIU alleges in Objection 5 that the Company's denial of access by SIU representatives to employees on board the ships placed the SIU in an unfair and unequal position and caused it to lose the election . However, having found that the General Counsel has failed to prove that the Company's denial of access deprived the SIU nonemployee organizers a reasonable opportunity to communicate their message to the crewmen, I overrule the objection. The other objections either being redundant or unproved, I also overrule them. B. Concluding Findings Having found that during the critical period between the filing of the petition and the holding of the election, the Company engaged in serious misconduct which interfered with the employees' exercise of a free and untrammeled choice of representation, I find that the election must be set aside and a new election held. CONCLUSIONS OF LAW 1. By discharging John Lazenby on March 30, Randolph Svendsen on April 10, and Numa Juneau on August 15 because of their support of the SIU, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2 By soliciting employees to sign an anti-SIU petition, by warning an employee of serious bodily harm if he kept "mouthing that SIU around this ship," by telling employees that it would not hire job applicants with previous SIU and NMU affiliations, and by telling another employee that it had to screen out SIU applicants from employment, the Company violated Section 8(a)(1) of the Act. 3. The General Counsel failed to prove that the Company's denial of access to its ships deprived the SIU nonemployees a reasonable opportunity to communicate their message to the crewmen. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Re- spondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged three employees, I find it necessary to order the Respondent to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum as pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date reinstatement is offered. I deny the SIU's motion for a bargaining order , as being inappropriate in view of the findings made herein. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: SABINE TOWING & TRANSPORTATION CO. 440a ORDER' Respondent, Sabine Towing & Transportation Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting the Seafarers International Union, AFL-CIO, or any other union. (b) Soliciting employees to sign an antiunion petition. (c) Warning any employee of bodily harm for supporting a union. (d) Telling employees that it will not hire SIU or other union applicants. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Numa Louis Juneau, Jr., John E. Lazenby, and Randolph S. Svendsen immediate and full reinstatement to their formerjobs or, if theirjobs no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges, and make them whole for their lost earnings in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its employment office in Port Arthur, Texas, and on each of its tankers, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms pro- vided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the election held in Case 23- RC-3606 in June 1971 be set aside, that the case be remand- ed to the Regional Director, and that a new election shall be conducted when the Regional Director deems the cir- cumstances permit a free choice by the employees. 3 In the event no exceptions are filed as provided by Sec 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 Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes 4 In the event 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board "