J. Ray Mcdermott & Co.

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. Ray McDermott & Co., Inc. and Professional Divers Local 1012 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 15-CA-6298 December 5, 1977 DECISION A N D ORDER On May 25, 1977, Administrative Law Judge Herbert ~il'berman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, the Charging Party filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 1qc) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION HERBERT SILBERMAN, Administrative Law Judge: Upon a charge and amended charge of unfair labor practices filed on November 16 and December 27, 1976, respective- ly, by Professional Divers Local 1012 of the United Brotherhood of Carpenters and Joiners of America, AFL- C10, herein called the Union, a complaint, dated Decem- ber 29, 1976, was issued alleging that J. Ray McDermott & Co., Inc., herein called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended. In substance, the complaint alleges that (1) "on or about October 18, 1976," Respon- dent unlawfully discharged its employees Robert Y. Ayers 111, Donley A. Berglund, Douglas A. Eggen, and John W. Schuler because of their membership in and activities on behalf of the Union, and (2) on "October 18, 1976," despite the Union's certification by the Board as the collective- No opposition having been filed thereto, Respondent's motion, dated April 13, 1977, to correct the transcript of record in this proceeding is hereby granted. bargaining representative of a described appropriate unit of the Company's divers, tenders, and rack operators, Respondent refused to recognize the Union as the duly designated exclusive collective-bargaining representative of the employees in said unit by "(i) excluding from a discipline invoking interview Union President Paul Wood- hall and (ii) orally advising said union representative, in the presence of employees, that Respondent did not recognize the Union as the representative of its diving employees." The complaint alleges no violations of Section 8(a)(l) independent of the foregoing. Respondent duly filed an answer to the complaint denying that it has engaged in the alleged unfair labor practices and asserting various affir- mative defenses. A hearing in ths proceeding was held in New Orleans, Louisiana, on February 15, 16, 17, 18, 23, and 24, 1977. Thereafter, briefs were filed with the Administrative Law Judge on behalf of General Counsel, Charging Party, and Respondent. Upon the entire record in this case,' and from my obs&ation of the witnesses and their demeanor, I ma& the following: I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, does general contracting, marine contracting, fabricating, and oil field construction. Its principal office is located in Harvey, Louisiana. During the 12 months preceding the issuance of the complaint, Respondent purchased and received goods valued in excess of $50,000 directly from locations outside the State of Louisiana and shipped goods from its Louisiana facilities valued in excess of $50,000 directly to points outside the State of Louisiana. The complaint alleges, Respondent admits, and I find that Respondent is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZAT'ION W O L V E D Although Respondent denies that the Union is a labor organization, in accordance with the Decision in J. Ray McDermorr & Co., lnc., 227 NLRB 1347 (1977), and the Decisions therein referred to, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACnCES A. Background On April 18, 1974, a Decision and Direction of Election was issued in Case 15-RC-5361 upon a representation petition filed by International Association of Professional Divers, affiliated with District 2, MEBA, AFL-CIO, herein referred to as IAPD, with respect to a certain unit of the Company's employees. Pursuant thereto a mail-ballot election was conducted. The count of the ballots which was made on July 19, 1974. shows that a ma_iority ha1 voted f;.. 233 NLRB No. 138 J. RAY McDERMOTT & CO. 947 IAPD. However, the election was set aside and another election was ordered. See J. Ray McDermott & Co., Inc., 215 NLRB 570 (1974). Following the second election, which also was conducted by mail ballot, on April 18, 1975. the IAPD was certified as the collective-bargaining representative for the following unit: All divers, tenders. and rack operators employed by the Respondent in its Diving Division; excluding all other employees, free lance divers and tenders, shop employ- ees, dispatchers, office clerical employees, shop clerical employees, guards and supervisors as defined in the Act. In July 1975 the Company informed lAPD that it did not believe that the Board's certification was valid and therefore refused to bargain with IAPD. Subsequently, the Board amended the certification issued on April 18, 1975. to substitute as the employees' bargaining representative the Union in the place of IAPD. See Ocean Systems, Inc., 223 NLRB 855 (1976), in which J. Ray McDermott & Co., Inc., was an employer. The Company continued in its refusal to recognize the validity of the Board's certification. Accordingly, an unfair labor practice proceeding was initiated and a Decision and Order therein was issued, J. Ra-y McDermolr & Co., Inc., 227 NLRB 1347 (1977), ir, which the Board f o n d that the Company's refusal to recognize and bargain with the Union as exclusive bargaining representative of the above-described unit constituted a violation of Section 8(a)(l) and (5) of the Act. No other violation of the Act was alleged or found in the case. The Company pers~sts in its refusal to recognize and to bargain with the Union as the certified representative of the described unit of its employees and has filed a petition in the United States Court of Appeals for the Fifth Circuit to review and set aside the Board's Decis~on and Order. J. Ra-y McDermott & Co., Inc. v. N.L.R.B., docketed on January 24,1977, as No. 77-1 171. Respondent is a large corporate enterprise which is engaged in engineering and generai construction in many parts of the world. This proceeding concerns the Compa- ny's diving division whose principal offices are in Harvey. Louisiana. Although no evidence was adduced as to how many employees worked in the unit certified by the Board at the time of the events involved in this case, the Board's Decision reported at 215 NLRB 570 shows that at the first election there were 78 eligible voters, of whom 73 cast ballots; and the Decision reported at 227 NLRB 1345 shows that at the second election there were 86 eligible voters, of whom 81 cast ballots, including challenged ballots. In connection with the events at Issue herein company management was represented by the following persons: Roger Reeves. Group Vice President: Robert J. Mctiuire. Diving Division Manager; James C. (Skinny) Brown. Diving Division Superintendent-Operations; Ernest J. Stephen, Senior Diving Supervisor; Wayne Reginald Willett, Diving Supervisor: Van T. Bell. Diving Supervisor Charles Morris, Diving Supervisor; and Phillip "Felio" LaCombe, Barge Captain. B. The Discharges Respondent employs professional deep sea divers in connection with its operations off the United States shores and elsewhere in the world. Diving is hazardous. The evidence is that Respondent seeks to maintain a high standard of safety in these undertakings and investigates all diving accidents. The four individuals named in the complaint were involved in a diving accident on October 3, 1976.2 Respondent's position is that during its investigation of the accident it learned that, contrary to its established rules, the four individuals made a dive "without permis- sion" and they were discharged for that reason. General Counsel and Charging Party contend that the ascribed reason for the discharge is pretextual and that Respondent seized upon the accident as an excuse to rid itself of four active union protagonists. 1. Union activities Charging Party in its brief asserts that "McDermott is one of those large companies . . . that is maherably opposed to the unionization of its employees." However, all that has been established is that Respondent is contesting the validity of the Board's certification. The only means by which the Company can bring the issue before the Court of Appeals is by refusing to bargain with the Union and then by defending 8(a)(5) charges. This alone does not support the accusation that the Company "is unalterably opposed to the unionization of its employ- ees." The four discriminatees are qualified divers and there is no contention that they were discharged because of unsatisfactory performance. Each has been working for the Company, or its predecessor, for a substantial period of time. Robert Y. Ayers began in January 1964, Donley A. Berglund in the fall of 1967, John W. Schuler in October 1971, and Douglas Eggen in May 1972. They boarded Respondent's demck barge 17 in the Gulf of Mexico on various dates between September 2 and 5. Their immediate supervisor aboard the barge was Wayne Willett and the captain of the barge was Phillip LaCombe. They were the only divers aboard the barge. The only other persons who worked under Willett's supervision were four tenders. This group performed diving work in connection with laying pipe on the floor of the GuIf of Mexico. General Counsel seeks to m a p f y the importance of the four discriminatees in the Union. He asserts in his brief: The alleged discriminatees were shown in the record to be deeply involved in the Union's efforts to organize Respondent's employees. They have been active in the Union from its initial organizationa1 efforts through its final certification by the Board and on to the present time. Each of the alleged discriminatees has held one or more offices in the Uriion. At the time of their . . dischaiges they held :he folic3w;ng pos:::xs: .*.yers. Unless otherwse indicated, all aates refer to 1970 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union treasurer; Berglund, bargaining committee mem- ber; Eggen, bargaining committee member; Schuler, chairman of bargaining committee. . . . The record is replete with evidence of the numerous activities on behalf of the Union engaged in by the alleged discriminatees. Of the four the most active union member was Ayers. He served on IAPD's board of directors from 1973 through 1975, in 1975 he was national vice president of IAPD, and in March he assumed the office of treasurer of the Union. In November 1975, Ayers testified before the Occupational Safety and Health Administration in support of IAPD's effort to implement Federal safety standards for the diving industry.3 Berglund was elected a member of IAPD's board of directors in 1974. Also, in March 1974, Berglund attended a representation hearing at the Board offices where he sat at a table with Union President Paul Woodhall opposite Respondent's diving division manager, Robert J. McGuire. At the present time Schuler is chairman4 and Douglas Eggen is a member of the Union's bargaining committee. However, as the Company consistently has refused to recognize the Union, the bargaining committee has never functioned and, as Respondent points out, "[ilf such a Committee ever existed, it did so in name only." The testimony of Diving Supervisor Wayne Willett and Senior Diving Supervisor Ernest J. Stephen indicates that they were aware that Ayers, Berglund, Schuler, and Eggen supported the Union. However, McGuire claims that, although he knew of Ayers' union activities prior to the dischaFges, he was unaware that the other three held union offices. In order to establish company knowledge, General Counsel introduced in evidence three issues of the union publication, "Life-Line."5 The March 19, 1974, issue states that Ayers was reelected a member of the board of directors and Berglund was newly elected to the board. The board of directors then consisted of 16 members. Four other members were elected officers of IAPD. The February-March 1975 issue of "Life-Line" indicates that Ayers and Berglund were reelected members of IAPD's board of directors. The November-December 1975 issue indicates that Ayers then was serving as treasurer of the Union. While Ayers appears to have had some prominence in the affairs of the Union, and Berglund, who served only as a member of the board of directors, held a position of less importance, there seems to be no particular significance to the positions allegedly held by Schuler and Eggen. The evidence, thus, does not support General Counsel's assertions that (I) "[tlhe alleged discriminatees were shown in the record to be deeply involved in the Union's efforts to organize Respondent's employees"6 and (2) "[tlhe record 3 On June 2, the Union filed unfair labor practlce charges against the Company on behalf of Ayers and another employee. These charges were dismissed. 4 Schuler testified that on June 26, 1975. when he was at the Company's office to sign a contract for a job in Nigeria, McGuire asked how he had voted in the last election and he responded that he had voted for the Union. While there is no evidence that the specific issues referred to herein came to Respondent's attention, the evidence is that ihc Con~pany receives copies of the publication. N o evidence was adduced regarding organizing activities by the four is replete with evidence of the numerous activities on behalf of the Union engaged in by the alleged discrimina- tees." 2. The dive for spiny oysters The incident that led to the discharges in this case was a dive for spiny oysters made on the morning of October 3. A spiny oyster is a variety of mollusk with a large irregular white shell which is prized by some collectors. These animals are found in certain parts of the Gulf of Mexico at the base of the deep underwater pilings for platform structures. Divers who work in the Gulf, when they have the opportunity, will dive for spiny oysters which they keep for themselves, sell, or give away as presents. In September, as derrick barge 17 was working in areas of the Gulf where spiny oysters were known to be present, there was considerable discussion among the divers. including Supervisor Willett, about getting spiny oysters. In these discussions, Willett indicated that there would be no objection to diving for spiny oysters if the opportunity presented itself. Charging Party argues that "[iln fact, Wayne Willett, the supenisor, clearly and unequivocally gave his consent for the dive and shared in the bounty." However, the record does not support this assertion. According to Willett, whom I credit in this regard, in these discussions he merely said "that if it were permitted we could get some." General Counsel contends that, even absent the specific consent of Willett, the divers fairly implied from discussions allegedly had on October 2 that they had his consent to make the dive for spiny oysters on October 3. On October 2 the barge was at a platform structure in the Gulf. With Willett's permission, about 4 p.m., Eggen and a tender, Robert Gifford, who was training to become a diver, made a practice dive. While underwater they gathered some spiny oysters which they brought back with them to the barge. Before the dive was completed, the barge began to move away from the structure. - Berglund testified that between 7 and 8 p.m. on October 2 he had a conversation with Willett in the latter's stateroom in which he mentioned that they did not get a chance to get many oysters earlier that day. "but in the morning if we can get the boat we could maybe run over to the structure and dive for oysters. He [Willett] said that it would be all right if it did not interfere with the work." Willett testified, "I know I found out from someone . . . that there were a few oysters caught that day. 1 don't know if that was Mr. Berglund, Mr. Eggen, or who it was. Sometime in the evening someone said that we may get a better chance tomorrow, and I probably said ya, maybe so, but I don't recall any specific con~ersation."~ discrirninatees other than that Berglund testified that prior to the March 1974 representation hearing he solicited "pledge cards" and after the hearing he recruited employees of McDennott and other employers to join IAPD. ' Willett explained that he could not have given Berglund permission on the evening of October 2 to leave the barge or make the dive on October 3 because at that time he did not know what work wouici hc requrrd d the divers or what conditions would exist the next Gay. Also, Willett testified that none of the divers said anything to him on the evening of October 2 about obtaining the use of a tug the next day. J. RAY McDERMOTT & CC. 1;gen test~fied that in the late evemng on October 2 he ~iirnr~oned to Willett that he and Gifford had obtained ;~hout 24 oysters during their dive that day but that there were many more attached to the structure and that ht hoped to get another chance to dive for ovsters the next dav. According to Eggen. Willett made no response. Willett testified that he did not remember any specific conversation with Eggen on the evening of October 2. There is no dlspute that no one said anvthmg to Willett on October 2 about obtaining the use of a tug the next day. About 5 a.m. on October 3 Berglund requested and was granted permission by Captain LaCombe to use a tug to go to the structure. Berglund awakened Avers, Eggen. and Schuler and informed them that they could go to the structure to dive for spiny ovsters. After they collected their diving gear. they boarjed the tug which took them to the structure zbout 600 feet from the barge.s Berglund and Schuler made a dive which was uneventful. Eggen and Avers then made a dive to a depth of about 170 feet using scaba equipment with portable air tanks. Because of the depth of the dive. the men were required to make two decompression stops on the way to the surface in order to avoid the possibilitv of bends.9 After they had been at the bottom fir 13 or -14 minutes the air in the tanks was exhausted. As a result they had to surface quickly and skip the decompression stops.10 When the divers reached the surface. the tug alerted the barge by radio to prepare the decompression chamber for the two d1vers.I I The decompression treatment was effective for Ayers. However. about 5 p.m. that night. October 3, Eggen, who began to feel sympoms of a recurrence of bends, was returned to the decompression c h a ~ b e r . As there appeared to be a problem, Willett informed company personnel on the beach about Eggen's condition. Early next morning the <ompanv sent a physician, Dr. Dunn, by hellcopter to the . . i h l . ~ ~ to examin; and to treat Eggen. During the morning 01 October 4. Dr. Dunn reauested additionai medicines. 1 Al~houph the Company then had no helicopter available. after some effort, it was able to obtain helicopter transpor- tation from the United States Coast Guard. Senior Diving Supervisor Stephen was transported to the barge with the medicine, arriving about 3:30 p.m. HIS principal reason for going to the bar& at that time was to dehver the medicine which Dr. Dunn had requested, but while on the barge Stephen spoke with various personnei concerning the accident. On October 5, Eggen and Dr. Dunn were flown from the barge to a h ~ s ~ i t a l - ~ ~ g e n was discharged from the hospital the same day. 6 Although the four d~vers left the barge on the morning of October 3 before Willett was awake. Willett learned tha~ they were at the structure at some time before the accident. Willett did not radio the tug to bring the divers back. 9 "Bends" IS a colloquial expression to describe canson disease which is a disorder in dlvers and caisson and tunnel workers caused by a too rapid return from high pressure to atmospher~c pressure. characterized by pains in thc joints. cramps, paralvs~s. and eventual death unless treated by gradual aecompression l o N o adequate explanauon was p e n dunng the heanng as to why the two d~vers ran out of air. However. Respondent doer not contend that 11 war because of negligence or Incompetence on thelr part. Although the cause 3. The investigations While on the barge, on October 4, Stephen spoke with Willett, Berglund, and Ayers about the accident.12 Stephen requested Wiliett to obtain a statement from Eggen who was in the decompression chamber. In his discussion with Ayers and Berglund he inquired as to the cause of the accident and whether Willett had given the men permission to dive for spiny oysters on the morning of October 3. Eerglund testified that he replied that Willett had not given them permission that morning but that diving for spiny oysters had been discussed several times before. According to Stepkn, Avers said that Willett was not aware of what was happening. Berglund also testified that LaCombe came into the room during their discussion and Stephen asked him who had requested permission to use the tug. LaCombe replied that Berglund had requested permission and that, although Berglund did not tell him why he wanted the tug. he (LaCombe) had a pretty good idea. Before Stephen left the barge, he had a brief conversation with Willett. Willett later told Schuler that he had told Stephen that he "would assume that we could get some spiny ovsters when we got to [the area where it was believed spiny oysters could be found]." Willett also told the divers that he had informed Stephen that he had not given them permission to go to the structure on October 3. Stephen made handwritten notes of the subjects he discussed with Ayers and Berglund, which both Ayers and Berglund signed. Among other statements included in the notes are the following: Wayne [Willett] apparently not aware that they were over at platform. Buddy Ayers stated that in no way this was Wayne Willett's fault and as far as Buddy know Wayne did not know about this. On October 8, J. C. Brown, the Company's diving division superintendent, and Frank Wager, Respondent's attorney, went to derrick barge 17 where they spoke with Ayers, Berglund. and Schuler about the accident. They first discussed the possible causes of the accident and whether it might have been due to equipment failure. Berglund testified that he was later asked whether Willett had given permission for a dive on the morning of October 3 and that he answered that Willett had not given permission that morning but the subject had been discussed many times among them. On October 13, Eggen had a discussion with Brown in the latter's office in Harvey, Louisiana, about the possible causes of the accident. During their conversation, Eggen was uncertain, the accident was serious. Respondent's pos~lion in this case is that it disciplined the four divers because they parkipated in the dive without permission. 'I Fressure chambers are kept aboard the lug to be used after certain types of dives and to prevent or treat bends in cases of accident. such as happened to Ayers and E g e n . 12 One of Stephen's responsibilities is mvestigating diving accidents. Hc went to derrick Large ! i w-Gctobcr 4 p ; ; i ~ a ~ i ; ~ to deliver the ~nec;~;ncr requested by Dr. Dunn. The llme he then had for investigation was limitec as he w2s unable to delay the return of the US. Coast Guard helicopter which was providing him with transportation. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked if he would be sent back out to work and Brown replied that he would not be sent to derrick barge IS. On October 14, J. C. Brown and Robert J. McGuire went to derrick barge 17 where they separately interviewed Shuler, Berglund, and Ayers. The purpose of the visit was to propound to each of the divers four questions which had been prepared in advance in consultation with the Company's labor attorneys. Those questions were: 1. Did Wayne Willette [sic] give you permission to leave the barge and go to the structure?13 2. Did Wayne know you were leaving the barge to go to the structure? 3. Did you tell the barge captain that the reason you were leaving the barge to go to the structure was to get spiny oysters? 4. On April 1, 1976, we distributed Safety Require- ments and Regulations for Personnel to our divers. Item No. Vlll provides as follows: (Read ltem V111.)14 Your action in entering the water without approval by the person in charge of the job was directly ccntrary to those instructions. What have you got to say about that? Before McGuire and Brown spoke to the three divers, they informed Willett and LaCombe what their plan was. During this conversation, Willett informed McGuire and Brown that he had not given the divers permission to leave the barge and make the dive on October 3. The testimony of the three divers was uniform that in response to the first question they answered that Willett had not given them pennission on the morning of October 3 to leave the barge. However, Berglund testified that he informed Brown and McGuire that they had discussed the matter previously. Each of the three divers answered the second question in the negative. Also each of the divers answered the third question in the negative. However, Berglund informed Brown and McGuire that he had received permission from Captain LaCombe to use the tug. Regarding the fourth question, Berglund informed Brown and McGuire that he had never seen the April 1 regulations although they may have been sent to his home in the mail. Schuler testified in a similar manner, as did Ayers, who also denied that he had ever seen the April 1 rules. 13 Berglund testified that the question as posed to him asked did Wayne Willett give htm permission "that morning" to leave the barge and go to the structure. Ayers testtfied the question asked was "[Dlid you have permission from Wayne that day to dive for spiny oysters?" Schuler testified that he did not recall whether the question asked him included the words "that day." I credit Respondent's witnesses that the questions were posed to the divers as written. However, the alleged variation is immaterial. There is no d~sagreement that Willett did not give the divers specific permission to make a dive on the mornlng of October 3 and the divers when intewlewed had no hesitancy in explaining the circumstances which led them to imply that they had such permisston. 1' On April 1, the Company mailed to all its divers a two-page document entitled "Safety Reautrements and Regulations for Personnel." ltem Vlll tn this document reads as follows: "Entry Into rhe Water by Diving Division personnel is strictly forbidden except by the direction of the person in charge of the job or when a person in tho water ~ b v i o u : ~ rrae& h+" l5 Eggen had not returned to the barge after his transfer to the hospital. l6 Divers are tssued valuable equ~pment by the Company. It IS Respondent's practlce when it terminates a diver to withhold from moneys Eggen was interviewed on October 15 at the Company's offices and the same four questions were put to him. His answers were substantially the same as those of the other three divers. Among other things he acknowledged that Willett had not given them specific permission to leave the barge to go to the structure. 4. The terminations Following the interview with Eggen, McGuire and Brown discussed the accident of October 3 and what the investigation had disclosed and agreed to discharge the four divers. McGuire consulted Group Vice President Reeves, who concurred in the decision. About 11 a.m. on October 16, three divers arrived at derrick barge 17 as replacements for Ayers, Schuler, and Berglund.15 A handwritten note from Brown was delivered to Willett which instructed Schuler, Berglund, and Ayers to collect their gear, return to shore on the same crewboat that had brought out their replacements, and report to the Company's office on Monday, October 18, with the company-owned equipment that had been issued to them.16 Berglund testified that "[iln the nine years that 1 worked with McDermott, I have never known anybody to be asked to bring their gear into the office that was not fired." Similarly, Ayers testified that he understood the instructions to ;he divers to turn in their gear meant that they were fired. On October 17, Respondent's dispatcher telephoned Eggen and instructed him to report to the Company's office on October 18 and to bring company-owned gear with him.11 Eggen testified he understood this to mean that he was discharged. None of the four divers reported to the Company's office on October 18 as instructed. Instead, they consulted Union Attorney Jerry Gardner. The following telegram then was dispatched to Robert McGuire: We, the undersigned have been instructed to report to your office and to bring all diving gear assigned to us with us. We are willing to report to your office and request that you advise the time, date and place. At the time of the meeting we will bring our union representa- tive and our attorney with us. We await your advices. The Company did not respond to the telegram. owed the diver the value of the equpment issued to him until the equipment is returned. 1' When the crewboat carrying Ayers, krglund, and Schuler reached the dock on October 16, they met Van T. Bell, a diving supervisor at another location. They told Bell why they were returning to shore. Bell informed them that he had been called to the Company's office and had been questioned as to whether divers on his barge (lay barge 22) had made dives for spiny oysters and that he had answered in the negative but, in facf divers on his barge had made dives for spiny oysters. Bell added that if the men ever reported what he told them "I will call you a liar." The evidence is that there was a friendly relationship between Supervisor Willett and the divers who were subject to his direction. The statement by &I1 would indicate that the ties between the diving supervisors and their diving crews were closer and more contidential than between the diving supervisors and Zgher company macngement. Tnts IS tunher reflected by the fact that during the initial stages of the Company's investigation of the October 3 accident the divers sought to protect Supervisor Willett from blame. J. RAY McDERMOTT & CO. 95 1 On October 20 the four divers were mailed letters of termination by McGuire which, in pertinent part, read as follows: We requested that you come to my office on Monday morning, October 18, 1976, and that you bring the Company equipment in your possession with you. You did not appear, and on Monday afternoon 1 received your telegram. The reason for asking you to come to the office Monday morning was to~terminate your employment because you left the barge, went to a structure, and entered the water to collect spiny oysters without permission of [your] supervisor, contrary to Company rules. 5. The interview On October 22. the four divers and Union President Woodhall, in accordance with arrangements previously made among themselves, went to the Company's offices together. The divers turned in the company gear in their possession and received refund checks.18 The group then entered McGuire's office. "Buddy, Mr. Ayers, asked Bob McGuire why we were fired, and Bob McGuire said that 1 don't have to say anything or talk to you people in front of that man . . . pointing his finger at Paul Woodhall."l9 Ayers testified, "So at that point 1 asked Paul [Woodhall] if he would mind stepping out because 1 really wanted the answer to a couple of these questions, for personal reasons. and Paul stepped out while 1 asked the questions." Then, according to Ayers, he asked Mc uire who had fired the S ' divers and McGuire "indicated that he was the only one that fired us, [it] was he [who] initiated it. The reason 1 asked the question is because he indicated on the barge that it was out of his hands so I just wanted to get that clear in my own mind. 1 think 1 asked another question. 1 don't remember what it was n~w." C. Conclusions as to the Discharges In deciding whether a violation of Section 8(a)(3) has occurred, the Board normally gives varying weight to the following factors: 1. Employer knowledge of the dischargee's union activities 2. The existence of union animus 3. Timing 4. The ascribed reason for the discharge '8 There IS a dispute as to whether the mterview discussed below look place on October 22 or October 20. 1 credit Respondent's witnesses that the lntervlew took place on October 22. Corroborating their testimony is the fact that the refund checks Issued to the four divers are dated October 2i. Is Berglund testified that then "Paul [Woodhall] said that you don't recognize me as a union representative for these people, and Mr. McGuire said that I don't. That was it. So Paul Woodhall left the room." None of the other witnesses testified that such remark was made. 20 A proceeding was brought to substitute the Union for IAPD as the employees' representative. Thls did not have any effect upon the relation- ship between the Company and 11s employees insofai as collect~ve bargaining IS concerned. In November 1975, Avers test~fied at an OSHA hearing. The Company w2s onlv indirectly invoked in that matter through membership in the Association of ~ i v i n ~ Contractors. I. Diving Division Manager McGuire admitted that he knew Robert Y. Ayers 111 was an official of the Union and active in its affairs but denied knowledge of the union activities of Berglund, Eggen, and Schuler. However, both Diving Supervisor Willett and Senior Diving Supervisor Stephen acknowledged that they knew all four supported the Union. The last representation election in this matter was held in February 1975, and the Union's predecessor was certified as representative on April 18, 1975. The Company consistently has refused to recognize and to bargain with IAPD or the Union as the representative of its employees. Thus, there has been no relationship between the Union or its predecessor and the Company since the certification,"o and there is no evidence that any of the four divers were engaged in any organizational or other union activities involving the Company during that period21 Similarly, there is no evidence that the Union was engaged in an) activities affecting the Company in the year and a half since the certification other than to seek administrative and judicial enforcement of the collective-bargaining rights represented by the certification.22 Accordingly, no reason appears as to why the Company in October was looking for an opportunity to discharge the four divers involved in this case. General Counsel argues that "Respondent felt [Eggen: Ayers, Schuler, and Berglund] were four pro-union thorns in its corporate side." There is no basis whatsoever for this gratuitous assertion. Charging Party argues that "the discharge of four union officials" is "inherently destruc- tive" of important employee rights and that the Employer has the burden of explaining away or justifying the discharges. Contrary to Charging Party, the record does not establish that the four discriminatees as a group were important to the functioning of the Union or that their discharges would tend to destroy important employee rights. 2. The Board deems "union animus" or "discrirninato- ry motivation" an essential element of an 8(a)(3) case.23 The existence of union animus or discriminatory motiva- tion is normally determined from consideration of the employer's attitude regarding (a) the union, (b) the organizing campaign, if there was one in propess during any relevant time, (c) employees who support the union or engage in organizational or other protected activities, and (d) other related subjects, as reflected by statements and conduct including infringements upon employees' statuto- ry rights. General Counsel argues that "violations of Section 8(a)(5) and (1) of the Act as found by Administra- tive Law Judge Kirkwood in Case 15-CA-6084 constitute 21 Several of the divers advertised their support of the Union by &splaying union insignia on their persons and on their personal property and a couple even attached union insignia to the doon of their staterooms on a company vessel. There is no basis in this record for believing that such displays annoyed the Company as there is no evidence that employees were instructed to remove union insignia from company property, and Schuler testified he was given permission to affii union insignia on stateroom doors. 22 Thus, the Union has not called a strike against the Company, has not sou&!& :J instltule a bo)wtt agalnst the Company, etc. . 23 John L. Donnelly, ST., ex. d/b/a Shelby Liquors andArhenr Disrriburing Company, a Division of Shelby Liquors, 208 NLRB 859 (1974). 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convincing evidence of Respondent's anti-union animus here." No basis is given for this assertion. The Board has pointed out that "evidence of hostility against the Union . . . [must] conform with our well-established definition of animus."24 General Counsel fails to relate the conduct in this case to that definition. Perusal of the Board's Decision and Order in Henry Marx and Saul Greenburg, d/b/a Ray's Liquor Store, 227 NLRB 1800, 1 8 W 1 (1977), would indicate that the facts herein do not conform with the "well-established definition of animus." In the Ray's case the Board ruled as follows: In its exceptions, the Charging Party asserts that Respondent's union animus is demonstrated by a prior arbitration award against Respondent, which involved its paying moneys to Parades, and a prior unfair labor practice finding against Respondent. The Charging Party also argues that the discharges were Respon- dent's attempt to rid itself of the Union, as the two employees were the only two employees in the bargain- ing unit. We agree with the Administrative Law Judge, however, that neither the prior arbitration award, occurring almost 2 years before the instant discharges, nor the prior unfair labor practice proceeding finding, bottomed on contract principles [the proceeding re- ferred to was one in which Respondent was found to have violated Section 8(a)(5) through a refusal to execute a collective-bargaining agreement], establishes requisite union animus here.' Nor does the fact that the two discharged employees constituted the entire unit, standing alone, warrant a finding in the circumstances of this case that Respondent wished to rid itself of the Union. 1 We have also taken into account Marx's statement, as testified to by Gorney and as set out at fn. 2 of the Administrative Law Judge's Decision, in o w consideration that union animus has not been demonstrated here. In this case the unfair labor practices found by Administrative Law Judge Kirkwood, which were based upon Respondent's refusal to bargain with the Union in order to test the validity of the ~ni6n's certification, are no more serious than the violations in the Ray's case where the employer refused to execute a collective-bargaining agree- ment. Furthermore, the Board in the Ray's case stated that "a violation [of Section 8(a)(5) of the Act by failing to bargain with the Union], if found, would [not] automati- cally establish animus here." In addition, there were 2' North Adorn Inn Corporation, 223 NLRB 807 (1976). ' 5 General Counsel argues that "Respondent failed to show through its witnesses either actual or constructive notice on the part of the alleged discriminatccs of its Rule No. 8 'Entry Into The Water.' " Contrary tc General Counsel, the evidence is incontestable that all the Company's divers, including the four persons involved herein. were mailed copies of the "Safety Requirements and Regulations for Personnel." Thus, the divers did have constructive notice of the Company's rule. However. the question in this proceeding is not whether the four divers had engaged in conduct which warranted their discharges but whether the Company discharged the mer. "to discourage membership in a labor organization." That the four divers may not have been aware of the rule is a mitigating circumstance which Brown and McGuire shon!d have ronsiderd in reaching their decision tc discharge the divers and is relevant in assessing h e reasonableness of Respondent's action. Nevertheless, it does not follow that if the divers were unaware of the rule that their discharges necessarily were unlawful. elements in the Ray's case that are not present here; namely, an adverse arbitration proceeding and discharges which eliminated the entire unit. If, under the Board's well- established definition of animus, there was no animus in the Ray's case then there has been no proof of animus in this case. 3. There is no significance between the timing of the discharges in this case and any other pertinent or critical events. The last election occurred in February 1975. The Union and the Company since then have been litigating the validity of that certification. The Decision of Adminis- trative Law Judge Kirkwood on October 15, and the Board's affirmance thereof on January 21, 1977, were necessary technical procedural steps in bringing the issue concerning the validity of the certification before a court of appeals. As of October, nothing was taking place which particularly would prompt the Company to seek to discharge union adherents. 4. The Company's rule forbidding entry into the water by divers except by the direction of the person in charge of the job was violated by the four divers involved herein and a serious accident occurred during the unauthorized dive.25 However, the discipline meted out to the divers for this infraction appears harsh. First, only one man was injured, but the Company discharged all four divers, although it is true that all four were equally to blame if anyone was to blame. Second, the Company's investigation did not disclose that the accident was caused through any negli- gence or professional incompetence on the part of the divers. Third, the evidence suggests that had Supervisor Willett been awakened early on the morning of October 3 he probably would have given the men permission to make the dive. While the discipline may seem extreme, it does not follow that the ascribed reason for the discharges is pretextual. If an improper motive is not involved, " '[t]he [Bloard cannot substitute its judgment for that of the employer as to what constitutes reasonable grounds for discharge. . . . The question of proper discipline of an employee is a matter left to the discretion of the employer.' "26 6p& consideration of the foregoing, including: (1) the absence of evidence that the four discriminatees. with perhaps the exception of Ayers, were known to ~kspon- dent to be more active union protagonists than other union members in its employ; (2) the absence of "evidence of hostility against the Union . . . [which conforms with the Board's] well-established defhtion of animus"; 27 (3) no sipficant relationship between the discharges and other 26 Corriveau & Routhier Cement BIG& Inc. v. N.LRB., 410 F.M 347, 350 (C.A. 1 , 1969), citing N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (C.A. 6,1%7), cert. denied 389 U.S. 843. 27 The meaning of the terms "animus," "intent," "motive," and "scientcr" as applied to Sec. 8(a)(3) has been the subject of many law review articles. E.g., Shieber and Moore, Section 8(a)(3) of the N a t i o ~ l Lobor Relations Act: A Rati~~le-ParI II. Encouragement of Membership in any Lobor Organization and The Sign$cance of Employer Motive. 33 La. L. Rev. 1, 37-51 (November 1972); Oberer, The Scienter Factor in Sections 8(a)(l) and (3) of the Lobor Act: Balancing, Hostile Motive, Dogs and TaiLr, 52 Cornell L. Quart. 491, 5W505 (spring 1967); Christensen and Svanol, Motive and Intent in The Commission of Unfair Lobor Practices: The Supreme Court and Fictive Formlip: 77 Yale 1.. .I. 1269. 1275 (June I-); Valois. Intent, Eject, Purpose and Motire pr Applicable Elements to Section 8(a)(l) and Section 8(a)(3) Violations of the N a t i o ~ l Lobor Relations Act, 7 Wake Forest L. Rev. 616 (1971); Getman, Section 8(0)(3) ofthe NLRA and the J. RAY McDERMOTT & CO. 953 events criticz! to the case: and (41, despite the severity of the discipline, the plausible reason for the discharge^,^^ 1 find that General Counsel has not proved by a preponder- ance of the evidence that Respondent acted from an illegal motive when it discharged Ayers, Berglund. Schuler, and Egger.. C . Conciusions as lo rne 8(aj(.fj X lregaiiom The significant allegation of the complaint in regard to the alleged violations of Section 8(a)(5) is that Respondent refused to recognize the Union as the collective-bargaining representative of the employees in the certified unit by "excluding from a discipline invoking interview Union President Paul Woodhall." The evidence does not support this allegation. The decision to discharge the four divers was made on October 15. On October 16: when the divers were instructed to return to shore and thereafter to report to the Company's office with company-owned gear, as testified to by Bergiund, Ayers, and Eggen, they knew that they had been discharged. The instructions of the Compa- ny was for the divers to report to its ofices and to return gear. The divers themselves requested an interview. When it was granted, the only questions asked by the divers were (1) why they had been discharged, and (2) whether McGuire had made the decision himself. Thus, from the Eflorr 10 lnsulare Free Empioyee Choice, 32 U of Ch~cago L. Rev. 735, 738, ei seq. (1965); Honore, Employer Discriminarron Under Secrion 8(a)(3), 5 Toledo L. Rev. 722 (Spring 1974). 28 The iestimony of Ayers indicates that as early as October 4 there waz concern that someone would be discharged as a result of the accidenl. He testified that on October 4 he overheard Willett say to Stephen, "[Mly ass 1s gomg down the road over th~s." and on the same day Stephen said to him. "Wayne [Wille~i] was a good man and we hate to lose a good man over somethmg like tll~r." testimony of General Counsel's witnesses, it appears that the interview, which was requested by the divers and not by the Company, was not "a discipline involung interview." The complaint alleges a further violation of Section 8(a)(5j as a result of Respondent's representative "orally advising said union representative [Paul Woodhall], in the presence of employees, that Respondent did not recognize the Union as the representative of its diving employees." In view of the Board's Decision and Order, 227 NLRB 1347 (1977), and for the reasons set forth in Canton Sign Co., 186 NLRB 237 (1970), I find no purpose would be served by duplicating the remedy ordered by the Board in the earlier case. Respondent has not engaged in the violations of the Act alleged in the complaint. Upon the basis of the foregoing fmdings of fact, conclusion of law, and the entire record in this proceeding, and pursuant tc Section 1qc) of the Act, I hereby issue the following recommended: ORDER 29 The complaint herein is dismissed in its entirety. 29 In the event no excephons are filed as provided by Sec. 102.46 of the Rules and Regulet~ons 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.