Sea-Land Service, Inc. (Sea Operations)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sea-Land Service, Inc. (Sea Operations) and Harry Dunleavy. Case 22-CA-13109 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 26 March 1985 Administrative Law Judge Edwin H. Bennett issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in answer to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Charging Party, Harry Dunleavy, worked as a radio electronics officer on the Respondent's cargo ship, the SS San Pedro. In that capacity, he was responsible for transmitting all communications from the ship. It is undisputed that, with the excep- tion of personal messages from crewmembers to their families, no communications were permitted to be sent by Dunleavy without the prior approval of the master of the ship, Captain Gary Fleeger. I On 23 February 1984,2 shortly after the San Pedro docked at New Orleans, Louisiana, Fleeger learned that the Respondent's records indicated that on 21 February, during a routine transmission to the Respondent's New Orleans office while the San Pedro was at sea, Dunleavy requested that the office give him the Board's telephone number in New Orleans.3 On returning to the ship, Fleeger left a memorandum on Dunleavy's cabin door stat- ing that Dunleavy had used the ship's radio im- properly to request the Board's telephone number and to contact the Board. The memorandum also stated that Dunleavy was to provide a detailed written explanation "as to what prompted the call . . . by what authority [Dunleavy] made requests ' As found by the judge, Fleeger's policy in this regard appears to be based on his legal responsibility for and control over the ship 's communi- cations equipment The judge noted that 47 U S C § 358 states, "The radio installations, the operators the transmissions and receipt of messages, and the radio service of the ship shall be under the supreme control of the master" and that regulations promulgated by the Federal Communications Commission and the International Telecom- munications Union, an international treaty organization , contain similar language 2 Hereinafter, all dates are 1984 Fleeger testified that when he learned of Dunleavy's request for the Board's telephone number he was "shocked" because he knew "there was [sic] no labor problems on the ship ," and that he wanted to know "the purpose of the call " of service from [the Respondent's office] when they assume that ALL requests for action are made in [Fleeger's] name, and by what authority [Dun- leavy] actually placed the call on the ship's system." On 24 February, after the ship had left for its next destination (San Juan, Puerto Rico), Dunleavy responded in writing to Fleeger's memorandum, stating that he had "insufficient knowledge or evi- dence of the accusations." The next day, Fleeger informed Dunleavy that he considered Dunleavy's memorandum unresponsive and that he was issuing a lawful order requiring a satisfactory response. Later that day, Fleeger posted a second memoran- dum on Dunleavy's door stating, inter alia: Regarding your answer to the above letter, I find it rather difficult to understand your reply. These are not "trick" questions. I will try to simplify them even further. Did you, or did you not contact Sea Land New Orleans and request the location and/or the telephone number of the National Labor Relations Board? If you did do the above, by what authority did you initiate the query? Did you, or did you not actually call the NLRB? If so, did you use the ship's communi- cation equipment? What prompted your inquiry regarding the NLRB? (assuming that you did ask Sea Land for the address and/or telephone number? If you did not make any inquiry to Sea Land regarding the NLRB, did anyone else do so to your knowledge? Dunleavy replied by memorandum that Fleeger had "falsely and irresponsibly accused [him], in writing of illegal use of the ship's . . . equipment." Shortly thereafter, Fleeger had Dunleavy send a message to the Respondent's New Orleans office requesting a replacement radio officer to meet the ship at San Juan. On 26 February Fleeger conducted a disciplinary meeting referred to in the maritime industry as a "logging."4 During the logging, Fleeger read por- tions of 46 U.S.C. § 701 which state, inter alia, that a seaman guilty of "continued willful disobedience to lawful command . . . at sea [may be] placed in irons, on bread and water." Dunleavy replied by writing in the ship's log, "I wish to make no fur- ther statements . . . on the grounds that by doing so I may incriminate myself." Dunleavy was dis- charged officially on 27 February when Fleeger gave him a "firing letter" stating that the reason 4 This type of disciplinary proceeding is prescribed in 46 U S C § 702 280 NLRB No. 84 SEA-LAND SERVICE for the discharge was Dunleavy's "continued refus- al to obey a lawful order of the master at sea." On 29 February Dunleavy was put off the San Pedro in San Juan. The judge found that Fleeger had interrogated Dunleavy about his attempts or suspected attempts to contact the Board or, at the least, to secure in- formation that would allow him to contact the Board . The judge also found that the "tone, set- ting, and language of the interrogations" on the surface met the criteria for unlawful interrogations set out in Rossmore House, 269 NLRB 1176 (1984). Nevertheless, the judge, relying on Southern Steam- ship Co. is. NLRB, 316 U.S. 31 (1942), found that the interrogations in neither memorandum violated the Act because of the special maritime setting of this case. Thus, he relied particularly on Fleeger's responsibility for and control over the ship's radio equipment as constituting extraordinary circum- stances which rendered inapplicable a traditional labor law analysis. Furthermore, the judge found that the Respondent did not violate Section 8(a)(4) and (1) of the Act by discharging Dunleavy. Rather, the judge, noting Fleeger's testimony, con- cluded that Dunleavy was discharged for refusing to obey Fleeger's lawful command to answer ques- tions regarding the use of the ship's radio equip- ment, not for refusing to answer an unlawful inter- rogation. Contrary to the judge, we do not believe that the special maritime setting of this case renders in- applicable a traditional labor law analysis. Instead, we find that the maritime setting is one important factor to be considered in evaluating the Respond- ent's actions. Thus, we find the judge's application of Southern Steamship to the facts here was overly broad. The Supreme Court held in Southern Steam- ship that the Board had abused its discretion by or- dering the reinstatement of seamen who had been discharged for engaging in a strike where the strike constituted a violation of the Federal antimutiny statute . The Court did not hold or imply that the protections of the Act are totally unavailable to seamen or inapplicable in a maritime setting. In fact, the Court in Southern Steamship approved of the Board's order that the company bargain with the union. The Court stated, "It should be stressed that the view we have taken here does not prevent the redress of grievances under the Act." 316 U.S. at 48.5 Accordingly, we conclude that Southern 5 See also Carpenters Local 1976 (Sand Door) v NLRB, 357 U S 93, 111 (1958), where the Court noted that Southern Steamship did not hold that the antimutiny statute prohibits the application of the Act in a mari- time setting Rather, the antimutiny statute "was relied on to establish an abuse of discretion in giving a remedy Much less was there any sugges- tion that the Board should abandon an independent inquiry into the re- quirements of its own statute " 721 Steamship does not preclude an examination of the instant facts under established labor law principles. Based on these principles, we find that certain questions asked Dunleavy by Fleeger constituted coercive interrogation in violation of Section 8(a)(1) of the Act. Although we agree with the judge that Fleeger was justified in asking whether the ship's communications equipment had been used in an unauthorized manner, we find that Fleeger's questions repeated in both his 23 and 24 February communications to Dunleavy regarding "what prompted" Dunleavy to seek the Board's telephone number violated the Act. It is true that Fleeger controlled and was responsible for the use of the ship's communications equipment; the clear and undisputed policy was that no communications could be transmitted without Fleeger's approval. Accordingly, when Fleeger was told that an unau- thorized message had been sent, he fulfilled his re- sponsibilities by inquiring as to the circumstances surrounding the transmission. These legitimate con- cerns do not, however, explain the repeated ques- tion as to why Dunleavy asked for the Board's tele- phone number. Dunleavy's reasons for wanting to contact the Board were not relevant to Fleeger's responsibilities regarding the communications equipment and, under the circumstances of this case, the questions had a reasonable tendency to coerce Dunleavy in the exercise of his right to seek the aid of the Board.6 Therefore, we find that the Respondent violated Section 8(a)(1) of the Act when Fleeger asked Dunleavy twice about what had prompted him to request the Board's telephone number. As noted above, Dunleavy was discharged for refusing to obey Fleeger's order requiring Dun- leavy to answer the questions regarding the use of the radio. The judge, having found that Fleeger's questions were lawful and that Fleeger bore no hostility towards Dunleavy's protected activities, concluded that the Respondent had not discharged Dunleavy in violation of the Act. In view of our finding that Fleeger's questioning of Dunleavy re- garding the latter's reasons for wanting to contact the Board violated Section 8(a)(1) and, based on the following findings, we reverse the judge's con- clusion that the discharge was lawful. We find that the General Counsel has made a prima facie showing of a violation by presenting evidence sufficient to support an inference that 6 In this regard, we agree with the judge that the ship's radio equip- ment was essential to the safety of the ship and the crew, but we reject his resulting citation to Southern Steamship as support for Fleeger's ques- tioning The questions Fleeger asked concerning why Dunleavy was in- terested in contacting the Board had nothing to do with safety concerns and Southern Steamship is no support for Fleeger's asking those questions. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dunleavy's refusal to answer the unlawful ques- tions was a motivating factor in the Respondent's decision to discharge him. We further find that the Respondent has failed to meet its burden of estab- lishing that it in any event would have taken such action against Dunleavy for his refusal to answer the lawful questions. We recognize that Fleeger's unlawful questions appeared in memoranda to Dun- leavy which also contained lawful questions re- garding the possible unauthorized use of the ship's radio equipment. Furthermore, Dunleavy's refusal to respond directly to the memoranda extended to those lawful questions. The Respondent, therefore, also may have had a legitimate motive for its con- duct. Here, however, the Respondent's conduct with respect to Dunleavy was based on his refusal to obey orders to answer Fleeger's questions and the Respondent's basis for its discharge of Dun- leavy drew no distinctions between the specific questions asked. In these circumstances , we find that the Respondent's lawful motive for discharg- ing Dunleavy cannot be separated from its unlaw- ful motive. As the Supreme Court stated in NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983): The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was cre- ated not by innocent activity but by his own wrongdoing. Accordingly, we find that the Respondent has failed to rebut the General Counsel's prima facie case that the Respondent acted unlawfully by dis- charging Dunleavy for refusing to answer Fleeger's unlawful questions concerning why Dun- leavy wanted to contact the Board. We therefore conclude that the Respondent violated Section 8(a)(4) and (1).7 Our dissenting colleague's suggestions that no unlawful questions were asked of Dunleavy, and that the "maritime setting" of those events creates a special circumstance, are highly misleading. First, the "alleged" unlawful questioning is quite unam- biguous-Captain Fleeger insisted, to the point of discharge, that Dunleavy reveal "what prompted 7 We also find that the Respondent violated Sec 8(a)(1) by threatening to discipline Dunleavy for failing to answer the questions Specifically, as noted above, Fleeger threatened Dunleavy by stating that the latter could be "placed in irons, on bread and water " We note that the complaint did not allege as a separate violation that the Respondent unlawfully disciplined Dunleavy Also, no exceptions were filed regarding the judge's finding that the Respondent did not un- lawfuly threaten to discharge Dunleavy the call to the NLRB." Under any view of Section 8(a)(1), that inquiry was unlawful, and perhaps, more significantly in the context of this particular case, totally unnecessary to deal with the general issue of an alleged unauthorized use of the ship's radio. Presumably, any unauthorized use of the ship's radio warranted discipline. Even if, as our dissenting colleague suggests, the purpose of the unauthorized use, i.e., a call to the NLRB, might have been relevant to the degree of discipline, the reasons why Dunleavy called the NLRB clearly were not relevant. Secondly, Dunleavy admittedly was discharged for refusing to answer the questions propounded to him by Captain Fleeger, which included the unlaw- ful questions regarding Dunleavy's motivation for calling the NLRB. On such facts, the suggestion that the General Counsel has not shown that Dun- leavy was discharged for refusing to answer an un- lawful question is quite inaccurate. In short, our view of the facts of this case may or may not be "an example of rigorous logical implication." What it distinctly is not, however, is a selective patch- work of facts woven in order to apply the highly questionable principle that "the mere presence" of one unlawful question among lawful ones is not violative. AMENDED CONCLUSIONS OF LAW Insert the following as Conclusions of Law 2 and 3. "2. By coercively interrogating employees, and threatening discipline for refusing to respond to questions concerning why employees wanted to contact the Board, the Respondent violated Section 8(a)(1) of the Act. "3. By discharging Harry Dunleavy for refusing to answer questions about why he wanted to con- tact the Board, the Company violated Section 8(a)(4) and (1) of the Act." REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take affirmative action designed to effectuate the policies of the Act. We shall order that the Respondent offer Harry Dun- leavy immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights previously en- joyed, and make him whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against him, in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), to- SEA-LAND SERVICE gether with interest as provided in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Sea-Land Service, Inc. (Sea Oper- ations), New Orleans, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about his reasons for wishing to contact the National Labor Relations Board. (b) Threatening to discipline any employee for refusing to answer questions about his reasons for wishing to contact the Board. (c) Discharging any employee for refusing to answer unlawful questions about his reasons for wishing to contact the Board. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Harry Dunleavy immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the dis- charge will not be used against him in any way. (c) Post aboard the SS San Pedro copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Di- rector for Region 22, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 723 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. I agree with the judge that the Respondent's in- terrogation and discharge of employee Harry Dun- leavy were not violative of the Act. In reaching a contrary result, my colleagues fail to analyze the Respondent's conduct in the context in which it occurred. It is undisputed that Captain Fleeger in his two memoranda' to Dunleavy asked Dunleavy "what prompted" his unauthorized radio transmission in- quiring as to the phone number of the Board's Re- gional Office in New Orleans. Admittedly such an inquiry could in certain circumstances constitute a violation of Section 8(a)(1). But an examination of all the pertinent circumstances leaves me in agree- ment with the judge that Captain Fleeger's ques- tioning did not reasonably tend to restrain, coerce, or interfere with Dunleavy's Section 7 rights. As the judge found, Captain Fleeger's question- ing of Dunleavy was prompted not by the content The 23 February 1984 memorandum stated It has come to my attention that on 21 February 1984 you used the ship's radio to contact the National Labor Relations Board Prior to calling the NLRB you had the office of Sea-Land in New Orleans look up the information for you Both of the acts were done in direct violation of established practice, my verbal instructions and far in excess of your authority as Radio Officer on this vessel Since you are not on board at this time, nor were you on board when this matter came to my attention, there is no action that I can take at this time By 0800 hrs 24 February 1984 I require a detailed written explanation [sic] as to what prompted the call to the Nation- al Labor Relations Board, by what authority you made requests of service from Sea-Land in New Orleans to find the number for you when they assume that ALL requests for action are made in my name, and by what authority you actually placed the call on the ship's system You may use the rest of this page, if there is sufficient space, or another sheet However, I do not want to discuss this matter with you prior to the written response from you When Dunleavy failed to provide an explanation, Fleeger on 25 February 1984 gave him a second memorandum, which stated Regarding your answer to the above letter, I find it rather difficult to understand your reply. These are not "trick" questions I will try to simplify them even further Did you, or did you not contact Sea Land New Orleans and re- quest the location and/or the telephone number of the National Labor Relatioas Board? If you did do the above, by what authority did you initiate the query? Did you, or did you not actually call the NLRB? If so, did you use the ship's communication equipment? What prompted your inquiry regarding the NLRB? (assuming that you did ask Sea Land for the address and/or telephone number?) If you did not make any inquiry to Sea Land regarding the NLRB, did anyone else do so to your knowledge? Are you really trying to say, in your letter of 23 Feb that you do not have any knowledge of what I am talking about? As to proof of my accusations, there is no need for me to present any proof of charges until such time as I officially bring charges What I am trying to do at this time is determine what actually happenned [sic] and if any charges are warranted Your answering my questions would seemingly help clear up this situation 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the radio message but rather by Dunleavy's un- authorized use of the radio. Neither the Respond- ent nor Captain Fleeger bore any animus toward union or other protected activities in general nor had they any reason to suspect, much less resent, that Dunleavy was engaging in any union or pro- tected activity. In addition, the subject matter of the radio message, i .e, a request for the telephone number of the Board's Regional Office, is innocu- ous on its face and provides little reason for the Respondent to be concerned about the message itself or respond in any way. Further, Captain Fleeger's question concerning what prompted the inquiry about the Board is subject to alternative in- terpretations. Captain Fleeger was not necessarily inquiring as to whether Dunleavy was or had been engaging in union or other protected activities. Rather, it is possible that Captain Fleeger wanted to know the reason for the call in order to assess what, if any, discipline to impose. Had Dunleavy answered the question, it may well have affected Captain Fleeger's course of action. For instance, if Dunleavy established a legitimate reason for the unauthorized call, Captain Fleeger might possibly have decided that little or no discipline was war- ranted. Whether Dunleavy placed the call on his own initiative or through the prompting of some- one else may have influenced Captain Fleeger. In any event, it is far from certain that Captain Fleeger's question was in any way concerned with Dunleavy's Section 7 rights. Rather, what the Respondent was concerned with, as this record clearly shows, was Dunleavy's transmission of a radio message without the prior approval of Captain Fleeger. Such conduct was in direct violation of the ship's policy and maritime law, under which Captain Fleeger was totally re- sponsible for the operation of the ship's radio. Given the maritime setting of this case, it is obvi- ous that Dunleavy's conduct would have engen- dered the same response from Captain Fleeger no matter what the subject matter of the unauthorized call had been. Moreover, Dunleavy's "responses" to Captain Fleeger's questions were in no way affected by the question concerning what prompted the inquiry concerning the Board. My colleagues concede that Captain Fleeger was justified in propounding ques- tions to Dunleavy about the unauthorized call and that all of the questions were lawful except for that pertaining to what prompted the inquiry about the Board. Dunleavy decided not to answer any of the questions. Under these circumstances, it is hard to imagine that Dunleavy reacted to the "unlawful" question in any way diffferently than the lawful ones. All of the questions had an obvious coercive effect on Dunleavy, but there is no evidence that this coercive effect was in any way related to his Section 7 rights. With no evidentiary support, my colleagues merely presume a linkage between the question concerning the Board and Dunleavy's Section 7 right to seek the aid of the Board. Viewing the totality of the circumstances, I find lawful Captain Fleeger's questioning of Dunleavy and I would dismiss this complaint allegation. Similarly, I find that the Respondent's discharge of Dunleavy was lawful. My colleagues conclude that since Dunleavy was discharged for failing to answer Captain Fleeger's questions and since one of those questions was by their assumption unlaw- ful, "the Respondent's lawful motive for discharg- ing Dunleavy cannot be separated from its unlaw- ful motive" and that the Respondent failed to rebut the General Counsel's prima facie case. Both con- clusions are erroneous. As my colleagues concede, Dunleavy's discharge was motivated by his failure to obey Captain Fleeger's direct orders to answer the questions con- cerning the unauthorized radio call. As noted above, neither Captain Fleeger's decision to dis- charge Dunleavy nor Dunleavy's blanket refusal to answer any of the questions was prompted or af- fected in any way by the one question concerning why Dunleavy called the Board' s Regional Office. Captain Fleeger was not concerned with the con- tent of Dunleavy's unauthorized transmission nor is there any evidence that Dunleavy made any dis- tinctions between the questions asked by Captain Fleeger. Further, these events occurred at sea where Captain Fleeger's responsibility for all radio messages and the crew's obedience of the captain's orders were sacrosanct. Under these circumstances, I am unwilling to presume, as do my colleagues, that the General Counsel established a prima facie showing of unlawful discrimination by the mere presence of an allegedly "unlawful" question among admittedly lawful ones. The majority's view of this case rests on a tunnel vision interpretation of a single sentence in Captain Fleeger's communi- cations to Dunleavy. While appealing as an exam- ple of rigorous logical implication, that view ig- nores practically all the evidence in the case. The record clearly establishes that the Respondent would have discharged Dunleavy even if the "un- lawful" question had not been asked. Accordingly, I would dismiss this complaint allegation. SEA-LAND SERVICE 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 has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively interrogate you about your reasons for wishing to contact the National Labor Relations Board. WE WILL NOT threaten to discipline employees for refusing to answer questions about their reasons for wishing to contact the Board. WE WILL NOT discharge any of you for refusing to answer questions about your reasons for wishing to contact the Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guranteed by Section 7 of the Act. WE WILL offer Harry Dunleavy immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. SEA-LAND SERVICE, INC. (SEA OPER- ATIONS) Maria E. Balzano, Esq., for the General Counsel. Robert J. Attaway and Ann E. Isaac, Esq. (Barlow & Attaway), for the Respondent. DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge. The charge in this proceeding was filed on March 12, 1984, by Harry Dunleavy, an individual (Dunleavy). A hearing was conducted in Newark, New Jersey, on September 24 and 25, 1984, on a complaint which issued on April 30, 1984. The complaint alleges that Respondent engaged in various violations of Section 8(a)(1) and (4) of the Act. Specifically, the complaint alleges that Respondent un- lawfully interrogated Dunleavy, both orally and in writ- ing, regarding his activities in seeking access to Board processes; that Respondent threatened Dunleavy with discipline and discharge if he refused to respond to the Respondent's interrogation; and that Respondent did, in 725 fact, discharge Dunleavy for his refusal to respond to the unlawful interrogation. Although the complaint alleges that Respondent's unlawful activities were directed to Dunleavy and other employees seeking access to the Board, the case was tried and briefed on the premise that it was Dunleavy alone whose protected conduct was in issue. Respondent either admits, or does not seriously dis- pute, most of the facts necessary for resolution of the principal issues in this case. However, Respondent denies that it violated the Act in any manner. In its answer, Re- spondent sets forth a number of affirmative defenses t which assert, inter alia, that Dunleavy was not engaged in conduct protected by the Act but that even if he was, such conduct was not a motivating factor for the dis- charge. Finally, Respondent argues that given the mari- time setting of this case, both Congress and the Supreme Court mandate that Federal maritime law supersedes Federal labor law and, accordingly, all its actions on the high seas were justified. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Sea-Land Services, Inc. (Sea Operations) (Respondent) admits that it operates places of business at Elizabeth, New Jersey, and at New Orleans, Louisiana, and that it is engaged in the business of interstate and international transportation of cargo by steamship and motor vessels.2 It is also undisputed that during the 12-month period ending April 30, 1984, Respondent performed services valued in excess of $50,000 in States other than the State of New Jersey. Accordingly, I find that Respondent is an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Interrogation, Threats, and Discharge of Harry Dunleavy by Captain Fleeger 1. Incidents at sea Dunleavy was employed as the sole radio electronics officer on the SS San Pedro (San Pedro), a cargo ship owned and operated by Respondent (Sea-Land or Re- ' As its 10th affirmative defense, Respondent asserted that the Board is obligated to defer to an arbitration proceeding which was about to com- mence Olin Corp, 268 NLRB 573 (1984), United Technologies Corp, 268 NLRB 557 (1984). The request for deferral was denied at hearing based on the Board determination in International Harvester Co, 271 NLRB 647 (1984), that the Board will not defer to arbitration when the complaint alleges violations of Sec 8(a)(4) The ruling denying referral is affirmed 2 At the hearing, a motion was made by Respondent to amend the complaint to reflect the correct name of Respondent as set forth above This motion was granted and any reference in the pleadings to Respond- ent in any form other than Sea-Land Service, Inc (Sea Operations) is deemed to have been amended. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent). Dunleavy, a member of the Radio Officers Union (the Union) for some 7 years, had been referred by the Union to serve aboard the San Pedro for 98 days commencing on December 9, 1983 . His duties involved transmitting communications from the ship to shore and to other vessels, as well as care and maintenance of the radio equipment. Dunleavy admitted that he had no in- dependent authority to transmit messages, other than what were classified as "hearts and flowers " messages of a personal nature . All communications had to be ap- proved and authorized by the master of the ship. The master of the San Pedro was Captain Gary Fleeger (Fleeger). Fleeger assumed command of the San Pedro about February 1, 1984.3 As master, Fleeger was responsible for the safety of the ship and its crew and all operations aboard ship while at sea. More specifically, Fleeger was totally responsible for the operation of the ship's radio. As more fully set forth below, this duty is expressly set forth in the rules and regulations of the Federal Communications Commission, 47 U.S.C. § 358, as well as in the regulations issued by the general secre- tary of the International Telecommunications Union in RR22-1, Section 1, which is an international treaty orga- nization, of which the United States is a member, which promulgates the rules and regulations governing commu- nications in international waters. On February 23, 1984, the San Pedro docked at the port of New Orleans. During the course of the day, Fleeger had a routine business conversation with Captain Edward Savage, the senior manager of vessel operations in New Orleans (the port captain) and Sea-Land's high- est ranking officer in port. He had previously served aboard ships, both as deck officer and as master. Savage was responsible for the management and operating effi- ciency of the San Pedro. During the course of this con- versation, Savage asked Fleeger whether he had a prob- lem with the National Labor Relations Board (NLRB or Board). Fleeger responded by saying that he did not know what Savage was referring to. Savage replied that his office had received a radio communication from the San Pedro requesting the telephone number of the NLRB in New Orleans. Fleeger said that he would check it out. Fleeger credibly testified that before leaving the port office, he looked at the call sheets for the San Pedro and saw that written on the top line of the call sheet dated February 21 was the notation, "Dunleavy, NLRB." Vessel call sheets are records routinely maintained by Sea-Land personnel at the port office which register all messages between a ship and the port office on any given day, as well as any actions which may be taken re- garding those messages. On returning to the ship, Captain Fleeger wrote the following memorandum and attached it to the door of Dunleavy's cabin, a common shipboard procedure: It has come to my attention that on 21 February 1984 you used the ship's radio to contact the Na- tional Labor Relations Board. Prior to calling the NLRB you had the office of Sea-Land in New Or- leans look up the information for you. Both of the 3 All dates herein refer to 1984 unless otherwise indicated acts were done in direct violation of established practice, my verbal instructions and far in excess of your authority as Radio Officer on this vessel. Since you are not on board at this time, nor were you on board when this matter came to my atten- tion, there is no action that I can take at this time. By 0800 hrs. 24 February 1984 I require a detailed written explaination [sic] as to what prompted the call to the National Labor Relations Board, by what authority you made requests of service from Sea- Land in New Orleans to find the number for you when they assume that ALL requests for action are made in my name , and by what authority you actu- ally placed the call on the ship's system. You may use the rest of this page, if there is suf- ficient space, or another sheet. However, I do not want to discuss this matter with you prior to the written response from you. Later that evening, Fleeger placed a copy of this memorandum into the ship's log and entered the first of many detailed reports regarding the Dunleavy incident.4 Dunleavy returned to the ship around 9:30 that evening and read the captain's memorandum. At 10 p.m., Dun- leavy approached Fleeger and requested an extension of time to answer the captain's questions. Dunleavy testified on direct examination that he needed this extension be- cause he was ill with the flu. It should be noted, howev- er, that Dunleavy did not seek medical attention either from the ship's medical officer or from a doctor while he was on shore, or at any other time prior to this initial conversation with Fleeger. This is evidenced both from Dunleavy's own testimony and from the detailed log ac- count. This testimony highlights certain difficulties with Dunleavy's testimony to the extent it conflicts with that of Fleeger. Although a great deal of the case involves undisputed evidence there are portions requiring a reso- lution of these conflicts. In resolving the discrepencies between the testimony of Dunleavy and Fleeger, I have considered their testi- monial demeanor as well as the inherent reliability of their conflicting versions. Not only do I conclude that Dunleavy's disputed evidence lacks plausibility as de- tailed in this decision, but I also find that generally Fleeger was a consistent and straightforward witness. He was extremely careful about the accuracy of his testimo- ny, at one point hesitating to testify as to a specific date without being able to refer to the log, for fear of making an incorrect statement. As noted, his testimony parallels 4 The logbook of the San Pedro was admitted into evidence over the objection of the General Counsel The log was admitted pursuant to the business record exception to the hearsay rule, Fed R Evid 803(6) In order to fit within this exception a document must be "(1) made by a reg- ularly conducted business activity , (2) kept in the 'regular course' of that business, (3) 'regular practice of that business to make the memorandum,' and (4) made by a person with knowledge or from information transmit- ted by a person with knowledge " Clark v. City of Los Angeles, 650 F.2d 1033, 1036-1037 (9th Cir 1981), cert denied 456 U S. 927 ( 1982). As the keeping of the ship 's log complies with these requirements, and has a high degree of reliability as noted below, I affirm my previous ruling to admit the log into evidence In any event, Fleeger's detailed and lengthy testimony, elicited by the General Counsel under Rule 611 (c) and by Re- spondent, parallels the log in every critical respect. l) SEA-LAND SERVICE 727 the log which, I have concluded, has a high degree of trustworthiness and reliability. The captain or master of a vessel is under a personal obligation imposed by the U.S. Coast Guard to maintain the ship's log in accord- ance with specific rules and regulations. Failure to do so could result in actions taken against the master by the Coast Guard with' possible suspension or revocation of his personal master's license as penalty. The existence of such personal liability enhances both the reliability of the log as well as the credibility of the oral testimony which is based on and, in essence, duplicates the log. There simply is no apparent reason to support even a sugges- tion that Fleeger would jeopardize his career by falsify- ing the log entries. Further, Fleeger testified that he had consistently complied with all the rules and regulations of maintaining the log. Indeed, a reading of the meticu- lously detailed entries regarding the Dunleavy incident, all properly signed by the master and the chief officer, indicates a faithful attempt by Fleeger to comply with all requirements. In contrast to this, Dunleavy was hesitant, evasive, and not as forthright, and his testimony exhibits internal inconsistencies. For example, as noted above, Dunleavy claimed he needed additional time to respond to Fleeger's memo because he had been and was still ill with the flu. On cross-examination, however, Respond- ent's counsel elicited from Dunleavy the admission that at no time prior to the 10 p.m. meeting with Fleeger did Dunleavy seek any medical treatment to alleviate his condition. Immediately, Dunleavy changed his original testimony and stated that the reason he required addi- tional time to respond was because he had to check out the ship's radio equipment. In fact, Dunleavy's desire for additional time, in my judgment, was attributable to an attitude of disdain and disregard for the lawful authority of the vessel's master, an attitude reflected in his dealings with the master described elsewhere in this opinion. In view of the foregoing, I will resolve any and all conflicts between the testimony of Fleeger and Dunleavy in favor of Captain Fleeger. At this initial 10 p.m. encounter between Dunleavy and Fleeger, Dunleavy stated that the captain used ex- cessive profanity and accused Dunleavy of having filed other complaints with the Board. Fleeger credibly denied making any allusion whatsoever to Dunleavy's prior involvement or contact with the NLRB. Fleeger had never seen Dunleavy's personnel file, he knew noth- ing of his work history, and he did not know if Dun- leavy had ever filed a complaint with the Board.5 Re- garding his use of profanity, Fleeger admitted to the use of one profane expression, but denied any excessive pro- fanity as alleged by Dunleavy. There is, in fact, an exten- sive log entry regarding Fleeger's use of the expression "fucking questions" and Dunleavy's "extreme distress at having such a word used in his presence." By 8 a:m. on February 24, several hours after the San Pedro had sailed for its next port of San Juan, Puerto Rico, Dunleavy responded in writing to Captain Fleeger's first memorandum as follows: b Indeed, this record does not contain any evidence that, in fact, Dun- leavy ever had filed a Board complaint -I have insufficient knowledge or evidence of the accusations levelled against me in your letter of 23 February, 1984. It would be extremely difficult [sic] and well nigh impossible to answer certain items of which no knowledge exists. However, the accusa- tions are serious and any further proof of same would be appreciated. There was no further contact between the two men for the remainder of February 24. This reply again demon- strates Dunleavy's lack of candor, for he certainly knew whether he had used the ship's radio to call the New Or- leans port office. Also, Dunleavy acknowledges the seri- ousness of the allegation against him. On February 25 at 10 a.m., Dunleavy came to Fleeger's office with a radio message. Fleeger, having considered Dunleavy's February 24 memorandum as un- responsive to his questions, asked Dunleavy once again for a reply. Fleeger explained to Dunleavy that he was not merely making a request but rather was issuing a lawful order from the master to a member of the ship's crew. Dunleavy testified that the captain's statement was, again laced with profanity. However, this assertion is denied by Fleeger, who credibly explained that he was particularly careful to avoid using any profanity at all given Dunleavy's previous outburst. Dunleavy also testi- fied that another encounter took place between him and Fleeger at 11:05 a.m. when Dunleavy delivered a weath- er report to the captain. Dunleavy said that Fleeger threatened him by saying, "[Y]ou'll be lucky if you make it off this ship." This entire incident is credibly denied by Fleeger. In addition, there is no log entry regarding this encounter. At 3 p.m. on February 25, Fleeger posted the follow- ing memorandum on Dunleavy's cabin door: Regarding your answer to the above letter, I find it rather difficult to understand your reply. These are not "trick" questions. I will try to simplify them even further. Did you, or did you not contact Sea Land New Orleans and request the location and/or the tele- phone number of the National Labor Relations Board? If you did do the above, by what authority did you initiate the query? Did you, or did you not actually call the NLRB? If so, did you use the ship's communication equip- ment? What prompted your inquiry regarding the NLRB? (assuming that you did ask Sea Land for the address and/or telephone number)? If you did not make any inquiry to Sea Land re- garding the NLRB, did anyone else do so to your knowledge? Are you really trying to say, in your letter of 23 Feb. that you do not have any knowledge of what I am talking about? As to proof of my accusations, there is no need for me to present any proof of charges until such time as I officially bring charges. What I am trying to do at this time is determine 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what actually happenned [sic] and if any charges are warranted. Your answering my questions would seemingly help clear up this situation. The following written reply to this second memoran- dum was made by Dunleavy at 3:30 p.m.: This letter will serve as a final reply to both let- ters mentioned above on February 23, 1984, you falsely and irresponsibly accused me, in writing, of illegal use of the ship's radio station and/or commu- nications equipment. Legal advice will be sought on how best to deal with those false accusations. Your anger, temper and obscene language as used aboard this vessel on February 23, 1984, at New Orleans, Louisiana, in connection with the above mentioned accusations, was both impaling and disre- spectful. Such lack of etiquette, coming from a ship's master can hardly be admired. This answer, as given above, to your letters and/or accusations is: firm, final, and due no further consideration on my part at this point in time. Any further comments re the above will be made through my union and/or an attorney. Legal action against you is not only possible, but a high probabil- ity. Shortly after receiving and reading this second re- sponse from Dunleavy and finding it unresponsive as well, Fleeger went to the radio room and directed Dun- leavy to transmit a message to the Sea-Land office re- questing that a replacement radio officer be available when the ship reached San Juan on February 28. Dun- leavy sent the message as directed. At 4 p.m. on February 26, Captain Fleeger called a meeting in his office at which the following personnel were present in addition to Dunleavy: Chief Officer Luigi S. Lomoriello and Chief Engineer George W. Ma- cLeod. This meeting constituted a "logging." A logging is a prescribed maritime disciplinary proceeding which must take place whenever a crewman is to be charged with one of the offenses set forth in 46 U.S.C. § 701. The procedural details of the logging are set forth in 46 U.S.C. § 702 and also in the official logbook as follows: Sec. 702. Upon the commission of any of the of- fenses enumerated in section 701 of this title an entry thereof shall be made in the official logbook on the day on which the offense was committed, and shall be signed by the master and by the mate or one of the crew, and the offender, if still in the vessel, shall, before her next arrival at any port, or if she is at the time in port, before her departure therefrom, be furnished with a copy of such entry, and have the same read over distinctly and audibly to him, and may thereupon make such a reply thereto as he thinks fit, and a statement that a copy of the entry has been so furnished, or the same has been so read over, together with his reply, if any, made by the offender, shall likewise be entered and signed in the same manner. In any subsequent legal proceedings the entries hereinbefore required shall, if practicable, be produced or proved, and in default or such production or proof the court hearing the case may, at its discretion, refuse to receive evi- dence of the offense. Fleeger complied with all elements of the logging re- quirements. In addition, Fleeger quoted from 46 U.S.C. § 701, fourth and fifth items, which set forth the offenses with which Dunleavy was to be charged, to wit, "willful disobedience to any lawful command at sea," and "con- tinued willful disobedience to any lawful command at sea," as well as the mandated punishments for such be- havior, which include the complained-of words regard- ing the placing of the seaman in irons and on rations of bread and water. Fleeger gave Dunleavy, in accordance with regulations, an opportunity to make a statement, which Dunleavy wrote directly into the log in his own hand. That statement was: I wish to make no further statements regarding the operation of the ship's radio station on the grounds that by doing so I may incriminate myself. Prior to this statement by Dunleavy, Fleeger had spec- ified at the logging that Dunleavy had not yet been dis- charged for cause and that the request for a replacement radio officer could still be canceled. However, once Dunleavy made his statement that he refused to answer any questions regarding the operation of the ship's radio, Fleeger determined that he had no alternative but to offi- cially discharge Dunleavy for cause. Consequently, on February 27 at 4 p.m., a "firing letter" was given to Dunleavy and, in the presence of the chief officer and the chief engineer, such letter was read aloud to Dun- leavy in accordance with regulations. The following pas- sages from the February 27 letter state the reason for Dunleavy's discharge: You were informed repeatedly since 23 February 1984 that the questions that I, as master, was asking you regarding the operation of the ship's radio sta- tion were obliged to be answered. You were given repeated lawful orders to answer questions regard- ing the operation of the ship's radio station which you refused to obey. I believe that the record clearly indicates that you have been afforded every opportunity to avoid dismissal by truthfully answering my questions... . Your continued refusal to obey a lawful order of the master at sea is inexcusable and challenges the very organizational structure of a Merchant Ship. No master of a ship can adequately perform his sworn duty when a subordinate officer refuses to recognize his authority. On arrival at the port of San Juan on February 29, 1984, Dunleavy, now officially discharged, was put off the San Pedro. In resolving the complaint allegations it is unnecessary to determine whether or not Dunleavy made the call to the New Orleans port on February 21. Although Re- spondent offered no direct evidence establishing Dun- SEA-LAND SERVICE leavy's responsibility for the call, I conclude that there is, from the record as a whole, an inescapable inference that he did, despite his denial at the hearing. Thus, his entire course of conduct during Fleeger's investigation is sufficient in itself to justify the inference. Clearly, if he had not made the call, it would have been a small matter to so deny when questioned by Fleeger. That he did not must have been due to a certain knowledge that a denial would easily have been refuted and this untruth then would have provided a basis for disciplinary action. In addition, Dunleavy at the time was vitally con- cerned with contacting the Board and other government labor agencies in order to halt an imminent internal union election. In this connection, and while not directly at issue in this case, Dunleavy's use of the ship's radio on February 17 illustrates glaring deficiencies in Dunleavy's credibility and the General Counsel's theory, and there- fore deserves at least passing mention. According to Dunleavy he had Fleeger' s permission on that date to transmit one radio message to the NLRB office in Newark, New Jersey, and another message to the Labor Department in East Orange, New Jersey. The messages requested these agencies to enjoin the union election. Fleeger denied seeing these messages, as sworn to by Dunleavy, or of granting permission to transmit them. If Dunleavy is credited, then we are left to wonder why Fleeger would have been concerned one whit over Dunleavy's effort a few days later to obtain an NLRB phone number. And, we also then must wonder why Dunleavy did not seek Fleeger's approval to radio the port office. The General Counsel sheds no light at all on these questions and indeed does not suggest any reason whatsoever for Fleeger's alleged hostility towards Dun- leavy for seeking access to the Board. The truth is that Dunleavy did not obtain Fleeger's consent to send the February 17 messages just as he vio- lated his trust in using the radio on February 21 without authorization. His attempt to stonewall Fleeger's investi- gation to cover up his own wrongdoing further serves to undermine the reliability of his testimony at trial as well as to illustrate his cavalier attitude towards the rules governing the action of a seaman at sea and the authority lawfully vested in the vessel's master. The February 17 use of the radio could not be denied by Dunleavy be- cause his name appears on the confirmed copies of those messages. Consequently, he invented the bogus approval tale. But in so doing he has undermined any theory that Fleeger bore him hostility for seeking access to the Board and, instead, he had reinforced Fleeger's assertion throughout that his concern was not Dunleavy's attempt to contact the Board but rather the unauthorized use of the vessel's radio equipment. 2 Additional facts, analysis, and conclusions It is well established that an employee has the right to seek access to the Board's processes and that any interro- gation of an employee concerning his having engaged in this protected conduct is a violation of Section 8(a)(1) of the Act. Buffalo Neighborhood Housing Services, 267 NLRB 514, 522 (1983); Steinerfilm, Inc., 255 NLRB 769, 778 (1981). Further, such interrogation is considered un- 729 lawful regardless of the employer's motivation. Firmat Mfg. Corp., 255 NLRB 1213, 1218 (1981); Donald E. Hernley, Inc., 240 NLRB 840, 841 (1979); American Freightways Co., 124 NLRB 146, 147 (1959). The Board has recently held, however, that not all in- terrogation concerning conduct which is protected by the Act will necessarily be a violation of Section 8(a)(1). It must first be affirmatively shown from an analysis of the surrounding circumstances that the interrogation was conducted in such a manner that it tended to actually re- strain, coerce, or interfere with the rights guaranteed by the Act. Rossmore House, 269 NLRB 1176 (1984). Certainly there is no question that Captain Fleeger in- terrogated Dunleavy. Respondent's own exhibits contain copies of the complained-of memoranda and log entries detailing the preparation of these written interrogations. It is also clear from the face of the memoranda that the interrogation was directed at Dunleavy's attempts (or suspected attempts as the General Counsel presented the case in light of Dunleavy's denial that he made the call which prompted the interrogation) to either contact the Board or, at the least, secure information which would enable him to contact the Board." In addition, the tone, setting, and language of the interrogations, on the sur- face, arguably meet the Rossmore House criteria of inter- fering with Dunleavy's exercise of his protected right to seek access to the Board. Notwithstanding this clear-cut model of "protected ac- tivity-interrogation-interference-violation," I find that no violation took place here. At the hearing, substantial and undisputed evidence was introduced detailing the various relationships that exist on board a vessel on the high seas which do not exist in land-based situations. Among the relationships explored were that of the master to the ship as a whole, the master to the ship's radio station, and the master to the radio operator. It is crucial to the determination of this case to understand this background. Captain Savage, Sea-Land's port captain in New Orle- ans, testified as to the authority of a captain or master while at sea. Although as port captain he has broader au- thority than a ship's master, Savage stated that he would have to be extremely cautious in giving any orders to a ship's captain while the ship was at sea. In substance, he explained that the captain is expected to care for the ship and everybody aboard it and that his responsibility and authority is absolute. Captain Savage's analysis is cor- roborated by the United States Supreme Court. In South- ern Steamship Co. v. NLRB, 316 U.S. 31, 38 (1942), the Court stated: Ever since men have gone to sea, the relationship of master to seaman has been entirely different from that of employer to employee on land. The lives of passengers and crew, as well as the safety of ship and cargo, are entrusted to the master's care. Every one and everything depend on him. He must com- 6 Interestingly, the complaint is phrased as if Dunleavy was subject to unlawful conduct because he had contacted the Board not merely that Respondent suspected him of such activity 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mand and the crew must obey. Authority cannot be divided. Beyond this general control over the ship and its crew, the captain of a ship has been entrusted with specific re- sponsibility regarding the operation of the ship's radio station. 47 U.S.C. § 358, which deals with wire and radio communications, states: Master's control over operation The radio installation, the operators, the regulations of their watches, the transmission and receipt of messages, and the radio service of the ship ... . shall . . . be under the supreme control of the master. The content of this provision is echoed in the Rules and Regulations of the Federal Communications Com- mission, Section 83.173(a), which states that the master of the ship shall have "supreme contol" over the radio on board ship. Further authority establishing the control of the master over the ship's radio equipment is found in Chapter VI, RR22-1, Section 1 of the International Tele- communications Union, Radio Regulations, 1976 edition. In asserting this "supreme control" over the radio sta- tion, Captain Fleeger testified that it is his duty to make certain that all applicable radio regulations are complied with. He further stated that if he were to have reason to believe that the station was being operated improperly, it would be negligence on his part should he fail to investi- gate the situation. If he should be found to be negligent in his duty, his personal master's license could be pro- ceeded against. Moreover, if the radio station was found to have been operated in violation of regulations its li- cense could also be revoked. Without a licensed radio on board, the ship would be unable to sail at all. Thus, the master's failure to monitor the operation of the ship's radio station could have far-reaching and potentially costly effects on all concerned. In addition, the record establishes that the security and proper use of the com- munications equipment raises safety concerns that cannot be minimized. The only crewmember licensed to operate the ship's radio equipment is the ship's radio officer. While he may operate and maintain the equipment he may not transmit any messages unless they have been expressly authorized by the master. Dunleavy admitted that all messages had to be approved by Captain Fleeger prior to transmission. The only exception to this rule was a blanket authoriza- tion for sending "hearts and flowers" messages. Captain Fleeger characterized these as very personal messages sent by crewmembers to their loved ones and family on shore. Fleeger also testified that while this blanket au- thorization for "hearts and flowers" messages was common in the shipping industry, it was still discretion- ary with the master. Given this background, I arrive at a very different construction of the events of this case than that present- ed by the General Counsel. After docking in New Orleans on February 23, Cap- tain Savage advised Fleeger that a call had been received from the San Pedro, while it was still at sea, requesting the telephone number of the NLRB in New Orleans. Fleeger had not authorized this call, and so, as far as he was concerned, at that moment there was some kind of irregularity regarding the use of the ship's radio. Certain- ly, a call requesting the telephone number of a govern- mental agency could not be construed as a "hearts and flowers" message, given Fleeger's own conception of what constituted this type of message. Therefore, Fleeger had reason to believe that someone on board had usurped his authority by sending an unauthorized mes- sage. Fleeger then checked the ship's call sheets which set forth the name "Dunleavy" next to the Board's tele- phone number. In addition, the captain was well aware that Dunleavy was the only person authorized to operate the ship's radio. Fleeger believed he was obligated to in- vestigate and he had good reason to begin with Dun- leavy. It is true that the phrasing of the questions in Fleeger's memoranda to Dunleavy could infer that the captain was concerned with the sender's interest in contacting the NLRB, rather than the fact that an unauthorized mes- sage had been sent regardless of its content. However, Fleeger testified reasonably and credibly, and the record fully supports him as I have discussed elsewhere herein, that he mentioned the Board in the memoranda solely as a means of identifying the suspect message and that his main concern was not with the content of the message but with the circumstances surrounding its transmission without his authorization. Inasmuch as an employer's motivation is not the pivotal factor in this 8(a)(1) viola- tion, Firmat Mfg. Corp., supra; Donald E. Hernley, Inc., supra, an argument reasonably could be advanced that Fleeger engaged in unlawful interrogation despite his ex- planation for doing so. However, because of the special maritime setting of this case, there are extraordinary well-recognized circumstances which render a traditional Federal labor law analysis not applicable. What this case really typifies is a conflict between the duties and authority of the master which are bestowed on him by Congress and the rights of the employee to engage in protected activity which is safeguarded by Congress. Specifically, is Captain Fleeger's authority to investigate the possible improper use of the ship's radio station superseded by the NLRA's protection of Dun- leavy's right of free access to the Board? The Supreme Court in Southern Steamship Co., supra, 316 U.S. at 47, stated: [T]he Board has not been commissioned to effectu- ate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Fre- quently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis on its immediate task. It is argued that Southern Steamship should not be ap- plied in this case since it concerned a strike which on board a ship is tantamount to a mutiny and involves sig- nificant safety considerations. The General Counsel con- SEA-LAND SERVICE tends that the alleged request for a telephone number in no way raises to this level and cites to Mt. Vernon Tanker Co., 218 NLRB 1423 (1975), enf. denied 549 F.2d 571 (9th Cir. 1977). However, I do not ascribe the re- strictive teachings of Southern Steamship advanced by the General Counsel and I find Mt. Vernon inapposite here. First of all the Board expressly limited its decision in Mt. Vernon to the issue of whether the charging party was entitled to have union representation present during a disciplinary proceeding for failing to obey a lawful order. The Board did not hold that the seaman could not be disciplined and, in fact, implied that the Board would be unable to so hold since the penalties for willful dis- obedience of an order by a seaman are prescribed in 46 U.S.C. § 701. Further, there is a safety interest involved here which brings this case within the ambit of Southern Steamship. The entire purpose of the radio on board a vessel is to provide a communications lifeline to other ships and to shore. The rules and regulations, both congressionally mandated and those traditionally developed, were cre- ated to protect this equipment from misuse. Any tamper- ing with those rules potentially affects the safety of the ship and crew. Any infringement on those safeguards which comes to the attention of the master must be in- vestigated to preserve the integrity of the entire system. Without the right to investigate, Fleeger would have no way of knowing the extent of the misuse of the radio. It was his duty as ship's master, as authorized by Congress, to delve into this irregularity. It is not what Dunleavy was alleged to have done (or, we must remember, was suspected to have done), to wit, request the telephone number of the Board, which gave rise to the interrogation. Rather it is what he did not do. Dunleavy is accused from the initial memorandum throughout the entire disciplinary proceedings of failing to obey the orders of the master of the ship. At first, there was only a suspicion that Dunleavy had violated the standing order that all messages were to be cleared through Captain Fleeger. It was, however, a strong sus- picion, given the vessel call sheets and Dunleavy's exclu- sive access to the radio, and as such it was a suspicion which justified the captain's investigation given the radio's importance to the safety of the ship. When Dunleavy refused to respond directly to Fleeger's questions, the captain's suspicion regarding Dunleavey's role in the unauthorized calls increased. Moreover, Dunleavy was now in violation of a different direct order. Fleeger testified that he advised Dunleavy at their 10 a.m. encounter on February 25 that the radio officer was under direct order to respond to Fleeger's questions . Thus, when the second written response was returned to Fleeger at 3:30 that day wherein Dunleavy stated (without any demonstrated need) that he would not respond without an attorney, this was in direct con- travention to that order. All subsequent disciplinary ac- tivities by Fleeger, including the message requesting a re- placement radio officer, the logging, the reading of the mandated punishments, and the ultimate discharge, flowed directly from Dunleavy's violation of Fleeger's order to respond 731 Fleeger was asked repeatedly during the hearing the reason he discharged Dunleavy. On Respondent's direct and, more importantly, on the General Counsel's direct pursuant to Federal Rule of Evidence 611(c), which con- cerns the questioning of hostile witnesses, Fleeger con- sistently testified that the sole reason for the discharge was Dunleavy's failure and refusal to answer any ques- tions regarding the operation of the ship's radio. This case is bereft of any independent evidence that Fleeger or Respondent harbored any animus towards Dunleavy for attempting to seek Board access. Nothing in the record corroborates Dunleavy's accusations of hostility by Fleeger. The record is silent with respect to circum- stances usually present in a case of this type which might tend to support a view that the Charging Party engaged in significant protected activity, and that the Respondent was aware of or suspected such activity and had reason to resent it. And, we must remember, too, that Dun- leavy's employment was scheduled to terminate in about 3 weeks' time. The likelihood that Respondent concoted the Machiavellian plot conceived by the General Coun- sel's case merely to accelerate his leaving is unacceptable on this record. In view of the foregoing and emphasizing the maritime circumstances involved herein, it is concluded that Re- spondent did not unlawfully interrogate Dunleavy or dis- cipline him for his refusal to subject himself to an unlaw- ful interrogation. Rather, without proper cause, Dun- leavy engaged in willful disobedience and, in accordance with the master's predominant role at sea to maintain strict discipline, Dunleavy properly was interrogated, disciplined, and discharged by Fleeger. Southern Steam- ship Co., supra. Cf. Mr. Vernon Tankers, supra. I find that there has been no violation of Section 8(a)(1) and (4). Therefore, I recommend dismissal of the 8(a)(1) and (4) allegations of the complaint involving Captain Fleeger. B. The Interrogation by Captain Savage 1. Facts On February 23 when the San Pedro first docked at New Orleans, Dunleavy, in accordance with normal pro- cedure, went to the Sea-Land port office to turn in the ship's radio log and the accompanying messages. He tes- tified that he was invited into the office of Captain Savage, port captain for Sea-Land, and that Savage said that he had heard from another San Pedro officer that Dunleavy had made a complaint to the Board. Dunleavy said that Savage asked him if anyone was abusing him on the ship and whether Dunleavy was complaining to the Board. Dunleavy responded that he was not complaining to the Board and the conversation ended with Savage telling Dunleavy to forget the whole thing. Dunleavy's testimony is contradicted in large part by Captain Savage. While admitting that an encounter with Dunleavy occurred in his office on February 23, Savage denied asking Dunleavy anything at all about the NLRB or his treatment on the San Pedro. Savage testified that when he saw Dunleavy in the outer office he invited him in for a brief chat. He contended that he did not know who Dunleavy was when he first saw him in the outer 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and that he often would invite strange officers into his office to talk and have a cup of coffee. Savage fur- ther testified that the conversation was very brief, lasting only around 3 or 4 minutes, and that he asked general questions regarding Dunleavy's ship, more akin to small- talk than interrogation. For the reasons set forth in the next section, as well as for the reasons above finding Dunleavy not wholly believable, I credit Captain Sav- age's account of the meeting with Dunleavy. 2. Analysis and conclusions While Savage was aware at the time of the conversa- tion with Dunleavy that a call had been received from the San Pedro requesting the telephone number of the NLRB in New Orleans, Savage had not yet spoken with Captain Fleeger. As far as Savage knew at that point, the call from the ship had been authorized by the Captain and Dunleavy, as radio officer, had merely sent the mes- sage pursuant to Fleeger's orders and thus would have no personal knowledge as to the reason for sending this message. Given Savage's previous testimony regarding the absolute authority of a ship's master and the respect Savage personally gave that authority, even though his powers as port captain in many ways are broader than those of the master, it is extremely doubtful that Savage would have discussed the message with a junior officer before questioning the captain. It could be contended that Savage was interrogating Dunleavy about his previous messages of February 17, for copies of these messages were in the port office prior to the ship's docking on February 23. However, Savage testified that he did not personally become aware of those messages until after the San Pedro sailed for Puerto Rico on February 24. When the situation with Dunleavy and Fleeger on the ship became apparent via the request for a replacement radio officer, Savage, in researching the radio logs, found the February 17 messages for the first time. Further, even if Savage's account of when he first became aware of the February 17 messages is not cred- ited, a reading of those messages which were sent to the Board and the Department of Labor would not give rise to an inference on Savage's part that Dunleavy was filing complaints about conditions on board the San Pedro,'' thus making the line of questioning alleged by Dunleavy very unlikely. Finally, the General Counsel's theory of the case is that the interrogation was precipi- tated by the February 21 message. For the foregoing reasons, as well as Captain Savage's general demeanor on the witness stand, I credit Savage's account of the conversation with Dunleavy in its entire- ty, and find that no interrogation took place. Therefore, I recommend dismissal of all the 8(a)(1) allegations of the complaint involving Captain Savage and, thus, I recom- mend dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. The Respondent, Sea-Land Service, Inc. (Sea Oper- ations), is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Respondent did not violate the Act in any respect alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] ' Both messages, it will be recalled, concerned an internal election in- volving the Radio Officers Union and did not refer in any way to prob- lems with Respondent