Bisso Towboat Co., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1971

192 N.L.R.B. 885 (N.L.R.B. 1971)

BISSO TOWBOAT COMPANY 885
Bissa, Towboat Company,, Inc. and District 2, Marine
Engineers ', Beneficial Association, AFL-CIO and
General Marine Workers' Union
Bisso Towboat Company, Inc. and District 2,,,Marine
Engineers' Beneficial Association ; AFL-CIO, Pe-
titioner, t *s' 15-CA-3750,',45-CA-3106, and
15-RC-43.03`- '
DECISION AND ^-ORDER
BY CHAIRMAN MILLER, AND MEMBERS JENKINS
AND KENNEDY
On, November 24,_1^970,;Trial , Exa^er Benjamin
B. Lipton issued his Decision = in, the above-entitled
proceeding, finding „that the Respondent had en-,
gaged . in certain . ;unfair labor ,practices within the
meaning of the- National - Labor Relations Act, as
amended, and recommending ,that it cease and desist
therefrom , and take,certainraffirmati,ve'action ,, as set
forth , in the attached ; Trial Examiner's Decision. The
Trial .Examiner, further found that - the Respondent
had. not engaged ,in certain other unfair- labor
practices a as alleged in the consolidated complaint
and recommended dismissal of those allegations. In
addition, the Trial Examiner found merit in certain
objections to the election in Case 15-RC-4303 and
recommended that that -election be set aside and a
new election conducted:-Thereafter, the Respondent
and, the Charging Party filed exceptions and support-
ing briefs ; the General Counsel filed limited excep-
tions ands Brief in,Support ofthe Trial Examiner's
Decision.
Pursuant to the provisions of Section 5(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The` Board has reviewed the rulings of, the Trial
Examiner made at the hearin gg and finds that no
prejudicial error was committed . The rulings are
hereby affirmed. The Boarddhas considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record "this ' ,proceeding , and hereby
adopts the findings,' `conclusions, and recominenda-
tioiis" 4of` the 'Trial Examiner, as herein modified.2
1'.- In adopting the Trial Examiner's findings that
Respondeent engaged in interference, restraint, and
coercion of its employees' rights -in violation of
1 The ,Respondent has excepted to certain , credibility findings made by
the, Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with , respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB
54 enfd. 188 F .2d' 363 (C.A. 3): We have carefully examined the record
192 NLRB No. 116
August w23, 1971
Section 8(a)(1).and that it thus materially interfered
with the election among the engineers conducted on
April 15, we, do not adopt his finding that Respon-
dent's inquiring concerning, the union activities of its
supervisors created the natural impression among the
employees of surveillance of their, own union
activities. We further do not adopt his finding that
promises. ,of wage increases,by Respondent during
the postpetition period were coercive, of, employees'
rights in selecting a bargaining representative. Res-
pondent communicated its intention to raise its
commercial rates and correspondingly,,its wage rates
prior to , the advent of' the union ,organizational
campaign and continued these communications in
the same manner after, the filing of the petition.
2. On August 15, .1969,. Respondent withheld a
$15 union fine. from employee Rosser's paycheck.
The incident falls outside the 6-m6nth limitation
provision of Section-. 10(b) and is not' at issue in the
instant case. However, approximately, 4- weeks
following the incident and within the 10(b)peri^od, an
argument developed, between -Rosser .and` Butler, the
union president, about the fine. After the argument
had .continued for some time, Respondent's `general
manager, Slatten, intervened and informed Rosser
that, if "he did not like it, he could "hit the hill." The
Trial Examiner " field that 'this statement by Slatten
compelled Rosser, on threat of job termination, to
accept for 'the.present and the future the practice of
making unauthorized deductions of, fines for remit-
tance to General Marine Workers' Union.3 We do
not agree because, when 'the events are considered in
their total context, it appears that Rosser was
protesting to' Butler and Slatten about being fined
and not' about the unlawful manner in which the fine
had been collected.
3. The' Trial Examiner found that Respondent
substantially assisted, supported, and --dominated
GMWU in violation of Section 8(a)(2) of the Act.
Respondent contends that a finding of domination is
unsupported by the record and disestablishment `of
GMWU should not be ordered. We find merit in
Respondent's contention.
general Marine Workers" Union has been recog-
nized by Respondent as the exclusive representative
of its deckhands, firemen, oilers, and cooks for the
past 19 years. in March 1969, following a consent
election upon Respondent's petition (Case
15-RM-241), GMWU was certified by the Regional
Director. While securing a majority of the employ-
ees' votes in a Board-conducted election does not by
and find no, basis for reversing his findings.
2 We, find merit to the limited , exceptions of General Counsel and shall
include in the appropriate paragraphs of the notice to employees the name
of District 2, Marine Engineers' Beneficial Association, AFL-CIO.
s Hereinafter referred to as GMWU. "
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
itself insure the legality of a labor organization, it
does-lend some dignity to its status.
In support of'- his"conclusion regarding Respon-,
dent's domination of GMWU, the TrialExaminer
relied - on the existence , of successive union-shop
contracts and contractual no-strike and compulsory
arbitration clauses.,` We do not agree with his reliance
on the above-mentioned' substantive terms of the
contract as evidence of domination.
A substantial factor in the-Trial Examin'ei's'finding`
of domination' was his conclusion that James Butler,
GMWU president, negotiator, and -moving force,
and LeRoy Thomas, GMWU secretary, were super-'
visors withinthe'meaning of Section 2(11) of the Act.
Because , Thomas" status was not raised- by, the
pleadings ' nor fully litigated at the hearing, we are
unable to sustainthe Trial Examiner's supervisory,
finding'as, to Thomas. While' the record' supports the
Trial Examiner's finding as to the supervisory status-
of Butler and shows he had real, practical authority,
it further shows that, lie was primarily engaged in'
carrying out the duties of- a chauffeur and parts"
supply man. There is' nothing in the ' record to
indicate that Respondent encouraged, authorized, or
ratified any intraunion activity by Butler or acted in
such a manner as to`' lead employees reasonably to.
believe that' he was acting for and ' on behalf o'f
management in intraunion affairs.' The record con-
tains no evidence that GMWU was infused with the
Company's presence or had been initiated by the
Employer. t Upon the record' considered as a whole,,
we believe 'the remedy' fashioned by the --Trial,
Examiner_ of disestablishinent of GMWU is ;not
warranted. 'GMWU fully established its original,
majority -status in a" Board-conducted `Selection in
March of 1969 and there is_ no evidence that it has
since _lost its .majority. The contract dated April 1,
1969, between Respondent and GMWU, in force
during, the course of the present litigation, had an,
expiration 'date of February 28, "1971,'and'.provided,
for automatic.-renewal for an additional 3-year ,term
in the absence of written notice, by either party. In
the event that this contract was so renewed or a new
contract has since"been negotiated in which Butler
participated on behalf of GMWU, it must be and
hereby is set aside and Respondent is hereby, ordered
to cease' giving effect to it .4
The' setting aside 'of the collective-bargaining
agreement will 'enable the employees or a rival labor
organization to' test GMWU's majority' status should,
they choose to do so and will serve to remove the
employer interference inherent in allowing Respon-
dent's supervisor to negotiate on behalf' of the- Union.
4 Mon River Towing„ 'Inc., 173 NLRB 1452, and E. E. E. Co., Inc., 171
NLRB No. 137.
5 Powers Regulator Co., 149 NLRB 1185.
This action does 'not-,, however,jequire Respondent
to depart from or; vary any of the substantive`terms,
conditions, and benefits for 'employees currently in
effect.5
4. The Trial Examiner, in.finding the"dues-check=
off-clause,of'the-'contract to be a violation of Section
8(a)(2), relied in part on the fact that its-language was
not in conformity with Section 302(c)(4) of the Act.
We do not adopt this reasoning because violations of
Section 302 are not per se violations of Section
8(a)(2).6 However, we do agree; with the Trial
Examiner's remedy of dues reimbursement with
interest for the following reason.
Respondent's contract with GMWU contains a
union-security provision, implemented by a provi-
sion for deduction of dues of $3 per monthfrom the
salary of each worker, on ' the first 'payday of 'each
month, which is unlawful since, Inter alias as found
above; GMWU is an assisted union under the Act-.'
By virtue of, this illegal contract, employees have
been 'unlawfully coerced-into-paying fees, dues;" and
other monies- to GMWU as the- price of employment.
In those circumstances,-we believe that the remedy of
reimbursement-of the monies ,so deducted from their
earnings "or paid by Respon'dent's ^ employees - , is
appropriate and necessary to expunge the- illegal
effect of Respondent's unfair -labor practice found
herein.7 '
ORDER
Pursuant to Section -l0(e)l of the -;National Labor
Relations" Act, as ' amended, the " National tabor
Relations' Board hereby orders that the Respondent,
Bisso Towboat Company,, Inc.,_New Orleans, Louisi-
ana, its officers, agents, successors, and ',`assigns,
shall:
1. Cease and desist from:
(a) Supporting, contributing financial or, other
assistance to, or interfering 'with the administration
of General Marine Workers' Union, or any other
labor organization off' its'employ_ees.'
(b) ) Giving , effect to,' performing, or in anyway
enforcing the ' collective-bargaining. agreement execu-
ted with ' the above-named' labor organization on
April 1, _ 1969, or-to' any -modification, extension,
renewal;' or supplement thereto, or, any other, collec-
tive-bargaining agreement' with, General Marine
Workers' Union where the agreement was negotiated
with a union negotiation' team composed of'any'of
Respondent's supervisors, or to any checkoff author-
izations executed pursuant to said agreement, or to
preferential- hiring 'pursuant to said, agreement;
6 Salant and Salant Inc., 88 NLRB 816.
Llano Container Corporation,' 173 NLRB 1444, and Virginia Electric
and Power Co. v. N.L B.B., 319 U.S.533.'
BISSO TOWBOAT COMPANY
provided that such ,action shall not be construed to
require that Respondent vary any wages , seniority, or
other rights, benefits, or substantive terms of existing
working conditions.
(c) Coercively interrogating employees concerning
their union activities or sentiments.
(d) In any, other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Restore- to the particular employees all initia-
tion fees,' dues,' and other moneys checked off from
their wages since August 19, 1969, on behalf of
General Marine Workers' Union, plus interest at the
rate of 6 percent per annum.
(b) Preserve and, upon request, make available to
the Board. and its-agent all payroll and other, records
necessary in determining the amount due as reim-
bursements.
(c) Post at Respondent's offices in New Orleans,
Louisiana, copies of the attached notice marked
"Appendix. "8Copies of ' said notice, on forms
provided by the Regional' Director for Region 15,
after being duly signed by Respondent's `representa-
tive, shall be, posted by Respondent immediately
upon receipt thereof, and be r Iaintained by it for 60
consecutive days,,, thereafter, in- conspicuous places,
including-. all places where notices, to, employees are
customarily posted. Reasonable steps shall be taken
by Respondent-to, insure that said notices are not
altered, defaced, or- covered' by any -other material.
(d) Notify-the Regional Director 'for Region'l5, in
writing, withinn=20-days` from the date of'this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the election conducted
in Case' 1,5--RC-_4303 on April 15, 1970, be, and it
hereby is, -set aside,, and that the case be remanded to
the Regional Director for the purpose of conducting
a new _ election -at, such time as -he deems that
circumstances' permit 'the free choice of a bargaining
representative.
8-In the event that, 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 NATIONAL LABOR'RELATIONS BOARD- shall be
changed to read "POSTED'PURSUANT TO A JUDGMENT OF THE
UNITED STATES' COURT. OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD.-
887
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that .weviolated the-law
and has ordered us to post this notice and weintend
to carry out the Order of the Board and abide by the
following:
WE WILL NOT support, contribute financial or
other assistance to,. or interfere -with the adminis-
tration of General Marine Workers' Union, or
any other labor organization.
WE WILL NOT give effect to our April -1, 1969, or
any other collective-bargaining contract with
General Marine Workers' Union where the
contract was negotiated with a union negotiation
team composed 'of any of our supervisors.
However, we will not , interpret this action as
requiring us to vary your wages, seniority, or
other rights , -benefits, or substantive terms of, your
existing working conditions.
WE WILL NOT give effect to any checkoff
authorizations executed pursuant Ao said agree-
ment. '
WE WILL NOT engage in preferential hiring
pursuant to said agreement.
WE WILL NOT ask you anything about District
2, Marine Engineers' -Beneficial Association,
AFL-CIO, or any , other labor organization, or
who their members are- in -a manner which would
coerce you regarding . your rights under the Act.
WE WILL NOT ask - you to speak , to , other
employees against- District 2;, Marine Engineers'
Beneficial Association, AFL-CIO, or any other
labor organization, or-to exert influence on-your
fellow employees to oppose union representation.
WE' WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed ; ,employees in, , the National
Labor Relations Act, with respect to your
activities on behalf of District 2, Marine Engi-
neers' Beneficial Association ,, AFL-CIO, or any
other labor organization, which are as follows:
To engage in self-organization
To form,-join, or help unions
To bargain collectively through a repre-
sentative of their own choosing -
To act together for collective bargaining
or other mutual aid or protection and
To refrain from any and all of these
things.
WE WILL reimburse you for all initiation fees,
dues, and other moneys checked off from your
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay for the benefit of General Marine Workers'
Union since August 19, 1969, with 6 percent
interest.
BISSO TOWBOAT COMPANY, INC.
(Employer,),,
Dated By
(Representative) (Title)
This is an official -notice and must not be defaced-by
anyone.'' ;
This =notice must remain= posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.'
Any questions concerning this-notice or compliance with
its provisions may be directed to the Board's Office,,T6024
Federal Building (Loyola), 701 Loyola Avenue, New
Orleans, Louisiana 70113, Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT' OF THE CASE
BENJAMIN B. LIPTON,' Trial",_rial ", Examiner: In, Case
15-CA-3750, upon a charge, filed and served on February
19, 1970,1 acomplaint against Respondent was `issued by
the General Counsel on April 16, alleging violation of
Section 8(a)(2) in the assistance and domination of General
Marine Workers' Union,-' herein jcalled - GMWU
(representing_ deckhands, firemen, oilers, and cooks), and
certain; independent coercive conduct in , violation of
Section 8(a)(1). In Case 15-CA-3796, upon a charge filed
and served on April 13, a complaint was issued on July 24,
alleging the discharge of Richard L._ Camus, an engineer, in
violation of Section 8(a)(3). Case 15-RC-4303 involves a
petition for certification filed on Rtnuary 14 by District 2,
Marine ngineers' Beneficial Association, AFL-CIO,
herein called MEBA. Pursuant to a Decision and Direction
of Election' issued, by 'the Regional Director, an' election
was conducted itn a unit- of engineers2 ` on -April 15,
following which timely objections were filed' by MEBA. In
a Supplemental Decision, the Regional: Director found that
certain of the objections raised substantial and material
issues of fact to be resolved after a hearing. On July 24, the
Regional, Director ordered consolidation of the representa-
tion cases=with,the two complaint cases for the purpose of a
hearing on specified objections to the election, including
the discharge of Camus,3 together with the complaint
allegations.' 'Respondent generally denies the,^alleged
violations and in f erferedce with the election.
From August-31 through September 3,, a hearing in the
consolidated proceeding was "held before me ' in New
Orleans, Louisiana . All parties appeared and were afforded
full opportunity to present 'relevant evidence and to argue
orally on the, record. Briefs received from the General
Counsel, Respondent, and; the Charging Party have been
duly considered.
On the entire record in the cases, and from my
observation of the demeanor of the witnesses , I make the
following:
FINDINGS OF FACT`--
1. THE BUSINESS OF RBSPON6ENT
Bisso Towboat Company , Inc., herein called the'Respon-
_dent,. is engaged in towing ,,salvage, and ship assistance at
and from its principal place '`of business -in'New Orleans,
Louisiana . During an annual period-preceding issuance` Of
the complaints , Respondent hada direct inflow of goods in
interstate ' commerce valued in';excess of $50,000. Respon-
dent admits, and I find , that it is engaged''inrcommerce
within the meaning of,the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is adinitted,'and I find, that the ,Charging; Party,
MESA, and' the Pa`rty` `to the Contract, GMWU, are labor
organizatiovi within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Description of the` Issues
As above indicated, Respondent's employees have been
divided into-two separate units for representation purposes.
In the current election proceeding, MEBA initially, sought
a unit of all captains and engineers , but captains were held
to be, {supervisors =,by, the Regional , -Director; and were
excluded.4 For at least 19 years, Respondent has recogniz-
ed GMWU, an -inside independent{ union, as the exclusive
representative of its, deckhands, ,firemen, oilers and cooks,
with union security and 'checkoff =provisions evidenced`m̀
the'most' recent ` contract's. In March 1969, following a
consent election' upon, Respondent's` petition' (Case
15-RM-241), GMWU" was certified' by the Regional
Director. Only GMWU,Was involved =in° thelatter'election,
and, only MEBA participated - in the election of April 15
among the engineers., Earlier, ,on February, 11, it appear's
that MEBA commenced a strike- againstXespondent,
joined fry some of the captains, and engineers , which was
still in progress at the, time of-the heari ng. The strike is not
raised in issue.
The Section 8(a)(1)' allegations involve interrogations;
threatening an employee with discharge for protesting the
payroll deduction of a fine'levied`by GMWU;,6reating the
Impression of' surveillance of MEBA activities; and
'offering` benefits to an ^ employee, to ,; dissuade other
employees -from joining,'MEBA . Similar-issues_areraised, in
the election objections , which also allege promises of wage
increases, by Respondent. -, Under.-,Section 8(a)(2),,: the
allegations consist of (a) Respondent's checkoff ,and
payment to GMWU of union dues without proper
authorization ; (b) a contract clause requiring preferential
hiring. of members,of GMWU;' and'(c)assistance, ,support,
and domination of GMWU, including supervisory partici-
pation in the, administration of GMWUand in its contract
negotiations with 'Respondent.' 'Under Sectio8(a)(3),
Camus was discharged allegedly for his activities on behalf
of MEBA.
The great bulk of the evidence relates to the discharge of
Camus, the supervisory or agency status of James Butler,
and his conduct as president of GMWU. It must be noted
1 Unless otherwise specified , all dates are in 1970. 3 As reflected in the Regional Director's Supplemental Decision
2 Excluding , all other employees , port engineers, assistant port engineers , concerning Objection 6.
office clerical employees , dispatchers , captains, guards and supervisors as 4 The parties herein stipulated that captains are supervisors to the extent
defined in the Act. ' found by the Regional Director.
BISSO TOWBOAT COMPANY
that in general ,, the -respective witnesses for General
Counsel and Respondent ,were widely and almost consist-
ently at variance in de cribing the same , factual- situations
and events. , That there,- was , in certain instances clear
dissembling and contrivance of facts cannot be doubted.
As to certain witnesses, part of - their testimony was
credited and -part not credited , based upon the extent of
corroboration and plausibilities - derived from the whole
record. Relating to the ,Camus issue, numerous direct and
collateral incidents , ,wer`e litigated by the parties in
considerable detail -While all the evidence has been closely
considered, it is not deemed necessary to describe all the
differing versions.
B. James Butler
Butler has ^ been employed in essentially the same job for
about 17 - years. 'For- 11 years `he has been president' of
GMWU, and previously 'was vice 'president. Since July
1967, when Respondent-,-took over-the company, William
A.- Siatten, sometimes called Captain Billy , has effectively
been in charge of operations and personnel .5 Butler stated
he has - not perforated any of `the functions - within the
GMWU bargaining `unit for "at least 15, years". He
testified that his classification is "truck driver and an
errands boy." Slatten gave it as "chauffeur." Butler is paid
a salary- of $176 a week, which Slatten explained is
computed by the hour for 12 -hours every day ,6 Assuming
his actual workweek to , be 84 hours, which l find doubtful,
his hourly rate comes to about $2,10. The hourly rate for
dockhands is $1.6,7, for engineers,- about , $ 1.85, and for,
captains ,less than $2.7 Butler has keys to Respondent's
storeroom and,to the officelocated ,in.the _same building.
Four, other, keys " are, held by Slatten, his mother,.,brother,
and the office , manager, John S. Lanier , Sr. 1 How Butler
spends leis purported , 84 hours a week was only vaguely'
defined in this record. He issues stores and supplies to the
vessels, either delivering them himself, or calling on ship
personnel -'to , pick them up., Office Manager Lanier
indicated that he is 'in.charge of the- storeroom and solely
responsible fbr all _ purchases. Lanier's impli cation that .he
is, Butler' intirnedi^ate ,boss cannot beaccepted, in, view of
the evidence of Butler's long workweek and his various
activities away from and unconnected with the storeroom.
The - `following is;^' based ;upon _ credited ' testimony:
Iz January, the tug "Independent" was _ docked at,the
`feet," Respondent's, port facility close to the office
headquarters . On instructions from ,the captain , Louis E.
Andrews; the deckilands were painting the black portion of
the _ Mill., After, ,15-20 minutes, Butler came out to the
vessel., He shouted to theedeckhandsthat he,did not want it
5 Respondent's predecessor, New Orleans Coal and Bisso Towboat
Company, was run by Captain Slatten 's uncle, named Bisso . The officers of
Respondent consist of William A . Slatten, secretary-treasurer ; his mother,
Cecilia B. Slatten, president; and his brother, James Edward Slatten, vice
president,
6 Butler put it- that he is-"paid ,12 hours a day, and anytime I work, they
call mexback ,overtime, I catch up,-I take off the next day. I get paid for 84
hours a ,wzeekC..
r Captatn Gary ;F. Vogt testified that , his pay rate as of December 1969
was $22 ' for! 12 hour's, and Engineer Russell J. LeBlanc that his rate was
abou't' $1.85, Which" was -$25 per month less than ' the captains.
8 Butler's explanation is not worthy of credence. He said the contract
provides that'the '- men°do not paint 'on Saturdays and Sundays. On,cross.
examination , as the contract contains no such provision , he stated thatthis
was one of'theverbal agreements between GMWUand Slatten , and that he
was actually carrying out the specific instructions of Dispatcher Harry
889
painted black and to start painting on the white,part.
They w e r e w o r k i n g for hint ... he was going to tell them
how to run the job, and they would do it his way.", Butler
told them that Captain Billy was hunting in Mexico and
had ordered the boat painted red, white , and-black. After
Butler left, Andrews again ordered the men to paint the
black, but they continued to follow Butler's instructions.
On another occasion shortly thereafter ,' Butler told a
deckhand, Pepper, to stop painting - 'the, wheelhouse, as
requested by Captain Andrews, and tohelp clean the water
tank. Pepper complied with Butler's order.8
Wallace P. Rosser, a deckhand, was assigned by his
captain' 'to paint the bulkheads on the boat. Butler told him
to stop this work and to paint the handrails, which he did.
Rosser also -testified that, ` at another-time , 'utler `sum-
moned two crews from the docked boats to cut wires 100
feet long and load` the wires on a truck. Specific instances
were cited by witnesses, e.g., of-Butler calling men from the
boats to cut grass; to carry cables and stores aboard a boat,
and to move a heavy shaft from a tug to be repaired.9
In May or June 1969 , Captain Siatten ' told Rosser that
Butler was''in' charge of the men , was "president of the
Union," and he had to listen to Butler. During a time that
Slatten was away duck hunting Butler called Rosser to the
office and told him Slatten ` left him in'charge at the fleet
and he wanted Rosser to stay out of trouble. Rosser related
that,-'in December 1969, he undertook to substitute for the
cook and, the 'cook left the boat. Butler came down
"hollering" that he was in charge of the =men and that
Rosser could not permit anyone to take off. Rosser
estimated that he got orders from Butler two or three times
a week.1°
Before Thanksgiving 1969, Rosser was- sent home by
Butler and told that, before he came back, he would have
to talk to, Captain Siatten ,= who was out of town. The
alleged , reason was that Rosser had attempted. to kill
Captain Marvin, Short by setting fire to a blanket. He was
away from work for 1 Week. Slatten restored him to duty
after it was indicated, that Captain Short; discounted the
alleged , offense and did not seek to lodge any -complaint
against Rosser.
Butler admittedly talked Slatten = into,givingJessieJames
another change after James had quit and later approached
Butler to-, help him, get his job ,back-about January, 1970.
Slatten testified that he had told James he.did not need a
deckhand and a Week later Butler, spoke to him and he
rehired James. Butler , tofd him he.thought James was a
pretty good worker and -assured, Slatten, of his
dependability-it
Eaton, Jr., who was in charge at-the time.
9 According to Butler, he was merely helping to move the shaft , and all
he told the men was to "pick up together so no one will -get hurt."
'° _ Willie Davis , a deckhand, testified:that Butler would always-say that
Captain Billy or Chief Henry (Blanque) ordered'something tobe done; for
example, Butter would always tell - him, "Captain Billy said put tires on the
boat, ,'paint the boat, keep the boat looking good :' -Solomon Mason, a
deckhand on the same boat with Davis, .gave similar testimony. Both were
Respondent's witnesses. Davis is a GMWU delegate appointed by Butler.
Slatten stated that the only instructions Butler gives to the men are messages
from himself, '`Chief Ted'(Dorr), Chief Henry (Blanque), and so on." Chief
Henry Blanque was the regular day dispatcher.
' Butter- stated that Slatten -laid off Rosser and that Rosser came-to him
i afterwards to intercede with Slatten. He told Rosser-that , he had no
authority to put him back until he and twoaGMWU delegates investigated
the complaint. He admitted that he talked Slatten into giving Rosser
(Continued)
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Camus had been: an engineer with Respondent for about
a year and 'quit. Four months ' later, in early 1969; he
applied to Captain`Slatten for his old job. Slatten advised
him that the job was filled, but to see Butler, who might be
able ' to' use him as a deckhand . Camus ° then' ` went
downstairs and spoke with Butler . In result, Butler " said' he
would call him'the next morning and tell him to which bdat
he would be assigned. Camas began work the next day as a
deckhand on the "Cappy Bisso." 12 r
The foregoing direct evidence is fairly , convincing` that
Butler possesses and exercises management authority to, a
high degree.'His own modest description of his job as being
merely- a truckdriver and an "errands boy" scarcely,
reconciles with his long workweek , his salary status, and
his high pay exceeding that even of the captains. On a
comprehensiver scale, he has, assigned work to ships' crews,
countermanding the orders of, the captains; disciplined
employees; and effectively recommended hire or rehire.
Respondent's position that he merely relays,instructions to
the men from various other,-supervisors; simply . does not
comport with , the total evidence . 13 His effectiveness and
impact on-the rank-and-file extends ,much beyond that of a
conduit for management . Butler openly and repeatedly
paraded the existence of his authority over the men ,, which
was,, unquestioned and generally , accepted by the crew
members as -,well, as the captains . There, was, certainly
enough apparent authority displayed by his actions in the
knowledge of.supervisors , as to which Respondent took no
steps to disabuse. The r„pntrary is shown, for example, by
the ; unrefuted testimony that , Captain Slatten specifically
advised Rosser that Butler was in charge of the fleet on a
particular occasion.
Slatten averred that he, does not , consult with anyone
when -he hires new deckhands and that Butler , has no. "say
so" about_new, hires . At the prior representation hearing,
Slatten testified that a captain "might, recommend some-
body to .hire them, if they-had an opening on that . vessel.
He would have to talk it over with me and more sowith the,
President of General Marine Workers because having him'
admitted into the Union depending on whether the Union
had already promised thejob to someone , you know , to fill
the opening. Confronted with this statement ; Slatten
indicated ' that this was not exactly what he ' meant. He
meant that before a new , hire could become a steady
deckhand on that boat, lie would have to_ talk to someone
in GMWU and ,join' that organization in conformance with
the union ` shop clause of the -contract . The successive
contracts specifically state, as part of the union-security
provision, that "The Company ; shall not hire any unli-
another chance . Slatten denied,-that Butler had anything to do with laying
off Rosser, but at the same time gave .as a reason that Butler and Captain
Short had asked him toreinstate this-employee.
12 Butler testified that the captain, and the crew of the "Cappy" called
him at his home requesting that he talk to Slatten to getCamus 'job,back,
and tbatthereafter he asked Slatten to give ;Camus another chance. Slatten's
account was that he rehired Camus after-he was approached by the captain
and a crew member of the "Cappy" and byyButler. 4 =
-, -
is Even if , and when,Butler stated he was conveying the orders of Slatten
or another supervisor, the employees were in no positiomto_determine which
statements by Butler were ,authorized and which were not. Owens-Corning
Fiberglas Corpotation, ,185 NLRB No. 21
14 Station commented that ,he really does not understand this contract
censed personnel if members in good standing are
available for duty.' 14 I accepvthe 'plain import-of Slatten's
earlier testimony, particularly as 'considered in light of the
contract, ' and find ' his explanations evasive and not
credible.
Butler's authoritative 'role is undoubtedly linked in part
to his ` office for - 11 years as president of, GMWU, which
from every appearance he administered singlehandedly: In
this respect, the question of his supervisory status must also
be viewed in'conjuaction-with the Section 8'(aX5 ) domina-
tion issue treated ' infra:", However, `the:situation with Butler
is `to be distinguished generally ' from that of a high union
official who exerts legitimate influence upon management
on behalf of employees; as_ in, the. ,resolution of casual
problems and informal grievances . Here it is rather evident
from the entire - record that„ tin his functions as GMWU,
president,Butler actedin subservience to Captain Slatten,
ort top ; management ', and' has , been effectively used as a
convenient tool to exercise control over ',the. men in the
labor relations interest of "Respondent ,, Accordingly, ,for all
purpose herein , I "find drat Butler,is a supervisor within the
meaning of Section 2(11) and an agent of 'Respondent.
C. Interference, Restraint, ;, and Coercion
On - ,January 28,, -Port Engineer Theodore W. Door
informed Camus ' that Captain Slatten-`wanted ' to'talk"to
hill' and Cainus ' proceeded to see =^Slatten
' at the ' fleet.
Camus ` testified :- "He asked me if' I knewanything about
the union [MEBA]; and I' told him no . Then he 'asked me if,
I would talk' to the othergii s'about notjoiningtheiunion,-
that it wasn't any good;` and , that' he had give us areal e-And:
a pension plan." On Friday January 30; when Cainus was
in the office to pick up his check, Slatten brought him the'
check "and said"he was going ` to' see that he-got a big,ger
salary the next payday:1s after leaving Slatten , Camus was
questioned by, Butler gin out of the storeroom. Butler
asked `him if he had signed a pledge card -for MEBA and';
was` told no . Butler`-'said he knew Canius had signed-a card
because he had seen it. Cainusieplied ' that, if he had'-signed.
one, Butler could not have seen it because it i's not shown'
to anyone 16 ' ' ,'
In the latter , part -of- 'January, 'Engineer 'LeBlanc -was„
summoned from 'his vessel -docked at the fleet 'to speak to
Butler, who was -waiting' at'a-car' on the wharf:Butler said
he had received a letter from ° the`BBoard .17 He asked
LeBlanc if he -signed a pledge card and did he know of'any'
engineers or captains -who had signed. L: Blanc'said lie did
not. Butler stated that the' engineers and -captains were
trying to get a union ^in" and trying to push his union out,
and that
provision . ' , ^ I <
15 Slatten in effect denied that he had talked with-Camus at all on or
about these dates. Dorr was not questioned by Respondent for corrobora-
tion. Slatten related two 'different conversations occurring earlier in
January. In the first Camels volunteered 'the information that MEBAwas
organizing. On having his memory refreshed , Slatten recalled a'subseuent
occasion in which Camas "might bave"' told` him" chat he would`talk to the
other men ' and'see how ,theY feel, to whichSlatten `remarked, "Well that's'
up to you." Slatten is not credited.
16 Butler denied ever having discussed M,EBA with anyone ,atthe fleet at
any time. , )
17 Presumably this related to the MEBA petition , filed January, 14.
BISSO TOWBOAT COMPANY 891
He didn't know, why they wanted to do that to, a boy
like Billy Slatten, as good as he had been to the men by-
giving, them, a break and giving them a job.
About January 29,, Dennis V. Victorian, an engineer,
was questioned by Port Engineer Doff in the engine room
of the, tug "Independent." Don inquired if he had heard
any talk concerning MEBA, if he -knew anyone that had
anything to do with that union, and if he thought LeBlanc
would join the -Union, and, then remarked that he knew
Captain Andrews had something to do with it. Victorian's
replies were negative:18
The evidence, above., clearly reveals a pattern ,of coercive
conduct by Respondent after MEBA, filed its election
petition. Violations< of Section 8(aXl) consist of the
interrogations of the particular employees concerning their
own union activities , and those of other employees-by
Slatten, Butler,,and Dorr; Slatten's request of Camus, to
dissuade other employees from-joining MEBA and his
promising Camus, k---wage raise;,, Don telling- Victoria
that he knew Captain Andrews had something to do_ with
it, thus creating ; an impression of surveillance of the,
employees' union-activities.19
On August-15, 1969,, Rosser received his weekly
paycheck, and the, attached payroll statement indicated a
deduction of $15- for -"Union Fine." Rosser- gave the
following testimony: On the night he received his check, he
complained, to Butler,, who said he was fined because he
had talked against a union brother.ZO A week later, he
approached Slatten, who indicated he would try to get it
back. The following week, Rosser and -Butler loudly
disputed the matter on the runway at the fleet, in, the
presence of several `other men. He-- asked Butler to return
the amount of his fine. Butler replied that it was imposed
by "some of the members" and he could not,get it back.
Slatten then came out and spoke to-them, following which
Butler left . At this point Slatten told him there was nothing
he could do, the union fined-him, and he would have to get
it back from the union., Rosser retorted that it was not right
that a group of men -got together and fine him and that
GMWU was not any good. Slatten said if that was the-way
he felt about it, he "could just hit the hill." Rosser testified
that the term "hit the hill" generally referred to an
employee being ,fired: Howeverl he was not discharged. On
cross-examination, he denied using any racial expressions,
Slatten testified' -that 'he heard - the "hollering and
screaming" on the runway and came outdo the scene of the
dispute` between Rosser ` and Butler. Rosser came running
up to him and said, "That nigger Butler thinks he can just
fine anybody." He then told Rosser, "if you are going to
talk like that-we don't allow-that kind of'talk out ,here';
you can hit-the hill." And turning to Butler he said, "If you
all don't cut this foolishness out on company time, you can
all-hit the hill. I've had, enough." Butler's version is difficult
to reconstruct because of ^ inconsistencies. Among other
Is Dorr specifically denied this testimony . He indicated that not "too,
much of a ' conversation" can be held in the ,engine room because the
generator and blowers make 11" awful lot of racket:'
19 It is not material that Andrews was a supervisor , as MEGA was then
seeking , to organize ' captains and engineers and the natural unpression
among the employees was that Respondenfs purpose was to find out which
among any of these individuals were joining MEBA.
29 Rosser testified that he was fined because he had criticized the cook
things, he testified that on the runway Rosser used the
derogatory racial term directed to himself and others, and
that Slatten told them both to "hit the hill." He also heard
Slatten say to Rosser, "If you don't, like it, you can hit the
hill." No other witnesses were questioned on this incident.
I credit Rosser.
It is unarguable that Rosser did not authorize, the
checkoff by Respondent of any union fines from his wages„
However;- since the payroll deduction and payment to
GMWU of the $15 , fine occurred on August 15, 1969, a
violation of the Act based on evidence of such conduct is
precluded, by the 6-month limitation provision in Section
10(b).21 However, the issue here concerning the alleged
threat by Slatten took place 2 ,weeks thereafter and falls
within, the Section 10(b) period. Rosser; had an obviously
legitimate reason for protesting to Respondent the deduc-
tion of the fine. In response he. was told by Slatten that if
he did not like it, he could "hit the hill-This statement by
Respondent compelled Rosser, on threat of job termina-
tion, to accept for the present and, the future,the practice of
making unauthorized deductions of lines for remittance to
GMWU. The existing contract between Respondent and
GMWU provided only for the-deduction, of dues. Moreo-,
ver, the offense is heightened by, the established evidence,
infra that GMWU is an organization unlawfully supported
and dominated by Respondent. As, , in.my opinion , Rosser
has a protected right under the Act not to be forced in
these circumstances to agree to a,practice of unauthorized
checkoff of fines from his ,pay, Slatten'sthreat constituted
an invasion of such right,, in violation of Section 8(a)(l).22
The objections to the election
About January 31, at the fleet, Slatten told Captain
James G. Gagnon that he did not think MEBA would help
the men, and that if they would have a meeting with him
and give him their complaints, he'would straighten them
out without involving a union. He asked Gagnon to
contact the other captains and engineers for the purpose of
organizing such a meeting. -On-February 7, aboard the tug'
"Cappy Bisso," Slatten told Gagnon they ,eould'not `have
the meeting previously discussed because the Labor Board
or MEBA might think he is trying to bribe the men. But he
would like Gagnon to talk to him alone at his office about
what he planned to do for the men and ' what he could
afford as a raise, and Gagnon could tell the=rest of the men.
On February -9, Gagnon met with Slattenf in his office.
Slatten said" he had a list of, raises he planned to give the
men and, in the future, when the Company's commercial
rates were raised, he would give them another- raise. He
added that he would like to make Gagnon-the port captain;
Gagnon said he would rather stay on the boats. A few d'a°ys
later, Gagnon told some of the- engineers, including Camus,
about Slatten's-discussion of proposed wage raises .'Arthe
end of January, Slatten mentioned" to Captain Andrews
for keeping a dirty galley and for his cooking . According to Butler,Fthe fine
was levied because Rosser smacked and kicked a brother union member, as
seen by his union delegates, who told him about it. The reason for the fine is
inmaterial to the issue involved.
21 As earlier noted, the applicable charge was filed-,on February 19,-1970.
22 See, e.g, Rinker Materials Corp 162 NLRB )670, 1672; National
Automotive Fibres, Inc., 121 NLRB 1358, enfd:'in pertinent part, 27,7,F. 2d
79 (C.A. 9).
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something about their getting a raise shortly, because 'he,
expected to increase his rates to the steamship company in
February, and for Andrews , to keep the matter in -mind.
Engineer LeBlanc related that, in January, the captain of
his boat, Andrews, told him'he heard "from the office" that
captains and engineers were going to get a raise, specifying
certain amounts . Calms testified that he heard Captain
Andrews; Gagnon, and Vogt discussthe°foithcoining,wage
raises 'during this-tirne'period. It"does notappear tliat,ia 'of
this hearing, any raises were actually given.
In effect, Slatten 'made no denials of - the `-foregoing
testimony concerning wage raises, 'but sought to establish
that ° he, had W; been"telli'ng the men about the ` same
prospective raises substantially before MEBA's'petition
was filed. He indicated= that, around the first week in
December' 1969;° he not on'ly' told his captains' 'but all
employees 23 that, he was contemplating a rate "increase ' of
10' percent ^,'m ,"Mareh`^and' th`eir' salaries would be raised
accordingly. Slatten's generalized account of, his "pre-
Christm , discussion, of -wage raises is uncorroborated.
Insofar •as ' Slattei s promises- were conveyed to''the
captains, it is no valid defense that they were supervisors,
as if was' Intended, that they spread the word to the
engineers, which in -fact was the result.' I am unable to find
that Re'spondent's' postpetition' conduct emphasizing the
impending raises, to the employees, was justified-upon the'
ground ̀that a predetermination ` had ` been made and-
announced , that such raises would be forthcoming " if
commercial rates were increased. Even if the discussions
were Thad in December, as, described by Slatten, they were
casual at most, not generally disseminatedand lacked the
element of definiteness and certainty ' in order to neutralize
the.,probable, coercive impact upon the employees of the
wage raises promised in the context of, an anticipated
election contest.
Upon,the above findings and the various acts of restraint
and coercion preceding the` election, as earlier enumerated,
with _ . respect to ; the Section 8(a)(1) violations, it is
concluded'that Respondent materially interfered with the
election 'among the engineers conducted on 'April '15.'
D.- The Camus Discharge
Engineer,Catnusand Captain Vogt were discharged after,
jointly„engaging in certain ,misconductthat, is_ essentially
undisputed., On duty on the "Cappy Bisso," which was
docked at a wharf away from the fleet, they departed from
the tugboat, leaving,-two dockhands aboard, for more than
5, hours together while they, engaged in drinking, beer and
hard liquor ,at,,bar rooms and upon their return„ between,
4:30- and 5 aan.,.on February 7, Captain Vogt refused to
accept an-immediate,,, job,,assigned for the boat allegedly„
because he would shave to -work beyond his ,tour of duty,
at 6 a.m., and believed he would not be paid for the
extra time. Certain further details will be covered infra
General Counsel introduced extensive testimony seeking to
establish" that Respondent ; generally' condoned such' con-'
23 Later changed to 10 or 15 employees, specifying Dispatcher Eaton;
Port Engineer, -Dorr; Captains Gagnon' and`Hanson; Davis "and Colbert,
de'ckhands; and Burrus,a welder. -
Y4 Captain Vogt'stated that; when he complained aboutthe supplies he
was getting, Butler told him if he did not like it he could go talk "to'his
duct of employees while on duty, e.g:; drini' g,or being
under- the influence of alcohol; "leaven` the" boat' for
substantial' periods, and refusing assigned,work. For its
part,'' Respondent countered with' contrary evidence--and
explanations. The ultimate question' is, of course, whether
Respondent discharged Camas for-cause or for a discrinoi-
natory' reason,, with-',the burden "iesting" upon General
Counsel. 1 , 1 , r
It-is •my, view that the gravity of the misconduct onthe
part of cresponsibleships'°officers'is,such'that, taking notice
of common experience, it is inherently implausible that it
would be,tolerated in practice. or, policy by any employer,
especially in the business of operating vessels in harbors or
at-sea. The ' arguments that-:"in these, activities Engineer
Camus was under, -the- "direction' of Captain. Vogt, a
supervisor, and that only - Vogt -could; and did; refuse'l to
accept the job assignment are unpersuasive and will not
control the result:, Inx,seeking toestablish cause for the
discharge, Respondent could reasonably 'believe;that- they
were together ,on a lark and were mutual accomplices in all
the misconduct. In the particular circumstances of this
case, the clearest evidence is necessary to show that-in fact
such, misconduct was -,generally 'condoned, tthat it - was
seized upon by Respondent asa mere pretext, and that the
true motivation= forx_Camus' discharge was his union
activity.
In late 1969, Camus signed a.pledge_ cardfor_ MEBAat
the union:, hall. He- also told,-Engineers LeBlanc and
Victoriano that, if .they wanted to,,sign,a card, they, should
go to, the -union-halL Both testified, they signed pledge
cards. As shown,' about January` 30,, Slatten and-,-Butler
interrogated Carnus: ,But-'it cannot be directlyinferredthat
Respondent thereby; - had 'knowledge of his MEBA
membersbipr,24 Respondent's animus -toward MEBA is
readily found 'although nothing otherwise appears to single
out Camus. ` , , , , .,
Slatten concededly „was, aware that the predecessor
company, under his uncle, was lax; in curbing a general
practice among the, officers: and employees in, drinking or
being affected by drink,on^ the job.. Hetestified that, 'when
he took over ,the operation in July 1967, he,madeit a point
for a period, of about a week emphatically to convey to all
personnel the, company policy prohibiting such _ drinking
practices,25-W,,hether the,policy was broadcast verballyon
such a broad scale, I .find ^ no•,difficulty, in accepting "the
truth-, of Slatten's,, expression., of , . intent and. purpose.
In his brief, General Counsel , adverts, to the testimony of,
Rosser, Gagnon, Andrews, d eBlanc, Camus, Victorian,
ands Vogt, as demonstrating "that each of saidtemployees is
unaware of any companyrules ,regarding drinking during
working hours, regardless.,of-,whether,ashore,,,aboard,a
vessel or- in, Respondent'sy,offices,'that'each has left his
assigned vessel to drink alcoholic beverages inabarashore
during his respective scheduled working" hours-and, in the
process, each has observed other employees of Respondent
doing likewise and, further""--that'there-is`nothing unusual
about ' such ' conduct -'in Respondent's" operation."' The
union man, Richard Camus." On -the issue of Camas' discharge,, Vogt's
testimony where ` not substantially; corroborated,, is found' untrustworthy'
and' not cledited, as will be,further shown:, ° " '
25 This is in part corroborated byseveral 'vatnesses for'Respondent.
BISSO TOWBOAT COMPANY
question of "company rules," whether written or oral, may
be ambiguous `and` confusing. None `of -these individuals
would deign to' say that such misconduct was permitted
with impunity.26 For the most part; these witnesses of the
General Counsel gave generalized' testimony without
establishing when the conduct in'question occurred or that
it was within the awareness of Respondent 27
On refusal of job assignments, General Counsel points to
testimony of Dispatcher Thomas and to specific instances
involving Captains Gerald Huber and Donald Short.
Thomas did state generally that captains often complain
about assignments when they 'are due to-be relieved, but
when heIgives out a job to a-boat, that is it; he- does not
switch, to another boat. After Huber refused a job; he was
in fact separated from duty. According to Slatten, he was
reinstated, a week later because he was leaving to assume
an outside job as river pilot within about a week. Slatten
explained that Short had just completed offshore duty
alone and then declined a -new assignment by the
dispatcher, who,_ did not know that Slatten had earlier
promised Short that he would be relieved. Captain Marvin
Short was summoned to Slatten's office after he had left
the boat when he was supposed to be on duty: Slatten said
he succumbed to Short's plea not to be fired as he was
quitting in a week also to become a river pilot. Affirmative
evidence on Respondent's side further serves to refute the
broad implication that drinking was generally condoned.
In November 1969, Engineer John Wallace was laid off by
Slatten upon the complaint of Port Engineer Dorr relating
to a drinking problem, admitted-by` Wallace, which was
affecting^his work. A week later, when Wallace returned to
Slatten and Don with a film resolve not to'drink any more,
he was given another chance and restored to work. Wallace'
reluctantly stated'on'cross-examination that, since then, he
had' imbibed three-times in drinking , duringworking' hours.
However, Respondent was not shown to have' been aware
of these instances. Slatten also testified that, in 1969, a
deckhand, Henry Ford, was discharged for drunkenness on
duty after Slatten had given this employee a warning 2
weeks earlier.
It would be an extraordinary assumption by 'employees
26 For-example , Rosser related that he confessed to Slatten that at one
time he had gotten real drunk (apparently on the job) and Slatten warned
him not to do it, any more. Slatten,added that-he told Rosser he would be
fired if he were caught.
27 A few particular incidents were litigated showing knowledge of
Respondent. , The, occasion of a river parade about the time of the Mardi
Gras, during which Respondent was entertaining guests on one of its
tugboats .and beer was allowed for .the crew, can be ,passed over as an
exceptional event . James (Ed) Slatten and his wife encountered Gagnon and
another captain at a bar when they should have been Ion duty. While the
testimony is sharply in conflict, it is evident that all concerned were aware
that the conduct was not approved . After a severe storm, William Slatten
came out to one of the tugs in the harbor and shared in drinking a case of
beer given to the tug 'by an assisted vessel.Vogt related an instance in which
he and certain others brought cases of beer to the company office and
Butler ' came in and- "had a few too." Dispatcher Eaton was on duty one
morning with ^the'ill effects of drinking the night before and later complaints
reached Slatten concerning Eaton'sincoherence on the radio phone . Slatten
testified he told Eaton if he cannot ^come to work in condition to do his job,
not to come , at all. Gagnon rather vaguely described an occasion in 1969
when his own,, deckhands , Batiste -and-Thomas , "refused to turn the boat
loose" to do a job shortly before they were due to be relieved at 6 a.m. It
would appear that they were .relieved on time and the job was done. The
conclusion given was that these deckhands were not disciplined ;,however,
as their captain, Gagnon did not indicate that he undertook any action or
893
that, absent express orders or rules of an employer; 'it was,
perfectly permissible to leave one's job station for many
hours, engage in alcoholic drinking on working time, and
refuse to perform, an important assignment. Iii this ease at
least, I find no warrant for such an `assumption, notwith-
standing some instances of leniency or even toleration on
the part of this Respondent. Still; it is adifferent question,
whether Camus was accorded disparate' treatment' for ,a
discriminatory motive under the Act: I
Of the events leading to the Camus discharge, certain,
further aspects need to be -noted, in essence, viz.: About
3:30 a.m., February 7, while Vogt and, Camus were, still
away from their tug the "Cappy Bisso," Dispatcher
Thomas called the boat by radio with-an order for a 5 a.m.
job at a sugar refinery in the harbor. Deckhand-Davis -took
the caul and said the captain and engineer were not aboard.
Thomas asked Davis to go out and,look for them2s After
leaving Camus at the last barroom, about 4 a.m.,',Vogt
returned in a staggering and apparently drunken condition.
Davis told him the office, had called and assigned a Job.
Vogt instructed Davis to call the dispatcher, and tell him he-
was "drunk" and- going, to bed. Davis went ashore , and
again -called Thomas on the land phone. -He, said the
captain,was now aboard, was drunk, and refused to talk to
the office.. Thomas responded .that, Vogt could not operate
the vessel and he 'would reassign the job to thee
"Independent.'" About 20 minutes ;after Vogt left him at
the bar, Camus was told ")by' a 'deckliand from `the
"Independent," Albert Thomas ,(son of Dispatcher Thom-
as), that the "Cappy" might ' leave a ,'Job. Camus; -then
returned to the boat, observed by the'dechhands iri,an
apparent condition of having been drinking. Informed by
Davis of the assigned job, Camus said 'the- cannot do the
job. About 4:30-3 am., Camus'called :Thomas on, e, radio
phone,. As testified by Thomas, Camus said , the- captain
was drunk and they had been out leaving a "couple of
drinks." Thomas stated he would report this to- Slatten, and
Camus replied that he did not care because -he' was just
about to quit 29 Camus was relieved'about 5:45 am.,-and'
left the boat. Vogt returned to bed. Shortly thereafter,
Captain Gagnon arrived as the regular relief. The "Cappy"
whether any charges at all were brought against themwith Slatten . I regard-
these various instances as isolated and inconclusive in light . of,the whole
picture.
28 Vogts testimony is not credited that, he called the,dispatcher from
each of the bars he visited , and that the dispatcher wasgiven or-knew;the'
phone numbers at each of the.,bars. Thomas denied that, he had any such
calls. Vogt was carrying a"walkie-talkie ,''generallyused for close. quarters,
and is; ineffective for communication with, or, monitoring radio calls from,
the dispatcher. It is evident that Vogt and Camus, before returning , to, the
"Cappy," did not learn by their own resources thatthere was a 5-o'clock job
for the boat, of which the -dispatcher-was aware as earlyas 1 a.m . Nor is it
contended by General Counsel that carrying , a walkie=talkie, or calling the
dispatcher from a bar serves-to mitigate the unauthorized absence from-the
boat.
29 Corroborated by Deckhands Davis and Solomon, who overheard the,
generally audible conversation on the radio phone. Vogt, testified; About
4:30 a.m.,,he went back to the boat. The dispatcher called him onethe radio
phone about a job assignment-and he said he was not'going to do any more
jobs because he receives no pay after 6 a.m.. After Camus returned he
answered another call from the dispatcher. Camus, called out to Vogt that
they were trying to give the boat a job at the sugar refineryand Vogt told
Camus to say that they were not going to do the job. Camus testified.- When-
he got back to the boat, he found Vogt awake in hikbunk: He asked, Vogt if
he knew anything about a job, and Vogt said, no. He told Vogt wwvhat
Deckhand Thomas had said at the bar, $t . Vogt's; instruction, he,called
(Continued)
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed two jobs at 9 a .m.,,andabout 4:30 p .m.;, in the
interim it was tied up atthe fleet. Vogt was seen leaving the
boat about 4 p.m.30
About 6:30 a.m,,Djspatcher Thomas calledSiatten at his
involving thehome, and - described ,, the circumstances
"Cappy'-' . that Saturday morning, Thomas - reported, inter
alia, ;that Vogt-and Cnmus had left the boat,, that after-they
a !back-, ,Cnmus informed , him that they had been out
g, and that Vogt was drunk and in no shape , to•run-
the- vessel: When the-"Cappy" returned to , the fleet from
the, 9 `a.m. job, - Slatten was waiting to - come aboard. He
asked ` Deckhand Solomon what -happened, and was told
that "they went out last (night and got drunk." Believably,
Slatten attemptedtoo sees Vogt but--found he was in no
condition to talk.31 He then spoke , with Captain Gagnon.
Among other` things related by Gagnon; Slatten said "they
were both drinking ' and refused a, job," he could not allow
that, and be was going to fire both of them.32'According to
Slatted, _ he indicated -that both would be `fir'ed and asked
Gagnon to tell Vogt , when he spoke , to get off ' die boat and
to -see him , Slatten, ° on' Monday morning . Returning to the
office, Slatten had Dispatcher Eaton 'telephone Camus and
listen in on the ` line 33 ", Slatten 'discharged Camas After
Cnmus admitted he "left the ' boat unattended to take afew
drinks." 34 The next ' Monday, Vogt's conversation with
Slatten; at°the office was heard by Eaton: Vogt said he was
sorry, he should not-have`done it, and 'Slatten discharged
him. Asked if he would consider reinstatement after a' short
period, Slatten said he ` did not know. Vogt inquired
whether ' he should look for another job and was told that
ha 'should ' Vogt'was 'not thereafter rehired.35
Thedisposition of; the 'Camus issue is not free of doubt,
particularly in view of the numerous testimonial conflicts.
Principally on und"t'sputed facts , as well as those which are
credited, - if must ` be considered that Respondent had
reasonable ; gr'ounis for-believing thatGainuswas guilty of
serious -misconduct. Thus, Camus and Vogt,as "responsible
officers ` of"the' "Cappy Bisso," had together committed,a
combination' o€ offenses : leaving , their duty station for
many hours, returning in a drunken condition, and
refusing an assigned job for the boat . Notwithstanding the
Respondent's animus toward, MEBA , and assuming it
Dispatcher Thomas and asked him about a job . When Thomas described
the job, withinearshot of Vogt, Vogt told Camus to say thatthey werenot
going to do , itbecause they wanted to get off at 6 a.m. He-did not recall
mentioning anything to Thomas about drinking . Thomas said "all right,"
and thathe would call' the "Independent" to do the job.
m I , find , incredible , virtually all of Vogt's, testimony concerning the
circumstances of the ,,drinking adventure on February 6 and 7. I have little
doubt from'allthe evidence that be was quite thoroughlymebnated when he
returned to the "Cappy," and he proceeded to sleep off the effects until late
in - the day. He' testified that he voluntarily stayed on board the "Cappy"
after- 6 a.m. because be was trying to learn the more difficult operation of
this tugboat; that he actually worked on both the morning and afternoon'
jobs, the former entirely unassisted by Captain-Gagnon; and, that at the
time he thought he was going 'to get paid for such extra work but did'not
find- out-until' later -that hewas not. Vogt was not heard by anyone on the
sbip=to-shore phone, and the deckhands did not see him emerge 'from,his
bunk 'until past noon at - the fleet; The conflicts and, implausibilities in his
testimony are grossly evident , particularly in his earlier reported refusal to
work after • 6 a:m. because he would not get paid Gagnon 's efforts to
corroborate Vogt 'al'to Vogt's reason for remaining aboard are rejected.
six The -testimony that Vogt handled the 9 o'clock job becomes the more
incredible.'
32' As"earlier indicated , I find that Gagnon was attempting to cover up
would welcome,- an opportunity, ,to discourage . MEBA
activities, it cannot, be inferred, without clear and ' direct
evidence .of -unlawful purpose, that such misconduct was
only a-, pretext and.,did,, not constitute valid cause for
discharge. Camus' involvement in,,the MEBA campaign,
was not conspicuous nor pointedly withinythe knowledge,
of Respondent as an object for-, reprisal. , And even, the most
active union advocacy does not carry immunity against
discharge. It is not shown that Camus, was clearly treated
differently,, nor is disparate treatment sufficient- without
establishing unlawful motive., In ;sum, I conclude that
General Counsel has failed to establish the essential
element, that Respondent was discriminatorily motivated in
affecting Camus' discharge.36 Accordingly,-this allegation
in the complaint is dismissed.
F. Support and Domination of GMWU
1., `Preferential hiring
Respondent''s current contract with GMWU, dated April
1, 1969, is made " effective- until February 28, 1971, and
automatically"renewable thereafter for an "additional three
year term" in the absence of written notice by either party
of desire to amend or:terminate. In the; article providing for
a union shop, it is,,further-'stated that "The Company shall
not hire any, unlicensed personnel if members in good
standing are available for duty," As already'found, Slatten
had testified that a, captain, in recommending, the hire of
anybody, 'would have to talk it over, particularly with the
president, of,,GMWU "depending, on whether the,union
had already promised'the.job to someone .- ..." On this
evidence, it is,found that Respondent contractually agreed
to extend, preference in hiring to,.GMWU, members, and
that in, practice it preferred applicants for,, employment
referred by GMWWU. The, violations of Section 8(a)(2)„are
clear.
2. Unauthorized checkoff` payments to GMWU
As already, described, in August 1969, Respondent
checked off from Rosser's wages and paid over to GMWU,
without authorization, a $15 fine imposed by GMWU.
for Vogt and Camus%and do not accept his embellishments concerning the
events of February 7, although he is credited as to other 'discussions with
Slatten which are corroborated or appear plausible in the'entire context.' In
this conversation on' board the "Cappy", ' he attributes to Slatten a
condemning admission , which' I regard as wholly contrived.` Purportedly
Slatten said that he did not want to fire Vogt but°couldnot fire' Camus
without firing Vogt, that he would rehire Vogt in` about a month when
everything cooled off, and-that he was to tell Vogt, when he got up, to call
Slatten toward the end of the week'and he would talk to `him about rehiring.
this was'not as matters developed.
33 - As, such, 'this tactic does not impair credibility and,is consistent with
Slatten's awareness of possible repercussions with, MEBA.
34 Eatops testimony is inconsistent with Slatten 's. LeBlanc testified, that,
on their way home together in,t].te Morning of February 7. Camus remarked
that "he didn't do. some job and possibly might get fired.".,
, 35 1 do not believe Vogt's version thatSlatten admitted he did not really
want to fire Vogt but did so because he-fired Camas and"it,would help it
look better"; in about a month he wouldget his job back "when the union
stuff blew over."
36 Note is also taken that, although other charges before the Board were
pending, the charge as to Camus was not filed until 2, months had elapsed
after the events.
BISSO TOWBOAT COMPANY 895
Although barred by Section 10(b) as evidence of a
violation, it is , properly considered as background to shed
light on Respondent's post-l0(b) conduct within the
framework of the `complaint.
The contract with GMWU provides:
It is hereby agreed that the Company shall deduct
the dues of $3 per month , from the salary ofeach worker
on the first payday of each month , which shall be
remitted to the treasurer of the Union who shall receipt
for the "money received. [Emphasis added.]
It is observed that "the checkoff clause does not contain the
provision for- voluntary written - `authorization by. the
employee , and for arevocability not to extend beyond one
year, in order to maintain -the lawfulness of such payments
to GMWU - under Section 302(c)(4),, of , the Act 37
Pursuant to .a subpena by the , General Counsel request-
ing all checkoff authorizations covering a yearly period
from August 1969 ,,, Respondent produced 15 ,signed forms.
which it purports } to embrace the "current list' and all
those authorizations it presently holds38,
CHECK-OFF AUTHORIZATIONS
Date:
To Bisso Towboat Company, Inc.
I hereby assign to the General'Marine Worker's Union,
Independent , and,herebydirect my employer to deduct
from .my wages -received by me by reason, of my
employment under a collective bargaining agreement
with the General Marine, Workers' Union, Independ-
ent, the total sum of ($3.00) 'three dollars per month
and ($15.00) 'fifteen-dollars Initiation Fee paid for me,
representing that portion of my dues owed to the
General Marine Worker's Union, Independent, as per
capita, such sum to be paid directly to the General
Marine Worker's Union, Independent.
'Phis assignment and, authorization shall be irrevocable
for a period- of one year from the effective date hereof
or until ,the expiration - of the present agreement
between the employers and the General - Marine
Worker's Union, Independent, whichever is sooner, at
which time it, may be "revoked ^ by written notice given
by me to the Bisso Towboat; Company, Inc.' If no such
notice is 'given, -this authorization shall be irrevocable'
for successive -periods of 'one year thereafter, with the
same privilege of revocation at the 'end of each such
period.
This assignment and authorization shall be effective as
of March 1, 1969. ,
Social Security No. Signature
87 E.g., Julius Resnick Inc., 86 NLRB 38, 41.
ss There are apparent inconsistencies which are not clarified : (a) Of the
15 authorizations , 6 predate the contract (April 1, 1969). (b) As of January
26, 1970, a list of GMWU- members submitted to Respondent shows 26
names , including 5 officers. Not appearing on this list are 5 employees
(prince,-White;-Coleman, Dubose, and Mason), all currently employed, who
signed authorizations on dates prior to the making of this list. (c) Dues were
deducted for Byron Williams as of July 10, 1970; and thereafter his checkoff
authorization was purportedly destroyed because he was "out sick."
39 Butler frequently appears as signatory for some employees ; he delivers
Slatten testified that the written authorization is discard-
ed - after the employee is terminated, and, that each
employee has signed a new form since the effective date of
the current contract. In response, _ to General Counsel's
subpena, Respondent also supplied weekly payroll sheets,
on the top of which is finely handwritten:
I hereby agree to let Bisso Towboat Co., Inc., collect
my dues in the General Marine Workers' Union.
Employees or their proxies- must sign-these sheets at the
office to obtain their payroll checks.39Office Manager
Lanier testified that he had personally written the
"authorization" on top of every weekly payroll sheet for
many years, and the :purpose is simply a "reminder" to the
employees of their dues deduction. it - was testified by
Rosser; Camus, Gagnon and Vogt that, while =they were -
deckhands, they never signed , or saw any checkoff
authorizations, although their dues were deducted.40 I am
disposed to credit this testimony, considering as a factor
that countervailing documentary-evidence by -Respondent
or GMWU were not produced. Concerning the writing on
top of the weekly payroll sheet, I reject Lanier's testim_ ony,`
of its purpose41 and find by its language that it was
actually contemplated as a,,checkoff authorization. As'
such, it is plainly invalid. Among other reasons, itcannot
be held that it is a voluntary act.by the employees when-
they sign in a condition of anxiety to-obtain their checks.,
Rather, I conceive this procedure as , intended to exert
added pressure upon employees, to consent to : their
financial support of GMWU and provide Respondent with
ostensible evidence of voluntary authorizations.
Particularly in light .of, all the described circumstances,
it is concluded that Respondent; by checking off and
remitting to GMWU the dues of employees, without -
'conforining to-the'''statutory gbalifications,and without
actual authorizations submitted-by employees; violated
Section`8(a)(2), as alleged,42
3. Viability of GMU
The four officers of GMWU are Joseph Butler,,presi-
dent; Paul, Alexander, vice president;,•Leroy Thomas,
secretary; ;and. Joseph Jacque, treasurer. Thomas is; a night
dispatcher and Jacque, a- retired watchman and, fleet man.
With the possible exception of Alexander, none, of these
officers has performed duties within the' contract bargain-
ingunit and,theydo not pay dues.rAccording to Butler, the
officers hold a 2-year term and are nominated and elected
at the same meeting by a show of hands. "Tkomas,has been
secretary, since the inception of GMWU,, 19 years ago.,
Butler has been president for at least 15 years. He
the checks to them and also cashs checks for employees at-the bank.
4° Butler stated that he received a signed-authorization-'from every
employee since he has -been president (1959); he' recalled that -Rosser and
Gagnon had signed but did not mention Camus or Vogt.
'" The printed check ' stubs given the employees =show all deductions,
including dues. , -
42 See, e.g., Julius Resnick, Inc., supra, Donald Leisure, Jr., 182 NLRB
No. 149; Tonkin Corp. of California- dlbla Seven Up Bottling Co. of
Sacramento, 165 NLRB 607; enfd 420-V. 2d`495,(C.A, 9); Lenders Bag"el
Bakery, 158 NLRB'` 1175. - - -
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personally appoints,the,GMWU delegates for the various
purposes to which he refers in his testimony.43 The entire
record, makes it. abundantly apparent that Butler is the
controling functionary of GMWU.44
The question' of Thomas' supervisory, agency, or
managerial status was not raised in the complaint per se, as
in the case of Butler . It is nevertheless relevant to the issue
of domination and there is sufficient evidence to consider
the matter `in some detail. His name appears on a separate
payroll with salaried personnel, including the Slattens.
Dispatchers direct thenoperations of Respondent's fleet of
tugboats , and exercise judgment in assigning jobs to the
vessels: Among other things, they` communicate with ships'
officers and -crew' and send out relief,, personnel- when
needed. Several examples are pertinent to reveal the nature
of a, dispatcher's authority. Thomas testified Slatten
expressly assigned -him- the responsibility, as applied to
occurrences at the fleet, that "if anybody approached the
boat drunk, not to let them work."; Slatten and Office
Manager Lanier testified that' the dispatcher, among
others, may give orders to Butler to convey to crew
members. Butler testified that Dispatcher Eaton was "in
charge" at the fleet on a Saturday in January and gave
orders to have a -water' tank cleaned. On this record, I find
that, as a' dispatcher, Thomas has a position of responsible
direction, ' including authority over employees in certain
situations, And is therefore a supervisor within Section
2(1,1),46 and that he` is closely allied with, and an apparent
agent- of, management in the view of the employees.
Butler` testified that he did- not have a copy of GMWU's
constit Lion and bylaws with him. It, was written before,he
took office and-he added some to it..He has- not seen it•
since about 1962 'because the secretary,, always kept it. He
just .called up. and•-found'.out that it was burned up,
together with-. other GMWU records, in a fire - at _ the
secretary's .house in May 196.7 or 196$. A document of one
page . , entitled • "Constitution,"46 furnished. -';by General
Counsel, was never seen before by Butler. However, he
thinks that all the provisions are'presently in effect, with
the exception of the amounts of,initiation fees and dues
and the procedure 'for' fines.4? And'he knows of no other
document in the possession, of GMWU. Asked whether a
member is given a hearing before,he is fined; -Butler stated:
No, we don'ts do ' it that Way. We will warn a fellow two
or three times, at least two times on something they do',
thatwe don't want to tolerate that-and-the next time he
do' it, he'll be fined.
Butler, does, the warning. 'Slatten averred that he did not
know whether -GMWUUhad a constitution and bylaws.
43 The "Constitution" specified that all committees be elected.
in defense of -the charges affecting GMWU in this case,' Butler
appeared, without legal'counsel, and was present throughout -the` hearing.
Except as a witness , hezmade - no effort to participate. Indeed; he was
observed by the Trial Examiner as apparently being sound asleep for
lengthy periods.
*s E.g., ; Ohio Power Company, v. N.L.R.B., 176 F. 2d 385 (CA. 6) ,cert.
denied 338 U.S. 89.9; N.L;1t.B. v., Henry Colder Co., 416 ,12d 750 (CA. 7).
4i'A clause states ; that the Union (GMWU) shall provide _ bylaws.
47 He said that, he also , bas ,to add to the constitution the provisions that
Respondent will furnish rain gear and insurance, and postnudnight pay for
the men.
as One, for example, was that the deckhands would not be required to do
painting work on Saturdaysand Sundays. Butler said it was agreed in 1968,
but he "slipped" and did not put it in the 1969 contract. Credence is given
Butler stated, without.. corroboration, that he had put
copies of the contract on board.-every.,-boat; ,but Rosser,
Camus, and Vogt -testified ,they had never- seen the
contract. Purportedly, Butler negotiated .several oral
agreements with Slatten.48,
Butler and Slatten were the chief negotiators in the
contract talks.48 -'Although the contract- provides for a
written notice of a desire' to amend or terminate , Butler
simply asked Slatten when he was available and _Slatten
said to -give,him a ' few' days and he ,would make it his
business to talk to them. There were ,ostensibly,,four
bargaining sessions,- in September 1968, October, January
or February,,and March. Nothing passed between the
parties in writing by way of requests ,, for meetings,
proposals, counterproposals, or data.-,,No minutes,, were
provided in, evidence, although.Butler said they were kept.
Slatten's position until the final meetingwas to maintain
the same hourly rate in, effect in the , -previous 2-year
contract, which was the Federal minimum wage rate 'of
$1.60. Just before that scheduled consent election involving
GMWU, at- Butler's invitation , Slatten came down, stayed
at the union.meeting, and then made his talk to the men
after the meeting 50 Slatten told them that the best he could
do was a raise of 6.7 cents an hour, which,was apparently
accepted without further discussion at the meeting. While
the new contract was. signed -April 1,, 1969; there was no
provision for, retroactivityfor=the 6-month period following
expiration of -the old contract on September 20, 1968.
Butler testified he was pleased, that GMWU had 'asked for
10 cents, really ,expecting only'5 cents, and so they got a
little' more th`^an they, wanted. In these negotiations
purportedly extending from September to : ,prfl,the only
changes from theeprevious contract,consisted of the 6.7-
cent raise and a clause that an employee would be paid
until 6 a.m. if he,had -to, work past -midnight51 The
successive contracts are otherwise ; rather simple instru-
ments, with practically no fringe benefits, no=seniority or
grievance provisions, and requires compulsory arbitration
of "all disputes."
Whatever Respondent's purpose in obtaining the
consent election before the Board in March 1969, followed
by certification of GMWU, it does not 'especiallylend
respectability to,GMWU.,The Board'does not undertake
to determine the, legality, of the union party to a consent
election nor is there any kind of bar to a subsequent
only to those matters contained in the written agreement.
49 His attorney was out of town , said Butler. There was no testimony on
the subject of the negotiations by any other GMWU officers or appointed
delegates on the bargaining committee , if such a committee was actually
convened . At all the sessions, it appears that Slatten was alone for
Respondent.
5, All, bargaining sessions were held , on Sunday at, the "union hall," a
nearby residence of "quite a , few" ,employees It is not clear whether these
were the same Sundays on which the regular union meetings` were
scheduled.
51, DatedJanuary, 2.7, 1969, GMWU sent a-letter to Respondent which
suggests that agreement on the^contract wax reached early and with,relative
ease. The letter encloses a copy of the contract,,as ultimately executed on
April 1 , 1969, and inquires whether "it is in proper form, in order that it may,
be formally executed."
BISSO TOWBOAT COMPANY
complaint involving the certified Union that it is unlawful-
ly supported or dominated by the Employer 52
Diagnosirng ,GMWU's viability as a statutory representa-
tive, I would, have to say that it is quite feeble and in
extremis
4. Concluding findings
As supervisors who are not, within the GMWU bargain-
ing unit, Butler and Thomas vitally participated in union
affairs by holding high union office for many successive
terms, voting in union elections, and conducting bargain-
ing negotiations with their, own, employer, the Respondent.
Particular note _,should be taken of the • major degree of
control by. Butler over-GMWU while at -the same time he
exercised, -at least , in the eyes of the the employees,
substantial supervisory and managerial ,powers.. Such
conduct alone constitutes flagrantly, unlawful interference
by Respondent with the administration of a labor
organization.53
The question remaining is whether, on the totality of the
record, Respondent's interference with GMWU is so
extensive as to require a finding of domination and a
consequent order for the disestablishment of GMWU.54 In
my opinion, Section 8(a)(2) domination is fully warranted
in view of the following considerations: Supervisors
virtually running GMWU and Respondent effectively
sitting on both sides of the bargaining table; the lack of
real independence or viability in GMWU; the absence for
some years of an operative constitution and bylaws;
general weakness of its internal structure; the perpetuation
of its high officers, i.e., Butler and Thomas; the absence of
effective bargaining results in the employees' interests over
long periods; the contractual arrangement and practice for
preferential hiring of GMWU; the unauthorized and illegal
practices and provisions concerning checkoff from employ-
ees' wages for the benefit of GMWU; the successive union
shop contracts, tending to insure GMWU's continuation as
representative; in the context of GMWU's lack of
independent strength, the compulsory arbitration clause
and foreswearing of the right to strike; the extensive unfair
labor practices of Respondent, showing clear animus
against legitimate organization, such as MEBA. In view of
all these factors collectively, I cannot perceive that the
effect of Respondent's influence and control can be fully
removed or that GMU can justify its existence as the free
choice and bona fide representative of employees within the
intendment of the statute.55
52 E.g ., Pacific Plastic & Mfg. Co., Inc., 68 NLRB 52.
59 See, e.g., Banner Yarn Dyeing Corporation, 139 NLRB 1018, 1024;
Bassick Co., 127 NLRB 1552; Nassau and Suffolk Contractors' Association,
118 NLRB 174, The Powers Regulator Company, 149 NLRB 1185, enf'd 355
F.2d 506 (C.A 7).
54 No single test of domination is prerequisite, as the question varies with
the circumstances of each case. Thus, emphasis may be placed, for example,
on the subjective state of mind of the employees (N.L.R.B. v. Sharples
Chemicals, Inc., 209 F.2d 645 (C.A.6)) or the employer's gross insensitivity to
the rights of his employees and to the requirement of neutrality ( Double-A-
Products Co„ 134 NLRB 222). It need not be demonstrated that the Union
is completely impotent and it is no defense that the union displayed some
897
III. THE EFFECT OF, THE UNFAIR LABOR - PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II;
above, occurring in connectidn with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend - to lead to
labor disputes burdening and obstructing bommerce' `and
the free,flow`of commerce,
IV. THE REMEDY
Having-found that Respondent engaged in certain unfair
labor practices, I-shall recommend that itceaseand-desist
therefrom and take, certain affirmative action des giaed to.,
effectuate the policies-of the Act. =A broad cease anddesist
order is recommended because Respondent's unfair labor
practices - strike at the very-, roots of employees' rights,
safeguardedby the Act 5s , -
It has been found that Respondent substantially assisted,
supported, and dominated GMWU in violation of Section
8(a)(2) of the Act. It will therefore be recommended that
Respondent withdraw recognition from GMWU and
completely disestablish it as the representative of any of its
employees for the purpose of collective bargaining con-
cerning wages, hours, and conditions of employment. It
will also be recommended that Respondent cease giving
effect to its April 1, 1969, contract with GMWU. However,
this recommendation should not be construed to require
that Respondent vary any of the substantive terms,
conditions, and benefits for employees currently in effect.
It has also been found that, without statutory sanction or
proper employee authorization, Respondent unlawfully
deducted monies from the wages of employees and
remitted the same to GMWU. It will therefore be
recommended that Respondent restore to its present and
former employees any fees, dues, fines, or other payments
to GMWU which were unlawfully deducted from their
pay. The reimbursement liability is delimited by Section
10(b) and thus covers the period beginning on and after
August 19, 1969.57 Additionally, the amounts of reimburse-
ment should carry interest at the rate of 6 percent per
annum 58
As to the representation proceeding, Case l5-RC-4303,
it has been found that Respondent interfered with the
results of the election conducted on April 15, 1970.
Accordingly, it will be recommended that the election be
set aside, and that the representation case be severed from
the complaint cases and remanded to the Regional
Director for disposition.
It will be further recommended that the Board revoke
independence or that the employer has acted in good faith (e.g., NLR.B. v.
Link-Belt Co., 311 U.S. 584 ; international Ladies Garment Workers Union v.
N.L.R.B., 366 U.S. 731).
ss See, e.g., International Association of Machinists, etc. v. N.LR.B.. 311
U.S. 72; N.LR.B. v. Henry Colder Co., 416 F.2d 750 (C.A. 7); Reed Rolled
Thread Die Co., etc., 179 NLRB No. 6; Weff Mfg. Co., 154 NLRB 827,
Supermarket Housewares, Inc., 133 NLRB 1273; Ace Wholesale Electrical
Supply Co, 133 NLRB 480.
s6 St. Joseph Lead Company, etc., 171 NLRB No. 74.
57 E.g., Vepco v. N.L.R.B., 319 U.S. 533.
58 Isis Plumbing & Heating Co., 138 NLRB 716.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the certification of representative issued to GMWU as a
result of the consent election conducted in March 1969 in
Case 15-RM-241.
CONCLUSIONS OF LAW
1. Respondent is engaged in, commerce within the
meaning of Section 2(6) and (7) of the Act.
2. MEBA and GMWU are each labor organizations
within the meaning of Section 2(5) of the Act.
3. By domination, assistance,, support, and interference
with the administration of GMWU, through the active
participation of supervisors in GMWU's internal affairs
and bargaining negotiations with Respondent, through the
contractual provision and practice of checking off for the
benefit of GMWU monies from employees' wageswithout
legal authorization; and -through the contractual-provision
and practice of, extending preference in hiring"to' members
of GMWU, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section-8(a)(2)
of the Act.
4. By the foregoing, and by other independent acts and
conduct interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed in Section 7'of
the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within' the meaning of
Section 2(6) and (7) of the Act. - ' `
6. By discharging Richard L. Camus, Respondent has'
not violated Section 8(a)(3) 'of the Act, as alleged.
7. ' By engaging in certain of the aforesaid unfair labor
practices and other objectionable conduct, Respondent has
interfered, with the results of the representation election
conducted on April 15, 1970.
'[Recommended Order "omitted from publication.]