Edward Transportation Co.

National Labor Relations Board - Board Decisions

Dec 7, 1970

187 N.L.R.B. 3 (N.L.R.B. 1970)

EDWARDS TRANSPORTATION CO. 3
Edwards Transportation Company and Inland Boat-
men's Union of the Seafarers ' International Union
of North America, Atlantic, Gulf, Lakes and Inland
Waters District , AFL-CIO. Case 15-CA-3613
December 7, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On July 8, 1970, Trial Examiner Marion C. Ladwig
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that such allegations be
disinissed. Thereafter, Respondent filed exceptions to
the Trial Examiner's unfair labor practice findings
and a supporting brief, and the General Counsel and
the Charging Party filed briefs in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
As more fully set out by the Trial Examiner,
Respondent operates about 21 tugboats in Louisiana.
Following an organizational campaign, the Charging
Party and Respondent signed a Stipulation for
Certification Upon Consent Election. The election
was held on February 14 and 24, 1969, and the Union
received a majority of the votes. Respondent then
filed objections which are currently pending.
The complaint alleges that preceding the election,
Respondent engaged in, and employed a deckhand,
Frank, to engage in, surveillance of union activity in
violation of Section 8(a)(1) of the Act. The Trial
I The Board has reviewed the affidavit of Leroy Jones and finds without
merit Respondent's contention that the Trial Examiner erred in refusing to
compel the General Counsel to furnish the affidavit to Respondent for use
in cross-examining Jones The affidavit, which was given to a Board agent
in connection with Case 15-RC-4057, does not relate to the subject matter
of Jones ' testimony in this proceeding The Trial Examiner 's ruling is
Examiner concluded that Respondent did employ
Frank to spy on union organizational activity, that
Frank made periodic reports to Respondent's person-
nel manager, Stewart, and that Stewart used this
information to deny union organizers access to
Respondent's boats. The Trial Examiner's conclu-
sions are based on the following facts found by him
and supported by credited evidence: Soon after the
Union began its organizational campaign, Frank
voluntarily went to Stewart and offered to find out
which employees favored the Union and to report the
names to Stewart. Stewart agreed, and, thereafter,
Frank went from boat to boat gathering information
and reporting to Stewart.2 On February 7, 1969,
Stewart drove Frank to a motel. During the ride
Stewart told Frank that the union organizers were
also staying at the same motel. When Frank checked
into the motel he heard a shortwave radio in the next
room and concluded that the organizers were in the
next room monitoring the activity of Respondent's
boats. Frank then telephoned Stewart who told him to
find out which boats the organizers were going to visit.
Later, Respondent's dispatcher, Falls, arrived at the
motel, listened through the wall to the radio, gave
Frank money, and told him to stay at the motel and to
find out where the organizers were going. Falls
assured Frank that he would receive his full salary
plus expenses.
Frank stayed at the motel from February 7 until
February 13, the day before the election . During that
time, Frank became friendly with the union organiz-
ers who believed that Frank was staying at the motel
because of an old injury. Frank accompanied the
organizers throughout the week and made daily
reports of their activities to Stewart either by
telephone or handwritten notes . Prior to Frank's
arrival at the motel the organizers had boarded
Respondent's boats without incident , but beginning
with Frank's arrival the organizers were met by
company personnel who prevented them from visiting
the crews.
Although the Trial Examiner found that Frank was
not an entirely credible witness, particularly with
respect to his activities immediately prior to his arrival
at the motel, he credited Frank's account of the events
described above which occurred when and after
Frank arrived at the motel, based in part on
demeanor. Unlike our dissenting colleague , we find
that the Trial Examiner was not required to discount
everything Frank testified to because he did not
believe all of it. Nothing is more common than to
consistent with Sec 102 118, National Labor Relations Board Rules and
Regulations , Series 8 , as amended, and with Byrne Dairy, Inc., 176 NLRB
No 40
2 This conduct was outside the 6-month limitation period provided for
in Sec 10(b) of the Act and was received only as background to the
violation alleged in the complaint
187 NLRB No. 2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
believe some and not all of what a witness says.
N.L.R.B. v. Universal Camera Corp., 179 F.2d 749
(C.A. 2). The probative force that should be given an
Examiner's report reaches its highest significance
when an issue turns on credibility. Rocky Mountain
Natural Gas Co. v. N.L.R.B., 326 F.2d 949 (C.A. 10).
The Board will not overrule a Trial Examiner's
credibility findings except where the clear preponder-
ance of all the relevant evidence convinces the Board
that the findings are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A.
3). Having carefully reviewed the record, we conclude
that the Trial Examiner's credibility findings are not
contrary to the clear preponderance of all the relevant
evidence. Accordingly, we find no basis for disturbing
those findings. We therefore adopt the Trial Examin-
er's conclusion that Respondent violated Section
8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Edwards Transportation Company,
New Orleans , Louisiana, its officers , agents , succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's recommended Order.
CHAIRMAN M ILLER , dissenting:
I am unable to agree that there is substantial
credible evidence in the record to support the
findings, which is essentially based on the testimony
of deckhand Frank, that Respondent employed
Frank to engage in surveillance of union activities.
From the outset the Trial Examiner found that
Frank's testimony was contradicted by the documen-
tary evidence. Thus, according to the payroll records,
Frank did not serve on the particular boats on the
particular days to which he testified, nor did he call
Stewart from his home at the time he said he did.
Relying in part on Frank's demeanor, the Trial
Examiner characterized Frank's testimony as to these
and other events as "suspect ," and "incorrect." In
addition, the Trial Examiner found that Frank
"appeared to be testifying under considerable emo-
tional stress"; "was not a forthright witness"; con-
cealed matters on direct examination ; and "was
probably endeavoring to conceal what actually
happened." Likewise, I regard as significant that
Frank is completely discredited by the Trial Examiner
with respect to two other allegations in the complaint,
and those findings were not excepted to.
In these circumstances, Frank's unsupported testi-
mony (which the Trial Examiner called not entirely
trustworthy, even with regard to the crucial events
herein) alone is insufficient to warrant a finding that
the General Counsel has sustained his burden of
proof. The Trial Examiner seems to have found that,
though the General Counsel's witness was dishonest,
he was less dishonest than Respondent's witness. To
me, in the determination of litigated facts, the
testimony of one who has been found so unreliable
cannot provide that preponderance of the evidence
which the statute requires.
Therefore, I would dismiss the complaint in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner : This case was tried
at New Orleans , Louisiana , on May 19-20, 1970, pursuant
to a charge filed on August 4, 1969 ,1 by Inland Boatmen's
Union of the Seafarers ' International Union of North
America , Atlanta , Gulf, Lakes and Inland Waters District,
AFL-CIO, herein called the Union , and pursuant to a
complaint issued on April 10, 1970. The primary issues are
whether the Respondent , Edwards Transportation Compa-
ny, herein called the Company , (a) employed a deckhand to
act as a company spy at a motel where the Union had
organizing headquarters , (b) made threats of discharge,
violence , and loss of benefits , and (c) created the
impression of union surveillance, in violation of Section
8(a)(1) of the National Labor Relations Act, as amended.
Upon the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel , the Company, and
the Union , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company is engaged in the business of marine
towing at New Orleans and other places in Louisiana,
where it annually receives materials valued in excess of
$50,000 directly from outside the State . The Company
admits , and I find, that it is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company operates a fleet of about 21 tugboats in
Louisiana . The Union began organizing the nonsupervisory
personnel on the tugboats , and on December 11, 1968, filed
a petition for an election . On January 15, the Company and
the Union signed a stipulated consent-election agreement.
The election was held on February 14 and 24, and the
' All dates, unless otherwise indicated , are in 1969
EDWARDS TRANSPORTATION CO.
Union received a majority of the votes. On March 4 the
Company filed timely objections , which are still pending.
Inasmuch as the Union 's charge herein was not filed and
served until August 4, none of the Company's conduct
before February 4 is alleged to have violated the Act.
(Three allegations in the complaint , that Personnel
Manager Billy Stewart unlawfully interrogated , and made
threats to, an employee on February 7, were withdrawn at
the trial when the company records revealed that the
alleged conduct , even if proved , would have occurred
before February 4.)
However , as background , the General Counsel did
introduce testimony by another employee of asserted
company conduct occurring before February 4, in support
of the contention that later , during the week preceding the
February 14 balloting, this employee , deckhand Louis A.
Frank , was "a paid spy for the Company." As held in Local
Lodge No. 1424, International Association of Machinists
[Bryan Mfg. Co.] v. N. L R. B., 362 U.S. 411, 416-417 (1960),
such "earlier events may be utilized to shed light on the true
character of matters occurring within the [Sec. 10(b) 6-
month] limitations period."
Former employee Frank testified that in the latter part of
December 1968, he voluntarily went to Personnel Manager
Stewart and offered to go out and find some information
about the Union. (Frank testified that he wanted a
promotion from deckhand , paid $15 .50 a day, to wheelman,
paid $27 a day.) Steward indicated that he thought Frank's
idea was a good one and stated (in Frank's words), "Go
find out who all was for the Union, and if they done
something wrong on the boat , he was going to let them go."
Thereafter , Frank went from one boat to another, "went
along with" the crew "like I was for the Union," and "the
ones that was for it , I would write down on a piece of paper,
and I would give that information back to Billy Stewart,"
until about February 3. (The evidence shows that he
worked on three tugboats in the latter part of January and
early February, but does not disclose where he was assigned
in December and early January.)
Personnel Manager Stewart , on the other hand , testified
that he never talked to Frank about the Union before
February 7. Frank' s and Stewart's credibility will be
discussed hereafter.
It is not disputed that during his employment with the
Company, he received two injuries: one to his nose on
Thanksgiving Day 1967 and one to his eye in November
"the following year," 1968.
B. Allegation of Company Spy
1. Going to motel and being paid
Deckhand Frank and Personnel Manager Stewart both
testified that on or about Friday , February 7, Stewart drove
Frank to the K 'Teri Motel (in Chalmette, Louisiana) where
they knew union representatives were staying, and that
Frank thereafter reported to Stewart information about the
Union's activities . However , neither Frank nor Stewart
gave a satisfactory account of the circumstances.
a. General Counsel's version
5
Frank, testifying for the General Counsel , gave incorrect
testimony that he had been on leave , rather having gone
from a boat to the motel . He testified that he was on the
tugboat Keith Sterling for a few days, that he switched to
the D'Artagnan, and that on leaving the D'Artagnan, he
contacted Stewart in the Company's Chalmette office for a
loan, and then went home (about 200 miles away). He
testified that he was not sure of the dates, but he believed
thathe left the D'Artagnan about February 3, and that about
February 6 he telephoned Stewart about returning to work.
The payroll records show that he had been on the Keith
Sterling, and that on January 23 he left that tugboat and
boarded the D'Artagnan, which he left at Chalmette a day
later , on January 24. Therefore, it would appear that if
Frank did go home after leaving the D 'Artagnan, he did so
on January 24 (not February 3). More important , however,
the payroll records show that if he thereafter placed a
telephone call from his home to Stewart to get permission to
return to work, this happened in late January (not February
6). The records show that he returned to work on January
30, aboard the tugboat G. C. Linsmier, and that he left that
boat at 2:30 p.m., February 6. Therefore, according to the
company records, Frank could not have been at home on
February 6.
Frank nevertheless testified that when he called from
home about February 6, Personnel Manager Stewart said
he could return to work. Then when he arrived at Stewart's
office about February 7, Stewart advised him that the boat
would not be in until the next day. According to Frank,
Stewart gave him a loan for 1 day 's rent, gave him a ride to
the motel , and on the way "told me to be careful and keep
my eyes and ears open , that the SIU men from the union
hall were there, and to report if anything might be helpful."
When Frank got to his room , he found that he was in a
room next to where the Union had its shortwave radio,
monitoring the radio conversations between the Company's
tugboats . He telephoned Stewart , who told him to keep his
ears open , that he might be able to determine which boats
the union men would be visiting . Thereafter , Dispatcher
Joe Falls arrived from Stewart's office, listened to the
Union 's monitor for a while , and told Frank that he
"should stay over for another few days anyhow." Falls told
him that he would be paid his full salary while staying in the
motel , plus expenses, and advanced him more than enough
money in cash to pay for a week 's rent. Later Frank talked
again to Stewart, who "said it would be very helpful" if
Frank could get all the information , and that "I would be
on the payroll." Frank signed a "slip" (or receipt) for each
of the advances that week.
On direct examination , Frank gave no information about
being instructed by Personnel Manager Stewart to use
Frank's 1967 nose injury as an excuse for being at the
motel . According to Frank, he went to the motel to wait a
day for the arrival of a boat ; whereas the documentary
evidence shows that he had been on a boat since January
30, and that he left the boat at 2:30 p.m. the day before,
February 6.
On cross-examination, when he appeared to be testifying
under considerable emotional stress, he gave information
which at least implied that spying was his purpose for going
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the motel in the first place. Upon being asked if he ever
told anybody that he moved into the K'Ten Motel directly
from off a boat, he testified that he had-that he told one of
the union officials in the motel, "just like Billy [Stewart]
told me to tell them . . . that I had got hurt or got inured"
On redirect examination , he testified further that when he
checked into the motel, he told them "I was hurt, that I was
going to the doctor the next day." (He did visit a doctor, but
that was in Houston-about 365 miles away-10 days
later .) Frank then volunteered that the Company "didn't
want them to know that I was set up in there for spying on
them". On recross-examination, Frank was asked whether
he testified that "going to the motel" was more or less his
idea and whether he volunteered to do it. He responded,
"Well, Mr. Billy Stewart didn't want me to say anything
about it or get him in trouble either. I was thinking about
my job,just like everybody else was."
For some undisclosed reason, Frank concealed other
matters as well when testifying on direct examination. For
example, he testified on direct about engaging in union
activity surveillance for the Company, beginning in
December. He gave no hint that he had volunteered to do
this until he was asked by company counsel on cross-
examination , "Louis, didn't you initially go to Billy Stewart
and volunteer to go out and find some information about
the Union." Frank then answered, "At first I did, yes. He
thought it was a pretty good idea." (I note that even though
the company counsel asked this question about Frank
initially volunteering, Stewart later denied that he had ever
talked to Frank about the Union until they rode together to
the motel on February 7. 1 discredit Stewart's denial.)
Frank's testimony is also suspect because he indicated that
he had given incorrect information a year earlier, when he
gave a prehearing affidavit to a Board agent in support of
the Company's election objections. He testified that when
he gave that March 11 affidavit, he was frightened and
worried about his job, and was "doing what Billy Stewart
wanted me to do." In determining his credibility, I have
also considered his testimony that after he gave the
affidavit, he lost friends and was called a "two-timer"; that
when the Company "didn't give me the job that they had
promised me," he reported his surveillance activity to the
union officials who helped him get a wheelmanjob, which
he did not keep because he could not get along with the
captain; that he was currently unemployed; and that when
he was subpenaed by the General Counsel, he spoke to both
Personnel Manager Stewart and the Union before testify-
ing.
Having considered all the foregoing, and having observed
his demeanor on the stand, I have concluded that Frank
was not an entirely forthright witness, and find that he was
probably endeavoring to conceal what actually happened
when he testified that he originally went to the motel to wait
a day for a boat.
A question remains whether or not Frank's testimony
should be credited to the extent that he testified that he
stayed at the K'Ten Motel about a week before the
February 14 election as a paid spy for the Company, and
that Personnel Manager Stewart instructed him to use his
1967 nose injury as an excuse for being there.
b. Company's version
General Manager Stewart, while correctly testifying that
deckhand Frank left the boat on February 6, gave a most
dubious account of how Frank stayed at the motel without
any money being advanced to him, and how Stewart
showed no interest in Frank's surveillance of the Union's
activities.
Stewart testified that Frank called on February 6, from
the G. C. Linsmier, said that his nose was bothering him,
and got approval to leave the boat. The next morning,
February 7, Frank was "just middling around more or less
in the office and you know, he told me, the splinters were in
his nose and bothering him, and all I said, Louis, you should
go see a doctor." (Emphasis supplied.) Frank asked if he
could hitch a ride with Stewart, who was going to the post
office. Stewart testified, "I said, sure, you can. So I dropped
Louis off in front of the K'Teri Motel." Stewart then added,
"I don't remember discussions from the office to the motel
that was of any significance or ordinarily I would
remember it."
Q. Okay, did he say he was staying at the K'Teri?
A. Yes, he has stayed at the K'Teri Motel.
Q. And did you tell him that the union people were
staying in there?
A. I mentioned to him, I said, "Now, Louis, the men
from the union are staying here also. "
Q•
* s ► s s
Now, when is the next time that you heard from
Louis about the Union?
A. Louis called me . . . around 8:30 or 9 o'clock at
my home . . . and he says, "I am in the K'Teri
Motel, and I am right next door to the union
people." I said, "Well, Louis, I mean, well, so
what?" He said, "well, I can hear a radio, a boat
radio. I can hear boats talking." I said, "Well,
what are you going to do, Louis." He said "I am
going to stick around and see what is going on." I
said, "Well, okay, Louis, I appreciate your calling
but there is nothing I can do." So that was our
conversation.
Q. Was anything said about a transmitter or a
receiver?
A. He says "I hear boats talking so apparently they
got a transmitter in there, a receiver in there." I
said, "Well, they can have a receiver ... .
Anyone can have a monitoring device. [Emphasis
supplied.]
Stewart denied giving any money to Frank, or giving
Dispatcher Falls money to give to him. Stewart testified
that he keeps company money for expense purposes, but
that Falls does not and that Falls has no authority to give
out money. (Falls did not testify.) Stewart denied telling
Frank that he would be paid his wages . Thus, according to
Stewart's testimony, Stewart merely mentioned to Frank
that he should see a doctor (without making any
appointment or offering him any money to live on while
away from work); Frank asked for a ride to the motel, and
Stewart casually mentioned that union representatives were
staying there; Frank himself decided to "stick around and
EDWARDS TRANSPORTATION CO.
see what is going on" after the union radio was discovered,
even though (Stewart claims) they had never discussed the
Union before, and despite Stewart's purported advice that
Frank should see a doctor; and Stewart indicated no
interest in what the Union was doing, and gave Frank no
advance either to pay the rent or to live on. In his
testimony, Stewart mentioned nothing about telephoning
the Houston office, reporting Frank's need for money, or
arranging to have Frank paid his wages as advance
maintenance.
Frank's need for living expenses was revealed by the next
company' witness, General Manager John E. Redding, from
the Company's Houston office. He testified that Stewart
telephoned him on the evening of February 6 or the
morning of February 7 and reported that Frank had to
leave the boat because of the nose injury and that "Louis
would need some money while he was off the boat for
advance maintenance." Redding testified that he instructed
the bookkeeper "to pay Louis on this boat as advance
maintenance," that the check was issued "probably" on
February 6 or 7, and "was sent to him immediately." This
testimony would explain how Frank was able to stay for a
week at the motel, and would tend to confirm Stewart's
testimony that the Chalmette office did not advance Frank
any money that week (contrary to Frank's testimony). But
the documentary evidence contradicted Reddmg's testimo-
ny. The payroll records show that Frank's paycheck was
not written and sent to him on February 6 or 7. It was
written on February 17, when it was given to Frank
personally in Houston-after Frank had already checked
out of the motel and after the February 14 balloting-when
Frank was in Houston for a physical examination for his
1967 nose injury. (Although arguing in its brief that "There
was no other money paid to Frank," the Company
conceded that the signing of a "slip" for each advance-as
contended by Frank-"would have been in accordance
with the company practice on wage advances, and any cash
would have been deducted from his pay.") When shown the
payroll records, Redding offered no explanation how
Frank's reported need for money was met in the meantime.
Redding testified, "It was a question of getting it to him
right then . . . we knew he was off the boat, and knew he
needed the money, I gave them instructions to get him the
money as quickly as they could . . . the check was not
made until the 17th and I don't know why it was not made,
because normally we get it out quicker." Evidently Redding
(who impressed me as an honest witness) did not know or
recall that the February 17 paycheck was given to Frank m
person, or what arrangements had been made to advance
Frank money in the meantime. I credit Frank's testimony
about being told he would be on the payroll and about
receiving several advances in cash during the week before
the election. (The records show that he was paid his full
wages , at $15.50 a day, on the G. C. Linsmier from January
30 through February 12, wages at the higher rate of $18.50 a
day for February 13 through 15, and wages at $15.50 a day
for Sunday and Monday, February 16 and 17, when he was
in Houston for the physical examination. Redding testified
that the wages could be collected from the insurance
company as advance maintenance.)
Although General Manager Reddmg impressed me as a
7
credible witness, Personnel Manager Stewart did not.
Stewart appeared nervous and tense while testifying, and at
times would take a deep breath or a long pause before
answering, as if he were attempting to fabricate testimony
favorable to the Company rather than reveal what actually
happened. He not only gave some dubious testimony, as
indicated above, but he also gave conflicting testimony as
shown hereafter.
c. Conclusions
Both the Company and the General Counsel had only
one witness to testify about the circumstances of Personnel
Manager Stewart taking deckhand Frank to the motel
where the union organizers were staying, and Frank's
decision to engage in surveillance there . Neither of the two
witnesses proved to be entirely trustworthy.
Even if Stewart 's testimony were believed that Frank left
the G. C Linsmier because his nose (injured over a year
earlier) was bothering him, the evidence shows that the
Company agreed to pay Frank his full wages while he was
engaging in surveillance of the Union-rather than
proceeding to see a doctor for the physical examination.
However, after weighing all the evidence , I consider it more
likely that neither Stewart nor Frank gave a factual account
of how Frank happened to go to the motel in the first place.
As previously indicated, Stewart's denial that he had ever
discussed the Union with Frank is discredited. Although
Frank is found not to be a forthright witness, he appeared
to be more trustworthy than Stewart. Where there is only a
choice between the word of one or the other, without
credible evidence or circumstances supporting Stewart's
testimony, I credit Frank's testimony as bemg more likely
to be reliable. Accordingly I find, as testified by Frank, that
when Frank volunteered in December 1968, to engage in
union activity surveillance, Stewart indicated that this
would be a good idea and asked Frank to find out who were
for the Union on the various boats where he worked. I also
credit Frank's testimony that after he discovered a union
radio in the room next to his in the motel, both Stewart and
Dispatcher Falls suggested to him that he engage in the
surveillance, while assuring him that he would be paid full
wages while doing so . I further credit Frank's testimony
that Stewart told him to use the prior nose injury as an
excuse to conceal his real purpose for staying in the motel
during the week before the election.
I therefore find, as alleged in the complaint, that
deckhand Frank was the Company's agent during the week
preceding the February 14 balloting when Frank was
engaged in the alleged union activity surveillance.
C. Alleged Spying on Union Representatives
As deckhand Frank credibly testified, Union Organizer
Tom Walsh came to Frank's room on the first or second
day of Frank's stay in the motel, and invited him to Walsh's
room for coffee. Before going to Walsh's room, Frank
telephoned Personnel Manager Stewart and reported the
invitation. Stewart told Frank to get all the information he
could: what boats the organizers were visiting, which
employees had union authorization cards to be signed, and
which employees were signing them.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Frank spent much time with the union
organizers , pretending to be interested in helping them
organize . As he obtained information (who were coming to
the motel to visit the union agents, who were signing pledge
cards, when and where the organizers planned to visit the
tugboats, etc.), he reported it to Stewart daily, over the
telephone , in person at the office, and in written notes.
Stewart admitted that Frank reported to him that week
about the union activity, both by telephone and when
Frank "would drop by the office just about every day."
Stewart also admitted receiving the written notes from
Frank during this time . (Stewart claimed that he did not
know what happened to the notes.) When asked if Frank
ever told him "where the union organizers were going,"
Stewart first denied it, stating "No. He may have said where
they had been, but he never came out and said they are
going here or there, right like that." (Emphasis supplied.)
Then, in response to other questions, he changed his
testimony. He testified that Frank would call and report
that "they said they were going this way or that way and
that was about it." Later on cross-examination, he testified
that Frank quite often "had his docks mixed up. . .Frank
may tell me that, well, they are going to Good Hope and the
boat actually might be going to Norco or may stop at
another dock." (Still later, Stewart testified that he did not
recall whether Frank kept in contact with him by telephone
that week-despite his earlier testimony about receiving
telephone calls from Frank.)
Thus, Personnel Manager Stewart admittedly received
reports from Frank about the Union's organizing activities
after, as has been found, he agreed to pay Frank his full
wages while staying in the motel to obtain the information.
I therefore find, as alleged in the complaint, that during the
week preceding the February 14 balloting, the Company
"by its agent, Louis A. Frank," engaged in surveillance and
reporting of the union activities of its employees, and
"engaged in surveillance of the union activities of its
employees by spying upon certain union agents at the
K'Teri Motel in Chalmette, Louisiana, and reporting to
Respondent which of its boats said union agents were
visiting," in violation of Section 8(a)(1) of the Act. Even if
credited, Stewart's testimony that he did not use the
information in any way would not be a defense to the
unlawful spying. However, the evidence indicates that
Stewart did utilize the information about where the union
agents were going to meet the boats, by dispatching
company personnel to the docks to prevent the agents from
visiting the tugboat crews. (I discredit Stewart's testimony,
at one point, that his only source of information where the
organizers were going was the boat captain or wheelman,
that "at times they would call and say, well, the men are on
their way down here. I see them on the levee or something
like that nature." He elsewhere admitted that Frank
reported such information to him.)
D. Other Alleged Section 8(a)(1) Conduct
1. Creating impression of surveillance
On direct examination , deckhand Frank testified that on
February 14, as he and three other employees were being
driven to the polls to vote, General Manager Redding and
Personnel Manager Stewart "stopped us before we got to
the polls and told us that [prounion employee] Broussard
was soliciting or talking for the Union before we had a
chance to vote , and for us to stay away from him." He
testified that Redding and Stewart were riding in a green
Ford or Mercury. On cross-examination , Frank testified
that this happened somewhere on the highway, but that he
did not remember how the company officials stopped them,
which way the green car was facing , or "whether we was
parked on the shoulder or whether we were side to side." It
was raining hard.
Stewart denied that this happened . He testified that after
he and Redding met with union representatives to help set
up the voting arrangements , they got in their car (a blue
Chevrolet), backed up about 50 to 75 yards, and waited
there until after the balloting was over . The union
representatives were parked nearby . This testimony is
corroborated by Redding (who impressed me as an honest
witness). None of the union representatives was called to
deny that they were parked nearby the company car, or that
the company officials remained at that location throughout
the balloting . I discredit Frank 's testimony about the
matter , and discredit Stewart 's denial inasmuch as it is
corroborated by Redding and not disputed by the union
representatives. Accordingly, I find without merit the
allegations in the complaint that the Company created the
impression of surveillance on February 14.
2. Alleged threats
Following the election , deckhand Frank worked for the
Company from February 24 to March 10, March 20 to 25,
and May 6 to 17 . He testified that sometime after he
returned to work, he went to Personnel Manager Stewart's
office . The telephone rang . Frank answered it and called
Stewart because it was a collect call. Stewart returned to the
room , accepted the call , and said that Port Engineer L. Z.
Walker wanted to speak to Frank. (Frank had stated in a
pretrial affidavit that the telephone rang and Stewart
answered it.) According to Frank , Walker "asked me if I
knew where Broussard lived . . . or where he was working"
and "told me that he would get him in a bar and get him
drunk and take him out back and get a bunch of boys to
beat him up and get the truth out of him."
Port Engineer Walker , whose office is in New Iberia,
Louisiana , denied placing a collect call , testifying that he
would have no occasion to do so because he daily placed
calls to the Chalmette office by direct dialing, and because
he has a company telephone in his home and has a
company credit card for placing calls. He denied having the
telephone conversation with Frank , testifying that he is an
elderman in the Mormon Church , is strictly against
consuming alcoholic beverages , and does not frequent bars.
I credit his denial.
Frank further testified that on the same occasion, while
he was in Stewart's office , Stewart stated "he'd find out
sooner or later who signed" and "if they do something
wrong on the boat, that he'd just go ahead and fire
them"-that all the Union "wanted to do was to take our
money." Not only is this much the same threat as Frank
testified was made by Stewart in December 1968 (before
the election), but it appears that such a threat (concerning
EDWARDS TRANSPORTATION CO. 9
the signing of cards) would not as likely be made after the
election . I also note that the evidence clearly shows that
Frank had much difficulty ir. remembering dates. I
therefore find that the General Counsel has failed to prove
that this threat was made on or after February 4, within the
6-month limitation period.
Frank also testified that "I'd say around between March
and May," when he was on the G. C. Linsmier, Personnel
Manager Stewart came on board and said "if we wanted the
Union, go get the Union, but there won't be any more
loaning of money, and the ones that don't show up after ten
days off to go back to work, we would let them go, just have
to find another job." Frank testified that the G. C. Linsmier
was working around Venice, Louisiana, at the time, that the
boat runs "on up to Baton Rouge" and other places, and
that it was tied up on the day Stewart came on board. I
credit Frank's testimony that the threats were made, and
discredit Stewart's unsupported denial. However the
General Counsel has again failed to prove that this conduct
occurred within the 6-month limitation period. The
evidence shows that Frank was on the G. C. Linsmier from
January 30 until he left the boat at Venice on February 6.
The General Counsel has failed to prove that Stewart
boarded the boat on or after February 4. In his brief, the
General Counsel contends that Frank may have been
confused about the name of the boat, and that a finding
should be made that the threats were made sometime
between February 24 and May 15. However, to the
contrary, I find that from the content of the threats
(including the statement, "if we wanted the Union, go get
the Union"), they were made before the election, not
afterwards.
Accordingly, I find that the alleged threat by Walker was
not made, and that the threats made by Stewart were not
proved to have been made on or after February 4, within
the 6-month limitation period.
CONCLUSIONS OF LAW
1. By employing a deckhand to act as a company spy,
by engaging in surveillance of the Union's organizing
headquarters through the conduct of the paid agent, and by
also engaging in surveillance of its employees' union
activities through this agent, the Company interfered with
the employees' Section 7 rights and thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. The General Counsel has failed to prove that the
Company's threats of discharge and loss of benefits
occurred within the 6-month limitation period.
3. The Company did not, after the election, threaten
violence or create the impression of surveillance of its
employees' union activities.
THE REMEDY
The Respondent will be ordered to cease and desist from
the unfair labor practices found and from like or related
invasions of the employees' Section 7 rights, and to post
appropriate notices.
Accordingly, on the basis of the foregoing findings and
conclusions , and on the entire record , I issue pursuant to
Section 10(c) of the Act the following recommended:
ORDER
Respondent, Edwards Transportation Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Employing any person to engage in surveillance at a
union's organizing headquarters.
(b) Engaging in surveillance of its employees' union
activities.
(c) In any like or related manner interfering with the
rights of employees guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post on each of its boats and at its Chalmette,
Louisiana, office copies of the attached notice marked
"Appendix."2 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by an authorized representative of the Respondent,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director of Region 15, in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.3
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
2 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order and
all objections thereto shall be deemed waived for all purposes in the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Oider 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 "
3 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 15, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT pay any employee to engage as a
company spy at the organizing headquarters of Inland
Boatmen's Union of the Seafarers' International Union
of North America, Atlantic, Gulf, Lakes and Inland
Waters District, AFL-CIO, or any other union.
WE WILL NOT engage in surveillance of our
employees' union activities.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unlawfully interfere with our employ- This is an official notice and must not be defaced by
ees' union activities . anyone
This notice must remain posted for 60 consecutive days
EDWARDS TRANSPORTATION from the date of posting and must not be altered, defaced,
COMPANY or covered by any other material.
(Employer) Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, T6024
Dated By Federal Building (Loyola), 701 Loyola Avenue, New
(Representative) (Title) Orleans, Louisiana 70113, Telephone 504-527-6361.