G & H Towing Co.

National Labor Relations Board - Board Decisions

Nov 30, 1967

168 N.L.R.B. 589 (N.L.R.B. 1967)

G & H TOWING COMPANY 589
G& H Towing Company and General Drivers' Local
Union No . 968, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America
Inland Boatmen 's Union of the Seafarers Interna-
tional Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District , AFL-CIO and
General Drivers ' Local Union No. 968 , affiliated
with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica
G& H Towing Company and General Drivers' Local
Union No. 968 , affiliated with International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner
and Inland Boatmen 's Union of the Seafarers In-
ternational Union of North America , Atlantic,
Gulf, Lakes and Inland Waters District,
AFL-CIO, Intervenor . Cases 23-CA-2413,
23-CB-689, and 23-RC-2626
November 30, 1967
DECISION, ORDERS , AND CERTIFICA-
TION OF REPRESENTATIVE
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 19, 1966, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that the Respondent Employer
and the Respondent Union had engaged in and were
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner further found that the
Respondent Employer had not engaged in certain
other unfair labor practices alleged in the complaint.
In addition, the Trial Examiner found that certain
instances of violative conduct by the Respondents
during the critical preelection period did not war-
rant setting aside the election held March 16
through April 8, 1966, and recommended that the
objections to the election be overruled and an ap-
propriate certification be issued. Thereafter, excep-
tions to the Decision and supporting briefs were
filed by the General Counsel and by General
Drivers' Local Union No. 968, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Team-
sters), Charging Party in Cases 23-CA-2413 and
23-CB-689 and Petitioner in Case 23-RC-2626,
and by Inland Boatmen's Union of the Seafarers In-
ternational Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO
(Seafarers), Respondent in Case 23-CB-689 and
Intervenor in Case 23-RC-2626.
Pursuant to the provisions of Section 3(b) of the
Act, 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,2 and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent in-
dicated below.
The facts, set out more fully in the Trial Ex-
aminer's Decision, are briefly these: The latest con-
tract between G & H and the Seafarers, which
covered both supervisors (licensed personnel) and
employees (unlicensed personnel) on tugboats, ex-
pired April 5, 1966. Most of the licensed personnel
tried to break away in January 1966, forming a
separate organization, Masters, Mates, and En-
gineers Towboat Organization (MMETO). Its peti-
tion for an election was dismissed by the Regional
Director February 8 because it was for a unit of su-
pervisors. The Teamsters, who from January had
been organizing among unlicensed personnel, sup-
ported MMETO's attempt to gain an election; the
Seafarers opposed it. On a petition filed February
3 by the Teamsters, a consent election among un-
licensed personnel was held March 16 to 17, with
special voting provisions on April 8 for the crew of
a tug at sea during the regular voting days. Since the
Seafarers contract expired before the close of the
election, extensions (carrying at least up to the time
of the hearing) were negotiated and signed by the
Respondent Employer and the Seafarers. The
Seafarers won the election.
After February 8, most licensed personnel from
MMETO joined Marine Officers' Association
(MOA), a Teamsters affiliate. MOA struck for
recognition on April 7. That day there was a fight
between MOA picketers and a group led by
1 The Trial Examiner inadvertently failed to rule in his Decision on
Respondent Union's motion to dismiss the complaint in Case 23-CB-689
because the complaint covered matters not included in the charge. We
deny the motion . The 8(b)(1)(A) and (2) allegations of both the charge and
the complaint relate to conduct arising from the same campaign by the
Respondent Union to interfere with employees in their choice of a bar-
gaining representative . N.L R B v Kohler Company, 220 F 2d 3, 6
(C.A 7).
2 In his brief to the Board , counsel for Respondent Union made charges
of "forgery," and said the Region was guilty of "collusion with the Charg-
ing Party," that it "abused Board process" and that its conduct in this case
"misuses public money and trust." We reject these accusations , none of
which finds any support in the record , and rebuke counsel for injecting in-
vective into the proceeding
168 NLRB No. 82
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seafarers Patrolman Butts. Pizzitola and Talevich,
employees who favored the Teamsters, refused to
cross the MOA picket line, which remained in ef-
fect until about April 29, and participated in the
picketing. They asked for their jobs back about
May 3, but were told there were no jobs open for
them at the time.
The Teamsters filed charges and amended
charges against the Respondents on June 9, 21, and
22, 1966, and filed objections to the election. A
consolidated complaint was issued on July 21,
charging the Respondent Employer with violations
of Section 8(a)(1), (2), and (3) of the Act and the
Respondent Union with violations of Section
8(b)(1)(A) and (2) of the Act.
1. The Trial Examiner found that the Respond-
ent Employer did not violate Section 8(a)(2) and
(1) by announcing or enforcing a discriminatory no-
solicitation rule of general application. We agree.
He also acknowledged the fact that Pizzitola, who
was working actively for the Teamsters, was kept
off company property for most of the election cam-
paign, but he concluded the General Counsel had
not proved that Pizzitola's exclusion violated the
Act. For the reasons given below, we cannot agree
with this conclusion.
The Trial Examiner found that Galveston Port
Captain Pressler, an official of Respondent Em-
ployer, G & H Towing Company (G&H), expelled
Teamsters adherent and organizer Pizzitola from a
company tug January 26, 1966, saying, "I have got
orders from higher up, that you have been passing
Teamster junk around and you are going to have to
get off company property." He also credited Piz-
zitola's testimony that Tug Captain Robbins told
him 2 days later "I heard that on your time off, they
don't want you on these boats," and that on April
7 another tug captain, Murphy, said to him, "Dago,3
you are going to have to get off the boat, I got or-
ders if you are on this boat on your time off, to
either call the law or if you don't get off or give me
any trouble, but to get you off this boat." The Trial
Examiner nevertheless concluded that G&H in-
hibited Pizzitola from organizing on board its ves-
sels "because of a feared propensity to violence"
rather than a desire to weaken the Teamsters cam-
paign. The record leads us to a different conclusion.
Pizzitola, a G&H employee for many years, was
a key organizer for the Teamsters. He testified that
he often spent off-duty time visiting and playing
cards on other tugs. Within days of joining the
Teamsters cause, he was compelled to leave one of
the Company's tugs for passing out Teamsters
material, and he later received two confirmations of
the prohibition against his visiting company proper-
ty during his time off. Pizzitola's exclusion from
company tugs except when he was on duty himself
is in marked contrast to the frequent visits for or-
ganizational purposes of the Seafarers nonem-
ployee representatives.'
The Trial Examiner states that G&H was
motivated by worry about Pizzitola's propensity for
making trouble when it ordered that he be expelled
from its Galveston tugs on January 26. This ex-
planation of the Respondent's motivation is incon-
sistent with Supervisor Pressler's statement to Piz-
zitola that day that the Company wanted him off its
property because he had been passing out Team-
sters material. Further, the Trial Examiner credited
Pizzitola's testimony about later confirmations
from Captains Robbins and Murphy that G&H was
continuing to bar him from organizing for the Team-
sters on company property. The Trial Examiner
erred in substituting a conjectural motive for
G&H's acts when uncontradicted evidence proved
its antiunion motivation. Moreover, the Respond-
ent Employer was not deterred by any fear of
violence from permitting Seafarers representatives
to board the tugs, even though their organizing ef-
forts were marked by threats and altercations. In
view of the foregoing, we find that Pizzitola's
propensity for violence was utilized by the Re-
spondent Employer as a pretext, and that Pizzitola
was excluded from the tugs because he was orga-
nizing for the Teamsters.
We accordingly find that the Respondent Em-
ployer, by barring key Teamsters organizer Piz-
zitola from its property during almost the entire
election campaign while permitting nonemployee
Seafarers representatives to carry on intensive elec-
tioneering on the tugs, gave assistance to the
Seafarers and thus violated Section 8(a)(2) and (1)
of the Act.
2. We agree with the Trial Examiner that the
Respondent Employer violated Section 8(a)(2) and
(1) of the Act by dealing with a union negotiating
committee that included supervisors.6
3. The Trial Examiner found that Respondent
Employer's extension of its expired contract with
the Seafarers from April 5, 1966, while the voting
was still in progress, and in view of the Teamsters
rival claim,7 violated Section 8(a)(2) and (1). He
found that G&H had interfered with "the em-
Pizzitola's nickname is Dago
' The Seafarers greatly increased the number of visits by its profes-
sional personnel during the campaigning aboard G&H's tugs, and their
visits were largely devoted to such activities as inducing employees and
licensed personnel to sign petitions disavowing pledge cards or authoriza-
tions they may have given previously to the Teamsters.
5 Pizzitola' s actual character and propensities are irrelevant , the issue
is whether G&H acted on the basis of a certain view of Pizzitola's
character or, rather , because of a desire to weaken the Teamsters or-
ganization drive We note the Trial Examiner's observation (at fn. 8 of his
Decision) that Pizzitola withdrew from potentially violent confrontations
during the election campaign
6 The Trial Examiner noted that a clarifications committee was active
and a 1966 negotiating committee was formed within the 10(b) period,
both containing supervisors These facts were alleged in the complaint and
admitted by the Respondent Employer.
' The hearing took place August 30 to September 2, 1966, inclusive.
G & H TOWING COMPANY
ployees' right to freely select their own representa-
tive without coercion or interference from any par-
ty" by "bargaining" with the Respondent Union
while there was a real question concerning
representation. In our view, contrary to the Trial
Examiner, the Respondents engaged in no bargain-
ing, and their actions did not infringe on employees'
rights.
A review of the pertinent facts is useful at this
point. The contract between G&H and the Re-
spondent Union expired April 5; the representation
election for the most part had been held in March,
once was extended to April 8 only so as to include
one crew that was at sea when the rest of the men
voted. G&H and the Seafarers agreed after the
March election to extend the contract through
April. When the Teamsters objections to the elec-
tion blocked certification of the winning Seafarers,
further extensions were made, running at least to
the date of the hearing.
Unlike the situation in Shea Chemical Corpor-
ation,I relied on by the General Counsel, where the
employer and a union with a claimed card majority
negotiated a "complete two-year collective bargain-
ing agreement," the parties here only extended the
termination date of their existing contract from time
to time so as to avoid a lapse in contractual relations
while awaiting resolution of the representation
question. No changes were made in wages or any
other contractual terms during this period. There is
no evidence that the parties engaged in any bargain-
ing, or even introduced preliminary proposals.
Thus, consistent with what we said in Shea, G&H
pursued a neutral course by neither "bargaining col-
lectively with the incumbent or any other union"
nor "refusing to permit the incumbent union to con-
tinue administering its contract ...." We find no
violation in the extensions of G&H's contract with
the Seafarers.
4. We agree with the Trial Examiner's conclu-
sion that the Respondent Employer did not violate
Section 8(a)(3) and (1) by terminating Pizzitola's
and Talevich's employment for refusing to cross the
MOA picket line to report to work, and refusing-to
reemploy them when they applied for work on or
about May 3. We also agree that the Respondent
Union did not violate Section 8(b)(1)(A) and (2) for
its part in the same incidents.
The Trial Examiner found that the refusals of
Pizzitola and Talevich to come to work across the
MOA picket line were not protected. We find it un-
necessary to determine this question, and do not
adopt the Trial Examiner's reasoning- in this
respect. For, assuming without deciding that the
6 121 NLRB 1027
s 121 NLRB at 1029. We do not believe that Swift and Company, 128
NLRB 732, requires a different result . There we held that an employer
violated Sec . 8(a)(2) by agreeing to extend a contract beyond its termina-
tion , later amending it to improve wages and working conditions , and then
signing a new master agreement - all while there was a real question con-
591
conduct was protected, we nevertheless conclude
that Respondent Company did not violate the Act
by refusing to reemploy them. At most, Pizzitola
and Talevich placed themselves in the position of
economic strikers by refusing to come to work
across the MOA picket line, and Respondent was
privileged permanently to replace them in order to
continue its normal operations.10 Here the un-
disputed evidence shows that the Respondent Em-
ployer's tugs operated without interruption and
with a full crew while Pizzitola and Talevich were
out. When Talevich later asked a G&H official
about getting his job back, he was told that he had
been permanently replaced. The record indicates
that Pizzitola was similarly replaced. Accordingly,
we find that even if the conduct of these employees
was protected, Respondent was acting within his
rights by replacing them when they made them-
selves unavailable for work, and that it was under
no obligation to restore to them their former jobs
and seniority positions when they finally signified
their willingness to resume work.
5. We agree with the Trial Examiner's finding
that the Seafarers violated Section 8(b)(1)(A) of the
Act by threatening physical harm and inflicting inju-
ries on supervisors and nonsupervisory employees
of G&H. The incidents in which Seafarers Patrol-
man Lightfoot told Chief Engineer Blanton "talk
like that will get people in trouble" and said to Chief
Engineer Holmes that "if those Teamsters come in
here somebody will get hurt" are both 8(b)(1)(A)
violations, as the Trial Examiner found. We also af-
firm his finding that the Respondent Union, through
its agent, Patrolman Butts, was responsible for the
April 7 picket line violence against striking super-
visors, in violation of Section 8(b)(1)(A). Although
the coercive conduct was directed mainly at
licensed personnel, we find, in agreement with the
Trial Examiner and for the reasons stated in his
Decision, that it had the natural and foreseeable ef-
fect of coercing employees in the exercise of their,
rights and therefore was violative of Section
8(b)(1)(A).
The Trial Examiner found that Lightfoot's state-
ment to employee Talevich, "I will be back down
here later and take care of you," was too ambiguous
to warrant a finding that it was a threat. In assessing
the different versions of this incident given by the
two participants, however, the Trial Examiner re-
jected Lightfoot's claim that the remark was made
in connection with rectification of Talevich's wel-
fare fund problems, finding Lightfoot "evasive." He
credited instead Talevich's testimony that Lightfoot
spoke, shaking his finger in Talevich's face, after he
cerning representation . The short-term extensions in the instant case,
preserving the contractual status quo pending resolution of the representa-
tion matter , are plainly distinguishable.
10 See Redwing Carriers, Inc.,'137 NLRB 1545, The Cooper Ther-
mometer Company, 154 NLRB 502, and cases cited in fn. 3, thereof.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been told of employee dissatisfaction with the
Seafarers. The Trial Examiner's credibility findings
on this point preclude him from relying later in his
Decision on the discussion of Talevich's welfare
complaints to show an ambiguity in Lightfoot's
statement. We accept the finding that Lightfoot
spoke after an angry exchange about abandoning
the Seafarers, and we hold that his statement that he
would "take care" of Talevich because of
Talevich's dissatisfaction with the Seafarers was a
threat and violated Section 8(b)(1)(A).
6. We shall overrule the objections to the elec-
tion, and order the issuance of an election cer-
tificate, as recommended by the Trial Examiner.
We agree with the Trial Examiner's findings that
there was no evidence of a no-solicitation rule of
general application, that some incidents of pressure
by the Seafarers occurred either before the critical
preelection period or at a time when they could
have had little effect on the outcome, and that the
competing unions had sufficient opportunity to
present their arguments to the voters. Although we
have found that G&H unlawfully refused to permit
Pizzitola to solicit for the Teamsters on company
property while he was off duty, and we accordingly
find some merit in the objections based thereon, we
do not believe this single limitation on the Team-
sters campaign prevented the employees from re-
ceiving an adequate presentation of the Teamsters
position and arriving at a true and uncoerced ex-
pression of their own choice. Uncontradicted testi-
mony establishes that many supervisors spoke in
favor of the Teamsters on the tugs, and that Team-
sters material was posted on bulletin boards in the
boats. After Pizzitola was excluded from company
property - he continued to campaign from nearby
dock areas and the like - the Teamsters made no at-
tempt to send in other organizers. We cannot
assume that such organizers would have been
barred by G&H.
We agree with the Trial Examiner that the
Lightfoot threat that "talk like that will get you in
trouble" cannot be considered as a basis for setting
aside the election, since it occurred before the
February 3 filing of the Teamsters petition." i We
find that Lightfoot's threat to Holmes that "some-
body will get hurt" was an isolated occurrence, as
the Trial Examiner concluded, and we further agree
that only limited weight can be given to the April 7
picket line incident, which occurred after most of
the ballots had been cast.' 2
CONCLUSIONS OF LAW
We adopt the Conclusions of Law from the Trial
Examiner's Decision, with the following modifica-
tions:
1. In Conclusion 3, delete the words "extending
its contract with the Respondent Union during the
existence of a real question concerning representa-
tion" and insert the words "discriminatorily limiting
Teamsters organizer Pizzitola's access to its pro-
perty."
2. In Conclusion 6, change "Respondent" to
"Respondents," add a period after the word "Act,"
and omit the remainder of the recommended Con-
clusion.
THE REMEDY
Having found, in agreement with the Trial Ex-
aminer, that Respondents have engaged in certain
unfair labor practices, we will adopt the Trial Ex-
aminer's recommendation that they be ordered to
cease and desist from such practices and post ap-
propriate notices. Since we have found certain addi-
tional unfair labor practices, among them the dis-
criminatory barring of Pizzitola from company pro-
perty during his off-duty hours, we will modify the
Recommended Order by adding a requirement that
G&H cease and desist from such conduct against
Pizzitola or any other employee.
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner directed to the
Respondent Union, and adopts as its Order the
Recommended Order of the Trial Examiner
directed to the Respondent Employer, as modified
below, and hereby orders that the Respondents, In-
land Boatmen's Union of the Seafarers Interna-
tional Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO, and
G & H Towing Company, their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Orders, as herein
modified:
1. Substitute the following for section 1(a) in the
Recommended Order directed to the Respondent
Employer:
"(a) Interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in
11 Goodyear Tire and Rubber Company, 138 NLRB 453. The addi-
tional 8 (b)(1)(A) violation we have found in Lightfoot's threat to "take
care" of Talevich also occurred before the representation petition was
filed , and similarly cannot be considered as a basis for setting aside the
election.
12 This incident might have affected the six votes cast on April 8 -
although no evidence was presented to show that the late voters knew of
it -
G & H TOWING COMPANY 593
Section 7 of the Act , by discriminatorily excluding
George Pizzitola , or any other employee, from its
property on nonworking time."
2. Substitute the following for section 1(b) in the
Recommended Order directed to the Respondent
Employer:
"(b) Interfering with the administration of the
Inland Boatmen's Union of the Seafarers Interna-
tional Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District , AFL-CIO, by
conducting collective -bargaining negotiations with
any committee representing said Union which in-
cludes in its membership any supervisors within the
meaning of Section 2 ( 11) of the Act."
3. Substitute the following for the first indented
paragraph of Appendix B:
WE WILL NOT interfere with , restrain, or
coerce our employees in the exercise of their
rights guaranteed them in Section 7 of the Act,
by discriminatorily excluding George Pizzitola,
or any other employee, from our property on
such employee 's nonworking time.
4. Substitute the following for the second in-
dented paragraph of Appendix B:
WE WILL NOT interfere with the administra-
tion of the Inland Boatmen 's Union of the
Seafarers International Union of North Amer-
ica, Atlantic , Gulf, Lakes and Inland Waters
District , AFL-CIO, by conducting collective-
bargaining negotiations with any committee
representing said Union which , includes in its
membership any supervisors within the mean-
ing of Section 2(11) of the Act.
Cases 23-CA-2413 and 23-CB-689, on charges and
amended charges dated June 9, 21, and 22, 1966, alleges
in substance that Respondent Employer engaged in unfair
labor practices proscribed by Section 8(a)(1), (2), and (3)
of the Act and that Respondent Union engaged in unfair
labor practices within the meaning of 8(b)(1)(A) and (2)
of the Act. Thereafter, consolidated therewith for hear-
ing, report , and recommendations were certain objections
to conduct affecting the results of the election in Case
23-RC-2626. Both Respondents answered, denying the
unfair labor practices alleged . Respondent Union's mo-
tion to intervene in Case 23-CA-2413 was granted prior
to the hearing by the Regional Director.
Upon the entire record in the case and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent Employer at all times material has been a
Texas corporation operating out of the ports of Freeport,
Houston, Corpus Christi, and Galveston, Texas, the
business of harbor , deepsea, and foreign towing. Re-
spondent Employer annually provides services valued in
excess of $50 ,000 to enterprises engaged in interstate or
foreign commerce . Respondent Employer, at all times
material , has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent Union and the Charging Party both
are and have at all times material been labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that the Inland Boat-
men's Union of Seafarers International Union of
North America, Atlantic, Gulf, Lakes and Inland
Waters District, AFL-CIO, has been designated
and selected by a majority of the employees of the
Employer in the appropriate unit as their represent-
ative for the purpose of collective bargaining and
that, pursuant to Section 9(a) of the Act the said
labor organization is the exclusive representative of
all the employees in such unit for purposes of col-
lective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Trial Examiner: This consolidated
proceeding was heard at Houston, Texas, on August 30
thru September 2, 1966 , inclusive , pursuant to due
notice. The consolidated complaint, which was issued on
July 21, 1966, together with an order consolidating
A. Background
For many years , the Respondent Employer has been
engaged in the tugboat business in various ports in the
State of Texas. The Respondent Union has represented
all operating personnel of the Respondent Employer
under a succession of contracts going back at least to the
early 1950's. The contract entered into in April 1963,
which was placed in evidence, provides for recognition of
the Respondent Union as representative of all personnel
on tugs and other vessels owned and operated by the
Respondent Company. The contract contains provisions
for all licensed and unlicensed personnel which includes
the captains , mates, and engineers , both chief and
assistant, all of whom are stipulated to be supervisory, as
well as the deck hands, oilers, and cooks who comprise
the unlicensed personnel and who are employees within
the meaning of the Act.
In early January, or earlier,' licensed employees of the
Respondent , seeking to sever themselves from the unit
represented by the SIU, formed an organization which
they called the Masters, Mates, and Engineers Towboat
Organization (hereinafter MMETO) and on January 6,
1966, filed a petition with the National Labor Relations
Board seeking an election among Respondent 's licensed
personnel. Both unions involved herein intervened in that
' Unless otherwise specified, all dates are in 1966.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case. The petition was dismissed on February 8 on the
grounds that the unit consisted of supervisory employees.
In the meantime, sometime in January, the Charging
Party commenced an organizing campaign among the un-
licensed employees of Respondent which was supported
to some extent by MMETO, and resulted in the filing by
the Charging Party of the petition in Case 23-RC-2626.
During the month of January and at least until Febru-
ary 8, there was widespread organizing activity taking
place on all the company vessels,2 during the course of
which licensed personnel sought support both for
Respondent Union and for MMETO among themselves;
licensed personnel sought support among unlicensed per-
sonnel both for the Teamsters, the Charging Party and for
the Respondent Union and unlicensed personnel sought
support both for and against the Respondent Union. At
the same time, Respondent Union's patrolmen and of-
ficers freely boarded the Company's vessels, both for the
purposes normal to its incumbency as the bargaining
representative of both licensed and unlicensed employees
and for the purpose of campaigning among both licensed
and unlicensed personnel in an effort to retain its incum-
bent status as their collective-bargaining agent. The
record is clear that the incidence of visits by Respondent
Union's professional personnel on board the vessels was
greatly increased during this period of time over that
preceding this period of time. While the Respondent
Union appeared to attempt to show that its increased
visits to the vessels were due solely to its attempt to ad-
minister its contract with the Respondent Employer and
to divine from the licensed and unlicensed personnel their
opinions as to goals to be sought by Respondent Union in
negotiations for a new contract, it is clear that their activi-
ties consisted to a large extent in attempting to counteract
the organizing campaigns of the Charging Party and
MMETO. For example, commencing with the filing of
the petition on February 3, Respondent Union's patrol-
men visited the various vessels of the Respondent Em-
ployer with a petition addressed to the Regional Office of
the Board stating in essence that the signers had not
signed pledge cards or authorized the Charging Party to
represent them in collective bargaining and stating that if
their "names should appear on any such pledge cards
(such authorization) is hereby revoked." Eight sheets of
such a petition were entered in evidence (G.C. Exhs.
6a-h) bearing the names of 117 persons, each with a so-
cial security number and a rating. The ratings indicate
that 43 or 44 of the 117 signers were licensed personnel.
Business Agent Walter Breeland of the Charging
Union, who was in charge of the Charging Union's drive
among the unlicensed personnel, testified that he made no
attempt to board any of Respondent Employer's vessels
for the purpose of organizing. There is no indication on
the record that any other nonemployee representatives of
the Charging Union took part in the organizing campaign.
Pursuant to a stipulation for certification on consent
election, an election among the unlicensed employees
commenced on March 16 and 17. Because one vessel
was at sea during this period it was agreed that the ballot-
ing polls would be continued until its return on April 8, at
which time the unlicensed personnel on that vessel voted
when it arrived in Galveston Harbor. In the meantime on
March 22, by a letter of agreement, the Respondent Em-
ployer and Respondent Union agreed to extend their con-
tract which was due to expire on April 5 until April 30.
Thereafter, the contract extension continued at least until
the date of the hearing.
At sometime between February 8, when MMETO's
petition was dismissed by the Acting Regional Director,
and April 7, the licensed personnel sought representation
by the Marine Officers' Association, a Teamsters af-
filiate. The MOA demanded recognition and on April 7,
commenced to strike in support of its demand. On the
morning of April 7 when the strike started, a fight took
place at the Company's dock in Houston, between the
picketing licensed personnel and a group of partisans lar-
gely unidentified but apparently lead by the Respondent
Union's Patrolman Butts. Two unlicensed employees,
George Pizzitola and Leonard Talevich, both of whom
had been active supporters of the Charging Union,
refused to cross the picket line and commenced par-
ticipating in the picketing. The strike apparently ended on
April 27 or 29. On May 3, Pizzitola and Talevich at-
tempted to return to work but were told that their jobs
had been filled.
The record does not disclose either the number or per-
centage of the licensed personnel that took part in the
strike, nor whether any of them returned to the employ of
Respondent Employer after the strike. The strike was ap-
parently unsuccessful. It appears that Respondent Em-
ployer still recognizes the Respondent Union as the
representative of its licensed personnel. In order to con-
tinue its operation, Respondent Employer promoted
some of its unlicensed personnel to supervisory positions
and apparently recruited other employees both licensed
and unlicensed. It appears that at the time the strike
ended and at all times during the strike, all vessels were
in normal operation, although the record does not dis-
close whether they were fully manned.3
Timely objections were filed by the Charging Party,
Petitioner in the representation case, alleging in broad,
conclusionary language, that the Employer and the Inter-
venor engaged in objectionable conduct and alleging,
specifically, (a) disparate treatment in permitting super-
visory employees to campaign during work hours for the
Intervenor but not for the Petitioner, (b) the promulga-
tion and enforcement of a discriminatory solicitation rule,
(c) the refusal of access to Respondent's premises to
representatives of Petitioner, while permitting Inter-
venor's representatives access at all hours, (d)
engagement by officials, adherents, and representatives
of the Intervenor in a course of threats and violence and
intimidation of both supervisory and nonsupervisory em-
ployees, (e) the assault on April 7, by Intervenor's
representatives on licensed personnel in the presence of
unlicensed personnel, (f) the discharge of licensed per-
sonnel who were leading the opposition against further
representation by the Intervenor, (g) subjection of em-
ployees to coercive interviews concerning voting inten-
tion and union activities, (h) intimidation and coercion by
both the Employer and the Intervenor by threats of loss
of benefits, loss of jobs, and physical violence, and finally,
2 Captain Leech testified that Respondent Employer operated 24 tug-
boats during the relevant period.
3 Captain Leech testified without contradiction that there is no legal
requirement that any licensed personnel have Coast Guard licenses on
board the Company's vessels
G & H TOWING COMPANY
(i) by the Employer hiring additional employees through
Intervenor's hiring hall for the purpose of influencing the
election.
B. Issues
In addition to the issues raised by the objections, the
complaint raises three general issues:
1. Whether the Employer assisted the Respondent
Union by: (a) enforcing a no-solicitation rule discrimina-
torily against the Charging Party; (b) extending the terms
and conditions of its preexisting contract during the pen-
dency of a real question concerning representation; and
(c) by bargaining with a committee representing the
Union, which included supervisors.
2. Whether Respondent Employer and Respondent
Union have violated Section 8(a)(3) and Section 8(b)(2),
respectively, by the discharges or failure to reinstate em-
ployees Pizzitola and Talevich.
3. Whether the Respondent Union violated Section
8(b)(1)(A) of the Act, by threats to employees on or about
January 1 and February 8, and4 by the physical violence
involved in the April 7 fight at the Houston facilities.
C. The AllegedAssistance
1. The no-solicitation rule
On January 26, Pizzitola commenced working for the
Teamsters on his time off. He went aboard the Respond-
ent Employer's vessels based at Houston and dis-
tributed Teamsters literature to the employees during the
early morning, while the vessels were tied up at the dock.
No resistance to his organizing effort occurred. There-
upon, about 9 a.m. he set out for the Company's Gal-
veston dock about 50 miles away. About noon, he
went on board the company vessels at the Galveston
dock aboard the tug Laura Haden. He testified there
was a cook on the Laura Haden that "started mouth-
ing off, so I just left the galley and I went over to the
tug Grampus." While talking to one of the captains
on the Grampus Pizzitola heard his name called over
a public address system, and told the captain "I guess
they're going to probably ask me to get off, don't want
me passing this Teamsters stuff around." Pizzitola
attempted to slip off the Grampus without being caught
but ran into "Slim" Pressler, the port captain at Gal-
veston, and Harry Chapin, the director of marine per-
sonnel and safety at Galveston. According to Pizzitola,
Pressler said "Dago,5 I have got orders from higher up,
that you have been passing Teamster junk around and
you are going to have to get off company property." Piz-
zitola answered, "Mr. Pressler, I'm going, I will be glad
to leave."
As Pizzitola was leaving, the cook, who was identified
as one Stubblefield, ran up "cussing and raising the devil"
and said "can't we do something with this man," Pressler
said "George is leaving I told him to leave and he is go-
ing," and the cook said in effect, "can't we keep this man
from passing around this kind of trash and junk and stir-
ring these men up, there ought to be something done
about this." Pizzitola testified that thereafter, he made no
attempt to organize on board the company vessels. How-
4 Subpar. 9(c) of the complaint alleging an additional threat was
withdrawn by the Charging Party upon the failure of a witness to appear
595
ever, on the second day thereafter, his next watch, he had
a conversation with Captain Robbins, who was ap-
parently the master of the tug on which he was employed
and asked Robbins "Robbins, have you heard anything
about me not supposed to be aboard the-boats on my time
off." Robbins answered "Yah, I heard that on your time
off, they don't want you on these boats."
On April 7, the day the strike started, Pizzitola went
aboard the tug Marathon. Murphy, who until that morn-
ing had been an unlicensed employee but became a cap-
tain with the commencement of the strike, came over to
Pizzitola and said, "Dago, you are going to have to get off
the boat, I got orders if you are on this boat on your time
off, to either call the law or if you don't get off or give me
any trouble, but to get you off this boat." Pizzitola told
Murphy he was going to get off and apparently started ar-
guing with Murphy when Respondent Union's Patrolman
Lightfoot came up. Pizzitola addressed Lightfoot and
asked him, "Did you make the remark that you would run
me off the dock up there." Lightfoot answered, "I sure
did." Pizzitola rejoined, "Well, you're a liar." Murphy
stepped in between the two and said, "Dago, don't start
nothing now." Lightfoot said, "Well, you knew when to
leave didn't you" and Pizzitola said, "Ya, I'm smart
enough to leave, I figured he was going to get the goon
squad, I'm not just dumb enough to stay there." At this
point Pizzitola left the Marathon.
Captain Leech testified that he was in the Houston of-
fice on the morning of July 26 with Captain Wilson, the
director of safety, and Wilson received a telephone call
from a cook, Stu Monast. Wilson talked to Monast and
then told Leech "we have a commotion going on on the
tubs in Galveston and Pizzitola is down on the boat, he's
causing a disturbance." Leech testified that he ordered
Wilson to get on the telephone and call his office in Gal-
veston and "Get the man off the boat right away because
we don't want any trouble down there." Wilson called
Harry Chapin, his assistant in the Galveston office, and
told Chapin to tell Pizzitola to get off the boats. Asked
whether at any time during these telephone calls or other-
wise the name of the Teamsters Union or any union was
mentioned, Leech testified, "I never heard it." Asked,
"As far as you were concerned at that time it was nothing
to do with any kind of union of any kind" he answered,
"No sir." Leech further testified that until he received a
letter from Teamsters attorney, Wolf, on the 28th, that he
had no information that Pizzitola was working for the
Teamsters or had any connection with the Teamsters.
Leech further testified that at no time did G & H Towing
Company have a no-solicitation rule and that no steps had
been taken to prevent the Teamsters or any other union
from soliciting membership of G&H employees. Chapin
was called and testified that he received a call from Cap-
tain Wilson on January 26, and that Wilson "indicated to
me over the phone that he had information that there
were unauthorized personnel on the boat, he didn't give
me any name. He asked me to go down and see what I
could find out." Chapin stated that he went down to the
boats and saw George Pizzitola coming off one of them.
Pizzitola commented "I am leaving now," whereupon
Chapin assumed that he was the unauthorized personnel
that Captain Wilson spoke of and went back to his office.
On cross-examination, Chapin testified that he saw
at the hearing
5 Pizzitola's nickname is Dago.
336-845 0 - 70 - 39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pressler on this occasion and "obviously he (Pressler)
had gotten a phone call at or about the same time" or so
he assumed. He stated that he did not know whether or
not Pressler had a conversation with Pizzitola before he
(Chapin) saw Pizzitola, and that he would not necessarily
have heard whether Pizzitola was paged that morning
over the loudspeaker system. He further testified that he,
Pressler, and Pizzitola walked off the boat together and
that a cook named Stubblefield came out of the galley of
the tug Wansley, but he did not recall Stubblefield saying
anything.
Pressler was never called as a witness nor was Murphy
or Robbins.
Discussion
From the above incidents General Counsel and the
Charging Party deduce the existence of a no-solicitation
rule. It is clear that at all times personnel on board the
various tugs operated by the Respondent Employer
talked freely about the campaign, urging each other to
support the various parties in the two contests. It is
equally clear that written material supporting both the
Teamsters and the Respondent Union were posted on
board some, if not all, of the vessels on the bulletin boards
and there is no evidence of any official action on the part
of Respondent Employer to inhibit such posting or such
discussion. Teamsters Business Agent Breeland testified
that he never made any attempt to go on board any com-
pany vessel, not because of any purported rule, but
because he felt that it was not necessary.6 Breeland also
testified in response to a question whether anyone else
who was soliciting for the Teamsters complained about
being unable to see unlicensed people on the boat,
"Again, yes, but not specifically that I remember, like, to
call names, or that I could pin down."
It is clear then that the only incidents on which General
Counsel's theory is based-are those involving Pizzitola;
there is no evidence of any other manifestation of a no-
solicitation rule.
I cannot deduce a rule from one application. I credit
Pizzitola that Pressler told him that he had to get off the
boat and stop circulating the Teamsters literature on
board boats, and I credit Pizzitola's testimony that on two
later occasions, he was informed to the same effect. None
of these statements to Pizzitola are denied and there is no
showing that Pressler, Robbins, or Murphy, or any of
them were unavailable at the time of the hearing. In view
of the fact that apparently anyone other than Pizzitola
was permitted to organize on board the vessels on or off
their working time, I am led to inquire why Pizzitola's or-
ganizing efforts were singled out by Respondent Em-
ployer.
Respondent Employer contends that Pizzitola was
warned off the boat on the first occasion because of his
propensity for making trouble. This propensity was in my
opinion demonstrated to some extent by Pizzitola's ad-
mitted record of conviction for a violent assault.7 It is also
0 Breeland testified "It seemed rather foolish at the time to pursue
something that would get me on one of the boats."
7 Pizzitola admitted that he had spent 87 days in jail when he was con-
victed of entering a home with a pistol and assaulting someone therein.
B Which probably had no substantial basis in fact in view of the fact that
on each occasion when violence , against the background of the union or-
ganizing campaign , appeared imminent , Pizzitola withdrew to avoid trou-
ble.
clear from his reported conversations with Lightfoot that
Pizzitola was to some extent a pugnacious person and
that on January 26, when he was asked to leave the Com-
pany's boat in Galveston, he had some sort of an argu-
ment with a cook aboard one of the boats which caused
the cook to act in an excited fashion. From his attitude
under cross-examination, it appears to me that he is of a
rather excitable temperament and feels deeply about the
issues in the instant case. I am convinced and I find, on
the record before me, that only George Pizzitola was in-
hibited in organizing on board the Company's vessels and
that this inhibition was imposed upon him by the Em-
ployer because of a feared propensity to violence."
Accordingly, I find that the General Counsel has not
proved by a preponderance of the evidence that a no-sol-
icitation rule as such was in effect at any time and I shall
recommend that the complaint be dismissed insofar as it
so alleges.
2. The inclusion of supervisors on the bargaining
committees
It is admitted that the Respondent Employer and
Respondent Union historically have bargained with a
union committee which included six employees, one each
elected by the masters, the mates, the engineers, the deck
hands, the oilers, and the cooks. Professional union
agents were spokesmen for the negotiating team but it ap-
pears that, at least to some extent, the employee and su-
pervisor members of the committee had a voice in
negotiations for new contracts and in the continuing
clarifications committee to which disputes regarding the
contract were referred during the life of the contract.9
The General Counsel contends that by negotiating with
such a committee the Respondent Employer violated
Section 8(a)(2) of the Act under the doctrine set forth by
the Board in the Nassau and Suffolk case.' 0
The Employer contends that inasmuch as the unit in-
cluding supervisors was certified by the Board (prior to
1947) and has so operated since, coupled with the fact
that men commonly transfer or are transferred between
licensed and unlicensed (i.e., supervisory and nonsuper-
visory) positions, there is no failure of the arrangement to
meet the test of the law. Employer further questions "the
right of the Charging Party or the General Counsel to
challenge the arrangement" but cites no authority for this
proposition. The Respondent Union contends that an ex-
ception should be carved out of the Nassau rule, arguing
that because there was a strike in 1957 and a last minute
settlement before strike in 1963, the parties have always
engaged in arm's-length bargaining and until supervisory
participation is shown to be "an actual interference with
employee rights, there is no logical reason to disturb the
committee makeup." Respondent Union also argues that
because of the historical composition of the unit, super-
visors should have a voice in the contract which covers
them and argues that each delegate represents only his
own group of employees. Respondent Union finally con-
9 No 10(b) issue is raised by the parties . In any event it appears that
although no new contract had been negotiated within the 10 (b) period, the
clarifications committee was active within that time and a negotiating
committee was formed preparatory to the 1966 contract negotiation which
included both licensed and unlicensed personnel.
10 Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174,
187.
G & H TOWING COMPANY 597
tends that the Nassau case is distinguishable because
there supervisor dominated the collective-bargaining
negotiations.
In the Nassau case, the Board found a violation in the
fact that the employer had bargained with a union
negotiating committee which included master mechanics
who comprised the first line of supervision on the em-
ployer's construction crews. The Board stated in Nassau:
Despite the large measure of control exercised
over master mechanics by the Union, the mechanics
remained in part agents of their employers with a
resulting divided loyalty and interests.... employees
have the right to be represented in collective-bar-
gaining negotiations by individuals who have a sin-
gle-minded loyalty to their interests. Conversely, an
employer is under a duty to refrain from any action
which will interfere with that employee right and
place him even in a slight degree on both sides of the
bargaining table. There is no evidence that em-
ployers were responsible for the naming of any
master mechanics to the Union's negotiating com-
mittee but they were under a duty, we think, when
confronted with the union negotiating committee
which included their own agents, to protest the com-
position of the committee and to refuse to deal with
it because it was tainted with an apparent employer
interest.
The Board found that by failing to register such a protest
the employer interfered with the administration of the
union in violation of Section 8(a)(2) and (1) of the Act. t'
The Board of course is not a slave to its rules nor so
strictly bound by precedent that it cannot make ap-
propriate exceptions. I have considered the various argu-
ments advanced and conclude that no exception is here
warranted. Respondent Employer questions the right of
the Charging Party or General Counsel to challenge the
arrangement. The Nassau case and the other cases cited
above indicate that the Board has this right and has exer-
cised it. The argument that this is an historical arrange-
ment was raised and considered by the Board in Nassau
in which there was also an historical arrangement and
similarly the factor of what the Respondent Employer
terms "The elastic flow of men between licensed and un-
licensed positions and vice versa" too was present in the
Nassau case. Respondent Union's attempt to distinguish
Nassau because in that case supervisors "dominated the
collective bargaining negotiation" must fail. The holding
in Nassau is specifically to the contrary (p. 187) where
the Board pointed out that two of the eight members of
the bargaining committee were low-grade supervisors and
there was no evidence of domination by supervisors.
Similarly, in the Powers case, cited above, the Board
found a violation even though the single supervisor on the
bargaining committee was a borderline supervisor.
Regarding they argument that the committee makeup
should not be disturbed unless supervisory participation
is shown to be an actual interference with employee
rights, it is the' sense of the cases cited above, in my
opinion, that it is the act of the Employer in acquiesing
that constitutes the violation herein. The rule as stated
and restated by the Board requires no showing that the
danger which led the Board to impose the rule must be
realized before the Board can act. In neither of the cases
above cited in which a violation was found is there any
hint that the presence of an employer's agents on the bar-
gaining committee led to any denegation of the em-
ployees' position in negotiations . Evidence that super-
visory negotiators in fact actively coerced employees'
negotiators by threats and promises is not necessary. It is
the more subtle interference of divided loyalty with which
the Board is concerned.
The Respondents make much of the fact that each
delegate is said to represent only his group, i.e., cooks
represented only cooks, and captains only captains, and
indeed there are portions of the record that would seem
to indicate that this is the fact but these portions refer to
specific negotiations regarding cooks' or captains' wage
rates and conditions of employment peculiar to the grade
or position in the Employer's employment. It is clear that
the individual groups did not conduct separate negotia-
tions but rather that a union spokesman spoke for all per-
sonnel in a group negotiation and it is clear that many if
not most of the provisions in the contract are common to
all employees, whether cooks or captains. In fact, the
evidence indicates that all the negotiators voted on each
of the provisions, that is to say all had an equal voice in
the vote as for example to the rates paid to mates.
Presumably, the engineers' delegate would have a voice
in the provisions regarding the welfare plan or vacation
pay or salvage claims, each of which affected engineers'
conditions of employment as well as oilers. It appears
therefore, to me, that the argument that each delegate
represented only his own group must fail because each
delegate in representing his own group necessarily must
have an effect as to all provisions in the contract common
to two or more groups. Finally, the argument that super-
visors, since they are covered by the contract, should
have a voice in its negotiation, might have appeal if there
were any reason why supervisors must be covered by the
contract, but there is none. The law envisages the contra-
ry situation and there is no inherent disability in the con-
cept of a separate contract for supervisors. I find, under
Nassau, a violation of 8(a)(2) and (1) is clearly shown.
3. The extension of the 1963 contract
General Counsel contends, under the rule in Shea
Chemical Corporation, 121 NLRB 1027, that Respond-
ent Employer violated Section 8(a)(2) by entering into
an agreement with the Respondent Union on March 22,
extending the 1963 contract, which was due to expire on
April 5, thru the month of April and thereafter until the
date of the hearing.
Respondent Employer contends that its extension of
the contract was lawful and necessary stating, "We are
certain the Trial Examiner is entirely familiar with the no-
contract, no-work idea. The alternative to extending the
contract was to close down the operations." There .is no
evidence in the record to indicate that the "no-contract,
no-work idea" was in any way concerned herein, nor is
11 The Nassau rule was considered and sustained in Anchorage Busi-
nessmen's Association, 124 NLRB 662; National Gypsum Company,
139 NLRB 916; Banner Yarn Dyeing Corporation, 139 NLRB 1018, and
the Powers Regulator Company, 149 NLRB 1185 The rule as refined by
these cases was stated by the Board in Powers to be as follows:
when an employer , without protest , deals with a union negotiat-
ing committee which includes a supervisor in its membership, the em-
ployer thereby interferes with the administration of the union in viola-
tion of Section 8(a)(2) and (1) of the Act
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there any evidence to establish that the Employer's only
alternative to extending the contract was to close down
the operations.
The Respondent Union argues that no real question
concerning representation existed as required under the
Board's Decision in William Penn Broadcasting Com-
pany, 93 NLRB 1104. Thus, the Respondent Union ar-
gues that the election having been conducted and a
majority of the ballots having been cast for Respondent
Union, it was free to bargain with the Respondent Em-
ployer even though objections to the election are pending
before the Board citing N.L.R.B. v. National Container
Corp., 211 F.2d 525, 536 (C.A. 2). The Respondent
Union argues that areal question concerning representa-
tion can exist only if the objections pending before the
Board are found to be meritorious . Thus, since Respond-
ent Union contends that the objections are, in fact,
without merit (which will be dealt with below), no
question concerning representation, in fact, existed at the
time the contract was extended, nor at any time since.
In National Container Corporation, 12 the respondent
took precisely the same position of that taken by Re-
spondent Union herein, and the Examiner found that
there was no violation under the Midwest Piping rule 13
because the employer proved to be correct in its judgment
that the objections were without merit. The Board found,
however, that the objections should be sustained and
therefore found it unnecessary to decide whether the Wil-
liam Penn case was properly applied by the Trial Ex-
aminer. The Board instead found that the question con-
cerning representation had not been finally determined, as
meritorious objections were then still unresolved and no
final action had been taken by the Board in the represen-
tation proceeding. The court, in considering the same
issue on appeal, stated _
National, by entering into a collective bargaining
agreement with Local 444 during this very period,
wrongfully usurped this function, in effect decided
for itself that Local l's objections had no merit, and
determined that recognition of Local 444 was ap-
propriate. The finding of the Board that in so acting
National violated -the neutrality which the Act im-
posed upon it, in violation of Section 8(a)(1) of the
Act, and contributed unlawful assistance to Local
444, in violation of Section 8(a)(2) of the Act, was
clearly proper.
Thus both the Board and the court decisions leave open
the question whether if the objections were found to have
no merit, a violation would take place. I found no case in
which the Board has considered the issue that it expressly
reserved in National Container (supra). The rule -con-
tended for Respondents, in effect, is that a question con-
cerning representation permits an employer to bargain
with one or the other union subject to the peril of being
found guilty of a violation if he guesses wrong. Here, for
instance , if the Board were to find that the objections
have merit, and order a new election, Respondent Em-
ployer would be guilty of an unfair labor practice in
renewing its contract. On the other hand, if the Board
were to find that the objections have no merit, then no
real question concerning representation could have ex-
" 103 NLRB 1544.
13 Midwest Piping & Supply Co., 63 N LRB 1060, 1070.
14 St Louis Independent Packing Company, 129 N LRB 622; Reliance
Fuel Oil Corp., 129 NLRB 1166; Dui akte Co, Inc, 132 NLRB 425.
isted and the Respondent is guilty of no violation in ex-
tending its contract.
The Board has had occasion to consider whether the
fact that the assisted union subsequently won the election
rendered the question concerning representation "un-
real" and decided the question in the negative.14 The ra-
tionale of the Board's rule is that an employer may not in-
terfere with the employees' free choice by itself disposing
of the issue raised by a valid petition. It is the preserva-
tion of the employees' right with which the Board is con-
cerned; clearly the intent of the employer is irrelevant.
The Respondent Employer cannot be heard to say that no
issue was raised by the Charging Party's objections to the
election, when the Regional Director, on June 23, found
that the objections and the evidence bearing thereon
raised substantial and material issues of fact, credibility, .
and policy which can best be resolved by a hearing and no
objections were filed thereto by any party.
As I understand the cases, the vice of an employer's ac-
tion in bargaining with the incumbent during the existence
of a real question concerning representation is not that
the employer might or does guess wrong, thereby favor-
ing a minority union , but rather that it conflicts with the
public policy, to give the maximum protection to the em-
ployees' right to freely select their own representative
without coercion or interference from any party. The em-
ployer may not arrogate to itself the jurisdiction with
which Congress has invested the Board, to determine,
under its laboratory conditions, the employees' choice
and to further determine whether those laboratory condi-
tions existed at the time the choice was made.
Respondent Employer and the Respondent Union
further contend that, assuming there was no merit to the
objections, the action of Respondent Employer in signing
the extension agreement could not have affected the
results of the election inasmuch as all ballots had been
cast at that time with the exception of six which remained
to be cast when the absent boat returned to Galveston
Harbor and which were subsequently cast on April 8.
There is no evidence whether or not the six voters on
the absent boat knew about the signing of the contract.
The General Counsel points out that the boat was in radio
contact with the shore and assumes therefrom that, they
did. Respondents apparently assume that they did not. I
see no valid issue raised by the argument. No one knew,
on March 22, what the balloting showed. For all anyone
knew, the six votes for which the election was kept open
could have been decisive. Similarly, there is no evidence
that any attempt was made to keep the extension secret,
and the very fact that the Board agent and presumably
representatives of each of the parties of the election
necessarily had to reach the six employees before they
could vote, render it possible and perhaps probable that
they would have learned of the extension of the contract.
If as the Employer contends, the employees were swayed
by the "no-contract, no-work idea" this might very well
have been the first question they asked, since the contract
would have expired prior to their landfall. I do not find
the argument persuasive. As the Board found in cases
cited above, 15 the question concerning representation
remains a "real" one even though the assisted union sub-
15 St Louis Independent Packing Company, supra; Reliance Fuel Oil
Company, supra, Duralite Co., Inc, supra; and Iowa Beef Packers, Inc.,
supra
G & H TOWING COMPANY
sequently won the election. In other words, the gamble
does not become valid merely because the Respondent
Employer won.
In accordance with the above discussion, I find that,
whether or not the objections are found to have merit, the
Respondent Employer, by extending its contract during
a period of time when a real question concerning
representations existed, violated Section 8(a)(2) and (1)
of the Act. 16
D. The Discharges of Pizzitola and Talevich
Pizzitola and Talevich were both unlicensed employees
each with considerable seniority with the Respondent
Employer. Both were involved in the Teamsters organiz-
ing effort and both took part in the tallying of the ballots
on April 8.
On April 7, when the licensed personnel raised their
picket line, Pizzitola and Talevich refused to cross it. It
is clear from the record, in each case, that their refusal
was based on their friendship for and sympathy with the
licensed personnel in their efforts to break away from the
Respondent Union. There is no evidence that either of
them was motivated by any hope or expectation that the
strike would result in any change in their own representa-
tion, wages, or working conditions. Each was offered an
opportunity to continue his employment. On the day after
the tallying of the ballots, both Talevich and Pizzitola
joined picketing and each continued picketing until the
strike ended on or about April 29. It appears that neither
was informed that the picket line was going to be taken
down on the 29th and each became aware of it shortly
thereafter. At this time, each communicated with Captain
Wilson who was in charge of personnel for the Respond-
ent Employer. Pizzitola testified that he asked Captain
Wilson if he still had a job or was he fired, and Wilson an-
swered that he could not say that Pizzitola was fired but
he had been replaced permanently, and he would be glad
to accept Talevich back to work for the Company but
Talevich would have to go through the SIU hiring hall
first. Captain Wilson also stated to Talevich that since he
had not shown up for work for a month or more, he had
been replaced.
Pizzitola called on the Respondent Employer's port
agent, Dubose, and asked him if he had a job. Dubose an-
swered that Pizzitola would have to call Captain Wilson
and stated that he did not think Pizzitola was going to
have any luck. Pizzitola thereupon called Wilson and
asked if he was fired or not. Wilson said, "No, you're not
fired, you refused to come to work." Pizzitola said,
"Well, I told Mr. Dubose and all that I wasn't crossing
that picket line." Wilson answered, "Well, you were not
fired, you quit." Wilson also said that he would be glad to
accept Pizzitola if he came back through the union hall.
Neither Pizzitola nor Talevich went to the hiring hall to
attempt to be dispatched to the Respondent Employer.
Neither has been recalled at any time since by the Em-
ployer.
The General Counsel contends that Pizzitola and
Talevich were discriminated against on three separate
grounds: first, because they were terminated because
they honored the Teamsters picket line; second, that even
if they were not terminated as economic strikers the Em-
16 There is no real issue that the extension of an existing contract is in
every way comparable to the negotiation of a new contract or renegotia-
599
ployer had a duty to reinstate them at the conclusion of
the strike unless they had been permanently replaced and
the Employer offered no proof that they had in fact been
replaced permanently; and finally, General Counsel con-
tends that in any event the Respondent Employer dis-
criminated against the two because he conditioned the
reinstatement on dispatch by the Respondent Union's
hiring hall which condition was unlawful because the con-
tract requiring dispatch through the Union's hiring hall
had been unlawfully extended.
The Charging Party contends that the hiring hall
consitutes illegal support to the Respondent Union and
that, therefore, it is a violation of Section 8(a)(3) for the
Employer to require employees to seek dispatch through
the hiring hall. Respondent Employer contends that the
strike was unprotected, that neither employee made a
proper request for reinstatement (contending that neither
employee requested reinstatement of Captain Wilson)
and finally, that there were no openings for employment
at the termination of the strike inasmuch as all ships were
then operating.
Finally, the Respondent Union contends that the con-
tract validly requires the use of the hiring hall and in any
event even without a contract the Employer had a right to
require employees to use a hiring hall and that the em-
ployees had been lawfully replaced.
Basic to the determination of the issue presented are
two questions. First, were the alleged discriminatees em-
ployees within the meaning of the Act or to put it another
way were their strike activities protected under the Act?
And second, in any event and with regard to the General
Counsel's third contention and the Charging Union's con-
tention, were Pizzitola and Talevich after the conclusion
of the strike in the position of applicants for employment.
The right to strike is not absolute. The employees by
collective bargaining can waive their right to strike with
what is commonly known as a no-strike clause and in
Mastro Plastics Corp., 350 U.S. 270, 279-284, the
Supreme Court held that employees retain their right to
strike in the face of a no-strike clause only if they strike
solely against the unfair labor practices of the employer.
There is no contention here that Talevich and Pizzitola
were engaged in an unfair labor practice strike. Both
testified that they refused to cross the licensed em
ployees' picket line and thereafter joined in the picketing
in support of the licensed employees' demand for recogni-
tion of the MOA as their collective-bargaining represent-
ative. Therefore, assuming for the purposes of argument
that, as Respondents contend, the contract had been
validly extended and was in effect at the time of the
strike, the participation by the two employees was a
breach of the contract and their discharge would be law-
ful. See Simmons, Inc., 134 NLRB 1038, and Complete
Auto Transit, Inc., 134 NLRB 652, 657.
The General Counsel's position appears to be that the
two employees were not strikers per se but that they en-
gaged in the protected activity of refusing to cross a
picket line. Surely the law is settled that employees'
refusal to cross a picket line to perform work is an exer-
cise of Section 7 rights and ordinarily Section 8(a)(1) pro-
tects employees exercising such rights against employer
retaliation. See the Cooper Thermometer Company, 154
NLRB 502. But basic to the right protected by Section 7
tion of the existing contract . This issue has been decided in a number of
cases, among them , Swift and Company, 128 N LRB 732.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the concept that the right pertains to the employees'
concerted activities for employees' mutual aid and pro-
tection. Thus in the sympathy striker cases in which the
Board has found that the sympathy strikers were pro-
tected, the Board found that the employees engaged in the
sympathy strike were making a common cause with the
employees engaged in the primary strike and, ac-
cordingly, their own "aid and protection" was involved.
If the strikers with whom the employees are making com-
mon cause are not themselves employees engaged in pro-
tected activity, I can see no reason why the sympathy
strikers should achieve a protection greater than that of
the primary strikers. Here the primary strike, by the
licensed employees, was not protected. In Fontaine Con-
verting Works, Inc., 77 NLRB 1386, employees walked
out not to advance their own interests but to further the
interests of their foreman who they believe was demoted
because of the appointment of a new general foreman.
Under those circumstances the Board found that their
concerted activity was unprotected. The rule in Fontaine
has never been questioned and it has been cited
recently.17 I can see no valid distinction between the
situation in the instant case regarding Pizzitola and
Talevich and the strikers involved in the Fontaine case.
Both were striking in support of their supervisors' aims
and in each case their supervisors' aims were clearly
distinct from the employees'. This is not like the situation
in Summit Mining Company, 119 NLRB 1668, where the
strikers were found to be engaged in protective activity
when their strike protested the discharge of a supervisor
and a rank-and-file employee. The Board concluded that
the strike was caused by the employees' belief that their
own interests were involved since the supervisor, as well
as the rank-and-file employee was an applicant for mem-
bership in the union, and the movement to reinstate each
of them was initiated and supported by the union. Ac-
cordingly, without reference to the no-strike clause in the
contract, I find that Pizzitola and Talevich were engaged
in unprotected activities and could be discharged
therefor; that the Employer voiced the discharge in terms
of permanent replacement does not appear to affect the
result. If the Employer had a right to discharge them, he
had a right to replace them or to treat them, as he did, as
quits.
As to the second issue, whether the Employer violated
the Act by requiring the two employees to go to the union
hall for dispatch rather than by reinstating them, as I read
the record, I do not believe that the issue is reached. The
record clearly disclosed that both Talevich and Pizzitola
sought reinstatement. Neither was prepared to come back
to the Employer's employment as new employees without
seniority and under whatever other disabilities new em-
ployees would suffer under whatever contract the Em-
ployer ultimately signed with whichever union won the
election. Pizzitola on cross-examination testified that he
would not go back through the union hall. When Captain
Wilson told him that they would be glad to take him back
if he would go back through the hall, he said, "No thank
you, I'll just get hold of the Labor Board." Asked, "you
are not going to go through the union hall?" He answered,
"Not and lose my seniority and go back to the bottom of
the list, no I wouldn't." Asked whether anyone had told
him he would lose his seniority, he answered, "Well, if
you lose-your job you automatically lose your seniority."
When Talevich was told that the Company would be glad
to accept him back but he would have to go through the
SIU hall first, he replied that he did not want to listen to
something like that; he just wanted to know whether he
was fired or not.
In view of the fact that neither employee made any ef-
fort to seek employment as a new hire, I can see no merit
in the General Counsel's and Charging Parties' theory
that the requirement by the Employer that they should re-
gister at the hall served to discriminate against them. Ac-
cordingly, since I find no merit in the 8(a)(3) and 8(b)(2)
allegations of the complaint, I shall recommend that they
be dismissed.
E. The Alleged Restraint and Coercion by Respondent
Union
General Counsel in the complaint contends that
Respondent Union engaged in various acts of coercion by
threatening employees with physical violence and bodily
injury for their "lack of fealty to the respondent union"
for engaging in activities on behalf of the Teamsters and
by the infliction of physical violence on individuals who
were picketing the Respondent Employer on behalf of the
MOA.
The record discloses that early in January Patrolman
Lightfoot of Respondent Union came on board the tug
Atlas at Corpus Christi, Texas. He was engaged in a
discussion of the welfare plan with Chief Engineer Blan-
ton and a deckhand identified only as "Frenchie." When
Talevich came into the galley where the discussion was
taking place, Blanton and Frenchie were apparently argu-
ing with regard to the welfare benefits and one of them
stated that they would just as soon not have a welfare
plan. Lightfoot replied that, "If you got rid of the welfare
plan, you would have to get rid of the Union." Blanton
said, "That would probably be a good idea." Lightfoot
became angry and said, in essence, "That is what you
have been trying to do, talk like that will get people in
trouble."
Lightfoot started to leave and Talevich said, "Wait a
minute" and that he wanted "to hear the answers to the
questions that Blanton and Frenchie had asked
Lightfoot." Lightfoot asked Talevich if he was with them.
Talevich said that he was and Lightfoot shook his finger
in Talevich's face and said, "I will be back down here
later on and take care of you." Lightfoot testified that he
was on the Atlas at that time trying to ascertain if there
were any complaints about the welfare benefits. He
stated that Talevich complained about a claim that he had
in and he ascertained that Talevich had moved several
times since putting the claim in. Whereupon Lightfoot
told him that he would check it and would come back to
see him later. Lightfoot also placed Patrolman Butts on
the scene and stated that Butts talked to' Chief Engineer
Blanton most of the time but that he did not clearly recall
the conversation.
Both accounts of the incident are fragmentary. I credit
Talevich to the extent that he testified that the discussion
was in fact a rather heated argument rather than Lightfoot
who characterized it as a routine visit. From the whole
record it is clear that the employees of G&H, both
licensed and unlicensed, were considerably upset about
what they considered to be inadequate handling of the
Valley Forge Flag Company, 152 N L R B 1550
G & H TOWING COMPANY 601
welfare plan, and I have no doubt that the conversation
was heated. However fragmentary the two accounts of
the incident may be, they clash directly in one important
particular. Lightfoot contends that he made the statement
that he would come back and see Talevich in the context
of a discussion concerning a claim by Talevich under the
welfare provisions of the contract. Talevich on the other
hand contends that Lightfoot made the statement "I'll be
back down here later and take care of you" in a context of
a general discussion of the fact that the employees
present no longer liked the SIU as their representative
and that it had nothing to do with any discussion regard-
ing his claim. Lightfoot was called by the General Coun-
sel and examined as his witness and later was called by
the Respondent Union and examined as their witness. In
neither case did I find his demeanor satisfactory. He was
evasive and forgetful and appeared to answer reluctantly
when questioned by counsel for the General Counsel. His
demeanor added no luster to his credibility. On the other
hand, I found Talevich's testimony regarding this incident
credible and his reaction under cross-examination in my
opinion enhanced the credibility of his account. Ac-
cordingly, I find that in accordance with Talevich's story
Lightfoot, in fact, shook his finger in Talevich's face and
stated, "I will be back down here later on and take care of
you."
The second alleged violation of Section 8(b)(1)(A) also
concerned Lightfoot. Chief Engineer Elwood N. Holmes
was called to the galley of the tug Bonita by an employee,
McGee, and found Lightfoot and Jose Perez, identified as
a clerk at the union hall, and several other persons sitting
around the galley. Lightfoot asked Holmes to sign an SIU
card. Holmes declined to do so stating that he was
finished with the SIU and was in favor of the MMETO.
Lightfoot asked if Holmes had signed a Teamsters card
and Holmes denied that he had signed one but said that
that did not mean he would not sign one. Lightfoot an-
swered, "Well, you know if those Teamsters come in here
somebody is going to get hurt." Holmes said, "Are you
threatening me?" And Lightfoot answered, "No."
Lightfoot's account of this conversation was similar, but
he attempted to throw it in a different light. I quote his ac-
count in full, "We had a discussion in general. We were
just chewing the fat, more or less, and we were talking
about welfare and everything in general, the contract, and
Mr. Holmes got a little shook up there. I had made a
statement, I said, `Well, you know if lots of you guys
break away, you know, some of them will get hurt.' And
Mr. Holmes stopped me there and he said, `What are you
doing threatening me?' And I said, `No, you know, when
you break away like this, you know what you have here,'
and I said, `You break away, lots of guys will lose their
benefits and pension plan and everything else'; and I said
`you might get hurt."' Questioned by Lightfoot's counsel,
"When you used the words `get hurt,' you were referring
to men losing their contract rights?" Lightfoot answered,
"Right."
This conversation took place around February 8 at
which time both petitions had been filed. It appears more
probable to me that the conversation was as Holmes re-
ported it. I view Lightfoot's testimony that he explained
his statement that somebody is liable to be hurt as mere
embroidery and I credit Holmes.18
Having found the two statements to have been made as
the General Counsel contends, the issue remains whether
those statements, in context, are violative of the Act. The
Act, in pertinent portion, provides that it shall be an un-
fair labor practice for a labor organization or its agents to
restrain or coerce employees in the exercise of their rights
guaranteed in Section 7. The Board has held that the test
is not whether the employees were in fact restrained or
coerced but whether the statements made, taken in con-
text, are reasonably calculated to restrain or coerce em-
ployees to whom they are addressed or to whose atten-
tion they came. Both statements are by their nature am-
biguous, but in context there can be little doubt that a
statement that "talk like that will get people in trouble"
referring to talk about getting rid of a union and a state-
ment "If the Teamsters come in somebody was going to
get hurt" are of a threatening nature. The third statement
addressed to Talevich "I will be back down here later and
take care of you," in the face of the fact that Talevich had
apparently been complaining to him about the Union's
failure to take care of his welfare claim, is, in my opinion,
too ambiguous to warrant a finding that Lightfoot was
personally threatening Talevich. It appears to me he
could as well have been referring to Talevich's claim.
It is not necessary that a threat be clear and unam-
biguous if it is in a form which reasonably implies a coer-
cive message to employees. For instance, the statement
by a union agent to employees on strike that "they had
better not go into the plant if they knew what was good
for them" was found violative.19 Similarly a statement "if
this keeps up somebody might get hurt" fairly raises an
inference that employees working in spite of the Union's
strike were threatened.20 Similarly a statement that the
Company was "asking for trouble" was deemed by the
Board violative of Section 8(b)(1)(A).21 I consider that
statements that "somebody is going to get hurt if the
Teamsters get in" and "talk like that will get people in
trouble" must be considered a threat in violation of Sec-
tion 8(b)(1)(A) and I so find.
The Fight on April 7
On April 7 the licensed personnel commenced picket-
ing. Early that morning while Jorgenson, Goodwin, Bag-
get, Palmer, and Thurman were on the picket line at the
Employer's property at Houston, a group of five or six
employees came out of the entrance to Respondent Em-
ployer's dock and came to Jorgenson who was wearing a
picket sign. One of their number, Salty Wilburn,22 asked
if the pickets "had an observer." Earl Goodwin, who was
handing out leaflets, asked what Wilburn meant and Wil-
burn answered, "It don't matter what it is, if you don't
have one, we have orders to take this picket line down."
The group moved toward the two pickets and Goodwin
hastily said, "We have an observer in the car out there"
'" Respondent Union contends that this could not be a violation
because there is no showing that any employee, as distinguished from
licensed personnel, was present at the time However, Holmes placed
McGee there at the start of the conversation as well as a number of other
persons whom he could not otherwise identify. Accordingly, I reject the
argument.
•0 The Higbee Company (Painters, AFL), 97 NLRB 654
'O Highway Truckdrivers and Helpers, Local 107, IBT (Virginia-
Carolina Freight Lines), 123 N LRB 551.
=i Local No. 888 of the International Union, United Automobile,
Aerospace and Agricultural Implement Workers (Miami Plating Co.),
144 N LRB 897
22 Not to be confused with Union Agent Wilburn
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and they stopped.23 The group of employees withdrew
and went to a nearby ILA hiring hall where a pay
telephone was located and one of the group made a
telephone call.
Ten or fifteen minutes later Jose Perez, identified as the
clerk at Respondent Union's hall, and Patrolman Butts
arrived in two cars. They passed through the picket line
and got out of their cars. Perez joined the group at the
ILA hall and Butts walked up to Jorgenson and signaled
the group to come toward him. He seized the sign hanging
around Jorgenson's neck, and said, "Give me this sign."
Jorgenson took it off and gave it to him and turned to walk
away. He looked around and saw Perez making motions
as if to hit him and swung at Perez to protect himself. Ap-
parently neither one landed any blows. At this time an
unidentified person tackled Jorgenson from behind,
knocking him to the ground and as Jorgenson started to
get up he found Butts attempting to kick him. He grabbed
Butts' legs and pulled him to the ground then struggled to
his feet and tried to shake off the man on his back. At the
same time, an unidentified person struck Palmer, who had
supplanted Goodwin on the picket line during the interval
between the crowd first coming out of the Employer's
premises and the arrival of Butts, and knocked Palmer's
glasses off and blooded his head. It appears, thereafter,
there was general fighting ultimately broken up by the ar-
rival of police who appear not to have caught any of the
assailants all of whom disappeared.24 The above account
is taken largely from the testimony of Robert Jorgenson
whom I credit. Neither Butts, who was present in the
hearing room, nor Perez was called as a witness. The only
witness called by the Respondent Union who testified
about the violence was James Sammon. Sammon stated
that Butts did not attack Jorgenson, but that Jorgenson
took off his picket sign , which consisted of two cardboard
signs hung by lines over Jorgenson's shoulders, and ap-
peared to attack Butts with it. Sammon said he was too
far away to hear what was said. As to the incident with
Palmer, who, incidently, is Sammon's brother-in-law, he
testified first that Palmer, "started fighting with another
guy" but on cross-examination testified that he did not
know whether Palmer started the fight or if he defended
himself; the only thing he knows is that he saw him
fighting. He did not go to his brother-in-law's aid but
proceeded through the picket line to the company dock.25
There can be no question that the Respondent Union,
through its agent, Butts, is responsible for the picket line
violence. Respondent Union, however, argues that the
Board is without jurisdiction to predicate a violation of
8(b)(1)(A) on the conduct of the Union. Respondent
Union argues that "the record is clear that antipathy on
the part of the Seafarers toward the picketing licensed
employees was premised on the latter's violation of the
no-strike provisions of the contract." On what part of the
record Respondent relies for that conclusion, it does not
say, nor can I find any support for the statement in the
record. Rather the antipathy on the part of the Seafarers
resulted from the disaffection of the employees, both
licensed and unlicensed, and their attempts to get a new
bargaining agent, and it appears to me that the record is
clear in this regard. The antipathy was well demonstrated
prior to the strike.
It is clear that an attack on supervisors as such is viola-
tive of Section 8(b)(1)(A) especially where employees are
aware or may reasonably be expected to become aware
of the attack.26 Nor is the fact that the violence directed
against supervisory employees was not primarily
motivated by employees' exercise of their Section 7
rights, as distinguished from supervisors' attempts to
change their bargaining representative, dispositive of the
issue. The record is clear that the supervisors and the em-
ployees had at least by the time of the strike made com-
mon cause of their resistance to further representation by
the Respondent Union. The action of the Respondent
Union against the picketing supervisors cannot help but
have had a coercive impact upon employees whose loyal-
ties to the Respondent Union were similarily being chal-
lenged, and there is no question that Respondent Union
was interested in retaining (or obtaining) the loyalty of the
nonsupervisory employees who were used to break the
supervisors' strike.27 Accordingly, inasmuch as the attack
on supervisors clearly would have the effect of coercing
employees in the exercise of their rights, I find such at-
tacks to be a violation of Section 8(b)(1)(A) of the Act.
IV. THE OBJECTIONS
The Charging Union's (Petitioner's) objections to the
election, set forth above, are largely predicated on the
same matters alleged as violations by the General Coun-
sel. As to the following, no evidence was submitted:
1. Disparate treatment in permitting supervisory em-
ployees to campaign during work hours for the Intervenor
but not for the Petitioner.
2. The discharge of licensed personnel for leading the
opposition against further representation by the Interven-
or.28
3. The hiring of additional employees through Inter-
venor's hiring hall for the purposes of influencing the
election.
As no evidence was adduced to support the above, I
will recommend that they be dismissed.
The objections allege the promulgation and enforce-
ment of a discriminatory no-solicitation rule and the
refusal of access to Respondent's premises to representa-
tives of the Petitioner while permitting Intervenor's
representatives access at all hours. The two objections
were supported only by the incident with regard to Piz-
zitola, discussed above. As the incident in question took
21 The attorney for MMETO was sitting in a car a little way from the
picket line
24 After the departure of the police, Butts walked out from behind the
ILA hall and passed directly in front of Goodwin, who was then on the
picket line, and said to Goodwin that he was next.
25 Sammon, who by his own testimony, appears to have been somewhat
of a "double agent" in the organizing campaign clearly revealed his
animus against the MOA in his testimony His attempted characterization
of Jorgenson as the aggressor and his inability to identify any of the five or
six persons he saw fighting other than Palmer, Jorgenson , and Butts, as
well as his demeanor on the witness stand, lead me to discredit his testi-
mony with regard to the incident.
26 Communications Workers of America (Ohio Consolidated
Telephone Co), 120 NLRB 684, 686, Local 888, etc (Miami Plating
Co ), supra, International Woodworkers ofAmerica (Smith Lumber Co.),
116 NLRB 507, 508.
29 The record indicates that 88 percent of the supervisors joined the
MMETO, presumably as a result of disaffection with Respondent Union
The record does not reveal whether any of those supervisors who took
part in the strike returned to the employ of Respondent Employer, but
reveals that the striking officers' positions were filled in large part at least
by the promotion of unlicensed employees.
2' This has apparent reference to the discharge of one Captain Bruce
which took place before the petition was filed and accordingly not within
the critical period I declined to accept evidence with regard to Bruce's
discharge.
G & H TOWING COMPANY 603
place before the petition was filed and as no evidence of
either a no-solicitation rule or of any refusal of access to
any representative of any party during the critical period
was adduced , I find that these objections are not sup-
ported by the evidence and I recommend that they be
dismissed.
Charging Union also objected to the subjection of em-
ployees to coercive interviews concerning their voting in-
tention and union activities and to the intimidation and
coercion by the Employer of employees by threats of loss
of benefits , loss of jobs , and physical violence. The record
reveals no evidence of intimidation and coercion by the
Employer. As to the subjection of employees to coercive
interviews , the record as a whole discloses that licensed
employees representing both unions throughout the criti-
cal period campaigned for their respective choices. There
is no evidence that any managerial or supervisory persons
other than licensed personnel on the vessels did any cam-
paigning for either union . There is no evidence that in
their campaigning licensed employees for either union
made any threats or promises of benefit or otherwise
communicated with employees in a coercive or intimida-
tory manner. In view of the coexistent campaign among
the licensed personnel and the fact that under the circum-
stances employees could not logically attribute to the Em-
ployer the opinions being voiced by the licensed person-
nel, I find nothing in the activities of the licensed person-
nel during the critical period which I consider to be calcu-
lated to interfere with the employees ' freedom of choice.
Therefore , I shall recommend that the objections with re-
gard to this issue be dismissed . The remaining objections
which relate to the course of threats and violence and in-
timidation by Respondent Union and the April 7 fight on
the picket line at Houston are supported on record only
by the incidents set forth in the discussion of the unfair
labor practices above . Of those only two occurred during
the critical period , the February 8 threat and the April 7
fight.
Concretely, the record reveals potential objectionable
conduct in three particulars within the critical period.
One, the February 8 threat in the presence of at least one
employee to Patrolman Lightfoot; two, the March 22 ex-
tension , effective April 6 , of the collective-bargaining
agreement between Respondent Employer and Respond-
ent Union , and three , the picket line violence, led by
Respondent Union's Patrolman Butts on April 7, against
the licensed employees ' picket line in the presence of un-
licensed employees of the Respondent Employer.
The Board has frequently asserted that violations by an
employer of Section 8(a)(1) during the critical period be-
fore an election, a fortiori comprise objectionable con-
duct. I perceive no valid distinction in this regard
between violations of 8(a)( 1) by an employer and viola-
tion of 8 (b)(1)(A) by a labor organization. Accordingly, it
would appear that the three items of violative conduct set
forth above , which took place during the critical period,
warrant setting aside the election. However, a combina-
tion of circumstances peculiar to this case leads me to the
conclusion that such a result would be inappropriate.
The election was conducted on three dates, March 16
and 17 and April 8. A hundred and twenty-four ballots
were cast . Of these 118 were cast on March 16 and 17,
the remaining 6 on April 8, by voters who had been at sea
during the intervening period . The tally of ballots
revealed that 24 ballots were cast for the Petitioner, 100
for the Intervenor , and 27 ballots were challenged. Obvi-
ously then , the vast majority of the dispositive ballots
were cast before two of the three incidents took place; the
extension of the contract on March 22, and the fight on
April 7. No effect stemming from these two actions could
have seriously reduced the disparity between the votes
for the Petitioner and those for the Intervenor . The Board
has traditionally been loath to disturb the results of an
election which is clearlys dispositive and that is the situa-
tion here.
Excluding the two incidents which took place after a
majority of the ballots had been cast , there is left only one
incident upon which the objections could validly be
based , i.e., the February 8 threat by Lightfoot delivered
to a supervisory employee in the presence of one and
possibly more nonsupervisory employees . In my opinion,
viewing that threat from this angle, it appears to be an iso-
lated statement in a context of intensive campaigning by
both unions involved in the election process. In my
opinion , such a threat, uttered in the presence of one and
certainly no more than five employees out of 162 eligible
voters, is insufficient to be considered an interference
with the employees ' free choice of bargaining representa-
tive. Accordingly , I shall recommend that the objections
in their entirety be overruled and that the appropriate cer-
tification be issued.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer within the
meaning of Section 2 (2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent Union and the Charging Union are
labor organizations within the meaning of Section 2(5) of
the Act.
3. By bargaining with a union committee which in-
cluded its own supervisors and by extending its contract
with the Respondent Union during the existence of areal
question concerning representation , Respondent Em-
ployer interfered with , assisted , and contributed support
to Respondent Union and thereby engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(2) and (1) of the Act.
4. By threatening employees with harm and by physi-
cally assaulting supervisory employees of Respondent
Employer in the presence of nonsupervisory employees
of Respondent Employer, Respondent Union has
restrained and coerced employees and engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Except to the extent that violations of the Act have
been specifically found herein , the preponderance of the
evidence fails to establish that Respondent engaged in
other violations of the Act and it will be recommended
that the allegations of the complaint to that extent be
dismissed.
THE REMEDY
Although Respondent Employer violated Section
8(a)(2) of the Act the normal remedy for that violation,
which results in setting aside the contract and invalidating
the certification of the Respondent Union, would permit
the Charging Union to accomplish indirectly through the
filing of an unfair labor practice charge what it could not
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accomplish directly by filing objections to the election.
The contract was executed prior to the rise of the
question concerning representation and is presently in a
temporary state of extension, apparently pending the out-
come of this litigation. The Respondent Union has been
selected by an overwhelming majority of the employees
concerned thereunder. Neither the contract nor the cer-
tification is, in my opinion, the fruit of the Respondents'
unfair labor practice. Having in mind the policy of the Act
that employees should be permitted, to the greatest extent
possible, the enjoyment of representation by their
selected collective-bargaining representative, the
withdrawal of recognition, or setting aside of the contract
would not, in my opinion, effectuate the policies of the
Act. However, inasmuch as orders dealing with unfair
labor practices have a preventive as well as remedial pur-
pose and effect, I recommend that the Respondent shall
cease and desist from infringing upon the rights guaran-
teed by Section 7 and post appropriate notices.29
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Respondent
Union, its officers, agents, and representatives, shall:
1. Cease and_ desist from:
Restraining or coercing employees in the exercise
of their rights guaranteed in Section 7 of the Act by
threatening employees with bodily injury or inflicting
violence on supervisory or nonsupervisory employees.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its offices at Houston, Galveston, Corpus
Christi, and Freeport, Texas, copies of the attached
notice marked "Appendix A."30 Copies of said notice, on
forms provided by the Regional Director for Region 23,
Houston, Texas, after being duly signed by Respondent
Union's representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 23,
Houston, Texas, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to
comply herewith.31
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
it is recommended that Respondent Employer, its of-
ficers, agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing its em-
ployees in the exercise of rights guaranteed in Section 7
of the Act, by entering into collective-bargaining negotia-
tions and a contractual agreement or by extending any ex-
isting agreement with Inland Boatmen 's Union of the
Seafarers International Union of North America, Atlan-
tic, Gulf, Lakes and Inland Waters District , AFL-CIO,
or any labor organization at a time when the claim of
another labor organization has raised a real question con-
cerning representation.
(b) Interfering with the administration of the Union set
forth above by conducting collective-bargaining negotia-
tions with any committee representing said Union which
includes in its membership any supervisors within the
meaning of Section 2(11) of the Act.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Post at Respondent's offices at Houston, Gal-
veston, Freeport, and Corpus Christi, Texas, copies of
the attached notice marked "Appendix B."32 Copies of
said notice, on forms provided by the Regional Director
for Region 23, Houston, Texas, after being duly signed
by Respondent Employer's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained 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 Employer to insure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 23,
Houston, Texas, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to
comply herewith.33
" North Electric Company, 129 NLRB 675
30 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
Si In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
See fn 30, supra.
5See fn 31,supra
APPENDIX A
Notice to All Members of Inland Boatmen 's Union of the
Seafarers International Union of North America, Atlan-
tic, Gulf, Lakes and Inland Waters District , AFL-CIO
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT restrain or coerce employees in the
exercise of their rights guaranteed in Section 7 of the
Act by threatening employees with bodily injury or
engage in infliction of violence on supervisory or
nonsupervisory employees.
INLAND BOATMEN'S UNION
OF THE SEAFARERS INTER-
NATIONAL UNION OF
NORTH AMERICA, ATLAN-
TIC, GULF, LAKES AND IN-
LAND WATERS DISTRICT,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
G & H TOWING COMPANY
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas
77002, Telephone 228-0611, Extension 4721.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of their rights guaran-
teed them in Section 7 of the Act, by entering into
collective-bargaining negotiations and a contractual
agreement or by extending any existing agreement
with Inland Boatmen's Union of the Seafarers Inter-
national Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO, or any
605
labor organization at a time when the claim of
another labor organization has raised a real question
concerning representation.
WE WILL NOT interfere with the administration of
the Union set forth above by conducting collective-
bargaining negotiations with any committee
representing said Union which includes in its mem-
bership any supervisors within the meaning of Sec-
tion 2(11) of the Act.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed by Section 7 of the
Act.
Dated By
G & H TOWING COMPANY
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas
77002, Telephone 228-0611, Extension 4721.