Goodpasture, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1971

189 N.L.R.B. 741 (N.L.R.B. 1971)

SERVICE MARINE CO.
Service Marine Company, Inc., A subsidiary of
Goodpasture , Inc. and Inland Boatmen's Union of
the Seafarers International Union of North Ameri-
ca, Atlantic , Gulf, Lakes and Inland Waters
District, AFL-CIO. Case 23-CA-3524
April 14, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On November 30, 1970, Trial Examiner Benjamin
K. Blackburn issued his Decision in the above-
entitled proceeding, finding that Respondent had not
engaged in the alleged unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs
and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: Inland
Boatmen's Union of the Seafarers International Union of
North America, Atlantic, Gulf, Lakes and Inland Waters
District, AFL-CIO, referred to herein as the Charging
Party or the Union, filed an unfair labor practice charge
against Service Marine Company, a subsidiary of Goodpas-
ture, Inc., referred to herein as Respondent, on January 27,
1970, and amended it on March 2. On March 20 the
General Counsel of the National Labor Relations Board,
741
by the Regional Director for Region 23 (Houston, Texas),
issued a complaint alleging that Respondent violated
Section 8(a)(3) and (1) of the National Labor Relations Act
by discharging seven named persons on either January 22
or 23, 1970. Respondent's answer, duly filed, admitted
certain allegations of the complaint and denied others,
including the allegation that it had committed any unfair
labor practices.
Pursuant to due notice, hearing was held before me in
Houston on September 22 and 23, 1970. The issue litigated
was Respondent's motive for terminating the employment
of the seven men named in the complaint. All parties
appeared and were given full opportunity to participate, to
adduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Upon the entire
record,' including briefs filed by all parties, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation whose office is
located in Galena Park, Texas. It is engaged in the business
of marine dredging along the Gulf Coast. During 1969 it
purchased goods and materials valued in excess of $50,000
from suppliers located outside the State of Texas which
were shipped directly to it at Galena Park. On the basis of
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
1. The General Counsel's case
In 1969 Respondent undertook to build a dredge of its
own design which incorporated some novel features,
including automation. Respondent used as the framework
of the new vessel its old dredge, Armadillo. It constructed
the new dredge in its own yard using its own employees.
Among the employees who worked on it were Perry
Henderson and Dan Stagg. Henderson was first hired by
Respondent sometime prior to May 1968, had a break in
service, and was rehired on June 3, 1969. Stagg was hired on
April 12, 1966. The new dredge was christened Armadillo II.
Armadillo II was first used, experimentally, in an effort to
free a ship which ran aground in Sabine Pass, south of Port
Arthur, Texas. Around the first of October 1969, although
still under development, it was assigned to its first regular
job, the deepening and widening of the Monsanto Chemical
Company slip at Texas City, Texas. The crew was made up
of men who had helped build it, including Henderson and
i The General Counsel's Motion to Correct Transcript is hereby granted.
189 NLRB No. 106
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stagg. On January 4, 1970, Respondent hired Saul Dugas to
work on Armadillo II. On January 5 it hired Roger Pace. On
January 7 it hired Robert Ellis. On January 13 it hired
Baldomer Alcocer. On January 15 it hired Jose Alcocer, Jr.,
and Guadalupe Betancourt.
On January 15 Thomas Glidewell, a patrolman for the
Union, began to organize the crew of Armadillo II.
Henderson signed an authorization card for him that day.
On January 16 Pace and Ellis signed authorization cards.
So did W. J. Davis, a member of the original crew who had
worked for Respondent since March 15, 1967. On January
19 Betancourt and Jose Alcocer, Jr., signed authorization
cards for Glidewell. On January 20 Stagg and Baldomer
Alcocer signed cards. Four brothers named Black, all
members of the original crew, were approached by
Glidewell but refused to sign cards. Dugas did not sign a
card. Apparently he was not approached by Glidewell.
Glidewell obtained authorization cards from employees
by talking to them on the shore at the point where
Armadillo II's launch picked them up and dropped them
off. On January 19 he spoke to Ray Schexnider, captain of
Armadillo II. He asked Schexnider for permission to come
aboard the dredge in order to talk to the crew about joining
the Union. Schexnider refused to give his permission,
stating that Respondent did not want any union officials
aboard the dredge.
On Wednesday, January 21, 1970, the Union sent a
telegram to Respondent in which it claimed to represent a
majority of the crew of Armadillo II and demanded
recognition. There were, at that time, 21 nonsupervisory
employees of Respondent working aboard Armadillo II 2
On Friday, January 23, Glidewell spoke to Paul Stapp,
Respondent's vice president and the executive in charge of
its operations, on the bank. Glidewell told Stapp that the
Union had not yet received an answer to its telegram. Stapp
asked him what he was talking about. Glidewell explained
that he worked for Paul Drozak, the Union's assistant
regional director and its top official in the Houston area,
and that the Union was demanding recognition as
bargaining representative of Respondent's employees on
Armadillo II. Stapp said that he knew Drozak and that he
and Drozak would get together and work it out. Glidewell
said, in that case, he would forget about what he had in
mind, i.e., picketing the dredge. Stapp told Glidewell to
have Drozak call him on Monday morning.
Also on January 23 Bowie Thompson, dredging superin-
tendent on Armadillo II, saw Glidewell standing on the
bank nearby. Thompson commented to a couple of
employees that Glidewell was a "persistent son-of-a-bitch"
in trying to sign up members of Armadillo II's crew.
On Monday, January 26, Stapp wrote a letter to Drozak
in which he acknowledged receipt of the Union's telegram,
expressed a doubt of the Union's claim to represent a
majority of the crew, and suggested that the Union file a
petition for an election with the Board to resolve the
question.
The seven discriminatees named in the complaint are
Henderson, Stagg, Pace, Ellis, the two Alcocers, and
Betancourt. Their employment terminated at the following
times:
Jose Alcocer , Jr., and Guadalupe Betancourt-at the end
of the 4 p .m. to midnight shift on January 21, 1970. Perry
Henderson-at 5 p .m. on January 22 after he had reported
for work at 4 p.m. Dan Stagg-at 10 a .m. on January 23
after he had reported for work at 8 a.m. Roger Pace , Robert
Ellis, and Baldomer Alcocer-a few minutes after 8 a.m. on
January 26 after they had reported for work at 8 a.m.
W. J. Davis still works for Respondent aboard Armadillo
II.
2. Credibility
The facts set forth in section 1, above, are undisputed.
They are based on the testimony of witnesses presented by
the General Counsel. He called Paul Stapp, Respondent's
vice president, as an adverse witness under Rule 43(b) of
the Federal Rules of Civil Procedure to establish the
background, including the employment record of the
discriminatees, and the fact that their employment ended
on the dates indicated. Stapp also testified as a witness for
Respondent. The only other witnesses called by the
General Counsel were Thomas Glidewell and Roger Pace.
Glidewell testified about the Union's efforts to organize the
employees, their signing of authorization cards, his
conversation with Captain Schexnider on January 19, and
his conversation with Stapp on January 23. Pace testified
about his personal experiences, particularly the circum-
stances under which his employment ended. The finding
that, on January 23, Thompson referred to Glidewell as a
"persistent son-of-a-bitch" is based on Pace's testimony.
The facts set forth in section 3, below, are based on the
testimony of Stapp and Bowie Thompson, the other witness
called by Respondent. In the sense that the General
Counsel would have me reject Respondent's entire defense
as unbelievable, discussed in section B, below, they are, of
course, disputed by him. In the more limited sense in which
I am here dealing with them, however, they are largely
undisputed in the record. For example, while the General
Counsel bases one of the arguments in his brief on Stapp's
characterization of Henderson and Stagg as men who did
not have sense enough to come in out of the rain, he made
no effort to refute the testimony during the hearing. Neither
Henderson nor Stagg was called as a witness. No witness
was asked a question about their abilities or capacities as
employees on the answer to which a contrary finding of fact
might be based. Elsewhere in the record, Stapp described
Henderson as "a likeable old boy, you would get mad at
him at the moment, but the next time you saw him you had
to like him because he would come up with some kind of a
joke." If the question of whether or not Henderson is a
"likable old boy," whatever that phrase means, were
important to the resolution of this case, the record would
provide no basis for a finding that he is not. Of course it is
not important, and I make no such findings in the section
which follows. However, the record also contains no
evidence that Henderson did not tell Thompson on January
22 that he did not want to do deckhand's work for
dumphand's wages, a very important fact. Therefore,
Thompson's testimony that Henderson did make such a
statement stands undisputed in the record. Most of the facts
2 See footnote 5 below
SERVICE MARINE CO. 743
set forth in section 3 are in the same category. Those which
are not are considered here.
Pace, for the General Counsel, and Thompson, for
Respondent, testified, in part, about the same events. In the
main, their stories agree, particularly with respect to what
was said to Pace on January 26. Thompson was asked
whether he ever called Glidewell a "persistent son-of-a-
bitch." His reply was "Not to my recollection, no sir." I do
not consider this answer as posing a credibility conflict with
Pace's testimony about the incident. If it does, I credit Pace
over Thompson. On the two points where there is a direct
conflict between the testimony of Pace and Thompson,
however, I credit Thompson.
Pace testified that he and Ellis were terminated, to his
surprise, on Monday morning, January 26, a few minutes
after they arrived for work. Thompson testified that he told
them on Friday, January 23, that he was going to lay them
off, that they should come in on Monday morning to pick
up their checks, and that they would work on Monday only
if the situation had changed over the weekend. I find that
Thompson first told Pace and Ellis, as well as Baldomer
Alcocer, about whom Pace did not testify, on Friday that
they were going to be laid off rather than on Monday but
that Thompson's statements to Pace about possible recall
took place on Monday, as Pace testified.
An important part of Respondent's defense is Thomp-
son's efforts to contact Pace, Ellis, Henderson, and Stagg to
recall them when Respondent got a contract to dredge
some slips in Galveston harbor. Thompson testified that he
was unable to locate Pace or his trailer at the trailer park
where Pace lived. Pace testified that, on the Sunday a week
before his termination, Thompson came to his trailer to
fetch him so that he could watch the dredge over the
weekend. Thompson denied that he did so. I find that
Thompson did not visit Pace at his trailer home prior to his
effort to find him in order to recall him.
The only credibility conflict in the record with respect to
Stapp's testimony concerns the state of his knowledge at the
time of his conversation with Glidewell on January 23. The
paper from which the Union's January 21 telegram was
read over the phone to Western Union indicates that
separate copies were sent to Stapp and to Grady
Goodpasture, Respondent's president. Stapp testified that
he never received the telegram and that the copy addressed
to Goodpasture lay on Goodpasture's desk unopened
without Stapp's knowledge until Saturday, January 24. I
credit Stapp and find that he was unaware of the Union's
demand for recognition at the time he talked to Glidewell
on January 23. Stapp did not deny knowledge of the
Union's organizing campaign. I find that Stapp and
Respondent were aware that employees on Armadillo II
were signing authorization cards for the Union at least as
early as Monday, January 19, when Glidewell talked to
Schexnider.
3. The Respondent's case
When the so -called Texas City disaster occured in April
1947, a ship blew up in the Monsanto Chemical Company
slip. As a result large pieces of debris had lain in the slip
since , limiting its usefulness . Clearing out the debris was
part of the project of improving the slip on which Armadillo
II was engaged, as well as deepening and widening it.
Whenever the dredge encountered debris, especially in the
part of the slip where the ship had been berthed when it
blew up, dredging stopped until the debris could be
removed. Sometimes removal was fairly simple , Respon-
dent removed the debris with its own salvage barge , and the
delay was short. At other times the general contractor had
to bring in its salvage ng while the dredge stood by, and the
delay was of longer duration. As a result, while Respondent
had originally expected to be finished at Texas City by the
end of December, it was still working in January 1970
although uncertain as to just how much longer it would be
there. Its uncertainty was due to the fact that the Corps of
Engineers had let a contract for dredging of the Texas City
turning basin. Armadillo If was pumping spoil from the
Monsanto slip to a dump area on Shake Island through a
submerged pipeline laid on the bottom of the turning basin.
Dredging of the turning basin would eventually require
removal of the spoil line. As events turned out, Armadillo II
finally left the Monsanto slip around March 1 without
finishing the job because the debris was damaging the
dredge and because of pollution problems.
Soon after the Texas City project started in October 1969
Stapp began discussing a contract to dredge parts of
Galveston harbor with officials of the Port of Galveston. As
originally visualized and discussed, this job called for
dumping spoil into the Galveston ship channel, where it
would be swept away by the current, and thus required
relatively short spoil lines. On January 2, 1970, Stapp
received a letter dated December 31, 1969, from A. C. Ellis,
Jr., the Port of Galveston's director of engineering and
planning, soliciting a bid on this basis to dredge an
estimated 150,000-200,000 cubic yards of silt from
specified slips. Stapp replied under date of January 12,
quoting a price of 36 cents per cubic yard, plus other
charges.
Stapp anticipated that Respondent would be awarded
the Galveston contract. He instructed Thompson to hire
additional men to handle the work involved. As a result,
Thompson hired Pace, Ellis, the Alcocers, and Betancourt
between January 5 and 15, as already indicated. Jose
Alcocer, Jr., and Betancourt applied for work together.
Only one of them could speak English .3 He told Thompson
that both of them were experienced dredge men. At the
same time, Stapp had been trying to contact an experienced
dredge leverman, Saul Dugas, in order to hire him for
Armadillo II. When Dugas got in touch with him, Stapp
offered Dugas a job and Dugas accepted. Stapp hired
Dugas on January 4, as already indicated.
On January 21, the last day they worked, Thompson
discharged Jose Alcocer, Jr., and Betancourt . He did so
because there was not enough work for both of them on the
same shift, and the one who could not speak English could
not work without his buddy to interpret for him.
Furthermore, Thompson was dissatisfied with their work
because, despite their assurances to him when they were
3 They are referred to in the record as the "the Mexican boys" The
inability of one to speak English and his consequent reliance on his buddy
for receiving instructions on what work to do are undisputed. Yet no one
could remember which was which.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired, both were unsatisfactory employees. The one who
could not speak English had demonstrated by his work that
he had no prior dredge experience whatsoever. Work was
scarce because dredging was about to come to a halt.
Dredging was about to come to a halt because the dredge
had encountered debris extensive enough to require the
services of the general contractor's salvage rig. The general
contractor's barge was about to be moved into the slip.
Thompson anticipated about a 2-week delay.
Sometime after he submitted his January 12 bid on the
Galveston job, Stapp learned that the specifications had
been changed. The Corps of Engineers had decreed that
spoil could not be dumped into the channel but would have
to be piped to a spoil area on Pelican Island. Stapp engaged
in further discussions with officials of the Port of Galveston
about the price he would have to charge under the changed
conditions. His anticipation that Respondent, rather than
some other bidder, would get the Galveston contract turned
to doubt. On Thursday, January 22, he instructed
Thompson to cut the crew of the dredge back to the old
employees because it looked like they were not going to get
the Galveston contract. Thompson told Stapp he had
already got rid of a couple of the new men.
Henderson and Stagg were dumphands, that is, when the
dredge was working, their station was at the end of the
pipeline on Snake Island. Dumphands are paid less than
deckhands. On January 22, since the dredge was shut down,
Henderson worked aboard. He reported at 4 p.m. and was
assigned to help clean the cutter head. Around 5 p.m.
Thompson asked him why he was standing around and not
doing any work. Henderson said he was a dumphand, not a
deckhand. Thompson said he was trying to give Henderson
some work aboard because he did not need a dumphand.
Henderson said he did not want to de deckhand work for
the price of a dumphand Thompson said that was all the
work he had, if Henderson did not want to do it, he "could
go on to the house," Thompson did not need him any more.
Henderson left the dredge and, apparently, never returned?
On Friday, January 23, pursuant to Stapp's instructions,
Thompson laid off Stagg, Baldomer Alcocer, and Ellis and
told Pace he was going to be laid off. He selected Stagg
even though he was not one of the new men hired in
anticipation of the Galveston contract because he had no
real dredge experience and, since the dredge was shut
down, there was no need for his services as a dumphand.
Stagg had reported for work at 8 a.m. Thompson laid him
off at 10 a.m. Alcocer worked the midnight to 8 a.m. shift
on January 23. When Thompson laid him off, Thompson
told him to come back on Monday morning to pick up the
wages due him. Thompson told him that, if there was any
change in the situation over the weekend, he would still
have a job. Ellis and Pace worked the 8 a.m. to 4 p.m. shift
that day. Thompson told them the same thing he had told
Alcocer. Pace worked a full shift on Saturday, January 24,
thus he was not actually laid off until the end of that shift.
Alcocer, Ellis, and Pace punched in at 8 a.m. on Monday
January 26, and punched out a few minutes later because
the situation had not changed over the weekend and, thus,
' The record does not indicate whether this incident took place before
or after Stapp's conversation with Thompson that day f presume that it
came after since Thompson did not indicate he told Stapp that Henderson
there was no need for them. Thompson talked to Ellis and
Pace. He told them that the general contractor's salvage
barge was coming in and would be there a couple of weeks,
that there was still a chance Respondent might get the
Galveston contract, and that, if he needed them, he would
look them up in 2 or 3 weeks. He did not tell Alcocer he
would come and get him because he had no intention of
ever recalling Alcocer. He had no intention of ever recalling
Alcocer because, at the time he had hired Alcocer, Alcocer
had told him he was on layoff status from another dredge
and only wanted to work until that dredge started on
another job.
On February 9 Stapp submitted a new bid for the
Galveston job at 40 cents per cubic yard. On February 12
he learned that if he could not bring Respondent's price
down to 38 cents the contract would go to another
company. On February 17 he submitted a bid at 38 cents
per cubic yard. On February 26 he was informed that
Respondent would be awarded the contract if he would
furnish a certificate that showed Respondent had the
requisite insurance coverage. He had Respondent's insur-
ance company send such a certificate to the Port of
Galveston the same day. On March 6 the Port of Galveston
sent Stapp an executed copy of a contract for the Galveston
job. Shortly thereafter Armadillo II began dredging slips
in Galveston harbor.
Sometime in the latter part of February, when Thompson
learned that Respondent was going to get the Galveston
job, he undertook to recall Henderson, Stagg, Pace, and
Ellis. He located Henderson in Baytown, Texas, where
Henderson was working in a tire recapping plant. He
offered Henderson a job. Henderson turned it down
because he was making more money on his new job.
Thompson went to Stagg's home in Baytown. Stagg was
out. Thompson left a message with Stagg's wife for Stagg to
call him. Thompson never heard from Stagg.
Thompson went to the trailer part in Texas City where
Pace lived. He talked to the manager of the trailer park and
one of the residents. Both said they knew Pace but could
not tell Thompson which trailer he lived in. Thompson
searched through the trailer park for Pace's automobile,
which he could have recognized. He was unsuccessful. He
failed to find Pace.
Thompson telephoned the apartment house in Texas
City which Ellis had given as his address. The person to
whom he spoke said that Ellis was not living there then and
had never lived there.
B. Analysis and Conclusions
The Charging Party's brief states, in the section headed
Conclusion:
The Union submits that there is substantial evidence
in the record to warrant a holding that the employees in
question were discrirrunatonly discharged because of
their Union activities; and, on the basis of the above
cited authorities, the Board clearly has the power to so
find.
The authorities cited are, principally, N.L.R.B. v. Putnam
had quit although he did indicate he told Stapp he had already discharged
Jose Alcocer, Jr, and Betancourt The point is unimportant
SERVICE MARINE CO.
Tool Company, 290 F.2d 663 (C.A. 6, 1961) and Eastern
Coal Corp. v. N L.R.B., 176 F.2d 131 (C.A. 4, 1949).5
I agree. The element of knowledge is provided by Captain
Schexnider's refusal to let Ghdewell go aboard the dredge
on January 19. Respondent obviously knew that the
organizing campaign was going on. Knowledge of which
employees had and which had not signed cards could be
inferred.
Respondent's opposition to organization is proved by
Schexnider's statement to Glidewell on January 19 as well
as Thompson's comment about Glidewell on January 23.
While not sufficient to establish animus in the sense of
hostility or hatred, these two incidents have sufficient
weight to tip the motive scales in the General Counsel's
favor if Respondent had placed no evidence in the other
pan.
Finally, the timing of the terminations, coming so soon
after cards were signed, the fact that seven out of eight card
signers ceased to work for Respondent, and the fact that the
one new employee, Saul Dugas, who did not sign a card was
retained all point toward the conclusion for which the
General Counsel and the Charging Party argue. If the
General Counsel's case were all there is in the record, an
inference would certainly be justified from circumstantial
evidence that Respondent's motive was an illegal one.
The two cases cited in the Charging Party's brief are an
apt illustration of the preponderance of evidence principle.
In Putnam Tool the respondent elected not to introduce any
evidence in its own defense but rested when the Trial
Examiner denied its motion to dismiss at the conclusion of
the General Counsel's case. In Eastern Coal the respondent
elected to present an extensive defense. It failed when the
Trial Examiner refused to believe it. In both Putnam Tool
and Eastern Coal the Board found a violation based on the
sort of circumstantial evidence presented by the General
Counsel here because the General Counsel had established
each respondent's illegal motive on the basis of a
preponderance of the credited evidence contained in the
record. This case, of course, is like Eastern Coal and unlike
Putnam Tool since Respondent presented evidence in its
defense.
The General Counsel's brief lists two issues in the case.
The first is the same as the issue set forth under the section
entitled "Statement of the Case," above, viz.:
I Were the seven alleged discriminatees fired
because of their activities on behalf of the Union in
violation of Section 8(a)(3) of the Act?
The second is:
2 Did Respondent sustain its burden of establish-
ing any economic justification for its defense in firing
the seven persons involved herein?
The General Counsel misconceives his task. Respondent
has no burden of proving a legal motive for whatever it did.
The burden of proof is solely on the General Counsel. His
5 The Charging Party's brief incorrectly states that the complaint alleges
violations by Respondent of Section 8(a)(5) in addition to Section 8(a)(3)
and (I) Both the charge and the amended charge the Charing Party filed
allege a refusal to bargain The complain does not There is no explanation
of why not in the record I presume, from a sentence in General Counsel's
brief which reads "As of mid-January, aboard the dredge, exclusive of
supervisors and construction hands, were 16 employees," that the Regional
Director concluded the Charging Party, having cards from only 8 men,
745
job is to establish by a preponderance of the evidence that
Respondent's motive was illegal. Thus the resolution of this
case comes down to a question of whether there is in the
record credited evidence which outweighs the circumstan-
tial evidence relied on by the General Counsel. And this
question, in turn, depends on whether I credit Respondent's
explanation of how the seven discriminatees happened to
stop working for it when they did. If I do not believe that
Stapp told Thompson to reduce the size of the crew on
January 22 becuase he thought Respondent had lost the
Galveston contract, or that Henderson refused to work and
walked off the job that day, or that Thompson had already
discharged two of the new men before Stapp ordered the
size of the crew cut back, or that Dugas was retained
because he fell into a unique category among the new men,
or that Thompson made a reasonable effort to find four of
the alleged discriminatees when Respondent actually got
the Galveston job, all that remains is the General Counsel's
case. It obviously meets his burden of proof.
As already indicated under the section entitled "Facts,"
above, I believe the testimony of Respondent's two
witnesses, Paul Stapp and Bowie Thompson. I do so for a
number of reasons. Principally, I believe them because
there was nothing about their demeanor on the witness
stand to cause me to conclude that they are liars, especially
in the absence of any significant amount of evidence from
the General Counsel against which to test or measure their
story. This subjective reaction is confirmed by other parts
of the record.
For one thing, documentary evidence relating to the
Galveston contract was introduced by Respondent. While
it is quite possible that Stapp was engaged in the
negotiations attested to by this collection of letters, notes,
and other papers at the time of the dates they bear without
ever doubting for a minute that Respondent would be the
successful bidder, it is unlikely. The dates prove Stapp was
dickering for the contract at the time the seven men left
Respondent's employ. His story of his thought processes
strikes me as the normal reaction of a businessman
resonsible for the operation of a dredge of new design still
under development.
For another, there is the fact that three of the seven
discriminatees do not fall into the General Counsel's theory
that Respondent seized on the Galveston contract as a
pretext to justify a layoffs-for-lack-of-work defense.
Henderson quit. Jose Alcocer, Jr., and Betancourt were
discharged for cause, apparently before Stapp told
Thompson to cut the crew. In the case of Stagg, he was laid
off despite the fact that he was a member of the original
crew. On this record, however, that is a point in
Respondent's favor, not General Counsel's. There is no
evidence to counter Thompson 's statement that Stagg was a
dumphand only and had no experience aboard dredges.
There is no suggestion that the dredge was not shut down at
never represented a majority of the crew The discrepancy between the
General Counsel's reference to the number of supervisors and construction
hands and my finding above that there were 21 nonsupervisory employees
aboard Armadillo II on January 21, 1970, suggests that appropriate unit
might have been an issue if the complaint had, in fact, alleged a violation
of Section 8(a)(5) by Respondent . Since it is not relevant to any issue raised
by the complaint or litigated before me, I make no finding on it
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time , waiting for the general contractor 's salvage barge
to move into position to remove debris, thus eliminating the
need for dumphands for a period of several weeks. Stagg
was laid off in the middle of a shift, not at the end like Pace,
Ellis, and Baldomer Alcocer, all experienced dredge hands.
Thus, the conclusion is inescapable that Thompson picked
Stagg for layoff because Respondent had no immediate
need for his services, not because he had signed an
authorization card for the Union.
Finally, under the General Counsel's theory, Respondent
discharged all seven of the alleged discriminatees . In fact,
four of the seven were laid off rather than discharged,
while the fifth one quit. That what Respondent did,
essentially, was to lay off employees for economic reasons
is confirmed by Thompson's efforts to recall four of them
when those economic conditions changed. The General
Counsel argues that Respondent only sought to recall
Henderson, Stagg, Pace, and Ellis in late February because
it wanted to reduce its backpay liability. There is no
evidence in the record to justify such an inference, not even
the date on which complaint issued. If Respondent had, in
fact, sought to limit backpay because a charge had been
filed and it knew it was guilty of discharging any or all of
these men for a discriminatory reason , it is much more
likely that it would have documented its efforts to recall all
of them in a lawyer-like way by sending them registered
letters rather than by sending Thompson out to look for
only four.
I credit the testimony of Respondent's witnesses about
what they said, did, and thought. This causes me, in turn, to
find that the various reasons Respondent advanced for the
terminations of Jose Alcocer, Jr., Guadalupe Betancourt,
Perry Henderson, Dan Stagg, Roger Pace, Robert Ellis, and
Baldomer Alcocer were its real reasons and not pretexts.
Respondent 's case outweighs the General Counsel's. The
General Counsel has not proved by a preponderance of the
evidence that Respondent's motive was a discriminatory
one within the meaning of Section 8(a)(3) of the Act.
Therefore, the General Counsel has failed to prove that
Respondent has violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact, and on the entire
record in this case, I made the following:
CONCLUSIONS OF LAW
1. Service Marine Company, Inc., a subsidiary of
Goodpasture, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Inland Boatmen's Union of the Seafarers Interna-
tional Union of North America, Atlantic, Gulf, Lakes and
Inland Waters District, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Jose Alcocer, Jr., and Guadlupe Betancourt on January 22,
1970, and by dischanng Baldomer Alcocer, Robert Ellis,
Perry Henderson, Roger Pace, and Dan Stagg on January
23, 1970, have not been sustained.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.