M & W Marine Ways, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1967

165 N.L.R.B. 191 (N.L.R.B. 1967)

M & W MARINE WAYS, INC.
M & W Marine Ways, Inc. and International
Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers &
Helpers , AFL-CIO. Cases 15-CA-2698 and
15-RC-3203
June 8,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 28, 1966, Trial Examiner
John M. Dyer issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and
recommended that such allegations be dismissed. In
addition, the Trial Examiner found that Respondent
did not engage in such conduct as would warrant
setting aside the election in Case 15-RC-3203.
Thereafter, the General Counsel filed exceptions
with a supporting brief, and the Respondent filed a
cross-exception to the Trial Examiner's Decision and
a brief in opposition to General Counsel's exceptions
and in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications.
We do not agree with the Trial Examiner's finding
that Foreman Frey's questioning of employee
Bourgeios was not violative of Section 8(a)(1) of the
Act.
The allegation concerning the interrogation of
Bourgeois was based upon Frey's questioning
Bourgeois, shortly before the election, as to how he
felt about the Union. The Trial Examiner, pointing to
the fact that Bourgeois had previously worn a union
badge, found this to be noncoercive. However,
considered in the context of Respondent's other
While we agree with the Trial Examiner that Respondent did
not violate Section 8(a)(3) of the Act when it discharged
Ernest Jones, we do not adopt his finding and conclusion that
Respondent had no notice that employees were engaging in union
activity at the time From the record, it is clear, and the Trial
191
unfair labor practices, and its avowed opposition to
organization of its employees, we find this incident
to be violative of Section 8(a)(1). In doing so, we
specifically note our disagreement with the Trial
Examiner's assumption, as indicated by his reliance
on Bourgeois' having worn a union badge, that
interrogation of employees concerning union
attitudes and beliefs can have no restraining effect
where the employee questioned has at some time
manifested prounion sympathies.
Nor do we agree with the Trial Examiner's failure
to recommend that the election be set aside on the
basis of Frey's statement to Jacobi that a lot of things
could happen to change the prospective union
victory and that employees who supported the Union
would be discharged if the Union won. The Trial
Examiner found that the threatening remarks,
though violative of Section 8(a)(1), furnished
insufficient grounds for setting the election aside. In
doing so, he relied on the fact the single 8(a)(1)
violation occurred midway in an organizational
campaign of 3 months' duration, was not shown to
have been communicated to any other employees,
and hence was an isolated incident having no effect
on a campaign involving 60 employees. In our
opinion, the Trial Examiner, in reaching this result,
neglected to give weight to all cogent factors bearing
upon the impact on an impending election of an
unfair labor practice during the critical period. Thus,
the instant threat was made in the context of an
election campaign charged by Respondent's openly
expressed opposition to the Union.' Shortly before
the petition was filed, Respondent through its
supervisory personnel coercively interrogated
employees, threatened discharge of union
supporters, and closure of the plant if the Union
were designated. Concededly, these unfair labor
practices, having occurred prior to the filing of the
instant petition, may not be considered as
independent grounds warranting our setting aside
the election; but, as the Board has held, such
conduct may be considered in evaluating the weight
to be afforded an allegedly isolated unfair labor
practice occurring within the critical period.2
Against this background, and considering the
Employer's continuous antiunion campaign
throughout the critical period, and the nature of the
alleged objectionable conduct, we are unwilling to
assume, as did the Trial Examiner, that the threat
made to Jacobi, whom Frey described as his right-
hand man, was not communicated to employees, so
as to reiterate to the employees the lengths to which
Respondent would go to avoid union organization. In
these circumstances, it is reasonable to infer that the
Examiner so found , that several supervisors had already
committed acts of interrogation with employees who in their
discussions with the supervisors indicated interest in and support
for the Union
2 Dee's of New Jersey, Inc , 161 NLRB 204
165 NLRB No. 24
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawful 8(a)(1) threat during the critical period
could have been influential in the outcome of the
first election.3 Accordingly, we shall set the first
election aside.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, M & W Marine
Ways, Inc., New Orleans, Louisana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified below:
IT IS HEREBY ORDERED that the election held in
Case 15-RC-3203, November 10, 1965, be, and it
hereby is, set aside and we shall direct a second
election.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be
conducted among the employees in the unit found
appropriate , at such time as the Regional Director
for Region 15 deems appropriate . The Regional
Director shall direct and supervise the election,
subject to National Labor Relations Board's Rules
and Regulations Series 8, as amended . Eligible to
vote are those in the unit who were employed during
the payroll period immediately preceding the date of
issuance of the Notice of Second Election , including
employees who did not work during that period
because they were ill , on vacation , or temporarily
laid off. Also eligible are employees engaged in an
economic strike which commenced less than 12
months before the election date and who retained
their status as such during the eligibility period and
their replacements . Those in the military services of
the United States may vote if they appear in person
at the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the
designated payroll period and employees engaged in
a strike who have been discharged for cause since
the commencement thereof and who have not been
rehired or reinstated before the election date, and
employees engaged in an economic strike which
commenced more than 12 months before the
election date and who have been permanently
replaced . Those eligible shall vote whether or not
they desire to be represented for collective-
bargaining purposes by International Brotherhood of
Boilermakers , Iron Shipbuilders, Blacksmiths,
Forgers & Helpers, AFL-CIO.
9 See, e.g , Harvard Coated Products Co., 156 NLRB 162.
4 Member Jenkins, for the reasons stated by the Trial
Examiner , does not agree that the interrogation of Bourgeios was
coercive, or that the election should be set aside , and would,
accordingly , affirm the Trial Examiner on these issues.
TRIAL EXAMINER'S DECISION
JOHN M. DYER, Trial Examiner: The International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers & Helpers, AFL-CIO (herein called
the Union), filed an 8(a)(1) and (3) charge against M & W
Marine Ways, Inc. (herein variously called the
Respondent, the Company, or M & W) on August 30,
1965,' alleging that on that day Respondent discharged
Ernest Jones because of his membership and activities in
behalf of the Union and that by other acts and conduct
Respondent interfered with and coerced its employees. On
the following afternoon, August 31, the Union filed a
petition for an election in Case 15-RC-3203, and
contemporaneously filed a form entitled "Request to
Proceed," so that the representation case could go forward
and not be blocked by the charge. On September 28, the
Union and Respondent entered into a stipulated
agreement for a consent election. According to
Respondent' s counsel , on that date he first learned the
Union was asserting that Jesse Ortega had been
discriminatorily discharged. Respondent' s counsel in a
letter to the Regional Office dated October 7, 1965, stated
Respondent had been assured on September 28, that an
amended charge alleging the discriminatory discharge of
Ortega had been filed together with an additional Request
to Proceed waiving the allegation of Ortega's discharge as
a possible later objection to the election; but that on
October 7, it learned that neither an amended charge nor
an additional Request to Proceed concerning Ortega's
discharge had been filed. Respondent protested and
asserted it was proceeding on the assumption that the
Jones and Ortega discharges were waived by the Union in
proceeding with the representation case. On October 8,
1965, the Union filed an amended charge adding
Jesse Ortega's name but leaving the date of discharge for
both Ortega and Jones as August 30.2 The Union
simultaneously filed an additional form Request to
Proceed.3
On November 10, 1965, a Board election was held, in
which 14 votes were cast for the Union, 40 against, and 3
ballots were challenged. By letter dated November 12, and
received by the Region on November 16, the Union filed
objections to the election. Following an investigation, the
Regional Director, on February 28, 1966, issued his report
on objections recommending to the Board that a hearing
be held to resolve issues raised by the petitioner's
objection concerning a speech made by Respondent's
General Manager Wall shortly before the election, and
concerning issues of interrogation , spying on union
activities, threatening employees with plant closure,
requesting employees to report on activities of other
i Unless otherwise given, all dates herein occurred in 1965.
2 The complaint and testimony establish that the Ortega
termination occurred September 3.
3 The body of the Request to Proceed (Form NLRB-4551) is as
follows-
The undersigned hereby requests the Regional Director to
proceed with the above-captioned representation case, not
withstanding the charges of unfair labor practices filed in
Case No. . It is understood that the Board will not entertain
objections to any election in this matter based upon conduct
occurring prior to the filing of the petition.
It is self- evident that this form contains no language which could
be interpreted as a waiver of any events which occurred after the
filing of the petition
M & W MARINE WAYS, INC.
employees, and the discriminatory discharge of
Jesse Ortega, all of which, with other alleged misconduct,
were alleged as 8(a)(1) and (3) violations in the complaint in
this matter issued on the same date. The Regional Director
recommended that a consolidated hearing be held on the
representation and unfair labor practice cases.
On April 12, the Board adopted the Regional Director's
recommendations and ordered the consolidation of the two
cases noting that Respondent's argument concerning
waiving of certain conduct was without merit since under
Board rules conduct occurring after the filing of the
petition can be urged as objections.
Respondent's answer which admitted some events, such
as the discharge of Ernest Jones, the granting of raises in
November 1965, and the termination or departure of
Jesse Ortega, denied that any of its conduct or actions
violated the Act.
At the April 20-22, 1966, hearing, all parties were given
full opportunity to examine and cross-examine witnesses
and helpful briefs have been received from the General
Counsel and Respondent and have been considered.
On the record in this case, and on my evaluation of the
reliability of the witnesses, based both on the evidence
received and on my observation of their demeanor while
testifying and while present in the hearing room, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent is a Louisiana corporation with its principal
office and place of business in Plaquemine Parish,
Louisiana, where it is engaged in the building and
repairing of barges, tugs, and ships at its location on the
Harvey Canal. Respondent annually purchases in excess
of $50,000 in steel products from companies located
outside the State of Louisiana, which products are
delivered to it. Respondent annually performs services
valued in excess of $50,000 for companies engaged in
interstate and foreign commerce.
Respondent admits the above facts and I find and
conclude that Rcspondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO,
is a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
Charles Wall is the general manager of Respondent, its
secretary-treasurer , and with Murph, the principal owners
of the Company. A second company, known as Walmurco,
apparently was started around March 1965, by Wall and
Murph, with Wall as the general manager and president.
Wall is the operating head of both companies . Walmurco's
location is some distance from M & W, on the Harvey
Canal. Walmurco's drydock was built at the M & W yard
using Walmurco employees and M & W employees as they
were needed, so that some M & W employees were under
193
Walmurco supervision on occasions. O. C. Frey is the
superintendent at M & W. "Buddy" Canulette was made
the operating manager at M & W after Frey went to
Walmurco. Under both Frey and Canulette are various
supervisors and some nonsupervisory leadmen.
Ernest Jones, the initial alleged 8(a)(3), was hired by
O. C. Frey, at the M & W shipyard in 1963. After working
some 3 or 4 weeks, Jones was badly burned in a shipboard
fire at M & W. Canulette pulled Jones from the fire and
extinguished Jones' flaming clothing. Jones nearly died as
a result of his severe burns and was in the hospital several
months and home approximately 7 months, returning to
work in the late summer of 1964. While in the hospital,
Jones was visited on a number of occasions by
Charles Wall and the two discussed some of their
background, including Jones' earlier history as a union
organizer and his attempts to organize unions in a number
of companies, including some in the New Orleans area. In
latter 1963, Wall was hospitalized for about a week and
had the room across the hall from Jones, leading to more
conversation between the two. Jones' badly burned legs
caused him discomfort since they were weak and sensitive
to heat. On his return to work, Jones would sometimes
mention to supervisors that particular jobs caused him
discomfort because of the position in which he had to
stand, or because of the amount of heat present. Jones did
second or third class welder's work4 and was apparently
paid second class wages.
Pertinent to an interpretation of the facts in this case, is
an attempt to understand the personality of Ernest Jones.
His deep, raspy voice, his speech, his ample size and
general mannerisms, reminded me of braggadocio
characters portrayed by the deceased movie actor,
Wallace Berry. If allowed a chance to give a long answer,
Jones would expand and expound on the theme of his
testimony, adding depth and character to it by injecting
descriptive phrases or comments. His testimony was
something he apparently had in mind as a whole picture,
which he needed to present as a whole. Where his
testimony was interrupted by questions or an objection,
the style was broken, and the flavor lacking, but when
allowed to expand, Jones was a master storyteller. For
example he expanded on his original description of various
arguments he testified he had with Wall by injecting that
Wall had called him a communist and adding that Wall
told him to go to the Labor Board. Such additions to
testimony conceivably could come about as a result of
revived memory from going continuously over a happening
and recalling additional facts, particularly if the testimony
accorded with objective facts or was corroborated by
others. But such is not the case here.
Respondent's witnesses, one after the other, agreed
with some of the minor facts Jones provided, but disagreed
entirely with most of the major facts on which his case
rests. Jones, for instance, claimed he was a good welder
and never received any criticism concerning his work.
Several Respondent witnesses discussed Jones' poor work
and the criticism and suggestions offered to him. In fact, a
witness who testified for the General Counsel
characterized Jones' work as among the worst in the yard.
Jones' talkativeness, of which Respondent's witnesses
continuously complained, was evidenced by Jones'
garrulous testimony and his ability and penchant for
4 Second and third class welder's work consists mainly of
welding on flat and sometimes vertical surfaces. First class work
includes welding overhead or in any position.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressing himself fulsomely. In addition, objective
evidence, such as Respondent's records relating to his
dates of work and raises did not agree with Jones'
recollection. Jones was sitting in the hearing room as
Respondent's witnesses testified about his shortcomings.
Jones, who started his testimony as a supremely confident
man, appeared more and more restless as the hearing
proceeded, and he visibly slumped, with his face showing
his discomfort. He appeared at times to rally, but to me, on
the whole, appeared shaken by the critical testimony.
Perhaps, the final blow to Jones' credibility was
administered by Jones himself. He admitted during cross-
examination that he had a very poor memory and stated
that when something important happened to him, he would
take notes, since taking notes made him remember the
incident. He stated that he took no notes whatever
regarding any of the events concerning which he testified,
and relied entirely on his self-described poor memory.
Jesse Ortega is a welder who had worked for
Respondent about 2-1/2 months at the time of his
termination . Ortega evidenced some difficulty in
understanding some of the questions put to him, a
difficulty which might be ascribed to his Spanish lineage
and to his greater familiarity with the Spanish language.
Ortega was a fairly straightforward witness and his
testimony and that of Supervisor Frey concerning his
termination are not irreconcilable.
Essentially there are three issues presented by these
consolidated cases:
1. Were Ernest Jones and Jesse Ortega terminated
because of their individual union activities?
2. Did Respondent's agents coercively interrogate and
threaten its employees and did the raises it granted in
November 1965 violate Section 8(a)(1) of the Act?
3. Did the termination of Ortega, the granted raises in
November 1965, and other alleged 8( a)(1) actions, in
combination with a speech given by General Manager
Wall, inhibit the employees' freedom of choice in the
representation election?
B. Jones' Discharge
Jones acknowledged that "Buddy" Canulette knew he
was a union member when he first came to work, since he
and Canulette had both worked at Todd Shipyards, where,
Jones states, he was the chief union steward. He
acknowledges also that Mr. Wall learned of his union
affiliations during the time he was in the hospital. Jones
testified that in March 1965, "Buddy" Canulette fired him,
stating that he couldn't do the work. He followed
Canulette to the office saying he wanted to see Wall and
Wall joined them. He states he told Canulette he was a liar
if he said he had ever squawked about his work, that Wall
was looking for a fall guy, since Wall thought Jones was
trying to bring in a union, but Wall was wrong. He
testified Wall said that maybe Jones wasn't going to
organize them but he was going to set up Martin, the union
agent, to-do so. Jones claims that he told Wall he had no
intention of bringing the Union in on him then, and they
walked back into the office where he told Wall all the good
parts about having a union. He states he told Wall that he
was not after his shop as much they were after the
Avondale Shop and that he would put the Company "on
ice" if Wall would promise to give the men a vacation
after 1 year's service, recognize seniority, and hire some
dischargees from the Avondale Shop. Jones says he told
Wall that this arrangement was to be just between the two
of them, and if the boys "moved" (by which he meant if the
employees started organizing a union) he couldn't do
anything about that. He states Wall said he didn't want to
be a martyr, would think about it, and would have
Canulette put him back to work. Jones saw Canulette was
put back to work and a week or two later told Canulette
"Now since I have been fired and I am back to work I want
more money" and Canulette stated he would see what he
could do about it. After hearing nothing for 2 weeks, Jones
had a conversation with Wall and told him that he needed
more money. After some discussion he states Wall said he
would talk to Canulette about it and he got his raise a week
or two later which would have been mid-April according to
Jones' time estimates. Jones said he told other employees
that he was responsible for their getting a raise shortly
after this, since he had spoken up and gotten his raise.
Jones testified that prior to his discharge by Canulette,
William Melancon, a supervisor, whom Jones called a
pusher, tried to discharge him on several occasions. He
states that he told Melancon that he would have to get
Charlie Wall or "Buddy" Canulette to back'him up that he
was fired, that he wouldn't take Melancon's word for it.
Jones also stated he felt that it was on his recommendation
that Melancon was relieved of his supervisory duties. In
another conversation with Wall, Jones says he asked Wall
why he didn't hire two men from Avondale. He states Wall
said the two men wore union badges. Jones states he told
Wall that he was supposed to help the men and since he
was "on ice," he had conditions to live up to. He states
that after talking to Wall, he talked to Canulette, telling
him that he was to hire two men, the Perkins boys. He
states that Canulette told him he would hire them and
Jones should have them there by 8 o'clock the following
morning and to be sure to keep the shop "on ice." He
states on the following day he saw Wall and told him that
the Perkins boys had gotten a job elsewhere.
Jones' next declamation is that in June he asked Wall
why he had not posted a notice regarding the vacations,
since he and Wall had agreed on a company policy. On the
same day Wall put up a notice stating that the policy was
to give a 1-week vacation to 4-year men and to drop the
required 1 year each successive year until the 1-year men
would get a 1-week vacation. Jones states that he took a 2-
week vacation the same week this notice was posted. As to
the agreement about vacations Jones said that shortly
before he got his raise, he had a conversation with Wall
about vacations, in which he referred to a commitment
Wall made to give the 1-year men a vacation, and that he,
Jones, had already told all the 1-year men that they were
going to get a vacation. After his 2-week vacation, Jones
stated work was slack at M & W and he asked for an
additional 2 weeks off, at which time he went to work for
another employer named Buck Kreibs. He states that after
returning from this employment he had an occasion to
show Charlie Wall his check stub, that he made $3.39 an
hour, or 66 cents an hour more than he was making at M &
W He states he told Wall that Wall had treated him good
but they treated him well over at Buck Kreibs and paid
him a lot more and if the opportunity ever came for him to
go there, he would leave M & W and go to work for Kreibs.
He says he also told Wall that he needed a raise since he
could make so much more at Kreibs. According to Jones,
Canulette told him on Friday, August 27, that he was
getting his raise.
Jones' story of the discharge is that on Monday,
August 30, after getting Hill's approval for a change in his
job assignment, Hill came to him a few minutes later and
discharged him. He states, he said to Hill, "Oh, this old
M & W MARINE WAYS, INC.
thing again," and went to see Charlie Wall concerning his
discharge. Jones testified that when he came from his
vacation, the Union started organizing M & W, and that he
found an occasion at that time, a month prior to this
discharge, to tell Wall that the Union was breathing down
his neck and he was no longer "on ice." On reaching the
office, Jones states he asked Wall if he wanted the door
closed and that Wall then called him a ". . double-
crossing ...." He answered by reminding Wall he had
warned him 3 or 4 weeks previously that the Union was
fixing to take him, and Wall said that Jones was supposed
to keep the Union out. Jones replied that he didn't organize
it. After more strong language between the two, Wall
ordered him off the property.
Taken by itself Jones' testimony would make a forceful
case that he was discharged for not preventing the Union
from coming into the plant. But when his story is placed in
the context of other events, large gaps appear which make
it evident that the story is not completely true. Jones'
testimony, of necessity, makes it clear that Jones felt he
was a big man in the Company with sufficient leverage to
dictate policy to General Manager Wall and that his job
was perfectly secure. Jones' testimony also indicates he
feels he is one of the union leaders and could decide union
policy as well.
Respondent's view of Jones makes a completely
different picture. According to O. C. Frey, he considered
discharging Jones because of his poor welding prior to
Jones' accident in the fall of 1963. Canulette said that the
supervisors underneath him complained regularly about
Jones' poor work and that he decided to discharge Jones
early in 1965 for sloppy work Jones had done on a barge.
After welding, the barge was tested with air pressure, and
the number of air leaks was so enormous, he told Jones he
was fired, took him to the office, and told the girl to make
out his time. He denied ever praising Jones' work, saying
he only tried to encourage him to do better In the office,
Jones complained to Wall that Canulette fired him, Wall
said that he was fired and Canulette left the office. Wall
testified that this discharge took place in January 1965,
and he placed the time by personal events which occurred
at that time. According to Wall, Jones showed him his
burned legs saying, "They are trying to fire me, I can't
work nowheres else" and asked what Wall would do about
it. Wall told him he would speak to Canulette and for Jones
to go back to work. Wall did not remember the particulars
of any further conversation between them, and denied
Jones had threatened to go to the Labor Board, stating that
if he had been so threatened, it would have been his
natural reaction to tell Jones to go to the Board. When
Jones returned to Canulette, he told him Wall said to put
him back to work. Canulette told Jones to wait and went to
the office to see Wall. Wall told him he felt responsible for
Jones' burned legs and to tolerate Jones and try to work
him, since Jones couldn't work any place else. Wall
corroborates this conversation. Canulette told Wall it was
a big pill to swallow, since he was continually receiving
complaints from foremen about Jones' work. Canulette
received a number of complaints from Melancon that
Jones butchered frames when he was working. He told
Melancon there was nothing he could do about firing
Jones, since Wall felt responsible for Jones' physical
condition and they should put up with him and keep him
working. After that, when Melancon complained about
Jones' work, they would shake their heads and keep
working him. When Sam Hill replaced Melancon, Hill
complained to Canulette on the average of twice a week
195
about Jones' poor work. Canulette told Hill that Wall felt
responsible for Jones' physical condition, that they
couldn't do anything about him and since Wall wanted to
keep him on, they would just have to work him as best they
could. Supervisors Hill, Frey, and Cedatol and fellow
employee Mitchell, all testified to the poor quality of
Jones' work. All the men agreed that Jones was used
mainly on flat work and in places where he couldn't do too
much damage.
Jones placed a number of conversations regarding the
Union with Wall in March and April prior to the time that
he received his raise from $2.63 to $2.73. Jones was not
positive as to the dates. The employment records show
that Jones received this 10-cent raise on February 28. This
objective evidence corroborates Respondent's testimony.
Therefore all of the conversations which Jones testified
took place in March or April, if they in fact occurred,
preceeded February 28. Thus all of Jones' conversations
with management prior to his raise, would have taken
place more than 6 months before the initial charge was
filed, so that even if Jones were credited, Section 10(b)
would preclude findings of violation here. The raise Jones
contends he got on the last full day he worked, August 27,
is not shown on his payroll record.
In considering Canulette's discharge of Jones, there is
no particular reason advanced by Jones or the General
Counsel as to why Canulette would have picked the first
months of 1965 to discharge Jones because of his union
affiliations. Jones' union predilections were known to
Respondent long before this date and so far as the record
shows, neither Jones nor anyone else had started any
organizing campaign or other union activity which would
have prompted the "Union oriented" discharge Jones
claims occurred. It is not until after this discharge that
Jones testified he started to talk a deal with Wall about
keeping Respondent "on ice." Therefore, Canulette's
attempted discharge at that time had no antiunion
inspiration, but must have been motivated by Jones' poor
work as Canulette testified. Hill and Wall agree that on
August 30, Wall was telling Hill he had to get more
production. Hill told Wall he couldn't because he had
people on his payroll who couldn't do the work. When Wall
asked why he didn't do something about it, Hill said that
he couldn't. At this time Jones walked up and said he
wanted to change jobs because his assignment bothered
his legs. After Hill permitted him to do so, he pointed to
Jones as one of his main problems saying it was impossible
to fire him and asked Wall what Jones had on the
Company or on Wall that kept them from firing him. Wall
said Jones had nothing on the Company or him, but that he
felt sorry for Jones since he had been hurt in the fire, and
they kept him on since he needed a job. Hill retorted that
Wall's feeling sorry for Jones didn't help Hill when Wall
came around asking why the work wasn't being done. Wall
said that since Jones showed him his check from
Buck Kreibs, it was evident that he could find work
elsewhere and it was no longer necessary to keep him out
of sympathy. Wall told Hill he could discharge anybody
that wasn't doing his work. Hill requested assurance that
he meant what he said and upon receiving it, immediately
left to discharge Jones. On August 30, nothing of any
import concerning the Union had occurred which would
have raised a question about the Union coming in at that
time. Jones testified that several weeks before his
discharge he told Wall that the Union was "fixing to come
in on him" and that he was no longer "on ice." If Jones'
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement is true then Wall would have had no reason to
discharge him on August 30, since nothing occurred on, or
immediately before, this date to bring it up. Jones seeks to
take care of this discrepancy by stating he reminded Wall
that he told him earlier he was no longer "on ice." Late
that day the initial charge was filed in Jones' behalf, but it
was not until the following day that the representation
petition was filed. So Respondent, other than Jones'
alleged conversation with Wall, would not have been
apprised of the Union's readiness to move on it, until it
received a copy of the petition. Thus there is no union
action or reaction shown to have pulled the trigger of
Jones' discharge and we are left with Jones' poor-quality
work as the only reasonable cause for the termination.
I have no doubt but that Jones talked about the Union a
number of times to a lot of people, including General
Manager Wall, while he was working at Respondent. Wall
testified Jones was always saying something about the
Union to him and talked to him so many times, he paid no
attention, not knowing what to believe Jones could or
would do, except for his knowledge that Jones did have
something to do with the Union. Jones' statement that he
had made a deal with Wall that the 1-year men were to get
a vacation is contradicted by the vacation notice which
was put up, and Jones' statement that he told Wall to put
up the notice the week he, Jones, took his vacation, is
disproven by Jones' employment records which show
Jones took his vacation (a 2-week leave without pay) from
June 20 to July 5, or more than a week after the vacation
notice was posted. Again the objective evidence
corroborates Respondent and disproves Jones' testimony.
Similarly, Jones' 2-week time off to work for Buck Kreibs,
ended in August, the week prior to his discharge, and not
earlier in July as his testimony sought to establish.
If Wall ever thought that Jones might organize him, he
had no reason to become suddenly fearful on August 30,
1965. He had known for a period of nearly 2 years that
Jones was a union protagonist who had tried to organize
various companies for which he worked. There were no
overt union acts performed by Jones or by anyone else in
either the winter of 1965 or on August 30, to cause Wall to
suddenly decide that Jones had to be discharged. Simply
stated, Jones' testimony does not hang together when
matched with the remaining testimony and with objective
evidence and it appears that Jones is attempting to
fabricate a case rather than present objective facts which
make a case. His case in essence is that he was mistakenly
discriminatorily discharged for bringing in the Union,
although he had sought to keep it out. It may be that Jones
is convinced this was the reason he was discharged and it
is because of this that he testifies as he does. But the
testimony presented does not show this to be the case.
One additional example of his testimony failing, since
objective evidence denies it, was that Jones testified there
was a general raise of 11 cents a man after he got his 10-
cent raise in what he termed April, actually February 28.
On cross-examination, Jones stated his testimony in this
regard was based only on his remembrance of going
around telling the men that they got such a raise.
Objectively, the list of all raises granted employees,
Respondent's Exhibit 6, shows there were 14 raises given
in February, all of which preceded Jones', and 13 raises
given in March. Seven of these took place on March 1, the
day after Jones' raise, six of which were for lower-ranked
employees who were raised 12 to 16 cents an hour and one
of a higher-ranked employee. The other March raises
were; one 11-cent raise on the 14th, a 15-cent raise on
March 20, and four raises on March 29 of 10 or 15 cents.
It is possible that in an attempt Jones felt warranted to
keep or solidify his job, Jones may have offered to keep the
Union out of Respondent; but it is improbable to conceive
that Wall would have relied on such a promise from Jones.
As Wall stated, it was impossible to know what Jones
could or would do. The examples of Jones' boasts bear out
Wall's observations. From my observation of the witnesses
and their demeanor and from their testimony, I cannot
credit any portions of Jones' testimony which is not
corroborated either by other witnesses or by any objective
evidence. Jones is familar with Unions and apparently had
some familiarity with Labor Board proceedings, and I
believe that Jones' testimony was predicated by what he
felt was necessary to prove a case of discrimination. There
being no corroborative testimony to establish that Jones
was discriminatorily discharged, and in fact, all the
testimony which is corroborated establishing that there
was no discrimination, I am obliged to make that finding.
C. The Alleged Discriminatory Discharge of Jesse Ortega
Jesse Ortega, a welder, worked for Respondent under
"Whitey" Frey for about a month and under Canulette and
other supervisors for the balance of his 2-1/2-month
tenure. According to Ortega, his union activity consisted
of signing a union card in August, attending some union
meetings, and getting three or four others to sign cards.
Witnesses for Respondent described Ortega as a good
welder who spent a lot of time off his job either getting
"cokes" or talking to other men. The version of the
conversation which led to the discharge of Ortega, is
substantially the same whether given by Ortega or by Frey
as corroborated by Jacobi. All of Respondent's witnesses
denied having any knowledge that Ortega was favorable
towards or working for the Union. In fact, most of
Respondent's witnesses and some of General Counsel's
witnesses state that other employees were known as union
adherents or leaders rather than Ortega.
To establish company knowledge of Ortega's prounion
sentiment, General Counsel offered the testimony of two
witnesses. Jacobi originally testified that Ortega's name
was brought up in a conversation with Supervisor Frey as a
union sympathizer. Jacobi was unsure whether this
occurred while employees were wearing union buttons or
not, but was sure Ortega's name was not mentioned with
the names of Dufrene and Bourgeois whom Frey predicted
would have a limited term of employment if the Union
came in. Jacobi said the men had discussed who might be
involved in the Union and Ortega's name was mentioned
then, but the testimony is not clear who brought up
Ortega's name in Jacobi's conversation with Frey. Jacobi
indicates that in the conversation when Ortega was
named, Frey said something about changes around the
yard. It is not clear whether there was one or more
conversations in which Frey said Wall would close the
plant if the Union came in. The most I can, with certainty,
conclude is that in a conversation, somewhere around the
time union buttons were worn, either Frey or Jacobi
brought up Ortega's name and Jacobi said he heard Ortega
was for the Union.
Bourgeois testified on direct examination that 3 to 4
days before Ortega was discharged, Frey asked him if
anyone had spoken to him regarding the Union, that he
replied no, and Frey asked if he knew Jesse Ortega. He
M & W MARINE WAYS, INC.
replied , he didn' t know him well and Frey said "I think he
is one of the instigators ." On cross-examination , Bourgeois
stated that Frey did not mention Ortega's name but
nodded towards Ortega, and Bourgeois makes no mention
of the instigator statement . Shortly after making this
statement , Bourgeois changed his testimony to state that
Frey, after asking if he knew Ortega and receiving the
reply not very well, said , "I think he is going to be the
instigator." Bourgeois was then shown the affidavit he had
given to the Board in which he said Frey came up to him
and asked if any of the men talked to him about the Union;
that he replied no one has and that Frey motioned in the
direction of Ortega. Bourgeois was further cross-examined
as to a statement he had given to Respondent's
representatives in which he said he had no reason to
believe Ortega was fired because of the Union and that the
only time the Union had ever been mentioned to him by
Frey was in a completely different conversation.
As to the Jacobi conversations , I believe that on one
occasion he and Frey discussed a number of people who
might be union sympathizers and in discussing various
people, Ortega's name was mentioned . I do not believe
that Frey told Bourgeois that Ortega was one of the
instigators . Such a flat statement when contrasted with his
statement to the Board , his statements to Respondent's
counsel , and the contradictions in his testimony , make it
appear to be an afterthought . Therefore , I do not believe
that Respondent had knowledge of Ortega's union activity,
except for the random appraisal by Frey and Jacobi that
Ortega might be sympathetic to the Union . The paucity of
Respondent ' s knowledge of Ortega' s minimal union
activity persuades me that union considerations were not a
part of the reasons for Ortega' s termination.
Respondent 's testimony regarding Ortega as expounded
by Canulette, Cedatol, Frey, and Hill, was that Ortega was
a capable welder who would do excellent work as long as
he stayed on his job . The problem with Ortega according
to these four Respondent witnesses was that Ortega would
leave his job at the slightest provocation to go get
something to drink and would invariably try to get other
men to go with him. Again according to Respondent's
witnesses , he was warned time after time that if he wanted
to go get a coke, to do so and come back, but not to take
people with him. Canulette testified that on one occasion
Ortega was stationed beneath a barge to weld leaks in the
plates which were to be found by flooding the interior of
the barge with water . Where the water leaked through,
there Ortega was to weld . After telling Ortega precisely
what to do, the water test was started and Canulette yelled
for Ortega to start welding and not getting a response went
underneath the barge and found Ortega missing.
Canulette searched for him and found him drinking a
coke. Ordered back to the barge , Ortega was not able to
make the welds since by that time enough water was in the
barge to build up a head of pressure on the holes.
Canulette and the supervisors underneath him attempted
to keep Ortega by himself where he could not talk with, or
possibly influence other men to go with him when he went
on a break . When Ortega was loaned to Frey, he was told
by Canulette of Ortega's predilections for leaving the job
for cokes and for talking and for taking other men with
him. On the day of his termination Ortega was working for
Frey. Frey testified that in the amount of time Ortega was
supposed to have been working , he could have produced
30 to 40 feet of welding but had produced only 10 feet.
From testimony adduced by Respondent , it is apparent
197
that Ortega was not at his job on three or so occasions
when Frey made his rounds to check the work. Ortega
stated that on the final occasion after going to the
bathroom and on his way back, Frey whistled for him to
stop, asked him where he had been, but apparently didn't
believe his answer . Ortega stated that Frey said he was not
satisfied with his work, didn 't believe that he was doing his
job, and that he was loafing. Ortega and Frey then
discussed whether Ortega was working at his best or not.
Frey testified he told Ortega that he would have to do
better than he had been doing and Ortega said that he was
doing the best he could. Ortega testified that Frey told him
he wasn 't satisfied with his work and wanted him to knock
it off. Ortega said he asked if Frey wanted him to pick up
his things and that Frey said yes. According to Jacobi who
overheard most of the conversation , Frey told Ortega that
he would have to do substantially better or he would have
to knock him off. Ortega said that he was doing the best he
could and asked if Frey wanted him to roll up . Frey said if
he couldn ' t do any better he might as well roll up. Ortega
said he would roll up and Frey replied , "All right then you
are discharged ." Frey corroborates this discharge
statement.
The weak evidence of Respondent 's knowledge of
Ortega's minimal union activity coupled with the nature of
the discharge and the corroborated testimony of Ortega's
work habits , prevents any finding that Ortega was
discharged in violation of Section 8(a)(3) of the Act.
D. The Employer 's Wage Increases of November 15, 1965
The complaint alleges that Respondent granted wage
increases in latter November 1965 for the purposes of
defeating the Union 's organizing efforts and to discourage
union and other concerted activities of its employees.
There are no allegations in the complaint concerning any
promises of wage increases if the Union were kept from
the plant , nor any allegations that wage increases were
denied because the Union was on the scene. As supporting
evidence , the General Counsel relied mainly on the fact
that a large number of wage increases were granted to
employees on November 15, 1965, during the period when
the Union was filing objections to the election , which fact
Respondent admitted in its answer . Respondent 's answer
added that the wage increases were granted subsequent to
the representation election of November 10, which the
Union lost , and denies that the reasons for the increases
were as alleged by the General Counsel.
Respondent ' s Exhibits 6 and 14 contain the wage
increases that were granted to all employees at M & W
and at Walmurco from January through December 1965.
Respondent ' s Exhibit 14, the Walmurco payroll exhibit,
shows that Walmurco 's first payroll was in March 1965,
and the first raises granted to Walmurco employees were
in May when seven employees received wage increases.
Wage increases for the Walmurco employees from June
through August are comingled with the M & W raises in
Respondent 's Exhibit 6. In September there was one
Walmurco increase, another in October , four in
November , and none in December.
Respondent ' s Exhibit 6, the M & W payroll exhibit,
shows 2 increases in January , 14 in February , 13 in March,
16 in April , 8 in May, 3 in June, 7 in July, 5 in August, 7 in
September, 8 in October , 37 in November, and 1 in
December . Of the 37 M & W employees who received
raises on November 15, 5 days after the union election, 8
employees had received 1 raise during the period of
299-352 0-70-14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January to November 15, 11 had received 2 raises, 4 had
received 3 raises, and the remaining 14 received only this 1
raise in that year.
It appears from Respondent's Exhibit 6, that some of
the wage rates for various work classifications were raised
by this November increase, such as the apparent previous
top rate for a first class welder going from $3.26 to $3.35.
In explanation of why so many people were raised in this
one period, Respondent's witnesses Canulette and Wall
credibly testified that during the period of the union
campaign, they had been counseled by their attorneys to
hold merit increases to a minimum and that they followed
this advice. Both men also credibly testified that following
the hurricane which caused severe destruction in the New
Orleans area in September, repairing and new
construction work, together with an increase in work from
other I sources such as NASA, and more work in the
shipyards, resulted in the manpower situation, which had
been reasonably free, becoming very short and they were
forced to compete wagewise to retain their skilled
workers. It may also be noted that Respondent
presumably had not received copies of the Charging
Party's objections to the election at the time the raises
were instituted. The objections to the election although
dated November 12, 1965, show from the time stamp that
they were received by the Regional Office on
November 16,1965.
The deciding factor in this situation, however, is that
there appears to be no indication from any independent
source that the purpose of the raises was other than as
explained by Respondent. General Counsel urges that
Manager Wall's speech on November 8, a week before
granting of these raises, in which Wall stated that
Respondent was paying the second highest wages on the
west bank of the Harvey Canal, and would continue to pay
the highest possible wages, but contrary to the union
propaganda would not pay more unless it was possible to
do so, illustrates that the purpose of the speech was to
demonstrate the futility of choosing a union, since
employees were told they couldn't get a raise, and then
were granted a raise a week later with the consequent
inference that the raise was a reward for rejecting the
Union. General Counsel contends that this was a general
wage increase and that Manager Canulette so testified.
But as noted above, an analysis of this wage increase
shows that some rates were raised but that not all the
employees got raises although approximately 55 percent to
60 percent of the employees did. This is not a general wage
increase but a large number of merit increases plus some
wage rate revisions. I must presume that these raises were
on a merit basis and because of the competition for skilled
labor in that area there being no testimony to indicate
otherwise. I could not presume, without additional
independent evidence to show this wage raise was used to
discourage union organization, that is something exterior
to the actual happening itself, that this wage raise was for
such a purpose. The fact of a wage raise in and of itself
does not create an irrebuttable presumption of
discrimination or antiunion motivation in granting it at that
particular time. Certainly the explanation advanced is
reasonable and if the fact of a wage raise occurring at that
particular time was considered as a rebuttable
presumption, it has now been rebutted. Accordingly I find
that the wage increases granted by Respondent on
November 15, 1965, were not granted for the purpose of
defeating the union organizational efforts or to discourage
union or other concerted activities.
E. Alleged Interrogations and Threats
"Buddy" Canulette testified that when Jones and Stowe
were hired he knew they were union members and after
hiring Mitchell, Odenwald, and Parker and observing that
that the manner and style of their work indicated they
were from the construction field, and verifying this from
their personnel records, he concluded that they were or
had been union members. Canulette testified he hired a
number of employees who had worked at the Todd
Shipyards, which he knew from having worked there to be
a union operation.
Odenwald testified that Canulette spoke to him once
about the Union prior to the election, acknowledging the
conversation possibly took place in August since it
occurred before Wall's first speech to the employees of
September 3. He said Canulette questioned him as to what
he knew about the organization of the Union and who was
involved in it. Odenwald denied to Canulette that he knew
anything about the Union. Canulette testified that the
conversation between himself and Odenwald occurred
substantially as Odenwald related it.
James C. Mitchell testified on direct examination for
both the General Counsel and Respondent in the
presentation of their respective cases. Mitchell testified
that Canulette asked him how he felt about the Union and
he replied he didn't feel he could talk about it. Canulette
verifies that this conversation took place, and says it
occurred prior to Respondent's first consulation with its
attorney on September 2. Mitchell said the conversation
occurred in mid-September, prior to a speech he heard
Wall give, and although not identifying the written version
of Wall's first speech, he remembers phrases which
appear in this speech I conclude that the conversation as
described occurred sometime prior to September 2, and in
the context of other Canulette statements conclude it
occurred in the latter part of August.
Employee Stowe stated that about mid-August
Canulette told him he heard that Stowe was going to "pull
the yard" (strike) and he answered he didn't know about
that. He stated Canulette asked what was going on, and he
replied that the Union was coming in strong. Canulette
asked him how many union cards were out and Stowe
replied he didn't know exactly, but the Union would win by
about 3 to 1. He states Canulette also asked him who was
bringing the Union in and whether he was a union man. He
replied that Canulette knew he was or he wouldn't be
talking to him about the subject. Respondent's counsel did
not ask Canulette to deny or explain any of this testimony.
Stowe also testified that later in the same day he heard
Hill and Canulette talking to Ernest Jones, during which
Jones disclaimed any responsibility for the Union saying
that he didn't bring it in. He states that during the
conversation Canulette said the Company could not afford
a Union. One or two days later, Sam Hill told Stowe he was
going to fire everybody that voted for the Union and Stowe
told Hill he had been a union member for 25 years and to
go ahead and fire him. Hill told Stowe to tell the people
you'll vote for the Union, but vote for the Company. During
his testimony, Hill was not asked by Respondent's counsel
to explain or deny Stowe's testimony.
The questioning of Odenwald, Mitchell, and Stowe by
Canulette was not for any legitimate purpose since as
Canulette testified, he was sure they were union members.
The questioning was not in an effort to respond to a union
recognition request but from the words themselves was an
attempt to delve into the union organization , to see how it
M & W MARINE WAYS, INC. 199
had progressed, and who was leading it. Canulette's
questioning of Mitchell appears to be an attempt by
Canulette to confirm his suspicions of Mitchell's union
sympathy.
I find and conclude that Respondent, by its supervisor
and agent, E. L. Canulette, violated Section 8(a)(1) of the
Act by interrogating employees concerning their own
union sympathies and activities and as to the union
activities and desires of its other employees. As noted
above I have found that these interrogations occurred in
mid- or latter August 1965, and therefore preceeded the
filing of the instant representation petition. I further find
that Respondent, by its supervisor and agent, Sam Hill,
violated Section 8(a)(1) of the Act by his threat to discharge
employees who voted for the Union. Hill's entreaty to
Stowe to tell others to vote for the Union but to personally
vote for the Company is not a violation of the Act. Since as
noted above, Hill's threat occurred prior to the filing of the
representation petition, it will not be considered as part of
the objections.
The complaint also alleges that General Manager Wall
violated Section 8(a)(1) of the Act by interrogation and
threats in the first part of March 1965. Ernest Jones
offered the testimony intended to substantiate these
allegations. In considering the Jones' 8(a)(3) allegations, I
have indicated both the timing difficulty (Section 10(b))
and my reservations as to Jones' credibility. The 10(b) date
in this matter is February 28, 1965. Since Jones' testimony
is that his conversations with Wall occurred several weeks
before he received a raise, and the records show he
received the raise on February 28, and as I have indicated
supra I will not accept Jones' testimony as credible unless
independently corroborated, I can not find that Wall
violated Section 8(a)(1).
Fred Jacobi, who was called as a witness both by the
General Counsel and Respondent, testified that a week or
10 days before Ortega was terminated, Supervisor Frey
said that a lot of things could happen to change things in
the yard between that time and the election. Several times
Frey said that Wall would close down the yard if the Union
was voted in and that the men would all be out of work,
that Wall would not work the yard if it went union. Jacobi
also testified that in his first speech Wall said he would not
close the yard whether the Union was voted in or not .5
Jacobi testified that in mid-October, with no one else
present, he and Frey were discussing the Union and Frey
told him that a lot of things could happen to change the
prospective union victory. Frey asked him who had
mentioned the Union to him and he replied that two fellow
employees, Dan Bourgeois and George Dufrene, had. Frey
continued that something could happen to fellows such as
Bourgeois and Dufrene, that their days would be
numbered if the Union got in.
Frey testified that he had received instructions from
Canulette as to what he could and could not say
concerning the Union. Frey testified that he was friendly
with Jacobi and considered him his right-hand man, and
talked to him about the Union in various conversations. He
denied talking to Jacobi about Ortega but stated that he
did discuss how the yard might fare if they went union, but
denied saying the yard would close down if the Union
came in. On cross-examination, Frey stated that after
receiving the "do and don'ts" instructions, he listened to
the employees talking about the Union rather than
initiating conversations about it. On one occasion, Jacobi
mentioned to him the names of employees he thought were
participating in the Union, that they heard a number of
rumors and Jacobi told him that Dufrene and Bourgeois
were union members.
Where there is a conflict in testimony between Jacobi
and Frey, I am constrained to believe Jacobi. Jacobi who is
still employed by Respondent testified directly, and
appeared to me to make an honest effort to state to the
best of his memory what occurred. I believe that Frey
attempted to follow the injunction of the "do's and don'ts"
in retrospect rather than at the time he was speaking to
Jacobi, and thus claimed that he did not initiate
conversations regarding the Union, although appearing to
be more than a willing recipient of whatever knowledge he
could gain from them. I accept Jacobi's estimate that the
conversation concerning the possible plant shutdown took
place a week or more prior to the time that Ortega was
discharged, which means that it occurred prior to the time
the Union filed its representation petition and I cannot
consider the statement as part of the Union's objections. I
find that Supervisor O. C. Frey's threat that union
sympathizers could be discharged, and that the plant
would close down if it went union and that Mr. Wall would
not operate the plant with a union and his interrogation as
to who were union members or sympathizers, violated
Section 8(a)(1).
As to the October conversation between Jacobi and
Frey, I find that Frey interrogated Jacobi as to who had
mentioned the Union to him and thereafter threatened that
these named individuals' days would be numbered if
the Union got in. The threat and the interrogation by Frey
violate Section 8(a)(1).
Daniel Bourgeois testified that shortly before the
election, Supervisor O. C. Frey asked him how he felt
about the Union and he replied that it really did not matter
because he did not know how long he was going to be
there. He stated that Frey asked him if Jesse Martin (a
union business agent), was involved with the Union at
Plastic Applicators (another company not connected with
Respondent) when Plastic Applicators closed down.
Bourgeois replied no, that was another Martin who was
with the Teamsters' Union. According to Bourgeois, Frey
told him he never figured him to be much of a union man.
Frey testified that he first believed the union organization
was functioning when some of his employees started
wearing union badges, and that to his surprise Bourgeois
and Dufrene wore badges. He stated that he had a
conversation with Bourgeois shortly before the election in
which they discussed another company, Plastic
Applicators, which had a union and whether M & W would
or would not benefit from a union and Frey asked
Bourgeois his opinion of it and Bourgeois replied he did
not have much of an opinion.
In the context of Bourgeois wearing a union badge, I
do not believe that a question by Frey as to Bourgeois'
In his September 3 speech, Respondent's Exhibit 2, Wall Please be assured that , will not close down the yard because
stated that although Jones told him Ile thought Wall was we may have an election. nor will I close down the yard if we
discharging hull because Jones was trying to organize a union, he base a picket line, nor will I close down the yard if the Union
fired Junes because he was an unsatisfactory employee and they wins the election
all knew it As to closing the yard Wall said
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion of the benefits to be obtained from having a union
in a small plant, or asking if it was the same union that
was at another plant, constitutes coercive interrogation
under the Act. Accepting that Frey did make such
inquiries of Bourgeois, I do not find them to violate
Section 8(a)(1).
III. OBJECTION TO THE ELECTION-Case 15-RC-3203
Referring to the finding concerning the October
conversation between Jacobi and O. C. Frey, supra, this is
the single 8(a)(1) violation I have found which took place
within the time period for consideration as an objection to
the election herein. I have previously considered the
speech referred to in Objection 3(a) in connection with the
raises granted by the Respondent on November 15, and
found that such raises were not violative of the Act. The
speech considered by itself is not, nor was it alleged to be,
violative of Section 8(a)(1). I do not find that the matters in
the speech specifically referred to by the Regional
Director in his report on objections, would disturb the
desired laboratory conditions for an election. I further find
that the speech has no material connection with the single
8(a)(1) conversation between'Jacobi and Frey which took
place in mid-October. It appears to me that a single 8(a)(1)
conversation between one supervisor and one employee,
midway in a 3-month campaign, with no indication that the
contents thereof were made known to any other employee,
is an isolated incident which could not be said to have any
material effect on a campaign embracing over 60
employees. I therefore find and conclude that there are no
material or substantial issues of fact affecting Objections
3(a) and 6 and that such objections are without merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section II,
above, which have been found to constitute unfair labor
practices in violation of Section 8(a)(1) of the Act,
occurring in connection with Respondent's business
operations set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It has been found that Respondent has engaged in
certain unfair labor practices which constitute violations
of Section 8(a)(1) of the Act and it shall be recommended
that Respondent cease and desist therefrom and take
certain affirmative action which is designed to effectuate
the policies of the Act.
On the basis of the foregoing findings of fact and
conclusions and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent, M & W Marine Ways, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating its employees as to their union
membership, activities, or desires, and the union
activities, membership, and desires of other employees; by
threatening to close its plant if the Union were voted in;
and by threatening that employees would be discharged
for engaging in union activities or for voting for the Union,
Respondent violated Section 8(a)(1) and 2(6) and (7) of the
Act.
4. Respondent did not discriminatorily discharge
Ernest Jones or Jesse Ortega in violation of Section 8(a)(3)
and (1) of the Act.
5. Respondent did not commit any other unfair labor
practice as alleged in the complaint other than those
specifically found herein.
6. Respondent did not engage in such conduct as would
warrant setting aside the election in Case 15-RC-3203.
RECOMMENDED ORDER
It is recommended that M & W Marine Ways, Inc., of
Louisiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
membership, activities, or desires, or the union
membership, activities, or desires of others of its
employees.
(b) Threatening to close its plant if the Union were
voted in by the employees, or that it would discharge its
employees if they voted for a union or engaged in union
activities.
2. Take the following affirmative action which I find
necessary to effectuate the purposes of the Act:
(a) Post at its plant in Plaquemine Parish, Louisiana,
copies of the attached notice marked "Appendix.-6 Copies
of said notice, to be furnished by the Regional Director for
Region 15, after being duly signed by an authorized
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 taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.7
IT IS FURTHER RECOMMENDED that 011 allegations of the
complaint not specifically found to be violations of the Act
be dismissed.
IT IS ALSO FURTHER RECOMMENDED that the objections
to the election in Case 15-RC3203 be overruled and that
6 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
T 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 Respondent has taken to comply herewith "
M & W MARINE WAYS, INC. 201
the Regional Director for Region 15 certify the results of
said election.
APPENDIX
NOTICE TO ALL EMPLOYEES
to discourage membership in International
Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths , Forgers & Helpers, AFL-CIO, or any
other union.
All of our employees are free to become or remain union
members, or to refrain from becoming or remaining union
members as they may desire.
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
WE WILL NOT try to discourage you in any desires
you may have to be represented by a union, by
threatening to fire employees if they vote for or
support a union or by threatening to close the plant.
WE WILL NOT ask our employees about their union
desires or membership or the union desires or
membership of other employees in order to
discourage any union desires you may have.
WE WILL NOT in any similar or related manner seek
M& W MARINE WAYS, INC.
(Employer)
Dated By
(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, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6391.