Marine Welding and Repair Works, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1969

174 N.L.R.B. 661 (N.L.R.B. 1969)

MARINE WELDING & REPAIR WORKS
Marine Welding and Repair Works, Inc.; Williamson
Engine and Supply , Inc.; Greenville Manufacturing
and Machine Works, Inc.; Greenville Propeller
Works, Inc. and Industrial, Technical and
Professional Employees Division of National
Maritime Union of America , AFL-CIO. Cases
26-CA-2756, 26-CA-2843, 26-RC-2914,
26-CA-2861, and 26-CA-2875
February 20, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 4, 1968, Trial Examiner Herzel H.
E. Plaine 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. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended that such allegations be
dismissed. Finally, the Trial Examiner found the
allegations of some of the objections to the election
in Case 26-RC-2914, to have been established in the
form and to the extent that they were also found to
be unfair labor practices; dismissed certain other
objections; and recommended that the results of the
election be set aside, and that a new one be directed.
Thereafter, the Respondent filed a motion to quash
and set aside, and exceptions to, the Trial
Examiner's Decision, and a supporting brief. The
General Counsel filed an answering brief, and
cross-exceptions with a statement in support thereof.
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 made by the
Trial Examiner 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 motion, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions,' and
recommendations' of the Trial Examiner, with the
modifications noted below.
'The Respondent excepts to various findings of the Trial Examiner, on
the ground that he erred in crediting the testimony of certain witnesses. It
is the established policy of the Board not to overrule a Trial Examiner's
credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that the resolutions were incorrect . Standard Dry
Wall Products , Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We
find no sufficient basis for disturbing the credibility findings in this case.
The Respondent also accuses the Trial Examiner , throughout its brief, of
having variously exhibited extieme bias against the Respondent Having
ORDER
661
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 Respondents, Marine
Welding and Repair Works, Inc.; Williamson
Engine and Supply, Inc.; Greenville Manufacturing
and Machine Works, Inc.; and Greenville Propeller
Works, Inc., Greenville, Mississippi, their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified below.
1. Delete paragraph 2(e) and substitute in its place
the following:
"(e) Convene all its employees at 'each shop
separately or at joint assemblages of two or more
shops, as convenient, and a responsible official of
the Respondent of department supervisor level or
above, or a Board agent, shall read to the employees
the contents of the attached notice, Appendix B." "
2. Delete paragraphs 2(f) and 2(g), and reletter
paragraph 2(h) accordingly.'
examined the record, however, we conclude that these claims are
unsupported. On the contrary, the record shows that the Trial Examiner
displayed fairness to, and patience with, the Respondent's counsel
throughout the hearing , even though some demands which were made upon
the Trial Examiner, and of witnesses , appear to have been frivolous, or
dilatory, or both.
'The Trial Examiner found, among other violations, that the Respondent
in effect forcibly prevented several employees from voting in the July 18
election, by using the gas-freeing operation on a barge , the Sinclair 4, as a
pretext to keep these men offshore during the voting hours . In concluding
that this forcible detention violated Section 8(a)(1) of the Act, the Trial
Examiner relied in part on his finding that the operation lacked the
urgency (owing to a customer's "emergency" call the morning of July 18)
claimed by the Respondent . We think it is unnecessary to pass on the
question whether the gas-freeing operation did or did not have the urgency
claimed; for the other, attendant circumstances relied on by the Tiial
Examiner are themselves sufficient to warrant his conclusion , which we
adopt, that the detention on the barge was prolonged in order to prevent
employees from voting in the election , and violated Section 8(a)(l).
'We find no merit in the Respondent ' s exceptions to the Trial
Examiner's finding that employee Walker was discharged in violation of
Section 8(a)(3) In addition to the grounds relied on by the Trial Examiner,
we note that Walker ' s discharge occurred the very day the Employer
received notice of the filing of the petition and was followed closely by
interrogation of employees and other widespread unlawfully coercive
conduct, thus demonstrating that Walker's discharge was the first step in
the Respondent's antiunion campaign . Notwithstanding Walker's candid
admission that he had been criticized previously, referred to in the
Respondent's brief , the Respondent 's testimony is clearly to the effect that
Walker had been a satisfactory employee until the last week of his
employment, which we note coincided with his very active role in
conjunction with the Union's organizational campaign
V. P. Stevens & Co., Inc. v N.L.R B, 380 F.2d 292, 304-305 (C.A 2),
J. P. Stevens & Co., Inc. v N L R.B., 388 F 2d 896, 903-905 (C.A. 2)
'We do not adopt the Trial Examiner's recommended requirement that
the Union have access , for 3 months , to the Respondent' s bulletin boards
The record affords no basis for any finding as to the necessity of the
Respondent's bulletin boards to the Union 's organizational campaign, J. P
Stevens & Co , Inc v. N L R.B, 380 F 2d 292, 305 (C.A. 2); nor does it
show that the Respondent used its bulletin boards as a coercive device, J.
P. Stevens & Co., Inc. v. N L R B., 388 F 2d 896, 905 (C.A 2) We also
reject his recommendation that the Respondent make available to the
Union facilities for a 1-hour meeting on company time Cf. Garwin
Corporation , 169 NLRB No. 154; Crystal Lake Broom Works , 159 NLRB
429, 430-431.
174 NLRB No. 102
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the election
conducted on July 18, 1967, in Case 26-RC-2914,
be, and it hereby is, set aside , and that Case
26-RC-2914 be, and it hereby is , remanded to the-
Regional Director for Region 26 for the purpose of
conducting a new election at such time as he deems
that circumstances permit the free choice of a
bargaining representative.
[Direction of second election6 omitted from
publication.]
'An election eligibility list, containing the names and addresses of all
eligible voters , must be filed by the Employer with the Regional Director
for Region 26 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear Inc., 156 NLRB 1236
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINE, Trial Examiner : This is a
consolidated proceeding on 4 complaints of unfair labor
practices against the Respondent , charging violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act), and on 18 unresolved objections to the
results of a Board conducted representation election
among Respondent 's employees involving substantially the
same-alleged misconduct of the Respondent recited in the
complaints.
The Pleadings
The pleadings are complicated. Complaint 26-CA-2756
was issued June 22, 1967, amended July It, 1967, on a
charge by the Union (the Charging Party) filed May 2,
1967, and amended June 21, 1967.
Complaint 26-CA-2843, was issued August 31, 1967, as
part of an order consolidating cases and a consolidated
complaint, on a charge by the Union filed August 4, 1967,
amended August 11, 1967. The order of August 31 recites
and reiterates an earlier order of the Regional Director,
dated August 22, 1967, in the representation case,
26-RC-2914, that dealt with 23 objections of the Union to
the results of the Board conducted election held on July
18, 1967 among Respondent's employees. The Union lost
the election, 24 for, 64 against, out of approximately 115
eligible voters. The order of August 22 overruled 5 of the
Union's objections but referred the 18 remaining
objections for resolution on an evidential hearing by a
Trial Examiner, consolidating for hearing and decision the
representation case, 26-RC-2914, with the complaint
cases, 26-CA-2756 and 26-CA-2843.
Complaint 26-CA-2861 , was issued September 6, 1967,
as part of a second order consolidating the cases and an
amendment to the consolidated complaint, on a charge by
the Union filed August 24, 1967, and amended September
6, 1967.
Complaint 26-CA-2875, issued September 14, 1967, as
part of a third order consolidating the cases and a second
amendment to the consolidated complaint, on a charge by
the Union filed September 8, 1967.
In addition, two responses by the General Counsel on
July 5 and September 12, 1967, respectively, to motions
by Respondent for bills of particulars, have elaborated or
altered certain allegations of the complaints.
At the beginning of the hearing, on September 26,
1967, General Counsel produced in one document, Exhibit
GC-2, a compendium of the allegations in the
consolidated and amended complaints and in the responses
to motions for bills of particulars. The parties have
accepted the compendium as the restatement of the total
allegations of the complaints by the General Counsel.' The
gravamen of the complaints was that the Respondent,
comprising four corporations, constituted a single
integrated business enterprise that had violated Section
8(a)(1) and (3) of the Act by engaging in coercive and
discriminatory conduct against its employees, involving
among other things, interrogation, threats, creating the
impression of surveillance, reduction of overtime,
disenfranchisement, and the discharge of three of the
employees, because of their union sympathies and
activities.
The Union's unresolved objections to the results of the
election of July 18, 1967, paralleled various allegations of
the complaints2 and thus raised no additional issues of
fact.'
Respondent filed three answers, dated July 18,
September 15, and September 22, 1967, respectively,
which were essentially general denials of the allegations of
the complaints, and filed on October 2, 1967, in the
course of the hearing, a statement of its affirmative
defenses purporting to justify the discharges of the three
alleged 8(a)(3) dischargees.
The consolidated cases were tried on September 26-29
and October 24-26, 1967, at Greenville, Mississippi.
Counsel for the General Counsel and for the Respondent
have filed briefs.
Upon the entire record of the case4 and from my
observation of the witnesses, I make the following
'Thereafter , in the course of the trial , on October 26, 1967, General
Counsel was permitted a further amendment to the complaints based upon
evidence brought into the case by the Respondent The amendment was an
additional allegation to the effect that, on or about May 16, 1967,
Respondent by its officers and agents sent Resp . Exh R-22 to its
employees in violation of Section 8(a)(1) of the Act Exhibit R-22 was a
letter, dated May 16, 1967, circulated by Respondent to its employees
"because of the union activity at the yard," discussing employee card
signing and suggesting , among other things, that employees who had signed
union authorization cards might ask for their return and should write
letters to the union for the return, keeping copies of the letters as written
copies of the cancellation of the pledge cards. The issue of unlawful request
by the Respondent for employees' union cards was already in the pleadings
(Exhibit GC- 2, pars . 15(a), 16, 18 ) and had been litigated by the parties,
and the additional closely related allegation involved no surprise to
Respondenror need for time to prepare (Respondent had itself introduced
the evidence underlying the allegation ), hence in my judgment the
amendment was proper and timely N.L R B. v. Dinion Cott Co., 201
F.2d 484, 491 (C.A 2, 1952); N.L R B. v Hotel Conquistador , 398 F 2d
430 (C A. 9, 1968)
'A matching table is set out in the transcript of the proceedings, Tr
8-11.
'Two of the eighteen unresolved Objections Nos 10 and 21 (dealing
respectively with claimed intimidation of a professional union organizer,
and alleged prevention of an employee observer from serving at the
election ), were not paralleled by allegations of the complaints However,
neither the Union nor the General Counsel presented any evidence that
supported these two objections, and I granted Respondent's motion to
dismiss Objections Nos. 10 and 21 Tr 835.
'To correct errors which appear in the transcript of the record, I have
ordered the corrections set out in Appendix A [omitted from publication]
of this Decision.
MARINE WELDING & REPAIR WORKS 663
FINDINGS OF FACT
1. JURISDICTION
The Respondent comprises four Mississippi
corporations (referred to individually as Marine Welding,
Williamson Engine, Greenville Manufacturing, and
Greenville Propeller), with a common principal office in
Greenville, Mississippi.
Respondent is in the business of building, repairing,
servicing, and supplying boats and barges that ply the
inland waterways, and performing related machine and
engine shop services for some nonmarine industrial
customers. Respondent is a single employer within the
meaning of the Act.'
During the 12 months preceding issuance of the first
complaint, each of the four corporations purchased and
received at its Greenville, Mississippi location, materials
and supplies valued in excess of $50,000 directly from
points located outside Mississippi. The four corporations
individually and collectively are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Summary
Background: The two Williamson brothers, W. M. (or
Bill) and Bilbo, began the inland waterway shipbuilding
and repair business in Greenville in 1947 under the name
of Marine Welding and Repair Works. In 1952, Joe L.
Williams became an employee of Marine Welding and
took over the repair of diesel engines for which Marine
Welding had the local Detroit Diesel dealership, In early
1959 Williams bought into Marine Welding and the three
principal owners, Williams and the two Williamsons,
formed an additional corporation, Williamson Engine and
Supply, to handle the engine repair and supplies business.
Both shops were located on a common lake front plot on
Lake Ferguson, leased from the city. Lake Ferguson is the
former bed of the Mississippi River at Greenville that was
made into a lake feeding into the river when the river bed
was artificially relocated several miles west of the
Greenville levees.
In late 1959, the three owners of Marine Welding and
Williamson Engine purchased Greenville Manufacturing
and Machine Works, located in the city about 18 blocks
from their waterfront business, and it was developed into
a shop doing marine and other industrial machine work
and some fabrication. Finally, about 1964, the fourth
corporation, Greenville Propeller Works, was formed by
the two Williamsons and Williams and set up at the
Greenville Manufacturing location to handle,- the boat
propeller repair work brought in at the Marine Welding
docks and to serve as distributor for a Seattle-propeller
manufacturer, who preferred distribution by a propeller
company.
While each of the four companies has its own area of
competence, they function and are operated as four
divisions of a single enterprise. The three principal owners
of the stock of the corporations are also the officers of all
four corporations variously and combinedly engaged in
active management and responsible for labor and hiring
'The details supporting this finding are discussed under heading II, B,
infra
policy, with W.M. Williamson in top command. A
general office for all four corporations is maintained at
the waterfront in addition to the separate office which
each has in connection with its shop, and employees of
Williamson Engine, Greenville Manufacturing, and
Greenville Propeller move to and from the Marine
Welding docks to work on vessels or in their shops on
jobs brought to them from the docks, and Marine
Welding employees do work, on the docks or at the
premises of one or more of the other corporations.
At the end of May 1967, Respondent had 110
employees, comprising 50 at Marine Welding, 17 at
Williamson Engine, 35 at Greenville Manufacturing, and 8
at Greenville Propeller.
Organization of the employees by the Union began in
the last few days of April 1967 with a drive led by four of
the employees to obtain authorization card signatures. The
Union filed an election petition on May 1, 1967,
26-RC-2914, culminating in an election on July 18, 1967.
The Union failed to obtain a majority by a vote of 24 for,
64 against, out of the then approximately 115 eligible
voters, and filed its objections to the results of the election
on July 24, 1967, alleging various acts of employer
intimidation and coercion of employees that interfered
with a free expression of choice
Both before and after the election the Union filed
charges, and the Board issued the series of complaints, of
unfair labor practices by the employer, enumerated above
under the description of the pleadings. The Union's
objections to- the election results are substantially
embraced in the allegations of the complaints.
Issues: In total, Respondent is charged with unlawful
coercive and discriminatory conduct against employees by
interrogation of them concerning union sympathies,
creating the impression of surveillance of union activities,
demanding that employees obtain return of signed union
authorization cards, cutting Saturday overtime work of
certain employees, threatening to close the shop or to
refuse to bargain with the Union if the employees should
designate it as bargaining agent, preventing the' voting of
some of the employees and interfering with the voting of
others in the July 18 election, promising wage increases to
certain employees to help keep the Union out, and
discharging three employees and plotting the discharge of
another from among the union activists, in violation of
Section 8(a)(1) and (3) of the Act.
The Respondent has denied any such misconduct and
has offered purported justification for the three discharges
and reduction of the Saturday overtime.
General Conclusion: As the findings below indicate, the
evidence established Respondent's guilt of serious and
substantial violations of the self organizational rights of
its employees, including the discriminatory discharge of
three of them and the discriminatory reduction in the
Saturday overtime work of several for antiunion motives
and to discourage membership in the Union. The
misconduct violated Section 8(a)(1) and (3) of the Act and
interfered with the employees' freedom of choice in
selecting a bargaining agent in the election of July 18,
1967, and warrants an order that Respondent cease and
desist from misconduct, reinstate and make whole the
employees upon whom the discrimination fell, and take
certain steps to remedy the imbalance created in the plant
respecting employee self organizational rights. In the
representation case, the results of the election of July 18,
1967 should be set aside, and a new election ordered upon
request of the Union.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respon1ertY is a Sine Employer
Marine Welding began business in Greenville,
Mississippi in 1947, formed and owned principally by W.
M. Williamson (known as Bill or Mr . Bill) and his
brother Bilbo Williamson . AeooPding to the latter , Marine
Welding is in the business of`buil g and repairing boats
and barges that operate primarily in the inland waterway
system. The business occupies a several acre tract leased
from the city of Greenville an the ' waterfront of Lake
Ferguson where the oonipany triad rains drydocks ,' loading
docks, and a fabricating yard, according to Bilbo
Williamson . Lake Ferguson is 'ttie old Mississippi River
bed converted into a large lake or 'inlet that empties into
the river several miles west where the river bed was
artificially relocated.
In 1952, Joe L. Williams caaiee to Marine Welding as
an employee to handle repair"' of diesel` engines for which
Marine Welding had a Detroit Diesel dealership . In 195'9,
Williams bought some Marine Welding stock and
thenceforth he and the Williamson brothers comprised the
three principal owners of the company . They formed, in
that year, Williamson Engine and Supply, to take over the
expanding engine repair and supply business, and located
its shop on the waterfront tract . Later in the year they
bought Greenville Manufacturing and Machine Works,
located in the city about 18 blocks from the waterfront
business , and developed it into a shop doing general
machine work and some manufacturing for marine and
other industrial customers , according to the testimony of
Joe Williams and Bilbo Williamson . Because of his
experience in engine repair , said Joe Williams , he had the
primary function of getting the two new companies going.
A fourth company, Greenville Propeller Works, was
formed out of Marine Welding, according to Joe
Williams, in 1964 , to do the boat propeller repair work
that came in at the Marine Welding docks, and was set up
as a separate corporation , said Williams , principally to
satisfy a Seattle propeller manufacturer for whom
Respondent had become a distributor and who preferred
distribution by a propeller company. Greenville Propeller
is next door to Greenville Manufacturing at a common
location, where the employees share common toolroom,
timeclock , and locker and toilet facilities , according to
Bilbo Williamson.
According to Bilbo Williamson , W. M. (Bill)
Williamson is president , Joe L. Williams is vice president,
and Bilbo Williamson is secretary-treasurer , of all four
corporations . Together the three men own the principal
stock of the four corporations and are actively engaged in
the daily management of the companies . According to
Bilbo Williamson , W. M Williamson is primarily
responsible for labor policy and hiring policy at Marine
Welding; Joe Williams and Bilbo Williamson have the
prime responsibility for labor policy at Williamson
Engine, and share control of hiring policy with
Superintendent James Campbell; Joe Williams has prime
responsibility for labor and hiring policy at Greenville
Manufacturing ; Joe Williams and Bilbo Williamson share
prime responsibility for labor policy at Greenville
Propeller, and Joe Williams is responsible for hiring
policy at Greenville Propeller . However , as Vice President
Joe Williams testified , the "supreme command" is
President W. M. (Bill ) Williamson , and it was evident
from some of the events related in the testimony that the
purported lines of his division of authority with the other
two officers are blurred in practice . For example, it was
President Bill Williamson who fired employee Harrison of
Willisem Engine with no apparent consultation of either
Vice President Joe Williams, Secretary-Treasurer Bilbo
Williamson, or Superintendent James Campbell. And,
Foreman Dennis Ross of Williamson Engine reported
employee problems he allegedly was having concerning
employees Harrison and Webster directly to President Bill
'Williamson without going first to either of the other
officers.
While each of the four shops has a comparatively small
officie in their respective shop premises, a combined main
office for all four corporations is maintained at the lake
front, building No. 1 on map, Exhibit R-1, and is used not
only by the officers but also by some of the other
supervisors, as well as by clerical people, on a regular
basis. Thus, Marine Welding Office Manager Burchfield
testified he has his offices in the main office, building No.
1, and does his work there; Bilbo Williamson testified that
the payroll checks for all four corporations are prepared
in the main office; and Marine Welding Superintendent
Jack Ellis, whose primary work is on the drydocks,
testified that his work also took him to the main office,
building No. 1, and to the Williamson Engine shop,
building No. 2 on map Exhibit R-1.
Although it appeared from Bilbo Williamson's
testimony that Williamson Engine and Greenville
Manufacturing had other industrial accounts in addition
to marine accounts, it also appeared, from his testimony
and that of the other officers and supervisors, that the
major work of the employees of the four companies
originates at the docks and is performed there or brought
to one or more of the three specialty shops, and that the
employees move back and forth to and from docks and
shops. Thus, engine repair work is done in the Williamson
engine shop or on the dock by Williamson Engine
employees, according to Vice President Joe Williams; and
Superintendent Campbell of Williamson Engine testified
that his mechanics and helpers spent 40-50 percent of their
time on the Marine Welding docks, and that his parts
men take and deliver parts orders at the Marine Welding
docks Boat propellers are usually removed by Marine
Welding employees and trucked to the Greenville
Propeller shop for repair and back to the dock for
reinstallation , according to Vice President Williams; but,
he said, Greenville Propeller people occasionally will come
to the docks to repair the propellers in place. Boat shafts
needing new sleeves or straightening will be removed at
the docks and sent to the Greenville Manufacturing shop,
according to employee Milburn; but occasionally,
according to Vice President Williams, a Greenville
Manufacturing employee will work temporarily at Marine
Welding, and Williams recalled one recent occasion when
a whole crew of Greenville Manufacturing employees
alternated working overtime at the docks with a Marine
Welding crew of employees. Frequently, he said,
Greenville Manufacturing machinists go down to the
Marine Welding drydocks to make measurements and
ascertain specifications. Employee Milburn, a welder for
Marine Welding, referred to occasions when he worked
side by side with Williamson Engine mechanics and
Greenville Manufacturing welders. For movement of men
in the other direction, the testimony of Vice President Joe
Williams indicated that Marine Welding employees
occasionally worked in the Greenville Manufacturing and
Greenville Propeller shops, and Superintendent Campbell
testified that occasionally Marine Welding employees
would come to the Williamson Engine shop to braise pipe
or use an electric saw. As already indicated,
$uperintendent Ellis of Marine Welding said that his
MARINE WELDING & REPAIR WORKS 665
duties also required spending some time in the Williamson
Engine shop. Bilbo Williamson testified that when
Williamson Engine, Greenville Manufacturing, and
Greenville Propeller employees came to Marine Welding
to work on vessels they would also make use of the
Marine Welding toolroom, and that the Marine Welding
boat operator provided transportation when their-work
had to be done on the water. Workmen's compensation or
insurance for work connected injuries for all of the
employees was so arranged that, whenever an employee of
any of the four corporations worked on the water or
waterside, Jones Act (or Longshoreman's Act) insurance
coverage automatically extended to him.
In addition to the flow of work and workmen among
the several locations of the four companies, there were
occasional permanent transfers of employees from one
company to the other. Vice President Williams testified
that there were transfers from Marine Welding to
Greenville Propeller when the latter had been formed from
Marine Welding, and Superintendent Ellis of Marine
Welding testified he had transferred employee Howard
Mosby to Williamson Engine's diesel shop several weeks
before the hearing, when Superintendent Campbell asked
for him.'
According to Secretary-Treasurer Bilbo Williamson, as
of May 26, 1967, Marine Welding had 50 employees,
Williamson Engine had 17 employees, Greenville
Manufacturing had 35 employees, and Greenville
Propeller had 8 employees, a total of 110 employees. All
employees had the same working hours, and the same
vacation, medical, and life insurance benefits.
Conclusion: It is evident from the -foregoing recital that
notwithstanding the formality of separate incorporation,
the four corporations constitute a single integrated
enterprise and a single employer within the meaning of the
Act.
Under the tests for "single employer" developed by the
Board, 21st Annual Report NLRB (1956) 14-15, restated
and I approved in Sakrete of Northern California v.
N.L,R.B., 332 F.2d 902, 905-908 (C.A. 9, 1964), cert.
denied 379 U.S. 961, and by the Supreme Court in Radio
and TV, Union 1264 v. Broadcast Service of Mobile, 380
U.SJ 255, 256 (1965), the question is whether the four
corporations are sufficiently integrated to consider the
business of all together in applying the standards of the
Act.! The principal factors weighed in deciding that
sufficient integration exists include the extent of (1)
interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common
ownership or financial control. While none of the factors
has been held to be controlling, stress has been laid upon
the first three factors to show operational integration,
particularly centralized control of labor relations. Id.
Here all four factors are present. The two Williamsons
and Williams are the owners, officers, and active
managers of the four corporations, in control of their
laboil relations subject to the supreme management and
labor relations control of President Bill Williamson. All
four companies occupy a single combined principal office
at the waterfront.
The major business of the companies originates at the
Marine Welding docks where shipbuilding and repair is
done.: The supporting specialty work performed by the
'Superintendent Campbell professed not to know of any permanent
transfers when asked if he knew of any, but see payroll record of
Williapison Engine , Exhibit R-21, on which employee Howard Mosby
appears beginning in the week ending August 30, 1967
other three companies in fabricating, repairing, machining,
or supplying parts and materials, is either brought to their
shops from the Marine Welding docks or is performed at
the Marine Welding docks or on the water by employees
of the three companies. In turn, Marine Welding
employees who perform the bulk of their shipbuilding and
repair functions at the docks or on the water, occasionally
do their work at the shops and with the equipment of the
other three companies . The employees of all four
companies, or a lesser combination of them, frequently
work on the same shipbuilding or repair project, often
simultaneously and sometimes side-by-side. The employees
share the tools and equipment provided by one or the
other of the companies. In addition to the temporary
assignments of some employees to the shops of one or
more of the other companies , a few of the employees have
been permanent transfers from one shop to another.
The employees occupy two basic locations , one at the
waterfront and the other a short distance away in town,
with employees and materials moving to and from each
location. At the in-town location, the shops are
side-by-side, and the employees share common toolroom,
timeclock, locker, and toilet facilities, At the waterfront
location, while the two shops there are a short distance
apart, the Williamson Engine employees spend almost half
of their working time on the Marine Welding docks and
the Marine Welding employees spend some of their time
in the Williamson Engine shop. All of the employees in all
four corporations have the same hours, the same vacation,
medical, and life insurance benefits, and are covered by
workmen's compensation when working landside and by
Jones Act insurance when working waterside.
From the foregoing, it is evident that the four
companies are closely integrated in their functioning and
are operated for all practical purposes as four divisions of
one company. The Respondent is a single employer under
the Act.'
C. The 8(aX l) Misconduct
1. Interogations, threats, creation of impression of
surveillance
Marine Welding's Officer Manager Burchfield testified
that following the Union's filing and service of a petition
for election on May 1, 1967, Respondent's President Bill
Williamson signed and caused to be mailed to each
Marine Welding employee on May 16, 1967 a copyof a
letter, Exhibit R-22, written it said "because of the union
activity at the yard ," suggesting that the employees not
sign union cards or get them back if already signed, and
that employees keep copies of the written requests for
'It is interesting to note that Respondent has made no contrary
argument in its brief although it made a claim at the outset of the trial
that it was contesting the issue and was permitted to introduce evidence on
the subject, Amalgamated Clothing Workers v NL R B , 365 F . 2d 898,
902-905 (C.A.D.C, 1966), notwithstanding Respondent had already
litigated whether , and apparently thereafter conceded, it was a single
employer in the representation case , 26-RC-2914, consolidated into this
proceeding In that case the Regional Director in his Decision and
Direction of Election June 20, 1967 , Exhibit GC-6, found, among other
things, that the Respondent was a single employer . In its request for review
to the Board, June 29, 1967, Respondent ' did not appeal this finding but
only whether four units rather than one unit were appropriate for collective
bargaining (along with the question of the voting eligibility of certain
employees ), a contention the Board rejected in denying the request for
review, July 12, 1967, Exhibit GC-7 Nevertheless , my finding rests on the
total evidence adduced in this trial , which included the transcript of the
testimony in the representation case, Exhibit GC-5
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return of cards as cancellations of nonreturned cards.
President Williamson (Mr. Bill) and Superintendent
Jack Ellis (Mr. Jack) followed up the letter with
individual employees. According to employee Otho Fry,
about three weeks after May 1, Mr. Bill asked him on the
dock if he had joined the Union, and Fry said no. About
two weeks later President Williamson asked employee Fry
on the Craig boat, if he had obtained his card back from
the Union and Fry said he had not. Fry testified he had
signed a card About two weeks after that conversation,
Superintendent Ellis asked Fry, near the crane house, if he
had tried to get back his union card and Fry said he
hadn't A week later employee Fry, while getting some
parts, was stopped by President Williamson who,
according to Fry said, "Fry, if the union take over we are
going to have to close down. We will be out of a job";
and Fry replied, "Yes, sir."
Shortly thereafter, according to Fry, while working on
a barge, Superintendent Ellis asked Fry again if he had
obtained the return of his card and Fry said no. Ellis then
said, according to Fry, whenever he got ready to do it, to
just take off without "punching out" and get the pledge
card. Whereupon, said Fry, that was what he did, the
same day, about 11 a.m., he went to the Union office in
town, asked Union Organizer Wilson for his card, brought
it back, and gave it to Superintendent Ellis at 1 p.m. near
the crane house.8
President Williamson and Superintendent Ellis both
denied having any conversations with employee Fry about
the Union or pledge cards or receiving his pledge card,
but I have credited Fry's testimony.'
Employee Vonard Liggins testified that he had signed a
union card which he received from employee Freddie Lee
Walker, and that in early June 1967, Mr. Bill
( Villiamson) asked him, on the dock, to get the card
back. Employee LLiggins answered he would, and sent a
letter to the Union, written by his wife, but did not receive
the return of the card.
Two weeks later, according to employee Liggins,
President Williamson asked Liggins , again on the dock, if
he had the card back and Liggins said no but he had
written for it.
A third time, on a Friday in the latter part of June, on
the dock, President Williamson said to Liggins, "I want
you to get the card," Liggins testified, and added that
Liggins didn't have to punch out. Employee Liggins said
'The evidence indicated that the union authorization cards are called
pledge cards , prepared for filling and signing in duplicate, Exhibit R-2, and
that Union Organizer Wilson gave back to employee Fry one of the two
identical parts of his pledge card and kept the other
'Employee Fry is a Negro; without schooling , who cannot read, and who
was in Respondent's employ at the time of hearing as a fitter 's helper. He
became an employee about a year and a half previous to the hearing
There was nothing in employee Fry's demeanor or the evidence he or
others (than Williamson or Ellis ) gave to discredit him, whereas President
Williamson's veracity on the unfair labor practices issues was thoroughly
impeached by his own contradictions, noted throughout , infra, and by his
concoction of a complaint against employee Isiah Layton by Respondent's
witness-customer Poe in order to justify firing employee Layton, discussed,
infra, under heading D,3. Likewise , Superintendent Ellis' deficient memory
was exposed by Respondent's other witnesses Collier and Robert Ross
(plus documents ) on the matter of recent repairs to the barge Sinclair 4,
discussed infra under heading C,2, and his veracity impugned by his
testimony in the detention of the employees on that barge , heading C,2,
and his testimony in the Layton discharge , heading D,3, infra. Because
employee Fry was in the vulnerable position of a current employee
testifying adversely to his employer , his credibility was entitled to added
support, Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961); Wirtz v
B.A.C Steel Co. 312 F.2d 14, 16 (C.A. 4, 1963).
he would obtain the card. He went to the union hall
without clocking out, or clocking in when he came back,
but didn't get the card because, he said, Union Organizer
Wilson was not there. Liggins went by the union hall the
next day, Saturday, got the card, and brought it back to
President Williamson, who put it in his billfold, testified
employee Liggins. About the same time Superintendent
Jack Ellis also asked employee Liggins if he had gotten
his card back and Liggins said he told Ellis that he had
given the card to Mr. Bill.
President Williamson at first denied that he ever talked
to employee Liggins about the Union, but ended up
testifying (at this point in his testimony) that Liggins was
the only employee he talked to about the Union."'
Williamson admitted he received and pocketed Liggins'
union card on the dock before the election, but claimed he
told Liggins it didn't make any difference in his,right to
vote for or against the Union Superintendent Ellis denied
having any conversation with employee Liggins about the
Union.
It was fairly obvious from the combined testimony that
employee Liggins had truthfully and accurately described
the events leading up to and including his turning of the
union card over to President Williamson."
Employee Isiah Layton testified that he signed a union
card on the street on April 30, 1967, at the request of
employee Freddie Lee Walker, who was fired the next
day. One day in May, Layton said, Superintendent Ellis
spoke to him about the Union while he was working on a
barge on the lake, saying that on September 8 Layton
would be working there a year, and asking how many
dependents did he have, and had he ever belonged to a
union before. Employee Layton said he told
Superintendent Ellis he had belonged to a union when he
worked for the railroad company. Ellis then asked,
according to Layton, if he had signed a union card, and
when Layton said no, Ellis said it would be better for
Layton if he didn't fool with it.
Employee Layton further testified that he attended two
union meetings and that, on the Monday following the
Saturday night June 24 meeting, Superintendent Ellis
stopped him coming out of the tool office and said he
thought Layton had told him he wasn't fooling with the
Union. Layton said he wasn't, that he had just gone to the
meeting to see what was going on. Two or three days
later, testified Layton, President Williamson was in the
tool office and asked Layton if he had signed a union
card. Layton said he replied, no sir, and Williamson told
him not to sign because it wouldn't do him any good,
when he belonged to the union at the railroad company
did it do him any good; and Layton said he answered, no
sir.
I credit employee Layton's testimony (both here and in
connection with his discharge, heading D,3, infra) and
discredit Williamson's and Ellis' denials of the
conversations with Layton for the reasons cited in fn. 9
"Later this assertion by President Williamson was further contradicted,
by himself, when he admitted he had received union cards from other
employees in addition to Liggins but could not remember how many
"See also fns . 9 and 10 supra, respecting Williamson and Ellis Both
men sought indirectly to impeach Liggms' account by suggesting there
would be no occasion for Williamson to tell a truckdriver he need not
punch out , since truckdrivers moved their vehicles in and out of the
premises without clocking in and out . In so testifying they ignored
undisputed evidence that employee Liggins performed other work than
driving a truck . For example , employee Liggins was among the crew
selected by President Williamson and Superintendent Ellis on the day of
the NLRB election , July 18, 1967, to gas free the barge Sinclair 4.
MARINE WELDING & REPAIR WORKS 667
and 10 supra and the related text.' 2
Employee James Conley was a welder's helper at
Marine Welding from March to August 1967. He testified
that on four occasions Superintendent Ellis questioned
him concerning the Union The first time , said employee
Conley, was in June during the campaign for the Union
when, on the dock at the water fountain, Superintendent
Ellis told Conley he, Ellis, was receiving from employees
signed union pledge cards they had taken back and
wanted to know if Conley had signed one. Employee
Conley said he had, whereupon Superintendent Ellis said
he'd appreciate it if Conley would try to get the card
back, according to Conley. Conley said he told Ellis he
would think about it.
The second occasion was the next day on a barge at the
dock. According to employee Conley, Superintendent Ellis
said he'd appreciate Conley getting his pledge card back,
and if he needed help it would be given; if he didn't want
to go to the Union, he could write a letter, and if he
didn't have the paper Ellis would supply the paper with
carbons to show that Conley had written.
The third occasion , said employee Conley, was on a
Friday at the end of June or in the first week of July, at
the fountain on the main dock, where Superintendent Ellis
asked if there was anything he could supply Conley to get
his pledge card back. If he decided to go to the Union
office to get his card, he was not to bother about punching
out, Ellis told him according to Conley; and after
hesitating about an hour, Conley went to the Union office
without punching out (or punching in on his return), and
asked Union Organizer Wilson for his pledge card. Conley
told Wilson the company suggested he get his card back,
and Wilson apparently had him fill out a fresh card,
backdated to the date he had originally signed, and
Conley took this card with him. He had been gone only a
short time and he did not show or give the card to Ellis.
The fourth occasion, testified employee Conley, was on
Monday, July 17, the day before the NLRB election while
Conley was painting on the Craig boat. According to
Conley, Superintendent Ellis said he had received quite a
few union cards from the men and was waiting for Conley
to get his, and asked what Conley was waiting for. Conley
replied he hadn't got around to it and was thinking about
it. Ellis said, testified Conley, that he would appreciate it
if Conley would go on and get the card because they had
a lot of men, and they were not going to let a union in,
and "before we let a union in here, we will close the damn
place down."
The next morning, election day morning, July 18,
according to employee Conley, President Williamson
came clown a ladder to the engine room where Conley was
working, put his hand on Conley's back and said, "You
are not going to vote for that old union , are you." Conley
said he replied, he didn't know, that he was an observer
for the Union, whereupon Williamson said, according to
Conley, "Oh hell. You are for it 100 percent." Conley
answered he guessed he was, and Williamson ended the
talk by climbing up the ladder.
Superintendent Ellis denied all of the four conversations
with employee Conley; and President Williamson, in
"Further evidence of Superintendent Ellis' deficient memory, referred to
in fn 9, supra, was his insistence that employee Layton was hired in
March or April, 1967, notwithstanding the established fact that Layton
started his employment in September 1966 Ellis conceded he may have
asked employee Layton about the number of his dependents on the
occasion on the lake to which Layton testified, but claimed it would have
been to "clean up records," a claim I regard as highly unlikely in the
circumstances
denying Conley's version of their encounter, said that all
he did on election day was tell employee Conley he was
wanted for a preelection conference at Lawyer Merideth's
office.
I do not credit these denials, for the reasons affecting
the veracity of Williamson and Ellis already noted in
analyzing their testimony relating to other witnesses and
events, and I credit employee Conley's testimony.
Employee John Henry Litdell has been an employee of
Marine Welding since April 1967. He testified that he had
attended three or four union meetings at the in-town office
of the Union, the last of which was on the Saturday night
before the Tuesday July 18 NLRB election. On Monday,
July 17, said employee Litdell, Superintendent Ellis spoke
to him saying that fellow employee Harry Barrett had told
Ellis that employee Litdell was a good hand, who would
go along with the company each and every way, but "I
see now," said Ellis, "you are attending a union meeting."
Litdell testified that he replied he had attended to see
what was going on, and that Ellis said, "Well, I thought
you was going to tell me something," to which Litdell
answered, "there was a lot more than me. I think they
will probably tell you."
Superintendent Ellis denied this talk with employee
Litdell, but for reasons already stated above I do not
credit his denial; and I credit Litdell's testimony for the
additional reason that, as an employee at the time of his
appearance, in the vulnerable position of testifying
adversely to the employer, his credibility was entitled to
added support. See cases cited in fn 9, supra.
Employee M. C. Rush, who had been employed by
Marine Welding two years at the time of the hearing,
testified that a week before the election, while he was
sweeping up in the new boat being built, President
Williamson asked him if he was going to vote for the
Union. Rush testified, "I told him no, sir ... to get him
off my back."
On the morning of the election day, according to
employee Rush, while working on the back deck of the
same boat, he heard Superintendent Ellis ask employee
Williams on a deck below, about 15 feet away, who had
he seen at the meeting and Williams replied, Rush and
Howard Mosby (Rush's brother- in-law, also an employee).
A few minutes later, said Rush, Superintendent Ellis came
up to where he was and said, "Rush, I thought you wasn't
going to go down there to the meeting." Employee Rush
said he answered that he just went down to see what they
were talking about, whereupon Superintendent Ellis said,
according to Rush, "Well, I can't stop you from voting
for the union, but I can work your goddamned ass so hard
until you wish you had never seen the union."
President Williamson and Superintendent Ellis,
respectively, denied these conversations with employee
Rush but I do not credit their denials for reasons affecting
their credibility already stated above. I credit employee
Rush's testimony for the additional reason that, as an
employee at the time of the hearing, testifying adversely
to the employer, his credibility was entitled to added
support, see cases cited in fn. 9, supra."
"Employee Rush also testified to hearing Mr. Bill (Williamson) tell Mr
Jack (Ellis) prior to the election that he was going to give raises to only
two men, Killibrew and Elmo (Mascagni), but Rush testified on direct that
he did not hear President Williamson say why . Rush, a Negro, also
testified to overhearing Superintendent Ellis tell white Foreman Dorris
(Pugh ) three days after the election, that he was going to fire "all of them
niggers, if I have to fire them one by one " Again , Rush testified on direct
that he did not hear Superintendent Ellis say why
On cross-examination by Respondent, there was some confusing
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Dewitt (Ben) Harrison, who was a
Williamson Engine mechanic for about two years, testified
he began the campaign for the Union among his fellow
employees along with employees Walker, Blaylock and
Long, that he talked to the men at the shop, and that he
obtained union pledge cards from about 20 employees at
their homes, on the street, or placed in his pickup at
work. Shortly after the Union sent Respondent a
telegram, according. to Harrison, Superintendent James
Campbell spoke to him in the shop about the Union
trying to come in, saying they could not help, they might
control the money end, but that would be all. On a second
occasion in the shop, said employee Harrison,
Superintendent Campbell told him the election would not
be secret and that the employer would know how the
employees voted. On another occasion, also in the shop,
about the first part of July, according to Harrison,
Superintendent Campbell asked him was he going to vote
for the union and if so why.
In this connection, on the night of July 17, just before
the July 18 election, the Union had scheduled a meeting at
its hall. At about 5 p.m., employee Harrison, while in
process of leaving the Williamson Engine building for the
day, encountered President Williamson in the presence of
Superintendent Campbell, Foreman Ross, and Purchasing
Agent Lusk. According to employee Harrison, President
Williamson called to him, "in case you don't know it,
they are having a meeting down at the hall tonite." And
Harrison said he replied, "Yes sir, it's going to be at 7:30
and I will be there." President Williamson admitted the
encounter, saying he was at the customer counter with
Campbell, Ross, and Lusk when employee Harrison
walked through. Williamson said that he was reading
aloud the Union's handbill, Exhibit R-16, and claimed he
was merely reading the portion announcing the meeting
when employee Harrison passed by, a claim I do not
credit
Employee Charles Long testified to being present at a
conversation between employee Blaylock and
Superintendent Campbell, in which the latter asked
Blaylock was he going to be for or against the company,
observing that "we know how [Ben Harrison ] is going."
The two men engaged in a discussion of the Union coming
into the shop, continued Long, in the course of which
Superintendent Campbell said the employees would have
to picket for a contract, they would not be given a
contract, if the Union came in.
Superintendent Campbell denied having had any of
these conversations with employees Harrison and
Blaylock, denied that he knew in May, June, or July 1967
who was for or against the Union, and in particular where
employee Harrison stood, and initially stated that he
never once talked with an employee about the Union.
However, the fact is Superintendent Campbell knew that
employee Harrison was for the Union, at least by July 17,
when, as President Williamson testified, he told
Superintendent Campbell that Harrison was to be the
union observer at the election and to release him for a
testimony respecting these events growing out of prior written statements
given to the Board by Rush, who had schooling only to the fifth grade and
could read only a little The net effect of this additional testimony was to
indicate that the Williamson and Ellis statements may have been in the
context of giving the two named employees raises if they would vote the
Union out and giving the white folks a raise if the Union were kept out.
Nevertheless, in my view of Rush's whole testimony , without regard to the
denials by Williamson and Ellis, Rush's testimony concerning these two
happenings is too ambiguous to form the basis for finding in them
violations of Section 8(a)(1) of the Act.
preelection conference; and 'Harrison served as a union
observer on July 18 Moreover, Superintendent Campbell
was concededly present on July 17, as already indicated,
when President Williamson openly reminded employee
Harrison of the union meeting and Harrison equally
openly responded he was going. Superintendent Campbell
also knew that his brother-in-law, Foreman Dennis Ross
(who Campbell insisted was merely an employee rather
than a supervisor) was against the Union. In his testimony
Foreman Ross was quite clear that Superintendent
Campbell knew how he, Ross, felt about the Union; and
Campbell admitted to at least one conversation about the
Union with Ross when Campbell said he reported to Ross
about advice given at a meeting with Respondent's lawyer
Merideth concerning the Union. These refutations of
Superintendent Campbell's claimed innocence of
knowledge discredit his denials of participation in the
interrogations and other conversations suggesting
surveillance of and threats to employees, described by
employees Harrison and Long, and I credit their accounts
of these conversations.
Employee Harrison also testified to two conversations
on the job with Foreman Dennis Ross, in the first of
which Ross asked Harrison if he had signed a pledge card,
and in the second told Harrison that he, Ross, knew
Harrison was for the Union because he wouldn't talk
against it when the subject came up. While Foreman Ross
denied asking 'about the card signing, he did admit telling
employee Harrison, when Harrison allegedly ,accused him
of informing people that Harrison was "pushing" the
Union, that Harrison had made it plain to Ross and
others that Harrison was for the union. Ross added that
he was against the Union, and hoped Harrison respected
his view as he respected Harrison's view.
Respondent has challenged General Counsel 's assertion
that Foreman Ross was a supervisor within the meaning
of the Act. At the Williamson Engine Shop
Superintendent Campbell, according to his own testimony,
had been a supervisor, just below the corporate officers,
for four to five years before the hearing. In all of that
time until May 1967 he was paid on an hourly basis, at
$2.90 per hour since the general raise of January 1967,
and had the title of shop foreman. In May 1967 he was
given the new title superintendent, and put on salary. At
the same time Dennis Ross, Campbell's brother-in-law,
who had been with the company about 6 years and was
second to Campbell in the diesel shop, was moved into
Campbell's job as shop foreman. The two promotions
were announced by new Superintendent Campbelll at a
shop meeting of all the employees, with Ross present,
according to the testimony of Campbell and employee
Blaylock and Long. Superintendent Campbell said that at
the meeting he used the phrase "working shop foreman"
to describe Ross' new job, but the use of the word
"working" had no particular significance to the men,14 or
to Campbell or Ross for that matter,15 because, in his
supervisory capacity, Campbell had been a shop foreman
who did mechanical work, and as superintendent
continued to spend 25 percent of his time doing
mechanical work, according to his testimony.
"Nor was it clear that it was used . Employee Blaylock said the
description at the meeting was "shop foreman."
"Witness customer Doyle, for whom Respondent did work on the Yacht
Everlasting in the latter part of May 1967, said Campbell and Ross
introduced themselves to him as superintendent and forman , respectively,
and neither of them did the work, but assigned it to employee Blaylock
and a helper
MARINE WELDING & REPAIR WORKS
The significant matter to the employees at Williamson
Engine, as appears from the testimony of mechanics
Blaylock, Harrison, and Long, was that Foreman Ross as
well as Superintendent Campbell now assigned work to
them and controlled employee movements, and that in
Campbell's absence Ross took control and was regarded
by employees and management as the man in charge. An
illustration was provided in the testimony relating to the
events surrounding the alleged dispute between employees
Harrison and Webster. According to employee Long,
employee Harrison had asked employee Webster, who
usually cleaned parts, to, steam clean some engine heads
Harrison was working on and, when Webster refused,
Harrison went to Foreman Ross to have him direct
Webster to do the- cleaning; but Foreman Ross told
Harrison he had assigned Webster to work with another
mechanic, Peeks. Shortly thereafter, when Respondent's
Purchasing Agent Lusk claimed he became aware that
employee Harrison was telling employee Long that he,
Harrison, was of a mind to chastise Webster, Lusk
reported the matter first to Foreman Ross and only later
to President Williamson.
Foreman Ross was paid $2.65 per hour which, after
Campbell's $2.90 per hour was converted into a salary,
was the highest rate of pay in the shop. No other
Williamson Engine employee received more than $2.15 per
hour. Ross and Campbell were the only two men in the
shop who had been sent, at Respondent's expense, to take
special courses and had passed diesel mechanic tests at
Detroit and Memphis.
Foreman Ross conceded that when Superintendent
Campbell was away President Williamson had him, Ross,
carrying out Campbell's orders and that the men looked
to him as their "leaderman," but denied that he ever
assigned work or men. Because of the recited evidence
that Foreman Ross did independently assign work and
men, I do not credit his denial or Superintendent
Campbell's assertion that Ross had no authority over the
men unless Campbell gave him orders. In view of the
supervisory authority and recognition he enjoyed, I find
that Foreman Ross was a supervisor within the meaning
of the Act. James H. Matthews & Co. v. N.L.R.B., 354
F.2d 432, 434 (C.A. 8, 1965), cert. denied 384 U.S. 1002;
Inspiration Consolidated Copper Co., 142 NLRB 53, 55
(1963).
I also discredit Foreman Ross' denial that he
interrogated employee Harrison about signing a union
card.
2. Disenfranchisement and intimidation at the Board
election
The NLRB election, requested in the Union's petition
in 26-RC-2914, was scheduled for and held on Tuesday,
July 18, 1967, commencing at 3:30 p.m., according to
employee Freddie Lee Walker who had been discharged
but who voted. Notice was posted on Respondent's
bulletin board well in advance of election day, according
to Superintendent Jack Ellis.
On July 13 or 14, according to Respondent's witness
Charles Collier of customer Sinclair Refining Company,
the empty barge Sinclair 4 came into Greenville at Marine
Welding to be cleaned, gas freed, and drydocked, for U.S.
Coast Guard inspection and for repairs. Sinclair Refining
Company was a regular customer of Respondent's and its
barges came through regularly for such service on a
standing maintenance repair order under which each job
was written up separately for time and material expended.
669
The Coast Guard inspection was a periodic obligatory
inspection, in order to maintain the barge's license, and as
Collier testified could range from 1 to 3 days. The barge
had come empty from Old Hickory, Tennessee where it
had unloaded its cargo of para xylene, a toxic and
inflammable petro-chemical, that had been picked up at
Houston, Texas. The barge was on its way back to
Houston for a similar load, if its inspection and repair
met with Coast Guard approval. According to
Superintendent Jack Ellis, when the Sinclair 4 came in it
was put in the fleet of boats and barges on the lake
beyond the Marine Welding docks, where craft waited to
be worked on, or to be picked up when work was
completed. Before drydocking and repair could take place
the barge had to be washed and freed of the residual
flammable and toxic gas fumes, a requirement for safety
imposed by law, and it was necessary to have the
certification of a chemist that the barge was gas freed.
The chemist was not based in Greenville and had to come
in by prior appointment. To clear residuals from a cargo
of para-xylene, that had a sickening odor, according to
Collier, the dock area was too close to town, hence it was
the practice to take this barge and barges that carried like
cargos out of the lake into the river to a remote location
for the gas freeing operation.
Sinclair 4 was an old barge. Its sister barge, Sinclair 1,
of identical size and construction and in similar condition,
according to customer Collier and Superintendent Ellis,
engaged in plying the same route with the same cargo,
had come through Greenville one month earlier for the
same required periodic inspection and repair. It arrived on
June 13 or 14 and was gas freed on June 18, according to
customer Collier, was inspected in drydock on June 21,
and gave up its certificate when the owner decided that
the repairs required were too extensive, according to
Coast Guard Officer Robert Ross; and left Greenville
about June 26 or 28, according to Collier.
Notwithstanding the fact that Sinclair 4 had been
waiting in the fleet at the Marine docks since July 13 or
14 a crew to do the gas freeing was not selected until the
morning of July 18 the day set for the NLRB election.
Designating the crew the same morning of the down-river
gas freeing operation was in itself unusual, according to
Superintendent Ellis and employees Rush and Litdell,
since the operation took the better part of a day and it
was customary to alert the selected crew the previous day
so that they would bring their lunches.
Superintendent Ellis testified he was told by President
Williamson the morning of July 18 that they had a
hurry-up job on Sinclair 4 to be done that day. Ellis said
he picked a crew of seven or eight men (employees Litdell
and Liggins confirmed that the number was eight), got
hold of boat captain or boat operator Lee Muirhead and
his helper Albert Macon, and, going aboard the boat
himself with the crew, picked up the barge and took it
down river for gas freeing.
Superintendent Ellis said that President Williamson had
general knowledge of whom he had selected to go, and, it
is noteworthy that at least four were employees who had
been the subject of importuning and pressures by
Williamson and Ellis to obtain return of their union
pledge cards, or concerning attendance at union meetings,
or regarding voting. These were employees Layton,
Liggins, Litdell, and Rush, see heading C, 1, supra
Litdell and Rush had been doing gas freeing on a regular
basis, but Layton was principally a welder's helper, and
Liggins had not done gas freeing in five months, since he
began driving a truck He said he was told to go by
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Williamson. All of the employees were
unanimous that in their total experiences they had never
had Superintendent Ellis along for a gas freeing job and
that invariably Boat Operator Muirhead was in charge of
the gas freeing operations. According to employees Rush,
Litdell, and Liggins, they had "two bosses" along that
day.
Superintendent Ellis testified he would go on a gas
freeing job when he thought he was needect, but it was
also clear from his testimony that his going did not mean
spending the day on the operation but rather an
occasional visit by motor boat. Ellis conceded that the gas
freeing to be performed on Sinclair 4 on July 18 was a
routine job, apart from the claimed rush" and the failure
of the inspecting chemist to arrive Employee Rush
testified that Mr. Bill (Williamson) told Mr. Jack (Ellis)
to go with the men and see that they didn't come back
until after the election. Rush testified this was said while
he was on the boat, tied up at dock, and Williamson and
Ellis stood talking a few feet away on the dock. The total
circumstances, as the events of the day unfolded, supports
the truth of Rush's testimony, notwithstanding the denials
of Williamson and Ellis
Directly afterward, before the boat departed, according
to employee Rush, President Williamson asked the men if
they had their "dinner" with them and when he was told
no, said he would send "dinner," which he did later by
motor boat that brought the men some lunch, at their
location down river. As the men testified, this too was
novel in the gas freeing operations.
The gas freeing operation of Sinclair 4 was performed
in the river outside the mouth of Lake Ferguson about an
hour's run from the docks and was completed about 4
p.m., according to employees Rush, Litdell, and Layton
(employee Liggins thought it was closer to 3.30 p.m. and
Superintendent Ellis thought it was 5 p.m.); but, all are
agreed that instead of going back to the Marine Welding
dock the barge was taken inside the mouth of the lake
nearby the deserted shore and that barge, boat, and crew
just sat until 6 p.m Some time before 6 p.m., according
to employees Rush and Litdell, Rush asked about getting
back but Boat Operator Muirhead told him he could
walk. No one offered any explanation to the men for the
wait. According to the men and Superintendent Ellis, at 6
p in. the boat and barge started back for the Marine
Welding docks and arrived an hour later, at 7 p m." The
election had been concluded and none of the men who
were on the boat voted.
Superintendent Ellis claimed that he had kept the barge
from returning to the dock when the gas freeing was
completed because he had been told that the inspecting
chemist would come out to the barge and inspect in view
of the great hurry, instead of inspecting as usual in the
fleet at the dock location. However, Respondent's
testimony, hereafter described, showed that there was no
such arrangement and further showed that no one at
Marine Welding knew until 8 p.m. that night, an hour
after the barge finally got back, that a chemist would be
coming to Greenville to do the inspection.
According to Office Manager Burchfield's testimony,
the regular chemist Swoboda, out of Cairo, Illinois, had
notified Respondent on or about July 12 that he would be
"Customer witness Poe testified that "everybody is in a hurry to get
their equipment back in service."
"Superintendent Ellis testified at another point that they docked at 6
p.m., illustrative of some of the confusion and inconsistency in his
testimony
unavailable in the period July 18-23, 1967, that a
substitute, Shifley, could be obtained from St. Louis, but
that Shifley was quite busy and required plenty of notice
because "his travel time will be longer. He does not fly."
Exhibit R-19.
Customer witness Collier testified, that when he called
Respondent on the morning of July 18 to ask that they
get going on barge Sinclair 4 because it was badly needed,
he was told by Mr. King in Respondent's office that there
was no chemist for the gas freeing inspection. Collier
volunteered, he said, to try to reach a chemist out of St.
Louis and King said he would go ahead and start the gas
freeing Collier testified that he called St. Louis and left
word for the chemist to go to Greenville but had no
knowledge of whether his message was received and did
not call King back for another day or two, nor did King
or anyone for Respondent check with Collier to find out if
he had located a chemist. Office Manager Burchfield said
he learned from King that evening at 6 p.m. (July 18),
that the barge had not been inspected by a chemist
whereupon he tried to reach the substitute chemist,
Shifley, in St Louis, and got his home at 8 p.m. when he
was informed that Shifley was on his way to Greenville.
Chemist Shifley did not arrive in Greenville till the next
day, July 19, according to Burchfield
Although Respondent's boat had a ship-to-shore radio,
Superintendent Ellis did not call the office from the boat
to inquire about the chemist, and Respondent's office
made no effort to notify Ellis or Boat Operator Muirhead
that there would be no chemist coming out, if indeed there
was any such arrangement.
The total facts indicate that there was no arrangement
that the chemist, to whom no one for Respondent had
talked, would come out and do an inspection at an
unknown location on Lake Ferguson on July 18. I am
persuaded that Superintendent Ellis' story was a fiction" ,
and that Respondent used the cover of a routine gas
freeing job, concerning which there was nothing special
and no special urgency, to isolate and keep from voting in
the NLRB election eight or more employees, some if not
most of whom had been selected because of their known
or suspected union sympathies."
In connection with the voting on July 18, which began
at 3:30 p.m., Respondent brought to the voting place at its
waterfront yard three uniformed guards, who carried
"Further doubt was cast on Superintendent Ellis' veracity or capacity to
remember by his insistence that, in the succeeding days, after the gas
freeing inspection of the barge Sinclair 4 and its inspection for repairs in
drydock , customer Collier made the decision that the barge wasn't worth
repairing and Respondent did no further work on it Respondent itself
offered contradictory evidence , including testimony of customer Collier,
Coast Guard Officer Robert Ross, and Office Manager Burchfield, that
Respondent repaired Sinclair 4, that the repairs were inspected in progress
on July 21 and approved when completed on July 24 (with bill rendered
August 22, 1967, Exhibit R-18), and that the barge went back in service
from Greenville July 26, all not very long before the trial in this case
began
"There was considerable testimony, pro and con as to whether Boat
Operator Muirhead was on the one band a supervisor or agent of
Respondent, or on the other hand merely a rank-and-file employee. The
testimony was relevant solely in connection with the allegation of the
complaint that Muirhead , as well as Superintendent Ellis, prevented the
group of employees from voting in the July 18 election by the described
detention on the vessel , see Compendium of Allegations , para 24 , Exhibit
GC-2 In view of the fact that at all times involving the particular violation
the admitted supervisor , Superintendent Ellis, was present and in charge of
all who were present, including Muirhead , and that the identical action
taken by Ellis was the basis for the complaint against Muirhead , I see no
need or useful purpose to be served by an analysis and determination of
the status of Muirhead
MARINE WELDING & REPAIR WORKS
pistols, plus a nonemployee friend of Bilbo Williamson,
Cannonball Roebuck, according to Purchasing Agent
Bobby Lusk, in order to maintain , he said, "a'test tube
atmosphere." The armed guards were posted at various
locations about the yard where they could see, and be seen
from, the watchman's shack that served as the voting
place. The three uniformed armed guards had been
recently hired by Respondent from the Pendleton detective
agency to take the place of the former night watchman
who died, said Lusk (after the Union began its campaign,
testified employees Conley, Harrison, and Long), and
normally served from 5 p.m. to 6 a.m Purchasing Agent
Lusk was apparently in general charge of this force of
men during the election, and, he said, had stationed
himself at about the driveway entrance to the property,
where the chain had been drawn closing the entrance, to
identify customers seeking admission to the premises.
Freddie Lee Walker, a Marine Welding employee who
had been discharged by Respondent on May 1, arrived to
vote at 3:30 p.m., on advance advice that he was eligible
to vote. Walker testified he was met by an armed guard
and told by a second armed guard that he was to wait at
the levee outside the property. At this point, Purchasing
Agent Lusk intervened and, said Lusk, he had Walker
wait in the Williamson Engine parts room and vote last
with the Williamson Engine employees, though he knew
that Walker had been a Marine Welding employee.
According to Lusk, the Williamson Engine employees
were the last to vote and it took a long time to get to
them. Concerning Walker, said Lusk, he was following
instructions from Vice President Bilbo Williamson and
Lawyer Merideth. Walker testified that at 4:25 p.m. he
was escorted separately by a Williamson Engine employee
to the polling place.
The show of force, which began with Respondent's
unexplained substitution of three armed guards for night
duty in place of one nightwatchman at the commencement
of the union campaign, was made dramatically manifest
to the employees, before and during the election, by
bringing in ahead of their usual reporting time the three
uniformed and armed guards, plus the additional guard
not in uniform, stationing them about the voting place,
and chaining off the entrance to the yard before the usual
closing time. This was an unnecessary show of force (there
was no evidence of previous violence or threats) the likely
effect of which was to cause intimidation or an
apprehension of violence among employees, affecting or
deterring their voting.
The interference of the armed guards and Purchasing
Agent Lusk (conceded to be a supervisor under the Act)
with employee Walker's access to the voting place,
detaining him an hour, escorting him about, and
preventing him from voting until after the others,
particularly his former fellow employees of the Marine
Welding shop, had voted, was equally reprehensible.
Lusk's testimony makes clear that the events were not
mere happenstance but were planned for Walker in
advance by Respondent. As the General Counsel points
out, Respondent's deliberate action in keeping Walker
from voting either with or before the Marine Welding
employees was an, admission that Respondent was well
aware of Walker's leadership in the union campaign
among the Marine Welding employees; and, it may be
added, that the indignity visited on Walker was
undoubtedly intended for the notice of the other
employees. Respondent's conduct, including the
maintenance and use of its own special guard force at the
election, may wel1 have caused employees to wonder
671
whether the Respondent rather than the Board was in
charge of the election. There was no evidence that any of
the arrangements and actions described were approved
beforehand by the Board.
3 Scheming discharge of employees
Toward the end of May 1967, the yacht Everlasting, in
need of repairs, tied up at the yacht club marina nearby
Respondent's premises, and stayed about 1 week,
according to Leslie Doyle of Chicago, Illinois, who was
then the engineer for the yacht (and at the time of the
trial operated his own towing service in Chicago). Yacht
Engineer Doyle testified that Superintendent Campbell
and Foreman Ross of Williamson Engine came to the
yacht, introducing themselves as superintendent and
foreman, and discussed, in two visits, what was needed
and what was feasible. Employee Blaylock and a helper
were assigned to, and performed, the work that was
agreed upon. On a third visit before the work was
completed, said Yacht Engineer Doyle, Campbell and
Ross came and talked to him in the engine room.
According to Engineer Doyle, Superintendent Campbell
said they were dissatisfied with the two fellows who were
doing the work on the yacht because they were union
sympathizers, drunkards, and troublemakers for the
company, and if Doyle would give a hand, give them
something to drink, and call Campbell, he would have a
reason to fire them; and for helping, $20 would be
knocked off the repair bill. When employee Blaylock and
his helper came back to complete the job next day,
Engineer Doyle told Blaylock what his bosses had said,
testified Doyle because, he said, he thought the men were
getting a dirty deal. That night, testified Doyle, Organizer
Wilson of the Union came aboard the yacht saying he had
been told by the men about the matter and asking Doyle
about it. Doyle gave Wilson a written statement on the
subject and later, at the Board's request, gave the Board a
written statement, both of which were produced at trial
for use by Respondent in examining Doyle.
Employee Blaylock testified that he had done the
mechanical work assigned by Superintendent Campbell on
the Yacht Everlasting and that, when he was ready to
leave, Engineer Doyle told him of the suggestion
emanating from Campbell and Ross that Doyle get him to
drink a beer so that they could have an excuse to fire him
because of some union mess.2°
Notwithstanding the claims of Superintendent Campbell
and Foreman Ross that they talked only about the yacht's
repairs to Engineer Doyle, I credit Doyle's testimony as
the account of a disinterested witness, who had had no
"Subsequently, employee Blaylock let Superintendent Campbell and
Foreman Ross know that he, Blaylock , knew of their attempted scheme to
have him fired, indicating to Campbell he had a letter on the subject from
Doyle While Superintendent Campbell made no reference to discussions
with Blaylock , Foreman Ross testified he talked to employee Blaylock
saying he had heard Blaylock had a letter from Doyle about the
accusation , that it must be a mistake , and asking to see it . Blaylock did
not show any letter nor was he asked to produce it at the trial ; and if there
was a letter (rather than merely talk of one , as Blaylock 's way of getting
word of his awareness to Campbell and Ross), it apparently was not from
Engineer Doyle, who denied writing any letter and would hardly have had
reason to write one, having given his information contemporaneously with
the incident to employee Blaylock and in writing to the union
representative Foreman Ross also testified to a conversation in June 1967
with employee Blaylock in which they discussed the pros and cons of
voting for and joining the union , said Ross Blaylock quit Respondent in
mid-August 1967 (see R-21) and is now employed by the Corps of
Engineers.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previous relationship with any of the parties in this
litigation, who at the time of the incident appeared
sufficiently moved by what he thought was an injustice to
give a written statement on the subject and become
involved, and whose credibility was not impeached.21
4. Reduction in Saturday overtime
The allegation of the complaint was that at Williamson
Engine, Respondent discontinued Saturday overtime from
about May 19, 1967, because the employees engaged in
union activities. Exhibit GC-2, Compendium of
Allegations, paragraphs 12, 13
The Williamson Engine payroll records, Exhibit R-21,
covering pay periods from January 4, 1967 through
October 18, 1967, show a definite decline in Saturday
overtime, amounting to a practical elimination of it, for
the pay period ending May 31, 1967, through the pay
period ending September 6, 1967, affecting the mechanics
but not the parts people.22 The mechanics were employees
Blaylock, Harrison, Long, Stevenson, and Robertson who
was succeeded by Peets in mid-June 1967.23 Three of the
four mechanics Blaylock, Harrison, and Long were
the leaders among the employees for union organization,
(a fourth leader, employee Walker, having been
discharged on May 1). Superintendent Campbell conceded
that the basic 50 hour week (all hours over 40 hours at
overtime scale), that had prevailed for the mechanics in
early 1967 and before, was reduced to a 45 hour week by
eliminating the 5 hours on Saturdays.24 However, as
among the mechanics and helpers, there was disparity
because mechanic Peets, who came on the payroll in the
week of June 14, 1967, worked on four Saturdays in the
period through September 13, and mechanics helper
Webster worked nine Saturdays, whereas in the period
comparable with Peets mechanic Long had one Saturday
and mechanics Blaylock and Harrison (up until the times
in August when they left, see fn. 24, supra) had no
Saturdays at all.25 Blaylock and Harrison testified that
they had both been accustomed to working 50 hours and
over per week, but in the period before leaving were
averaging only 40 and 45 hours, respectively, per week;
and the records substantiate the testimony.
"The testimony indicated that Engineer Doyle had not seen any of the
persons involved in the incident since its occurrence at the end of May
1967 He did not know the names of the two workers nor could he identify
them among eight persons brought into the courtroom for him to view but,
as he said, he had spent no time with the two workers On the other hand,
he had spent time talking with Campbell and Ross, and accurately
described them before pointing them out, in Ross' case describing him
before he entered the courtroom Doyle conceded an eyesight difficulty at
two distances, close to his face and at between 8 and 10 feet, but testified
to no difficulty with longer distances or between close-up and 8 feet
Respondent put him through a courtroom demonstration of his eyesight
"The parts people were employees Crawford, Cudd, Logan, Purvis, and
Tarkington, according to the testimony of Vice President Joe Williams
"There was only a partial decline in Saturday overtime for mechanics
helper, James Webster, discussed, infra. Other mechanics helpers, Monroe
Johnson who was dropped in early May, and Howard Mosby who came on
the payroll at the end of August, were not in the period long enough to be
materially affected
"Campbell fixed the period of elimination of the Saturday overtime as
being in April or May and continuing in June and July 1967 More
accurately, as reflected in the payroll records, Exhibit R-21, the period ran
from the last week in May through the beginning of September, in which
time the three union activists dropped from the payroll, Blaylock quitting
in the week of August 18, Harrison by discharge in the week of August 23,
and Long quitting in the week of September 13
"Nor did mechanic Stevenson have any Saturdays in that period On the
five Saturdays thereafter, week ending September 20 through week ending
Employee Blaylock testified that Superintendent
Campbell told the mechanics in mid-May 1967 that they
would not be getting the weekend overtime because of
"this union mess" as a result of which the Company
would not bring in the work.26 Employee Blaylock also
testified that, in May, Superintendent Campbell told the
crew that the company had lost a contract with the
Southern Towing Company for building two boats, but
that he, Blaylock, continued to work on two engines for
these boats the whole of the time until he left
Respondent's employment (in August).
Employee Long testified that in early or mid-May,
President Williamson told Long and employee Stevenson
to grease down (store) an engine they were working on in
the shop, intended for installation in a new boat then
under construction, saying he had lost the contract on the
boat. Nevertheless, said Long, he and others continued to
work on the engine and it was not stored but installed in
the boat.27
Superintendent Campbell denied making references to a
union mess or mess and said he informed the shop crew in
a meeting that because the company had lost a contract to
build two more boats for Southern Towing Company it
was going ahead to build the boats for speculation without
a deadline, and there would be no need for overtime work
by the mechanics and helpers.28 The cut was effectuated by
eliminating the Saturday work said Superintendent
Campbell, and he was quite clear in his testimony that
loss of the boat contract was the reason for cutting the
overtime He testified that there had been customer
complaints about charges for overtime, as a result of
which the billing system had been changed not to show
regular time and overtime, but that this change was put
into effect "after the first of the year, this year" (1967)
Vice President Joe Williams was of a different view He
testified that, as a result of complaints by Williamson
Engine customers about overtime billing in January,
February and later,29 it was decided on May 20, 1967 to
change the method of billing by stating total hours
without a breakdown between regular and overtime hours,
to cut Saturday overtime by not rebuilding the engines for
the new boats on overtime, and to work overtime only on
customer request and in an emergency. As a result
Williamson Engine employees (other than parts men)
worked less overtime, said Williams. Williams did not
offer any explanation for giving Saturday work to the
junior mechanic Peets to the exclusion of senior
mechanics, such as Blaylock, Harrison and Long, nor did
he offer any explanation for the resumption at Williamson
Engine of regular Saturday overtime in September after
these seniors had left, nor did he or any other witness for
October 18, 1967, mechanic Peets worked each Saturday for an average of
13 1/2 hours per Saturday and mechanic Stevenson resumed the 5-hour
Saturdays
"Employee Long testified to being told by Superintendent Campbell in
the latter part of May that some overtime work had come up over the
weekend that was lost "because of this mess", and, said Long, the only
actions or unusual thing going on at the shop at the time was the union
activities The Board hearing on the election petition in 26-RC-2914 was
held in Greenville on May 26-27, 1967, see Exhibit GC-5
"Employee Milburn of Marine Welding testified to similar discouraging
talk of no more work coming in and not knowing how things were going to
go, by President Williamson in May 1967, while work continued to come
in
"Campbell said the overtime change occurred in April or May, but
Foreman Ross, who attended the meeting, agreed with employee Blaylock
that the meeting was in May, and the payroll records reflect that the cut in
Saturday overtime work began in the last week of May, Exhibit R-2l.
"Counsel for the General Counsel suggests, not without justification,
MARINE WELDING & REPAIR WORKS 673
Respondent indicate that the alleged change in policy on
overtime had extended beyond these several Williamson
Engine mechanics.
In connection with the alleged loss of contract with
Southern Towing Company, told to the Williamson
Engine mechanics by Superintendent Campbell in May
1967, it appeared from the combined testimony of
President Williamson, Secretary-Treasurer Bilbo
Williamson, Superinte,dents Ellis and Campbell, and Vice
President Stegbauer of Southern Towing Company
(Southern), that Respondent built four boats for Southern
between February 1965 and January 1967. According to
Stegbauer, these were built under contract, Southern had
talked with Respondent about two additional boats, and
Respondent had started building. However, in March
1967, said Stegbauer, Southern notified Respondent it was
not taking the two new boats, there was no contract, and
Respondent informed him it would complete the boats for
speculation. According to President Williamson, building
of the fifth boat intended for Southern was started in
January or February, 1967 (8 or 9 months before October
25 when he testified) and completed in early October
1967, when it was leased to Temmco, a company in which
Vice President Stegbauer of Southern is also an officer
Also, the sixth boat intended for Southern was well along
in construction, a completed hull, in October 1967,
according to Superintendent Ellis. The six boats for
Southern were all of similar design, and the Williamson
Engine mechanics had the function principally of
rebuilding and installing surplus engines which they had
about completed on No. 5 but had not commenced on
No. 6 in September 1967, according to Superintendent
Campbell.
Between start and completion of Southerrtz Boat No. 5,
Respondent also built and delivered a seventh boat, named
the William H. Craig, to Carroll Towing Company,
according to Superintendent Ellis and others. The Craig
was under construction at the time of the election (July
18, 1967), according to Ellis, and apparently moved out in
August„ according to employee Harrison.
The pattern and timing of the application of the
Saturday overtime cuts, falling mainly on the three
employee leaders for unionization , beginning in the week
of the representation hearing, and contemporaneous with
the union organizational drive, support the evidence that
the cuts were inspired by the "union mess." The
contradiction in the management explanations of why the
cuts were imposed, in themselves weak reasons, suggests a
fishing for justifications to hide the antiunion reason.
Concerning Superintendent Campbell's explanation -
loss of the Southern contract - there was in fact no
contract with Southern, so that none was lost in mid-May
1967 when Campbell told the mechanics there would be
no more Saturday overtime. Indeed Respondent had
commenced building the fifth boat without a contract, in
January or February 1967. Respondent knew by March
that Southern was not going to enter into a contract for
that this claim of customer complaints by Vice President Williams is
unreliable hearsay because , in the instance when Respondent sought to
substantiate a customer complaint alleged by President Williamson to be a
cause of firing employee Layton (infra, heading D,3), the customer witness
Charles Poe , called by Respondent, failed to substantitate Williamson's
testimony . Hence, contends General Counsel , the inference is raised by
failure of Respondent to call any customer witnesses regarding the
overtime complaints that the witnesses , if called, would impeach
Respondent , citing Kirby v . Tallmadge , 160 US 379 , 383 (1895), and
United Mineral and Chemical Corp ., 155 NLRB 1390, 1392, fn . 4 (1965)
I think there is force to the contention.
the fifth and sixth boats, nevertheless went ahead anyway
not only to complete the fifth boat but to lay the keel and
nearly complete (by time of the hearing) the sixth boat,
meantime building a seventh boat for Carroll Towing
Company. The work on the boats continued withou.
cessation notwithstanding the alleged disavowal of interest
by Southern, and it is far from clear that there was a
genuine disavowal when it is considered that the fifth boat
was delivered to a Southern affiliate or company related
to Southern through the common principal officer
Stegbauer.
Vice President William's contradictory explanation,
that the change in style of billing at the end of May
brought on the cut in the Williamson Engine mechanics'
Saturday overtime, does not in fact explain, since there
was no general elimination of overtime for the mechanics
and the Saturday overtime for them was restored to the
pre-May normal in September after the three unionists
had left or been fired. Moreover the time of the billing
change was in dispute, Superintendent Campbell asserting
that the change in billing practice occurred at the
beginning of 1967, nearly five months before the decision
to eliminate Saturday overtime for the Williamson Engine
mechanics
5. Conclusions re 8(a)(l)
In my view, Respondent was guilty of flagrant
violations of the self organizational rights of its
employees.
As described under the preceding headings, there were
interrogations by President Williamson, Superintendent
Ellis and Campbell, and Foreman Ross of employees
individually, without any legitimate purpose of
Respondent to be served and without any assurances
against reprisal, concerning employees' signing of union
pledge cards, joining the Union, attending union meetings,
and how they were going to vote. There was importuning
of employees, by President Williamson and
Superintendents Ellis and Campbell, not to sign with the
Union and (by Williamson and Ellis) to revoke union
pledges amounting, in some of the described instances, to
ordering employees to obtain return of signed union
pledge cards and turn them over to Respondent, and, in
other instances, giving employer assistance to achieve
repudiation of the Union. There were threats, in
connection with the interrogations, by President
Williamson and Superintendent Ellis to close down if the
Union came in, by Superintendent Campbell that the men
would have to picket for a union contract, and by
Superintendent Ellis to overwork an employee for
supporting the Union. There was a demand by
Superintendent Ellis that an employee inform him about
union meetings. And, there was harassment inflicted, and
the impression of surveillance conveyed, by President
Williamson and Superintendent Ellis and Campbell,
concerning attendance at union meetings and regarding
other union activities of the employees. In all, there was a
barrage of unlawful acts aimed at discouraging and
preventing unionization of the employees.30 See, for
among other things, N.L.R.B. v. Camco, Inc., 340 F.2d
803, 804-807 (C.A. 5, 1965), cert. denied 382 U.S. 926,
and N.L.R.B v. Texas Electric Cooperatives, 398 F.2d
722 (C.A. 5, 1968), on coercive interrogation; N.L.R.B. v.
Milco, 388 F.2d 133, 67 LRRM 2202, 220405 (C.A. 2,
1968), on threats of plant closure, and coercive
interrogation; N.L.R.B. v. Plant City Steel Corp., 331
""[B]reaking every rule in the now compendious book of
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 511, 513 (C.A. 5, 1964), on threats of plant closure;
N.L.R.B. v. Sunnyland Packing Co., 369 F.2d 787, 789
(C.A. 5, 1966) on solicitation of employees to withdraw
from union, N.L.R.B. v. Movie Star, Inc., 361 F.2d 346,
348-349 (C.A. 5, 1966), on employer assistance to
repudiate and withdraw from union ; Southwire v.
N.L.R.B., 393 F.2d 106, 107 (C.A. 5, 1968), on threat
never to sign union contract, and asking employees to
inform on other employees; Hendrix Mfg. Co., Inc. v.
N.L.R.B., 321 F.2d 100, 105 (C.A. 5, 1963), and
N.L.R.B. v. Great Dane Trailers , Inc., 396 F.2d 769
(C.A. 5, June 1968), on creating impression of
surveillance.
In addition, the Respondent's aborted scheme to find a
quick and easy pretext to discharge employee Blaylock by
using Engineer Doyle of the yacht Everlasting as a decoy,
appears to have been part of the management effort to
destroy whatever leadership for union organization there
was among the employees. For the proposition that an
employer's attempted engagement of an outsider, to find
grounds for discharge of a union supporter, violates
Section 8(a)(1) of the Act, see N.L.R.B. v. Queen City
Coach Company, 398 F.2d 231 (C.A. 4, 1968).
Another phase of the effort to undermine the employee
leadership was the discriminatory elimination of the
Saturday overtime of mechanics Blaylock, Harrison, and
Long, the three remaining employee leaders for
unionization at the end of May 1967, almost immediately
after the aborted attempt to discharge Blaylock." The
prima facie evidence submitted by General Counsel, that
Respondent's action was motivated by antiunion
considerations, was confirmed beyond doubt by
Respondent's two contradictory explanations for
elimination of the overtime, the intrinsic weakness of both
explanations , and the failure to explain why the cut was
not uniformly applied among the mechanics and helpers
and why the normal pre-May Saturday overtime was
resumed in September after employee leaders Blaylock,
Long and Harrison had quit or been fired.32
Lastly, the conduct of Respondent on the day of the
NLRB election, July 18, 1967, was the culmination of the
prior 8(a)(1) misconduct, directly aimed at unfairly
affecting the outcome of the election. Contrary to previous
practice, eight or more employees, including at least four
who were clearly regarded by Respondent as union
sympathizers, were selected and shipped out on the
company boat without previous notice, for a routine gas
freeing operation, just hours before the scheduled NLRB
election, and were detained on the water miles from the
boatyard without explanation after their work was
completed and after working hours were over. In effect,
how-not-to-combat-a-union -campaign ." N L R B v Goodyear Tire and
Rubber Company Retread Plant, 394 F.2d 711, 712 (C A 5, 1968)
"The fact that the impact of the overtime elimination fell also on one
additional employee, Stevenson , who was not one of the employee leaders,
does not exculpate the Respondent from the misconduct , compare
N.L.R B v Nabors Co., 196 F.2d 272, 276 (C.A. 5, 1952), cert. denied
344 U .S. 865 More significantly , the record showed that the elimination of
overtime was discriminatorily applied by continuing some Saturday
overtime for the newest mechanic Peets and for mechanics helper Webster.
'The discriminatory elimination of Saturday overtime was also an
unlawful change in condition of employment of the three men, and since
the subject was fully litigated and General Counsel's motion to conform
the pleadings to the proof was allowed, Respondent was guilty of a
violation of Section 8(a)(3) as well as of Section 8(a)(1). N.L R B v Guild
Industries Mfg Corp., 321 F.2d 108, 111-112 (C.A. 5, 1963). The 8(a)(3)
discharges of employee Harrison and employee Walker , the fourth of the
employee leaders, discussed , infra, was still another phase in the
destruction of the employee leadership
the men were forcibly prevented from voting.
Respondent's own testimony made clear that there was no
explanation other than the intention to prevent these
employees from voting.
The forcible detention of the several employees away
from the polls was supplemented with the unnecessary
show of force at the polling place by Respondent's posting
and use of special guards, mostly uniformed and armed.
The presence of this force was, for all of the employees, a
source of intimidation and apprehension of violence at the
election; and the actions of the guards, under
Respondent's direction, with respect to employee Walker,
interfered with his access to the voting place and with his
right to vote without employer hindrance.
The deprivation of, and interference with, employee
voting rights by Respondent violated Section 8(a)(1).
Together with the other 8(a)(1) and (3) misconduct
occurring before the conclusion of the election, the
aggregate of the wrongful acts interfered with the freedom
of choice of the employees in voting for a collective
bargaining agent and substantially and unfairly affected
the outcome of the election.
D. The 8(a)(3) Violations
1. Discharge of employee Walker
Freddie Lee Walker was employed by Respondent at
Marine Welding from March 1965 until May 1, 1967,
when he was discharged. He was a helper and for a period
before his discharge worked as a pipefitter's helper.
Superintendent Ellis testified that Walker was a good
employee when he first came to work, that he continued
to have possibilities of being a good worker, but that he
deteriorated in the last month of his employment and was
a mediocre employee in the last week. Superintendent
Ellis and employee Walker agreed that in 1966 Walker
had been laid off for three days for taking a nap on the
job on a Saturday night, and that he had been separated
from the job a second time in August 1966 when his
wages were garnisheed by a creditor. Walker testified that
he took a job with the Greenville Shipbuilding Company
for about 2 1/2-3 months, then received an invitation
from President Bill Williamson and John Davis to come
back to Respondent and, as Superintendent Ellis also said,
was rehired in November 1966, and worked without
interruption until May 1, 1967.
According to employee Walker, on April 27, 1967, he
was recruited by employee Blaylock to organize for the
Union and signed a pledge card. On that night and the
succeeding night, April 28, and during the day, Sunday,
April 30, Walker, a Negro, accompanied on the first
occasion by the three white employee organizers, Long,
Blaylock, and Harrison, and by the Union's organizer
Collieux on the next two occasions, solicited and obtained
union card signatures from employees at their homes, on
the street in front of a barber shop, and at a cafe. Walker
testified that he was generally successful except for two
refusals. Walker's testimony concerning his union
organizing activity in these several days was corroborated
by employees Long, Blaylock, and Harrison.
Monday morning, May 1, on reporting to work,
employee Walker was given a swing blade, a 24-inch blade
for hand cutting grass, by Superintendent Ellis, and told
to cut the tall grass (sometimes called Johnson grass,
typical of marshy areas), starting at the air compresser,
building No. 10 on map Exhibit R-l, and working north
and west to the water's edge Walker testified he had
MARINE WELDING & REPAIR WORKS 675
never hand cut the grass before nor seen it done, and he
and employees Harrison and Blaylock testified that in
past summers to control the tall grass Respondent used
chemicals sprayed by hose from a gasoline powered rig
that Respondent maintained for this purpose. The rig was
in working order, according to employees Harrison and
Blaylock, because a week or two earlier employees
Robertson and Blaylock had worked on it, Harrison had
helped Robertson crank it, and Blaylock had tested it.
Superintendent Ellis said the use of chemicals was not
faster than hand cutting but was more effective because it
killed grass; however, that he did not have any chemical
available.
According to Superintendent Ellis this occasion was the
first cutting of the year and there were several more later
in the summer.33 Ten minutes after he started cutting, said
employee Walker, President Bill Williamson came over to
him and pointed out what he wanted cut, embracing a
large part of the whole waterfror, ea, from the water's
edge on the west back to the paved and building portions
of the yard on the east, and from the adjoining city park
property on the south to building No. 4 (on map R-1) on
the north. This was about a two acre area said employee
Walker (Superintendent Ellis' estimate was in accord),
and according to Superintendent Ellis was covered with
grass and weeds, knee high and better, in which materials
were scattered in places, some clearly visible and some
not. According to employee Walker, President Williamson
said he wanted the area cut by 3 p.m. that day because he
had a Garden Association coming over 36
Employee Walker testified that he worked throughout
the morning and until almost 2 p.m.35 with several
interruptions - for lunch, to sharpen the blade, and to
seek a replacement for a screw holding the blade when it
broke on an object obscured by the grass. Meantime,
about 9:30 a.m., said Walker, President Williamson came
by and told him there would be no help with the cutting
because he didn't have men to spare and had no more
blades. When Walker came in during the day to replace
the broken screw, Superintendent Ellis handed him a fresh
swing blade instead, said Walker.
According to employee Walker he had cut all of area 5
(on map R-1)36 , and had started on the other side of the
road leading to the dock, in area 9, having cut about
two-thirds, he said, of what he had been told to cut by
President Williamson, when Williamson stopped him, said
he would never finish at the rate he was going and fired
him. Walker said he clocked out at 1:50 p.m. He was paid
off a few minutes later by President Williamson, who told
him, said Walker, there would be more following him.
There had been no previous warnings, or indications of
dissatisfaction with Walker's work before May 1, 1967,
since his rehiring in November 1966.
"Employee Harrison said that on those occasions he saw hand cutting
done by a group of three to six employees.
'Superintendent Ellis claimed he had started employee Walker cutting a
lesser area and had set no time limit although the greater area would
eventually have to be cut. However, Ellis and President Williamson did not
contradict employee Walker's testimony that Williamson had taken over
and given Walker the expanded and more precise instructions on space and
time
"Employee James Johnson said he observed Walker cutting about that
time and then saw him some minutes later coming off the drydock when he
told Johnson he had been fired.
"Organizer Wilson of the Union testified that he took photographs
GC-11 and GC-12 the next morning , May 2, that he was able to see all of
area 5 , and the grass was cut.
President Williamson testified that he had been
concerned about his lease of the waterfront property from
the city because there was opposition to him from the
garden clubs who, he said, complained he was not keeping
the grounds clean, that about May 1 he told
Superintendent Ellis to put somebody on cutting the grass,
and that employee Walker's cutting the grass was part of
meeting the garden club opposition."' However, other
testimony put in by Respondent, including further
testimony of President Williamson, indicated that
Respondent had a five year lease, which had about two
years to run, that the lease was not in jeopardy3s but that
President Williamson and other lakefront owners had been
pressing the city council to sell the lakefront property
rather than continue to lease, that the Greenville Port
Commission was recommending long term leases instead
of sale (city council minutes of May 2, 1967, Exhibit
R-20), and that the issue was economics not esthetics
(news article, Democrat Times, May 3, 1967, Exhibit
R- 15)
President Williamson testified that he observed
employee Walker several times during the grass cutting
operation on May 1, that he was mostly idling on the
docks or in the shop, that he had to tell Walker to go
back and get the grass cut, and that "I fired him, because
we couldn't get enough work done." However,
Superintendent Ellis testified that no one was assigned to
replace Walker to cut the grass for the balance of that
day.
President Williamson said it was his decision to fire
Walker, and he did not consult Superintendent Ellis.
When asked to state his reasons for the discharge of
Walker, President Williamson said : "the performance of
his work . . . that particular day. That and other things.
He was bad about going to sleep on the job, and his
garnishment, and a number of things . . . Failing to
show up on Saturday. Going to sleep on the job.
Hangover every Monday from drinking." Williamson
later said the garnishment was not part of it on May 1,
1967, and, apart from merely making the claim, produced
no evidence on the subjects of failure to show up on
Saturday or hangover every Monday from drinking.35
Indeed, whether employee Walker's alleged delinquency
on Mondays was as stated at trial by President
Williamson or as stated in Respondent's pleading (fn. 39,
supra ), were it true neither President Williamson nor
Superintendent Ellis would have entrusted employee
Walker alone, of all the employees, with the claimed
critical job of protecting the status of Respondent's, city
lease from the ire of the garden clubs on Monday, May 1.
"Superintendent Ellis testified that late in April President Williamson
told him his lease with the city was coming up for renewal, that the garden
clubs had complained about them and other boat places, and to get the tall
grass cut . Hence, said Ellis, he assigned employee Walker to the job on
May 1 Ellis said that Williamson did not tell him when the cutting had to
be done
"Respondent' s witness Sam Valencino , a member of the City
Beautification Committee that represented the garden clubs, testified that
while the garden clubs were interested in cleanliness they were not opposed
to the city leasing the lakefront property , but opposed only its outright
sale. His Committee, he said, was on record before May 2 that it was
staying out of the sale -versus-lease controversy
"Nor was either subject pleaded as a reason for discharge of employee
Walker in Respondent's affirmative defense, Exhibit GC-1 (iii), filed after
the Board ' s case was presented in this trial but before President
Williamson testified . Respondent 's pleading states that Walker was
discharged because of "past unsatisfactory performance on Mondays and
his failure to do his job as instructed on May 1, 1967 ." There was no
evidence of past unsatisfactory performance on Mondays.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obviously, the alleged delinquency was no more true than
the claim that Respondent's lease was in jeopardy on May
1, 1967, or that the garden clubs were threatening
Respondent's continuation as a tenant of the city
property. 40
Respecting employee Walker's performance on May 1,
it was characterized by President Williamson as "mostly
idling" and by Superintendent Ellis as "lackadaisical"; but
Ellis conceded that he had observed before noon that
Walker had cut the grass of area 10, that he had cut half
of and was working in area 14, and may or may not have
cut area 13, Ellis wasn't sure. Ellis said he did not discuss
employee Walker's performance of the grass cutting with
President Williamson and knew that Walker had stopped
only after being told by Williamson that he had fired
Walker. Employees Harrison, Long, and Johnson each
saw Walker on several occasions during the day and
testified that they observed him cutting the grass; and, as
already stated, the testimony of Walker, corroborated by
Organizer Wilson, indicated Walker had cut area 5, and
was working in area 9 when stopped by Williamson." In
my view, the evidence established that employee Walker
was well on his way to accomplish substantially the grass
cutting task assigned to him on Monday, May 1, and that
stopping and firing him before the alloted time given him
was part of the contrived means of effecting his discharge.
Conclusion: Employee Walker was regarded as a
desirable employee before the union campaign began. His
recall after two previous separations, plus the direct
appraisal of his capability by Superintendent Ellis, attests
to this.
Immediately after he engaged in soliciting fellow
employees for union pledge cards, including solicitation on
the public streets and at a cafe as well as employees'
homes, employee Walker was taken from his regular job
as a pipefitter's helper and given the seemingly impossible
and discouraging job of cutting by hand with a 24-inch
blade, and with no other assistance, two acres of tall
swamp grass on Respondent's waterfront property by 3
p.m. of the day the work was assigned, Monday, May 1.
The assignment was unusual, not only because Walker
had never done this kind of work in his two years of
employment, but also because Respondent usually
controlled the grass with a chemical spray, the spray rig
had been put in working order a short time before, and
whenever cutting was done it was performed by a crew of
men and not by a single individual. Walker was told the
work had to be done in less than a day because a garden
club inspection was to be made that afternoon.
Notwithstanding he had cut a substantial amount of the
designated area of grass, employee Walker was stopped
and fired before the time he had been alloted and no one
replaced him to complete the cutting that day.
The reasons given for the timing and haste in doing the
grass cutting job were false. There was no garden club
inspection slated or held, the garden clubs were not
opposing Respondent's continuance as a tenant of the city
of Greenville, and Respondent's lease, which had two
years to run, was not in jeopardy then or prospectively
Respondent was pressing the city to sell the waterfront
property to Respondent, but the issue was the economics
"The long past 1966 delinquency of taking a nap on the job, and the
incurring of a wage garnishment in 1966, had been the subjects, then, of
layoffs and remstatements These defaults had not deterred Respondent
from recalling employee Walker and had been condoned by Respondent.
"As shown on Exhibit R-1, areas 5 and 10 are on the south side of the
road leading to the Marine Welding docks , and overlap each other as do
areas 9 , 13, and 14 which are on the north side of the same road
of sale-versus-lease and not the maintenance or
appearance of the property. The garden clubs, while said
to be in favor of leasing and against selling the land, had
renounced even taking a public position on the issue.
The reasons given by Respondent for discharging
employee Walker were shifting and false. In the case of
the alleged "failure to do his job as instructed" on the day
of discharge, employee Walker was performing, and had
been prematurely stopped by Respondent from
completing, the special task assigned, though it was new
to him and obviously devised to discourage him. The other
reasons stated by President Williamson, who took direct
and sole responsibility for the discharge, were niether
pleaded nor proved, and included reasons underlying
previous separations (one of which - garnishment of
wages - was said to be both in and out) that Respondent
had condoned six months earlier in the recall of employee
Walker.
There was direct evidence that Respondent knew of
employee Walker's role in organizing for the Union when
President Williamson told Walker in connection with his
discharge that there would be more following him; and
Respondent later confirmed its awareness of Walker's
leadership by preventing him from voting at the Board
election with his former co-workers of Marine Welding
and by detaining him out of sight until, and permitting
him to vote only after, the others had voted. (See heading
C, 2,supra.)42
The total circumstances of employee Walker's
discharge, including its swift execution at the earliest
possible moment in the inception of the union campaign,
the absence of any warning, the rigged pretext upon which
the discharge rested and the subsequent implausible
shifting explanations, Respondent's knowledge of Walker's
union activities and its answering barrage of unlawful
antiunion activities (see heading C, supra ), left no doubt
that it was Respondent's discriminatory purpose in
discharging Walker to impress upon the employees the
measure of retaliation Respondent would visit upon union
sympathizers in order to discourage membership in the
Union. In so eliminating Walker as an employee,
Respondent violated Section 8(a)(3) and (1) of the Act.
See, Great Atlantic and Pacific Tea Co. v. N.L.R.B., 354
F.2d 707, 709 (C.A. 5, 1966), holding that the employer's
assigned ground for discharge need not, be accepted where
there is reasonable cause for believing the ground is
untrue and that employee's union activity was the real
reason; N L.R B. v. Griggs Equipment, Inc., 307 F.2d
275, 278 (C.A. 5, 1962), where employer's explanation for
discharge "failed to stand scrutiny"; N.L R.B. v. Georgia
Rug Mill, 308 F.2d 89, 91 (C.A. 5, 1962), holding that
employer's shifting explanations for discharge strengthen
the conclusion that the true reason was employee's union
activity; and, N L.R.B. v. Longhorn Transfer Service, 346
F.2d 1003, 1006 (C. A. 5, 1965), upholding as
discriminatory the discharge of a leading union advocate
during the height of an organizing campaign.
2. Discharge of employee Harrison
Employee Dewitt B. (Ben ) Harrison was a mechanic
with Williamson Engine for about two years before he was
discharged on August 23, 1967. He started at $1 50 per
"Evidence of employer knowledge may be circumstantial as well as
direct, N.L R.B v . Ambox , Inc, 357 F.2d 138, 142 (C.A. 5, 1966), and
the events attendant on this discharge , apart from the direct evidence,
reflect knowledge
MARINE WELDING & REPAIR WORKS
hour and was earning $2.05 per hour when separated from
his job. In late 1966, employee Harrison said , he told
Superintendent Campbell he was going to leave, but
Campbell urged against it saying, according to Harrison,
he was "making them a good hand." Superintendent
Campbell also testified that Harrison was a good worker,
saying that, "Ben Harrison did a day's work, when I
assigned him work."43
Employee Harrison testified that at the end of April
1967 he started on the union campaign, getting about
twenty authorization cards signed on the streets and in
employee's homes. Several cards were put in his pickup at
work, he said. Accompanying him in the solicitation of
union authorizations were employees Blaylock, Long, and
Walker. Harrison also attended approximately four to six
union meetings at the union hall on Main Street in
Greenville, he said, the first held in May 1967.
Beginning in May 1967, as set out above under
headings C, 1 and C, 5, employee Harrison was involved in
discussions, interrogations, and harassment concerning his
union sympathies, in which acts President Williamson,
Superintendent Campbell, Foreman Ross, and Purchasing
Agent Lusk took part. Employee Harrison's advocacy of
the Union was well known to the employer, and Harrison
served as union observer at the representation election in
July.
On May 16, 196,7, employee Harrison was given a letter
by President Williamson telling Harrison that he was not
giving "a full day's work" and was doing "a lot of talking
on the job" and warning him if he did not give a "full
day's work without interruptions and stop the talking on
the job" he would be subject to disciplinary action
including suspension or discharge, Exhibit GC-3.44
Shortly thereafter at the end of May 1967, employee
Harrison's Saturday overtime was discriminatorily
eliminated, along with the like reduction visited on his
fellow mechanics and union advocates Blaylock and Long
(see headings C, 4and C, 5, supra).
On August 23, 1967, employee Harrison was handed a
second letter by President Williamson (Exhibit GC-4),
telling him he was discharged because he had told a
number of people at the shop he was going to hurt
another employee.
The testimony of employees Harrison and Long, and of
Purchasing Agent Lusk and Foreman Ross, was in
general agreement concerning the incident that allegedly
triggered the discharge. The incident occurred on the
previous day and involved mechanics helper Webster, who
usually had done the steam cleaning of parts for the
mechanics. On this occasion, mechanic Harrison, from
inside the shop, called to helper Webster, outside the shop
some 75 to 100 feet away, to do some steam cleaning for
Harrison. Helper Webster called back that he was not
steaming anymore. Mechanic Harrison did not talk
further to helper Webster or go after him, but commented
to mechanic Long, who was working with him, that he
had a mind to straighten Webster out. Purchasing Agent
Lusk testified he overheard Harrison talking to Long,
asked Harrison what it was about, and was told by
Harrison, who said he had a mind to take a lead pipe or
rubber hose to Webster. Lusk testified that Webster was
"See in. 44, infra
"But see text at fn. 43, supra, quoting employee Harrison' s more
immediate supervisor Superintendent Campbell, who contrary to the
accusation of the letter, testified that Harrison was an employee who did
"a day's work" when he was assigned a job. There was no evidence
regarding talking on the job, and Harrison testified that neither he nor any
other employee had been told they could not talk on the job.
677
not present, and that he, Lusk, told Harrison to forget it
or to cool off; but Lusk reported the matter to Foreman
Ross and then to President Williamson. Foreman Ross
had come by, meantime , according to mechanic Long, and
mechanic Harrison asked Ross to have helper Webster
steam the parts, but Ross said he had assigned Webster to
help mechanic Peers. Foreman Ross testified he had not
heard or observed mechanic Harrison make threats to, or
have trouble with, helper Webster, in fact it was Ross'
observation that they were ignoring each other; but Ross
said he reported to President Williamson what had been
told him of the alleged threat
There was no evidence that helper Webster had heard
or heard of mechanic Harrison's utterances or was even
aware of Harrison's dissatisfaction .41 And, there was no
evidence that President Williamson offered Harrison, an
employee of two years' standing, any opportunity to
explain what had happened with Webster on August 22,
notwithstanding the fact that the letter of August 23 said
"we have looked into the matter."
There was evidence, supplied by employee Rush and
Superintendent Ellis, that in March or April 1967, Rush
got into a fight with two other employees and pulled a
knife on them. On that occasion, President Williamson
sent employee Rush home, but gave him no letter, and put
Rush back to work one month later. President Williamson
testified that he never offered the job back to employee
Harrison.
There was also testimony by Superintendent Campbell
that at Williamson Engine the mechanics engage in
cursing, and "nag" or "pick" on a man, or joke, about
something done or something wrong.
Conclusion: It can be aptly repeated here that the issue
is " `not whether there existed a valid ground for
discharge, but whether the stated ground was the real
one.' J. P. Stevens and Co. v. N.L.R.B., 380 F.2d 292,
300 (2d Car. 1967)." N.L.R.B, v. Ulbrich Stainless Steels,
Inc., 393 F.2d 871, 872 (C.A. 2, 1968).
The evidence is overwhelming that, from the time in
May 1967 when Respondent became aware of Harrison's
advocacy of the Union until his discharge in August,
Respondent's actions toward him were motivated by its
antiunion animus. Before May 1967, employee Harrison
was a well paid mechanic, who had had wage increases
and plenty of overtime work, and whom Respondent had
sought to keep from leaving. In contrast, thereafter, he
was falsely accused by Respondent of not giving a full
day's work (contrary to his supervisor's appraisal) and of
talking on the job (without evidence in support of the
accusation and in deviation of Respondent's past practice).
He was interrogated about his union sympathies, told in
essence that he was being watched, harassed concerning
his attendance at union meetings, and penalized by
elimination of his Saturday overtime. When Respondent
claimed in its letter of August 23 that it had "looked
into" the incident relating to helper Webster on August
22, employee Harrison was not even accorded the courtesy
or opportunity to be heard on what had happened,' but
was discharged forthwith.
In this background of anitunion hostility and conduct
directed at employee Harrison, the triviality of the
incident of August 22, and the rapidity with which it was
seized upon to discharge Harrison, mark the incident as a
pretext, rather than a cause, for discharge. There were no
blows or hostile words exchanged between employees
"Helper Webster, though still employed by Respondent at the time of
the hearing , was not called as a witness.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrison and Webster, indeed there was no exchange; and
the evidence indicates that Harrison was momentarily
blowing off steam in rough but idle talk to persons other
than the object of his displeasure, in a mechanics' shop
that was accustomed to rough talk.46 Moreover, the
disparity in disciplinary treatment, after advent of the
Union, that brought employee Harrison a discharge for
use of words, in contrast, befpre advent of the Union, to
the 1-month layoff for employee Rush for use of a knife,
adds to the discriminatory overtone of the discharge
In my view, Respondent's stated ground for the
discharge of employee Harrison was a pretext for getting
rid of a principal union advocate who had initiated the
union campaign and served as a union observer at the
Board election. The discharge violated Section 8(a)(3) and
(1) of the Act. N.L.R.B. v. Monroe Auto Equipment Co.,
392 F.2d 559, 560-561 (C.A. 5, 1968), where the
dischargees "had acted as observers for the union at a
Board election," and their discharge was found to be
"pretextual and in reprisal" for adherence to the union;
and compare cases cited under heading D1 above.
3. Discharge of employee Layton
Employee Isiah Layton worked for Marine Welding
from September 8, 1966 to September 6, 1967, as a
helper, principally as a welder's helper. Except for the
period August 3-14, 1967, in which time he was receiving
treatment for a job incurred injury to his eye, employee
Layton had not missed work and had not been subject to
any layoffs, until he was discharged on September 6,
1967. At 5 P.M that day, which was not the regular pay
day, Superintendent Ellis told employee Layton to punch
out and turn in his equipment. When he asked
Superintendent Ellis, "What have I done", Ellis replied,
"Nothing, I just don't need you anymore."
Employee Layton testified, and there was no
disagreement by Superintendent Ellis, that Layton had not
been warned or told that he was doing poor work, or
given any reason for his discharge. Employee Layton was
not given a letter telling him why he was fired (as was
given two weeks earlier in the case of employee Harrison),
and he has received no offer to come back to his job.
From the evidence recited under heading C,1 and C, 2
above, it appeared that employee Layton, who signed a
union card on the street on April 30, but denied signing
under questioning by President Williamson, was a target
for cajoling and threats by President Williamson and
Superintendent Ellis not to "fool" with the Union or sign
with it, was reprimanded by Ellis for attending union
meetings, and was among the union sympathizers who
were detailed to the gas freeing expedition on the July
election day and prevented from voting.
On July 27, 1967, while he worked near some welders,
employee Layton's eyes were burned by the "glittering" of
a welding torch. According to Superintendent Ellis,
welders and welders' helpers frequently suffered such
burns, since a good deal of welding by more than one
torch goes on simultaneously, and, notwithstanding the
use of goggles and hoods, not infrequently men would get
"The brief "moment of animal exuberance" was hardly misconduct of
"so violent or of such serious character as to render the employee unfit for
further service ," N.L.R B v. Illinois Tool Works , 153 F.2d 811, 815-816
(C.A. 7, 1946), N.L R B v. Thor Power Tool, Co., 351 F 2d 584, 587
(C.A. 7, 1965) Compare, N L R B. v . Baker Hotel, 311 F.2d 528 (C A. 5,
1963), where the triviality of the disturbance , upon which the discharge was
allegedly grounded , was held to support the finding of a pretext to cover an
8(a)(3) discharge.
burned when they lifted or moved their protective
equipment. According to Ellis, Respondent kept a drug
called poticane (in the form of eye drops) on an open shelf
in the tool room for use of the men to soothe eye burns.
Employee Layton did not report the burn immediately
but used the poticane eye drops and continued working.
Several days later, the pain had not subsided, and
employee Layton talked to Superintendent Ellis, early in
the morning of August 3. Layton said he needed a doctor.
Employee Layton and Superintendent Ellis both testified
that Ellis replied a doctor would not help an eye burn and
told Layton to take the eye drops and use them at home.
Ellis said he would get Layton a doctor the next day if he
were not better. Layton went home but his wife sent him
to Dr. L. S. Gamble, who removed a foreign body from
the left eye and treated the eye on successive almost daily
visits through August 11, see Exhibits GC-9 and 10.
Layton returned to work on Monday, August 14, and
continued to work until his discharge three weeks later on
September 6.
Employee Layton testified that while he had twice
suffered eye burns early in his employment and prior to
the July 1967 injury, he had not reported them or lost any
work. According to employee Layton, when he came back
to work on August 14, 1967, President Bill Williamson
told him, "If you can't stand a little burning in your eye,
you need to get 100 miles away." President Williamson
testified that he didn't say anything to Layton but, when
he was referred to this quoted testimony, changed his
answer, saying he told Layton if his eyes were weak he
should get away from welding. President Williamson
claimed that employee Layton failed to show up for work
a number of times because he had burned his eyes, but
Williamson offered nothing to substantiate the claim, and
there was no evidence of any absences from work by
Layton other than the one period of treatment for his
injury August 3-14, 1967.11
Superintendent Ellis testified he discharged employee
Layton on September 6, 1967, because of customer
complaints concerning Layton, because of his low
production, and because Layton was accident prone; i.e.,
he had his eyes burned three or four times.
The customer complaints arose, according to
Superintendent Ellis, in July 1967, in connection with the
repair of the barge Hutch 4 for Hines Inc., one of their
best customers, said Ellis. This was a 3 to 4 day job in
drydock to repair collision damage and required mostly
welders, 10 to 12 each day, according to Superintendent
Ellis. Ellis said he supervised the personnel on the job.
Also present, about 50 percent of the time that the repairs
were being made, was Charles Poe, manager of Hines Inc.
Poe said he was present (and made it a practice to be
present on most repairs) to see that the job was done
according to his specifications and as efficiently and
economically as possible. While the job was in progress,
according to Superintendent Ellis, Poe complained about
one of the helpers, pointing out employee Layton, said
Ellis, saying Layton was "goldbricking" and Poe was not
getting his money's worth since this was a cost plus job.
Superintendent Ellis testified that Poe had never made
such a complaint before and he told Poe he would see this
corrected; but he did not talk to Layton, and did not tell
''Superintendent Ellis also claimed that employee Layton burned his eyes
on three or four occasions, but made no claim that Layton lost working
time, other than the August 3-14 period , or that there had been reports of
these other occasions . Ellis conceded that he could not know of the
employee burning his eyes if the man did not report it or miss work
MARINE WELDING & REPAIR WORKS 679
him of Poe's complaint, and kept Layton on the job the
balance of the day Ellis said he assigned Layton to
another job the following day and that Layton was not on
the Hutch 4 the last two days of the job. About a month
later Hines Inc., sent in another job for drydock repairs,
the motor vessel Larry Turner, and it spent one day,
September 1, in drydock. President Williamson told him,
said Superintendent Ellis, that customer Poe had
complained about employee Layton on the previous Hines
job, had given Williamson difficulty about the bill, and
did not want Layton working on their equipment. Ellis
testified that employee Layton had worked on a variety of
jobs since the Hutch 4 and that he, Ellis, had observed
Layton because of Poe's complaint, and was now
embarrassed because he had put employee Layton to work
on the motorboat Larry Turner. He did not pull Layton
off the job, said Ellis, because he was told Poe would not
be there. Ellis said nothing to Layton but observed him,
testified Ellis, from then until September 6 and "realized
we were not getting the production from this man that we
should,. and due to the complaints of a customer . . . I
terminated Isiah Layton's connections with the company."
President Bill Williamson testified that in July 1967,
when the Hutch 4 was in drydock, Poe of Hines Inc.
pointed out employee Layton to him and identified him by
his name "Layton," telling Williamson that he ought not
charge for a man standing around doing nothing. This was
before the bill was made out, said Williamson. When it
came time to bill Hines Inc., President Williamson said,
he showed Poe the draft of the bill, Exhibit R-14, on
which the total charge was $3,323.45. Poe complained,
said Williamson, and Williamson cut the bill to $2805,
which was the amount Hines Inc. paid, see bill July 24,
1967, Exhibit R-10. Poe's "major complaint," said
President Williamson, was "that we had some men on it
that didn't work as he thought they should, and I was
supposed to cut the bill " Recalling the conversation with
Poe, Williamson testified:
A Well, he made one complaint of one fellow that
he didn't think that I should charge for his time,
because he wasn't doing anything, was Isiah Layton.
Q. And was that part of the basis of this compromise
from $3,323.45 to $2805?
A. That's right. 41
In connection with the next job for Hines Inc.,
President Williamson testified, Poe called him when the
motor vessel Larry Turner was on the Marine Welding
dock. Poe said, according to Williamson, he wanted the
boat out as quickly and cheaply as possible. The boat was
in drydock for one day for a change of propellors and,
according to Williamson, Poe called him a second time
and said, there were certain men who failed to do the job
on the Hutch 4 and he did not want them on the job and
he identified one man, saying, "I don't want Layton on
the job." As a result, said Williamson, he told
"Although there was testimony on this negotiating session by both
President Williamson and customer Poe, there was no mention of any
other employee than Layton and no mention of the other bases for the
reduction of $518 However, it would be difficult to attribute as much as 5
percent of the reduction to the cost of employee Layton's labor. The
records show he was paid $1 .40 per hour , and, if Superintendent Ellis did
as he said , he took Layton off for the last 2 days of the 3-or 4-day job.
Assuming the maximum for Layton of 2 full 8-hour days (there was no
overtime , this was a job with insurance involved, and the insurance adjuster
was on hand , according to Poe ), at $11.20 per day , Layton 's labor was
$22.40 or about 4 percent of the $518 reduction . Even a full 4 days' labor
by Layton would have been only $44.80 or about 8 percent of the
reduction.
Superintendent Ellis to take employee Layton off the
Larry Turner, where Williamson said he knew Layton was
working. Williamson testified he told Ellis "the customer
wasn 't satisfied with that particular man working on the
boat, and to take him off and rush the boat out as fast as
possible to satisfy him."
President Williamson went on to testify that
Superintendent Ellis discharged employee Layton, without
discussing the matter with Williamson, that he learned
Layton was fired when he signed the final paycheck, but
did not know the reasons and did not learn of them until
the matter came up in this trial, although he conceded he
had not heard Superintendent Ellis testify and that Ellis
had not told him the reasons Williamson then added the
further contradiction, that he did know the reasons
because he had had customer Poe's complaints about
Layton, and "we thought it was for the safety of him to
not be around the welding." By "we" he meant Ellis, said
Williamson.
Witness Poe, for the Respondent, put a large hole in
the testimony of President Williamson and Superintendent
Ellis by denying that he made any reference by name, in
any conversation with them, as to whom he did not want
working on the Hines boats. In connection with the repair
of the Hutch 4 in July, he said, on possibly the second day
he mentioned to Superintendent Ellis that Ellis had some
personnel "apparently loafing on the job," and since this
was a time and material job there might be discussions as
to the amount of the invoice. (At a later point in his
testimony Poe said his reference in this conversation was
"to certain people that were not, in my opinion
performing work that was assigned to them.") Poe was
quite clear that what he said to Ellis was "not by name,"
that "there was no reference by name," and that he did
not name anybody because he did not know the names of
the men on the job. He said he pointed out one man to
Ellis but did not know who he was.
When the bill for the Hutch 4 was figured with
President Williamson, customer Poe said he told
Williamson his figure was too high and he objected to
some of the charges, though he could not recall which. On
labor costs, he said, he may possibly have told Williamson
"you don't expect me to pay for gold bricking, or some
such remark." Poe testified that getting invoice figures
pared down was a usual practice with him, at other ship
yards as well as at this yard. He agreed that the $518
reduction, as shown by the exhibits, was correct.
On the next job, the boat Larry Turner, customer Poe
said he called President Williamson either several days in
advance of or on September 1, the day the repairs were
made (but contrary to Williamson, he said, there was only
the one conversation concerning the Larry Turner, see fn.
49, infra), and discussed the necessary repairs, the
approximate cost, and the time needed, and said
something to Williamson about getting the boat out in a
hurry and to watch "his labor costs" and "hold the
invoice down" so that "it wouldn't be necessary to
negotiate any further reductions in his invoices." Poe
testified that there was no reference to persons he did or
did not want working on his boat, by name or otherwise,
in this conversation, and the only reference to people not
performing work occurred in the previous (and first)
conversation, the conversation with Ellis when Hutch 4
was in drydock. °1
"Witness Poe was clear that there were, in all, only three conversations
that he had with President Williamson and Superintendent Ellis in this
period the first, in July , with Ellis when the Hutch 4 was being repaired in
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion: Accepting as more reliable and credible the
testimony of the disinterested customer Poe over the
conflicting, and at times intrinsically incredible, testimony
of President Williamson and Superintendent Ellis relating
to employee Layton, it is obvious that President
Williamson concocted a false claim of a customer
complaint about Layton that the customer has denied
making.
It is also obvious that Superintendent Ellis had no real
problem with employee Layton as a worker, and that Ellis
and President Williamson had to invent nonexistent
problems to cover the true reason for Layton's discharge.
Thus, in July, when customer Poe, an admittedly
important customer, pointed out to Superintendent Ellis
an unidentified employee whom Poe thought was not
performing work assigned on his barge job, the conduct of
Ellis (contrary to his words) suggests that it was not
Layton, because Ellis concededly never said anything to
Layton and cor_,inued to use him without a word of
complaint for approximately the next two months, as Ellis
testified, in all sorts of assignments, including working on
customer Poe's next boat that came in. However, even
under the unlikely assumption that Layton was the
employee identified by customer Poe in - July, as
Superintendent Ellis claims, it would appear from Ellis'
further testimony that he did not believe that Layton was
loafing or deficient in production. Not only did Ellis say
nothing to Layton but he kept him on Poe's job for the
balance of the day of the complaint, assigned him to other
work, allegedly kept him under close observation in the
ensuing weeks (because of Poe's complaint), put him on
Poe's next job in September, and did not remove him
from that job even though he was allegedly told to do so
by President Williamson on account of Poe's supposed
request. In this state of the evidence, Superintendent Ellis'
claim of customer complaints against, and low production
by, employee Layton is sheer myth.
Likewise, Respondent's claim that employee Layton
was accident prone is contradicted by the evidence. There
was only the one accident that occurred in July 1967 (for
which the injury to Layton's eye, was treated in early
August) almost a year after employee Layton commenced
his employment, which was by its nature hazardous.
Indeed, employee Layton exhibited considerable fortitude
by continuing to work (whether wisely or not) for almost
a week before indicating that he had been hurt and
seeking medical aid. The brief period of time lost for
treatment on this occasion was the only time lost by
employee Layton because of an accident, in the span of a
year's employment.
On employee Layton's return to work August 14, 1967,
after medical treatment, other than the caustic comment
of President Williamson that Layton needed to get 100
miles away if he could not stand a little burning in his
eye, the subject of the accident was not mentioned to
Layton by Respondent until the trial of this case.
Similarly, there was no mention by Respondent to
employee Layton of complaints regarding the quality of
his work or production, until the trial of this case. When
employee Layton was peremptorily discharged on
September 6, 1967, and inquired about the reason, he was
told there was none.
In the context of Respondent's extensive coercive
activity to root out employee adherence to the Union,
some of which activity was earlier directly aimed at
employee Layton as a known union sympathizer, the
discharge of Layton, without warning, notice, and
opportunity to overcome claimed deficiencies, N.L.R.B v.
Great Dane Trailers Inc., supra, 396 F.2d 769 (C.A. 5,
1968), accompanied by a refusal to give him any reason
for his peremptory discharge, N.L.R.B. v. Plant City Steel
Corp., 331 F.2d 511, 514-515 (C.A. 5, 1964), followed by
an invented discredited explanation, Martin Sprocket and
Gear Co. v. N.L R.B., 329 F.2d 417, 419, 420 (C.A. 5,
1964),5° was a discharge motivated by Respondent's
intention to discourage and eliminate union support
among its employees in violation of Section 8(a)(3) and
(1) of the Act.
E. Objections to the Results of the Election
The trial of the consolidated unfair labor practice cases
and the Union's eighteen unresolved objections to the
results of the Board election of July 18, 1967, was
conducted on the agreement of the parties that the
allegations of the objections paralleled various allegations
of the unfair labor practice complaints and raised no
additional issues of fact, except as to Objections Nos. 10
and 21. See fn. 2 and 3, supra Concerning Objections
Nos. 10 and 21, no evidence was presented in support, and
I granted Respondent's motion to dismiss both of these
objections, at trial.
In addition, from my examination of the record, I find
that no evidence was presented to support Objection No. 8
(charging President Williamson with personal surveillance
of the union hall on July 17, 1967), or Objection No. 9
(charging Respondent with scheduling overtime on the
afternoon of Saturday July 9, 1967, to prevent employees
from attending a union meeting), or Objection No. 12
(charging Superintendent Campbell and Foreman Ross
with offering employees money and other items to inform
on employees who had signed pledge cards and supported
the Union) Therefore Objections Nos. 8, 9, and 12 should
also be dismissed.
The remainder of the objections were proven,
substantially, by the evidence recited and evaluated under
headings II, C and D, supra.
Conclusion: As set forth in the Regional Director's
Supplemental Decision and Order of August 22, 1967,
there were 23 objections to the results of the election of
July 18, 1967, filed by the Union. The Regional Director
overruled Objections Nos. 4, 7, 11, 22 and 23, and
referred the remainder for trial. Of the remainder,
Objections Nos. 8, 9, 10, 12, and 21 have failed at trial
for lack of evidence.
The allegations of the 13 other Objections - Nos. 1, 2,
3, 5, 6, 13, 14, 15, 16, 17, 18, 19, 20 - have been
established in the form and to the extent that they have
also been found to be unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act. The misconduct
involved, together with the other violations of Section
8(a)(1) and (3) that occurred before the conclusion of the
election of July 18, 1967, interfered with the free choice of
the employees and affected substantially and unfairly the
outcome of the election. It is therefore necessary that the
drydock, the second, also in July, with Williamson in negotiating the
reduced invoice for repairing the Hutch 4; and the third, either a few days
before or on September 1, with Williamson regarding the repair of the
Larry Turner
"In Martin Sprocket, the alleged reasons found to be pretext for the
discharge were about the same as here, namely, that the employee was not
giving a day's work, that his work was not up to par, and that he was
accident prone.
MARINE WELDING & REPAIR WORKS 681
results of the election be set aside, and that a new election
be ordered upon request of the Union, following certain
remedial action which I discuss below.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
Respondent described 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 the free flow
thereof.
IV THE REMEDY
For the immediate violations: In Cases 26-CA-2756,
2843, 2861, and 2875, having found that the Respondent
has engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Because Respondent discriminatorily discharged
employees Freddie Lee Walker, Dewitt B. Harrison, and
Isiah Layton, it will be recommended that the Respondent
offer them immediate and full reinstatement to their
former positions or to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges. It will be recommended that the Respondent
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them by
payment to each of a sum of money equal to that which
he not malty would have earned as wages (including
normal overtime) from the date of discharge, to the date
of the Respondent's offer of reinstatement, less net
earnings, if any, during this period. The backpay shall be
computed on a quarterly basis as prescribed by the Board
in F. W. Woolworth Company, 90 NLRB 289 (1950),
approved in N L R B. v. Seven-Up Bottling Company,
344 U.S. 344 (1953), and shall include interest at 6
percent per annum as provided by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962),
approved in Philip Carey Manufacturing Company v.
N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379
U.S. 888, and cases cited.
Because Respondent discriminatorily deprived
employees M. L. Blaylock, Dewitt B. Harrison, and
Charles L Long of Saturday overtime wages for the pay
period ending May 31, 1967, through the pay period
ending September 6, 1967, it will be recommended that
Respondent make them whole for the loss of the Saturday
overtime earnings in that period by payment to each of a
sum of money equal to that which he normally would
have earned as Saturday overtime wages in the period.
The sums due shall be computed on a quarterly basis with
interest at 6 percent, as in the case of the backpay
computation above.
Because the Respondent by its conduct violated
fundamental employee rights guaranteed by Section 7 of
the Act, and because there appears from the manner of
the commission of this conduct an attitude of opposition
to the purposes of the Act and a proclivity to commit
other unfair labor practices, it will be recommended that
the Respondent cease and desist from in any manner
infringing upon the rights guaranteed employees by
Section 7 of the Act. N L.R.B. v. Bama Company, 353
F.2d 320, 323-324 (C.A. 5, 1965); N L R.B v. Moore Dry
Kiln Co., 320 F.2d 30, 34-35 (C.A. 5, 1963); Southwire
Company v. N.L.R.B., supra, 393 F.2d 106, 107 (C.A. 5,
1968).
Concerning Case 26-RC-2914, the representation
proceeding, which by the Regional Director's order was
consolidated with the unfair labor practice cases for trial
and decision on the objections to the results of the
election, because 13 of the objections have been sustained
as part of the total 8(a)(1) and (3) violations found, and
because all the violations that occurred before the
conclusion of the election prevented the employees from
freely exercising their choice and affected substantially
and unfairly the results of the election, it will be
recommended that the Board set aside the results of the
election of July 18, 1967, and, upon the Unions request,
direct the holding of a new election, after severance of
Case 26-RC-2914 from the consolidated proceeding.
For restoring plant equilibrium: In my ' view,
Respondent's long and virulent antiunion campaign (of
interrogation and intimidation, inportuning or forcing
union repudiation, threats, firings, forcible detention and
scare tactics in connection with the election) has been
designed to instill in the employees a sense of futility if
they were to select the Union to represent them, and has
undoubtedly destroyed any belief that the employees had a
freedom of choice on the representation question.
To assist in relieving this atmosphere of fear and
futility in Respondent's plant, and to help restore to the
employees the opportunity to hear all viewpoints, it is
necessary, and it will be recommended, that the
Respondent take the following measures:
1. Post the notice, Appendix B of this decision, in each
of the four shops comprising Respondent's total plant. J.
P. Stevens and Co. v. N.L.R.B., 380 F.2d 292, 304 (C.A.
2, 1967), cert denied 389 U.S. 1005, known as Stevens I;
J. P. Stevens and Co. v. N.L.R.B, 388 F.2d 896, 903
(C.A 2, 1967), known as Stevens H.
2. Mail a copy of the notice, Appendix B, to each of
Respondent's employees (so that each may have an
opportunity to absorb its meaning and understand his
legal rights in more leisurely fashion than by hurried
scanning at the bulletin board). Stevens I, supra, at 304;
Stevens II, supra, at 903; N.L.R.B. v. H. W. Elson
Bottling Co., 379 F.2d 223, 226 (C.A. 6, 1967).
3. Read the notice, Appendix B, to the employees
assembled for the purpose, in each shop separately or at
joint assemblages of two or more shops as convenient,
with a representative of the Board present. The testimony
indicated that among some of the employees there was
variously illiteracy or a low level of literacy. N L R B. v.
Texas Electric Cooperatives, 398 F.2d 722 (C.A. 5, 1968);
Stevens II, supra, 904-905.
A. Grant the Union and its representatives, upon their
request, reasonable access for a three month period to
Respondent's bulletin boards and other places where
notices to employees are customarily posted in the four
shops. N.L.R.B. v. H. W. Elson Bottling Co., supra, 379
F.2d at 226; Stevens II, supra, 905.
5. Make available to the Union and its representatives,
upon request of the Union and at a mutually agreeable
time, suitable facilities, such as are customarily used for
employee meetings, for a one hour meeting on company
time with Respondent's employees, at each shop
separately or at joint assemblages of two or more shops as
convenient. Crystal Lake Broom Works, 159 NLRB 429,
430-431 (1966).
Upon the basis of the foregoing facts and upon the
entire record in the case, I make the following.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OFLAW
1. The Respondent comprising the four named
corporations is a single employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. By interfering with, restraining, and coercing
employees in the exercise of their rights under Section 7
of the Act and by discriminatorily discharging three of the
employees because of union activities, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act. These
unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
3. Thirteen of the Union's 23 objections to the results
of the July 18, 1967 representation election have been
sustained as part of the unfair labor practices found. The
misconduct proven together with the other violations of
Section 8(a)(1) and (3) of the Act that occurred before the
conclusion of the election, prevented the employees from
exercising their free choice and affected substantially and
unfairly the results of the election, and requires that the
results be set aside and a new election ordered upon
request of the Union.
4. Paragraphs 17 and 25 of the consolidated complaints
(compendium, Exhibit GC-2) are dismissed on the ground
that the evidence adduced was not sufficient to support the
claim that Respondent, through President Williamson,
promised a white employee that white employees would
get raises and Negro employees would not if he helped
keep the Union out (paragraph 17); or the claim that
Respondent, through Superintendent Ellis, threatened an
employee to discharge one-by-one the employees who had
supported or assisted the Union (paragraph 25).
Paragraph 21 of the consolidated complaints
(compendium, Exhibit GC-2), charging that Respondent
required overtime at its Greenville locations on July 15,
1967, to prevent employees from attending a union
meeting, is dismissed for lack of evidence.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in this proceeding, I
recommend that Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively questioning its employees concerning
their union membership, activities, and sympathies;
engaging in surveillance or creating the impression of
surveillance of employees' union activities; discharging, or
threatening discharge, or reducing overtime, of employees
for joining or favoring a union; obtaining customer help
for firing union sympathizers; threatening employees that
work will be refused, or the plant closed, or no contract
ever signed, if the Union becomes employees' bargaining
representative; requiring or importuning employees to
obtain return of union authorization cards or to otherwise
repudiate the Union; informing employees that their
voting at a representation election will not be secret,
preventing or delaying employees from voting, or
intimidating employees by the presence of armed or other
guards about the voting place; or in any other manner
interfering with, restraining, or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
(b) Discouraging membership in the Union, or any
other labor organization, by discharging employees, or
reducing their overtime, or otherwise discriminating
against them as to their tenure and conditions of
employment
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to employees Freddie Lee Walker, Dewitt B.
Harrison, and Isiah Layton full reinstatement to their
former positions or to substantially equivalent positions
without prejudice to their seniority or other rights and
privileges, and make them whole, in the manner set forth
in the section of this decision entitled "The Remedy," for
any loss of earnings they may have suffered as a result of
the discrimination against them. Notify any of them who
may be serving in the Armed Forces of the United States
of his right to full reinstatement upon application after
discharge from the Armed Forces.
(b) Make employees M. L. Blaylock, Dewitt B.
Harrison, and Charles L. Long whole, in the manner set
forth in the section of this Decision entitled "The
Remedy," for the loss of Saturday overtime wages each
would normally have earned for the pay period ending
May 31, 1967 through the pay period ending September 6,
1967.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to ascertain the backpay or Saturday
overtime pay due under the terms of this Recommended
Order.
(d) Post in each of the Respondent's four shops in
Greenville, Mississippi, and mail to each of its employees,
copies of the attached notice marked "Appendix B."51
Immediately upon receipt of the copies of,said notice, to
be furnished by the Regional Director for Region 26
(Memphis, Tennessee), the Respondent shall cause the
copies to be signed by one of its authorized representatives
and mailed and posted, the posted copies to be maintained
for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Read the notice, Appendix B, to the employees,
assembled for that purpose, with a representative of the
Board present. The reading may be at an assemblage for
each shop separately, or at joint assemblages of two or
more shops, as convenient.
(f) Grant the Union and its representatives, upon their
request, reasonable access for a three month period to
Respondent's bulletin boards and other places where
notices are customarily posted in the four shops.
(g) Make available to the Union and its representatives,
upon request of the Union and at a time mutually
agreeable to the Union and Respondent, suitable facilities,
such as are customarily used for employee meetings, for a
1-hour meeting on company time with Respondent's
employees. The meeting may be at an assemblage for each
shop separately or at joint assemblages of two or more
"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 in 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."
MARINE WELDING & REPAIR WORKS 683
shops, as mutually agreed by Respondent and the Union,
but each assemblage shall be convened for one hour.
(h) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of the receipt of this
decision, what steps the Respondent has taken to comply
therewith.52
I FURTHER RECOMMEND, in Case 26-RC-2914, that the
Board set aside the results of the election of July 18, 1967;
and, upon request of the Union following compliance by
Respondent with the Recommended Order, that the Board
direct the holding of a new election, after severance of
Case 26-RC-2914 from the consolidated proceeding.
"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 the
Respondent has taken to comply therewith."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Recommended Order of a
Trial Examinerof 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:
After a trial, in which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the Act, and has told us
to post and mail this notice and to keep our word about
what we say in this notice.
WE WILL NOT fire you because you join a union or
favor a union.
Since the Board found that we violated the law when
we fired Freddie Lee Walker, Dewitt B. Harrison, and
Isiah Layton over the Union, WE WILL OFFER them
their old jobs back and give them backpay. If any of
them is in the Armed Forces of the United States, we
will notify him of his right to full reinstatement upon
application after discharge from the Armed Forces.
WE WILL NOT ask our customers to help us fire
employees who are for the Union.
WE WILL NOT ask you to get your union cards back
or ask you if you are for the Union.
WE WILL NOT spy on union meetings or act so that
employees think we are spying on them.
WE WILL NOT tell you that we know how you are
voting or that your vote will not be a secret.
WE WILL NOT stop giving you overtime because you
favor the Union.
WE WILL pay M. L. Blaylock, Dewitt B. Harrison,
and Charles L. Long for the Saturday overtime they
lost from May 1967 to September 1967.
WE WILL NOT tell you that we are refusing work
because of the Union.
WE WILL NOT tell you that we will close down if the
Union gets in or tell you that we will never sign a
contract with the Union if you vote for it.
WE WILL NOT threaten to fire you if you talk about
the Union on the job.
WE WILL NOT try to scare you over voting at an
election for the Union by placing armed or unarmed
guards at or near the voting place.
WE WILL NOT prevent or delay you from voting in
any election over the Union.
You are all free to become or remain, or to refrain
from becoming or remaining, members of Industrial,
Technical and Professional Employees Division of the
National Maritime Union of America, AFL-CIO, or any
other labor union.
Dated By
MARINE WELDING &
REPAIR WORKS, INC.;
WILLIAMSON ENGINE &
SUPPLY INC.;
GREENVILLE
MANUFACTURING &
MACHINE WORKS, INC.;
GREENVILLE PROPELLER
WORKS, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161.