Mid-South Towing Co.

National Labor Relations Board - Board Decisions

Jul 25, 1969

177 N.L.R.B. 964 (N.L.R.B. 1969)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-South Towing Company and Alvin R.
Mansfield . Case 9-CA-4758
July 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
discriminatorily suspended and 'discharged Alvin R.
Mansfield , in violation of Section 8(a)(3) of the Act.
Upon the entire record in the case,' my consideration of
briefs filed by the General Counsel and Respondent, and
my observation of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
On April 16, 1969, Trial Examiner Melvin
Pollack 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.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings 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 exceptions and brief, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Mid-South Towing
Company, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
'After the issuance of the Trial Examiner 's Decision , the Respondent
filed, on June 23, 1969 , a supplement to its brief in support of exceptions
and a motion to reopen the record . Thereafter , the General Counsel filed
an opposition to the Respondent ' s motion. The motion is hereby denied on
the ground that sufficient reason has not been shown why the proffered
evidence was not submitted at the hearing before the Trial Examiner.
Schott Metal Products Company. 128 NLRB 415.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard
at Paducah , Kentucky, on January 21 and 22, 1969,
pursuant to a charge filed on June 7 , 1968, and a
complaint issued on November 4, 1968. The complaint,
which was amended at the hearing , alleges that
Respondent' interfered with, restrained, and coerced
employees, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, and that Respondent
'An appearance was entered for V. Lee McMahon , who was unable to
attend the hearing because of transportation delays and illness
Mid-South Towing Company, herein called Respondent
or the Company, is engaged in the interstate freight
transportation of goods by boat on the Mississippi and
Ohio rivers . Its gross revenues during the 12 months
preceding the issuance of the complaint exceeded $50,000.
I find , as Respondent admits , that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union, Marine Officers Association, Local 54,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen , and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.'
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion4
1. The Union 's organizing campaign
Respondent at all material times operated motor vessels
Martha Lynn, Julia Woods, and Girlie Knight. Its
nonsupervisory personnel on these vessels , including
deckhands , oilers, cooks , and cooks helpers, were
represented by the Rivermen ' s Association of America
pursuant to a Board certification issued in 1960 and a
current collective -bargaining agreement , effective April 1,
1966, to April 1, 1968. The Union in June or July 1967
began an organizing campaign among these employees,
and, on January 2, 1968, filed a representation petition
with the Board's Cincinnati office. A hearing was held on
this petition at Paducah, Kentucky, on February 7, and on
March 15 the Board's Regional Director issued a Decision
and Direction of Election.
2. Supervisory statements
a. Captain Harry Lewis
Deckhand Alvin Mansfield solicited fellow crew
members on the Martha Lynn to sign union cards. About
'Respondent 's motion to correct the record is granted.
'President Charles L Jones testified that the Union has approximately
600 members and that of this number 425 are supervisory employees and
175 are nonsupervisory employees . The Union ' s current constitution and
bylaws do not restrict membership to supervisory employees It is clear
from the record in this proceeding that the Union was seeking to organize
persons who are "employees" within the meaning of Sec. 2(3) of the Act I
find that the Union is a labor organization under Sec . 2(5) of the Act.
Graham Transportation Company, 124 NLRB 960.
'I find no merit in the Company ' s contention that the Sec 8(a)(l)
allegations in the complaint are not based upon an adequate charge
because the charge alleged a violation of Sec. 8(a)(1) without particulars.
The complaint spelled out the alleged violations of Sec. 8 (a)(1) and the
Company had adequate time to prepare its defense Texas Industries, Inc
v. N.L.R .B., 336 F . 2d 128 (C.A 5).
177 NLRB No. 123
MID-SOUTH TOWING COMPANY
December 10, 1967, Captain Harry Lewis told Mansfield
that he had been called to the Company's office and
advised to get rid of "undesirable personnel" and
Mansfield for organizing in behalf of the Union. The
record indicates that Captain Lewis was a union
sympathizer and that his remarks were intended as a
friendly warning to Mansfield. Nevertheless, his remarks
conveyed a clear threat that Mansfield risked discharge if
he continued his union activity and therefore were
violative of Section 8(a)(1) of the Acts
b. Assistant Port Engineer John Snyder'
Deckhand Peter Oreskovich, who had solicited
employees on the Martha Lynn to sign Union cards,
testified that about December 20, 1967, Assistant Port
Engineer Snyder asked him in the chief engineer's room
on the Martha Lynn what he and Mansfield were trying
to do, that he had heard they were "trying to get pledge
cards for the [Union]." He said Oreskovich was
"endangering" his job and "getting into bad standing with
the Company." He offered to transfer Oreskovich to the
Girlie Knight if Oreskovich "felt like [he] was under any
pressure at all from any of the supervisors over [him] on
the boat." Mansfield said he was "satisfied" on the
Martha Lynn but that he wanted to talk to Port Captain
Andy M. [Sid] Ross since he "didn't know that [he] was
in such bad standing with the Company."
Snyder testified that he asked Oreskovich "why he was
trying to run the engine room crew off the boat."
Oreskovich denied doing so and wanted to know who had
said he had. He was "crying" and said "he felt he had to
do what . . . his supervisors wanted him to do." Snyder
offered to transfer him but Oreskovich said he was happy
on the Martha Lynn but wanted to talk to Captain Ross
"at the first opportunity." Snyder denied telling
Oreskovich that his job was in danger because he was
supporting the Union.
Mansfield testified that in January 1968 Snyder
remarked to him that he had heard that Mansfield "had
been trying to get pledge cards signed for the [Union] and
that [he] had better stop because [he] was skating on
pretty thin ice with the Company." Snyder testified that
he told Mansfield only that "he should not be telling
people they were going to lose their jobs if they did
not ... join the Teamsters."
The Company asserted that its officials were concerned
with reports that Oreskovich and Mansfield had
threatened fellow crew members with discharge and that
'The Company contends that Captain Noble Gordon, its president, had
instructed Lewis to caution Mansfield that he would be discharged if he
persisted in telling employees that they would be discharged if they failed
to sign union cards before the Union successfully organized the Company.
It does not appear that Lewis advised Mansfield of any such instruction.
`The record shows that Snyder is the assistant port engineer of Southern
Marine Management Company, which supervises the Company's captains
and crews Snyder testified that he furnishes supervision for the Company's
engineers, that he boards the Company's vessels to direct the repair and
refitting of engines , which would otherwise have to be repaired at a marine
yard. Raymond Boren , assistant engineer on the Martha Lynn, testified
that Snyder provides "expert asistance in the operation of the boat" and
that while the chief engineer is his "boss" on the boat, anytime Snyder
comes on board , "he's more or less senior officer and I do what he tells
me." I find from these facts that Snyder is a supervisory employee within
the meaning of Sec. 2(11) of the Act.
965
Snyder simply warned them to stop such conduct. The
testimony of Oreskovich and Mansfield gains support,
however, from my findings below that Respondent
engaged in a course of coercive conduct, including a wage
increase, solicitation of employees to withdraw from the
Union, and the suspension and discharge of Mansfield for
his union activities. For this reason, and as Oreskovich
and Mansfield impressed me as reliable witnesses, I credit
their testimony and find that Snyder unlawfully threatened
them with discharge if they did not stop their organizing
activity in behalf of the Union.
c. Port Captain Andy M. Ross
Captain Ross came on board the Martha Lynn
sometime in January and sent word to Oreskovich that he
wanted to see him in the "guest room." Oreskovich
testified that he told Ross that he had heard he was in bad
standing with the Company and in danger of losing his
job. Ross said somebody had signed a statement to the
effect that Oreskovich had said he would lose his job if he
"didn't sign a pledge card." Oreskovich denied doing so
and asked Ross who had given the statement. Ross
offered to give him the name if Oreskovich would tell him
which crew members on the Martha Lynn had signed
union pledge cards. Oreskovich would not do so and when
asked by Ross about Mansfield and Charles Edwards,
said he knew nothing about them. He kept quiet when
Ross asked him about Captain Lewis. Ross remarked that
President Gordon had told him that no union was going
to organize the Company ever and that the Union "had
just been feeding us a pack of lies and they couldn't
benefit us at all."
According to Ross, Oreskovich said he had "been
talked into signing a pledge card with the Teamsters
Union" and was afraid he might lose his job. Ross asked
him if either Captain Lewis or Captain Hightower had
"pressured" him into signing a card . Oreskovich said he
would "rather not call any names ." Ross enumerated the
advantages of working for the Company and said he could
not understand what the Union could "possibly ask for if
they come in here." Oreskovich said he liked his job and
did not want to lose it. Ross assured him "from all
reports you are a good deck hand . . . . So, you just do
your job and you'll have no problems with this company."
I find, as Oreskovich testified, that Ross asked him to
identify the crew members on the Martha Lynn who had
signed union cards . Such interrogation in the context of
the other unfair labor practices found herein is violative of
Section 8(a)(1) of the Act. I also find the remarks
attributed by Ross to President Gordon violative of
Section 8(a)(1) of the Act as they implied that it would be
futile for the employees to join the Union because
Respondent would never agree to recognize it as the
representative of its employees. Better Val--U Stores of
Mansfield, Inc., 161 NLRB 762, 763.
On the morning of February 7, 1968, Oreskovich
telephoned Captain Ross and told him that Mansfield had
asked him to go to the Board hearing at Paducah on the
Union's representation petition. According to Oreskovich,
Ross answered that "it would be best that [he] didn't go."
Ross testified that he reminded Oreskovich of their
previous conversation in which Oreskovich said he did not
want to have anything more to do with the Union and
then said to him "if it were me I'd stay away from [the
hearing]." Ross' advice to Oreskovich implied that it
would not be safe for him to show interest in the Union
and hence was violative of Section 8(a)(1) of the Act.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Captain Noble Gordon's Speech
On January 28, 1968, Captain Gordon, Respondent's
president, spoke to the Martha Lynn's crew in the lounge
of the vessel.' According to Mansfield, Gordon said the
Union was "nothing but a bunch of thugs and convicts
and scum of the earth," and that [pointing his finger at
Mansfield] the Union and anyone associated with it were
"liars," and that "there was not going to be a union
organized in his company." He declared that the Union
was good for nothing but "to get you into trouble."
Gordon remarked that Respondent had . increased the
employees' retirement and insurance benefits and that the
employees "would already have had an increase in salary
if it had not been for certain people holding it up."
Gordon asked if the employees had any questions. After
some questions had been asked about Respondent's
insurance plans , Gordon asked Mansfield, "How about
you, Mansfield, has anyone been telling you any lies?"
Mansfield replied that he "didn't know who was doing the
lying," but finally answered "No" when Gordon pressed
the question whether Mansfield thought he was lying.
Gordon then asked Mansfield if anyone had
"approached" him and Mansfield said, "No."
Oreskovich testified that Gordon prefaced his antiunion
remarks with a description of- "how good we had it and
how good the boats were, good food, the best wages on
the river." Gordon referred to the Union as thugs,
convicts, liars , scum, spoke about "Hoffa being in the
penitentiary and still drawing his salary," and said "there
wasn 't any union going to organize this company."
Gordon referred to the "increase in our insurance and
pension plan" and said the employees would have had a
raise if "certain people" were not holding up Respondent's
negotiations with the Rivermen's Association." Gordon
then directed "a couple of questions" at Mansfield, asking
him "if he thought he was lying to him, had anybody been
telling him any lies ." Gordon said the employees would be
raised a dollar a day and that "there was going to be
better company-employee relationships" than there had
been in the past.
Captain Gordon testified: He told the employees
Respondent had been dealing under contract with a
certified union "for a good many years" but that the
Teamsters, whose president was in jail , "had a long record
of thievery and all kinds of sculduddery." He said the men
had the right to join the Teamsters but "there were some
in there he would call the scum of the earth" and that he
would not at any time let the Teamsters "take an unfair
advantage . . . by threats and intimidation, which is their
stock in trade." He said the men could vote in an election
,.as it suited them; that they were "not to be fearful of
threats and intimidations by anyone"; and that he would
bring "to a screeching halt" attempts which he knew had
been made "to coerce and intimidate men aboard this
vessel ." He "went into some detail about the benefits that
this company had provided." He said he would bargain in
good faith with whatever union the men voted to represent
them but that the Teamsters' "only weapon ... was to
strike the company" and that the Company would fulfill
its obligations to customers "and that means running the
boats." He said the Company would never agree to "a
union shop, as it' s sometimes known, a hiring hall . . .
where the men actually buy their jobs from whoever is
running the hiring hall." He described the Florida
'in addition to the 14 persons in the crew , Vice President Kirkpatrick
and Port Captain Ross were present during Noble ' s remarks
right-to-work law "in some detail," said he would make
sure the employees had all the facts, and emphasized that
"the usual pattern is that you will receive nothing but lies
from the scum of the earth." He described Respondent's
pension, hospitalization, and life insurance programs. He
denied telling the employees that "somebody" was holding
up a wage increase, that "no union was going to
organize" the Company, or that a union could do nothing
for the employees but get them in "trouble." He said he
had asked Mansfield "if anyone had ever lied to him."
I credit the testimony of Mansfield and Oreskovich to
the effect that Captain Gordon said the employees would
have had a wage increase but for the Union. As this
statement linked the withholding of wage benefits to the
Union's organizing efforts, it was violative of Section
8(a)(1) of the Act.
I do not accept Mansfield's testimony that Gordon
expressly said the Union could only get the employees in
"trouble." As this testimony was not corroborated by
Oreskovich, I believe that Mansfield's testimony in this
respect reflected his impression of Gordon's remarks
rather than what Gordon actually said.
Documentary evidence introduced by the Company
indicates that it advised the employees prior to the advent
of the Union of improved insurance and retirement
benefits and the institution of a pension plan. I therefore
find no merit in the General Counsel's contention that
Gordon's references to these matters constituted unlawful
promises of benefits.
Gordon, Mansfield, and Oreskovich are in substantial
agreement that Gordon referred to the Union as made up
of thugs, convicts, scum, and liars, and I credit the
testimony of Mansfield and Oreskovich that Gordon
joined to those epithets a statement that no union was
going to organize the Company. Gordon's own testimony
shows that he emphasized the dangers of a strike if the
employees selected the Union as their bargaining
representative. I find Gordon's speech viewed in its
entirety violative of Section 8(a)(1) of the Act as it was
calculated to impress upon the employees that it would be
futile for the employees to support the Union because
Respondent would never agree to recognize it.
I find further that Gordon singled Mansfield out for
special attention and that, in the context of his antiunion
remarks, his asking Mansfield whether "anyone" had lied
to him or had "approached" him constituted coercive
questioning of Mansfield concerning union activities
violative of Section 8(a)(1) of the Act.
4. The wage increase
The Union on January 2, 1968, filed a timely
representation petition which was pending before the
Board when Respondent on February 1 gave the
employees a dollar a day wage increase allegedly
negotiated with the Rivermen's Association. Respondent
introduced no evidence concerning the negotiations. I find
that the wage increase was given at a time and in a
manner intended to discourage support of the Union and
hence that it was violative of Section 8(a)(1) of the Act.
5. Solicitation of employees to withdraw from the
Union
On February 3 or 4, 1968, Port Engineer Charles
Collins, Assistant Port Engineer John Snyder, and first
mate Jack Floyd of the Girlie Knight came aboard the
Martha Lynn at Memphis , Tennessee. In the mates' room
MID-SOUTH TOWING COMPANY
on the boat, Floyd showed Mansfield a paper reading, "I
withdraw my support from the MOA," and asked him to
sign it, saying "we want everybody on the boat to sign
them so there won't be no discrimination against
anybody." Floyd showed Mansfield copies signed by crew
members on the Girlie Knight, the Julia Woods, and the
Martha Lynn, and told him he would not be fired if he
also signed the withdrawal slip but Mansfield refused to
sign.
Snyder gave a withdrawal slip to Oreskovich, saying
that President Gordon wanted all the employees to sign
one so that "nobody would know who signed a pledge
card and who didn't." He told Oreskovich that "if a man
signed the paper he wouldn't have to worry about losing
his job." Oreskovich signed the withdrawal slip.
Snyder' s solicitation of Oreskovich to withdraw from
the Union was violative of Section 8(a)(1) of the Act.'
Whether or not Floyd is a supervisor under the Act, he
was associated with Snyder in soliciting employees to
withdraw from the Union. His solicitation of Mansfield to
withdraw from the Union is therefore attributable to the
Company and also violative of Section 8(a)(1) of the Act.
Brown Specialty Company, 174 NLRB No. 77.
B. The Discrimination Against Mansfield
On Monday morning, February 5, Mansfield told first
mate Hubert Maxfield that he thought he had better get
off the Martha Lynn because he had "a bad hurting in his
side and back" and thought it might be appendicitis.
Maxfield went off to see Captain Hightower,' and
Mansfield went to his room where he asked Oreskovich,
his roommate, to pack his clothes because his back was
hurting "real bad." Oreskovich did so while Mansfield lay
in bed. Maxfield came in and said Captain Hightower
would see him "when he came down for dinner."
Mansfield waited for Hightower for about 45 minutes and
then went to the pilothouse. He told the pilot he had to get
off because his back was hurting him and he was afraid it
might be appendicitis. The pilot called Hightower, who
came to the pilothouse and told Mansfield that the
Company would have a doctor see him in Cairo.
Mansfield said he did not think he should wait that long,"
and said he would like to see a doctor at Hickman, about
35 to 40 miles below Cairo. Hightower said there was no
one at Respondent's office in Paducah to pick him up and
Mansfield said he would call his wife to "come down and
pick me up." Hightower told Mansfield not to call his
wife and said, "We'll get you a doctor." Assistant Port
Engineer Snyder, who was on board, dressed and got off
the boat with Mansfield at Hickman.
In Hickman, Snyder telephoned someone in Paducah
and told Mansfield he would take him to Cairo. Mansfield
suggested they go to Paducah, about 15 miles above
Cairo, but Snyder said, "no, we'll just go to Cairo."
Snyder called a cab and the two men went to the hospital
at Cairo. Snyder called the Company again because the
doctor he had been instructed to have examine Mansfield
was not in . Snyder was instructed to take Mansfield to
Paducah. Snyder rented a cab to Wickliffe, Kentucky,
'I reject Snyder's testimony that he did not solicit Oreskovich to
withdraw from the Union. He did not deny coming on board the Martha
Lynn with Collins and Floyd , nor did he deny Oreskovich' s testimony that
he, Collins and Floyd gave out "little papers" to withdraw from the
Union . Mansfield's testimony that Floyd asked him to sign a withdrawal
slip is uncontradicted
'Captain Lewis was on his `off' days.
"The Martha Lynn was 5 to 8 hours away from Cairo.
967
across the river from Cairo, where the Company had sent
a car to pick them up. Mansfield was taken to the
Medical Arts Building in Paducah, where a Dr. Bradford
examined him for an hour and a half. Port Captain Ross
came to the office during the examination and asked Dr.
Bradford what was wrong with Mansfield. Dr. Bradford
said "Mansfield's blood count was 180, on the borderline
of appendicitis," that, "you can't tell, it's right there
where it could be either way." Ross said, "In other words,
there is nothing wrong with him and we can put him back
to work?" Dr. Bradford replied, "No, I'd like to put him
in the hospital for observation for a couple of days.""
Mansfield asked Dr. Bradford if it would be all right to
go home that night and see his own doctor in the
morning . Dr. Bradford said it would be all right " as long
as you go to him in the morning."
Ross drove Mansfield and Snyder to the Southern
Marine Management office where Snyder's car was
parked. On the way "across town," Ross asked Mansfield
if he had any comments to make on President Gordon's
speech in New Orleans. Mansfield said he guessed he had
"better not make any objections because he wouldn't like
them." At the Southern Marine Management office
Snyder and Mansfield got into Snyder's car and Snyder
drove Mansfield to his home in Burna , Kentucky, and
carried Mansfield's bags in for him."
The next day, February 6, Mansfield was examined by
Dr. Stephan Burkhart, who told Mansfield he had a
prostate gland infection and gave him a prescription. He
told Mansfield to take the medicine and to come back the
next morning or sometime the next day."
The Board on February 7 conducted a hearing at
Paducah on the representation petition filed by the Union.
Mansfield attended but did not participate in the hearing,
which ended at 3:50 p.m."
Mansfield saw Dr. Bukhart the next morning and again
on February 12." Dr. Burkhart gave him refill
prescriptions for the medicine he had been taking . He told
"Ross testified that Dr Bradford told him : " I can't find anything
definitely wrong He felt a little tender around his appendix , but I see
nothing serious."
"Snyder testified that Mansfield "kind of chuckled" on the way home
and said , "You fellows didn't think I had anything wrong with me, did
you9" Snyder replied that if Mansfield said he was hurting as far as he was
concerned he was hurting Snyder further testified that the next day he
brought a deckhand to the Martha Lynn to relieve Oreskovich. Snyder
drove Oreskovich back to Paducah . On the way back , according to Snyder,
Oreskovich told him that Mansfield knew he was expected to stay on the
boat at the end of the trip because the Company had only one deckhand to
relieve the two of them and that he said to Oreskovich before he got off
the Martha Lynn on February 5 that "he was going to get off the boat
here and attend the [Board] hearing" which he knew was scheduled to be
held at Paducah on the morning of February 7. Snyder allegedly reported
this conversation to Captain Ross. Ross testified that Snyder had advised
him of this conversation with Oreskovich. Oreskovich denied having had
any such conversation with Snyder.
"Ross testified he called Dr. Burkhart "around noon" on February 6
and asked him if he had examined Mansfield and "if he'd mind telling me
what he found." Dr. Burkhart replied, " I found he was a little tender
around his appendix and I also found he has a slight infected prostate."
"Mansfield testified he was "feeling some better" on February 7 but that
he "still didn't feel like running around ." He knew while on the Martha
Lynn that the hearing was scheduled for 10 a .m. at Paducah on February
7.
"Captain Ross testified that Mansfield showed no "obvious signs" of
illness at the Board hearing and that he called Dr . Burkhart on February 8
and asked him if Mansfield had kept his appointment the previous day.
Dr. Burkhart said Mansfield had not come in on February 7 but that he
had examined him "this morning." Ross asked , " How is he today?" and
Dr Burkhart replied , "Oh, he's much better . His appendix has completely
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mansfield on February 12 that the last prescription should
clear the infection up but to come back if it was still
bothering him."
By letter dated February 14, 1968 , Port Captain Ross
notified Mansfield that he was suspended for 30 days. The
text of the letter is as follows:
This is to advise you that you are hereby given a
disciplinary suspension from your duties as an employee
of Mid-South Towing Company for a period of thirty
days commencing upon the expiration of your accrued
leave time which expires March 9, 1968.
The reason for this action is that on February 5,
1968, you misrepresented that you were seriously ill
while on duty aboard the M /V MARTHA LYNN, and
before your normal relief time , causing the Company
great expense and inconvenience in arranging for relief
for you, in removing you from the vessel, providing an
escort and taxi cab services for you, and paying for
physician 's examination.
We have learned that in spite of your protestation of
serious illness , you did not even keep your appointment
with your own doctor at Salem, Kentucky, on February
7, 1968, and in fact you were well enough to spend the
entire day in Paducah , Kentucky , 20 miles away from
your home and doctor , attending a hearing before the
National Labor Relations Board.
About a week after receiving this letter , Mansfield
called Captain Ross and asked him when he was going to
put Mansfield "back on the boat ." Ross replied that he
would be put back on the boat when his suspension was
up. Mansfield called Ross' office two or three times after
this conversation but was told each time that Ross was
out. Mansfield again called Ross on the day his
suspension was up but was told that Ross was out of
town . Mansfield drove to the office of Southern Marine
Management and found Ross there . Ross called Mansfield
into his office and told him, "We are not going to put you
back on the boat . We are going to let you go ." He added
that Mansfield ' s letter of discharge was already in the
mail. Mansfield said he "could have been looking for
another job . Instead of suspending me, if you had just
gone ahead and fired me that would have helped me a
whole lot ." Ross replied , " Well, you haven't done
anything to help us."
Mansfield received the following letter of discharge,
dated April 9, 1968, from General Manager Thomas A.
Kirkpatrick:
On February 14, 1968, you were notified of your being
given a thirty-day disciplinary suspension for feigning
an illness which caused the Company a great deal of
expense and inconvenience in arranging a relief for you,
in removing you from the vessel, providing escort and
taxi cab services for you and paying for physician's
examination.
Since that time it has been reported to me that on
another occasion you were insubordinate and threatened
to use physical violence against one of the mates when
you were ordered to carry out some of your normal
duties as a deckhand. A thorough investigation of this
charge has proved its truth.
Our operations on the river are dangerous enough for
our people without having them to worry about a crew
member committing an act of physical violence against
another . We have never countenanced such conduct on
our vessels, nor will we in the future, and for this
reason, we are at this time permanently discharging you
as an employee of Mid-South Towing Company.
Mansfield testified that about a year before his
discharge , second mate William Sweet instructed him
about 3 p.m. to do some work on the tow at 4 p.m., but
that he spliced wire until 4:20 p.m. without noticing that 4
o'clock "had gone by." Sweet came over to him and
yelled at him for not going out to the tow. Mansfield
walked to the tow but Sweet "came out there and he was
still going on at him for not doing this." Mansfield said it
was his fault for not noticing the time but Sweet "just
kept on," so Mansfield told him "You either get off of me
or you and me are fixing to mix it up right here ." Sweet
"hushed up" and , so far as Mansfield knew, "it was all
settled down" and Sweet did not report the incident to
anyone." Mansfield said that he and Sweet both used
"pretty rough" language in their argument and that he
"threatened to bend a [cheater bar] over [Sweet' s] head."18
Sweet retorted that he would hit Mansfield first if he
"didn ' t shut up ." Mansfield worked with Sweet for
"about a year" after this incident without further trouble.
Second mate Sweet testified that he had an argument
with Mansfield in October 1967 and that he may have
spoken "in a harsh way" to Mansfield , who, on the way
out to the tow, said Sweet would have "to use a different
tone of voice to him or he was going to hit me in the head
with a toothpick."" Sweet refused to get in a fight with
Mansfield because it would cost him his job He reported
the incident to first mate Maxfield but let the matter drop
when nothing happened. He mentioned the incident,
however, to Captains Ross and Hightower when they told
him after the Board representation hearing on February 7,
1968, that Mansfield was not to be allowed on board the
Martha Lynn. Sweet remarked that he "didn't care for
[Mansfield ] anyway" and he told them of Mansfield's
threat when they asked him the reason why. Ross
corroborated Sweet' s testimony concerning his
conversation with Ross and Hightower. He said this
conversation occurred about February 15, that he told Mr.
Zempel, a Company official , that he thought Mansfield
should be discharged , but that Zempel suggested they wait
for General Manager Kirkpatrick's return from Holland.
Ross "filled [Kirkpatrick ] in on the late developments"
when Kirkpatrick returned to the country a week or two
later . Kirkpatrick agreed that Mansfield should be
discharged because "We have never allowed this kind of
thing on our boats . We will not start now."
The record shows that Dr. Bradford examined
Mansfield at Paducah and found that his blood count was
"on the border of appendicitis." The next day and for
about a week thereafter Dr. Burkhart treated Mansfield
for a prostate gland infection . As I see no reason to
question the competency of the two doctors, I find that
Mansfield was ill when he asked to be taken to a doctor
on February 5 and when he saw Dr. Burkhart the next
cleared up He still has a slight problem here with his prostate . He's taking
his medication but it's healing . I see no problem."
"A note from Dr Burkhart, received into evidence as G. C's Exh. 4,
recites that Dr. Burkhart saw Mansfield on February 6, 8, and 12, 1968,
and that Mansfield "had an acute prostatitis." Mansfield testified that he
was again treated by Dr. Burkhart about December 1968 for a prostate
infection which was "not near as serious as it was the first time" and
which cleared up in 4 or 5 days.
"Mansfield was transferred a day or two after this incident from the
after watch to the forward watch supervised by the first mate on the vessel
"A cheater bar is made of 2-inch pipe and is about 3-1/2 feet long.
"Sweet described a "toothpick" as a 2-foot long car axle of solid steel
about an inch around. He said Mansfield had nothing in his hands when he
made the threat
MID-SOUTH TOWING COMPANY
day. The fact that Mansfield was well enough to attend
the Board hearing on February 7 does not mean that he
was well enough on February 5 to perform his duties as a
deckhand.30 Captain Ross' testimony shows that he was
informed by Dr. Burkhart before and after the Board
hearing that Mansfield was being treated for an infected
prostate.
Snyder testified, and Oreskovich denied, that
Oreskovich gave him to understand that Mansfield feigned
illness to attend the hearing on February 7. Although
Snyder allegedly informed Ross of such a conversation
with Oreskovich , Ross said nothing about it in his letter
suspending Mansfield , in his conversation with Mansfield
about a week later concerning the date of Mansfield's
return to work, or when he notified Mansfield of his
discharge. I have previously noted that Oreskovich
impressed me as a reliable witness . I reject the testimony
of Snyder and Ross to the effect that Snyder learned from
Oreskovich that Mansfield feigned illness on February 5
and that Snyder so informed Ross.
Mansfield ' s argument with Sweet occurred from 6
months to a year before Mansfield ' s discharge and was an
isolated incident in their work relationship. Sweet told
Ross on February 15, 1968, about Mansfield's threat to
hit him with a steel bar. Although Ross testified that he
immediately decided that Mansfield should be discharged,
21 it appears from Mansfield ' s uncontradicted testimony
that Ross told him about a week later that he would be
put back to work after missing a regular tour of duty
because of his suspension . According to Ross' own
testimony, he did not even take up the question of
Mansfield's discharge with another Company official,
Zempel , until a week or two before Vice President
Kirkpatrick returned from Europe in April 1968. Had
Ross considered Mansfield's conduct as reported by Sweet
of sufficient importance to warrant Mansfield's discharge,
he surely would not have waited more than a month
before taking any action to effect the discharge.
In view of the foregoing, I do not credit Captain Ross'
testimony that he suspended Mansfield on February 14,
1968, because he was convinced that Mansfield had
feigned being seriously ill in order to attend the Board
hearing at Paducah on February 7, and that in April he
recommended Mansfield ' s discharge to General Manager
Kirkpatrick because Mansfield had threatened to hit
Sweet with a "toothpick." I find from Respondent's
hostility to organization of its employees by the Union, its
knowledge of Mansfield's Union activity, its threats to
discharge Mansfield for this activity, its unconvincing
explanations for the suspension and discharge of
Mansfield, and its other unlawful conduct, that
Respondent suspended Mansfield on February 14, and
discharged him on April 9, 1968, to discourage its
employees from supporting the Union, thereby violating
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Mid-South Towing Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
"Mansfield testified that his work as a deckhand included carrying
"hundred pound ratchets around."
"Ross made no effort to obtain Mansfield 's version of the argument
because "Sweet's verification was good enough for me." Sweet's written
statement concerning the incident, introduced into evidence as
Respondent's Exhibit 14, indicates a verbal exchange unaccompanied by
any act of physical violence.
969
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent suspended and
discharged Alvin R. Mansfield in violation of Section
8(a)(3) and (1) of the Act. It will therefore be
recommended that the Respondent offer him immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings suffered by reason of the discrimination
against him , by payment to him of a sum of money equal
to that which he normally would have earned , absent the
discrimination , from the date of the discrimination to the
date of the offer of reinstatement, less net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. Backpay shall carry
interest at the rate of 6 percent per annum as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. Further, it
will be recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of this
recommendation.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Respondent Mid-South Towing Company, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively threatening employees concerning union
activities; threatening employees with discharge or other
economic reprisals because of their organizational
activities; granting employees wage increases in order to
discourage their support of a labor organization ; telling
employees that it would be futile to support a labor
organization because Respondent would not recognize it
as their bargaining representative; soliciting employees to
withdraw from the Union; or in any other manner
interfering with, restraining, or coercing employees in the
exercise of their rights under Section 7 of the Act.
(b) Discouraging membership in the Union, or in any
other labor organization by suspending or discharging
employees or in any other manner discriminating against
them in regard to hire or tenure of employment or any
term or condition of employment.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Alvin R. Mansfield immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to seniority or other rights and
privileges, and make him whole for any loss of earnings,
in the manner set forth in "The Remedy" section of the
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's Decision.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy" section of the Trial Examiner's Decision.
(d) Post on its motor vessels, and all other places where
notices to employees are customarily posted, copies of the
attached notice marked "Appendix."'= Copies of said
notice, on forms provided by the Regional Director for
Region 9, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 9, in
writing , within 20 days from the date of this Trial
Examiner's Decision, what steps Respondent has taken to
comply herewith. 21
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify the Regional Director for
Region 9 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
All our employees have the right to join or support a
labor union. WE WILL NOT in any manner interfere with
their exercise of this right. Specifically, WE WILL NOT
coercively interrogate them concerning their union
activities. WE WILL NOT threaten employees with
discharge because of their organizational activities. WE
WILL NOT grant them wage increases or other benefits
to discourage their support of a labor organization. WE
WILL NOT tell employees it would be futile to support a
labor organization because we will not recognize it as
their bargaining representative. WE WILL NOT solicit
employees to withdraw from a labor organization. WE
WILL NOT discourage membership in Marine Officer's
Association, Local Union No. 54, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by suspending, discharging or
otherwise discriminating against any of our employees.
WE WILL offer Alvin R. Mansfield his former or
substantially equivalent job (without prejudice to his
seniority or other rights and privileges), and WE WILL
pay him for any loss because of our discrimination
against him.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named union, or any labor organization.
MID-SOUTH TOWING
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: Notify Alvin R. Mansfield if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
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, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3663.