Moran Bros., Inc.Download PDFNational Labor Relations Board - Board DecisionsJun 7, 1968171 N.L.R.B. 1129 (N.L.R.B. 1968) Copy Citation MORAN BROS., INC. Moran Bros ., Inc. and International Union of Operating Engineers , Local Union No. 12, AFL-CIO Moran Bros., Inc. and International Union of Operating Engineers , Local Union No. 12, AFL-CIO, Petitioner . Cases 21-CA-7448 and 21-RC-10273 June 7, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 11, 1968, Trial Examiner Herman Marx issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recom- mended that such allegations be dismissed. He found further that the Respondent had interfered with an election held on January 3 and 4, 1967, and recommended that it be set aside. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner. The Trial Examiner found that the remark of driller Calderwood to em- ployee Alexander that he should turn his authorization card over to em- ployee Van Degrift before starting on "company time" was not violative of Sec 8 (a)(1), citing in support thereof the Board case of Star-brae Indus- tries , Inc , 127 NLRB 1008 In William H Blot A Conipam, 150 NLRB 341, the Board reversed the Star-Brite case insofar as it set up standards for ad- judging the validity of no-solicitation rules and we therefore disavow the Trial Examiner's adoption of the tests set forth in Star-Britt, However, even if the standards set forth in the Blot A case are applied to Calderwood's re- marks we would not find it v lolative of Sec 8(a)( I ) of the Act, particul.irl) since, as the real Examiner found the record does not establish that Alex- ander had no work functions to perform during his paid "boat time - ORDER 1129 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Moran Bros., Inc., Long Beach, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE HERMAN MARX, Trial Examiner: On January 3 and 4, 1967, pursuant to Stipulation for Certifica- tion Upon Consent Election in Case 21-RC-10273 the Respondent, Moran Bros , Inc (herein Moran or the Company), and International Union of Operating Engineers, Local Union No 12, AFL-CIO (herein the Union), the National Labor Relations Board (herein the Board) conducted a representation election among the employees of the Company in an appropriate bargaining unit, with the result that 28 votes were case in favor of the Union, and 28 against it. The Union filed timely objections in the representation proceeding on January 10, 1967, al- leging misconduct by the Company affecting the election results and, on the same date, initiated Case 21-CA-7448 by filing an unfair labor practice charge against the Company. On March 31, 1967, the Board's General Counsel issued a complaint based upon the charge, alleging, in substance, that the Company had refused to bargain with the Union in violation of Section 8(a)(5) of the Na- tional Labor Relations Act, as amended (herein the Act);' had discharged, and refused to reinstate, an employee named Donald Allen because of his union and other protected concerted activities, thus violating Section 8(a)(3) of the Act; and, by such and other misconduct, had abridged rights guaran- teed employees by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute. The Respondent has filed an answer denying the com- mission of the unfair labor practices imputed to it. The complaint's allegations of misconduct in- clude some of the claims set forth in the objections. Following an investigation of the latter, the Re- gional Director for Region 21, on April 11, 1967, issued a report, noting, among other matters, that the objections could best be resolved in a hearing in conjunction with the unfair labor practice allega- tions and, in an order appended to the report, 1 29USC 15 1, et it,,/ 171 NLRB No. 155 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directed that a hearing be held on the objections, and consolidated both cases.2 A hearing upon the issues in the consolidated proceedings has been held before me, as duly designated Trial Examiner All parties appeared through counsel and were afforded a full opportuni- ty to adduce evidence, examine and cross-examine witnesses, and submit oral argument and briefs 3 Upon the entire record, from my observation of the witnesses, and having read the briefs submitted to me, I make the following: FINDINGS OF FACT 1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD The Company is a corporation, maintains its principal office and place of business in Wichita Falls, Texas, is engaged in the business of drilling oil and gas wells for other concerns; currently operates drilling rigs in a number of States, includ- ing California, during the year 1966, in the course and conduct of its business, performed services valued in excess of $50,000 for customers located outside California, and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. By reason of its interstate activities, the Com- pany, as it in effect concedes in its answer, is, and has been at all material times, engaged in com- merce, and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act Accordingly, the Board has jurisdiction over the subject matter of this proceeding. 11. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material here, a labor organization within the purview of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Prefactory Statenient The Company , under a contract with an enter- prise named Thums , is, and has been at the times material here, engaged in offshore oil-drilling operations in the harbor of Long Beach , California, using four drilling rigs mounted on an artificially constructed "island " located in the harbor Drilling personnel reside on the mainland, and go to and from work by boat. The trip takes about 10 to 20 minutes, and the Company pays employees for their travel time. The rigs operate around the clock, each manned by a crew of five for a prescribed shift of 8 hours. Each crew includes an individual classified as a driller who, although performing manual duties on rig equipment, has the function of supervising the other four members of his crew, variously classified as derrickman, motorman, or floorman; and is vested with authority to hire and discharge them. Each driller is subject, in turn, to direction by a su- pervisor known as a toolpusher who is in charge of at least two rigs on his shift. The toolpushers func- tion under the direction of the drilling superinten- dent, James R. Hale, who is in charge of the Com- pany's drilling operations in Long Beach Harbor, subject to the authority of a vice president of the Company, Willard E. Durkee, who has overall responsibility for the operations. Durkee, Hale, and each driller and toolpusher, identified below, are, and have been at all material times, supervisors within the meaning of Section 2(11) of the Act.4 As the record establishes, without dispute, all derrickmen, motormen, and rotary drill helpers em- ployed by the Company in its operations in Califor- nia, excluding all drillers, toolpushers, office cleri- cal employees, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute, and have constituted at all times materi- al here, a unit appropriate for the purposes of col- lective bargaining, within the meaning of Section 9(b) of the Act. In October 1966, the Union embarked on a cam- paign to become the bargaining representative of the unit, and to that end solicited employees in the unit to sign cards which, when properly executed, would, in terms, authorize the Union to represent the signatory "in collective bargaining negotiations for an agreement covering my employment." Some of the signatures were sought by a business representative of the Union, Billy W Cox, others by various employees, including Darrell Van Degrift and Emmett McDonald. On November 17, 1966, the Company received at its office in Wichita Falls, Texas, a written request from the Union that the Company bargain with the labor organization as the representative of the unit employees with respect to their wages, hours of work, and other terms and conditions of employment. Copies of the charge, the complaint the Regional Directors report on the objections his order of consolidation and a notice of hearing on the is- sues raised in both cases haze been duly served on the Respondent and each other part entitled thereto The hearing was held in Long Beach California on June 26 1967, and in Los Angeles. Californ.ua on June 27 and 28 1967 ' The Respondent has filed a motion to amend the hearing transcript in sanous respects Each of the Either parties has been duly served with a cop) of the application and has submitted no opposition thereto the motion is granted in all respects with the exception of a request that the phrase shaft drillers he changed to 'Shaft Drillers' in 125, p 480 of the trans- cript I he phrase in question does not appear at that location but does in I 2s on p 478 As to the exception noted the motion is denied Hoveser, I 25, p 478, is amended to change "shaft drillers" to "Shaft Dnllers " ' The drillers imolsed in this case are B B I rout, William A C.il- derwood Paul G Speer L J Nichols, and Victor A Courange, and the toolpushers are Emerson B White Kenneth R Allen Ernest E Combriiik and Woodrow E Clark MORAN BROS ., INC. 1131 Excluding two men (Don Carson and D. E. Barentine ) whose employment terminated on November 17, 1966, there were 61 employees in the unit on that date.' As of that date, 33 unit em- ployees (including Carson) had signed authoriza- tion cards designating the Union as their bargaining representative . The record does not establish whether Barentine and Carson were terminated be- fore or after the time of receipt of the bargaining request , but whether or not one includes them in the unit , 32 card signatories ( excluding Carson) constituted a majority of the unit at the time of ser- vice of the bargaining request." At the hearing, the Respondent put forward a claim to the effect that some of the cards, at least, have no efficacy as authorizations because their signatories were told that they would be used for the sole purpose of securing an election, but its brief makes no reference to the claim , and it is thus not wholly clear whether it still maintains that posi- tion. In any case, I find no credible support for it in the record. One signatory, Jerry McCown, testified that Cox "wanted me to sign their authorization card for an election." What McCown says Cox "wanted" suggests a conclusion by the witness as to Cox's purpose, but passing that , McCown's version falls far short of imputing to Cox a representation that the sole purpose of the card was to secure an election . The language of authorization in the card contains no fine print and is simple and clear. Mc- Cown filled in all the blank spaces himself and, ob- viously, to do so, gave the card his attention and consideration ; and one may fairly infer that he was fully aware that a purpose of the card was to designate the Union as his bargaining representa- tive. Much the same may be said of Charles Kimbrell, who, like McCown ,completed the blank spaces in the card he signed . Kimbrell pictures Cox as "trying to talk to me about signing up for the Union," and as saying "all this would be just recognize for an election" ( emphasis supplied). The testimony that Cox was "trying to talk to me about signing up for the Union" not only sounds a conclusional note, as in McCown's case , but of itself suggests a possibility that Cox told Kimbrell that the purpose of the card was to designate the Union as bargaining represen- tative. Mreover, Kimbrell himself does much to dispel any idea that he was induced to sign the card by a representation that it was to be used solely to secure an election, for, apparently contradicting his previous image of Cox's effort to induce him to sign , he testified: "Me and him [Cox] did not discuss it. Only I signed a card, and went to work, and that is all. We did not discuss it. He did not in- fluence me in any way, and neither did Moran. I did not talk to nobody about it." In contrast to the ambiguity and conflict in Kim- brell's testimony, Cox testified unequivocally that Kimbrell was one of three employees whose signa- tures he sought at the same time, and that what he told all three was that the Company had "indicated that if the men wanted union representation, they would recognize the local," that the Union "did not know if this would be the case or not, that there was a possibility of an election." According to Cox, also, he told the other signatories whom he solicited much the same thing, and he denied that he had ever told any employees that the cards would be used solely for an election. I credit that denial and his description of what he told Kimbrell and others, and the sum of the matter is that there is no credi- ble evidence that any employee was induced to sign a card by a represention that it would be used sole- ly to procure an election, or by any other material misstatement.7 ' Unless stated others ise, all dates mentioned herein occurred in 1966 " the record includes a card signed by an employee, C R Magness, he- fore Nosember 17. 1966, but not on the payroll as of that date, and a number of cards signed after the date ncese cards, of course, are not in- cluded in the 32-card majority, and no findings herein are based on them Twenty of the 32 cards were authenticated by testimony either of the signa- tory concerned or a witness to the signature, and 9 (excluding Carson's card) by a qualified hands hung expert upon the basis of a comparison with Internal Resenue Scrsice W-4 lorms purportedly executed by the em- ployees in question. and taken from the Company's regular business records the nine mdisiduals in question were un,is,ulable as witnesses. ac- cording to an explanation by the General Counsel, which Aas accepted by the Respondent there is no reason to question the authenticity of the signatures on the W-4 forms, and, indeed, the Respondent offered no ob- jection either to the forms or the nine cards I he remaining three cards (those of D R Northern , R S Brock , and L Frank) Acre not authen- ticated by any of the methods described chose, but I am satisfied from the circumstances in which their execution was solicited , and in which the cards were returned to the respectisc solicitors. that the three signatures were authentic See, in that regard . Hunter Engineering Gim/xuis, 104 NLRB 1(116, 1020, enfd 215 F 2d 916 (C A 8) I note, also, that the date on R C Roseherry's card is not entirely clear I raid it as "Nos I I, 1966," although a loop about the top of the second numeral in " I I " possibly gives it the appearance of "9." or . in other words, may suggest that the date of execution was November 19, 1966 , and thus after the bargaining request the rear of Roseherry's and mans other cards bears a date stamp indicating that they were filed with the office of the Board's Region 21 on No% ember 15, 1966 Although there is no direct esidence authenticating the stamp, and I expressed some rescrsation at the hearing that the stamp could he given effect as the evidence then stood, the record, taken as a whole, war- rants an inference that the date stamped is that of the Regional Office the Union's representation petition was filed on November 15, 1966, and the Board's practice ( Sec 101 18, Statements of Procedure ) requires that "evidence of representation " must be filed within 48 hours after the filing of the petition Obviously , Roseherry's and the other cards hearing the date stamp were filed as part of the required showing , and the stamp is that of the Regional Office Moreover, quite apart from the stamp, the record establishes that the card was executed before the bargaining request, for Magness, who solicited Roseherry's signature, testified credibly that the signed card was returned to him on November 11, 1966 ' The Respondent sought from Kimbrell , McCown , and several other card signatories testimony that they understood or believed that the sole purpose of the cards was to secure an election Particularly in view of the clear language of the cards , and in the absence of material misrepresenta- tion, the subjective conclusions sought of these witnesses are plainly in- competent and immaterial, and thus objections to questions seeking to elicit them were sustained Aero Corlxoratuin , 149 NLRB 1283, 1291 1 note, also, that the legal efficacy of Roger Swisher's card is undiminished by his testimony that an unidentified employee asked Swisher if he "would like to vote ," and said that there would be an election The same is true of the card signed by Robert Van Degrift who testified that the employee who gave him an authorisation blank told him that "if they got enough cards to sign , they would be authonzed to have an election " Van Degrift and Swisher, as is evident, were not told that the only purpose of the cards was to procure an election, and especially taking the clarity of the cards into ac- count, the record will not support a finding that they were misled into sig- ning their cards by material misrepresentation 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union filed its representation petition in Case 21-RC-10273 on November 15, 1966, seek- ing certification as bargaining representative of the unit described above, and the upshot was the con- sent election held on January 3 and 4, 1967, with the results previously described. The gravamen of the General Counsel's case is that Moran violated the Act by (a) the discharge of Donald Allen; (b) threats of economic reprisal and changes in working conditions "because of union activity"; (c) supervisory predictions of bad-faith bargaining by the Company; (d) announcement of "a no-solicitation rule limited to union activity"; and (e) refusing to bargain with the Union as representative of the unit employees. (The sub- stance of these allegations, except the "no-solicita- tion rule" and claimed refusal to bargain, is in- cluded in the objections.) Findings and conclusions regarding these claims follow below. B. The Discharge of Donald Allen Donald Allen, who has worked in the oil-drilling industry for 17 years, entered Moran's employ at the Long Beach Harbor drilling site on November 10, 1966, worked on the graveyard shift as a member of a crew supervised by a driller named Paul Speer , and signed an authorization card for the Union about December 1, 1966. Speer discharged Allen at the end of their shift on or about December 16, 1966, telling Allen that he was going to replace him, and handing him a "termination slip" for use in drawing his terminal pay at the Company's Long Beach office. The slip contained an entry by Speer that the reason for the discharge was that Allen "did not work with the other crew members." Shortly after he received the slip, while changing clothes in the "doghouse" (a drilling site structure used by rig crews for meals and changing clothes), Allen asked Speer why he had been discharged, and Speer replied that he had "to have some help out there, that [Allen] was not making me a hand ," and that he had given the reason in the termination slip. Allen inquired whether his support of the Union was the reason, and Speer denied that such was the case." The General Counsel claims, in substance, that Allen was discharged for union activity, and, as support for that contention, offered testimony by Allen that early in December he asked Speer on the job whether he wished "to sign a union card," but " Findings as to the conversation are based on Speer 's testimony I do not credit a claim by Allen that he received no response to his request for the reason for his dismissal A reason is undisputably given in the termination slip, and it is plausible that Speer would refer Allen to it, as Speer testified Moreover , Speer 's account is substantially corroborated in some basic respects by William Brothers , a member of Speer 's crew who was present Nor am I able to accept a claim by Allen that the discharge reason given in the termination slip was "Lack and doe% not get along with crew mem- bers " The word " lack" seems meaningless in the context in which Allen place,, it Furthermore , although Allen was admittedly given the slip ("that paper ." as he calls it ) at the jobsite , and, as may be inferred , brought it to the office. Allen's testimony would lead one to believe that he was unaware Speer declined ; Speer asked him whether he had any cards , and where they were located ; in reply, he told Speer that he had such cards and that they were in a receptacle ( called a " knowledge box" by drilling personnel ) in the "doghouse"; several hours later , he (Allen ) looked there and saw that the cards were missing ; and, after the end of the shift that day, in the presence of the "whole crew" (Al- len and two or three other employees in Seer's crew), while they were changing clothes in the "doghouse ," Speer said that "the Company had told him to unlatch from any hand that had anything to do with the Union , that was going to join " ( or, in other words, to "get rid of" any employees who joined or had any connection with the Union).' Speer denied making any remarks to or in the presence of Allen or any other members of his crew about " unlatching" anybody , or that Allen asked him to sign a card , or had told him that there were any cards in the " doghouse." According to Speer , Allen performed his work satisfactorily in the early part of his employment of some 5 weeks , but his attention to his duties deteri- orated as time went on, and he stood idly by when there were tasks to be done, thus putting added burdens on other members of the crew . Describing events that allegedly culminated in the discharge decision , Speer gave testimony to the effect that during Allen's last shift , or the night before, the crew had a " nasty " job of cutting a "drilling line" which is covered with tar or grease, is connected to a drum, and requires the cooperative efforts of several men " to wrestle the line to get it in that drum "; while members of the crew were engaged in the line-cutting chore , Allen spent time standing by and watching , instead of helping ; in the course of the operation it became necessary to loosen some nuts by which the line was connected to the drum; this should be done with " a socket" that fits the nuts rather than with an open wrench which may cut or round their corners ; Allen began to use such a wrench , and Speer told him to desist and sent another employee for a socket ; while Speer was oc- cupied elsewhere on the rig, Allen continued to use the wrench , damaging some nuts , in disobedience of Speer's instruction ; Speer became aware of the disregard of his order ; and the use of the wrench was the " last straw " that led to Speer 's decision to discharge Allen. A member of the crew , William Brothers , supports Speer's testimony in material respects , stating that Allen spent time " fooling of the reason entered in the slip until he happened to notice the paper lying on a table in the office Whether such slips are retained by the management after giving a discharged employee his terminal pay does not appear, but the fact that the one in question was not produced by the Respondent is not decisive, and I am persuaded from the relevant evidence as a whole that Speer 's recollection of his entry is more reliable than Allen's, noting , in that regard, that actually the difference between the two versions is of no large moment, since either entry is substantially consistent with the reason the Respondent gives for the discharge in its evidence " According to Allen, the term "unlatch " is commonly used in West rexas and New Mexico to mean "get rid of " MORAN BROS., INC. around" when he had work to do, imposing on others the need to do such work ; and that on the occasion described by Speer , Allen "fouled up" two nuts in the drilling line operation by using a wrench instead of a socket. The General Counsel's case for an unlawful mo- tive for the discharge rests entirely on Allen's evidence, but there is much that is short in it, par- ticularly in the attempt to prove that Speer was aware that Allen supported the Union, and had en- gaged in activity on its behalf. There is no proof (nor claim, for that matter) that Speer or any other supervisor knew or believed that Allen had signed an authorization card ( as had many others ); apart from the execution of the card , there is no evidence outside Allen's testimony that he engaged in any union activity; the sole evidence of Speer's knowledge consists of Allen's disputed claim that he asked Speer to sign a union authorization card, and told Speer that he had a store of such cards in a receptacle in the "doghouse"; Allen admittedly had not previously asked anybody else to sign a card; and he makes no claim that he ever solicited any other person to do so. It seems odd, indeed, that of all the men working at the project, Allen, so far as appears, should ask only his supervisor to sign an authorization card. That Allen's soliciting activity should be so limited is, of course , possible , but it casts a substantial shadow of doubt over his credibility that there is no evidence that he solicited anybody but his super- visor , and that his uncorroborated word that he sought Speer 's signature fits his need for a prima facie showing that the management was aware of his prounion activity or sentiment . Disbelief is en- larged, moreover, with consideration of related aspects of Allen's testimony. He would have it that Speer asked him on the same occasion whether he had any cards, and where they were kept, and that he replied that he had some in a receptacle in the "doghouse "; and this is harnessed to a claim by Allen that some hours later the cards were missing-a claim obviously aimed at implying that Speer or some other supervisor removed them. But under cross-examination the claimed inquiry and the alleged disclosure of the location disappeared, Allen testifying that he asked Speer to sign a card, that the latter "said no, " and that that "was the en- tire conversation." I am unpersuaded that there was such "a conversation ," crediting Speer's testimony in that regard , and what is more, Allen's claim that the cards were missing has earmarks of a mere coloration of the record, particularly in the light of testimony he gave under cross -examination that it was another employee ( unidentified ), and not he, who had placed the cards in the receptacle. Nor do I credit Allen's claim that Speer said that he had instructions to "unlatch " prounion em- ployees from their jobs. According to Allen, Speer's 1133 "whole crew" was present; yet the General Counsel neither called any other member of the crew to support Allen's claim, nor offered any explanation of the omission. Significantly, too, although em- ployees discussed unionization while at work in the near vicinity of their immediate supervisors, a large number signed cards, some having been solicited and signing cards during company-paid time, and Van Degrift solicited the signature of his super- visor, Victor Courange (also seeking Speer's, ac- cording to uncontradicted testimony by Speer10), there is not even a claim by the General Counsel, let alone any evidence, that any employee, but Al- len, was "unlatched" from his job because of union activity. The lack of credible evidence that the Respon- dent knew or believed that Allen harbored pro- union sympathies is of itself sufficient for a holding that the General Counsel has not carried his burden of proof regarding the discharge . But it is a fact, in addition, that Speer's testimony that Allen stood by and watched while there was work to be done in cutting the line and was both deficient and dis- obedient in the means he used to turn the nuts on the occasion in question is uncontradicted. The General Counsel, however, pursuing his claim that the "last straw" was a pretext for the dismissal, stresses Allen's 17 years of work in the drilling in- dustry (but without details of that experience) and makes light of the incident in his brief as "relatively insignificant," but this argument, it seems to me, overlooks the fact that the testimony of Speer and Brothers depicting Allen as making a practice of standing idly by while he had work to do is also un- contradicted. To be sure, these claims are pretty much generalizations, without the solid foundation of objective evidence, and Allen testified that his work was never criticized, but the fact still remains that the allegations that Allen did not carry his share of the crew's work stand uncontroverted. Moreover, Speer testified that he did take Allen to task for neglect of his work, and in view of the sub- stantial deficiencies in Allen's testimony on other subjects and of the undisputed evidence of short- comings in his work, I see no reason to accept his claim that he was never criticized over Speer's testimony to the contrary. Even if one accepts the view that the "last straw" was a minor incident, the credible evidence as a whole yields no more than a suspicion that an un- lawful motive underlay the discharge, and such a suspicion is much diminished, it seems to me, by the undisputed evidence, which I credit, that Allen stood idly by from time to time when he had work to do, including the occasion when the crew had the line-cutting chore. Suspicion alone , whether large or small, will not suffice to carry the General Counsel's burden of proof. Summarizing the matter, I hold that the General Counsel has failed "' Emmett McDonald testified that he sought Speer 's signature, but that does not mean that Van Degrift did not do so 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to sustain his burden , taking into account the fact that Allen was but one of a large number of em- ployees who signed cards; the lack of any credible evidence that he did anything more of substance in support of the Union than to sign a card ; the failure of the record to provide a plausible explanation why the Company should single Allen out for discharge for prounion activity or sentiment, and refrain from discriminating against any other pro- union employees , at least one of whom was known by one or more supervisors to be soliciting support for the Union ; the absence of any credible evidence that Speer or any other supervisor knew or believed that Allen supported the Union; and, finally, the uncontradicted evidence of shortcomings in Allen's work. C. Allegations of Threats of Economic Reprisal and Changes in Working Conditions; Supervisory Predictions of Bad-Faith Negotiations ; and the No- Solicitation Rule The General Counsel relies for much of his case imputing threats to the Company on the testimony of one James T. Dayton, who entered Moran's em- ploy in October 1966, signed an authorization card for the Union while so employed, and was discharged by Durkee on or about January 16, 1967, because his wages had been garnisheed. His immediate supervisor was a driller , B. B. Trout, who was subject to supervision by a toolpusher, Kenneth R. Allen , and, on occasion, by a "relief" toolpusher, Ernest D. Combrink. Several weeks before the election, probably in the early part of December 1966, following one or more " training " meetings of management person- nel, at which the Company's attorney counseled su- pervisors , including Allen and Combrink , regarding rights and obligations of management in dealing with union activity, Allen held a meeting of Trout's crew in their "doghouse" during their paid working time. Allen 's purpose was to discuss unionization and the coming election, and there is no dispute that he did so, and invited questions from the crew, but there is material conflict between Dayton, who was present , and Allen as to what was said by the latter. According to Dayton, Allen told the crew that the Company had operated for 42 years "without the union ... and did not need it now "; and at some point thereafter , replying to a query by an employee named Grossnicklaus whether the men would be paid time and a half for their "boat time" (instead of straight time that they were receiving), Allen said that there would be no such extra pay, and that if the men "raised any heck" about the matter , the "doghouse " would be moved to the beach , and the employees could change their clothes there . Dayton further testified that in response to a question from an unidentified em- ployee " about vacations ," Allen said that since the start of solicitation of union support among the men, only drillers were entitled to vacations, although other crewmembers had been given them previously; and that Allen also told the crew that if the employees chose union representation, the hourly wage rate paid motormen (also called "cathead men") would drop from $3.85 to the "union scale" of $3.55. Allen in effect denied that anybody inquired about "boat time ," and that he made the state- ments about vacations and a reduction in the mo- tormen's rate attributed to him by Dayton. His ver- sion is, in substance , that he told the men that he would not threaten them , inquire as to their union attitudes , or make any promises ; said that he wished that they would read "literature" (on union matters , presumably ) mailed them by the manage- ment ; urged them to vote as they thought best, but expressed the hope that they "give us [the Com- pany] every opportunity "; invited questions; in reply to a query as to the Company's "vacation pol- icy," he said that he assumed it was the same at the Long Beach site as in another area, where crewmembers were given a week 's paid vacation if they worked a full year without " loss time" (as from injuries ), and the driller was allotted an addi- tional week if his crew worked the year without sustaining an injury ; he said that the Company's scale for motormen was 30 cents above that of the Union ; and upon inquiry whether union representa- tion would lead to a reduction in the scale , he said that he did not know whether the Company could do that, and that he had been told that the manage- ment could not threaten the men with a wage cut. Dayton's testimony is also at odds with that of Combrink as to the content of remarks the latter made to the same crew during paid working time about a week or two after Allen's meeting with them . Dayton quotes Combrink as telling the men that " if we went union " employees "would get the better jobs" on the basis of seniority , instead of ability. According to Dayton, too, Combrink said that if the employees "did go union, they [ Moran) would make it rougher on the hands "; " told us about the drop in pay for the cathead men from $3.85 to $3.55 an hour" in the event the employees chose union representation; and stated that "any- body caught soliciting on company time would be terminated." Combrink, on the other hand, asserting that Dayton had misquoted him on the subject of seniority and motormen's wages, testified that he told the crew that the Company promoted em- ployees on the basis of seniority and ability, whereas "union advancement" (in other words, as I infer, promotion under union contractual terms) is based primarily on seniority; the Company's wage scales were equal to or higher than those paid by drilling enterprises in the area under union con- tract; and if Moran were subject to the same con- tractual provisions, its motormen would be receiv- MORAN BROS ., INC. 1135 ing about 30 cents an hour less than their present rate. He denied that he told the Trout crew that in the event of unionization the Company "would make it rougher on the hands," but testified that on one occasion in mid-December, he told two mem- bers of the Trout crew, Stegall and Lopez, whom he saw passing worktime in small talk, that "if the union got in there would not be any more" of such loafing." It is not clear whether the General Counsel con- tends that the alleged "boat time" statement by Allen was unlawful. He makes no such claim in his brief, but, in any case, even if one credits Dayton's testimony on the subject, the record, upon careful examination, falls short of establishing that the "boat time" query and the alleged response were in any way related to the subject of unionization, al- beit Allen's object in calling the meeting was to discuss union representation and the election. As for the credibility issues , the fact that both Combrink and Allen, as supervisors charged with misconduct, are interested witnesses is a matter to be taken into account, but so is the possibility that Dayton's discharge has colored his testimony. That possibility is underscored, it seems to me, by the fact that although Dayton identifies two other non- supervisory employees in his crew, B. J. Stegall and Charles Grossnicklaus (both, incidentally, union authorization card signatories ) as present on the occasion in question, the General Counsel neither called the two men to support Dayton nor ex- plained the omission . The fact that they are no longer employed by the Company does not of itself establish that they are unavailable for service of process . The omission to call them or explain their absence detracts from the weight of Dayton's testimony. Moreover, to say, as does Dayton, that Combrink "told us about the drop in pay for the cathead men" in the event the employees chose union representation tells us little of what Combrink said "about" the matter . The way Dayton puts it ap- pears to me to be more his assumption of Com- brink's purpose , couched as a summary and telescoped characterization of subject matter, rather than a substantially correct quotation of what Combrink actually said. In contrast, Com- brink gives a circumstantially detailed account of the terms and context of his remarks concerning the cathead scale , summing up to a legally pro- tected comparison of rates paid by Moran with those paid in the area under union contract, and a permissible statement that the Company's motor- men would be receiving a lower rate if they were subject to the contract terms in effect. Allen's ac- count of the context in which the subject of the cathead rate arose, and of what he said in that re- gard , is also circumstantially and plausibly detailed in contrast to Dayton's testimony which has Allen making a bald statement to the effect that the rate would be reduced to $3.55 from $3.85 in the event of union representation. One may doubt, to say the least, that Allen would voice so naked a threat after receiving the legal orientation described in the record, and I am persuaded that much as in Com- brink's case, Dayton has put an abbreviated, in- terpretative gloss on Allen's comparison of the Company's cathead scale with that paid under union contract, instead of quoting Allen with sub- stantial accuracy. Similarly, Dayton's claim that Combrink said that, in the event the employees chose unionization, they would be given "better jobs" on the basis of seniority, instead of ability, appears to me to be an abbreviated interpretation. Under cross-examina- tion, Dayton explained on this version somewhat by conceding that what Combrink said was that at Moran "ability comes first [in making "better job" assignments], but if we had a union here, and union contracts, it goes by seniority" (emphasis supplied). This suggests a comparison by Combrink between Moran's seniority policy and that provided by the Union's contracts, and to that extent gives support to Combrink's version of his relevant remarks, which amount, in substance, to a legally permissible comparison between promotion or job assignment standards followed by Moran and those in effect under the Union's contracts. Combrink's account of what he said about seniority practices is more plausibly detailed, in my judgment, than that of Dayton, and the more dependable of the two. There is neither dispute nor reason to doubt that Combrink admonished Stegall and Lopez that there would be no loafing of the type in which they were engaged "if the union got in"-a policy that could "make it rougher" for loafing employees; and in view of the vein of abbreviated conclusional as- sumption that runs through Dayton's account of Combrink's talk, I am unable to overlook the possi- bility that Dayton either overheard the admonition to Stegall and Lopez or learned of it from one source or another, and has interpolated his un- derstanding of what Combrink said on that occa- sion into his account of Combrink's talk to the Trout crew. However, I think it likely that Combrink did tell the Trout crew, as Dayton testified, that "anybody caught soliciting [meaning, plainly, for the Union] on company time would be terminated." According to Durkee himself, he had instructed the super- visors at the orientation meetings that "union ac- tivity or the interference through [sic] union activi- ty could not be done on company time and proper- ty," and it is thus plausible that Combrink would issue instructions prohibiting union activity on "company time" to the crews under his supervision. " the record e+tahh+hes that Stegall was a member of the Trout crew As Lopez was working with Stegall , l infer that Lopez was also a member of the crew 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed , Combrink quotes himself as directing two drillers, Victor Courange and William Calderwood, to tell the men in their crews that they were subject to termination if they engaged in "any union activi- ty ... during working time that interfered with the work in any way." Moreover, Combrink's testimony actually contains no denial that he ad- monished the Trout crew on the subject of solicita- tion , as described by Dayton . 12 In other words, a number of factors outside Dayton's evidence presuasively support his claim that Combrink thus admonished the crew, and I credit Dayton in that regard, notwithstanding my views of other aspects of his testimony. Reserving the admonition for added discussion at a later point, the sum of the matter is that Dayton's testimony does not qualitatively outweigh that of Combrink and Allen in conflict with it, and, in fact, is less plausible; and thus, again with the reserva- tion noted above, I hold that the General Counsel has not established the allegations of misconduct he rests on Dayton's testimony.13 Nor am I able to base a finding of violation of the Act on testimony by Dayton attributing certain re- marks to Trout. According to Dayton, shortly after his discharge by Durkee, Trout telephoned him and stated that Superintendent Hale had told him that the wage garnishment was the reason for the ter- mination , and that the Company "was going to weed out all the hands soliciting for the Union be- fore they had a reelection ." At still a later point in the day, Dayton also testified, Trout came to his home and told him " more or less" the same thing. The General Counsel views Trout's alleged remarks about weeding out employees who had solicited support for the Union as an unlawful threat charge- able to the Company. Trout did not testify, and thus Dayton's testimony quoting him stands uncontradicted. But that by no means disposes of the matter . Hale flatly denies making the statement Dayton quotes Trout as repeating ; and the record establishes , and I find, that the Respondent made reasonable efforts to locate Trout with a view to securing his attendance "Testimony by Combrink that he does not remember "addressing" an employee named Emmett McDonald (who was not in the Trout crew), or saying anything in his presence , on the subject of "passing out authoriza- tion cards" has no bearing on the issue under consideration. " I make no finding that the Company violated the Act as a result of Combrink's statement to Stegall and Lopez regarding loafing in the event of unionization Evidence of the incident appeared for the first time near the close of the hearing in Combrink 's testimony under cross-examination, and it is obvious that the General Counsel's aim in eliciting the testimony was to suggest , as support for Dayton, that the incident was actually the oc- casion when Combrink , according to Dayton, told the Trout crew , that in the event of unionization , Moran "would make it rougher on the hands " However , I have not credited this claim by Dayton . and the record will not support a finding that the statement addressed to Stegall and Lopez was made at Combrink 's meeting with the Trout crew Moreover, as one may fairly infer , the thrust of the remark to Stegall and Lopez was to rebuke them for loafing rather than to threaten them with reprisal for union activi- ty Taking all factors in to account , it would not , in my view, effectuate the policies of the Act to base a finding of violation of the statute or of inter- ference with the election on this isolated statement regarding the impact of unionization on loafing " Details of the Respondent 's efforts may be found in a postheanng as a witness, and did locate him in Nevada; that it had good reason to believe that he would attend; that it learned on the day the hearing opened that he had left his Nevada employment the day before, and had "departed for parts unknown"; and that Respondent has made reasonable efforts to produce Trout as a witness, but has been unable to do so through no fault of its own. 14 Trout's alleged remarks could not have affected the election held about 2 weeks earlier , and thus taking into account Hale's denial , Trout's minor su- pervisory status , and his unavailability as a witness, it would be fair for those reasons alone, it seems to me, to pass over the alleged incident ; but, in addi- tion, I am far from persuaded that Dayton's testimony is an adequate basis for the unfair labor practice finding the General Counsel seeks. Dayton's testimony on other subjects , as previously pointed out, lacks quality, evidencing some disposi- tion to put his own interpretative gloss on remarks regarding unionization made by supervisors, and the fact that he was discharged raises the possibility that he harbors some bias against the Respondent. Moreover , some aspects of his relevant testimony do not hang together easily. He was admittedly discharged by Durkee who told him it was "because of the garnishment ," and it thus does not quite ap- pear why Trout should call him later that day and reiterate the reason, and should repeat it still again the same day in person . It is not , to be sure , incon- ceivable that Trout followed such a course, but it nevertheless seems to me an unexplained oddity that he did, and, what is more, in view of the indi- cations that on other occasions Dayton has sub- stituted abbreviated interpretations of his own for what he heard , I see little reason for confidence in testimony such as his claim that Trout said "more or less" the same thing to him on the second occa- sion as on the first . In short , it appears to me that Dayton's uncorroborated testimony purportedly quoting the unavailable minor supervisor , Trout, is qualitatively inadequate to support the finding of violation of the Act sought by the General Coun- sel.'s stipulation of the parties reflected in a letter , dated October 24, 1967 (Joint Exh I ), and another dated October 26, 1967 (Joint Exh 2) Both are hereby incorporated in the record Findings as to the Respondent's ef- forts to locate Trout and to secure his attendance are based on the stipula- tion " According to Dayton , while on a boat with other employees bound for work on the first day of the election, he heard a driller, L J Nichols, tell "other drillers" aboard the vessel that " if any of his hands voted for the Union, he wanted to know about it " The statement , if made, implied a threat of reprisal against employees who voted for the Union Nichols de- nies that he made the statement The General Counsel does not allude to the alleged incident in his brief , and it is not clear whether he seeks a find- ing that the Company violated the Act as a result of the claimed remark. Be that as it may. the remark, if made , was addressed to other supervisors in the course of conversation with them , and there is no evidence that Nichols was aware that he was overheard by any nonsupervisory employee Thus even if one credits Dayton, the record will not support a finding that the Company violated the Act as a result of the remark . Moreover , in view of shortcomings in Dayton's testimony , taken as a whole, I am unable to find any greater qualitative weight in Dayton's uncorroborated claim than in Nichols' denial , and thus hold that the General Counsel has not carried his burden of proof in the premises MORAN BROS ., INC. 1137 The record, moreover, does not establish a claim by the General Counsel that at a meeting of em- ployees at a restuarant , held under the Company's auspices about the end of November 1966, Durkee, addressing them, made threats to the effect that if they chose union representation, the Company would stall negotiations and thus prevent effective bargaining , and that in the event of a strike, the strikers would be discharged. Of the many em- ployees present, the General Counsel called but two, Emmett L. McDonald and Lawrence Thomason, regarding the meeting . McDonald testified that "the Union was brought up, and Mr. Durkee said that if there was a strike ... Moran could bring in more employees, and we would all be terminated, and that Moran did not have to agree to the Union's terms, and that they would stall it" (meaning , as may be inferred , that Moran would stall negotiations to prevent agreement). Thomason's version of Durkee's remarks will be summarized at a later point. Durkee denied saying anything about delay in negotiations , asserting , in substance , that one or another of the employees present remarked in the course of discussion that negotiations took time, and that delays had taken place in certain contract negotiations in Nevada . Durkee 's version of his re- marks on the subject of terminating strikers follows below. Q. (By Mr. Powell) ... Would you indicate if you had any discussions with the men at these meetings about strikes and what was said? A. Yes, sir . I will. The contract with Thums states that we have certain obligations , and one of them is to operate the rigs and without employees we are not meeting our contractual obligations if we are not operating the rigs. I told the men anytime that employees unex- cused , that it would be the basis for termina- tion , regardless-as long as it was an unex- cused absence , and if this implied strikes, if it is an unexcused absence because of an economic strike or something of that sort, I be- lieve this would fall under that scope and in- asmuch as our contract calls that we operate the rigs, that we plan to operate the rigs, that as long as the labor pool in this area was such to draw from, that we would try to get people to operate the rigs and if it got to the point it was not sufficient, we would bring people-we would hire people as we could to continue operating those rigs to meet our contractual obligations... . strike? Are you sure you use the word "Ter- minated"? A. Would you repeat that question? Q. When you discussed the possibility of a strike as to what would happen, did you use any other word in referring to what the com- pany would do? A. Yes. I did not say "Terminated." I said replaced. The men would be replaced. Although Durkee's remarks about union matters took about 30 minutes, the evidence on the subject offered by the General Counsel is scant and weighted with conclusional interpretation. This is evident in McDonald's claim that Durkee said that the Company "would stall it," for he admitted under cross-examination that Durkee had not used the term "stall"; and then, asked to state what Dur- kee had said on the subject, he replied, "I can't re- member his exact words." There McDonald's testimony in the matter came to rest, leaving one to guess what it was that Durkee had said that led him to his interpretation. Thomason adds no significant weight to McDonald's account. He gives no support to the claim that Durkee had threatened to ter- minate strikers, and observing that there was not much that he could remember, he stated, with manifest vagueness, that Durkee had said that "We would not make a whole lot of money, and the Union would probably take $7-or how much it was"; and then, asked whether Durkee had said "anything about a contract," he testified: "Well, it seemed to me like I remember him saying something about a contract, and I am not going to be for sure about that, but he said something about it. He could, you know, be late on it, or something such as the matter now, I don't know." Sub- sequently, stating that he did not know "how I would go about wording it," in obviously conclu- sional vein, he pictured Durkee as "say[ing] something about ... if he ... wanted to, he could be late on it [meaning negotiations, apparently] ... and just linger along , more or less." I am unpersuaded that either McDonald or Thomason has a reliable recollection of what was said at the meeting about contract negotiations, and that view of the matter is bolstered by the unex- plained omission of the General Counsel to call any others of the many employees present at the meet- ing to testify regarding it. In other words, he has not established the relevant claim by evidence of pre- ponderant weight. Nor does the record establish an unlawful threat to discharge strikers. Rather, I find it more reasona- ble to construe Durkee's remarks, as McDonald quotes them, as having the legally permissible meaning that in the event of a strike over "the Union 's terms" ( in other words , an economic * * * * * strike), the Company would permanently replace Q. (By Mr. Powell) In your statements to the men did you ever use any other words about what you would do if the men went on the strikers, and their employment would thus be terminated. This interpretation is bolstered by testimony by McDonald, under cross-examination, agreeing that Durkee had told the employees that 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moran "could permanently replace the strikers." In any case, Durkee 's version , with its uncon- tradicted reference to Moran's contract obligations and the consequent necessity of continuing its operations , and taking into account the conclu- sional , abbreviated content of McDonald's version of Durkee 's remarks, appears to me to be closer to the facts than McDonald 's description . I credit Dur- kee's account and find in it no threat of reprisal for engaging in a strike . That view of the matter is unaffected by the fact that Durkee alluded to a pol- icy of " termination " for "unexcused absences," for I take the meaning of his relevant remarks, read as a whole, to be that in the event of "an unexcused absence because of an economic strike," the Com- pany would hire permanent replacements for the strikers to fulfill its contract obligations resulting in "termination " of the strikers . Such a course would not be unlawful under the long -established doctrine of N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333.16 McDonald also imputes to a driller , Courange, repeated remarks prior to the election that Moran "could stall" in contract negotiations with the Union. As the evidence establishes without conflict, McDonald and Courange have known each other for about 6 years; are friendly; and habitually, with Van Degrift and another employee, drove to and from work together in a carpool, the members of the group rotating the driving chore . In the course of such rides , as the record also establishes , without dispute , the members of the group would exchange views about diverse matters , including unionization, and during the organizational campaign before the election , while going to or from work , responding to inquiry from his companions as to his opinion of the Union, Courange expressed approval, and on one occasion or another during the period signed an authorization card at Van Degrift 's request. However , on subsequent occasions prior to the elections , while riding to or from work , he told his companions , in substance, that he had reversed his view of the desirability of union representation. The material question is whether in the process of expressing his change of attitude , he "kept telling us" (the other riders ), as McDonald quotes him, "that Moran could stall it." Courange denies that he used the word "stall," and testified that all he ever said on the subject of bargaining was that "Moran could probably negotiate." Under cross-ex- amination , McDonald conceded that he "gathered from Courange 's remarks the meaning that "Moran could stall," but that he could not recall the "precise words." The word "stall" is a key term in the remarks imputed to Courange , and it is evident '" Although I have credited Durkee's version rather than McDonald's, I do not believe a claim made by Durkee to the effect that he did not refer in his remarks to the termination of strikers , but instead told the employees that strikers would be " replaced ." This claim was made in response to pointed and suggestive interrogation by the Respondent 's counsel after Durkee had given his version in which he expressly alluded to "termina that McDonald's testimony, standing alone, leaves one at a loss to know whether Courange used it or whether McDonald is equating with it some other word which may or may not have its thrust. There is nevertheless good reason to believe that Courange made remarks in the vein attributed to him. Van Degrift, much like McDonald, pictures Courange as initially voicing approval of union representation to his companions , but as later ex- pressing the view that it was not "such a good thing," and that "if the Union got in, Moran could stall and we would not get a contract, anyway." That the Company "could probably negotiate," must surely have been obvious to all concerned, without any reminder from Courange, and why he should have any occasion to say something so self- evident does not plausibly appear. In contrast, I think it plausible that in the context of his changed position, he would give as his reason his opinion that the Company "could" frustrate union representation by stalling contract negotiations. This is the thrust of Van Degrift's version, and I credit his account, without regard to the one given by McDonald. But it is quite another matter to say that the Company is derivatively responsible for Courange's remarks. He was, to be sure, a supervisor, but he was in the lowest supervisory echelon, and was friendly with McDonald (and probably the others in the carpool), and, as is evident, his fellow riders treated him as a fellow employee, rather than a representative of management, soliciting his opinion about the Union as part of a general pat- tern of chit-chat about matters in which they had a common interest . The shared feeling of interest is perhaps best exemplified by Courange's execution of a card at Van Degrift's request. I think it likely that the employees in the carpool would view Cou- range 's remarks that the Company "could stall" as the expression of his reason for changing a view- point they had solicited in the first place, and as the voice of a companion, fellow rider, and fellow em- ployee, rather than as the voice of management. The Company, in short, is not properly chargeable with responsibility for Courange 's remarks, and thus I hold that it neither violated the Act nor inter- fered with the election by force of them. I reach the same end result with respect to a similar remark made by Combrink to Van Degrift at the latter's home one evening early in December. They have been friendly for some years; their wives are good friends; each couple has dined at the home of the other; and the occasion in question was dinner at Van Degrift's home, attended by tion," as set forth in the excerpt from the transcript above t see no need to explore the motive for the semantic amendment, for I am satisfied on the basis of Durkee 's somewhat detailed initial version of what he said, and of McDonald 's testimony , that Durkee did, in terms or substance, state that Moran could hire permanent replacements for economic strikers, and thus terminate the employment of the latter MORAN BROS ., INC. 1139 Combrink and his wife as guests of the Van Degrifts. As Van Degrift testified , in the course of a "general conversation" between him and Combrink, while seated in the living room waiting for dinner to be served , Combrink remarked "that if the Union did get in , out there ... Moran could stall on negotiations on this contract , and it would not do us any good , anyway.""' The General Counsel would impute a violation of the Act to the Company on the basis of Combrink's statement . Such a remark by an employer to an em- ployee could , of course , in given situations , tend to dilute the employee 's interest in union organization, and thus be an abridgment of his Section 7 rights; but, in the setting portrayed by the record, the General Counsel , in my view , makes far too much of the episode. Combrink was at the Van Degrift home as a guest , and not on business of any kind , except that of dining and socializing with his wife and their hosts . He plays no role in management bargaining policy and his supervisory duties are substantially confined to the work at the drilling site . Against that background , to treat his remark that the Com- pany "could stall " in negotiations , expressed in the course of general dinner party chit-chat with his host , as an abridgment by the Company of the host 's statutory rights as an employee is to use the Act as a straightjacket for social behavior in the liv- ing room rather than as an expression of the na- tional labor policy embodied in the Act. I conclude that it would not effectuate that policy to make a finding that the Company either violated the Act or interfered with the election as a result of Com- brink 's living room remark. The evidence amply establishes that the Com- pany had a policy of forbidding union activity by its employees during "company time"; and that some employees , at least , were informed of the rule, and that they were subject to discharge if they violated it. Combrink, as previously described, voiced that policy, in substance , to the employees in the Trout crew . And on an occasion prior to the election, Courange, as he testified , noticing that Van Degrift was absent from the rig during working time, ad- monished Van Degrift, upon his return, not to "pass the union cards out on Moran 's time." 18 Calderwood also voiced some restriction regard- ing authorization cards. There is no dispute that on the occasion in question in November, Calderwood, McDonald, an employee named Leslie Alexander (also called "Pinky"in the testimony), and Van Degrift , were in a group on their way to work, ap- proaching the boat that was to take them to the island , and that Calderwood made some remarks as Alexander gave, or was preparing to give, Van Degrift an authorization card he had signed at Van Degrift's behest, but there is conflict as to the course Calderwood's remarks took. According to McDonald, Calderwood said "that if Ernie Com- brink seen anybody passing out cards ... he would be terminated ." Calderwood, on the other hand, stating that Alexander was in his crew, testified that what he did was to tell Alexander to turn the card over to Van Degrift before starting on "company time" (which would begin as soon as they boarded the boat). The undisputed evidence that Alexander was in Calderwood's crew, that Van Degrift and McDonald were not, and that Alexander's paid time was shortly due to start upon boarding the ves- sel gives plausible point to Calderwood 's version of the incident . Moreover , the remarks quoted by Mc- Donald were allegedly made to Van Degrift; yet the latter , although testifying for the General Counsel on the subject of misconduct imputed to the Respondent , was neither asked about the incident by the General Counsel nor gave any testimony re- garding it . I am unable to discount this omission in the light of indications in the record that Mc- Donald, although purporting to quote supervisory personnel on matters pertaining to unionization, has evidenced a faulty recollection and a disposi- tion to come to its aid with conclusion and assump- tion . I credit Calderwood. Under long-established doctrine, a rule prohibit- ing employees from soliciting support for a union on the employer's property during "nonworking time" is presumptively invalid "both as to [its] promulgation and enforcement"; and, conversely, a rule prohibiting such solicitation during "working time" is presumptively valid, "in the absence of "Combrink admittedly has a faulty recollection of what he said on the occasion in question He testified that it is "quite possible" that there was a discussion "of the union ," and that he expressed "views as to what would happen " in the event of union representation Then , although stating that his memory "on the question . actually is very vague ," and that he does not recall how the subject arose , he testified that what he said regard- ing negotiations was that he had rend in a "union labor" publication about negotiations between a union [unidentified] and "numerous . compa- nies," and that he did not see "how it would do them any good , because I know they have been negotiating for two or three years " Van Degrift ap- peared to me to have a better recollection of the occasion , and I credit his testimony regarding the episode '" Apparently referring to the same incident , Van Degrift and McDonald quote Courange , in substance , as telling the crew that "somebody" ("on our rig ," according to Van Degrift ) was passing out cards , and that he should stop doing so According to McDonald, this happened about an hour after he had asked Speer on the rig to sign a card, and had given the latter five cards . However , Speer testified that Van Degrift was the only employee who solicited his signature Especially if McDonald is telling the truth about Speer 's solicitation, a statement by Courange that "somebody on our rig" had been passing out cards , and that this should be stopped, would reasonably convey the meaning that he was referring to union activi- ty during working time In that context, the substance of the admonition as described by Van Degrift and McDonald does not differ materially from Courange 's sersion of what he said In any case, Van Degrift actively sol- icited support for the Union , even securing Courange's signature on an authorization card , and it is thus plausible that Courange , who rode in a carpool with Van Degrift and knew that he "always" carried authorization cards on his person , would connect an absence by Van Degrift from the rig with union solicitation Moreover. Courange's superior, Combrink, ex- pressly cautioned the trout crew against the use of "company time" for union activity, and, as will appear later, Calderwood, also subordinate to Combrink, told an employee not to use "company time" for such activity I am persuaded that Courange would similarly expressly allude to "Moran's time" in a comparable context, and thus credit his sersion of w hat he said 353-177 0 - 72 - 73 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence that the rule was adopted for a discrimina- tory purpose ... and [is] presumptively valid as to [its] enforcement, in the absence of evidence that the rule was unfairly applied."19 In his brief, the General Counsel, noting that there are occasions on the rig when employees "are not required to pay strict attention to the work" (as, for example, while waiting for cement to harden), and pass the time in talk unrelated to their duties, argues that the supervisory prohibitions against union activity during "company time" (and, presumably, "Moran's time") are presumptively in- valid because they would forbid union solicitation or other union activity on such occasions. This, it seems to me, is an overly literal reading of "work- ing time" as used by the Board in Walton and kin- dred cases. Followed to its logical result, as the General Counsel sees the presumptive validity doc- trine, it would apply only to occupations in which employees must pay such "strict attention" to their work as to preclude any time for talk unrelated to it. The doctrine, in my view, was not designed to reach only such robot-like functions, but, rather, to encompass the time for which an employer pays, and to which he is entitled, for use in his opera- tions. Thus the statements made by Combrink, Courange, and Calderwood amounted, in sub- stance, to expression of a presumptively valid rule against the use of working time for union activity.20 A "discriminatory puspose" for the rule is not established, moreover, by the fact that its prohibi- tion of solicitation was, as the complaint puts it, "limited to union activity," or that the rule was an- nounced only after a union organizational cam- paign began; nor by the absence of evidence that the rule was necessary to maintain production and efficiency.21 Nor do I find merit in the General Counsel's claim that the rule was unfairly, and thus unlaw- fully, applied. The position rests substantially on the fact that the Company itself used the paid time of its employees (as at meetings convened by the management ) to give them its views and opinions against unionization, but the contention is untena- ble in the absence of evidence that application of the ban "truly diminished the ability of the [Union] ... to carry [its] messages to the employees."22 There is no showing to that effect; on the contrary, it is evident from Van Degrift's testimony that he, at least , engaged in substantial efforts during his paid time to enlist support for the Union, and that ` w Walton ,Muiiufat twin( (ompunt, 126 NLRB 697, 698, siting N L R B t United SteehiorAen of 4nierie u, 357 US 157, and Republic 4tiation (or- poration, 324 US 791 Stoddard-Quir/ Ma e/ai tit rtnq Co , 138 NLRB 615, modified rules governing distribution of union literature laid down in Wal- ton, but left untouched those dealing with oral solicitation d,, the record does not establish whether Alexander had any function to perform during his paid "boat time" of sonic 10 to 20 minutes, apart from receiving transportation, but by noting this posture of the record , I intend no implication that I would reach a different result as to the legality of Cal- employees from time to time, although supervisors were nearby, held unimpeded discussions of unionization while at their work. The sum of the matter is that the record does not establish either a violation of the Act or inter- ference with the election as a result of expression or enforcement of the rule banning solicitation or other union activity during "company [or Moran's] time. "23 The General Counsel attributes improper re- marks on two occasions to a toolpusher named E. B. White, resting his claim as to one incident on Van Degrift's testimony, and as to the other on Mc- Donald's. Stating that he could not recall the date, Van Degrift testified on direct examination that on an occasion when he was at work alone near the rig, White said to him that "he was for organized labor, but ... could not see what the men could gain out here, and that if the Union did get in , the first thing Moran would do would be to cancel their in- surance." White testified that he spoke to Van Degrift "nearly every time we worked together," but never with respect to "union matters," and specifically denied that he made the remarks in question. There is no dispute that McDonald and White had some conversation on the subject of union representation and the motormen's wage scale, but there is conflict about the period and course of the discussion. According to McDonald, on an occa- sion several days after the election, while he and White were walking toward the "doghouse" to prepare for work, White remarked that "if we went union , we would have trouble keeping motormen, because they would have to take a wage cut" of 40 cents an hour. White, on the other hand, testified that his con- versation with McDonald about the motormen's scale occurred before the election, toward the end of December 1966. His version is that in "passing the time of day" while walking from the "dog- house," McDonald brought up the subject of unionization with a remark that there was talk that "if we vote union ... they were going to cut the motormen 's wages ," and asked if White knew what the union scale was; and that White replied that he did not know, but that it was probably 35 cents an hour less than Moran's, and that "Moran would be perfectly in their rights if they did pay union scale, if the organization voted union." According to White, too, some four or five other employees also derwood's statement were it the fact that Alexander had no additional duty during his transportation t' Star-Bate ltidnHriet, Ine , 127 NLRB 1008, 1010-I I, and cases cited ee N L R B v United Stee/ uirAen of.4nierie a, 357 U S 357, 363 " I note, in passing, that a statement by Durkee to the effect that union activity on " company time and property" was forbidden was made to su- pervisors , and that there is no evidence that any rule prohibiting all such activity on "company property" was ever communicated to any nonsuper- visory employees Thus, however one interprets Durkee 's statement, it af- fords no ground for finding a violation of the Act MORAN BROS., INC. sought his opinion before the election whether "they [the Company] would cut the motormen's wages" in the event of union representation, and he replied, much as he did with McDonald, that "they [the Company] would be in their rights, if they did . . . pay union scale." The disposition of the credibility issues involving Van Degrift and McDonald does not require a cer- tification of the truth, which, because of faults of recollection or other human infirmities, may be hid- den from the very witnesses who profess it, but, rather, a determination whether the General Coun- sel has made his case on the issues with evidence of preponderant weight. In considering that question , one should not be misled by the fact that the General Counsel imputes much misconduct to the Respondent, for the reality is that almost all of his case rests on the testimony of 1 or another of 4 individuals, Dayton, Mc- Donald, Donald Allen, and Van Degrift, a very small proportion of a unit numbering about 60 em- ployees;2" and that the claims of misconduct al- ready considered , constituting almost all in the case, fail either for lack of sufficient evidence or because of some other reason. Moreover, Van Degrift and McDonald , who are kinsmen , solicited support for the Union (Van Degrift, so far as ap- pears, being the most active among the employees in that regard), and I am unable to consider either of them as a truly disinterested witness . That factor takes on added importance in the absence of any evidence, objective or otherwise, corroborating either in the claim made against White. As regards Van Degrift, in addition, the weight of his testimony is diminished by a variance of some substance between his initial version of what White said and that given under cross-examination. His first account makes no reference to any inquiry by White about union activity, but under cross-ex- amination , Van Degrift pictures White as opening his remarks with a question whether "anybody had been around passing out cards ." This shift raises some doubt as to the reliability of either version Van Degrift gives. What is more, there is good reason to question whether White would put a query of that kind to Van Degrift . According to the latter , under cross-examination, the conversation took place about November 10, but by that date, Van Degrift had engaged in substantial soliciting activities at the jobsite , securing the execution of a number of cards; at least two supervisors, Couran- ge and Calderwood, knew that he was seeking signatures ; the number of employees in the unit is relatively small; against that background, it is reasonable to believe that the management had some substantial awareness of Van Degrift's activi- ties; and I thus have some reservation that as late as ' The only other employees called by the General Counsel to support any allegation of misconduct were Thompson , whose testimony regarding Durkee 's speech has been considered , and one named Earl Bartlett, Aho, 1141 November 10, at least, White would ask Van Degrift, apparently the most active solicitor for the Union among the employees, a question, the very tenor of which suggests that White was totally unaware of any soliciting activity by Van Degrift. It is possible that White put such a query, but its con- tent, especially when considered in combination with its absence from Van Degrift's version on direct examination, serves to weaken confidence in Van Degrift's evidence. Furthermore, his testimony raises a question whether he said anything to White and reflects some equivocation on the subject. In one account he gave under cross-examination, although asked to relate the entire conversation as he recalled it, he does not quote himself as saying anything, not even in reply to the alleged query about distribution of cards, but at a subsequent point he quotes himself as saying "no" in reply to the question, and still later, in a context of inter- rogation whether anything was said in addition to White's remarks, Van Degrift testified that the discussion consisted of "just what I told you before, that he [White] said." (Emphasis supplied.) Perhaps White did make some or all of the re- marks Van Degrift attributes to him, but in view of the factors mentioned, I am unable to accord greater weight to Van Degrift's evidence than to that of White in opposition. That being the case, the record will not support the relevant claim of violation of the Act the General Counsel rests on Van Degrift's testimony. As for the conflict between McDonald and White, I find greater plausibility in White's version. For one thing, McDonald, by quoting White as using the phrase, "if we went union ," conveys some implication that the election had not yet been held; yet, according to McDonald, the conversation oc- curred several days after the election in which the Union failed to get a majority. It seems more likely that a hypothetical reference to designation of the Union as bargaining representative would be made before the election, as in White's version, than after that event, and McDonald's claim that the conver- sation followed the election suggests a faulty memory , as in his version of Durkee's speech. For another matter, his resort to conclusional in- terpretation in testimony he gave on various sub- jects provides some ground for suspicion that he is following a similar course with White's remarks, converting an observation by White that the com- pany would have a "right" to pay the "union scale" for motormen into a flat statement that their wages would be cut if the employees chose union representation . I credit White's version , as well as his testimony that before the election, in reply to queries by four or five employees whether the Company would cut the motormen' s wage scale in as will appear in detail at a later point , described one incident involving a supervisor named Woody Clark 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the event of union representation, he told them that it would be within its "rights" if it "did ... pay union scale." Accepting White's testimony, I nevertheless find impropriety in his remarks. The statement to Mc- Donald that in the event the employees chose union representation , Moran "would be perfectly in their rights if they did pay union scale," would reasonably convey the meaning that the Company would have a right to ignore the Union as bargain- ing representative in fixing wage scales and that if the Company chose, it would cut the motormen's rate it then had in effect to the level provided in union contracts. It matters not whether the state- ment was purposeful or merely the product of a mistaken notion of the Company's "rights," for in either case , the statement would carry a threatening implication that the employees' wages would be cut if the Company chose, irrespective of the selection of the Union as bargaining representative, and no matter what the Union did about the matter. Nor may the statement be passed off as an iso- lated remark by a minor supervisor in a climate of conflicting opinions generated by the election cam- paign . White's supervisory authority was of substan- tial proportions, and the fact that he had no authority to prescribe wage rates is of no moment, for the employees would have reasonable warrant to consider his voice as that of management. His own testimony reinforces that view, for it pictures some four or five employees as soliciting his opinion as to the impact of selection of the Union as bargaining representative on the Company's wage scales . The answers he gave them-opinions he could have chosen to withhold-carried much the same implication as the statement he made to McDonald, and the impropriety of that statement, and of the remarks to the other employees, was heightened by the fact that they were made during the course of organizational efforts by the Union and various employees , and almost on the eve of the election. The Company must accept responsibility for White's remarks to McDonald and the other em- ployees, and thus I find that the Company inter- fered with , restrained , and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8(a)(1) of the Act, as a result of White 's statement to McDonald that " Moran would be perfectly in their rights if 25 the findings of violation of the Act are not precluded by the fa Lt that they are based on the testimony of White, who was called by the Respon- dent , rather than of McDonald or any other witness called by the General Counsel The complaint expressly alleges threats by supervisory personnel , including White, and as the issue whether White made coercive statements to employees has been fully litig ated, it matters not who called the witness whose testimony establishes the misconduct , nor, for that matter , whether the statements neatly fit the label of"threats " See, among other cases . N L R B V Dal-Tex Optical Co., /pit , 310 F 2d 58, 61 (C A 5). N L R B v Puerto Rico Rayon Mtll i, 293 F 2d 941, 947 '" Findings as to the conversation are based on McDonald 's testimony Speer pictures himself as asking whether McDonald had voted for the Union , and after receiving an affirmative reply, as telling McDonald, "You they did pay union scale, if the organization voted union ," and of the similar statements he made to other employees, as found above.25 On the basis of these findings, I conclude, too, that Objection 5, alleging supervisory threats "that wage rates of employees would be reduced in the event the [Union] won the election," should be sustained; and that taking into account the content of White's remarks and the size of the voting unit, the misconduct found was of sufficient substance to prevent a fair election. Accordingly, I shall recom- mend that the election be set aside. The record also establishes an impropriety by Speer in a conversation he had with McDonald on the second day of the election at a time when the men in Speer's crew, who were on the graveyard shift and were the last of the employees to vote, were casting their ballots. McDonald was not in Speer's crew and had already voted. On the occa- sion in question, Speer encountered McDonald at the ring where the latter was then stationed, and asked him if he had voted "for that Union and a wage cut", and McDonald replied, "Yes, I voted for the Union, but if I was Union, they could not cut my wages" ( meaning , in other words, that if he were represented by the Union, the Company would be unable to cut his wages).26 The inquiry as to McDonald's vote may not be treated as merely an isolated instance of interroga- tion, for the query was harnessed to a coercive inti- mation that if the Union won the election, the Company would cut wages of employees, and the inhibiting vein in Speer's inquiry is of a piece with that in White's remarks to McDonald and a number of other employees, previously described. As in White's case, Speer's conduct is imputable to the Company, and thus I find that it abridged Section 7 rights of employees, thereby violating Section 8(a)(1) of the Act as a result of Speer's query whether McDonald had voted "for that Union and a wage cut." As McDonald had voted, and the last few em- ployees to vote were at the polls at the time of the incident, the record will not support a finding that Speer's misconduct constituted interference with the election. Finally, as regards alleged supervisory miscon- duct, there remains for consideration uncon- tradicted testimony by an employee named Earl Bartlett, who worked on the graveyard shift in don't want to vote yourself a pay cut and I sic I wages do you " ro this, ac- cording to Speer, McDonald replied, that " they are not going to lower those wages " I he fact that McDonald evidenced a faulty recollection on some subjects does not inevitably condemn all of his testimony that differs from that of others I gathered the impression that in giving his version, Speer was endeavoring to improve the flavor of his remarks, and that view is reinforced by the fact that it does not quite appear why Speer, having been told by McDonald that he had already voted, would ask McDonald, in effect, whether he wished "to vote yourself a pay cut " In any case, the two versions are not, in my view, greatly different , either carries a coercive inti- mation that wages would be cut if the Union won the election , and the same result follows from either MORAN BROS ., INC. 1143 Speer's crew, that in the early morning of January 4, 1967, several hours after Bartlett and the other members of the crew had voted (in other words, after the close of the polls, according to the sense of testimony by Speer), a toolpusher named Woody Clark, who supervised another rig, came by the one where the crew was working and remarked to Speer that " since we were in the Operating Engineers now there would be a 40 cents cut in the motor- men's pay." What would prompt Clark to suppose that "we were in the Operating Engineers now," when the Union did not win the election, does not appear, nor, in view of the fact that he and Speer were su- pervisors, is it clear what he meant by the term "we" in the context used (perhaps he assumed that the Union had won and intended an allusion to the labor-management relationship thus resulting), but, in any case, Clark did not testify, and although Bartlett 's testimony reflects a tendency to use col- lective pronouns such as "we" and "us" loosely, when his reference should properly be in the singu- lar, in the absence of contradiction, I credit him as to the content of Clark's remark.27 However, it is another matter to say that the Company violated the Act as a result of the remark. It was made to Speer, another supervisor, and not to the employees. As Bartlett testified, he was "out on the catwalk rolling pipe" at a point some 10 feet distant from Speer at the time he "overheard the remark," but there is no evidence that Clark in- tended his remark for the ears of anybody but Speer, and in the posture of the record it would be but a guess to say that Clark knew that anyone but Speer had "overheard" his statement or was even within earshot. In other words, I find the evidence insufficient to support a holding that the Company abridged the Section 7 rights of employees as a result of Clark 's statement. D. The Alleged Refusal To Bargain The fact that the Union served a bargaining request on the Company on November 17, 1966, and that a majority of the unit had signed authorization cards as of that time does not establish a bargaining obligation by the Company. The nub of the matter is that although White's re- marks to McDonald and other employees before the election warrant invalidation of the election results , neither that misconduct nor Speer's coer- cive remark to McDonald after the election is of sufficient gravity to demonstrate a purpose by the Company to reject the collective-bargaining princi- ple. Nor does the Company's omission to reply to the bargaining request evidence such a rejection. The Union had filed its representation petition on November 15, 1966, and in the context of events thereafter, the Company was warranted in antici- pating an election, which was in fact held, and in looking to its outcome as a measure of its bargain- ing responsibility. I find no unlawful refusal to bargain either before the election or since. Hence, I shall recommend dismissal of the averments of the complaint alleging such refusal. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with Respondent's operations described in section 1, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, and in misconduct affecting the results of the election, I shall recommend below that the Company cease and desist from the unfair labor practices found, and take certain affirmative ac- tions designed to effectuate the policies of the Act , and that the election be set aside. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following conclusions of law: 1. Moran Bros., Inc., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. International Union of Operating Engineers, Local Union No. 12, AFL-CIO, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. All derrickmen, motormen and rotary drill helpers employed by the Respondent in its opera- tions in California, excluding all drillers, tool- pushers, office clerical employees, professional em- ployees, guards, watchmen, and supervisors as defined in the Act, constitute, and have constituted at all material times, a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them " I do not , however , credit Bartlett 's testimony on direct examination that the remark was made to "us," or, in other words, to the crew It is clear from Bartlett 's testimony us a whole that he is using the word " us" loosely and inaccurately , and that the remark was in fact made to Speer Moreover , a claim by Bartlett that "we" heard Clark make the statement to Speer is a conclusion meaning no more than that " I overheard the remark" (to quote Bartlett at a later point). Apart from Bartlett's as- sumption, there is no evidence that any other employee in the crew heard the remark to Speer 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Section 7 of the Act, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and 2(7) of the Act. 6. The record does not establish any unfair labor practices alleged, except as found above. RECOMMENDED ORDER the election held on January 3 and 4, 1967, be set aside. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " t" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that: 1. Moran Bros., Inc., its officers, agents, succes- sors, and assigns , shall: (1) Cease and desist from: (a) In any manner constituting interference, restraint, or coercion in violation of the said Act, interrogating any employee as to how any employee voted in any union representation election, or as to any employee's activities or interest in any labor or- ganization. (b) Directly or indirectly threatening, or other- wise informing, any of its employees that the rate of pay or wages of any such employee may or will be reduced, or that the Company will have a unilateral right to reduce such rate or wages, in the event that its employees designate a labor organization to represent them. (c) In any like or related manner interfering with , restraining , or coercing employees in the ex- ercise of any rights guaranteed them by Section 7 of the Act. (2) Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Post at each of its places of business in California , and "doghouses " or other premises maintained for employees at its jobsites in Califor- nia for the purposes of eating meals and changing clothes, copies of the attached notice marked "Appendix ."28 Copies of said notice , on forms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent 's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 2. So much of the complaint be dismissed as al- leges that the Company has unlawfully discharged and refused to reinstate Donald (or Don C.) Allen, and that it has unlawfully refused , and is refusing, to bargain with the Union. 3. Objection 5 be sustained to the extent found above; the remaining objections be overruled; and 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT in any manner constituting in- terference, restraint, or coercion in violation of the said Act, interrogate any employee as to how any employee voted in any union representation election or as to any employee's activities or interest in any labor organization. WE WILL NOT directly or indirectly threaten, or in any other manner inform, any of our em- ployees that the rate of pay or wages of any such employees may or will be reduced, or that we will have a unilateral right to reduce such rate or wages in the event that our employees designate a labor organization to represent them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of any rights guaran- teed them by Section 7 of the National Labor Relations Act, as amended. The election held on January 3 and 4, 1967, among our employees, has been set aside by the National Labor Relations Board because we com- mitted unfair labor practices. All of our employees are free to become and remain , or refuse to become or remain, members of any union of their choice. MORAN BROS., INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, Eastern Columbia Building , 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229. Copy with citationCopy as parenthetical citation