Moran Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1968

171 N.L.R.B. 1129 (N.L.R.B. 1968)

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.