Port Everglades Towing Co., Ltd.

National Labor Relations Board - Board Decisions

Nov 28, 1961

134 N.L.R.B. 795 (N.L.R.B. 1961)

PORT EVERGLADES TOWING COMPANY, LTD., ETC. 795
Hans J. Hvide, H. C. Nickerson , John E. Morris, Jr., and William
F. Leonard , d/b/a Port Everglades Towing Company, Ltd.,
and Port Canaveral Towing Company and Associated Mari-
time Workers Local No. 8, affiliated with the International
Organization of Masters , Mates and Pilots . Case No. 12-CA-
1976. November 28, 1961
DECISION AND ORDER
On August 31, 1961, Trial Examiner Louis Libbin issued his inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not dis-
criminatorily discharged Michael J. Olivera, as alleged in the com-
plaint. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report, and supporting briefs.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Exam-
iner's rulings and adopts his findings and conclusions.
ORDER
The Board adopts the recommendations of the Trial Examiner with
the modification that Section 2 (e) read : "Notify the Regional Director
for the Twelfth Region, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to comply herewith." 1
The Board further orders that the complaint be dismissed to the
extent recommended by the Trial Examiner.
' In the notice attached to the Intermediate Report as Appendix A, the words "Decision
and Order" are hereby substituted ,for the words "The Recommendations of a Trial
Examiner ." In the event that this Order is enforced by a decree of a United States Court
of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an
Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Associated Maritime Workers Local No. 8, affiliated with
the International Organization of Masters , Mates and Pilots, herein called the
Union, the General Counsel of the National Labor Relations Board , by the
Regional Director for the Twelfth Region (Tampa , Florida ), issued his complaint,
dated June 2 , 1961 , against Hans J. Hvide, N. C. Nickerson, John E . Morris, Jr.,
and William F. Leonard , d/b/a Port Everglades Towing Company , Ltd., and Port
Canaveral Towing Company, herein jointly called the Respondent . With respect
to the unfair labor practices , the complaint , as amended at the hearing , alleges,
in substance, that Respondent ( 1) discharged Joseph V . Moschetto and Michael J.
Olivera on or about March 14, 1961, because of their union membership and
activities ; (2) engaged in conduct which constituted a refusal to bargain with the'
134 NLRB No. 95.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union which had been designated as the bargaining agent by a majority of the
employees in a specified appropriate unit; (3) engaged in specified acts of inter-
ference, restraint, and coercion; and (4) has thereby violated Section 8(a)(1), (3),
and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended.
In its duly filed answer, as subsequently amended,' the Respondent denies the
unfair labor practice allegations and affirmatively alleges, in substance, that (1)
Moschetto and Olivera were discharged for cause, and (2) the unit alleged in the
complaint is not an appropriate unit for collective-bargaining purposes.
Pursuant to due notice, a hearing was held before me at Cocoa Beach, Florida,
on July 5-8, 1961. All parties appeared and were represented at the hearing and
were afforded full opportunity to be heard, to examine and cross-examine witnesses,
to present oral argument, and to file briefs. Respondent's motion to dismiss the
complaint, made before the close of the hearing and upon which I reserved ruling,
is hereby denied in part, and granted in part, in accordance with the findings and
conclusions hereinafter made. On August 18, 1961, the General Counsel filed a
brief which I have fully considered.
Upon the entire record 3 in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Port Everglades Towing Company, Ltd., hereinafter sometimes re-
ferred to as the Partnership, is a Florida limited partnership with its principal office
and place of business at Port Everglades, Fort Lauderdale, Florida. It owns and
holds title to six tugboats which it leases, with full crews, on time charter to other
corporations. Respondent Port Canaveral Towing Company, hereinafter sometimes
called the Corporation, is a Florida corporation engaged at Port Canaveral, Florida,
in providing docking, undocking, and related services for ships and other seagoing
crafts under contract with Pan American World Airways, herein called Pan
American. The Partnership has leased two of its tugboats, Hollywood and Mars
with full crews to the Corporation, under a time charter, for the purpose of enabling
the Corporation to fulfill its needs under its contract with Pan American. Under
the terms of the lease, the Partnership agrees to pay for all provisions, wages, and
fees of the crew, insurance of the vessels, necessary stores, and to keep the vessels
in an efficient state. The Corporation agrees to pay the Partnership $20,000 per
month plus 50 percent of the excess earned by the Corporation under its contract
with Pan American. The time charter between the Partnership and the Corporation
is coterminous with the duration of the contract between the Corporation and Pan
American. The Corporation's sole source of income is derived from its contract
with Pan American. During the past year, it provided services, valued in excess
of $100,000, which had a substantial impact on the national defense.
The Partnership and the Corporation have common offices, ownership, directors,
and operators. The common offices are located at Port Everglades, Fort Lauder-
dale, Florida, where all business records are kept and maintained by employees of
the Partnership for both the Partnership and the Corporation. The common owners
are as follows: Hans J. Hvide, general partner and 40-percent owner, is president
of the Corporation and owns 40 percent of the stock; H. C. Nickerson, limited part-
ner and 20-percent owner, is vice president of the Corporation with 20 percent of
the stock; John E. Morris, Jr., limited partner and 20-percent owner, is secretary of
the Corporation with 20 percent of the stock; and William F. Leonard, limited
partner and 20-percent owner, is treasurer of the Corporation with 20 percent of
its stock. The time charter between the Partnership and the Corporation is signed
solely by Hvide in his dual capacity as both president of the Corporation and as
general partner of the Partnership. Other than its officers, the Corporation has no
employees; all operations are handled by the Partnership under the general man-
agership of John A. Dunn. The crews of the tugboats are employed and paid by
1 After the close of the bearing, Respondent submitted an amendment in answer to the
General Counsels amendments to the complaint at the hearing. Said amendment will be
included in the official exhibit folder as Respondent's Exhibit No 7.
2 On August 3, 1961, the General Counsel filed a motion to correct the record in specified
respects . No objections thereto having been received, said motion is hereby granted and
will be included in the official exhibit folder as General Counsel's Exhibit No . 15. I hereby
note and correct the following additional obvious errors in the typewritten transcript of
testimony :
Page 73, line 22 , " in" is corrected to read "and"; page 75, line 14, "Captain will"
is corrected to read "Captain Munroe will."
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 797
the Partnership but wear uniforms with the name of the Corporation on them.
Leonard, who is also counsel for Respondents in this proceeding, admitted that the
sole function of the Corporation is to hold the contract with Pan American, that
the principal reasons for the lease arrangement between the Partnership and the
Corporation and for having the Corporation, rather than the Partnership, under
contract with Pan American, was to enable them to avoid the 3-percent State sales
tax and to split incomes, and that Pan American looks to the Partnership and the
Corporation for the performance of its contract.
Upon the above admitted facts, I find that Port Everglades Towing Company,
Ltd., and Port Canaveral Towing Company, herein jointly called the Respondent,
constitute a single integrated business enterprise and a single employer engaged in
commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The undisputed evidence shows that Associated Maritime Workers Local No. 8,
affiliated with the International Organization of Masters, Mates and Pilots, is an
organization in which employees participate and which exists for the purpose of
dealing with employers concerning wages, hours, and working conditions. I there-
fore find, as alleged in the complaint, that it is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Two tugboats known as the Hollywood and the Mars are engaged in the Port
Canaveral Towing Operations. Captain Brinn, an admitted supervisor within the
meaning of the Act, is in overall charge of the entire operation. Each tug is manned
by a crew, consisting of two deckhands, one engineer, and either a mate or Captain
Brinn. In addition, there is one cook and a relief crew of two deckhands and an
engineer .3
The principal issues litigated in this proceeding are (1) whether the mates are
supervisors within the meaning of the Act; (2) whether Joseph Moschetto, the cook,
and Michael Olivera, an engineer, were discriminatorily discharged in violation of
Section 8(a)(3) and (1) of the Act; (3) whether Respondent engaged in conduct
which constituted a refusal to bargain in violation of Section 8(a)(5) and (1) of
the Act; and (4) whether Respondent's supervisors and agents engaged in independ-
ent acts of interference, restraint, and coercion violative of Section 8(a) (1) of the Act.
A. The supervisory status of the mates
Respondent contends that the only supervisor at the Port Canaveral operation is
Captain Brinn who is in overall charge of the operation. The General Counsel and
the Charging Party contend that the two mates, Munroe and Chisholm, are also
supervisors within the meaning of the Act.
As previously noted, there are two tugboats and three complete crews working a
rotating shift or watch of 2 weeks on and 1 week off. There are two crews on duty
at all times. Because of the contractual relationship between Respondent and Pan
American, there must be one fully manned crew on duty 24 hours a day at all times,
and a standby crew ready to report for active duty within 1 hour's notice. A crew
consists of two deckhands, an engineer, and either a mate or the captain.
Captain Brinn rotates a regular watch with the other mates. Thus, Captain Brinn
would work 1 week with Mate Chisholm and 1 week with Mate Munroe, and then
be off for 1 week. When the mate is the one on duty and the tugboat is in operation,
either casting off or making a tow, the mate steers the boat and gives signals to the
engineer and orders to the deckhands. He admittedly would tell the deckhands how
much line he wants out, when he wants the line taken up, and when he wants the
line shifted from bow to stern or vice versa. The dockhands, in turn, look to the
mate for such orders and instructions. These orders involve the exercise of inde-
pendent judgment on the part of the mate. Captain Brinn admitted that on such
occasions the mate is in complete charge of the vessel from the time it leaves the dock
until it gets back to the dock and that the mate performs the same duties which the
captain performs when the captain takes a tug out. He further admitted that the
mates are deck officers and that the deckhands are required to obey the mate's orders.
When the boats are not on a tug operation, the mates are engaged in general main-
tenance work, together with the rest of the crew. When on duty, the mates live
,aboard the tugs together with the rest of the crews. They receive about $150 a month
s Thus, the total number employed on these tugs consists of six deckhands, three
engineers, one cook , two mates , and Captain Brinn.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than the deckhands, and wear the same kind of uniform as Captain Brinn,
which distinguishes them from the other employees who wear different uniforms 4
They admittedly have the authority to give the men time off in times of emergency.
The deckhands and engineer referred to the mates as captain in their testimony.
When Captain Brinn was asked by Respondent's counsel to state the capacity in which
he was employed, he testified, "as leading Captain up here at Port Canaveral."
Upon the above admitted and undisputed facts, I find that the two mates, Munroe
and Chisholm, at the very least have the authority to, and do, responsibly direct the
work of the deckhands for substantial periods of time and hence are supervisors
within the meaning of the Act for whose conduct Respondent is liable.5
B. Discrimination with respect to hire and tenure of employment
1. Joseph V. Moschetto
Moschetto had been employed as a cook on the tugboats at the Port Canaveral
operations since the summer of 1959. Besides cooking, his duties also involved the
purchase of food and supplies, washing dishes, and keeping the galley clean. Unlike
the other crew members who worked a tour of 2 weeks and then were off for 1 week,
Moschetto regularly worked 5 days a week, Monday through Friday, and usually
went to his home in Fort Lauderdale for the weekend.
a. Union activities 6
About July 28, 1960, Allen Scott, president of the Union, met Moschetto at the
home of Condon, a mutual friend employed in the area as a pilot , and discussed the
possibilities of Respondent's nonsupervisory employees joining the Union. Scott
pointed out the benefits to be derived from a contract and discussed in detail the
provisions of a contract which the Union had at Port Canaveral with the Maritime
Salvage Company. Moschetto replied that he thought the employees would like
"to go union" provided they had some assurance that the Company would leave them
alone , and suggested that Scott present the matter to Captain Brinn so that Brinn
would not feel that the men were doing something behind his back. Scott agreed
to do so at his earliest opportunity. Moschetto agreed to try to get the crew to sign
union cards at an appropriate time when the men expressed a desire to organize.
The next morning Captajn Brinn called Moschetto into his office and asked about
what he had been talking to Scott. Moschetto replied that Scott wanted "to organize
here." Captain Brinn then stated that unions were no good, that he had been in them
all his life , and that "you are all going to be out of a job here. We can't operate
under union rules."
About September 1 or 2, Scott approached Captain Brinn and, after introducing
himself, expressed a desire to talk to him. Brinn accused Scott of sneaking around
behind his back and talking to his people. Scott denied the accusation, explained
the Union's policy of cooperating with companies with which the Union had con-
tracts, and discussed the provisions of the Marine Salvage agreement . Brinn ex-
pressed the fear that when the contract with Pan American came up for renewal a
nonunion company might be able to underbid them and take their jobs away?
About the middle of January 1961, when Moschetto came to work one Monday
morning, Munroe, one of the mates, told him that a "union fellow" and a "union
cook" from a Pan American boat docked alongside of them were looking for him.
Munroe then added that "you're getting yourself in a lot of trouble, the union guys
are looking for you, you are going to get yourself fired." About 1 hour later, Cap-
tain Brinn called Moschetto to his office and inquired, "What are these union fellows
4 Captain Brinn and Mates Munroe and Chisholm wear white shirts and khaki pants ;
the deckhands wear white shirts and green pants, and the engineers wear green shirts
and green pants
5 See, e g., Mardril, Inc, 119 NLRB 1174, 1182
0 Unless otherwise indicated, the findings in this section are based on evidence and testi-
mony which is uncontradicted
7 The events related in the preceding paragraphs occurred more than 6 months before
the filing of the first charge in this proceeding and is therefore considered herein only as
background for the purpose of clarifying and imparting meaning to the specific conduct
which happened within the 6-month period and is alleged as an unfair labor practice. -, Sec-
tion 10(b) of the Act; see, e g., Textile Machine Works, Inc, 96 NLRB 1333, 135bt,1'351,
105 NLRB 618, enfd. 214 F. 2d 929 (C.A. 3).
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 799
doing around here looking for you, Joe?" Moschetto replied that he did not know,
that perhaps they wanted to give him a job on another boat. Captain Brinn stated
that he did not want to see these men come around, that "we don't want no union
around here," that if the Union came in the men would lose their uniforms and kitchen
privileges and they would all be out of a job .8
During February 1961 while Moschetto was putting a new antenna on his
automobile radio, Condon drove by and invited him to have a drink at a bar. The
next morning Captain Brinn asked Moschetto if he was talking to Condon about
unions and if he was trying to organize again. Moschetto denied the accusation.
On March 1, Moschetto and Scott had a long-distance telephone conversation.
Moschetto informed Scott that the men wanted to organize now. Scott advised
Moschetto to get the union authorization cards signed by the men and to forward
them to Scott. Moschetto had received a new batch of union authorization cards
and proceeded to solicit the signatures of the crew members. By March 8, Mos-
chetto had obtained signed union authorization cards from a majority of Respondent's
nonsupervisory employees, which cards he forwarded to Scott.
b. The discharge 9
When Moschetto was first employed as a cook in the summer of 1959, he made
his purchase of food and meat from a local store called The Storekeeper by the Sea.
Sometime in 1960, with Captain Brinn 's permission , he changed to Rutland's Grocery
Store because he felt he would be able to get a better deal for the Company there.
In the latter part of January or early February 1961, Captain Brinn told Moschetto
that the meat bills should be itemized instead of lumped together as meat. Mos-
chetto agreed to do so in his next purchase. About February 9, his wife took ill and
had to go to the hospital. Moschetto therefore was permitted to take leave that eve-
ning, and went to his home in Fort Lauderdale where he remained until February 27.
During his absence, Captain Brinn had transferred the account back to The Store-
keeper by the Sea. Upon,Moschetto's return, Captain Brinn told him that the January
bills had been returned by the office and that he would have to get together with the
butcher at Rutland's Grocery and itemize the meat purchased during January.
Moschetto agreed to do so. However, the butcher was unable to remember the break-
down of the meat purchases and explained this to Captain Brinn. The latter then
agreed that there was nothing more to do about it and that he would send the bills
back to the office. When Moschetto was leaving for his home in Fort Lauderdale on
Friday, March 3, Captain Brinn gave him the Yanuary bills which were returned
to the bookkeeper at Fort Lauderdale. Nothing more was said about the bills during
the week of March 6.
On March 7 and 8 Moschetto obtained signed union authorization cards from
a majority of the nonsupervisory employees, including himself. On Monday morn-
ing, March 13, Captain Brinn told Moschetto that he was wanted at the office in
Fort Lauderdale. When Moschetto asked why he was wanted there, Brinn told him
that they had to get the bills straightened out, having reference to the January bills,
and that he better go to the office. Moschetto agreed to go after lunch when he had
gotten the men straightened out. Before leaving for Fort Lauderdale, Moschetto
obtained a signed union authorization card from one more employee. When he
arrived at Fort Lauderdale, the office was already closed.
The next morning he went to the office and saw John Dunn, 'Respondent's general
manager. Dunn looked at the January bills and asked why the meat purchases were
not itemized. Moschetto replied that it had always been done that way. Dunn
thereupon stated, "Forget about it, you're through with this Company, you're all done
right now. You're finished." Pleading with Dunn to sit down and talk this thing
over, Moschetto asked if Dunn were accusing him of stealing the meat. Dunn
replied in the negative and stated that he had also heard that Moschetto did not keep
the galley clean . Dunn then stated that Moschetto was finished with the Company,
that Dunn did not want to talk to him any more, and that Moschetto should come
back later to pick up his check. Moscbetto repeated his offer to explain how the
purchases had been made and how they had always been made . But Dunn refused
to listen , stating that Moschetto was finished. Moschetto thereupon left.
s The findings in this paragraph are based on the credited testimony of 11'o.chetto
Captain Brinn denied having made such statements to Moscbetto I do not credit the
denials
O The findings in this section are based on the mutually consistent testimony of
Moschetto, Captain Brinn, and General Manager Dunn
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Respondent's defenses
In support of its contention that Moschetto was discharged for cause, Respondent
relies on the testimony of Captain Brinn , General Manager Dunn, Captain Nicker-
son, one of the partners, and Tegreeny, the owner of The Storekeeper by the Sea.
The composite testimony of these witnesses is, in substance, as follows: Moschetto
was not keeping his galley in very good condition. He left his pots and pans full of
grease over the weekend and the crew complained that they had to clean up the
galley. Since the fall of 1960, Captain Brinn had complained to General Manager
Dunn on practically all of his weekly visits that Moschetto was not keeping his galley
as clean as it should be. In January 1961, Captain Brinn complained to Moschetto
about the bills from Rutland's Grocery not being properly itemized. This lack of
itemization in the January bills was first called to Dunn's attention by Brinn about
February 20, when Dunn returned to work after an illness commencing January
18. Dunn told Brinn to talk to Moschetto and get the January bills itemized.
Moschetto attempted to do so and Brinn was informed by the butcher of Rutland's
Grocery that the January bills could not be itemized at this late date. Brinn there-
upon sent the January bills back to Respondent's office. On Friday morning,
March 10, Tegreeny informed Captain Brinn that Moschetto had asked if Tegreeny
would agree to include Moschetto's personal purchases in the Respondent's food
bill, and that Tegreeny had refused to do so. That day, Captain Nickerson was
sitting in Dunn's office in Fort Lauderdale in the latter's absence and was examining
some of the food bills from the Port Canaveral operations. That same afternoon,
Brinn had a telephone conversation with Nickerson about a propeller. During the
course of the conversation Nickerson asked Brinn about the food bills, commenting
that they were "way out of line." Brinn replied that he had been getting after
Moschetto to get the bills straightened out and also related what Tegreeny had
told him that morning. Nickerson replied that the Company did not want that kind
of an employee and told Brinn to fire Moschetto and to send him to the office to get
his pay. On Monday morning, March 13, Brinn merely told Moschetto that he better
go to the office in Fort Lauderdale to get his bills straightened out. On Tuesday
morning, March 14, Brinn telephoned Dunn at his home before Dunn had left for
the office. They discussed the situation about the January bills and the fact that
there was some indication that Moschetto was soliciting commissions . Brinn also
related Captain Nickerson's statement about firing Moschetto. When Dunn got
to the office, he discharged Moschetto. When the latter wanted to discuss the reasons,
Dunn stated that Moschetto had not kept his galley clean and had not lived up to the
standards expected of him and that there was nothing further to be said.
After due and careful consideration of Respondent's contentions and the foregoing
testimony, I am unable to accept the contentions that the discharge of Moschetto was
truly motivated by the reasons advanced by Respondent.
With respect to Tegreeny's report concerning Moschetto's alleged attempt to have
personal purchases included in Respondent's food bill,10 it is clearly apparent that
this was seized upon as an afterthought and advanced as 'a reason for the discharge
for the first time at the hearing in this proceeding. Thus, the only reasons for
Moschetto's discharge affirmatively set forth in Respondent's amended answer and
defenses, dated June 23, 1961, are "that Joseph V. Moschetto was discharged for
cause in that he repeatedly failed to follow instructions on how to purchase food and
failed to itemize his purchases of food and failed to keep the galleys in proper order
and condition." Furthermore, Dunn admitted that he was the one who made the
final decisions on discharges, although Captain Brinn also had authority to discharge
employees. Yet, neither Captain Brinn nor General Manager Dunn admittedly ever
mentioned to Moschetto that Tegreeny's report was a reason for his discharge.
Indeed, they just never mentioned it to him at all. Dunn's admitted failure to tell
Moschetto that this was one of the reasons for his discharge takes on added signifi-
cance in view of Dunn's further admission that Moschetto wanted to know why
he was being discharged and Dunn's sole reference to Moschetto's failure to itemize
the meat purchases in the January bills and to keep his galley clean. That Captain
Brinn did not attach any weight to Tegreeny's report is apparent from the fact that
he admitted that Tegreeny had made a similar report the previous year and that he
(Brinn) made no mention of it either to Moschetto or to any other representative
of Respondent. Finally, Hans Hvide, the general partner of the Partnership and the
10 Moschetto denied that he had ever made such a proposal to Tegreeny and testified
that, on the contrary, it was Tegreeny who had made this proposal to him. Regardless of
whose testimony is credited, it is Tegreeny's version which was reported to Captain Brinn
and which is relevant . I therefore find it unnecessary to resolve this credibility conflict.
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 801
president of the Corporation, addressed Respondent's crew at Cape Canaveral the
day after Moschetto's discharge and stated as the only reason for Moschetto's dis-
charge that he was not keeping the galley clean.ll
With respect to the matter of failing to keep the galley clean, the record shows that
this issue was greatly exaggerated. No crew members testified in support of Respond-
ent's position. On the other hand, not only did Moschetto deny the accusation but
Bossom, a deckhand, credibly testified that he observed the galley three times a day
and that it was clean. Moreover, the record shows that other members of the crew
did the cooking on Saturday and Sunday in Moschetto's absence and that Moschetto
was therefore not responsible for the condition of the galley on Monday mornings.
If in fact Brinn had made weekly complaints to Dunn about Moschetto's shortcom-
ings in this respect since the fall of 1960, as Dunn testified, it is strange that Mos-
chetto was never warned that this might lead to his discharge, or that he was not
discharged earlier for this reason.
The same observations may also be made with respect to the failure to itemize
the food bills. Contrary to the testimony of Dunn, Brinn, and Tegreeny, photostatic
copies of the grocery bills appearing in the record as exhibits corroborate Moschetto's
testimony and show that from the time he was first employed in .the summer of 1959
until the transfer of ,the account to Rutland's Grocery, the meat purchases from The
Storekeeper by the Sea had never been itemized but were lumped into one item as
meat. Moreover, these exhibits further show that purchases had been made in this
manner not only by Moschetto but also by others, including Captain Brinn and Chis-
holm, the mate. On the other hand, the only bills called to Dunn's attention were
those for the month of January from Rutland's Grocery. Dunn admitted that the
first time this was called to his attention was after his return to work from his illness
on February 20 and that the first time he ever looked at ,these bills was on the morn-
ing of March 14 when he discharged Moschetto. Brinn had already been informed
,the previous week by the butcher from Rutland's Grocery that these bills could not be
itemized at this late date and had at that time decided that there was nothing more
that could be done about it. Furthermore, Hvide did not mention this when he told
the crew the reason for Moschetto's discharge.
The most convincing evidence that any alleged failure to keep the galley clean
or to itemize the food bills were not motivating factors for Moschetto's discharge ap-
pears in the following testimony of Dunn and Brinn: During Moschetto's leave
due to his wife's illness in February, Dunn and Brinn decided to give Moschetto a
2-week period, after his return to work, within which to improve his performance
and to "straighten out." Moschetto reported back to work on February 27. Brinn
admitted that from that time on he had no complaints about the manner in which
Moschetto was making purchases and that all bills were properly itemized. Nor is
there any evidence or testimony that Moschetto failed to keep his galley in satisfac-
tory condition at any time after his return to work on February 27. That the reasons
advanced by Respondent for the discharge of Moschetto were mere pretexts or
afterthoughts is further borne out by Respondent's resurrection as still an additional
reason, for the first time at the hearing, of an incident which occurred in the fall of
1960 when Moschetto stayed away from work for about 10 days without notifying,
anyone.
d. Concluding findings
As previously found, Moschetto had been interested in organizing Respondent's.
crew since his first conversation with Union President Scott in July 1960, but took
no active steps in this direction until March 1, 1961, when he informed Scott that the
men were ready to organize. During this period Captain Brinn and one of his mates,
Munroe, became aware that Moschetto was associating with unionmen and suspected
him of desiring to have a union represent Respondent's crew. Brinn was vigorously-
opposed to union representation for Respondent's crew. Thus, as previously found,
when Moschetto told Brinn in July 1960 that Scott wanted to organize Respondent's
crew, Brinn stated that unions were no good, that Respondent could not operate
under union rules, and that they would all be out of a job if the men selected a union
to represent them. In January, Brinn and Munroe became aware that a union cook-
,u This finding is based on the uncontradicted and credited testimony of William Bossom
who was still employed as a dockhand by Respondent at the time of his testimony under
subpena Although Ilvide was outside the country at.the time of the hearing in this pro-
ceeding, I Informed Respondent's counsel at the outset of the hearing and before the
presentation of Respondent's case that I would entertain a motion for a continuance at
such time as counsel felt that .the testimony of Hvide was necessary to the presentation
of- their case No such motion was made
630849-62-vol. 131-62
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a Pan American boat had been looking for Moschetto. On that occasion, as
previously found, Munroe warned Moschetto that he was getting himself into a lot
of trouble because the unionmen were looking for him and that he was going to get
himself fired. At the same time, also as previously found, Captain Brinn inquired of
him as to why the union fellows were looking for him; announced that he did not
want any unionmen around here; and warned that if the Union came in , the men
would lose their uniforms and kitchen privileges and that they would all be out of a
job. Significantly, it was about this time that Brinn complained to Moschetto about
the failure to have the bills itemized. In February, Brinn accused Moschetto of
trying to organize again, after he had observed him talking to one of the pilots in the
area, as previously found.
On February 9, 1961, Moschetto was permitted to take leave because of his wife's
illness and returned to work on February 27. As previously noted, during his ab-
sence, Dunn and Brinn had decided to give Moschetto 2 weeks in which to improve
his performance and to "straighten out." From the time of his return to work until
his discharge, Moschetto did not fail to have the food bills properly itemized or his
galley maintained in a satisfactory condition, the only two respects in which Brinn
and Dunn had allegedly found fault with Moschetto. However, what did occur dur-
ing that period was that on March 7 and 8 Moschetto obtained signed union authoriza-
tion cards from a majority of the nonsupervisory employees, including himself.
It was common knowledge among the men that Moschetto was the one who had
the authorization cards for the men to sign. There were only 10 nonsupervisory
employees engaged on the 2 tugboats in the Port Canaveral operations. The super-
visors of the crews consisted of Captain Brinn and two mates. As previously noted,
the men ate and slept on the tugs during their 2-week tour of duty, and Captain Brinn
admittedly was in almost constant attendance. Under these circumstances, Brinn
could not help but become aware of Moschetto's organizing activities.
After talking with Captain Nickerson about Moschetto on Friday, March 10,
Brinn suddenly told Moschetto on Monday morning that he better go to the office to
get the January bills straightened out, although he already knew that the butcher was
unable to itemize them at this late date and had previously decided that there was
nothing more that could be done about it. The next morning Brinn telephoned to
Dunn at his home and engaged in a conversation about Moschetto. Immediately
after this conversation, Dunn went to the office where he found Moschetto waiting.
After looking at the January bills for the first time, Dunn asked Moschetto why the
meat purchases were not itemized. Then, refusing to listen to Moschetto's attempted
explanations, Dunn stated that he had also heard that Moscheo did not keep his
galley clean, and summarily discharged him, without any arrangements having been
made for a replacement. The next day, Hvide, told Respondent's crew that Moschetto
was discharged for not keeping his galley clean.
Upon consideration of all the foregoing and the entire record as a whole, I am
convinced and find that (1) Brinn became aware of Moschetto's activities in organ-
izing the crew; (2) he reported these activities to his superiors; (3) Respondent was
opposed to having its employees represented by a union; (4) the decision to discharge
Moschetto was primarily motivated by his organizing activities and antiunion con-
siderations; and (5) the reasons for the discharge asserted at the hearing were seized
upon by Respondent as pretexts and afterthoughts to cloak its discriminatory motiva-
tion. By such conduct, Respondent discriminated with respect to Moschetto's hire
and tenure of employment, thereby discouraging membership in the Union, in viola-
tion of Section 8 (a) (3) and (1) of the Act.
2. Michael J. Olivera
Olivera was employed by Respondent as an engineer on April 7, 1960, until his
discharge on March 14, 1961. His duties were to keep the engineroom clean, repair
machinery, and to handle the main engines. He worked on both tugs, the Hollywood
and the Mars. Like the rest of the crew, he worked a tour of 2 weeks, and then was
off for 1 week.
a. Union activities
Olivera's sole union activities consisted of signing a union authorization card which
was given to him by Moschetto on March 8 , 1961 , and which he immediately,
returned to Moschetto.
b. The discharge
Olivera was not working in the week of March 13. On Tuesday, March 14, Assist-
ant Manager Hahn telephoned Olivera's home for the purpose of informing him of
his discharge . In the absence of Olivera , Hahn left a message with Mrs. Olivera to
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 803
have her husband call 'the office . Olivera was out of town that week and did not get
back home until Saturday , March 18 , at which time he telephoned the office. Hahn
then informed Olivera that he had been trying to reach him , and told him that his
services were no longer needed as of March 15 because he did not come up to
company standards.
c. Respondent's defenses
Respondent contends that Olivera was discharged for repeated acts of inefficiency.
At the hearing, Respondent's witnesses testified with respect to specific instances of
alleged neglect and inefficiency, for which Olivera denied responsibility. General
Manager Dunn testified that at a meeting in the latter part of February with Captain
Brinn, it was decided to replace Olivera with a more competent engineer but that
they would not discharge him until a suitable replacement had been found. He
further testified that as soon as he 'know that, an operation in Miami was coming to
an end which would enable the engineer there to replace Olivera by March 21,
efforts were made to notify Olivera of his discharge.
d. Concluding findings
I find it unnecessary to determine whether the record supports Respondent's
asserted reasons for Olivera's discharge. Unlike the case of Moschetto, there is here
no evidence that Brinn or any other agent of Respondent knew or suspected that
Olivera signed a union authorization card or was interested in the Union. Nor does
the record afford any basis or warrant for drawing such an inference in his case. As
Respondent's knowledge or belief of Olivera's union interest or activity is a vital ele-
ment in the proof of a discriminatory discharge violative of the Act,12 I find that the
General Counsel has failed to sustain this allegation of the complaint and will recom-
mend that it be dismissed.
C. The refusal to bargain
1. The appropriate unit
The General Counsel contends, as the complaint alleges, that all employees in
the Respondent's Port Canaveral operation employed on the tugboats Hollywood
and Mars, excluding shore-based personnel and supervisors, constitute an appro-
priate unit. Although on April 6, 1961, Respondent executed a consent-election
agreement for such a unit, Respondent contends in this proceeding that the only
appropriate unit consists of the employees on all six tugboats owned by the Partner-
ship, wherever they may be located.
In addition to the tugs Hollywood and Mars, the Partnership also own the tugs
Battler, Everglades, and Fort Lauderdale, which are under time charter to Port
Everglades Towing Company and are operating at Port Everglades, Florida, and
the tug Challenger, which is under time charter to Port Miami Towing Company
and is operating in the Gulf of Mexico. John Dunn is the general manager for all
these operations.
As previously found, the Partnership and the Corporation are engaged in a
single integrated business enterprise and constitute a single employer within the
meaning of the Act. The tugs Hollywood and Mars -are the only tugs used in the
Port Canaveral operation. They are both docked and operated within the Cape
Canaveral area, approximately 180 miles from any other operation serviced by the
other tugboats. The different ;operations are under separate immediate supervision.
The crew members at the Canaveral operation sleep sand eat on the tugs when on
duty. They wear uniforms which have the name of Port Canaveral Towing Com-
pany printed on the back. While employees have been transferred to the Canaveral
operation to fill vacancies on either a temporary or permanent basis. General
Manager Dunn admitted that there has been no interchange of employees between
the Canaveral and the other operations. He also admitted that there is currently a
difference in the wage structure between the Port Canaveral employees and the
employees at the other operation. There is no bargaining history,13,and no other
union is presently seeking a broader or different unit.
In view of all the foregoing, I find that a unit confined to the Respondent's Port
Canaveral operation is an appropriate unit. Accordingly, I find that all employees
12 See; e g, Tampa Tames Company v. N L R.B , 193 F. 2d 582 (C A. 5)
is Contrary to'Respondent's contention, the fact that in 1958 a local of the National
Maritime Union of America petitioned for and lost an election in a broader unit, does
not constitute a bargaining history.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the Respondent's Port Canaveral, Florida, operation employed on the tugboats
Hollywood and Mars, excluding shore-based personnel and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
2. The Union's majority status
There are 13 men employed in the operation of the tugs Hollywood and Mars in
the Port Canaveral operation. Of these, Captain Brinn and Mates Munroe and
Chisholm are supervisors within the meaning of the Act, as previously found, thus
leaving 10 employees within the appropriate unit. These 10 consist of 6 deckhands,
3 engineers, and 1 cook. The undisputed evidence shows that six employees within,
the appropriate unit had signed union authorization cards by March 8, 1961, and a
seventh employee signed on March 13. I therefore find that the Union had been
designated as the collective-bargaining representative by a majority of the em-
ployees in the appropriate unit by March 8. I further find that at all times on and.
after March 8, 1961, the Union has been and is the exclusive representative of the
employees in the aforesaid appropriate unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.14
3. Conduct constituting a refusal to bargain in violation of the Act
a. Sequence of events 15
In 1960 Respondent had executed individual employment contracts with mem--
bers of the crew which were to terminate on February 1, 1961. On January 15,
1961, employees at the Port Canaveral operation signed a letter addressed to Gen-
eral Manager Dunn at Fort Lauderdale, Florida, containing "suggestions for the.
working contract for this year." The suggestions consisted of a 10-percent raise
in the base salary of the engineers, a $30 raise in the base salary of the deckhands,_
and the continuation of all accrued benefits. The employees heard nothing further
about these suggestions until March 15, as hereinafter set forth.
Meanwhile, by letter dated March 10, 1961, signed by Scott, president of the_
Union, and addressed to Captain Brinn of Port Canaveral Towing Company at Port
Canaveral, Florida, Scott informed Brinn that the Union represented a majority
of the employees employed on his tugs for collective-bargaining purposes, requested:
immediate recognition as the exclusive representative of such employees and a
meeting at 10 a.m. on March 16 in Brian's office at Port Canaveral for the purpose
of discussing recognition, at which time Scott would be prepared to demonstrate
the Union's majority status. Copies of this letter were also mailed to General Man-
ager Dunn at Port Everglades, Florida, and to Frank Frazer, a labor relations official
of Pan American at Cape Canaveral. As previously noted, Respondent's Port:
Canaveral operations are performed under contract with Pan American.
The copy to Dunn was sent by registered mail, airmail, special delivery. The
parties stipulated that Dunn's copy was mailed on March 14 and was received by
Respondent at Port Everglades, Fort Lauderdale, on March 15.
As previously noted, General Manager Dunn discharged Joseph Moschetto on
Tuesday morning, March 14. About 3:30 or 4 o'clock that afternoon, Frank
Frazer of Pan American engaged in a long-distance telephone conversation with
Hans Hvide, the general partner and president of the Corporation, while Manager
Dunn was listening to the conversation on an extension telephone. Frazer stated'
that Respondent was experiencing labor difficulties at Cape Canaveral and asked
if Hvide knew about it. Hvide replied in the negative.
The next day, Wednesday, March 15, Scott made a long-distance telephone call'
to Captain Brinn to confirm the meeting requested in the letter for the ,following day.
Brinn stated that he had not yet seen the letter. Scott thereupon read a copy of
u In finding that the Union has maintained its majority status after March 8, I have
counted the card signed by Moschetto but have not counted the card signed by Olivera
whose discharge as of March 15 has not been found to be violative of the Act. United
Butchers Abattoir, Inc, 123 NLRB 946, 955. Any subsequent possible numerical loss of
majority status is attributable to Respondent's unfair labor practices herein found and
therefore must be disregarded. Franks Bros. Company v NLRB, 321 U.S. 702; Medo-
Photo Supply Corp. v. N L R.B , 321 U.S 678, 687; Chambers Manufacturing Corporation,
124 NLRB 721, 725-726, 735, enfd. 278 F 2d 715 (C.A. 5)
is Unless otherwise indicated, the findings in this section are based on credited testi-
mony and evidence which is either undisputed or admitted.
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 805
the letter to Brinn over the telephone and added that he would be there to keep
the appointment. During the conversation, Scott also accused Brinn of having
.gotten rid of Moschetto because of his participation in the organizing drive, an
.accusation which Brinn denied.
That same day, Wednesday, March 15, Hvide and Dunn were at the Port Canav-
,eral operation. Late that morning or in the afternoon Hvide addressed the crew,
.that was on watch at that time, as a group.16 The group consisted of about four
.deckhands, two engineers, and two mates. Hvide told the group that he was dis-
appointed because of "the trouble we had up here" and because the men had not
"come to him first with their problems." He then stated that he was sure that every-
thing would be "ironed out" and informed the group that the partners had agreed to
accept .the suggestions made by the employees in their January letter. During the
-course of his talk, Hvide also told the group that he had let Moschetto go for not
keeping the galley clean and had let Olivera go for inefficiency.
At 10 a.m. on Thursday, March 16, the time designated in the Union's letter, Scott
.appeared at Brinn's office at Port Canaveral. Brinn and General Manager Dunn
were in the office. Scott told Brinn that he was there, as he had told Brinn on the
telephone the preceding day, for the purpose of demanding recognition and commenc-
ing negotiations. He also stated that he had the authorization cards with him and
was prepared to prove the Union's majority status of the employees on the tugs.
,Captain Brinn stated that he had no authority to talk about these matters, and intro-
duced Scott to General Manager Dunn. Scott then made the same request of Dunn,
who also stated that he had no authority to recognize Scott or to discuss these matters
with him. Dunn referred Scott to Leonard, Respondent's attorney and also a limited
partner whose office was in Fort Lauderdale, and permitted Scott to use the office
telephone to call Leonard long distance.
Scott introduced himself to Leonard over the telephone and stated he was waiting
in Captain Brinn's office for the meeting mentioned in the Union's letter. Leonard
denied having any knowledge of such a scheduled meeting or of having received any
letter.17 Scott then read a copy of the letter over the telephone, requested recogni-
tion and the opportunity to start negotiations, and asked Leonard if he could come
up to Port Canaveral that afternoon to meet with him. Leonard replied that he could
not, that he had a trial that afternoon. Scott then asked if Leonard could meet him
at Port Canaveral the following day. Leonard replied that he could not, that he
would meet with Scott if the latter came to his office in Fort Lauderdale about 2
o'clock the following afternoon, but that before he would talk with Scott about these
matters Leonard would require that Scott show the credentials of a union representa-
tive required by the Florida State statute. Scott replied that he could not afford to
go running all over the country to meet with people. At that point, there was a dis-
turbance going on at the dock. Scott informed Leonard that Supervisors Brmn and
Chisholm had lined up all the employees on the dock in an apparent attempt to dis-
credit the Union, that in his opinion they were engaging in illegal conduct, and that
he would appreciate it if Leonard would instruct Dunn to have it stopped. Dunn
then had a brief telephone conversation with Leonard. When Scott resumed his
telephone conversation, Leonard stated that he had given certain instructions to Dunn.
Scott then stated that if Leonard was not going to meet with him for the purpose of
granting recognition and negotiating, he would have to go to the Board. Scott asked
if the Company would agree to a consent election. Leonard replied that he was only
a minor stockholder and would have to check with the other owners but that there was
a possibility they might agree. The conversation closed with Scott's statement that
he would mail the authorization cards to the Board together with a petition.is
• 19 Bossom, the only witness who testified as to Hvide's talk, stated that it occurred after
Sioschetto's discharge and before Scott appeared at the port to seek recognition. As
Moschetto was discharged on March 14 and as Scott' s meeting with Brinn was on
March 16, I find that Hvide addressed the crew on March 15.
11 After the telephone conversation, Leonard had a check made at Respondent's office,
and found that the Union's letter, addressed to Dunn, had been received the previous
afternoon and had not yet been opened.
. 18 Except in one respect, the findings in this paragraph are based on a composite of the
mutually consistent testimony of Scott and Leonard. The exception relates to the finding
that Leonard agreed to meet with Scott at 2 p in the following day at Leonard's office
in Fort Lauderdale. This is based on Leonard's credited testimony which was denied by
Scott. Scott testified that Leonard stated he was a very busy man, that he would try to
meet with Scott if the latter came to Fort Lauderdale, but that he refused to give Scott a
specific appointment I do not credit Scott's testimony in this respect.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The incident to which Scott had reference over the telephone as constituting un-
lawful conduct by Respondent's supervisors is as follows: The two tugboats were tied
up at the time. Mate Chisholm went over to the men on watch, told them that Scott
was out there "making trouble," and said, "Let's once and for all get this trouble over
with . let's get the fellows together and we will have a vote and see if we can't
send this man on the way . . . that we don't want any part of it." About six of the
crew members assembled on the tug Hollywood. Chisholm then handed out pieces of
paper to the men, told them to write "yes" or "no" on the paper, to fold the paper and
place it in a hat, and that if a majority said "no" they would tell Scott they did not
want the Union. Chisholm then shuffled the ballots in the hat, opened them one at
a time and read them off. Counting Chisholm's vote, the total was six to one against
the Union.
On March 21, General Manager Dunn brought individual employment contracts to
Port Canaveral and had each member of the crews sign 6ne.19 The individual con-
tracts covered wages, hours, and working conditions, provided for a 10-percent in-
crease in the base pay, and were to terminate on February 1, 1962.
The Union mailed a representation petition to the Board's Regional Office on
March 16. On April 6, the Respondent and the Union entered into a consent-election
agreement covering a unit of "all employees of the Port Canaveral Towing Company,
Inc., employed on tugboats Hollywood and Mars, operating from Port Canaveral,
Florida," excluding "all shore-based personnel and supervisors as defined in the
Act." On April 17 the Union requested the withdrawal of its petition, and the next
day filed unfair labor practice charges. On April 19 the Regional Director granted
the Union's request to withdraw its petition.
b. Concluding findings
On Tuesday afternoon, March 14, General Partner Hvide was informed in a long-
distance telephone conversation by Frazer, a labor relations official of Pan American
who had been sent a copy of the Union's recognition letter addressed to Captain
Brien, that Respondent was having labor difficulties at its Port Canaveral operation.
The very next day, March 15, Hvide went to Port Canaveral. It was that day that
Union Representative Scott had a long-distance telephone conversation with Captain
Brinn in which Scott reminded Brinn of the meeting requested for the following
morning in Scott's letter and also read a copy of the letter claiming the Union's ma-
jority representation of the employees on the Port Canaveral tugs for collective-
bargaining purposes and requesting recognition as such representative. As Captain
Brinn was in overall charge of the Port Canaveral operation and admittedly the high-
est management representative stationed there, it is inconceivable to me that, in view
of Frazer's information, Hvide would not have inquired of Brinn about the reported
labor difficulties and that Brinn would not have informed Hvide of the employees'
organizing activities and of his own telephone conversation with Scott. In the ab-
sence of any contrary testimony by Hvide and Brinn, I infer and find that Brinn did
so inform Hvide.
Late that morning or in the afternoon, Hvide addressed the crew as a group-
His statement that he was disappointed because of the "trouble we had up here" and
because the men had not "come to him first with their problem," could only have
reference, as I find, to the organizing activities and to the employees' selection of the
Union as their bargaining representative. Under all the circumstances, I am con-
vinced and find that Hvide's promises that everything would be "ironed out" and
that Respondent would grant the increases suggested by the employees 2 months
earlier, constituted promises of economic benefits to induce the employees to reject
the Union as their collective-bargaining representative. By such conduct Respond-
ent interfered with, restrained, and coerced the employees in the exercise of their
rights guaranteed under Section 7 of the Act.
At the meeting in Brian's office on March 16, Representative Scott stated that he
was there for the purpose of requesting recognition and commencing negotiations and
that he had the union authorization cards with him to prove that the Union had been
designated as collective-bargaining representative by a majority of the employees on
the tugs. Brinn and Dunn, the only representatives of Respondent present at the
meeting, disclaimed authority to discuss these matters. Brinn referred Scott to Dunn
19 One or two of the men who were on their week off and happened to be at their home%
In Fort Lauderdale at the time , signed their contracts at the Respondent 's office in
Fort Lauderdale.
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 807
and the latter referred Scott to Leonard, Respondent's attorney in Fort Lauderdale.
As Captain Brinn was in overall charge of the Port Canaveral operation and the only
management representative stationed at the premises, he was a proper person to whom
to address the Union's request for recognition and negotiation 20 Although Captain
Brinn, Hvide, and Dunn 21 were aware on March 15 of the contents of the Union's
letter and the meeting requested by the Union for 10 a.m. the following day in Brinn's
office, as previously found, they had made no effort to have a person with authority
to discuss these requested matters present at this meeting.
In the long-distance telephone conversation with Leonard, Scott again read a copy
of the Union's letter, again requested recognition and an opportunity to start negoti-
ations, and asked if Leonard could meet with him at Port Canaveral that afternoon.
When Leonard replied that he could not, Scott suggested the following day. Again
Leonard replied in the negative but stated that he could meet Scott at 2 p.m. the
following day at his office in Fort Lauderdale. However, Leonard admittedly made
it clear that under no circumstances would he discuss these subject matters unless
Scott first displayed the credentials of a union representative required by State statute.
When Scott replied that he could not afford to go running all over the country to meet
people, Leonard made no offer to come to Port Canaveral or to some other mutually
agreeable place.
The statutory requirement that an employer recognize and bargain with the
representative selected by a majority of the employees in an appropriate unit may
not lawfully be conditioned upon compliance with a State statute requiring certain
credentials of union representatives.22 Nor are the statutory requirements fulfilled
when the only place where the employer indicates a willingness to meet is located a
considerable distance from where the plant and the work of the employees involved
are located, in this case, 180 miles 23 It is the employer's obligation to furnish a
representative with authority to deal and negotiate with a union at the place where
the plant involved is located or at some other mutually agreeable place.24
While Scott was engaging in his telephone conversation with Leonard, Mate Chish-
olm, a supervisor within the meaning of the Act, conducted a poll of the employees'
desire for union representation under circumstances which I find to be violative of the
Act. He informed the members of the crew that Scott was there "making trouble,"
that they should have a vote and see "that we don't want any part of it" and "send
this man on the way." He handed out the ballots, participated in the voting, and
announced the result as being six to one against the Union. Such a poll, conducted
in the circumstances previously described and on the very day following Hvide's
promise to grant the employees' wage request, interfered with the employees' rights
guaranteed under Section 7 of the Act.25
Finally, with full knowledge by Hvide, Leonard, Dunn, and Brinn of the Union's
claim of its representative status for the Port Canaveral employees (which none of
them had disputed or questioned and which was an actual fact) and of its demand
for recognition and bargaining, Respondent on March 21 dealt directly with the
employees individually by executing individual employment contracts which granted
the promised wage increases and covered other terms and conditions of employment.
As the Union at that time was the properly designated bargaining representative, Re-
spondent's conduct in this respect alone constitutes a failure to comply with its
statutory obligation to bargain in good faith only with the exclusive bargaining repre-
sentative and "to treat with no other." 26 It is no defense, as Respondent contends,
20 See, e g., Michael Benevento and John Benevento d/b/a M Benevento Sand & Gravel
Co, 131 NLRB 358, and cases cited in footnote 14 of Intermediate Report
21 In view of the fact that Dunn had accompanied Hvide to Port Canaveral on March 15,
that he was present for the meeting with Scott in Brinn's office, and that he was Brinn's
immediate supervisor, I find that he also had been informed by Brinn of the contents of
the Union's letter and the meeting requested by Scott
r, Epptinger of Russell Co , 56 NLRB 1259; N.L R B v Dalton Telephone Company,
187 F. 2d 811, 812-813 (CA. 5), cert denied 342 U.S 824
23 See, e.g, Westinghouse Pacific Coast Brake Company, 89 NLRB 145, 174
24 See, e g., Great Southern Trucking Co v N L R B , 127 F. 2d 180 (C A. 4), cert.
denied 317 U S. 652, enfg. 34 NLRB 1068
75 See, e g., Crystal Laundry and Dry Cleaning Company, 132 NLRB 222
m Medo Photo Supply Corporation v N L R B , 321 U S 678, 684; Michael Benevento
and John Benevento d/b/a M. Benevento Sand and Gravel Co, 131 NLRB 358 ; Bilton.
Insulation, Inc., 129 NLRB 1296
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was merely following its past practice in this respect, or that the employees
initiated the request, or that Respondent had decided in January to grant the em-
ployees' requests but was delayed by the illness of General Manager Dunn. There
was no exclusive bargaining representative seeking recognition and negotiations in
prior years. Dunn had returned to work about February 20, 1961. Yet, Respond-
ent's decision was not communicated to the employees until March 15, the day after
Hvide had been apprised of labor difficulties at the Port Canaveral operations. As
previously found, the promises were made to induce the employees to reject the
Union. In any event, the Supreme Court has pointed out in Medo Photo Supply
Corporation v. N.L.R.B., 321 U.S. 678, 684, that "it is a violation of the essential
principle of collective bargaining and an infringement of the Act for the employer to
disregard the bargaining representative by negotiating with individual employees,
whether a majority or a minority, with respect to wages, hours, and working con-
ditions . . . bargaining carried on by the employer directly with the employees,
whether a minority or a majority, who have not revoked their designation of a bar-
gaining agent, would be subversive of the mode of collective bargaining which the
statute has ordained. .
Nor did the pendency of the Union's representation petition or the execution of
a consent-election agreement 27 relieve Respondent of its duty to bargain in the
circumstance of this case. "The filing of a petition does not constitute an irrevocable
commitment by the Union to establish its representative status only through a repre-
sentation proceeding." 28 In the face of Respondent's unfair labor practices, which
made a free election impossible, the Union made a timely withdrawal of its petition
and proceeded to establish its bargaining rights through this complaint proceeding.29
The Union's request for recognition and bargaining in an appropriate unit imposed
upon Respondent a duty to grant such recognition and to bargain which Respondent
failed to meet." At no time prior to this proceeding did Respondent question the
Union's majority status or the appropriateness of the unit. The relevant facts in this
case, including Respondent's unlawful conduct and the sequence of events, demon-
strate that Respondent's failure to comply with its statutory obligation was moti-
vated by a rejection of the collective-bargaining principle. Upon consideration of the
foregoing and the entire record as a whole, I find that Respondent's entire conduct
on and after March 15, 1961, and particularly on March 21, 1961, constituted a re-
fusal to recognize and deal with the Union in violation of Section 8(a)(5) and (1)
of the Act.
D. Interference, restraint, and coercion
In agreement with the General Counsel, I find that Respondent independently
interfered with, restrained, and coerced its employees in the exercise of their statutory
rights, in violation of Section 8(a) (1) of the Act, by the following conduct:
1. Captain Brinn's threats to Joseph Moschetto, the cook, about the middle of
January 1961, that if the Union came in the men would lose their uniforms, kitchen
privileges, and jobs, as previously found.
2. Hans Hvide's promises to the employees on March 15 of wage increases and
that everything would be "ironed out" to induce the employees to reject the Union
as their bargaining representative, as previously found.
3. The employee poll conducted by Mate Chisholm on March 16, under the
circumstances previously found.
4. Dealing directly with the employees and executing on March 21, 1961, the
individual employment contracts which granted wage increases and covered other
terms and conditions of employment, as previously found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close , intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
27 Respondent's actions in consenting to an election do not rebut the indicts of bad faith.
evidenced by its unlawful conduct. See, e g., Ti aders Oil Company of Houston, 119
NLRB 746, 750, enfd 263 F. 2d 835 (C.A. 5), cert. denied 361 U.S 829; Taylor-O'Brien
Corporation, 112 NLRB 1; The Warren Company, Incorporated, 90 NLRB 689, footnote 3..
28 Arts & Crafts Distributors , Inc., 132 NLRB 166.
E9 I bid.
PORT EVERGLADES TOWING COMPANY, LTD., ETC.
V. THE REMEDY
809
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Joseph V. Moschetto was discriminatorily discharged in viola-
tion of Section 8 (a) (3) and (1) of the Act, I will recommend that Respondent be
ordered to offer him immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have suffered because of the
discrimination against him by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of his discharge
to the date of Respondent's offer of reinstatement, less his net earnings during said
period, with backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.
Having found that Respondent has violated Section 8 (a) (5) and (1) of the Act
by failing and refusing to recognize and bargain collectively with the Union, I will
recommend that Respondent be ordered to bargain with the Union, upon request,
as the exclusive representative of all its employees in the appropriate unit concern-
ing rates of pay, wages, hours, and other terms and conditions of employment,
and, if an understanding is reached, embody such understanding in a signed agreement.
In view of the nature and extent of Respondent's unfair labor practices, I am
convinced and find that there exists the danger of the commission of similar and
other unfair labor practices proscribed by the Act. The preventive purposes of the
Act will be thwarted unless the Order is coextensive with the threat. In order there-
fore to make more effective the interdependent guarantees of Section 7 to prevent a
recurrence of unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, I
will recommend that Respondent be ordered to cease and desist from infringing
in any other manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. All employees at Respondent's Port Canaveral, Florida, operation employed
on the tugboats Hollywood and Mars, excluding shore-based personnel and super-
visors as defined in the Act, constitute a unit appropriate for the purposes of col-
lective bargaining with the meaning of Section 9(b) of the Act.
2. Associated Maritime Workers Local No. 8, affiliated with the International
Organization of Masters, Mates and Pilots, a labor organization within the meaning
of Section 2(5) of the Act, has been at all times on and after March 8, 1961, the
exclusive representative of all the employees in the aforestated appropriate unit for
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
3. By failing and refusing at all times on and after March 15, 1961, to recognize
and bargain collectively with the above-named labor organization as the exclusive
representative of its employees in the aforestated appropriate unit, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
4. By discriminating with respect to the hire and tenure of employment of Joseph
V. Moschetto, thereby discouraging membership in the above-named labor organiza-
tion, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
5. By the foregoing and by the conduct set forth in section III, D, supra, the
Respondent has interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor labor practices within the meaning of Section 8(a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not engaged in unfair labor practices by the discharge
of Michael J. Olivera.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case , I recommend that Hans J. Hvide , H. C. Nickerson,
8 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John E. Morris, Jr., and William F. Leonard, d/b/a Port Everglades Towing Com-
pany, Ltd., and Port Canaveral Towing Company, Port Canaveral, Florida, their
officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Associated Maritime Workers Local No. 8,
affiliated with the International Organization of Masters , Mates and Pilots, or any
other labor organization , by discriminatorily discharging or refusing to reinstate
any of their employees or by discriminating in any other manner in regard to their
hire and tenure of employment or any term or condition of employment.
(b) Refusing to recognize or to bargain collectively with respect to rates of
pay, wages, hours of employment, and other terms and conditions of employment,
with the above-named labor organization as the exclusive representative of their
employees in the following appropriate unit: All employees at Respondent's Port
Canaveral, Florida, operation employed on the tugboats Hollywood and Mars,
excluding shore-based personnel and supervisors as defined in the Act.
(c) Threatening employees with loss of uniforms , kitchen privileges , and their
jobs, or with any other economic reprisals , if a union were designated as their bar-
gaining representative.
(d) Promising or granting wage increases or any other economic benefits to induce
the employees to reject the Union as their bargaining representative, provided, how-
ever, that nothing herein shall be construed as requiring the Respondent to vary
or abandon any economic benefit or any term or condition of employment which
it has heretofore established.
(e) Dealing, directly or indirectly, with its employees with respect to terms and
conditions of employment or executing individual employment contracts covering
terms and conditions of employment, with knowledge of the existence of a properly
designated bargaining representative for said employees.
(f) Polling of their employees to determine their union sympathies and desires in
a manner constituting interference , restraint, and coercion within the meaning of
Section 8 (a) (1) of the Act.
(g) In any other manner interfering with, restraining, or coercing their employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organizations, to bargain collectively
through representatives of their own choosing , and to engage in any other mutual
aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named labor organization
as the exclusive representative of the employees in the above -described appropriate
unit with respect to rates of pay, wages, hours of work, and other terms and
conditions of employment , and embody in a signed agreement any understanding
reached.
(b) Offer to Joseph V. Moschetto immediate and full reinstatement to his
former or to a substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay he may
have suffered as a result of his discharge , in the manner set forth above in the
section entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other data necessary to analyze and
,compute backpay.
,(d) Post on the tugboats operating at Port Canaveral, Florida, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Twelfth Region, shall, after being duly signed by authorized
representatives of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent to insure that said notices
are not altered ; defaced , or covered by any other material.
(e) Notify the Regional Director for the Twelfth Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply, herewith. '
I further recommend that, unless within the prescribed period the Respondent
notifies the said Regional Director that it will comply with the foregoing recom-
PORT EVERGLADES TOWING COMPANY, LTD., ETC. 811
mendations, the National Labor Relations Board issue an order requiring the Re-
spondent to take the action aforesaid.
I further recommend that the complaint be dismissed insofar as it alleges that
Respondent violated the Act by the discharge of Michael J. Olivera.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Re-
lations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Associated Maritime Workers Local
No. 8, affiliated with the International Organization of Masters, Mates and Pilots,
or any other labor organization of our employees, by discriminatorily discharg-
ing or refusing to reinstate any of our employees, or by discriminating in any
other manner in regard to their hire and tenure of employment or any term or
condition of employment.
WE WILL NOT threaten employees with loss of uniforms, kitchen privileges,
and their jobs, or with any other economic reprisals, if a union were designated
as their bargaining representative.
WE WILL NOT promise or grant wage increases or any other economic bene-
fits to induce employees to reject the Union as their bargaining representative,
provided, however, that nothing herein requires us to vary or abandon any
economic benefit or any term or condition of employment which has heretofore
been established.
WE WILL NOT deal, directly or indirectly, with our employees with respect to
terms and conditions of employment, nor execute individual employment con-
tracts covering terms and conditions of employment, with knowledge of the
existence of a properly designated bargaining representative for said employees.
WE WILL NOT conduct polls of our employees for the purpose of ascertaining
their union sympathies or desires in a manner constituting interference, restraint,
and coercion within the meaning of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to form, join, or assist
the above-named or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representative of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement. The bargaining unit is:
All employees at our Port Canaveral, Florida, operation employed on the
tugboats Hollywood and Mars, excluding shore-based personnel and super-
visors as defined in the Act.
WE WILL offer to Joseph V. Moschetto immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and we will make him whole for any
loss of pay suffered as a result of his discharge.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
HANS J. Hv!DE, H. C. NICKERSON, JOAN E. MORRIS, JR.,
AND WILLIAM F. LEONARD, D/B/A PORT EVERGLADES
TOWING COMPANY, LTD., AND PORT CANAVERAL TOW-
ING COMPANY,
Employer.
Dated------------------- By--------------------------------- ----------
t tR
Dated-------------------
epresen a ive ) ((
By--------------------------------------
(Representative ) (Title)
This notice must remain posted for.. 60 days from-the date . hereof, and must , not be
.altered, defaced, or covered by any other material.