Sabine Towing & Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 941 (N.L.R.B. 1976)

SABINE TOWING & TRANSPORTATION CO
Sabine Towing & Transportation Co , Inc and Russell
D Haynes and William T Mayo
Sabine Towing & Transportation Co , Inc and Seafar-
ers International Union of North America , Atlantic,
Gulf, Lakes and Inland Waters District , AFL-CIO,
Petitioner Cases 23-CA-4996, 23-CA-5403, and
23-RC-3606
June 16, 1976
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On July 17, 1975, Administrative Law Judge Ivar
H Peterson issued the attached Decision in this pro-
ceeding On August 18, 1975, he issued an erratum
thereto Thereafter, Respondent, General Counsel,
and the Charging Parties and Petitioner (herein SIU)
filed exceptions and supporting briefs The Charging
Parties and Petitioner also filed a reply brief I
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 au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings 2 and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith
1 We agree that Respondent's discharge of Rus-
sell D Haynes on January 26, 1974, violated Section
8(a)(1) and (3) We do not, however, agree with the
Administrative Law Judge's reliance upon Kansas
Meat Packers 3 as a basis for denying Respondent's
motion to defer to the settlement agreement relating
to the discharge which was executed pursuant to the
contractual grievance-arbitration procedure
Kansas Meat Packers involved a prearbitration re-
quest to defer to a contractual grievance procedure
i The National Maritime Union of America AFL-CIO was permitted to
intervene on the basis of its showing of interest and participation in the
election but did not participate in the hearing herein Sabine Independent
Seamen s Association (herein SISA) was also permitted to intervene
2 In the portion of his Decision entitled The Termination of Haynes
the Administrative Law Judge inadvertently erred in stating that Haynes
was messman aboard the Trinity until February 26 1974 Haynes was termi
nated on January 26 1974 and the Administrative Law Judge s Decision is
hereby amended accordingly
The Administrative Law Judge inadvertently erred in quoting Captain
Rollins request for tranfer of Mayo The word already in the first sen
tence of the 11th paragraph of sec II D The Termination of Mayo
should be always and the Decision is amended accordingly
3 Kansas Meat Packers A Division of Aristo Foods Inc 198 NLRB 543
(1972)
941
under the Board's Collyer doctrine 4 Respondent's
motion here, on the other hand, is actually a request
to defer to an existing arbitration award under our
Spaelberg 5 doctrine Accordingly, Kansas Meat Pack-
ers is inapposite to these facts
We do feel, however, that deferral to the settle-
ment agreement would be inappropriate The "Settle-
ment of Grievance" executed by the Respondent and
SISA, and agreed to and accepted by Haynes, was an
informal settlement pursuant to the grievance proce-
dure contained in the collective-bargaining contract
between Respondent and SISA This agreement was
entered into by the parties thereto without the
Board's participation or approval and contains no
determination of the legality of Haynes' discharge
As far as the record shows, the issue of whether
Haynes' discharge violated Section 8(a)(3) of the Act
was never raised, much less resolved during the set-
tlement negotiations In this situation, we find that
deferral under Spielberg would be inappropriate and
the legitimacy of Haynes' discharge is properly be-
fore us As noted above, we agree with the Adminis-
trative Law Judge that Haynes' discharge constituted
both an unfair labor practice and objectionable con-
duct 6
2 We also agree with the Administrative Law
Judge's findings that by placing William T Mayo on
forced vacation Respondent violated Section 8(a)(1)
of the Act, and by thereafter refusing to reassign him
to the Pecos, Respondent constructively discharged
him in violation of Section 8(a)(1), (3), and (4)
The Administrative Law Judge inadvertently
failed to rule on Respondent's motion to defer
Mayo's discharge to the grievance procedure in the
SISA collective-bargaining agreement We find this
an inappropriate situation for deferral I since Mayo,
an SIU supporter, and both parties to the collective-
bargaining agreement (Respondent and SISA) have
an apparent antagonism of interest which warrants
the utilization of Board processes to insure the full
protection of Mayo's rights under the Act 8
3 We find merit in the General Counsel and
SIU's exception to the Administrative Law Judge's
failure to find that Captain Salfen's posting of a
warning notice threatening employees with discharge
for engaging in protected activities violated Section
8(a)(1) In discussing Mayo's termination, the Ad-
4 Collyer Insulated Wire A Gulf and Western Systems Co 192 NLRB 837
(1971)
5 Spielberg Manufacturing Company 112 NLRB 1080 (1955)
6 Member Jenkins agrees with his colleagues both in the result and in the
reason they express He would also note however that in accordance with
his dissents in Collyer Insulated Wire Inc supra and succeeding cases he
would not in any event defer to a settlement of this type
7 Member Jenkins would not in any event defer to arbitration in this
case See In 6
8 Kansas Meat Packers supra
224 NLRB No 135
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministrative Law Judge found that Captain Salfen
was prompted to post the warning notice threatening
dismissal of employees by the letter Mayo wrote on
behalf of Omar in response to a warning notice Omar
had received from Chief Mate Granger This letter
denied the charges within the warning notice, ex-
plained a recent incident , and complained about a
prejudicial remark Boatswain Lester had made a few
days before Shortly after the receipt of the Mayo-
Omar letter , Captain Salfen posted the notice which
threatened employees with dismissal for, inter alia,
personal conflicts among themselves and for protest-
ing disciplinary warning notices The captain admit-
ted that the notice resulted from the Mayo-Omar let-
ter and was designed to discourage and prohibit such
concerted activity in the future Accordingly, we find
the notice violated Section 8(a)(1)
4 The Administrative Law Judge treated several
of the election objections as if they were 8(a)(1) un-
fair labor practices No charge was ever filed with
respect to such conduct , no complaint was issued
thereon, and it is evident that the testimony relating
thereto was elicited on those days of the hearing
which the parties understood to be set aside for the
representation case Accordingly, we shall examine
these incidents only in the context of the representa-
tion case 9
5 In our earlier Decision , Order, and Direction of
Second Election,1° we ordered Respondent to pro-
vide Petitioner's organizers with reasonable access
during off-duty hours, to its vessels and employees
for organizational purposes We agree with the Ad-
ministrative Law Judge that the appearance at, and
frequent interruptions of, SIU shipboard organiza-
tional meetings by Respondent's licensed personnel
deprived Petitioner of the reasonable access to the
employees which we ordered We do not, however,
adopt his finding that Chief Mate Foster' s appear-
ance and remarks made at the Tally Ho Bar were
objectionable Having chosen to continue its organiz-
ing at a public bar often frequented by the crewmem-
bers, Petitioner removed itself from the protection of
the rules established for organizing aboard the ship
Instead, this encounter must be viewed in the context
of rules applicable to organizing in a public gathering
place 11 Since Foster 's remarks were not of a threat-
ening , coercive, or intimidating nature , but instead
were merely a statement of his own personal opinion
concerning benefits of the SIU, they fall within the
scope of Section 8 (c) and are not objectionable
6 We do not agree with the Administrative Law
Judge that the arrangements for the voting of the
Pecos crewmembers demonstrated Respondent's fa-
voritism for the SISA At the preelection conference
with representatives of all parties present, it was
agreed that all vessels except the Pecos would be vot-
ed on their first arrival at a U S A continental port
after February 4, 1974 In order to facilitate voting,
the Pecos was to be voted on its first arrival at Wil-
mington California, after February 4, 1974 At the
time of the conference , Respondents stated that the
Pecos was expected to arrive at Wilmington on or
shortly after February 4
The Pecos is chartered to the Shell Oil Company
and its schedule and route of travel is controlled by
Shell On January 30, 1974, Respondent was in-
formed by Shell that the Pecos' arrival in Wilmington
would be delayed Respondent immediately in-
formed the Board of the change and this information
was passed on to the Petitioner Petitioner then
sought to change the voting of the Pecos to a differ-
ent port of arrival, shortly after February 4 Respon-
dent did not agree to the suggested change in voting
procedure Following a meeting of the parties on
February 4, 1974, Regional Director Baldovin stated
that Petitioner's proposed alternate voting plan
would not allow Board agents sufficient time to ar-
range for the election and in any event he could not
alter the voting procedure from that set forth in the
consent agreement Subsequently, the Pecos was vot-
ed on February 13, 1974
Petitioner asserts that Respondent gave misleading
information about the Pecos' itinerary at the preelec-
tion conference and in so doing sought to favor the
SISA by the delay in voting that ship However, the
record does not support this contention Respondent
itself had no control over the movement of the vessel
There is no evidence that Respondent withheld infor-
mation relative to the Pecos ' location or its schedule
from the parties , and as soon as it learned of the
delay, Respondent notified the other parties More-
over, the decision not to alter the agreed-upon elec-
tion procedure was made by the Regional Director
and was properly within his discretion 12 Respondent
was clearly within its rights not to consent to the
voting modification , and its insistence upon adhering
to the agreed-upon procedure does not establish
either an effort to mislead or favoritism towards the
SISA, in the absence of evidence that employees
were denied the right to vote 13 Accordingly, we over-
rule this objection
7 We do not adopt the Administrative Law
12 Milham Products Co Inc 114 NLRB 1544 1546 ( 1955) Augusta Car
' See Florida Steel Corporation 214 NLRB 264 (1974) Locust Industries tae Company 120 NLRB 73 (1958)
Inc 218 NLRB 717 (1975) 3 See Yerges Van Liners Inc 162 NLRB 1259 ( 1967) Compare Miami
Id Sabine Towing & Transportation Co Inc 205 NLRB 423 (1973) Paper Board Mills Inc 115 NLRB 1431 (1956 ) Versail Manufacturing Inc
11 Cf Atlanta Gas Light Company 162 NLRB 436 ( 1966) Subsidiary of Philips Industries Inc 212 NLRB 592 (1974)
SABINE TOWING & TRANSPORTATION CO 943
Judge's finding that Respondent sought to favor the
SISA by alerting off-duty seamen to appear to vote
aboard the Trinity rather than at the Federal Office
Building in Port Arthur, Texas, where they were
scheduled to vote Petitioner contends that Respon-
dent arranged for the off-duty seamen to vote at the
Trinity in order to overwhelm the 19 Trinity crew-
members by creating the impression that a majority
of the voters favored SISA
Many of the off-duty employees who voted on the
Trinity lived nearby Respondent's employment offi-
cer testified that several employees had called the of-
fice on the days before the voting to inquire about
the Trinity arrival date, but flatly denied contacting
the off-duty employees to arrange for them to vote at
the Trinity
Petitioner further alleges that by refusing to permit
certain employees to board the Trinity to vote be-
cause their names were not on a previously agreed-
upon eligibility list, Respondent was able to unilater-
ally determine voter eligibility and thus favor the
SISA
Twenty-six off-duty seamen and nineteen assigned
crewmen voted aboard the Trinity A list of all eligi-
ble voters, prepared by Respondent at Petitioner's
request, was used to determine who was permitted on
the ship to vote At least two employees who sought
to vote were not permitted aboard ship as their
names did not appear on the eligibility list
In our judgment, the evidence is insufficient to es-
tablish that the voting of off duty seamen at the Trin
ity was objectionable, or that it established Re-
spondent's favoritism for the SISA over the SIU
There is no evidence that the Respondent contacted
the employees to arrange for them to vote at the
Trinity nor is there any evidence that Respondent
knew or anticipated that the off-duty employees
would be present to vote at that vessel Further, dur-
ing the first election, off-duty employees voted on the
ships In light of this history, and since the off-duty
employees did not have ready access to a copy of the
Notice of Election to determine where to vote, it is
not unreasonable to expect that a number of employ-
ees would show up to vote at the Trinity near their
homes
The contention that Respondent was unilaterally
able to determine voter eligibility by allowing only
persons listed on the prearranged eligibility list
aboard ship is likewise without merit The two voters
denied access to the Trinity still had the opportunity
to vote at the Port Arthur polling site and there is
evidence that at least one voter did so
8 We do not adopt the finding that Respondent
gave financial and moral support to the SISA by per-
mitting Pee Wee Clark and Early Barnett, the two
principal SISA officers, to conduct union business
and organizational efforts on company time Barnett
and Clark are Respondent's two shore employees
whose job duties require them to visit ships in port in
order to deliver mail, transport crewmembers, deliver
payroll, and transfer supplies Normally, their duties
at a particular ship require only an hour or so to
complete Upon completion of their duties these em-
ployees normally return home, but they are free to
spend their off-duty hours as they wish, so long as
the company can contact them if needed Both are
on call 24 hours a day, 7 days a week, and receive a
monthly salary
Clark admitted making trips to the west coast, Bal-
timore, and Massachusetts for SISA campaign pur-
poses, but indicated that he paid for these trips out of
his own pocket Further, after completing company
business aboard the ships, Clark frequently stayed
over and organized for the SISA during the hour al-
located to the SISA under the established rules He
denied boarding ships to campaign at any other
times 14
There is no evidence to indicate that Respondent
gave financial support to either Barnett or Clark
Further, it is clear that Clark and Barnett's campaign
efforts were limited to off-duty hours Upon these
facts, we cannot find any objectionable assistance to
the SISA Indeed, efforts by the Respondent to re-
strict Clark or Barnett's off-duty activities, or to reg-
ulate their spending of personal funds would itself
have been objectionable Accordingly, we find no ba-
sis for concluding that Respondent gave financial or
moral support to the SISA
9 We likewise disagree with the Administrative
Law Judge's findings that Respondent showed favor-
itism for the SISA by permitting Representative Jabo
Y Young to board the Brazos and Representative
Otis B Barnes to board the Trinity following preelec-
tion conferences at those vessels, while denying this
privilege to SIU representatives The record discloses
that Respondent's representatives boarded the ships
in order to carry out company business There is no
evidence that they engaged in any electioneering
while on board or in any other way interfered with
the election In both cases the Board agent conduct-
ing the election was aware of-and had approved-
their presence aboard ship In our judgment, this
does not constitute objectionable conduct
10 We do not adopt the findings that Barnett's
transportation of a crewmember, Eddie Mosley,
from Cartaret, New Jersey, to New Haven, Connecti-
cut, to meet the Trinity constitutes objectionable con-
duct SIU representative Ghdewell asked Mosley if
14 Barnett did not testify at the hearing
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he wanted to travel to the new ship with him Mosley
declined, stating that he was supposed to go with
Barnett Barnett's transporting of Mosley to the ship
was within Barnett's job duties Mosley apparently
could have traveled to New Haven with Glidewell
had he so desired, but instead chose to go with Bar-
nett In the absence of any evidence that Mosley was
forced to travel with Barnett for partisan purposes,
we conclude that the mere transportation of Mosley
to a new vessel is not objectionable conduct
11 Similarly, we do not agree with the Adminis-
trative Law Judge's finding that Clark improperly
transported employees from the Tampa airport to the
polling place at the Guadalupe of February 5, 1974
Clark testified that he was on the same flight to Tam-
pa as several crewmembers, but denies that he escort-
ed them to the ship Loyice Ebanks, one of the sea-
men aboard the plant, corroborated Clark's
testimony by stating he saw Clark at the dock, but at
no other time in Tampa In the absence of evidence
to support this finding, we do not adopt it
12 Finally, we do not adopt the Administrative
Law Judge's conclusion that Respondent gave pref-
erence to SISA and nonunion seamen in its hiring
practices This contention is essentially an 8(a)(3) un-
fair labor practice charge In order to sustain the ob-
jection, an 8(a)(3) determination would have to be
made It has long been held that where conduct al-
leged to have interfered with an election can only be
found to be such interference upon an initial deter-
mination that an unfair labor practice had been com-
mitted, the Board will not examine such conduct as
objections in a representation case 15
CONCLUSIONS OF LAW
I Sabine Towing & Transportation Co, Inc, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act Seafarers Inter-
national Union of North America, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO, and
Sabine Independent Seamen's Association are labor
organizations within the meaning of Section 2(5) of
the Act
2 By discharging Russell D Haynes on January
26, 1974, because he supported the Seafarers Interna-
tional Union and engaged in organizational activities
on its behalf, Respondent violated Section 8(a)(3)
and (1) of the Act
3 By placing William T Mayo on forced vacation
Respondent violated Section 8(a)(1) of the Act, and
by thereafter constructively discharging him on Jan-
15 Texas Meat Packers Inc Texas Meat and Provision Co 130 NLRB 279
(1961) Unlike the Haynes discharge this conduct was not alleged as an
unfair labor practice
uary 31, 1975, for engaging in protected activities,
Respondent violated Section 8(a)(4), (3), and (1) of
the Act
4 By posting a warning notice on the Pecos on
October 26, 1974, threatening employees with dis-
missal for questioning disciplinary warnings, Re-
spondent violated Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
6 The following employees constitute an appro-
priate unit for the purpose of collective bargaining
within the meaning of Section 9(c) of the Act
All unlicensed employees on all seagoing ships
of the Company, including boatswain, quarter-
masters, able seamen, ordinary seamen, pump-
men, oilers, wipers, firemen-watertenders, cooks,
and messboys, excluding stewards, radio opera-
tors, guards, watchmen, and supervisors as de-
fined in the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board orders that the Respondent, Sabine
Towing & Transportation Co, Inc, Port Arthur,
Texas, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Threatening employees with discharge or other
reprisals if they engage in protected concerted activi-
ties for the purpose of mutual aid or protection
(b) Discharging employees to discourage member-
ship in the Seafarers International Union or any
other labor organization
(c) Discharging employees for giving testimony
under the Act
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act
2 Take the following affirmative action to effectu-
ate the policies of the Act
(a) Offer to Russell D Haynes and William T
Mayo immediate and full reinstatement to their for-
mer jobs or, if their jobs no longer exist, to substan-
tially equivalent jobs without prejudice to their se-
niority or other rights and privileges, and make them
whole in the manner set forth in the Section of the
Administrative Law Judge's Decision entitled "The
Remedy "
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
SABINE TOWING & TRANSPORTATION CO 945
other records necessary to analyze the amount of
backpay due and to analyze reinstatement rights un-
der the terms of this Order
(c) Post at its premises in Port Arthur, Texas, and
on each of its vessels copies of the attached notice
marked "Appendix " 16 Copies of said notice, on
forms provided by the Regional Director for Region
23, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other materi-
al
(d) Mail to each of its employees, at their home
and ship addresses, a signed copy of the foregoing
notice
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
IT IS FURTHER ORDERED that the election held in
February 1974, in Case 23-RC-3606 be, and hereby
is, set aside, and that said case is hereby remanded to
the Regional Director for Region 23 for purposes of
conducting a new election
[Direction of Third Election and Excelsior foot-
note omitted from publication ]
WE WILL NOT do anything to interfere with
these rights
WE WILL NOT threaten our employees with dis-
charge or other reprisals if they engage in pro-
tected concerted activities for the purpose of
mutual aid or protection
WE WILL NOT discharge our employees be-
cause they support Seafarers International
Union of North America, Atlantic, Gulf, Lakes
and Inland Waters District, AFL-CIO, or any
other labor organization
WE WILL NOT discharge our employees be-
cause they have given testimony under the Act
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under the Act
WE WILL offer immediate and full reinstate-
ment to Russell D Haynes and William T
Mayo to their former fobs or, if their fobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges, and WE WILL make
each of them whole for any loss of earnings they
may have suffered by reason of their discrimina-
tory discharges
WE WILL mail a signed copy of this notice to
all our employees
SABINE TOWING & TRANSPORTATION, CO,
INC
16 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post and mail this notice
Section 7 of the National Labor Relations Act
gives all employees rights
To organize themselves
To form, join, or support unions
To bargain as a group through representa-
tives of their choice
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities
DECISION
STATEMENT OF THE CASE
IVAR H PETERSON, Administrative Law Judge This con-
solidated proceeding was heard before me in Houston,
Texas, on 16 hearing days commencing September 16,
1974, and concluding on March 7, based on objections to
an election filed by Seafarers International Union of North
America, Atlantic, Gulf, Lakes and Inland Waters District
AFL-CIO, et al, herein called the Union or SIU, and
charges filed by Russell D Haynes in Case 23-CA-4996
on February 14, 1974, and, in Case 23-CA-5403, filed by
William T Mayo, an individual, on December 30, 1974
In his report on objections and challenges, issued April
9, 1974, the Regional Director recommended that certain
objections be overruled, he found that three of the chal-
lenged voters were ineligible and recommended that these
challenges be sustained, and that the remaining eight chal-
lenged ballots were insufficient in number to affect the re-
sults of the election He found that certain objections were
lacking in merit and recommended that they be overruled
As to other objections, he found that they were the subject
of unfair labor practice charges and, accordingly, recom-
mended that they be consolidated with either or both un
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fair labor practice cases for hearing before an Administra-
tive Law Judge in the event complaint issued in either or
both of the unfair labor practice cases, i e, Case 23-CA-
4996 and Case 23-CA-5002
The complaint in Case 23-CA-4996 was issued by the
Regional Director for Region 23 on May 1, 1974, and al-
leged that the Respondent, on January 26, 1974, dis-
charged Russell D Haynes because he hadjoined or assist-
ed the Union or engaged in other protected concerted
activities, all in violation of Sections 2(6) and (7) and
8(a)(3) and (1) of the Act The complaint in Case 23-CA-
5403, alleging violations of Section 8(a)(1), (3), and (4) of
the Act concerning the termination of Mayo, was issued on
February 3, 1975
In its duly filed answers, the Respondent admitted cer
tarn allegations of the complaints but denied that it had
engaged in any conduct constituting unfair labor practices
In Case 23-CA-4996, the Respondent affirmatively alleged
that Haynes filed a grievance which was processed for him
by the Sabine Independent Seamen's Association, herein
called the SISA, the labor organization which represents
the Respondent's employees for the purpose of collective
bargaining This grievance was, according to the Respon-
dent, considered and discussed between Haynes, the SISA
and the Respondent, and in consequence Haynes was rein-
stated and made whole for all wages, travel allowances,
and interest thereon in accordance with the Board's usual
practice Accordingly, the Respondent alleged that the
principles announced by the Board in Collyer Insulated
Wire, A Gulf and Western Systems Co, 192 NLRB 837
(1971), were applicable `for the reason that no good could
be served by conducting a hearing and the Respondent
believes that the matter should be deferred [to arbitration]
in accordance with" that decision
In its answer in the complaint case involving Mayo, Case
23-CA-5403, dated February 12, the Respondent denied
the commission of any unfair labor practices and, by way
of special defense, alleged that Mayo was not entitled to
backpay in that he voluntarily requested vacation leave
which was extended from November 1 to December 9,
1974 Thereafter he was granted additional leave for medi-
cal reasons and, on December 23, was informed that he
would be reassigned to one of the Respondent's other ves-
sels However, according to the Respondent, Mayo did not
maintain communications with the Respondent concerning
his availability for reassignment as required by the
Respondent's procedures and, in consequence, the Respon-
dent was forced to contact him on January 31 and instruct
him to report for duty aboard the SS Guadalupe The Re
spondent further alleged that Mayo refused to report for
duty and informed it that he would work only aboard the
SS Pecos In view of these considerations, the Respondent
requested that the complaint be dismissed in its entirety
During the course of the hearing on January 15, in re
sponse to a motion made by the SIU to strike the testimo-
ny of a witness, one Jesse Davis, I in substance granted the
motion by ruling that while I would not order that his testi-
mony be physically stricken, I would disregard it I
1 In making this ruling I stated that I felt the testimony should be physi
tally preserved so that if an appeal were taken from my ruling the reviewing
Upon the basis of the entire record in the case, and from
my observation of the witnesses as they testified and care-
ful consideration of the briefs filed with me on May 2 by
counsel for all parties, I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent is engaged in operating some seven ves-
sels between Puerto Rico and the mainland and along the
eastern seaboard from the New York area to Portland, Or-
egon It has been involved in prior proceedings with the
Board Thus, the first Board-conducted election of the un-
licensed personnel employed was set aside after lengthy
hearings in 1971 and 1972 and the Board, in addition,
found certain unfair labor practices The Board directed a
new election and ordered that the Respondent permit
union organizers access to its vessels and to cease surveil
lance, illegal threats, and illegal hiring practices There is
no dispute that the Respondent is engaged in commerce
within the Act, neither is there any controversy concerning
the status of the SIU and the SISA as labor organizations
within the meaning of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Preliminary Statement
Counsel for the SIU points out that after some 4 years of
litigation, this case is still unresolved In his words, the case
,is to the litigants a startling example of deja vu, albeit that
Sabine has acted with a little, but not much more, sophisti-
cation in attempting to protect its own company dominat-
ed union," the SISA, and "to defeat' the SIU He contin-
ues by stating that the "second election in 1974 which
resulted in the SIU s loss by only 9 votes far closer than in
1971 when its rights protected by the Act were literally
thrown into the sea, was permeated with the same type of
conduct that was condemned by the Board in its earlier
decision '
In view of the length of the record and the substantial
lapse of time involved in the processing of these proceed
ings, I have come to the conclusion that I should take steps
to expedite the issuance of my decision In this regard, it
should be observed that the SIU filed voluminous objec
tions to the election, some 40 in number, many of which
had various subheadings Two terminations are involved
those of Haynes and Mayo, as well as a substantial number
of alleged infractions of Section 8(a)(1) of the Act All
authority would have before it the actual testimony and grounds for my
ruling Thereupon the SISA appealed my ruling and under date of January
20 the Board granted the appeal and reversed my ruling Under date of
January 23 the SIU applied to the Board for reconsideration of its action
this application was denied On February 28 upon motion of counsel for
the General Counsel I issued a telegraphic order that all cases be console
dated On March 4 1 issued a further telegraphic order stating in substance
that having that day received the opposition of the Respondent to the mo
tion of counsel for the General Counsel to consolidate and having consid
ered the same the order of February 28 setting the resumption of the hear
mg for March 5 was affirmed in all respects
SABINE TOWING & TRANSPORTATION CO
these have been very capably briefed by counsel and I have
examined their briefs with care I have come to the conclu
sion that, in addition to dealing with the terminations of
Haynes and Mayo, I will select what I regard as the most
serious alleged violations of Section 8(a)(1) of the Act,
which are also incorporated in the objections to the elec
tion, and state my findings and conclusions on these By
proceeding in this fashion it seems to me that the matter
will be expedited, without sacrificing the ends of justice In
so doing, I do not wish it to be understood that I have
ignored arguments made concerning allegations not treat
ed in this decision I have considered them
B The Termination of Haynes
Haynes was employed as a messman in the officers mess
on the SS Trinity from December 18, 1973 to February 26,
1974 When he joined the vessel, Captain McCluskey was
in charge, he was replaced by Captain Walter E Smith on
January 8 During December, Walter Casmire was the
steward, he was replaced in January by one Steve
Vaughan Haynes had been a member of the SIU, on a
somewhat intermittent basis, since 1969 About January
10, Haynes received his SIU book and for 2 days thereafter
wore his SIU pin This action on his part, somewhere be-
tween January 12 and 15, included meal hours when he
was serving the ship's licensed officers So far as appears,
no other member of the crew indicated his support of the
SIU in this manner Several office*s noticed that he was
wearing an SIU pin and commented upon it Haynes re-
plied to their comments by stating that he was a member of
the SIU and that he believed in what the SIU had to offer
and, in fact, had previously sailed on a SIU ship Haynes
also undertook to speak to the other members of the crew
and to urge them to vote for the SIU in the election that
was to occur in February He spoke to his fellow crewmen
in the crew's mess, which is located between the passage-
way and the aft section, conversations in that area could
be overheard by those who were passing through There is
evidence that the first assistant engineer, whose name he
did not recall, overheard such conversations and that on
another occasion Steward Casmire overheard the conversa-
tion Haynes had with Chief Pumpman White 2
On the first day that Haynes wore his SIU pin, he was
criticized for the manner in which he served white bread
Prior to that time, Steward Casmire had instructed him
that if bread was not listed on the menu, he should just put
two or three packages of bread on the table and allow the
officers to take it from the wrapper and, if they wanted the
bread served to them on a plate, to send them to him In
accordance with these directions, Haynes had served white
bread and had, so far as appears, never been criticized
2 Haynes was acquainted with Thomas Glidewell a patrolman for the
SIU to the extent that he had met and talked with him a few times Haynes
first wore his SIU button several days after the vessel left port Captain
Smith made no comment to him concerning the button although Haynes
testified he was very sure that the captain had observed it He testified
that he wore it as he served meals in the officers mess and that on several
occasions officers commented about it Haynes also testified that he did not
observe any other member of the crew on board the Trinity wearing an SIU
button
947
However, it appears that on the first day that he wore his
SIU pin, Captain Smith asked for bread and Haynes, in
accordance with his understanding of the instructions he
had received from Steward Casmire, placed the container
of bread near Captain Smith The latter then asked why
Haynes did not bring it to them on a plate to which
Haynes responded that the steward told me to serve it this
way You want it on a plate, I'll go get one " Thereupon
Captain Smith called for Steward Casmire and asked him
whether Haynes had in fact been ordered to serve bread in
that fashion 3
During this meal, and some 5 or 10 minutes after the
so-called "bread" incident, the chief engineer entered the
saloon mess, sat down and ordered some biscuits This oc-
curred some 10 minutes after the meal hour had ended,
Haynes left the saloon mess and told Steward Casmire that
the chief engineer desired some biscuits and asked him
whether he (Casmire) wished to serve him To this, so the
testimony goes Casmire replied `that s okay I'll bring it
down to him Haynes thereupon went back to the mess
hall to clear the opposite side of the table, the chief engi-
neer then asked him for the biscuits and Haynes replied
that the steward was bringing them
At or about that time, the chief engineer began accusing
Haynes of being a "smart ass" and then Casmire came out
with the biscuits and the captain and the chief engineer
finally left the area, advising Haynes that any time that he
was expected to work after meal hours he would be paid
overtime and that he should not "give nobody any crap
about it " Some 15 minutes later Haynes told Casmire that
he did not like being called a liar, following this, Haynes
called Casmire a liar and the two of them engaged in mutu-
al accusations
About 30 minutes after the noon meal, Svendson was
cleaning up the radio operator's room As he was going out
to empty the garbage Captain Smith came in and asked
the radio operator for the name of the mess man in the
officers lounge The radio operator said that he did not
know and then Captain Smith asked Svendson, who re-
plied that the individual involved was Haynes and the mess
man for the crew was Joe Sturrock Thereupon, Captain
Smith consulted the clipboard hanging near the radio and
went down the names of the members of the crew listed on
the board and stopped at the name of Haynes He then
stated that Haynes was "the man I want to get" Smith
denied that he made this statement and testified that by
that time he most certainly would have known the names
of all members of the crew However, on that date, he had
been assigned to the vessel for only 6 or 7 days and the
record shows, that his recollection of the names of other
members of the crew was not entirely accurate On the
record, it seems not unlikely that Smith did not know
Haynes name
During the supper meal that day the third mate who
There is evidence from Rudolph Svendson a member of the crew that
after Haynes had explained that his instructions from the steward nad been
that bread was not to be put on a plate unless it had been listed on the
menu the captain told him to put the bread on the plate Thereupon
Haynes Svendson testified said I find that funny because on an SIU ship
they always serve bread on a plate Thereupon so he testified Captain
Smith replied Well you re not on an SIU ship at the present time You re
on my vessel and you re to follow my orders
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listened to Haynes complain about what had occurred at
the dinner meal, made the statement , "I can't figure it out
why he would act that way9 But upon looking up, he saw
the pin Haynes was wearing and, laughing, said, "I think I
know why now "
Haynes was discharged on January 26 The circum-
stances leading up to this event may be described as fol-
lows Haynes wished to mail a letter as soon as the Trinity
docked in Revere, Massachusetts Promptly after break-
fast, Haynes, and the other mess man (Sturrock), and the
wiper went on shore Apparently there were no stores or
shops around and no mailbox Thereupon, Haynes decided
that he had to go into the city of Boston in order to mail
the letter In this connection, it may be noted that earlier
he had given a letter to another crewman but it was mailed
without having a stamp affixed and, in consequence, he
wished to mail this letter himself Haynes and his compan
ions walked until they were approximately a mile from the
ship At that point, Haynes gave Sturrock $5 and asked
him to "pull,' or serve the next meal, a task assigned
Haynes Sturrock agreed and went back to the ship, while
Haynes went into the city of Boston 4
Haynes came back to the Trinity about 3 30 in the af-
ternoon, in view of the fact that the ship was scheduled to
sail about 5 30 or 6 p in and because it was necessary that
he be back in order to set up for the evening meal When
he arrived on the ship and climbed to the top of the gang
plank, an able bodied seaman, Danny Davis, came to him
and said, "I hear you're fired " To this, Haynes retorted,
"Well, they don't have no reason to fire me " At about that
time, Haynes heard Captain Smith, in a rather loud voice,
call from the second level of the forward house, telling
Haynes to go pack his gear and then sign off At that point,
Captain Smith had Haynes' pay and termination notice
prepared, after saying that Haynes had failed to show for
the noon meal Immediately after the meal Captain Smith
told the steward and the radio operator that Haynes was
fired
Haynes was acquainted with Thomas Glidewell, a pa-
trolman for the SIU, to the extent that he had met and
talked with him a few times Haynes also wore an SIU
button which he had either obtained from Glidewell or had
received with his union book He wore the button on board
the Trinity for 2 days, and first wore it several days after
the vessel left port Captain Smith made no comment to
him concerning the button, although Haynes testified he
was "very sure" that the captain had observed it He testi-
fied that he wore it as he served meals in the officers' mess
and that on several occasions officers commented about it
Haynes also testified that he did not observe any other
4 Haynes had swapped duty with Sturrock on several occasions How
ever Haynes stated that he had not gone ashore until the vessel arrived in
the vicinity of Boston and in consequence Sturrock had never pulled for
him Haynes testified that on several occasions he went ashore for short
periods when the vessel was in port but that before arriving in the vicinity
of Boston he had never been absent from the ship at meal time He related
that the normal practice regarding his exchange of duties with Sturrock was
that prior permission from the supervisor was not obtained According to
Haynes the substance of the conversation he and Sturrock had with Cas
mire was that as long as you pull the duties it was substantially immaterial
whether prior permission had been obtained
member of the crew on board the Trinity wearing an SIU
button
C Alleged Independent Violations of Section 8(a)(1)
In June 1971, the Board conducted the first election in
this proceeding and, on August 10, 1973, remanded the
representation proceeding to the Regional Director for the
purpose of conducting a new election In this proceeding,
the Board sustained the decision of Administrative Law
Judge Ladwig who had found, among other things, that the
Respondent had unlawfully discharged three employees in
violation of Section 8(a)(3) of the Act and had also en-
gaged in various forms of interference with the rights of
employees guaranteed in Section 7 of the Act 5
In directing that a new election be held, the Board con
sidered, among other things, objections that the Respon
dent had unlawfully denied access to the Respondent's
deep sea oil tankers to nonemployee organizers of the SIU
during the preelection period extending from April to June
1971 The SIU had asked that it be given access to the
Respondent's tankers and had offered to discuss plans and
conditions pertaining to this matter that would be fair to
both sides The Respondent had also refused to supply the
SIU with an advance schedule of stops for the vessels on
which the employees in the appropriate unit were assigned
In its decision, the Board held that the Respondent should
grant access to representatives of the SIU subject to rea-
sonable regulations In this connection, the Board noted
that while under other circumstances it might be sufficient
to require that the Respondent provide information, such
as port and vacation schedules, which would provide the
SIU with a better opportunity to contact employees with-
out going on board the tankers, the Board felt that it was
inappropriate to require the SIU to attempt a second time
to contact employees on shore inasmuch as the Respon-
dent had refused to give this information when it had origi-
nally been requested
In a letter dated August 13, 1973, shortly after the
Board's decision, the Region's compliance officer advised
that the Respondent was willing to comply with the
Board's order and forwarded to counsel for the Respon-
dent a supply of notices to employees Under date of Au-
gust 28, counsel for the Union wrote to the Respondent
calling upon it "to immediately comply with the Board's
order and, specifically, to permit representatives of the
Union access to said vessels during their free time for the
purpose of soliciting the support of employees on said ves-
sels and to consult, advise, assist, or otherwise communi-
cate with them during their free time with regard to their
rights to self-organization " In addition, counsel for the
Union requested a meeting with representatives of the Re-
spondent in order to work out and agree upon reasonable
regulations with regard to visits to the Respondent's vessels
by representatives of the Union, and also requested that
the Respondent furnish a complete itinerary of the
Respondent's vessels in order that representatives of the
Union may have ample notice of the places and dates of
5205 NLRB 423 (1973) By odd coincidence both counsel for the Re
spondent and counsel for the SISA in their briefs cite the earlier case as
202 NLRB 423 (1973) The Regional Director in his Report on Objections
made the same error
SABINE TOWING & TRANSPORTATION CO 949
arrival of said vessels " On the same date, counsel for the
Respondent, by letter, informed union counsel that a set of
reasonable rules under the terms of which representatives
of the SIU would be permitted to board the Respondent's
vessels had been submitted by him to the Respondent and
that, within 2 days thereafter, he would submit the com-
plete rules to counsel for the SIU for the latter's consider-
ation Following this, there was correspondence between
attorneys for the parties with respect to the rules and regu-
lations for boarding vessels of the Respondent One of the
rules that counsel for the Respondent submitted provided
as follows "The union organizer will be free to meet with
crewmen of the ships inside the midship lounge only No
officer will be present at such meetings ' The Union ob-
jected to this rule, as well as certain others Counsel for the
Union, under date of August 31, wrote to counsel for the
Respondent and stated, concerning this rule `We object
to the provision that the meetings will be held in the mid-
ship lounge The midship lounge is the officer's lounge and
the meeting should be held in the crew lounge " In addi-
tion, counsel requested that the following additional provi-
sion be included 'No company representative, supervisor
or officer will be present at such meetings " Following this
exchange, two meetings were held between representatives
of the parties At the first, the Respondent modified the
foregoing proposed rule and agreed that no representative,
supervisor, or officer of the Company would be present at
meetings held on the Respondent's vessels
However, questions as to where meetings of the Union
would be held continued to be a source of irritation to the
parties In a letter dated October 8, 1973, counsel for the
Respondent wrote to counsel for the Union proposing dif
ferent rooms for meetings of the Union with crewmembers
of the Respondent's vessels The SIU objected to this pro-
posal because, in part, the Board's order provided that the
Union "shall not be denied access to its employees on its
vessels for the purpose of soliciting their support during
their free time' In this regard, the Union took the position
that the proposals of the Respondent would limit crew-
member meetings "to small cubbyholes without proper sit-
ting facilities rather than to the crew's mess where the crew
is accustomed to congregate during their `free time, ' that
these proposals would require the Union to entice mem-
bers of the crew "to come to somebody's foc sle designat-
ed by [Sabine], where they have never been before and
which is so small as to be objectionable on its face, and,
thirdly it would "require the crew members to come to the
SIU rather than give the SIU access to the crew members'
In summary, the SIU stated that, considering `the back-
ground of unfair labor practices found by the Board to
have been perpetrated in this case, to hamstring the Union
representatives in this communication with the crew within
the narrow confines suggested by the Company will cer-
tainly not create an atmosphere that will comply with the
Board's order and give SIU representatives fair access to
the crew during their free time ' ' The Union went on to
state that it was not interested in a new election under any
circumstances until the effects of the unfair labor practic-
es found by the Board have been completely erased and an
opportunity allowed the Union representatives to fairly
present their side to the crew
Under date of October 29, counsel for the Respondent
submitted new proposals for rules and regulations concern
mg the visits of union representatives to the Respondent's
vessels In this submission, he included a revised rule pro-
viding that all officers and supervisors "will be instructed
to remain away from the visitation areas during visits un-
less required to be present in the performance of their du
ties " Counsel for the Union, on November 2, accepted the
revised proposal of the Respondent s attorney with one mi-
nor exception The compliance officer of the regional of-
fice accepted the rules and regulations established by the
Respondent providing for access by the three unions in-
volved, stating that they appeared "to be reasonable under
all the circumstances and especially in view of the substan-
tial accord thereon by the parties '
Counsel for the Union contends, in his brief, that in spite
of the foregoing arrangements, the record shows that "on
numerous occasions Sabine purposefully interfered with
the organizing drive which SIU was conducting by having
its officers and supervisors spy on meetings, disrupt meet-
ings, and remove from the preelection campaign the full
freedom to organize which the Board was attempting to
protect " In this regard, counsel calls attention to a
meeting on the morning of December 10, on board the
Pecos in which Emmett Peak, the radio officer, came to
the meeting at approximately 10 15 and stated that he
wished to see what was going on and, as counsel for the
SIU puts it, ascertain `what kind of propaganda the SIU
was putting out " The representative of the Union, one
James Willard, told Peak the latter had no business at the
meeting inasmuch as licensed personnel were not supposed
to be present when the SIU was conducting a meeting
Peak backed into the passageway and remained in the
doorway for some 20 minutes In consequence, a number
of members of the crew left and Willard could not com-
plete his talk concerning SIU benefits
On November 29, on board the Colorado Willard and
Glidewell attended an SIU meeting in the morning Some
moments later Engineer Hartman, a licensed member of
the crew, came into the meeting and, shortly thereafter,
Chief Mate Weaver came in Weaver, according to the tes-
timony, appeared embarrassed when he saw Willard and
left in a few moments However Hartman, who was not
called to testify, remained in the meeting until close to I I
a in By that time, the topic of discussion among the crew
members had shifted from SIU benefits to a somewhat ex-
traneous conversation regarding farming operations
Chief Engineer Barr came into a morning meeting of the
Union on January 27 aboard the Neches, to get a cup of
coffee He sat down beside Willard at the table and drank
his coffee and smoked some cigarettes In a short time,
Captain Warren also came in to get his coffee and he stood
at the end of the table for a few minutes, and then left Barr
remained a few more moments and, by the time both War
ren and Barr had departed, most of the crew members had
also left
Uncontradicted testimony, which I credit, discloses that
on January 11, the third mate of the Trinity, one Hender-
son, came into the morning meeting of the crew He stayed
some 15 or 20 minutes and, when he left Chief Mate Rob-
erts passed through the pantry after obtaining some coffee
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the time that Willard was talking to William White,
the chief pump man, who remarked that "they have always
thought I was SIU on here and now they will know" In
addition, Casmire appeared at the meeting and asked Wil-
lard if the latter was going to report him for attending,
Willard responded that Casmire knew that that would oc-
cur 6
On January 10, another SIU meeting on board the Trim
ty was interrupted by the third assistant engineer who be-
gan a debate with Glidewell concerning the relative merits
of the Sabine and SIU vacation plans This was an issue
that was under discussion by the SIU and the SISA during
the election campaign
On January 15, Third Assistant Engineer Shaw, accord-
ing to SIU witnesses, came into the morning meeting of the
SIU on board the Guadalupe When he appeared, the unli-
censed crewmembers left Shaw denied that he attended
the meeting, although testifying that he might have been in
the mess hall at that time, and that, if a union meeting was
in progress, he did not know it
Uncontradicted testimony establishes that on December
12, Glidewell and SIU organizer Carl Peth attended a
morning meeting on board the Neches in Lake Charles,
Louisiana Second Mate Williams was present in the meet-
ing for an hour, and, in consequence, no union meeting
was possible and the discussion concerned fishing
It is also uncontradicted that on December 27, when
Glidewell attended an SIU meeting on the Brazos, Third
Assistant Engineer Storms stayed in the meeting for ap
proximately 10 minutes The following morning, Chief En
gineer France entered an SIU meeting during the morning
and stayed some 15 minutes Here again, as in the earler
meeting, Glidewell was forced to change the topic of con-
versation from a discussion of SIU benefits 7
There is undenied testimony that on January 26, the
Company guard who, according to the rules established for
the election, was not to be present during SIU meetings,
accompanied Willard and another SIU representative,
Tony Aronica, to a morning meeting of the crew on the
Brazos, and that they came into the mess hall and sat
down Willard inquired why the guard was there, to which
the guard replied that he was told by Captain Banks to
remain with SIU representatives and observe what they
did Willard told the guard that his duty was confined to
escorting Willard from the gangway to the mess hall and
that he should remain away from the meeting until the
SIU's time was up The guard then left but stated that he
would report Willard to Captain Banks and remained be-
side the mess hall by the porthole where he was able to
observe what was going on Thereupon Willard and Arom-
ca moved to another table in the mess hall where they
could not be seen by the guard The guard was not called
as a witness, however, Captain Banks denied that he ar-
ranged for the guard to observe SIU representatives
6 Casmire although a witness was not questioned about this incident
7 Chief Engineer France denied that he had entered a meeting in Jackson
ville on January 26 whereas no such testimony had been elicited Later he
denied interfering with a meeting being conducted by Willard Here again
the SIU had not elicited any such testimony Finally France testified that
he had not seen Glidewell come into any meeting
During an SIU meeting aboard the Trinity on January 8,
which Glidewell attended along with about eight unli-
censed crew members, the third mate came into the meet-
ing and remained some 15 minutes This resulted in the
topic of conversation being changed from a comparison of
relative benefits of the SIU and the SISA to matters of
general interest 8
On January 26, following an SIU meeting on the Brazos
Willard and Aronica invited several crewmembers to go
ashore and drink with them Shortly after they arrived at
the bar, Chief Mate Foster came in and volunteered that
he did not "see how any person, unlicensed person, could
vote for the SIU ' When Foster arrived, Willard and Aro
noica had been discussing SIU benefits, after his appear-
ance, the unlicensed seamen left
A specific voting procedure had been established by the
parties, with the approval of the regional office, to conduct
the balloting on the various vessels ` for voters on board,"
with the exception of the Pecos at their first port of arrival
in the continental United States following February 4,
and that the Pecos would be voted at Wilmington, Califor-
nia In addition, a voting location was established at the
Federal Office Building in Port Arthur, Texas, for the ben-
efit of seamen who were on vacation or who were not as-
signed to one of the Respondent's vessels during the voting
period It was intended that the Federal Office Building in
Port Arthur would be the only location to be used by crew-
members who were "off duty However, the Respondent
arranged with the off duty crewmembers to vote them on
board the Trinity rather than in Port Arthur In conse-
quence, only 19 men who voted on that day were employed
aboard the Trinity, whereas the remaining 26, who in some
fashion had been informed where the Trinity would be on
that day, were all off-duty men and came on board the
vessel to vote from the dock area 9 Counsel suggests that
the "obvious effect of this mass of people was to over-
whelm the 19 Trinity crewmembers by giving the false im
pression that the great majority of the employees were vot
ing for the SISA since they were brought to the Trinity by
Sabine " Counsel argues that there can be no doubt "that
all those brought to the vessel were friendly to Sabine and
SISA, for enemies were purposely excluded " He points to
the fact that the Respondent prepared a list of eligible em-
ployees which it had determined should be given the privi
lege to vote and that this list was given to an able-bodied
seaman, Frank Chapa, who checked off names at the gang-
way of the Trinity The persons who were on the list were
B There is testimony by a member of the crew Jessie Floyd Davis to the
effect that third mate Henderson merely came into the meeting and called
Davis out of it to attend to his lines This testimony is suspect in view of the
fact that Davis had been on an extended binge for several days previously
and during his examination had difficulty remembering matters I do not
credit him
e The Respondent adduced evidence that all of the 26 seamen some of
whom were 600 miles away telephoned the Respondent to find out where
the Trinity was to be voted Counsel for the Union suggests that this expla
nation is not legitimate pointing out that the Respondents first knowl
edge of where the Trinity was to land was on February 1 and he suggests
that the Respondent must have been instrumental in getting its people to
vote on the ship on February 9 rather than in Port Arthur on February 13
4 days later He further points out that the Respondent did not inform us
why the crewmembers were not advised to vote at the Federal Office
Building as the notice of election requires
SABINE TOWING & TRANSPORTATION CO
permitted to go aboard and cast their ballot, whereas indi-
viduals who were not on the list were not permitted to
board the vessel In this fashion, counsel argues that the
Respondent "deliberately avoided a vote, by this
mechanism, an employee from going on board the Trinity
and casting a ballot which could then be challenged," thus
determining "for itself as the final arbiter who was eligible
to vote " By this means, Haynes and another seamen Er-
nest Watson, were not permitted to board the Trinity to
vote either a regular ballot or a challenged ballot
On February 5 Willard attended a preelection confer-
ence on the dock prior to the voting of the Brazos in Savan-
nah, Georgia Willard asked to be allowed to go aboard the
vessel but such permission was denied by Jabo Young, the
representative of the Respondent However, Young himself
boarded the vessel, a similar incident occurred on the Trin
ity on February 9, at Port Neches, when Otis Barnes was
allowed to board the vessel but the SIU representatives
were not
During a preelection conference at the regional office on
January 16, held to discuss and determine upon the me-
chanics of holding the election, attended by representatives
of all the parties, the Respondent took the position that all
vessels, except the Pecos should be voted on or after Feb-
ruary 4, at the first port of arrival in the continental Unit-
ed States, with respect to the Pecos, the Respondent took
the position that the election be held in the Port of Wil-
mington, California, after February 4 The Respondent s
position was that Wilmington was the most convenient
port, inasmuch as the Pecos plied between ports on the
California coast and that Wilmington was the port where
the Pecos customarily docked The Respondent repre
sented that the Pecos would arrive in Wilmington either on
February 4 or shortly thereafter The SIU accepted the
Respondent's proposal However, on January 30, Attorney
Combs for the SIU received a telephone call from the
Board representative who had attended the January 16
conference, advising that the Pecos would arrive later than
anticipated in Wilmington This was confirmed by a letter
from the Regional Director to the Respondent, notifying it
as well as all other parties that because of the later than
anticipated arrival of the Pecos at Wilmington the ballots
in the above-captioned case will be mingled and counted
on February 21, 1974, at 10 am at the National Labor
Relations Board office rather than on February 13,
1974 in Port Arthur, Texas ' Following receipt of this
letter, Attorney Combs arranged a conference with the Re-
gional Director In his letter of February 1, he noted that
the Pecos was scheduled to arrive in Portland on February
5 and leave there on February 6, that it would arrive in
Martinez (San Francisco) the evening of either February 7
or 8, and that it was then scheduled to go back to Portland
on February 10 or 11, and reach Wilmington on February
13 On behalf of the SIU, Combs stated that he saw no
reason why the election should be delayed until the Pecos
reached Wilmington and that in his view the only reason
for the change of schedule of the vessel was in order to give
SISA representatives time to get to the West coast at the
time of the election Combs noted that representatives of
the SIU had not been accommodated in that fashion in
that they had to go from port to port on short notice, he
951
also informed the Regional Director that the apparent rea-
son for providing Wilmington as the polling place was be-
cause the Respondent claimed that Wilmington was easier
to get to 10
The parties met at the regional office on February 4, in
order to discuss the possibility of voting the Pecos in Port-
land The Regional Director stated that his office could not
in 1 day arrange to provide the necessary staff in Portland
to conduct an election on February 5 Combs proposed
that inasmuch as the Pecos was due to go from Portland to
Martinez the election be held in Martinez However the
Regional Director stated that his office had no authority to
change the consent election agreement Combs informed
Deakins that the SIU had considerable difficulty arranging
to get its representatives to the Guadalupe when that ship's
arrival on the East coast had been changed He again as-
serted that the SIU had been misled by the Respondent at
the preelection conference inasmuch as the SIU had ex-
pected the Pecos to arrive in Wilmington shortly after Feb-
ruary 4 11
Other incidents are related in the record and considered
in the briefs, which are substantially of the same nature as
those related above However, it seems unnecessary to ex-
amine them in detail With respect to all of the instances of
alleged interference with union meetings, counsel for the
SIU submits that they demonstrate "beyond a doubt that
Sabine supervisory personnel and officers interrupted
Union meetings in one way or the other on all but one of
the Sabine vessels and these interruptions put a damper on
the SIU's efforts to organize Sabine employees " In sum,
counsel submits that the "totality of the proof indicates
that the SIU witnesses are not misstating the facts' and
points out that in "various instances supervisory per-
sonnel admitted that they were in the meeting rooms dur-
ing hours when they were prohibited from those areas "
Counsel for the Union states, in his brief, that the
Respondent's favoritism to the SISA "pervades the rec-
ord," and points to a number of incidents which, in his
view, demonstrate this Thus, he calls attention to the fact
that when Thomas Police applied for a job Personnel
Manager Lewis asked if he had Merchant Marine papers
to which Police replied in the affirmative Lewis then in
quired if Police had ever been to sea, and Police stated that
he had not Lewis then gave Police an application blank
10 The apparent basis for Combs assertion concerning the scheduling of
the Pecos was a telephone conversation he had had with Attorney Deakins
who was asked if the Respondent would agree to hold the election when the
Pecos arrived in Portland To this Deakins replied in the negative stating
that with reference to SISA organizers they don t have as much money as
you fellows have got and they just got to get time to get out there
n Counsel for the SIU in his brief states that the position that the SIU
had been misled was clearly supported by William T Mayo who was
assigned all of this period to the Pecos and who testified that during the
latter part of 1973 the Pecos was converted in dry dock in Portland Oregon
so that it could haul asphalt which is transported at temperatures of ap
proximately 350 degrees Thus he asserts that whereas the run of the Pecos
prior to this conversion was up and down the West coast touching at all
ports the run after the conversion took the Pecos most frequently to Marti
nez which had the only facilities to handle the loading of hot asphalt Our
mg the summer of 1973 the Pecos stopped in Wilmington approximately
once a week after the conversion it stopped at Wilmington on the average
of once a month
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but said that at that time there were no openings After
filling out the application, Police asked Lewis if he could
help him in any way and stated that unions had employ
ment "tied up at that time to where if you were just starting
out, you couldn't catch a ship I ve just had it with these
unions " Thereupon, Lewis apparently changed his attitude
concerning the availability of a job He had Police fill out
papers for Blue Cross-Blue Shield, sent Police to take his
physical, and told him to call the following Monday morn-
ing When Police called on Monday, Lewis told him to fly
to Newport News, Virginia, to join a ship 12
Danny Davis and Thomas Arnold testified that they
jointly applied for employment with the Respondent on
December 3 They filled out application forms and then
spoke to Lewis about getting a job Davis stated that he
would take any job, while Arnold stated that he wanted a
job as ordinary seaman Lewis then asked if they had prior
sailing experience and both of them stated that they had
sailed with the SIU Lewis then stated that at the time he
did not have any job openings About a week later, both
returned and had another talk with Lewis who again said
that no jobs were available but took their home phone
numbers On December 4, Davis met one Saunders who
informed him that the Respondent had given him a job as
messman and that he was about to catch a flight for Phila-
delphia to join the ship Arnold then called Lewis, who
again informed him that the Respondent had no openings
When Arnold called a second time, he told Lewis that he
knew Saunders had been hired and inquired of Lewis
whether the latter had anything against him and Davis be
cause they were SIU members Lewis replied in the nega-
tive and Arnold then said, so he testified, Well, Mr Lewis,
you are hiring people and we are qualified Looks like that
I am going to have to talk to the National Labor Relations
Board " Some 2 or 3 days thereafter, Lewis telephone Ar-
nold and asked him how soon he and Davis could be in
Port Arthur, inasmuch as the Respondent needed two men
immediately
Counsel for the SIU asserts, in his brief, that the Re-
spondent `gave financial and moral support to SISA by
encouraging Peewee Clark and Early Barnett, the two prin-
cipal SISA officers, to go about their business on Sabine
time and on the Sabine payroll " In this connection, he
points out that Personnel Manager Barnes testified that
two shore employees are on the payroll as "loading quar-
termasters," with duties to meet ships and carry mail and
supplies to the ships Customarily, they meet ships only in
the local area, i e , Port Arthur, Pascagoula, and Corpus
Christi For travel expenses these persons are reimbursed
by being paid in cash the allowance that the crew member
would have obtained had he gone to the ship by himself
Their compensation is computed on the basis of plane fare
from Port Arthur to the airport closest to the vessel, cab
fare from the airport to the vessel and flight insurance If
the shore personnel transports more than one crew mem-
12 Svendson testified that Lewis asked him why he had left his prior ship
and that he told Lewis that the union was trying to organize it to which
Lewis replied that the Respondent was a nonunion company Svendson
also testified that Lewis asked him if he would like to join the SISA and
have the initial fees for a month deducted to which he agreed
ber from the Port Arthur office to the vessel he receives the
travel allowance of all of the crew members whom he
transports The evidence discloses that shore personnel,
when they visit a vessel would return the same day, and
that the duties and functions involved took very little time
Customarily, so Clark testified, it took him approximately
an hour or an hour and a half to perform his functions for
the Respondent and that thereafter he was supposed to
report back for work the following day in the Port Arthur
home office where he would be on call to work wherever
needed It appears that Clark, aside from performing his
assigned duties, was free to come and go as he pleased and
was in no way criticized by the Respondent for any of his
pro SISA activities during the preelection campaign Dur-
ing the course of the preelection campaign Clark, instead
of remaining on the vessels for an hour or an hour and a
half, remained at the vessel conducting union business, as
did Barnett Also Barnett was allowed to carry a crew
member from Cartaret, New Jersey, to New Haven, Con
necticut, on October 12, and Clark was allowed to accom-
pany crew members to the polling place Both were al-
lowed to visit numerous ships on the Respondent's time
Thus, both Clark and Barnett visited the Guadalupe in
Deer Park, Texas, on December 5, and attended an SISA
meeting that evening as well as one the following morning
On December 7, Clark visited the Brazos in Pascagoula,
Mississippi, and attended two meetings On December 11,
he again attended a meeting on the Brazos Clark also tray
eled to Lake Charles, Louisiana, and attended a meeting
on board the Neches taking care of union business while
on the Respondents payroll Other similar incidents are
referred to in the record and the Union s brief Counsel for
the Union stated, in his brief, that the incidents to which he
refers are ` merely demonstrative of the fact that for a peri-
od of three months, Sabine supported both Clark and Bar-
nett in their SISA business to attend meetings of the Sabine
vessels in the Gulf area It is assistance of the most blatent
nature The free rein given to the SISA officers is clearly
conduct which affected the results of the 1974 Board con-
ducted election "
There was considerable testimony and documentary evi-
dence concerning the income and expense of the SISA
Counsel for the SIU argues that a ruling I made in regard
to the production, examination and introduction into evi-
dence of various books and records of the SISA hampered
his presentation of evidence to establish the SIU objection
relative to support of the SISA Although hindsight may
indicate that I was wrong, I am not persuaded that the
error, if so it be, was prejudicial
In any event, I believe it unnecessary to go into a de
tailed examination of the matter, except to note the follow-
ing (1) the SISA has some 125 members, whose dues are
$4 per month, and the initiation fee is $10 Its yearly in-
come in 1973 and 1974 was approximately $6400 (2) Doc-
uments filed with the Department of Labor disclose that
for the period of July 1, 1973, through June 30, 1974, the
SISA disbursed about $2700 to Clark, $1500 to Barnett
and $1600 to one Faul for union expenses (3) There is
testimony that Clark drew on personal savings to defray air
travel expenses (4) Attorney Moore, for his services in the
earlier proceeding and additional work and expense incur-
SABINE TOWING & TRANSPORTATION CO 953
red, was actually paid $1500, although it appears he had
rendered a bill for a larger amount While I agree with SIU
counsel that by allowing Barnett and Clark to conduct
SISA business, including travel, while on Respondent's
payroll, `constitutes financial support," I do not infer that
the SISA organizational campaign was necessarily fi-
nanced "by advances from Sabine "
D The Termination of Mayo
Mayo began his employment with the Respondent on
June 21, 1973, and was assigned to work as a messman on
board the SS Pecos He was reassigned as an ordinary sea-
man 3 days later and worked on the 12 to 4 watch 13 The
Pecos went into dry dock on September 27, and Mayo was
paid off by Captain Levi Rollins Darrell Hicks, the
Respondent's coordinator, told Mayo to go home for a
week or so and that he would be advised by the Respon-
dent concerning his reassignment About a week later,
Hicks called Mayo and told him that he was being reas-
signed to the SS Guadalupe He reported to the Guadalupe
on October 8 and remained on that vessel until November
30, when he was paid off at Norco, Louisiana, and was told
by the captain that he was to go home and wait for a few
days before being reassigned to the Pecos On December 3
or 4, Mayo was reassigned to the Pecos, which was then
undergoing repairs in dry dock in Portland, Oregon About
December 31 or January 1, the Pecos was ready to sail and
Mayo was assigned to the 8 to 12 watch Late in February,
Mayo, being the senior ordinary seaman on board, and
following the Respondents practice that the most senior
man aboard in a particular job classification had the first
choice of the watch he wished to stand, was reassigned to
the 4 to 8 watch, choosing that since it afforded him an
opportunity to earn more overtime Mayo remained
aboard the Pecos until April 3, when he qualified for and
went on vacation, returning to the vessel on June 20 He
again stood the 4 to 8 watch and continued on that watch
until. October 30
On October 25, Chief Mate Granger issued a warning
notice to David Omar, another seaman, which stated that
"the quality and quantity" of Omar's work "is unsatisfac-
tory" and that he would not "execute working orders given
by immediate supervisor, Boatswain " Omar brought the
warning notice to Mayo, who had told him the previous
evening that he had seen the notice in Granger's office
while there to obtain some flashlight batteries When Omar
presented the warning notice to Mayo, Mayo asked him if
he had failed to execute working orders Omar denied the
charges and asked that Mayo assist him Mayo agreed and
told Omar that "the best thing to do would be to write a
letter to the captain and deny these charges " Thereupon
Mayo assisted Omar in wasting a letter to Captain Salfen
and Omar gave it to the captain on October 26 In the
letter, Omar stated that "due to the extreme vagueness of
the charges, I would like to know from my accuser the
13 There are three watches on a vessel from 12 to 4 4 to 8 and 8 to 12
both a m and p m
specific instances in which I refused to execute any work-
ing orders given to me I categorically deny that I have ever
refused to carry out any orders given to me by any of the
superiors " Concerning the charges that the quality and
quantity of his work was unsatisfactory, Omar inquired
why, if that were so, Boatswain Lester "continually request
that I work overtime in assisting him in maintenance of the
ships ' Omar continued, in the letter, by stating that the
charges he was making against Lester were two-fold The
first charge was ascribable to "an incident that took place
dust the other day, Oct 23, 1974, in which Mr Lester re-
quested that I join him in signing a complaint against the
Steward's dept Since I did not agree with Mr Lester's peti-
tion I declined as did a number of other members of
the crew " Omar related that the second complaint he
wished to bring to the captain's attention "stems from a
remark that Mr Lester recently made to me Mr Lester
said to my face that, `All Niggers and Arabs should be sent
back to where they belong' Since I am of Arabian origin, I
understood Mr Lester s remark to be directly aimed at
me' Finally, Omar stated that he was `not alone in my
dissatisfaction with Mr Lester," referring to the fact that
seven members of the crew "joined in supporting my con-
tentions and have at one time or another worked with both
myself and Mr Lester " Appended to the letter were the
signatures of the seven crew members
About midafternoon on October 26, Mayo saw a warn-
ing notice posted in the recreation room and asked Captain
Jeffrey Salfen for a copy The captain refused his request
Mayo then went to the recreation room and prepared a
handwritten copy of the warning notice The notice, in sub-
stance, warned all members of the crew "to perform all
duties according to the articles of agreement in the capaci-
ty of his position" and that orders issued by a department
head or an officer on watch "shall be carried out immedi-
ately " It continued by stating that personal conflicts `will
not be tolerated and may mean dismissal of both con-
cerned individuals " According to Salfen, he issued the
warning notice "because there were factions developing on
the ship" and he wished to prevent any "problems" from
arising Salfen testified that the letter, which Mayo had
told him he (Mayo) had written, prompted the warning
notice About 8 p in , Mayo went to see Captain Salfen,
having become aware that the captain had been question-
ing members of the crew who had signed the letter Mayo
testified that he wished "to clarify the issue and make sure
that Captain Salfen knew what had taken place" and that
he told Captain Salfen "that I had written this letter for
David, and that my intention was to help David," inas
much as he felt Omar was "getting an unfair shake with
this warning notice " Mayo further told the captain that he
hoped that the incident would not affect his own chances
of employment, to which the captain replied that he felt the
incident would have no such effect
On October 27, Omar was calling the watch and the bal-
ance of the crew were assigned to tie up the ship Mayo
went to Captain Salfen and, so he testified, "had a discus-
sion with him about the fact that David Omar was not
called to work when he was on watch and there was work
being done on deck ' Captain Salfen responded by stating,
so Mayo testified, Look, if you want to cause a bunch of
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
, you know, go write you a letter " Mayo responded by
stating that it was not his purpose to cause trouble but that
he merely wanted the captain to know what was going on
Mayo testified that he believed the captain said, "Look,
I am getting tired of all of you " 14
On the evening of October 27, Captain Salfen tele
phoned Otis Barnes at the Respondent's Port Arthur office
and, as Captain Salfen testified, told Barnes that "there
might be a possibility that we would have to take Mr
Mayo off, put him on vacation," and that Barnes replied
that he would see what could be done when Lewis returned
to the office On October 30, Captain Salfen told Mayo
that the Respondent was requesting that he go on vacation
immediately 15 After being told by Captain Salfen that he
was to go on vacation, Mayo went to see the radio operator
who had a filled out vacation application for Mayo with
the date left blank as to the time that Mayo wanted his
vacation Mayo filled in the blank by writing "November
15 " Mayo was removed from the Pecos on October 30 and
paid off by Captain Salfen Mayo was mailed a check on
November 5 representing 39 days of vacation pay for the
period October 31 to December 9
The collective bargaining agreement between the Re
spondent and SISA provides that employees who are ready
to return from vacation are to give the Respondent 5 days'
notice by telegram, letter, or oral communication Mayo
gave the required notice on December 4, stating that he
would be ready to report for work on Monday, December
9 On December 6, Mayo telephoned Lewis and asked if
the latter had received the December 4 telegram, and was
informed that Lewis had received it Mayo then informed
Lewis that he had received his able-bodied seaman ticket
and had been studying for his tankerman's endorsement
and that he needed a letter from the Respondent to give
the Coast Guard, stating he had handled certain cargoes
In response , Lewis stated that he would see what he could
do about issuing such a letter
On or about Saturday, December 7, Mayo was informed
by counsel for the SIU that he would be required to testify
in the objection case in this proceeding Thereupon, on
December 8, Mayo sent a telegram requesting a 5 day
emergency leave of absence and therein indicated that he
would be able to report for work on December 15 Mayo
did in fact testify in the representation case on December
10 During the course of his cross-examination in that pro-
ceeding Mayo related that he was an SIU supporter, that
14 As soon as the conversation ended Mayo went to his room and wrote
down his recollection of it His notes which are in evidence do not mater
ally differ from the account he gave as a witness
s While there is some conflict in the testimony as to whether Mayo had
requested a vacation at that particular time I conclude on the basis of
Mayo s more credible testimony and the fact that Captain Salfen spoke
with Barnes on October 27 and that the Respondent was unable to produce
the vacation application that Mayo was placed on vacation by the Respon
dent on October 30 1 further note that Lester testified that after he had
delivered the Omar letter to Captain Salfen on October 26 Salfen told
Lester to send Juan Coalla Omar and Mayo to his cabin and in addition
told Lester that these three were going on vacation because they were
causing too much problems As a matter of fact it appears that vacation
leave had already been requested by Captain Salfen for these three crew
members and Barnes told Lee on October 27 that the Respondent was
going to see what could be done about remosing Mayo from the ship
he was currently on vacation, and that he had requested
emergency leave of absence in order to fly to Houston to
testify
While the Respondent, in its answer, contended that
Mayo did not keep in contact with it as required under the
contract with the SISA and in accordance with the compa
ny practice, the record here shows that Mayo telephoned
the Respondent on December 9, 10, 12, 16, and 23, in pur-
suance of his effort to advise the Respondent as to the days
he would be available for reemployment on the Pecos In
addition, counsel for the Union, on December 10 advised
Hicks at the Board hearing on that day that Mayo was
required to testify for the SIU in support of its objections
and that he would be returning to the West Coast as soon
as his testimony was concluded and would then be avail-
able to report on board the Pecos
Prior to December 23, no one on behalf of the Respon-
dent informed Mayo that he was not going to be reinstated
on board the Pecos or that the Respondent was dissatisfied
with his work performance So far as it appears, there was
no communication between Mayo and the Respondent
from December 23 until January 31, 1975 On the latter
date, Lewis telephoned Mayo and offered him a job as an
ordinary seaman on board the Guadalupe and told him to
report at the Port Arthur office on February 5, and that
transportation would be provided for him from the home
office to the ship This was confirmed by a telegram of the
same date sent by the Respondent On February 3, counsel
for the Union advised the Respondent that Mayo would
not report to the Guadalupe and further stated, "If you
make an unconditional offer of reinstatement to his posi
tion as ordinary seaman on the SS Pecos we will advise
him to accept such offer We also demand such immediate
reinstatement on the Pecos together will full backpay " Ac-
cording to Mayo's testimony, which was not contradicted,
the following disadvantages would have been suffered by
him if he were transferred to the Guadalupe (a) it would be
necessary for him to pay his own transportation from his
home in Santa Barbara to Port Arthur each time he joined
or left the ship, (b) he would lose the benefits of transpor
tation pay from his home to the Pecos inasmuch as it was
the Respondents practice to pay the costs of transporta
tion from the home office to the vessel and in view of the
fact that the personal expenses sustained by Mayo for such
transportation were less than the Respondent normally al
lotted, (c) he would lose the seniority and the favorable
watch he had attained on board the Pecos, and would be
assigned to a less favorable watch on board the Guadalupe
and, in addition, would lose substantial overtime pay, (d)
inasmuch as he was one of the leading SIU adherents on
board the Pecos he would be to a hostile atmosphere on
board the Guadalupe (e) his living conditions were better
on board the Pecos than they would be on the Guadalupe,
and finally (f) he would not be able easily to get home to
visit friends and relatives in view of the fact that the Pecos
customarily sailed on the West Coast where Mayo resides,
whereas the Guadalupe normally sails in the Gulf Coast
trade and in consequence, each time Mayo desired to go
home his transportation costs would be considerably more
It is the position of the Respondent, as stated in
counsel's brief that the reason it reassigned Mayo was that
SABINE TOWING & TRANSPORTATION CO
his employment history with the Respondent "was marked
by acrimonious confrontations with fellow crewmen and
officers which eventually reached the point that his own
shipmates refused to work with him and demanded that he
be removed or they would walk off the ship " Pointing to
the fact that life on board a ship "is very vastly different
from the ordinary employment situation," counsel points
out that a ship operator's obligation "under both common
sense and Coast Guard s rules and regulations" is to re-
move the source of any conflict Continuing, counsel
points out that Mayo occupied the position of ordinary
seaman, the lowest rating on a deck crew, and that an ordi-
nary seaman must carry out orders given by his superiors
In this regard, counsel states that Mayo, "who had a col
lege education, obviously resented having to take orders
from his superiors, who were for the most part far less
educated than he," and that his `reluctance to perform
orders and his sarcastic, abusive responses to orders were
well known aboard the ship," leading several crewmen to
ask Captain Salfen not to put Mayo on their watch
On the other hand, Captain Rollins testified without
contradiction that Mayo's work record was satisfactory
and that "as far as I know he has already did his work well
or at least did in my presence " It is also uncontradicted
that when Mayo told Captain Salfen in September that he
would soon obtain his able-bodied seaman's ticket and in-
quired whether he could remain on board the Pecos as an
able-bodied seaman, Captain Salfen responded by saying
that Mayo had a good chance in that respect In light of
these favorable comments concerning his work perfor-
mance, counsel for the Union states that ` it is thus surpris-
ing that Sabine should attack with such vehemence Mayo s
performance," and submits that "the so-called tale of hor
rors is solely a concoction brewed up by Sabine in a belat-
ed attempt to justify the discharge of Mayo " Counsel
then proceeds to discuss the testimony of witnesses for the
Respondent concerning Mayo's work performance Al-
though Captain Salfen testified that "on many occasions"
Mayo had been "rather reluctant" to carry out any orders
issued to him, the only incidents he could point to were a
relatively few minor ones which were either denied or ex-
plained by Mayo No written warning notices were ever
issued to Mayo although, in case of any type of serious rule
infraction, such notices were customarily issued In this re-
gard, Bosun Lester testified that he "had very little trouble
with Mayo doing his work on the ship As previously ob-
served, Lester was Mayo's immediate supervisor
Howard Littlefield, who was called as a witness by the
Respondent and came from Seattle to Houston in order to
testify, stated that he was told to make the trip to Houston
on March 5, by the Chief Mate When examined on voir
dire, by counsel for the General Counsel, Littlefield stated
that he had not been told by any representative of the
Respondent about anything that Mayo had testified to
during the trial However, on further examination by coun-
sel for the General Counsel, he stated that he spoke with
counsel for the Respondent about my testimony that I
was to give today, I mean, just things that have occurred
that have happened while I was on watch with Mr Mayo "
Later, however, on examination by counsel for the Union,
955
Littlefield stated that he "had not spoken to anybody
about the unfair labor charge that was filed here " 16
E Concluding Findings
We have set forth above, in considerable detail, a sub-
stantial number of incidents concerning alleged interfer-
ence with union meetings and statements made to crew-
men by officers aboard the Sabine It seeems unnecessary
to repeat these in any detail, except to note that the testi-
mony concerning some of the incidents is uncontradicted
However, they will be summarized briefly Despite the
posted rules and regulations agreed to by the parties gov-
erning conduct of union organizers and licensed personnel
concerning the Union's organizational activities, the record
plainly shows that on many occasions officers and supervi-
sors of the Respondent came into SIU meetings with the
result that these were disrupted The Respondent's guard,
who according to the rules established for the election, was
not to be present during SIU meetings, on January 26,
accompanied two SIU representatives to a meeting of the
crew and, when asked why he was there, replied that he
had been told by Captain Banks to remain with representa-
tives of the SIU and observe what they did On the same
day, following an SIU meeting aboard the Brazos, SIU rep-
resentatives invited several crew members to go to a bar
with them, and, shortly after they arrived, Chief Mate Fos-
ter came in and volunteered the comment that he did not
"see how any person, unlicensed person, could vote for the
SIU' Here again, a discussion concerning SIU benefits
which was in progress when he arrived, was disrupted
Moreover, the evidence is clear that the Respondent under
took to favor the SISA with respect to the specific voting
procedure that had been established by the parties, with
the approval of the regional office, and to alert seamen
who were substantial distances away to appear to vote on
the Trinity rather than at the Federal Office Building as
agreed to with regard to seamen who were off duty Illus-
trative of the Respondent's favoritism to the SISA was the
arrangements concerning the voting of the crew of the Pe
cos While the SIU desired that the crew of Pecos be voted
when the vessel arrived in Portland, counsel for the Re-
spondent did not agree with this, stating that Wilmington
was the proper place to vote the crew of that vessel, rather
than Portland, inasmuch as organizers for the SISA `don t
have as much money as you fellows have got and they just
got to get time to get out there " We have also noted above
that the Respondents personnel manager, after telling sev-
eral applicants for employment, who were SIU adherents,
that the Respondent had no openings for employment,
promptly changed his attitude upon learning that one of
the applicants indicated that he would have to "talk to the
National Labor Relations Board " We have also detailed
above the substantial assistance and support given the offi-
16 Several other witnesses called by the Respondent testified to incidents
relating to Mayo and his work performance-Throw Riggs William Gray
and Daniel Lee Upon consideration their testimony adds little to the
Respondents case Riggs quite obviously was hostile to Mayo he testified
that months before Mayo was transferred from the Pecos he wanted that to
occur and that as early as February 1974 his friendship with Mayo had
begun to go to pot primarily over their differing views regarding repre
sentation Their testimony does not alter my slew of Mayo ^ credibility
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cials of the SISA by the Respondent during the organiza
tional campaign 17
Concerning the termination of Haynes and Mayo, we
have found above that the action the Respondent took
with respect to them violated Section 8(a)(3) and (1) of the
Act and, with respect to Mayo, also violated Section 8(a)(4)
of the Act With respect to Haynes, the reason given by the
Respondent for his termination appears to me to be pre-
textuous He had, in accordance with customary practice,
arranged with another member of the crew to perform his
assigned mealtime duties which, so far as appears, resulted
in no inconveniences to the Respondent However, Cap-
tain Smith determined to discharge Haynes without dis-
cussing with him any alleged dereliction on his part having
gone to the extent of preparing the termination notice and
Haynes' pay in advance This occurred very shortly after
Haynes wore an SIU button which Haynes felt sure the
captain had observed, inasmuch as Haynes wore it as he
served meals in the officers' mess and received comments
about the button on several occasions from officers
With respect to Mayo, counsel for the Respondent, as
noted above, asserts that his history of employment with
the Respondent was marked "by acrimonious confronta-
tions" with other members of the crew as well as officers,
and argues that inasmuch as Mayo had a college educa
tion, he "obviously resented" taking orders from his superi
ors, who, for the most part, were not as well educated as
he, and that he engaged in "sarcastic abusive responses to
orders given him In his brief, counsel for the Respondent
contends that Mayo's "credibility and demeanor on the
witness stand shows that he is completely untrustwor-
thy and is the type of person who would create such violent
personality conflicts,' and that his testimony "was marked
by many inconsistencies, if not outright falsehoods " It is,
of course, true that Mayo, on his second appearance as a
witness, altered or modified his prior testimony in certain
respects Counsel for the General Counsel, in his brief,
states that, despite the efforts of the Respondent to "cast
Mayo in the role of a violent activist and troublemaker,"
Mayo's "appearance, his actions, indeed his apologies con-
tradict his acting in any such role " Mayo has a college
education and is an articulate person While appearances
may, on occasion, be deceiving, Mayo impressed me as an
intelligent, mild-mannered and rather quiet young man It
is difficult for me, having closely observed him as he twice
appeared in the hearing as a witness, to believe that he
acted and spoke in the manner depicted by a number of
witnesses produced by the Respondent I am persuaded
that the Respondent refused to return Mayo to the Pecos
and, instead, told him that he would be assigned to another
ship which in fact occurred when he was assigned to the
Guadalupe on January 31 As previously detailed, this
17 In his brief counsel for the SISA states that no evidence was intro
duced showing that the employer paid SISA campaign expenses or paid
expenses for the account of the SISA and that the salary and travel
allowance paid by Sabine to Clark and Barnett amounted to some form of
domination -a view which counsel states is without merit since shore
duty is lower paid Thus in his view shore duty would be the antithesis of
employer financial domination He does not however controvert the evi
dence that SISA officials did in fact conduct SISA business while being
paid by the Respondent
change in assignment would have resulted in considerable
inconvenience and personal cost to Mayo who was a West
Coast resident and in view of the fact that the Pecos was in
large part manned by residents of the West Coast Accord
ingly, I infer and find that the action of the Respondent
was prompted by the fact that Mayo had engaged in pro-
tected concerted activities aboard the Pecos was a known
adherent of the SIU, and voluntarily appeared as a witness
for the SIU at the December 10 hearing on SIU objections
to the election To conclude, I find that the Respondent
placed Mayo on forced vacation in violation of Section
8(a)(1) of the Act and, by refusing to reassign him to the
Pecos but instead, assigning him to another ship, construc
tively discharged him in violation of Section 8(a)(1), (3),
and (4) of the Act 18
III THE REPRESENTATION PROCEEDING
As stated at the outset of this decision, the incidents
alleged in the complaint to constitute unfair labor practices
are, with minor exceptions, also the basis of the SIU s ob-
jections to the election That being so, and in view of the
findings previously made, they need not be repeated here
Suffice it to say that I conclude that the election should be
set aside because of the Respondent's interference with
SIU meetings and activities during the period before the
election and while it was being conducted, as found above
Moreover, the assistance and support found to have been
given the SISA by the Respondent over an extended period
plainly weighted the scales in favor of that organization, to
the detriment of the SIU, thus creating an atmosphere
wholly incompatible with the laboratory conditions that
Board principles require for a fair election Accordingly, it
will be recommended that the election be set aside and a
new election held at an appropriate future time, as de-
termined by the Regional Director
IV THE MOTION TO DEFER
Before the commencement of the hearing in this matter,
the Respondent moved to dismiss the complaint relating to
Haynes on the ground that he had filed with the SISA a
grievance which had been processed through the SISA
grievance procedure at his request and, as a result thereof
he was reinstated and made whole for all wages travel
allowances, and interest thereon As stated by counsel in
his brief, "the only remedy not provided by the settlement
agreement which could possibly have been accomplished
by processing successfully the unfair labor practice case
was the posting of notices This motion was renewed at
is On the last day of the hearing Captain Salfen was called as a witness
by the Respondent Thereupon counsel for the General Counsel moved to
disallow him as a witness on the ground that at the request of counsel for
the Respondent I had previously granted his motion to segregate witnesses
and that Captain Salfen had been told by counsel for the Respondent
about Mayo s testimony Captain Salfen was present in the courtroom dui
mg the latter part of Mayo s testimony I declined to disallow Captain Sal
fen stating that if I were found to be in error in receiving his testimony the
Board upon review could disregard Captain Salfen 6 testimony on the
other hand I stated that if I were to disallow him and be held in error we
would have to resume the case for session number six I then allowed
Captain Salfen to testify
SABINE TOWING & TRANSPORTATION CO
the hearing, the motion was dismissed by order dated July
9, 1974, by Administrative Law Judge Leff, on the ground
that, inasmuch as it appeared that an objection in the rep-
resentation proceeding in which a hearing had been or-
dered involved the same issue as was involved in the com-
plaint proceeding the motion was denied At the opening
of the hearing before me, the motion was renewed counsel
for the Respondent stating that the Respondent had no
intention of posting notice' unless it elected to respond to
an appropriate order so requiring Counsel for the General
Counsel, pointed out that under existing Board policy,
where the agency determined that objections to an election
warranted hearing, and such objections were in the nature
of unfair labor practices, it was necessary to proceed by
way of a consolidated proceeding concerning both objec-
tions and the alleged unfair labor practices, citing, in sup-
port thereof, the Board's decision in Texas Meat Packers,
Inc Texas Meat and Provision Co, Spiritar & Sloan Inc
and Partion Control Meat Co, 130 NLRB 279 (1961) 19 In
his opposition to the Respondents motion to dismiss,
counsel for the General Counsel stated that, even assuming
the parties to the collective-bargaining agreement had re
solved the Haynes dispute and that he had concurred in
that adjustment, "the circumstances of this proceeding,
particularly with relation to the representation case to
move it from consideration under the Collyer policy of de-
ferral, even should it be shown that the dispute may have
been resolved in a manner consistent with the standards of
Spielberg " (112 NLRB 1080 (1955) He there pointed out
that aside from all other considerations, Haynes had not
elected to withdraw the charge he had filed and his termi-
nation, and the attendant circumstances, "raise a material
and relevant issue, inter aka, as to whether or not Respon-
dent has engaged in objectionable conduct warranting set
ting aside the election in the representation case Further,
he contended that the alleged discriminatory discharge of
Haynes "is conduct that can only be considered in an un
fair labor practice proceeding [citing Texas Meat Packers,
Inc, 130 NLRB 279 (1961)] and that to grant Respondent's
motion to dismiss herein would deprive the SIU [of] the
opportunity of showing such discharge as grounds for set-
ting aside the election " In the earlier proceeding conduct-
ed by Judge Ladwig, he stated as follows (205 NLRB at
439)
As held in Kansas Meat Packers, 198 NLRB 543
(1972), the Board does not defer to arbitration where
the facts and circumstances establish an apparent an-
tagonism between the interests of the alleged discrimi-
nates on the one hand and both parties to the collec
tive bargaining agreement on the other
The Board, in its decision, adopted Judge Ladwig's state-
ment In my view, the same considerations are applicable
here and, accordingly, the motion of the Respondent to
19 In that case the Board stated (at 280) that where the conduct which is
alleged to have interfered with the election could only be held to be such
interference upon an initial finding that an unfair labor practice was com
meted it is Board policy as indicated above not to inquire into such mat
ters in the guise of considering objections to an election In such cases the
election process may be protected by the timely filing of charges with re
spect to the conduct in question
957
defer the unfair labor practice complaint with respect to
Haynes is denied
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several states, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
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 Sabine Towing & Transportation Co, Inc, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act and the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act
2 By discharging Russell D Haynes on January 26,
1974, the Respondent violated Section 8(a)(3) and (1) of
the Act
3 By placing William T Mayo on forced vacation the
Respondent violated Section 8(a)(1) of the Act and by con
structively discharging him on January 31, 1975, the Re-
spondent violated Section 8(a)(4), (3), and (1) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
Vi THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) (3)
and (4) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act
It will be recommended that the Respondent offer Russell
D Haynes and William T Mayo immediate and full rein-
statement to his former position, and, if not available, to an
equivalent position, without prejudice to his seniority and
other rights and privileges, and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them, by payment to them of a sum
of money equal to that which they would have earned from
the date of their discharge to the date of the offer of rein-
statement, consistent with Board policy set forth in F W
Woolworth Company, 90 NLRB 289 (1950), with interest or
backpay to be computed in the manner set forth in Isis
Plumbing & Heating Co, 138 NLRB 716 (1962)
Counsel for the Union, in his brief, not only suggests
that 'a broad and sweeping order be issued' against the
Respondent but, considering the circumstances, the notice
` should not only be posted on each of the seven Sabine
vessels and at the home office of Sabine, but also should be
mailed to each and every one of Sabine's employees at
their home and ship addresses " Further, he requests that
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the notice "be clear, perhaps in seaman s language, so that
Sabine's employees will be fully aware that Sabine cannot
discipline in any way a seaman who engages in protected
activities or who is a member of the SIU " Finally, the SIU
requests that, "in light of Sabine s flagrant violations of the
Act," the order issued should require the Respondent to
pay the SIU "the cost and expenses incurred by the SIU in
processing" both the prior and present proceeding, 'in-
cluding but not limited to attorneys' fees, costs of tran-
scripts, and travel, hotel and meal expenses incurred by the
parties, their witnesses and attorneys "
The foregoing proposal is not wholly without merit,
however, it seems clear that the detailed objections filed by
the Union, on which the evidence was required to be taken,
served to prolong the hearing The nature of the
Respondents operation and the availability of witnesses
also necessitated postponements and recesses Considering
the Board's decisions in this area, I am unable to conclude
that the Respondent engaged in frivolous litigation" in
contesting the allegations set forth by the Government Ac-
cordingly, I deny the Union s proposal 20
[Recommended Order omitted from publication ]
20 See Tudee Products Inc 194 NLRB 1234 (1972)