South Point Barge Co., Inc.,

National Labor Relations Board - Board Decisions

Mar 16, 1972

195 N.L.R.B. 925 (N.L.R.B. 1972)

SO. POINT BARGE CO. 925
South Point Barge Company, Inc., South Point Towing
Company, Inc. and Inland Boatmen 's Union of the
Seafarers International Union of North America,
Atlantic , Gulf, Lakes, and Inland Waters District,
AFL-CIO and Charles Rodman Lancaster'
South Point Barge Company, Inc., South Point Towing
Company, Inc. and Inland Boatmen's Union of the
Seafarers International Union of North America,
Atlantic, Gulf, Lakes, and Inland Waters District,
AFL-CIO. Petitioner . Cases 9-CA-6274-1, 2, 9-
CA-6352-1, 2, AND 9-RC-9067
March 16, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 7, 1971, Trial Examiner James V.
Constantine issued the attached Decision in this pro-
ceeding . Thereafter , Respondent filed exceptions.
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 Trial
Examiner's Decision in light of the exceptions and has
decided to affirm the Trial Examiner 's rulings,
findings,' and conclusions and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of 'the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
South Point Barge Company, Inc., South Point, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
IT IS FURTHER ORDERED that Case 9-RC-9067 be,
and it hereby is, remanded to the Regional Director for
Region 9 to open and count the ballots of Charles
Lancaster, James Lancaster, and James Corbin, and to
issue a revised tally of ballots and an appropriate certifi-
cation.
' The Trial Examiner also found no merit in the objection filed by the
Petitioner ^o the election held on July 30, 1971, and recommended that the
objection be overruled,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is a con-
solidated case consisting of four unfair labor practice cases
and a representation case. In Cases 9-CA-6274-1, 2, a charge
was filed on May 24, 1971, against South Point Barge Com-
pany, Inc., and South Point Towing Company, Inc., herein
called Respondent or the Company, by Inland Boatmen's
Union of the Seafarers International Union of North
America, AGLIWD, AFL-CIO, herein called the Union. On
June 29, 1971, another charge was filed against said Company
by Charles Rodman Lancaster. See Cases 9-CA-6352-1,2.
Upon such charges the Acting General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 9 (Cincinnati, Ohio), issued a consolidated com-
plaint on August 6, 1971, in substance alleging that Respond-
ent committed unfair labor practices violating Section 8(a)(1)
and (3) and affecting commerce as defined in Section 2(6) and
(7), of the National Labor Relations Act, herein called the
Act. Said complaint was amended on September 3, 1971.
Respondent has answered admitting some facts but denying
that it committed any of the unfair labor practices ascribed
to it.
In the representation case, Case 9-RC-9067, the Union
filed with the Board a petition to be certified as the bargaining
representative of the Company's employees in a specified
unit. At the election held thereafter on July 30, 1971, the
ballots of Charles Lancaster, James Martin Lancaster, James
E. Corbin, and John Viglianco were challenged because their
names did not appear oil the eligibility list. In addition, the
Union filed objections to the election. On September 7, 1971,
the Regional Director directed a hearing on said challenges
and objections in the representation case for purposes of hear-
ing, ruling, and decision by a Trial Examiner. Said Regional
Director further ordered that the consolidated case be trans-
ferred to and continued before the Board.
Pursuant to due notice this consolidated case came on to
be heard, and was tried before me, at Huntington, West Vir-
ginia, on October 12, 1971. All parties were represented at
and participated in the trial and had full opportunity to ad-
duce evidence, examine and cross-examine witnesses, file
briefs, and present oral argument. Respondent's motion to
dismiss was denied at the trial, but paragraph 5(c) of the
complaint was dismissed on said motion. A brief has been
received from Respondent.
Upon the entire record in this consolidated case, and from
my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
South Point Barge Company, Inc., an Ohio corporation, is
engaged in the business of cleaning and repairing barges from
its location at South Point, Ohio. During the year preceding
August 6, 1971, it performed services valued in excess of
$50,000 for customers located outside the State of Ohio.
South Point Towing Company, Inc., an Ohio corporation,
is engaged in the business of fleeting and towing barges from
its location at South Point Ohio. During the period preceding
August 6, 1971, it performed services valued in excess of
$50,000 for customers located outside the State of Ohio.
I find that both the above companies are a joint employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding. Hereafter, these
companies are referred to as the Respondent.
195 NLRB No. 168
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED caster had been discharged , Edgar asked him "who the in-
stigator was" of signing the union pledge cards . Edgar volun-
teered the answer that "they," meaning Edgar , Viglianco,
and Bradshaw , thought the instigator was James Lancaster,
brother of Charles.
The next day , a Wednesday , Lancaster was instructed to
take the day off. He did not work on Thursday because of a
toothache ; but he was excused therefor by supervisor Edgar
Lancaster . He did not work Friday because of said toothache,
but forgot to call in that he would be absent . On Saturday,
May 29 , 1971, Charles went to pick up his pay check at
Respondent 's office . Upon handing it to Charles , President
Viglianco told him not to report for work on the following
Monday or thereafter until called by Viglianco. When
Charles asked for a reason , Viglianco merely replied , "Don't
call me . I'll call you ." Lancaster has not since been recalled
to work . While there Charles noticed that the Dallas "B"was
in dry dock.
At no time while Lancaster was employed by Respondent
had any complaints been voiced concerning his work. In fact
he sometimes operated the Dallas "B" as a pilot.
2. The discharge of James Martin Lancaster
Lancaster was hired by Respondent on March 19 , 1970, to
operate its harbor tow boat. Later he was assigned to the
Dallas "B. " On one occasion he also operated the Mike "J, "
a line haul boat , for about 9 days. At the end of the working
day on May 18 , 1970, supervisor Edgar Lancaster told James,
"You've been laid off." When James inquired of President
Mike Viglianco for the reason , the latter referred him to a
layoff slip reading, "Due to the selling of the Mike `J', you
have been permanently laid off." But this boat had not been
operated for approximately 2 months before this.
When James protested that he did not run the Mike "J,"
Viglianco merely retorted , "Don't you think it's time I put
your brother, Edgar , to work to run the Dallas "B"? But
James insisted he was terminated "because of my union ac-
tivities ." To this Viglianco replied that James was not a good
pilot . Nevertheless- James insisted that he was the best pilot
Respondent ever had . This caused Viglianco to mention that
"he could make more money selling ice cubes than messing
with you guys in the union." (Viglianco was part owner of an
ice plant in Charleston, West Virginia.)
James testified that no complaints had ever been made
about his work . In fact Viglianco , supervisor Edgar Lancas-
ter, and Treasurer Bradshaw had complimented him several
times as "a good pilot."
On May 9 , 1971, James signed a pledge card for the Union.
Prior to this he and employee David Howard for several
months had sought "to get a union" for Respondent's em-
ployees . About May 12 Respondent received a letter from the
Union . James was present when Respondent 's officers read it.
That evening , Viglianco told a group of employees which
included James that the employees "weren 't going to organ-
ize [Respondent ] and he would cut down to a skeleton crew
and run the [employees] up the hill [i.e., terminate them]. He
would sell out and go out of business."
About May 12 , James talked to his brother , Edgar, a super-
visor for Respondent. When Edgar asked if the former had
signed a union pledge card , James replied that he had. A few
days later Edgar told a group , including James, that Vi-
glianco was "awfully mad" that employees had signed pledge
cards, was ready to fire all of them , and believed that they had
made an "awful bad mistake " by trying to organize and "put
a union in on him."
After James was laid off Treasurer Bradshaw in May 1971
terminated the former 's brother , David Lancaster, a deck
hand of Respondent . When David asked for the reason for
The Union is, and at all times material has been , a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE ISSUES
A. In the unfair labor practice cases the issues are:
1. Whether Respondent interfered with, restrained, or co-
erced employees in the exercise of rights guaranteed to them
by Section 7 of the Act.
2. Whether Respondent terminated employees James Ed-
ward Corbin , James Martin Lancaster , and Charles Rodman
Lancaster because of their interest in, sympathy for, and
activity on behalf of the Union and in order to discourage
membership in the Union.
B. In the representation case the issues are:
1. Whether the challenges to the ballots of James Corbin,
James Lancaster , Charles Lancaster, and John Viglianco
should be sustained.
2. Whether Respondent engaged in conduct interfering
with the election by:
(a) Offering a bonus if the employees rejected the Union;
and
(b) Interrogating an employee regarding how he would
vote in the election.
IV. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
1. The discharge of Charles Rodman Lancaster
Lancaster was hired as a deck hand in January 1970 by
Respondent Barge Company to work on the Dallas "B, " a
harbor boat. Among other things harbor work included
"shifting barges, go to Huntington , Portsmouth , deliverying
barges , picking up barges ... repairing barges , and dry dock-
ing." Other boats operated by the Company at the time were
the Mike "J" and the Linda Ann. The former boat was
engaged in line hauling ; i.e., "transporting up and down the
river." But the Linda Ann served as an additional harbor
boat . James Lancaster , the brother of Charles piloted the
Dallas 'B. "The two comprised a normal craw for the harbor
boat.
About May 9 , 1971, employees David Howard and Charles
Hackworth interested Lancaster in the campaign of the Sea-
farers International Union . They brought Lancaster to em-
ployee Dan Smith's house where Lancaster, after discussing
the Union with a representative thereof, signed a pledge card.
Charles Lancaster told Edgar Lancaster , his brother and a
supervisor within the meaning of Section 2(11) of the Act,
that the former had executed such a pledge . This was in
response to a question by Edgar whether Charles had signed.
Thereupon Edgar asserted , "If anything happens, don't come
crying to me."
Two or three days later Lancaster spoke to Mike Viglianco,
Respondent 's president , about the Union . In this conversa-
tion Viglianco stated that he "would not allow anyone to
organize him" and would "sell out and go to a scab crew,
three or four men ." About a week thereafter Lancaster also
spoke to Bradshaw, Reapondent 's treasurer , about the
Union . During this conversation Bradshaw observed "five
cases of beer got you to sign the pledge card . Ten cases ought
to be able to vote it out."
The Tuesday preceding May 29 , 1970, his brother , Edgar,
had told Charles Lancaster that Charles had "made a big
mistake" and if the employees had not signed "those pledge
cards" a second crew "working 24 hours" would have been
placed on the Dallas "A " At that time but one crew was
operating this boat . At another time, but after Charles Lan-
SO. POINT BARGE CO. 927
such action , Bradshaw explained that he had to do this be-
cause of a letter from the NLRB stating that every day that
David worked Respondent "had to pay James Lancaster."
Continuing , Bradshaw assured David that the former would
recall David "when the union business had blowed over."
Later, when David spoke to President Viglianco about return
to work for Respondent , Viglianco promised to put David
back to work "when everything got settled."
A day or two after May 12 , 1971, Treasurer Dallas Brad-
shaw spoke to a group of employees which included Lancas-
ter. Among other things Bradshaw remarked, "If you took
two cases of beer to vote the union in, I'll go buy four cases
and we ' ll vote it out ." On various occasions supervisor Edgar
Lancaster asked James Lancaster "how the Union meetings
were going" and also "where are you going , to a Union
meeting?"
When Lancaster was laid off he told President Viglianco
that he, Lancaster , would accept any other job with Respond-
ent, but Viglianco replied that he did not need Lancaster.
Further , prior to and on the day of Lancaster's layoff work
had been such that "we were very busy."
On cross-examination , Lancaster stated that the Dallas
"B, "a harbor boat , was also used in line hauls; that he piloted
it in such line hauls ; and that he caused damage to it es-
timated at $2500 by "mis-pilotage." He further stated that "it
was known to the employees ... that the line haul portion of
the business was losing money ," and that the Mike 'J" was
for sale before the Union commenced its organizing cam-
paign . It was finally sold 3 months after Lancaster was laid
off and it has not been replaced.
James Lancaster also stated on cross-examination that,
when he was laid off, he was informed that Edgar Lancaster
would thereafter pilot the Dallas "B" and would no longer
work as a port captain. However , Leonard Boggs , and not
Edgar Lancaster , has been piloting the Dallas "B" since
James Lancaster 's layoff. Boggs had prior to this worked as
an engineer on the Mike V.." But James Lancaster had more
service with Respondent than Boggs, and, therefore, had se-
niority on Boggs, in James Lancaster 's opinion.
3. The discharge of James Edward Corbin
Corbin was hired on April 26 , 1971, by Respondent as a
barge cleaner . He was laid off 3 weeks and 1 day later, the
reason given to him therefor being lack of work . However, the
next morning a boy had replaced Corbin as barge cleaner. At
no time did Respondent complain that Corbin 's work was
unsatisfactory.
About May 9 Corbin signed a union pledge card . Shortly
thereafter supervisor Edgar Lancaster mentioned to a group,
including Corbin , that Corbin had signed a pledge card. On
one occasion Treasurer Bradshaw mentioned to Corbin and
other employees that "Three cases of beer voted the Union
in and four will vote it out."
4. The alleged 8(a)(1) conduct of Respondent
About 3 or 4 weeks before the election President Viglianco
told a group , one of whom was employee David Howard, a
laborer, that if the Union got in Viglianco would get a job in
an ice plant in Charleston and that he would shut down
Respondent "to a skeleton crew ." Two or three weeks later
Viglianco repeated to the same group substantially the
foregoing statement. In addition Viglianco asked Howard if
the latter had any union cards. Viglianco also added that "if
the meeting went right " he'd give them a bonus . Later such
a bonus was paid to Howard ; i.e., after the election . However,
Howard had regularly received bonuses in the past 5 years at
the rate of two a year ; i.e., one in the summer and one at
Christmas time . I find such promise of a bonus does not
violate the Act since it was a regular practice to give such. At
another time Treasurer Bradshaw told Howard that, if the
latter "didn 't watch out," Howard would be fired before the
Union got in.
Other evidence touching upon this branch of the case is
recited above in connection with the discharge of Charles
Lancaster, James Lancaster , and James Corbin . It need not
be reiterated here.
B. Respondent 's Evidence
Employee Eugene Heaberlin insisted , as a witness for Re-
spondent, that Respondent never said anything about a bonus
being paid to him or that a bonus depended on "the results
of a meeting or an election ." Further Heaberlin denied that
any officer or supervisor of Respondent mentioned or in-
dicated that if the Union came in Respondent would "close
down" or would terminate him. In fact neither Viglianco nor
Dallas mentioned the Union to him at all.
William Hackworth , one of Respondent 's laborers, tes-
tified that Respondent paid bonuses every 6 to 8 months in
prior years . But he maintained that at no time did Respond-
ent indicate or say that the granting of the August 1971
bonus , received by him after the election , had "anything to
do with the union in any manner , shape, or form ." Further,
Hackworth denied that any supervisor or officer of the Re-
spondent threatened to close down the Company if the Union
came in or that he was interrogated regarding union activity
among the employees.
Another employee , Cecil Hackworth , a welder, asserted
that he and all the employees received a bonus from Respond-
ent "every six months ." He also insisted that the bonus paid
in August 1971 had "nothing to do ... with the way the
union election came out." He claimed that no supervisor or
officer ever asked him about the Union or "pried about what
the union was doing or whether [he] joined it nor not." Fi-
nally, he asserted that Respondent never indicated that em-
ployees might lose jobs or Respondent would close down if
the Union came in.
Charles Hackworth, a deck hand on the Linda Ann, tes-
tified that Respondent never discussed the Union with him,
nor asked him if he signed a pledge card , nor mentioned that
the barge company might close down . However, Hackworth
did sign a pledge card "at the very beginning."
Edgar Lancaster is Respondent 's port captain and pilot. I
find he is a supervisor within the meaning of Section 2(11) of
the Act . A summary of his testimony follows.
Once , and only once , did Edgar ask an employee whether
the latter signed a union card. This question was addressed
to his brother, Charles, who answered in the affirmative.
However, Edgar 's brother James volunteered the information
that same day that James had signed a card . Edgar reported
this membership of the two to President Viglianco . But at no
time did Edgar suggest to Charles or James that their jobs
might be in jeopardy as a result of such signing. Nor did
Edgar ever indicate to them that Respondent might close
down.
On the Friday preceding the discharge of Charles Lancas-
ter, Edgar dropped by the former 's house to give him a ride
to work . However , Charles said he would follow on his mo-
torcycle . Charles did not mention a toothache. Although
Edgar then rode to work , Charles never showed up. On the
next day, Saturday , when Charles appeared at the office to
pick up his pay check, Edgar asked him why he did not come
to work the preceding day. But the answer of Charles "made
no sense" to Edgar . Thereupon Edgar told Charles not to
come in on Monday because, since Charles failed to notify
Respondent he would not come in Friday, Charles had "quit
your job" because Edgar "had to take another man on Friday
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out with me [Edgar] on the boat." In fact Charles should have
worked on Saturday also. Finally, Edgar characterized
Charles as "goofing off," i.e., "not showing up for work
. on a number of occasions," and that Edgar warned him
about this. On many of these occasions Charles actually quit,
but Edgar always rehired him. However, on these past occa-
sions when Charles was rehired he had not yet belonged to
the Union.
Respondent's secretary-treasurer and part owner is Dallas
Bradshaw. An abridgment of his testimony follows. Among
other things, he denied holding any meetings "which were
testified to by Mr. Howard," or having "any such discus-
sion," or inquiring of employees whether they signed plege
cards, or indicating to employees that Respondent might
close down if the Union came in, or discussed unions with the
employees. Further, he declared that it has been Respond-
ent's custom in the past to pay bonuses to employees ranging
from $50 to $200 "every six months or once a year," the last
of which was paid in August 1971. This last occurred "a little
late" because Respondent's accountant "had us all fouled
up," and it was some time before a new accountant "straight-
ened out our books." Moreover, at no time did Bradshaw
discuss bonuses with the employees prior to the election,
although they did ask him occasionally "about a bonus."
Wherever he was so asked he always replied, "when we find
out something we'll let you know."
Continuing, Bradshaw stated that Mike `J" was sold
around May 15, 1971, but the buyer did not move it for
another month. But the amount of the bonus described above
in no way was contingent upon the sale of the Mike V. "
Additionally, Bradshaw explained that he had to lay off
Mike Lancaster because "our barge business was dropping"
and two deck hands therefore were not needed. Further,
Mike could not be recalled until James Lancaster, who had
beers laid off, first returned because James had seniority. But
James has not been called back because "no openings" exist
for him. Nevertheless after James was laid off Bradshaw hired
a night watchman and also a barge cleaner who "stayed three
or four days and he left." Neither of these jobs was ever
offered to James Lancaster.
On one occasion Bradshaw overheard employees "talking
about a beer party or something." This prompted him to
mention to them, "Four will get you on. I'll buy you eight and
get you out." But this "was not intended as a serious offer."
The president and principal owner of both companies is
Mike Viglianco. A summary of his testimony follows. After
denying that he asked any employees if they signed union
pledge cards,' he gainsaid that he told any employee that if
they supported the Union or if the Union came in the em-
ployees would lose their jobs or that Respondent would be
shut down. However, he did say to employees on one occa-
sion that if he "continued to lose money continually as I'd
been losing with the Mike 'J,' I'd have to go back to making
ice again." However, by this he meant that he personally
would so return (to a profession he formerly pursued) but
Respondent would continue to operate under the direction of
Dallas Bradshaw.
In 1971 the employees asked Viglianco about a bonus. He
replied, "if the books permit it, just as soon as I receive my
statements from the accountant." But at no time was a bonus
"tied-in ... with any union or any election." In fact, when the
1971 bonus was paid Viglianco had no knowledge as to
whether the Union had lost or won the election.
' However, on cross-examination Viglianco admitted he called a meeting
of four employees and, in addition to inquiring as to their "gripes," also
asked them why they signed union cards.
Viglianco also explained that James Lancaster was ter-
minated because no work was available for Lancaster. In fact,
the former told the latter, "You just weren't needed, because
your brother, Edgar Lancaster, is taking your previous post
on the boat as a pilot." And James Lancaster was no longer
needed because "once we sold the Mike `J' we didn't need a
port captain up in the office to buy groceries or the hiring of
men ... then we put Edgar Lancaster back on the Dallas.B, ,,
Viglianco insisted that Charles Lancaster was "let go" be-
cause he did not show up for work on a Friday and the
ensuing Saturday. In fact, when he questioned Lancaster the
latter admitted he forgot to call on Friday that he was not
coming to work, and that he neglected to report on Saturday
because the Dallas "B" was "on dry dock." But there was
work to be done on the Dallas "B" while it was dry docked,
so that Lancaster was needed on Saturday. When Lancaster
protested he was being "laid off on account of these union
affairs ," Viglianco replied this was not true, and that the only
reason therefor was "we 're sick and tired of you not showing
up for work."
Corbin's discharge after about 3 weeks as an employee was
expanded on by Viglianco. According to the latter, Corbin's
"discharge came about when he shoveled the stone into a coal
barge," notwithstanding that Viglianco had often previously
instructed him to keep the barge clean and to "shovel no
debris or anything into a barge. Coal goes back in a barge.
Gravel does not go back in mixed with coal." Although this
was the first time Corbin "had made the mistake" Viglianco
"got tired of telling him what to do." But Corbin's discharge
had "nothing to do with the union activities;" indeed, Vi-
glianco was ignorant of whether Corbin had signed a union
card or not.
Finally, Viglianco testified that, although Edgar Lancaster
pilots the Dallas "B, " deck hand Leonard Boggs "occasion-
ally" also pilots said boat. Boggs, an engineer on the Mike
V, " was not terminated when that boat was sold.
C. Concluding Findings and Discussion
Initially, I rule that the burden of proof is on the General
Counsel to support the allegations of the complaint by a fair
preponderance of the evidence and that no onus is imposed
on Respondent to disprove those allegations. Citation of au-
thority on this aspect of the case would be supererogatory.
In addition, I rule that even if I reject the defense of Re-
spondent this will not aid the General Counsel in establishing
his case. The reason therefor is that nonacceptance of a de-
fense or noncrediting of a Respondent's evidence does not
amount to affirmative evidence capable of sustaining the Gen-
eral Counsel's obligation to prove his case. NL.R.B. v. Joseph
Antell, Inc., 358 F.2d 880, 883 (C.A. 1); Guinan v. Famous
Players, 167 N.E. 235, 243 (Mass.); Council of Bagel and
Bialy Bakeries, 175 NLRB 902, 903.
1. The discharge of Charles Rodman Lancaster
Upon considering the entire record in this case I am per-
suaded, and find, that Lancaster was discharged for activity
on behalf of the Union and that the reasons given for his
discharge are a pretext. This ultimate finding is derived from
the entire record and the following subsidiary findings, which
I hereby find as facts.
a. Respondent had knowledge of Lancaster's union ac-
tivity. Thus I credit him that he informed Supervisor Edgar
Lancaster that he, Charles, had signed a union pledge card.
Further, I find that the small plant rule is applicable to Re-
spondent's operations; i.e., Respondent employed such a
small complement of employees that it is reasonable to infer
that it was aware of union activity occurring at its plant.
SO. POINT BARGE CO. 929
Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899,
903 (C.A. 7). Of course I recognize , and rule, that union
activity is not a guarantee against discharge for cause.
N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5). But the
elimination of union adherents often tends to discourage
other employees from being interested in organizational cam-
paigns (See N.L.R.B. v. Longhorn Transfer Service, Inc., 346
F.2d 1003, 1006 (C.A. 5), and this fact may be appraised in
determining the true reason inspiring a discharge . N.L.R.B.
v. Georgia Rug Mill, 308 F . 2d 89 ,91 (C.A. 5); Maphis Chap-
man Corp. v. N.L.R. B., 368 F .2d 298, 304 (C.A. 4).
b. Respondent entertained union animus . One instance
thereof seems sufficient , although other instances may be dis-
cerned in the record and are discussed elsewhere herein.
Thus, I credit Lancaster that in early May, 1971, President
Viglianco told him that he would not allow anyone to organ-
ize Respondent and, to accomplish this, would "sell out and
go to a scab crew ." While I am aware that hostility to unions
in itself does not prove that a discharge was discriminatorily
motivated , it is a factor which may be taken into considera-
tion in evaluating the actual reason behind a discharge.
N.L.R.B. v. Georgia Rug Mills, 308 F.2d 89, 91 (C.A. 5).
c. I expressly find, crediting Lancaster and not accepting
Respondent 's evidence inconsistent therewith, that Lancaster
was excused from working on Friday because of a toothache.
And I further find that it was Respondent 's practice not to
require deck hands to work on Saturday unless they were
expressly notified thereof , usually while at work on Friday,
and that Lancaster was not so notified.
d. Assuming that Lancaster 's failure to report for work,
characterized as a quit , on several occasions in the past dis-
qualified him for further work, I find that such quits were
condoned or overlooked by Respondent when it admittedly
rehired him after each of said quits . The reanimation of such
quits at the time of Lancaster's discharge , I find , constitutes
a pretext to disguise the fact that he was being terminated for
union activity.
e. No warning was given to Lancaster that his failure to
work on Friday, assuming , as Respondent contends, that he
did not call in to be excused , would expose him to the risk
of discharge . I find that it is reasonable to infer-and I do so
-that a warning is given to an employee that he is encounter-
ing possible disciplinary action by conduct considered objec-
tionable by the employer. Hence I find that the failure to warn
Lancaster under the circumstances has probative value in
ascertaining the true reason for his being terminated. E. An-
thony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.);
N.L.R.B. v. Melrose Co., 351 F.2d 693, 699 (C.A. 8).
In this connection it is significant that "Direct evidence of
a purpose to discriminate is rarely obtained, especially as
employers acquire some sophistication about the rights of
their employees under the Act; but such purpose may be
established by circumstantial evidence." Corrie Corporation
v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays it is
usually a case of more subtlety ...... N.L.R.B. v. Neuhoff
Bros., 375 F.2d 372, 374 (C.A. 5). Consequently, it is not
unusual for an employer to emphasize an employee 's real or
doubtful shortcomings in justifying a dismissal prompted by
antiunion motives. I find that these comments are applicable
to Lancaster's termination.
f. Lancaster was abruptly discharged. This fact makes op-
erative the rule that abruptness , manner, and timing of a
discharge cast light on whether a termination is for cause or
whether the asserted reason therefor is advanced as a pretext
to mask antiunion hostility. E. Anthony & Sons, Inc. v.
N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); Arkansas-
Louisiana Gas Company, 142 NLRB 1083, 1085-1086. "The
abruptness of a discharge and its timing are persuasive evi-
dence as to motivation ." N.L.R.B. v. Montgomery Ward &
Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S.
829. Accord: N.L.R.B. v. Hawthorn Company, 404 F.2d
1205, 1210 (C.A. 8); N.L.R.B. v. L.E. Farrell Co., 360 F.2d
205, 208 (C.A. 2).
g. I recognize , and rule, that I may not question the severity
of a discharge for minor offenses, for the penalty to be meted
out for infractions of work rules may not be reviewed by me.
Nevertheless I find that Lancaster 's failings alone would not
have led to his discharge , and that his union activity was the
motivating or substantial reason therefor . Cf. N.L. R.B. v.
Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7); N.L. R.B. v.
Whitin Machine Works, 204 F.2d 883 , 885 (C.A. 1). "If the
discharge is because of union activity it is a violation of the
Act even though a valid ground for dismissal might exist."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5).
2. The discharge of James Martin Lancaster
It is my opinion , and I find, that Lancaster was discharged
for union activity and that the reason given to him for his
being laid off, i.e ., disposing of the Mike "J, " is a pretext to
mask the true reason . This ultimate finding is based on the
entire record and the ensuing subsidiary findings, which I
hereby find as facts.
a. Respondent was cognizant of Lancaster's union activity.
This knowledge come not only from the operation of the
small-plant rule to the facts presented but also because Lan-
caster , responding to a question from supervisor Edgar Lan-
caster , told the latter he had signed a pledge card.
b. Respondent opposed unions. In addition to other in-
stances of this attitude mentioned elsewhere herein , one such
may be recited here. For example , I find, crediting James
Lancaster and rejecting Respondent 's evidence not consonant
herewith, that President Mike Viglianco told James and a
group of employees that they "weren 't going to organize
Respondent] and he [Viglianco ] would cut down to a skele-
ton crew and run the [employees] up the hill . He would sell
out and go out of business."
c. Although Lancaster allegedly was laid off because the
Mike `J" was sold , I find this is a pretext for three reasons.
(1) The Mike V" had not been operated for approximately
2 months before it was sold . Yet nothing was done to lay off
Lancaster about this condition during said 2 months. It was
not until Lancaster's union activity became known that Lan-
caster was terminated after the Mike "J" had been idle for
2 months.
(2) Boggs occasionally was assigned to pilot a boat after the
Mike "J" was sold . Respondent has not satisfactorily ex-
plained why Boggs, an engineer with very little experience as
a pilot, was selected to do this in preference to Lancaster, a
seasoned pilot.
(3) When he was laid off Lancaster expressed a willingness
to do any other work for Respondent . Yet when Respondent
needed a night watchman Lancaster was not hired for this
job. Instead, Respondent hired an outsider for this work. It
is true that such outsider left after 3 or 4 days , but no reason
appears in the record as to why Lancaster was not offered this
employment.
(d) Lancaster was abruptly discharged without any previ-
ous warning that he was in danger of being terminated be-
cause the Mike `J" had stopped running . Failure to alert
Lancaster, for a period of 2 months, that he might be laid off
because another boat no longer was being used , is significant.
It is equally significant that Lancaster was abruptly ter-
minated within a short time after his union activity was dis-
covered.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e. It is true that Lancaster caused some damage to the boat
he piloted a few months before he lost his job. But I find this
did not contribute to the decision to terminate him, not only
because it was never mentioned as the reason for the loss of
his job, but also because Respondent continued to employ
him thereafter. This amounts to condonation of Lancaster's
said work, assuming that it resulted from an improper per-
formance by him.
f. Finally it is not necessary, in order to find Lancaster's
termination discriminatory, that it be attributed solely to his
union activity. It is sufficient to find a violation, notwithstand-
ing that a valid cause may have existed for his termination,
if a substantial or motivating reason for his discharge was his
protected activity. N.L.R.B. v. Lexington Chair Co., 361 F.2d
283, 295 (C.A. 4). I find that a substantial or motivating
reason leading to his termination was his union activity. Cf.
Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10);
N.L.R.B. v. Park Sheridan Meats, 341 F. 2d 775, 728 (C.A.
2); N. L. R. B. v. California State Automobile Association, 442
F.2d 426 (C.A. 9).
3. The discharge of James Edward Corbin
In my opinion Corbin was terminated because he signed a
union pledge card, and I so find. And I further find that the
reason given for his layoff, i.e., lack of work, is a pretext to
obscure the true reason. Such ultimate finding is based on the
entire record and the following subsidiary facts which I
hereby find as facts.
a. Respondent was aware of Corbin's union membership.
This not only flows from the operation of the small-plant rule
but also because, according to Corbin (whom I credit), super-
visor Edgar Lancaster told a group, among whom was Cor-
bin, that Corbin had signed a union pledge card.
b. Respondent, as found elsewhere herein, was vigorously
opposed to unions.
c. Crediting Corbin, and not crediting Viglianco on this
aspect of the case, I find that Corbin was told that he was laid
off for lack of work. Nevertheless, I do credit Viglianco that
Corbin once shoveled some stone into a coal barge. But I find
that this misfeasance by Corbin was overlooked or condoned,
so that it did not substantially enter into the decision to
terminate him. In fact Viglianco admitted that this was the
first and only "mistake" which Corbin had made.
I do not credit Viglianco that he "got tired of telling [Cor-
bin] what to do." Rather, I credit Corbin that at no time did
Respondent complain that his work was unsatisfactory.
Again crediting Corbin, I find that the day after he was laid
off allegedly for lack of work another person was hired to
replace him.
d. Since another person was immediately hired to replace
Corbin I find that the reason given to him, i.e., that there was
no work for him, is a false one. "Affirmative proof, however,
that the reason given [for a termination] was false warrants
the inference that some other reason was being concealed.
... If the employer is independently shown to have an union
animus which the discharge would gratify, it may be a fair
inference that this was the true reason." N.L.R.B. v. Joseph
Antell, Inc., 358 F.2d 880, 883 (C.A. 1). I draw the inference,
and find, that the true reason for Corbin's layoff was his union
membership and that the false reason given him was ad-
vanced to screen such true reason.
e. Corbin at no time was effectively warned that his work
performance exposed him to the possibility of being ter-
min d. In this respect I credit Corbin and do not accept
Viglianco's testimony inconsistent therewith. Failure to warn
has probative weight in ascertaining the true reason for a
termination. I find that the true reason was his union mem-
bership.
f. Corbin was hastily terminated. Yet no immediate occa-
sion arose to necessitate such precipitate action by Respond-
ent. Thus, even accepting President Viglianco's testimony
that Corbin was released for shoveling stone into a coal barge,
such incident occurred days before his discharge. Hence, such
misconduct patently had been overlooked, condoned, or ex-
cused long before Corbin was released by Respondent. Again,
even crediting Viglianco that he "got tired of telling [Corbin]
what to do," nothing Corbin did on the occasion of his being
discharged called for an immediate decision to sever his em-
ployment with Respondent. Finally, assuming no work was
available requiring that Corbin be retained, no plausible ex-
planation has been advanced why Corbin's duties were as-
signed to a new hire the very next day.
Accordingly, I find that abruptly terminating Corbin with-
out a valid contemporaneous reason justifies the inference-
and I draw it-that he was discharged for an undisclosed
reason, that such reason was his union membership, and that
his alleged unsatisfactory performance was "seized upon by
Respondent to serve a discriminatory purpose." N.L.R.B. v.
West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6).
g. "Even assuming that [Corbin] did violate a company
rule [by his conduct as an employee as described in Viglian-
co's testimony] this would not help the company if the real
motivation for his discharge was his union activity."
N.L.R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d
948, 950 (C.A. 6). I find that the real reason for Corbin's
discharge was his membership in the Union.
4. The 8(a)(1) violations
As found above, Viglianco stated to employee Charles Lan-
caster that the former would "sell out and go to a scab crew"
to prevent his employees from being organized. Also, as
found above, Viglianco told employees James Lancaster that
he would "sell out and go out of business' if his employees
became organized. I find that these two statements constitute
threats of reprisals violating Section 8(a)(1) of the Act.
Sometime in May, 1971, supervisor Edgar Lancaster asked
Charles Lancaster whether the latter had signed a union
pledge card. Since the answer to this question was not needed
for any legitimate purpose or investigation recognized by the
Board, I find it is coercive and, therefore, contravenes Section
8(a)(1) of the Act. At the same time Edgar asserted, "If
anything happens, don't come crying to me." I find that this
is not coercive and, therefore, does not transcend the bounds
of permissible utterances sanctioned by the Act.
In May 1971, Treasurer Bradshaw remarked to Charles
Lancaster, "five cases of beer got you to sign the pledge card.
Ten cases ought to be able to vote it out." I am of the opinion
that this utterance is neither coercive nor a promise of benefit
and, accordingly, does not transgress statutory prohibitions.
Shortly before May 29, 1971, supervisor Edgar Lancaster
informed Charles Lancaster that those who signed pledge
cards had made a mistake. This is not coercive, and I so find.
In this conversation Edgar continued that if such cards had
not been signed a second crew would have been added to the
Dallas "B. "Since there is nothing to indicate that any present
employees, as distinguished from new hires, would have been
assigned to this second crew, I find no threat of reprisals or
promise of benefits to employees. Hence I find that such
statement is not proscribed by the Act.
In the above conversation Edgar also asked Charles who
was the "instigator" behind the union pledge cards. Since no
lawful purpose has been demonstrated for such inquiry I find
it amounts to coercive interrogation regarding a protected
activity. Accordingly, I find that it violates Section 8(a)(1) of
the Act.
SO. POINT BARGE CO. 931
In May 1971, President Viglianco told employee James
Lancaster that Viglianco could make more money selling ice
cubes "than messing with you guys in the union." While this
displays antiunion hostility, I find that it is not a threat of
reprisal. Therefore, I find it is not prohibited by the Act.
About May 12, 1971, supervisor Edgar Lancaster asked
employee James Lancaster if the latter had signed a union
pledge card. This is illegal interrogation regarding an activity
vouchsafed to employees by the Act and, therefore, violates
Section 8(a)(1) of the Act. A few days later Edgar told a
group of employees that President Viglianco was "awfully
mad" that employees had signed pledge cards, and that Vi-
glianco was ready to fire all of them. I find that this amounts
to a threat of reprisal and, consequently, contravenes the Act.
Edgar also made other remarks on that occasion which ex-
hibit union animus , but I find that, as they were not coercive,
they were privileged communications under Section 8(c) of
the Act.
In May, 1971, after James Lancaster was laid off, Treasurer
Bradshaw promised to recall laid off employee David Lancas-
ter, "when the union business had blowed over." I find that
Bradshaw's statement is too indefinite to be treated as a coer-
cive remark forbidden by the Act. Hence I find it does not
infringe the Act. Sometime after this President Viglianco
assured David that the latter would be put back to work
"when everything got settled." On the same ground as Brad-
shaw's above, I find this statement does not exceed limits
permitted by Section 8(c) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in Section IV, above,
occurring in connection with its operations described in Sec-
tion 1, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
As Respondent has been found to have engaged in unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take specific action, as set
forth below, designed to effectuate the policies of the Act.
In view of the finding that Respondent unlawfully ter-
minated Charles Lancaster, James Lancaster, and James Cor-
bin, it will be recommended that Respondent be ordered to
offer each immediate and full reinstatement to his former
position or, if such is not available, one which is substantially
equivalent thereto, without prejudice to the seniority and
other rights and privileges of each. It will further be recom-
mended that each be made whole for any loss of earnings
suffered by reason of his termination.
In making whole these three persons Respondent shall pay
to each a sum of money equal to that which he would have
earned as wages from the date he was terminated to the date
he is reinstated or a proper offer of reinstatement is made, as
the case may be, less his net earnings during such period.
Such backpay, if any, is to be computed on a quarterly basis
in the manner established by F W. Woolworth Co., 90 NLRB
289, with interest thereon at 6 percent calculated according
to the formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent
preserve and make available to the Board or its agents, upon
reasonable request, all pertinent records and data necessary
to aid in analyzing and determining whatever backpay may
be due. Finally, it will be recommended that Respondent post
appropriate notices.
The discriminatory terminations go "to the very heart of
the Act." N.L.R.B. v. Entwistle Manufacturing Company,
120 F.2d 532, 536 (C.A. 4). Accordingly, the Board's order
should be comprehensive enough to prevent further infrac-
tion of the Act in any manner; and I shall so recommend. Cf.
R & R Screen Engraving, Inc., 151 NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Sec-
tion 2(2) and is engaged in commerce as defined in Section
2(6) and (7) of the Act.
3. By (a) coercively interrogating employees regarding
their union membership , sympathies , and activities , and (b)
threatening employees with reprisals if the Union organized
Respondent , the latter committed unfair labor practices pro-
scribed by Section 8(a)(1) of the Act.
4. By discriminating in regard to the tenure of employment
of Charles Lancaster, James Lancaster , and James Corbin,
thereby discouraging membership in the Union, a labor orga-
nization , Respondent has engaged in unfair labor practices
condemned by Section 8(a)(3) and (1) of the Act.
5. The foregoing unfair labor practices affect commerce
within the purview of Section 2 (6) and (7) of the Act.
6. Respondent has not committed any other labor practices
alleged in the complaint.
Upon the foregoing findings of fact , conclusions of law, and
the entire record in this case , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:'
ORDER
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other
labor organization, by laying off or terminating employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of employ-
ment.
(b) Coercively interrogating employees regarding their
union membership, sympathies, and activities.
(c) Threatening employees with reprisals if the Union or-
ganized them.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act:
(a) Offer Charles Lancaster, James Lancaster, and James
Corbin each immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent
one, without prejudice to his seniority and other rights and '
privileges previously enjoyed by each, and make each whole
for any loss of pay he may have suffered by reason of Re-
spondent's discrimination against him, with interest at the
rate of 6 percent, as provided in the section above entitled
"The Remedy."
' In the event no exceptions are filed as provided by Section 102.46 of
the Board's Rules and Regulations, the findings, conclusions, recommenda-
tions, and recommended Order herein shall, as provided in Section 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purpose.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify said Charles Lancaster, James Lancaster, and
James Corbin, if presently serving in the Armed Forces of the
United States , each of his right to reinstatement, upon ap-
plication after discharge from the Armed Forces in accord-
ance with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended.
(c) Preserve and, upon reasonable request, make available
to the Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to ascertain the amount, if any, of backpay due under the
terms of this Recommended Order.
(d) Post at its premises at South Point, Ohio, copies of the
notice marked "Appendix."' Copies of said notice, to be fur-
nished by the Regional Director for Region 9, after being
signed by a duly authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily displayed. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
REPORT ON CHALLENGED BALLOTS
Having found that Charles Lancaster, James Lancaster,
and James Corbin were discriminatorily terminated in May
1971, I rule that, pursuant to the provisions of the Act, they
remained in employee status and were entitled to vote in the
election held on July 30, 1971. Accordingly, I recommend
that the challenges to their ballots be overruled and that their
ballots be opened and counted.
The facts pertinent to the challenge to John Viglianco who,
Respondent contends , is a regular part-time employee whose
name was inadvertently left off the eligibility list may be
summarized as follows.
John, the son of President Mike Viglianco, started to work
for Respondent while a high school student. During this
period he worked after school hours, Saturdays, and Sundays,
not always but on "some days." Upon completing high school
John worked "some" in summer and a few hours a day while
attending college. He was basically on call." However, he was
kept on the payroll and served as an employee about 25 or
30 hours a week in 1970.
On the foregoing facts, which I hereby find, I am per-
suaded, and find, that John is a regular part-time employee
who is otherwise eligible to vote unless his relationship to
Mike disqualifies him. John R. Krystyniak, 172 NLRB No.
210, affirmed 415 F.2d 125 (C.A. 3). Nevertheless the Board
has held that "For all practical purposes [the owners of a
stock in a closely held corporation] are the real employer of
the employees." Foam Rubber City #2 of Florida, Inc., 167
NLRB 623, 624. It follows, and I find, that Mike Viglianco,
who is described in the record as "the principal owner" of
Respondent, must be treated, together with the few other
stockholders, as the real employer of the Respondent's em-
ployees. This is because I find Respondent is a closely held
' In the event the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United State Court of Appeals Enforcing an
Order of the National Labor Relations Board."
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 9, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith."
corporation, its stockholders consisting only of Mike Vi-
glianco, Dallas Bradshaw, its treasurer, Edgar Lancaser, and
probably Andrew M. Viglianco, its secretary.
Since Mike is one of the "entrepreneurs" as defined in the
Foam Rubber case, supra at 624, it is logical to conclude that
his son, John, "in these circumstances ... is an `individual
employed by his parent.'" Foam Rubber, supra at 624.
Consequently, I find that, as the son of Mike, the principal
owner of Respondent, John was ineligible to vote in the elec-
tion, as Section 2(3) of the Act expressly excludes from the
classification of employee "any individual employed by his
parent or spouse." In any event, I find that John, as the son
of Mike, was ineligible to vote in the election because he has
"interests more closely identified with management than with
[his] fellow employees." Foam Rubber case, supra at 624.
Accordingly, I recommend that the challenge to his ballot be
sustained and that such ballot be not counted.
Also, I recommend that a revised tally of ballots be pre-
pared and served on the parties, such revision taking into
account the above recommended dispositions of the chal-
lenges to the ballots of James Lancaster, Charles Lancaster,
James Corbin, and John Viglianco. Finally, I recommend
that an appropriate certificate be issued in accordance with
such revision.
REPORT ON OBJECTIONS TO ELECTION
Petitioner's principal objection on this phase of the case is
that "approximately one week prior to the election agents and
representatives of the Employer promised eligible employees
a bonus, in the amount of $200, in the event that the Peti-
tioner was defeated in the election." (G.C. Exh. in p. 3). The
facts on this issue may be abridged as follows:
About 3 or 4 weeks before the election President Viglianco
told a group of employees, in response to a question by them,
that "if the books permit it, just as soon as I receive my
statements from the accountant," a bonus would be paid.
After the election a bonus of $200 was paid to eligible em-
ployees in August 1971. However, such a bonus, varying
from $50 to $200, had been regularly paid to employees for
at least the past five years at the rate of two a year; i.e., one
in summer and one at Christmas time. Although such bonus
was paid a little late in the summer of 1971, 1 find that this
resulted from the fact that Respondent's accountant had
"fouled up" the books, and that, as soon as the books were
"straightened out" by another accountant, the amount of the
bonus was ascertained and then paid.
On the foregoing facts I find that the bonus was not in-
tended to influence employees how to vote in the forthcoming
election; that it was granted as part of a regular and consistent
past practice; that it occurred about the time of year, i.e.,
summer , when it was paid in the past; that it was in an
amount not exceeding prior payments; and that it was paid
a little late in the summer of 1971 because Respondent's
accountant had "fouled up" the books.
While it is true that bonuses announced shortly before an
election often have been found to have been intended to affect
the outcome of that election, I nevertheless also recognize
that such a bonus, when it has become part of a pronounced,
identifiable, pattern, need not be renounced or postponed by
an employer simply because it happens to be coincidental
with a coming election. It is my opinion, and I find, that the
bonus of August 1971, was consistent with a past practice and
was neither accelerated nor retarded to induce antiunion
votes at the election.
The foregoing conclusion is somewhat buttressed by the
fact that the bonus was paid notwithstanding that the out-
come of the election has not yet been ascertained. If, as the
Petitioner contends, the bonus was conditioned on the
SO. POINT BARGE CO. 933
Union's losing the election, it is difficult to understand why
it was nevertheless paid without awaiting the final result of
that election. While not determinative, this factor points to
the conclusion that the bonus was not tied in with an unfavor-
able vote for the Union.
Accordingly, I recommend that this objection to the elec-
tion be overruled in view of the finding that the bonus was
not intended to influence employees how to vote at such
election.
Petitioner's other objection asserts that "approximately
one week before the election a representative of the Employer
interrogated an employee regarding his union activities." (See
G.C. Exh. in p. 4). Although I have found, in connection with
the unfair labor practice case herein, that Respondent's
supervisors interrogated employees in a manner forbidden by
Section 8(a)(1) of the Act, I have also found that such inci-
dents took place long before July 30, 1971, the date of the
election. Since none of this interrogation occurred shortly
before the election, I find that the present objection that it
happened about a week before the election is not well taken.
Assuming that such interrogation took place as contended
I find that in any event it was isolated and was made to but
a single employee. The name of such employee is not dis-
closed in General Counsel's Exhibit 1 n. Further, I find that
such employee probably was not coerced to vote against the
Union for two reasons: (a) none of the employees testifying
for Respondent claimed that they were so interrogated; (b) it
follows that the employee to whom such inquiry was ad-
dressed must have been one of those testifying for the General
Counsel. But it is reasonable to infer that employees so testi-
fying were prounion and remained such at election time and
that none of them, inch ding the one so asked, was deterred
from voting for the Union.
On the basis of the foregoing findings of fact and analysis
thereof, I recommend that this latter objection to the election
also be overruled.
tion, by laying off or terminating employees or otherwise
discriminating in any manner in respect to their tenure
of employment or any term or condition of employment.
WE WILL NOT coercively interrogate employees re-
garding their union membership, sympathies, and activi-
ties.
WE WILL NOT threaten employees with reprisals if the
above Union organizes them.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of rights guar-
anteed to them by Section 7 of the National Labor Rela-
tions Act.
WE WILL offer Charles Lancaster, James Lancaster,
and James Corbin each immediate and full reinstatement
to his former position or, if such position no longer
exists, to a substantially equivalent one, without preju-
dice to the seniority and other rights and privileges en-
joyed by each, and make each whole for any loss of pay
he may have suffered by reason of his layoff, with interest
thereon at the rate of 6 percent per annum.
WE WILL notify said Charles Lancaster, James Lan-
caster, and James Corbin, if presently serving in the
Armed Forces of the United States, each of his right to
reinstatement upon application in accordance with the
Selective Service Act and the Military Training and Ser-
vice Act of 1948, as amended, after discharge from the
Armed Forces.
All our employees are free to become, remain, or refuse to
become or remain members of the above-named Union or any
other labor organization.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT discourage membership in Inland
Boatmen's Union of the Seafarers International Union of
North America, Atlantic, Gulf, Lakes, and Inland Wa-
ters District, AFL-CIO, or any other labor organiza-
Dated By
SOUTH POINT
BARGE COMPANY,
INC. SOUTH POINT
TOWING COMPANY,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material . Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, Federal Office Building , Room 2407, 550
Main Street, Cincinnati, Ohio 45202, Telephone 513-684-
3686.