Upper Great Lakes Pilots

National Labor Relations Board - Board Decisions

May 21, 1993

311 N.L.R.B. 131 (N.L.R.B. 1993)

131
311 NLRB No. 21
UPPER GREAT LAKES PILOTS
1 On the opening day of the hearing, the judge permitted the Gen-
eral Counsel to amend the complaint to include allegations that the
Respondent, in early January 1990, violated Sec. 8(a)(1) by interro-
gating an employee concerning his protected concerted activities,
creating the impression of surveillance, and threatening reprisals. See
fn. 5 of the judge’s decision. No party has excepted to that ruling.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In this regard, we note that the judge broadly discredited the Re-
spondent’s witnesses, especially Senff, Sciullo, O’Brien, and
Madjiwita, all on demeanor grounds. Yet the judge’s opinion con-
tains numerous factual findings that are consistent with, and in some
cases based entirely on, those witnesses’ testimony. Apparently,
then, the judge did not mean that none of their testimony was credi-
ble. Accordingly, we rely in some respects on the testimony of the
discredited individuals, but only when it (1) was implicitly credited
by the judge, (2) is consistent with the testimony of credited wit-
nesses or with documentary evidence, (3) is an admission against in-
terest, or (4) is relied on by the party against whom we are resolving
a particular issue.
The correct citation to American National Stores (see part II,I,1 of
the judge’s decision) is 195 NLRB 127 (1972).
3 Pursuant to an understanding between the U.S. and Canadian
governments, Canadian pilots also provide services to ships in Dis-
trict 3. Roughly 19 percent of all revenues derived from providing
pilotage services are, at least theoretically, earmarked for the Cana-
dian operations.
4 The officers are appointed by the board of directors. The record
does not establish what powers and duties were held by the non-
director officers.
Directors may be removed and replaced by a majority vote of the
voting stock.
Upper Great Lakes Pilots, Inc. and Captain How-
ard C. Dobbins and Upper Lakes Pilots Asso-
ciation, District No. 3, International Longshore-
men’s Association, Local 444, AFL–CIO, Party
in Interest. Case 18–CA–11351
May 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 27, 1992, Administrative Law Judge David
G. Heilbrun issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a brief
in support of cross-exceptions and in reply to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs, and has decided to affirm the judge’s rulings,1
findings,2 and conclusions only to the extent consistent
with this Decision and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employees
about their protected concerted activities, creating the
impression that those activities were under surveil-
lance, threatening to retaliate against employees for en-
gaging in protected activities, and telling employees
that they had been laid off because they had engaged
in those activities. The judge also found that the Re-
spondent violated Section 8(a)(2) by interfering with
the administration of the Union and by rendering as-
sistance and support to the Union. He further found
that the Respondent violated Section 8(a)(3) by laying
off and later discharging several employees in retalia-
tion for their union activities. As threshold matters, the
judge found, contrary to the Respondent’s contentions,
that the Board should assert jurisdiction over the Re-
spondent, that the pilots employed by the Respondent
were employees entitled to the protection of the Act,
and that the Union was a labor organization within the
meaning of Section 2(5).
In the main, we adopt the judge’s findings and rec-
ommendations, although some issues warrant further
discussion and analysis. We find, however, that the
Respondent did not commit certain of the 8(a)(1) vio-
lations found by the judge. We also find, contrary to
the judge, that the Respondent did not act unlawfully
by laying off and later terminating the alleged
discriminatees. Our discussion of those issues follows.
I. THE PILOTS’ STATUS AS PROTECTED EMPLOYEES
A threshold issue before us is whether the pilots em-
ployed by the Respondent are protected by Section 7
of the Act, as the General Counsel asserts, or whether
they are unprotected managerial employees, as the Re-
spondent contends. The judge found that the pilots are
protected employees. For the reasons set forth below,
we agree with the judge.
The Respondent is an association of U.S. pilots who
guide ships through Lakes Huron, Michigan, and Supe-
rior and the waterways that connect those lakes with
each other and with Lake Erie. (Together, those bodies
of water are referred to as ‘‘District 3.’’)3 The Re-
spondent is a corporation, and the pilots own all its
stock. All the Respondent’s officers and directors are
pilots.4 Each pilot is required to own at least one share
of voting stock and two shares of nonvoting stock, but
no pilot may own more than six shares of voting stock.
During the relevant time period, the pilots owned vary-
ing amounts of voting stock, except for three of the pi-
lots, who had not yet purchased any voting stock. Of
the 54 outstanding shares of voting stock, 29 were
owned by the corporate officers and directors.
The Respondent argues that the pilots’ stock owner-
ship precludes their being considered employees pro-
tected by the Act. The Respondent contends that each
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Brookings Plywood Corp., 98 NLRB 794, 798 (1952).
6 The judge cited Airport Distributors, 280 NLRB 1144, 1150
(1986).
7 Sida of Hawaii, Inc., 191 NLRB 194, 195 (1971); Red & White
Airway Cab Co., 123 NLRB 83, 85 (1959); Brookings Plywood,
supra, 98 NLRB at 798–799. In excluding the shareholder-employ-
ees, the Board relied in part on the fact that those individuals en-
joyed preferential treatment over other employees, or otherwise had
divergent interests. Although the Board in those cases simply ex-
cluded the shareholder-employees from units with other employees,
and did not squarely hold that they were unprotected managerial em-
ployees, that seems to have been the Board’s underlying rationale.
See Florence Volunteer Fire Department, 265 NLRB 955, 956
(1982). See also the Supreme Court’s discussion of the Board’s
evolving treatment of managerial employees in NLRB v. Bell Aero-
space Co., 416 U.S. 267, 275–289 (1974). But see Everett Plywood
& Door Corp., 105 NLRB 17, 19 (1953), in which the Board ex-
pressly found that stockholder-employees were protected by Sec. 7,
even though they collectively held more than 75 percent of the em-
ployer’s stock, where (like the pilots) all employees were stockhold-
ers. In that case, the Board followed its consistent practice and ex-
cluded from the bargaining unit employee-shareholders who were di-
rectors of the corporation. Id. at 19–20.
8 98 NLRB at 798.
9 See, e.g., S-B Printers, 227 NLRB 1274, 1275 (1977).
The Board has excluded groups of shareholder-employees from
bargaining units even though they collectively owned less than half
of the employers’ stock. Brookings Plywood, supra; Union Furniture
Co., 67 NLRB 1307 (1946). In neither case, however, was the situa-
tion now before us presented; i.e., there was no showing that the
corporate officers and directors collectively owned a controlling
block of stock.
Florence Volunteer Fire Department, supra, cited by the Respond-
ent, is unlike this case. In Florence, each of the firefighters had an
equal voice in management decisions, and no policy could be set or
implemented without ratification by a vote of the membership. Those
circumstances do not exist here.
10 Airport Distributors, supra, 280 NLRB at 1150.
11 A fortiori, Pilots Aho, Ojard, and Soderquist, who had not yet
purchased stock, were protected employees.
12 The judge also correctly found that the Respondent interfered
with the administration of the Union, in violation of Sec. 8(a)(2),
when the Respondent’s officers and directors took part in the
Union’s vote on the Respondent’s 1990 contract proposal. See Nas-
sau & Suffolk Contractors’ Assn., 118 NLRB 174, 183–184 (1957).
pilot, as a shareholder, had some measure of control
over its operations, and that the pilots as a group had
complete control over its operations and management.
According to the Respondent, the pilots’ interest gives
them an ‘‘effective voice in the formulation and deter-
mination of corporate policy,’’5 and consequently they
are unprotected managerial employees.
The judge rejected the Respondent’s contentions. He
found that no pilot held an amount of stock sufficient
to divest him of employee status,6 that the corporate
bylaws permit an entrenched board of directors and ef-
fectively deny nonmanagement shareholders the power
to amend the bylaws.
We agree with the judge’s conclusion, but not with
all of his underlying analysis. Although no single pilot
owned enough stock to determine the Respondent’s
corporate policy, that fact alone does not end the in-
quiry. The pilots as a group owned all the Respond-
ent’s voting stock; thus, as a group, they could effec-
tively determine corporate policy. As the Respondent
points out, the Board in a number of representation
cases has excluded, from bargaining units of other em-
ployees, shareholder-employees whose collective hold-
ings of their employers’ stock gave them an effective
voice in formulating and determining policy.7 As the
Board specifically noted in Brookings Plywood, where
a large number of employees own a large portion of
their employer’s stock, they may collectively influence
management policies even though no one of them
would be likely to affect the making of corporate pol-
icy by himself.8 The judge’s reliance on Airport Dis-
tributors therefore is misplaced, because the employee
in question in that case (a 10-percent stockholder) ap-
parently was the only employee who owned shares of
the employer’s stock.
We find, however, that the judge reached the correct
result here. The Respondent’s directors and officers
during the relevant time period together owned more
than half of the voting stock. The rest of the pilots,
even acting in concert, could not outvote the officers
and directors. On the basis of their stock ownership,
then, the minority shareholders lacked an effective
voice in the formulation and determination of cor-
porate policy. The record contains no evidence that
those individuals effectively determined the Respond-
ent’s policies, or that they could have replaced the of-
ficers or directors in order to gain control of corporate
decisionmaking.9 It is well settled that stock ownership
alone does not deprive an employee from the protec-
tion of the Act,10 and we agree with the judge that the
pilots’ job functions are not those of managerial em-
ployees. We therefore find that the pilots who were not
officers or directors of the Respondent were not unpro-
tected managerial employees, and that they were enti-
tled to the protection of the Act.11
II. THE 8(A)(2) VIOLATIONS
The pilots are represented by Upper Lakes Pilots
Association, District No. 3, Local 444 of the Inter-
national Longshoremen’s Association (the Union). The
judge found that the Respondent violated Section
8(a)(2) by contributing clerical assistance and support
to the Union.12 We adopt the judge’s finding. In so
doing, we note that, according to the testimony of Pilot
Peter Madjiwita, the Union’s ex-president, that assist-
ance consisted of helping to write letters, taking tele-
phone messages, and paying the Union’s bills (out of
133UPPER GREAT LAKES PILOTS
13 As we have noted, Madjiwita was broadly discredited. The
judge’s findings, however, were consistent with Madjiwita’s testi-
mony. Also, we note that the Respondent contends that Madjiwita
should be credited.
14 The clerical services were not provided directly by the Respond-
ent, but by employees of General Business Services (GBS), a firm
owned by the Respondent’s attorney. However, to the extent those
employees were working for the Respondent (though employed by
GBS), their contribution of clerical services to the Union was the
equivalent of a direct contribution by the Respondent. In any event,
the Respondent has excepted to the judge’s finding of this violation
solely because it contends that the services were inconsequential, not
because they were provided directly by employees of GBS.
Member Raudabaugh believes that the appropriate test for deter-
mining whether there was unlawful support within the meaning of
Sec. 8(a)(2) is whether the acts of assistance went beyond reasonable
cooperation. In his view, the acts outlined above, considered collec-
tively and in the context of the 8(a)(2) violation discussed in fn. 12
above, establish the violation in this respect under that test.
15 Unless otherwise noted, all dates are in 1990.
16 Wright Line, 251 NLRB 1083 (1980).
17 In fact, because of the dropoff in traffic and in revenue, the Re-
spondent in October 1989 laid off several support staff as well as
two pilot trainees and two ‘‘contract pilots’’ (individuals who
worked sporadically to handle peak traffic loads). None of the regu-
lar pilots was laid off at that time, however.
the Union’s funds).13 Contrary to the Respondent, we
do not find those services de minimis.14
However, we do not rely on the judge’s finding that
the Union had no independent resources, in view of
record testimony that the pilots each pay around $800
annually in dues to the Union. Nor do we rely on his
statement that Madjiwita could not say what the Union
paid for its office space. Madjiwita admitted that he
had not known the amount of rent during the pretrial
investigation of the case, but he estimated that it was
around $150.
III. THE 8(A)(1) AND (3) ALLEGATIONS
On April 11, 1990,15 the Respondent laid off the
seven pilots with the least seniority, for the stated rea-
son that the low level of shipping traffic was insuffi-
cient to support the full complement of pilots. Al-
though one of the pilots (Skorich, the most senior of
those who were laid off) was later recalled, the layoffs
of the remaining six were converted to permanent dis-
charges on May 22, again ostensibly because of a
shortage of work. The complaint alleges that the lay-
offs and discharges violated Section 8(a)(3) and (1).
There is no allegation or finding that the Respondent
violated Section 8(a)(5) in any respect.
The judge found that the layoffs and discharges of
the pilots violated Section 8(a)(3) and (1) as alleged.
He found, first, that the General Counsel had estab-
lished a prima facie case that the layoffs were moti-
vated by animus directed toward the concerted pro-
tected activities of some of the less senior pilots, and
especially by the pilots’ rejection of the Respondent’s
1990 contract proposal. The judge based his finding in
part on several statements attributable to the Respond-
ent that he found to violate Section 8(a)(1), and in part
on unidentified ‘‘profane and browbeating remarks
from several board members against [the less senior pi-
lots].’’ He then found that the Respondent had failed
to show that it would have laid the pilots off even in
the absence of their protected activity.16 The Respond-
ent excepts to the judge’s findings. We find merit in
several of the exceptions.
In the decade prior to 1990, the level of shipping ac-
tivity on the Great Lakes had declined significantly.
The number of ships handled annually in District 3 fell
from 869 in 1979 to 420 in 1985. Traffic volume
roughly stabilized for a time—449 ships were handled
in 1986, 418 in 1987, and 437 in 1988—before drop-
ping sharply again to 372 in 1989. The reduced ship-
ping levels, and the corresponding loss of work for pi-
lots, was a matter of continuing concern for the Re-
spondent, which tried to adapt by reducing the number
of pilots through attrition. During the 1989 shipping
season, however, the Respondent avoided a layoff only
by obtaining the Union’s approval for an increase in
the number of mandatory days off for the pilots, for
which they were paid only at the end of the season.17
During the winter of 1989–1990, several of the less
senior pilots held a number of informal meetings to
discuss their concerns over the Respondent’s expenses
and other matters related to their employment. One of
the early meetings was held in a Duluth restaurant, and
the group came to be known by the name of the res-
taurant—the ‘‘Chi Chi Boys.’’ The group retained an
attorney to investigate some of their concerns; they
also complained to the Coast Guard and to several
congressmen. Their activities were known to the Re-
spondent.
In early January, Pilot Howard Dobbins spoke by
telephone with Richard Olsen, one of the Respondent’s
directors. According to Dobbins’ credited testimony,
Olsen said that he had heard that Dobbins had been
connected with the Chi Chi Boys, and with the group’s
contacting an attorney. Dobbins replied that he had
been contacted about an attorney, but knew nothing
about the Chi Chi Boys. (Dobbins had not heard of the
term ‘‘Chi Chi Boys’’ before his conversation with
Olsen.) Olsen stated that Pilots Skorich, Opack,
Soderquist, Balanda, and Evavold had been at meet-
ings, and that Dobbins had been mentioned as being
‘‘with those mavericks in Duluth.’’ Olsen asked Dob-
bins what the group thought they were going to gain
‘‘by all this,’’ and Dobbins answered that the pilots’
main concern was with where the revenues were going
and what they could do to cut costs. Olsen said that
he had a few ideas of his own about how to cut costs,
and would let those ideas be known at the spring meet-
ing of the board of directors. Dobbins testified that
when Olsen made the latter comment, his voice took
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The Respondent’s financial difficulties stemmed in part from the
fact that it had not had a rate increase in several years.
19 At the general employees’ meeting, George Skuggen, who was
then the U.S. Coast Guard director of pilotage for the Great Lakes,
said there was too little information at the time to predict traffic lev-
els.
20 The testimony of Senff and Sciullo diverges on details, but is
consistent regarding the directors’ actions.
21 The record does not clearly establish whether Aho was one of
the Chi Chi Boys; Senff thought that he was.
22 We disavow the judge’s discussion of Attorney Jack Chestnut’s
role (if any) in drafting the letter.
on a hard, harsh tone. Olsen also asked Dobbins who
had contacted him about meeting with an attorney.
Dobbins replied that he could not tell Olsen who had
talked to him. Olsen said it was probably Pilot
Connaughton, but Dobbins said it was not. Olsen sug-
gested that Dobbins go and meet with the attorney just
to see what the group had to say and what their plans
were.
In February and March, the Respondent and the
Union exchanged contract proposals for the coming
1990 season. The Union began by asking for, inter
alia, a 20-percent salary increase, an increase in the pi-
lots’ per diem, and an increase in rest days from 5 to
7 per month, with pay. The Respondent countered with
an offer of an 8-percent salary increase, an increase in
the per diem from $40 to $42, and an increase in rest
days from 5 to 7 per month from June through Octo-
ber, but with payment deferred until the end of De-
cember. The Respondent also proposed that if addi-
tional mandatory days off were necessary, the matter
would be negotiated with the Union, but that any such
additional days would not be compensated at year end.
(Although the Respondent’s written proposal does not
mention the number of additional mandatory days off,
Edward Senff, the Respondent’s president, testified
that the proposal was for 10 unpaid days off per
month.) The Respondent explained that it had experi-
enced a loss in 1989, was facing substantial increases
in health insurance costs, and had not yet had a rate
increase approved by the Coast Guard.18 The Respond-
ent indicated that this was the best offer it could make,
and urged the Union to accept it. Contract matters re-
mained unresolved at the time of the spring meetings.
The spring meetings were held on April 8 through
10. The Respondent’s board of directors met on the
afternoon of April 8, and reconvened ‘‘from time to
time’’ during the 3 days. The Respondent’s annual
shareholders’ meeting was held on April 9, and the
general employee pilot meeting and the Union’s mem-
bership meeting took place on April 10.
Of the many subjects discussed at the meetings, one
was the ongoing concern over falling traffic levels.
The minutes of the Respondent’s board of directors
meeting indicate that traffic levels were projected to be
no higher than those of 1989 and might be somewhat
lower. Indeed, Senff reported that there was little con-
firmation of any vessel traffic at the time; however,
Board Chairman Anthony Rico counseled that traffic
information should improve on an almost daily basis.19
The directors decided, however, not to lay pilots off
before May 1. Instead, they instructed Senff to monitor
the traffic level and report to the board by April 23.
At the union meeting on April 10, the Respondent’s
compensation proposal was presented to the union
members for the first time. It was rejected in two sepa-
rate tie votes (each 10–10), with the more senior pilots
(including the Respondent’s officers and directors) vot-
ing for the proposal, and the less senior members, in-
cluding the Chi Chi Boys, voting against. Immediately
following the vote, Union President Madjiwita left the
room briefly; when he returned, he announced that the
1989 contract provisions would continue in effect dur-
ing 1990.
Either later that afternoon or early the next day
(April 11),20 Directors Senff, Sciullo, Olsen, and
Luckenbill (but not Rico, who had left town) discussed
what the Respondent should do in light of the most re-
cent traffic count. The directors decided to lay off the
seven least senior pilots immediately, before they in-
curred the trouble and expense of reporting to their
various duty stations. Except for Aho, all the laid-off
pilots—Dobbins, Derf, Soderquist, Skorich, Ojard, and
Kolenda—had voted to reject the Respondent’s con-
tract proposal and were members of the Chi Chi
Boys.21 In a letter dated April 11, Senff informed the
pilots and the Union that the layoff had been imple-
mented because of the decline in current levels of traf-
fic and the absence of evidence that conditions would
improve any time soon.
In a letter to Madjiwita dated April 13, Senff essen-
tially reiterated the foregoing account. He explained
that the directors had first decided not to lay anyone
off before May 1, but to monitor traffic levels until
April 23 and, on the basis of conditions existing on
that date, to request the Union to poll its members to
ascertain whether they preferred temporary layoffs or
additional unpaid days off. Senff stated that comments
and actions at the union meeting had led him to be-
lieve that the second option was unacceptable to the
pilots, but that it was still available if it was what the
members desired.22 He also assured Madjiwita that as
many pilots would be ‘‘re-employed’’ as traffic levels
might warrant. The Union never thereafter indicated
that a majority of the members favored additional un-
paid days off over the seniority-based layoff.
Later in April, Pilot Skorich was recalled from lay-
off to handle an increase in traffic volume. However,
by letter dated May 22, the Respondent informed the
other six laid-off pilots that their layoffs had been con-
verted to permanent discharges because there was no
135UPPER GREAT LAKES PILOTS
23 Brennan was one of the Chi Chi Boys, but he was not laid off.
24 The judge found that Rico’s threat to sue Brennan for slander
was not unlawful. No exceptions were filed to that finding.
25 Although O’Brien was president of SSC, he was not an officer
or director of the Respondent. However, the judge found that SSC
and the Respondent are a single employer and, thus, that O’Brien’s
remark could properly be attributed to the Respondent. As we find
nothing coercive about O’Brien’s statement (and as we find that the
layoffs were not unlawful), we need not decide the single employer
issue. See part IV, below.
26 Although the judge generally discredited Senff, the General
Counsel relies on Senff’s testimony in this regard, albeit in support
of a different argument.
27 The Respondent contends that Rico’s statement was not coercive
because Pilot Brown, who was present, did not perceive it as a
threat. We reject that argument. It is well established that the test
Continued
foreseeable increase in vessel traffic. In fact, only 302
ships appeared in District 3 in 1990, a reduction of
about 19 percent from the previous low of 372 in
1989.
On June 17, Pilot Donald Brennan spoke with Rob-
ert O’Brien, the president of Seaway Services Corpora-
tion (SSC).23 Brennan said that he was busy and had
little time between assignments. O’Brien replied to the
effect that, if the pilots had voted to accept the Re-
spondent’s contract proposal, no one would have been
laid off and the pilots would be getting their vacation
time.
On September 27, Brennan spoke with Rico and
George Luckenbill, another member of the board.
Brennan had recently sent a letter to George Skuggen,
who was then the Coast Guard’s director of the Great
Lakes pilotage staff, complaining that he had had to
drive 500 miles in a car with bad brakes to accept an
assignment at Duluth, when Rico and Luckenbill were
available at Duluth but were not used. Brennan was
asked if he was the author of the letter, and he said
that he was. A spirited exchange of views followed, in
which Rico accused Brennan of being an inferior pilot,
Brennan accused Rico of not making any money for
the Respondent, and Rico threatened to sue Brennan
for slander.24 Rico also asked if Brennan was one of
the Chi Chi Boys, and Brennan affirmed that he was.
Rico disparaged the name of the group, complaining
that it ‘‘disgraced the piloting.’’ Rico asked what the
Chi Chi Boys had expected to gain, and Brennan re-
plied that they wanted to see where the money was
going, and wanted to see some improvement regarding
expenses. Rico rejoined that ‘‘you’re not going to be
around here long enough to see any improvement.’’
A. The Allegedly Unlawful Statements
The judge found that Olsen’s remarks to Dobbins in
early January violated Section 8(a)(1). He found that
Olsen created the impression of surveillance by indi-
cating that he knew of the Chi Chi Boys’ activities and
who some of the group’s members were, and he found
that Olsen unlawfully interrogated Dobbins concerning
the group’s purposes and about other pilots who might
be involved. The judge further found that Olsen’s com-
ment that he had some ideas about cutting expenses
that he would unveil at the spring meetings, which was
delivered in a ‘‘hard, harsh’’ tone of voice, constituted
a threat to retaliate against the Chi Chi Boys because
of their protected concerted activities.
We adopt the judge’s findings that Olsen unlawfully
interrogated Dobbins and created the impression that
the Respondent had the Chi Chi Boys’ activities under
surveillance. Unlike the judge, however, we are not
persuaded that Olsen threatened Dobbins with retalia-
tion. In the context in which it was uttered, Olsen’s re-
mark about cutting expenses is simply too vague to
constitute a threat, or evidence of animus against the
Chi Chi Boys. It is undisputed that the Respondent
was in a financially difficult period: vessel traffic lev-
els and revenues had been decreasing, and no relief
was in sight. In those circumstances, it would be natu-
ral for Olsen, as one of the Respondent’s directors, to
have ideas about how to reduce costs. Olsen did not
discuss his ideas, and Dobbins apparently did not ask
him to. We find nothing in this conversation that
would suggest that Olsen’s unspecified ideas were di-
rected toward the Chi Chi Boys in particular.
Dobbins’s description of Olsen’s voice as ‘‘hard’’ or
‘‘harsh’’ lends a certain tone to the transaction, but
does not, in our view, serve to convert his statement
about cost cutting into a threat to retaliate against the
Chi Chi Boys.
The judge found that O’Brien’s statement to Bren-
nan that if the pilots had accepted the Respondent’s
contract offer, there would have been no layoffs was
the equivalent of saying that the Respondent had laid
the seven pilots off in retaliation for the Chi Chi Boys’
protected activities.25 We disagree. Although the Re-
spondent’s written contract offer is not specific on this
point, Senff testified that the proposal was for 10 man-
datory days off, without pay, per month.26 O’Brien
was expressing his view that if the Union had accepted
the Respondent’s proposal, the Respondent would have
been able to adapt to declining traffic levels through
the use of unpaid days off, rather than through layoffs.
We find, therefore, that O’Brien’s comment to Bren-
nan is not evidence of retaliation, but simply a state-
ment of his view of what would have happened if the
option of mandatory unpaid days off had been contrac-
tually available to the Respondent. Contrary to the
judge, we find nothing coercive in O’Brien’s remark.
Finally, the judge found that Rico threatened Bren-
nan with reprisals for engaging in protected activities
when he told Brennan that he would not be around
long enough to see any improvement in the Respond-
ent’s expenses. We agree with the judge that Rico’s re-
mark constituted an unlawful threat of retaliation.27 As
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for whether a statement is coercive is an objective, not a subjective,
one.
28 See Burdett Oxygen Co. of Cleveland, 213 NLRB 19, 24 (1974).
29 See CEC Chardon Electrical, 302 NLRB 106 fn. 2 (1991). In
this regard, we note that the charge in this case was filed on June
8. Consequently, any animus on Rico’s part could have been occa-
sioned by the filing of the charge, rather than by the Chi Chi Boys’
earlier actions.
Member Raudabaugh would not speculate as to whether the filing
of the charge caused animus.
30 These may be the ‘‘profane and browbeating remarks’’ to which
the judge referred.
31 Derf had gone to the Seaway Building, in which the Respondent
and the Union had offices, to turn in his radio and pay his union
dues.
32 Although Connaughton was one of the Chi Chi Boys, he was
not laid off.
33 The General Counsel’s repeated reliance on Rico’s statements as
evidence of unlawful motivation is somewhat peculiar, given that
Rico apparently opposed immediate layoffs, was not present when
the layoff decision was made, and demonstrated concern that it had
not been properly authorized.
34 The judge also relied on the unreliability of traffic forecasts in
rejecting the Respondent’s economic defense. The inherent problem
with the judge’s reasoning is that businesses, like other entities,
often must make important decisions whether they have completely
reliable economic forecasts or not. To infer unlawful motive from
a lack of accurate forecasting is simply unfair to an employer that
may be doing the best it can with the information it has. Moreover,
the Respondent’s initial action in this case was a temporary layoff;
it did not convert the layoffs to discharges for another 6 weeks,
when better information had been received. (See discussion in text
below.)
we explain below, however, we do not believe that it
can properly be viewed as establishing that the layoffs
were implemented for unlawful reasons.
B. The Layoff and Discharge of the Pilots
The judge found that the Respondent laid off, and
later discharged, several of the Chi Chi Boys in retalia-
tion for their having engaged in union and other pro-
tected concerted activities, and therefore that the lay-
offs and discharges violated Section 8(a)(3) and (1).
The Respondent excepts. For the reasons discussed
below, we agree with the Respondent that the General
Counsel failed to establish a prima facie case of un-
lawful motivation, and therefore that the complaint al-
legations in this regard must be dismissed. Because we
find that the evidence does not support a finding of re-
taliatory motive, we need not decide whether the Re-
spondent established that it would have laid the pilots
off and discharged them even if they had not engaged
in protected activities.
To begin with, we find that the unlawful statements
discussed above do not establish retaliatory motivation
here. Although Olsen improperly interrogated Dobbins
and created the impression of surveillance, we are un-
willing to infer persistent animus from those particular
statements, which were isolated, relatively remote in
time (3 months before the layoffs), and devoid of ani-
mus sufficient to establish an unlawful motive in them-
selves.28 Nor do we think that Rico’s threat to Brennan
is evidence that the Respondent harbored animus to-
ward the Chi Chi Boys at the time of the layoffs. Rico
threatened Brennan in late September, more than 5
months after the layoff. Moreover, Brennan, to whom
the remark was specifically directed, was not laid off
either before or after his meeting with Rico and
Luckenbill. Under these circumstances, we find that
Rico’s threat does not constitute persuasive evidence
that the prior layoffs and discharges were unlawfully
motivated.29
The General Counsel contends that certain other
statements of the Respondent indicate unlawful mo-
tive:30 (1) Rico’s statement to Dobbins on April 9 that
Dobbins was naive because he talked to the ‘‘wrong
people’’; (2) Rico’s remark at the shareholders’ meet-
ing that Connaughton and his ‘‘entourage’’ raised the
same questions every year concerning finances, and
Luckenbill’s followup comment, ‘‘Fll you,
Connaughton’’; (3) Rico’s telephone statement to Pilot
Opack that the layoffs were ‘‘illegal’’; and (4) Rico’s
remark to Pilot Derf, in August, that ‘‘You have no
business in this building. Please leave.’’ and his in-
struction to an employee regarding Derf that ‘‘You do
not accept anything from this man.’’31
Contrary to the General Counsel, we do not think
the foregoing statements indicate that the layoffs were
in reprisal for the Chi Chi Boys’ protected activities.
Rico’s comment to Dobbins was vague and non-
threatening. Rico and Luckenbill’s pique with
Connaughton evidently was not of recent vintage, yet
there is no contention that the Respondent ever retali-
ated against Connaughton.32 The record does not re-
veal what Rico meant when he said the layoffs were
illegal; he may have meant only that, in his view, the
layoffs had not been properly authorized, because the
directors had previously voted to retain all the pilots
at least through May 1. Rico’s remarks to and concern-
ing Derf are likewise unexplained, and may have re-
flected only personal dislike; in any event, they were
made long after the layoffs and discharges, as well as
the filing of the charge (see fn. 29, supra), and their
probative value thus is correspondingly reduced.33
Although we find no direct evidence that the layoffs
were motivated by animus toward the Chi Chi Boys,
we are not precluded from finding animus from all the
surrounding circumstances. Thus, the judge found that
the precipitate nature of the layoffs undermined the
Respondent’s contention that the layoffs were simply a
reasonable business response to falling traffic levels.34
Unlike the judge, however, we are not persuaded that
the timing of the layoffs is suspect.
It is clear that the Respondent, in the early spring
of 1990, was experiencing financial difficulties. Vessel
traffic had dropped to a record low level of 372 ships
137UPPER GREAT LAKES PILOTS
35 G.C. Exh. 32 indicates that the pilots had handled 334 ships
through June 30, 1990, or 32 more ships than appeared in District
3 for all of that year. The anomaly is only apparent, however; the
record establishes that ships are handled by more than one pilot.
Exh. 32 thus is evidently a record of the number of times each pilot
handled any ship, rather than a count of the vessels themselves.
36 Art. I, sec. 3, of the collective-bargaining agreement gives the
Respondent the right to determine the number of its employees.
37 In this regard, the General Counsel notes that on April 10, many
of the pilots bid for areas of assignment, submitted to drug tests,
signed their employment agreements, and were issued equipment
used to perform pilotage duties. We agree with the General Counsel
that those actions underscore the Respondent’s intention, prior to the
vote, to employ all the pilots at least for the time being.
38 Senff gave this testimony in response to a leading question by
counsel for the General Counsel.
39 In the letter, Senff explained that the layoffs were implemented
immediately because of low traffic level projections and because the
Respondent wished to avoid the expense and inconvenience of hav-
ing pilots report to their duty stations. Senff apologized for not shar-
ing his reasoning with the Union and the members prior to the lay-
offs, pleading that he was new to his position as the Respondent’s
president, and stating that he was willing to work with the Union
in the interests of the members and the Respondent.
during 1989, and would fall still farther—to 302
ships—in 1990.35 Because the Respondent had not had
a rate increase in several years, the decline in traffic
led to a reduction in incomes of both the Respondent
and the individual pilots. The Respondent’s annual rev-
enues had fallen from a little over $3.8 million in 1988
to just over $3 million in 1989, and would drop to
slightly more than $2.5 million in 1990. The pilots’ av-
erage earnings had fallen from $48,264 in 1988 to
$29,709 in 1989; even after the layoffs in 1990, the
average earnings of the remaining pilots increased only
to $35,052, substantially below 1988.
Nor were 1990’s dim prospects visible only in hind-
sight. At the time of the meetings on April 8–10, there
were only about half as many ships in District 3 as
there had been on the same dates in 1989. At the April
10 general employee meeting, Senff said that 1990
traffic levels were expected to be about the same as,
or slightly below, those of 1989. According to the Re-
spondent’s records, there were a total of 28 ships in
District 3 during April 1990, compared with 35 for
April 1989. As of May 22, the date the layoffs of 6
of the pilots were made permanent, there had been a
total of 56 ships in District 3, down from 69 as of the
same date in 1989; shipping thus remained consistently
about 20 percent below the 1989 level during this pe-
riod.
Nevertheless, the judge found that the ‘‘Respond-
ent’s claimed concern for decreased vessel traffic is
false-sounding when the precipitate nature of these lay-
offs is considered.’’ As the judge put it, ‘‘All that in-
tervened between an intention to monitor ship traffic
for a time and the sudden layoffs was the contract re-
jection on a tie vote influenced mainly by the newer
employees’ opposition.’’ He found that the Respond-
ent’s management was ‘‘at least distraught, and more
probably dismayed to the point of anger, over the con-
tract rejection,’’ and that the confusion and consterna-
tion following that event was evidence that ‘‘manage-
ment would choose a way to neutralize their frustration
of purpose.’’
The judge thus concluded that the Respondent im-
plemented the layoffs out of anger and frustration at
having its contract proposal rejected. In so doing, he
seems to have ignored the explanation that the Re-
spondent acted as it did, not out of anger, but because
the rejection of its proposal left it with no other way
of reducing its costs of pilotage in the face of decreas-
ing traffic. According to Senff’s testimony, on which
the General Counsel relies, the Respondent’s proposal
provided for 10 mandatory days off per month, and
would have altered prior practice by making those days
off unpaid. The Union’s rejection, however, meant that
no such contractual option was available, and that any
reduction of the pilot work force would have to be ac-
complished by layoffs.36
It is true, as the judge noted, that in laying the seven
pilots off on April 11, the Respondent reversed its ear-
lier decision to keep them employed through the end
of April, while monitoring developments in traffic lev-
els. That fact, coupled with the timing of the layoffs—
soon after the pilots’ vote rejecting the Respondent’s
proposal—arguably suggests unlawful motivation.37
However, as Senff testified, the directors had decided
to monitor the traffic in order to determine whether to
impose mandatory days off.38 But after the vote reject-
ing the Respondent’s offer, the Respondent could not
reduce operating costs by using mandatory unpaid days
off. Given the existing and projected levels of traffic
in District 3, it is not surprising that layoffs would
have appeared inevitable. Moreover, as the spring
meetings were breaking up, the pilots were preparing
to leave for their duty stations. By acting swiftly, the
Respondent was able to avoid inflicting on all con-
cerned the trouble and expense of reporting for duty
when a layoff was imminent. We find the Respond-
ent’s action in this regard to be a reasoned business
decision. The evidence is insufficient to establish that
the layoff was motivated by a desire to retaliate against
the pilots.
Nor was the layoff decision irrevocable. In its April
13 letter to Madjiwita, Senff stressed that the choice
of additional unpaid days off instead of a layoff was
still available if the members preferred it.39
The judge discounted the Respondent’s continuing
willingness to change from a layoff to additional un-
paid days off as ‘‘illusory,’’ because some of the pilots
had expressed distrust of Madjiwita, who waited a
month to address the members regarding this vital sub-
ject. We reject this reasoning. Having recognized the
Union as the pilots’ exclusive bargaining representa-
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 Employers must bargain with employees through unions, not
with unions through employees. General Electric Co., 150 NLRB
192, 195 (1964).
41 Therefore, even if, as the General Counsel suggests, the pilots’
rejection of the Respondent’s proposal was costly to the Respondent,
it still redounded to the benefit of the senior pilots as pilots.
42 Indeed, the Respondent argues, in support of its Wright Line de-
fense, that the layoffs were inevitable precisely because the senior
pilots never would have agreed to accept more unpaid days off.
43 Member Raudabaugh would not speculate as to whether Re-
spondent’s offer was ‘‘cynically designed to be rejected,’’ or was
otherwise not ‘‘nobly motivated.’’
44 Because no violation of Sec. 8(a)(5) is alleged, we find no spe-
cial significance in the Respondent’s failure to offer the Union the
choice of layoffs or unpaid days off before the layoff decision was
made.
tive, the Respondent was legally obliged to make its
bargaining proposals to the Union, and we perceive no
reason this offer should not have been directed to
Madjiwita, who at the time was the Union’s president,
and with whom the Respondent had been dealing be-
fore the layoffs. Had the Respondent insisted on doing
otherwise—as, for example, approaching the pilots in-
dividually—it might have been found to have violated
its statutory duty to bargain in good faith with the
Union.40 That Madjiwita failed to act promptly in
reply to the Respondent’s April 13 letter does not
change the fact that the offer was made, and appar-
ently was bona fide.
Finally, we observe that, far from being distraught
or angered by the pilots’ rejection of its proposal, as
the judge found, the Respondent’s management—as in-
dividuals—may actually have been pleased. They had,
after all, made an offer which, had it been accepted,
would have called for mandatory unpaid days off for
all the pilots, themselves presumably included. A lay-
off, by contrast, would and did affect only the least
senior pilots—certainly not the directors and officers,
whose average compensation for 1990 increased over
1989 as a result of being able to share the available
work with fewer other pilots.41 Thus (to put the worst
face on it), the Respondent’s 1990 offer may have
been cynically designed to be rejected, and allow the
senior pilots thereafter to garner all the available work
for themselves, although giving the appearance of of-
fering to share the work and the sacrifice with their
less senior colleagues. Or, to be more charitable, the
officers and directors may not have intended the result
that occurred, but perhaps simply recognized a wind-
fall when they saw it.42 In neither case would their ac-
tions have been nobly motivated, but that does not
matter here, because under neither scenario would their
motivation have been to retaliate against the junior pi-
lots for their protected activities.43
In support of the judge’s decision, the General
Counsel cites a number of circumstances regarding the
layoffs and terminations which, he contends, undercut
the Respondent’s contention that it would have laid off
and discharged the pilots even if they had not engaged
in protected activities. Although the General Counsel
does not explicitly assert that those circumstances also
indicate that the Respondent acted from unlawful mo-
tives, such an argument could be made. For the rea-
sons that follow, however, we find any such argument
unpersuasive.
The General Counsel notes that the Respondent had
never (or, at least, not since 1962) laid off a fully li-
censed pilot; thus, it might be inferred that the Re-
spondent’s action in laying off the pilots in 1990 was
a departure from past practice indicating retaliatory
motive. We decline to draw that inference. Two days
after the layoffs, Senff plainly informed the Union that
an increase in mandatory days off, rather than layoffs,
was still an available option.44 The Union never chose
that option, but the fact that the Respondent offered,
in substance, to abandon the layoffs negates an infer-
ence that they were implemented in retaliation against
the Chi Chi Boys.
The General Counsel also points out that, at the time
of the 1990 spring meetings, the number of available
pilots already had been reduced, through attrition, from
25 in 1989 to 21; that the consensus of board members
was that vessel traffic would be the same as, or slight-
ly less than, the 1989 level; and that when the layoff
decision was made, there were actually 2 more ships
in the system than there had been earlier, when the di-
rectors had decided to employ all the pilots through the
end of April. Nevertheless, according to the Respond-
ent’s records, there were only three ships in District 3
on April 10 and 11 (compared to seven and six, re-
spectively, on those dates in 1989), with no significant
increase in sight. Even with the number of U.S. pilots
reduced from 25 to 21 (there were also 4 Canadian pi-
lots available for duty), there was still an 8 to 1 ratio
of pilots to ships in the system. Redundancy of that
magnitude reinforces our finding that the layoffs were
based on a reasoned business decision by the Respond-
ent.
The General Counsel relies on certain discrepancies
between the accounts given by Senff and Sciullo of the
decision-making process leading to the layoffs. The
General Counsel cites in particular the discrepancies
concerning when the decision was made (the evening
of April 10 or the morning of April 11), and whose
idea it was. Unlike the General Counsel, we find noth-
ing suspicious in the two directors’ divergent accounts.
As we have noted, they agree in pertinent part. Thus,
under either version, the decision was made after the
pilots voted to reject the Respondent’s compensation
offer, and the timing was related to a desire to avoid
unnecessary expense and trouble in having the pilots
report to their duty stations. Although the judge gen-
erally discredited the Respondent’s witnesses, we find
no cause for concluding, as the General Counsel urges,
139UPPER GREAT LAKES PILOTS
45 Skuggen was not expressly discredited by the judge.
46 If 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.’’
that the Respondent’s account of the layoff decision is
a fabrication simply because Senff and Sciullo’s testi-
mony is inconsistent in unimportant respects.
The General Counsel points to the fact that, after the
layoffs, the remaining pilots worked substantially more
than they had worked in 1989, and asserts that the Re-
spondent did not retain enough pilots to operate safely
and efficiently. We reject this line of argument. That
the Respondent recalled Skorich from layoff in late
April to help handle an increase in vessel traffic indi-
cates that the layoff decision was, as the Respondent
contends, based on traffic levels and not on a desire
to retaliate against the Chi Chi Boys. Although the av-
erage hours worked by the remaining pilots did in-
crease significantly from 1989 to 1990, the increase
still did not raise their annual earnings to pre-1989 lev-
els. Skuggen, the former Coast Guard director of pilot-
age, testified that he thought the number of pilots re-
tained in both 1990 and 1991 was ample.45 A Coast
Guard letter dated May 21, 1991 (more than a year
after the layoff), urging the Respondent to hire more
pilots, was challenged by the Respondent for several
reasons, among them that the Coast Guard’s informa-
tion on the number of pilots actually employed was in-
correct.
Finally, the General Counsel observes that three
pilot trainees were not laid off in 1990, as were the
seven alleged discriminatees; instead, they were of-
fered work running messages and shuttling pilots,
whereas the laid-off pilots were not. Again, however,
the Union was offered the option of increased days off
rather than layoffs, but did not take it. Thus, although
the Respondent offered the pilots and the trainees dif-
ferent alternatives to layoffs, the fact remains that the
pilots were offered an alternative. In the absence of
move persuasive indications of unlawful motivation,
we are not convinced that the Respondent’s differing
treatment of the pilots and trainees indicates animus
against the former group.
For all the foregoing reasons, we are unable to agree
with the judge that the General Counsel established a
prima facie case that the layoffs and discharges of the
pilots were the result of unlawful motivation. We find
that the Respondent’s actions were a reasonable and
lawful response to declining traffic levels, and were
not taken in retaliation against the Chi Chi Boys. We
therefore shall dismiss the complaint allegation in this
regard.
IV. THE SINGLE EMPLOYER ISSUE
The judge found that the Respondent and SSC are
a single employer, but did not recommend that SSC be
ordered to remedy any of the violations found. The
General Counsel excepts to the judge’s failure to hold
SSC jointly and severally liable for remedying the vio-
lations. We find no merit in the General Counsel’s ex-
ception.
The only allegedly unlawful activity in which SSC
was involved was O’Brien’s statement to Brennan, as-
sertedly imputing a retaliatory motive for the layoffs.
We have found that neither O’Brien’s remark nor the
layoffs and discharges were unlawful. The remaining
8(a)(2) and independent 8(a)(1) violations were wholly
the acts of the Respondent, not of SSC, and do not re-
quire a make-whole remedy. In these circumstances,
we find that the usual cease-and-desist remedies
against the Respondent will accomplish the purposes
of the Act. Accordingly, we find it unnecessary to
issue an order against SSC, and thus we need not de-
cide whether SSC and the Respondent constitute a sin-
gle employer.
ORDER
The National Labor Relations Board orders that the
Respondent, Upper Great Lakes Pilots, Inc., Duluth,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with reprisals because
they have engaged in protected concerted activities.
(b) Coercively interrogating employees about their
protected concerted activities.
(c) Creating the impression that its employees’ pro-
tected concerted activities are under surveillance.
(d) Permitting its management personnel to vote on
labor contract renewals, or rendering office clerical as-
sistance and support to Upper Lakes Pilots Associa-
tion, District No. 3, International Longshoremen’s As-
sociation, Local 444, AFL–CIO.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office in Duluth, Minnesota, copies of
the attached notice marked ‘‘Appendix.’’46 Copies of
the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 The General Counsel contends that, after the close of the hear-
ing, the Respondent lost its Coast Guard authorization to operate a
pilotage pool and is, in effect, out of business. For this reason, the
General Counsel urges that the Respondent be required to mail cop-
ies of the notice to the pilots instead of posting them. We find that
this is an issue that is better suited to the compliance process, in
which it can be determined whether there is a successor to the Re-
spondent. Should it be found in compliance that the Respondent is,
in fact, out of business and has no successor, it would be appropriate
for the Respondent to mail, rather than post, the notices as the Gen-
eral Counsel requests.
1 This record contains frequent references to the ‘‘Soo’’ or ‘‘Soo
Locks’’ (e.g., Tr. 160, 194, 261, and 548). This term is used com-
monly in the area as an abbreviation for Sault Ste. Marie, as the
locking canal system permitting passage along an 18–24 foot sea
level change on the river, or to the American and Canadian cities
of the same name astride these locks. C. Hadfield, World Canals,
Facts on File Publications (1986).
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.47
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees with reprisals be-
cause they have engaged in protected concerted activi-
ties.
WE WILL NOT coercively interrogate employees
about their union or other protected concerted activi-
ties.
WE WILL NOT create the impression that protected
activities of employees are under surveillance.
WE WILL NOT permit board members or officers to
vote on labor contract acceptance, nor will we render
office clerical assistance and support to Upper Lakes
Pilots Association, District No. 3, International Long-
shoremen’s Association, Local 444, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
UPPER GREAT LAKES PILOTS, INC.
James L. Fox, Esq., for the General Counsel.
Thomas M. Vogt, Esq. (Felhaber, Larson, Fenlon & Vogt)
and Jack L. Chestnut, Esq. (Chestnut & Brooks), both of
Minneapolis, Minnesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was heard at Duluth, Minnesota, during 3 trial days that
comprised June 25–27, 1991. The charge was filed June 8,
1990, by Captain Howard C. Dobbins on behalf of himself
and three other named individuals. A complaint subsequently
issued on May 2, 1991, alleging, among other things, that
Dobbins and six other individuals had been discriminated
against because of their ‘‘dissident’’ activities regarding
terms or conditions of employment. Primary issues of the
case are whether the Board should assert jurisdiction over
Upper Great Lakes Pilots, Inc. (Respondent) and whether
various terminations from employment by this enterprise vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by the General Counsel and Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
A. Setting
This case arises from utilization of the St. Lawrence Sea-
way in water transport. More specifically, the business activ-
ity involves service for salt water vessels carrying trade prod-
ucts to and from destinations on the three most inland Great
Lakes. Such service is pilotage to most safely guide the ships
in their transiting.
B. Great Lakes Shipping
Ships from around the world transport cargos that dis-
charge or load at various ports of Lakes Huron, Michigan,
and Superior. Such carriers have navigated through, or will
return through, easterly waterways of the total seaway sys-
tem. In the most inland portion of the seaway that this case
concerns ship passage northerly of Lake Erie negotiates con-
necting waterways to emerge at Port Huron, Michigan, fac-
ing open waters of Lake Huron. Continuation from there
would ordinarily be still further north or westerly to intended
destinations of Lakes Michigan and Superior or of Canada.
Typically the American ports of trade beyond Port Huron in-
clude Chicago, Illinois, and Duluth, Minnesota. Entry to
Lake Superior for passage to Duluth requires transit on the
St. Mary’s River and locks at Sault Ste. Marie, Michigan,
which bounds the Canadian border.1 The shipping season in-
141UPPER GREAT LAKES PILOTS
volved here is generally expected to run from mid-April to
mid-December each year.
C. Industry Highlights
The salt water vessels sailing these described interior wa-
ters of the seaway are almost exclusively foreign-flagged. Il-
lustratively the countries of registry are Greece, Liberia, and
Panama, such foreign-flag presence being broken only by an
estimated 1 percent of the time as with U.S. Lykes Line
ships out of New Orleans, Louisiana.
Over the past decade the number of vessels bringing trade
to and from these most inland Great Lakes has substantially
decreased. In 1981 and 1982 the number of ships was about
600 for both years, this itself down markedly from the pre-
ceding 2 years. Such downward trend continued all through
the 1980s. From 418 ships in 1987 a slight pickup to 437
followed in 1988, but again the number dropped to 372 in
1989. This case essentially concerns business, and labor rela-
tions events occurring at the commencement of the 1990
shipping season, which as it turned out resulted in only a
comparative 302 ships.
Several causes of this decline in traffic were identified.
They ranged from the general world economy to specifics
such as now more commonly excessive vessel length,
containerization methods, increased competition for two-way
cargoing, and the switch in Canadian policy to making major
grain shipments from the Pacific Coast rather than outbound
on the seaway.
D. Federal Regulation
The ‘‘Great Lakes Pilotage Act of 1960,’’ as amended (46
U.S.C.A. § 9301), has permeating application to this case.
This statute appropriately regulates merchant shipping by es-
tablishing standards and procedures for required use of capa-
ble pilots in ship navigation, setting charges for such service,
and providing for intergovernmental arrangements with Can-
ada for that country’s equitable participation in reaching pol-
icy objectives, not the least of which is safety in maritime
operations. A related and enabling memorandum of arrange-
ments between Governments establishes three districts of the
seaway; District 3 being the ‘‘undesignated’’ waters of Lakes
Huron, Michigan, and Superior plus the ‘‘designated’’ waters
of the Soo Locks, St. Mary’s River, and marine approaches
thereto. The United States Coast Guard is, as a practical mat-
ter, overseer of the American pilotage program.
E. Description of Respondent
The Pilotage Act authorizes formation and operation of
privately owned enterprises as the official ‘‘pool’’ to furnish
pilotage service for seaway shipping. Respondent is presently
a Minnesota corporation for profit, evolved from an earlier
organization named Lake Superior Pilots Association. It is
the only pilotage pool that exists for District 3, and thus sole
provider of the statutorially mandated service to vessels as
they voyage through these Great Lakes and connecting wa-
ters.
Respondent is headquartered in a commercial property
called the Seaway Building on Garfield Avenue in Duluth.
At times material to this case in spring 1990 its board of di-
rectors consisted of Anthony Rico, Edward Senff, George
Luckenbill, Andrew Sciullo, and Richard Olsen. The officers
were just-retiring Rico as chairman of the board, just-ele-
vated Senff as president, Luckenbill the first vice president
and secretary, Sciullo the treasurer, and Olsen the second
vice president. Auxiliary officers were William Rogers and
Duane Evavold. Based on a management contract, and in
keeping with practice of many years, Minneapolis-based At-
torney Jack Chestnut administered Respondent’s day-to-day
operations. Respondent fulfilled its districtwide obligations
by pilot dispatching offices in Chicago and Duluth, while the
approximately 20 pilots in its employ were seasonally domi-
ciled at dispersed points throughout the entire waterways sys-
tem.
F. Pilotage Function
The occupation involved here is one of strict and specific
distinctions based on marine experience and Coast Guard-ad-
ministered licensing procedures. A pilot of complete capabil-
ity is one fully registered by the Coast Guard, a status
reached after time in training as a applicant pilot. This pre-
liminary step is typically fulfilled by academy-type experi-
ence on the job. Additionally there are other categories such
as a temporary registration for pilots over a certain age, and
‘‘contract’’ pilots used intermittently to buffer upsurges in
vessel traffic within the district.
Pilots are generally divided into river, harbor, or translake
specialties, but in any case commence their functioning by
boarding a transiting vessel from a pilot boat. They pref-
erably arrive in uniform, and the term ‘‘Captain’’ is cus-
tomarily applied to them in recognition of those pilots having
achieved fully registered status. Once on board ceremonial
and operational introductions are done, and an assessment of
effectiveness in communicating with master, officers, and
crew of the ship to be piloted is made. This is primarily in
reference to probable difficulty with other native languages,
and to a lesser extent in reference to apparent qualifications
and competence of crew personnel.
The key determinant of a pilot’s exact role is whether the
vessel is in, or about to enter, what the memorandum of ar-
rangements scrupulously defines as ‘‘designated’’ waters. At
such times the pilot must perform navigation of the ship, ver-
sus when in ‘‘undesignated’’ open waters where the pilot’s
role in navigation is advisory. During the ‘‘designated’’
phase of a passage the pilot’s experience is generally utilized
to evaluate currents, winds, unsuspected obstacles, and the
presence of other watercraft encountered in the course of
proceeding. The pilot also causes specific adjustments to ma-
neuver the ship when drawn by a tugboat along the Soo
Locks or as otherwise needed by sailing conditions. At these
critical times the pilot has stationed himself on the bridge of
the ship, utilizing instrumentation such as gyroscope and
radar while personally speaking out rudder and engine com-
mands for action by crew personnel. Weather advisorys,
maintenance of desired speed, and ship construction features
are all under constant consideration while piloting. At all
times on board the pilot is subject to decisional authority of
the vessel’s master. This person, under customary powers of
a ship captain, retains ultimate responsibility for successful
completion of any voyage. In practice the pilot is fully relied
on in the designated waters with which he is ordinarily so
familiar, and called on only when probably helpful after
open, undesignated waters are entered. In theory a pilot will
disembark at particular ‘‘change points’’ within the district,
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The numerous American ‘‘contacts’’ along Great Lakes shores or
waterways of the boundary with Canada are in stark contrast to the
fact situation of Offshore Express, 267 NLRB 378 (1983), where the
Board considered crew boat and tugboat operations for the U.S.
Navy at Diego Garcia Island in the Indian Ocean and declined to
assert jurisdiction on grounds that the locale of employment was
geographically remote, militarily restricted as to access, and subject
to foreign sovereignty. The intergovernmental arrangements to which
Respondent points here are comprehensive and detailed, but not in
a way touching fundamental concepts of sovereignty in their applica-
tion to Great Lakes pilotage.
turning over continuing pilotage to a colleague. He then be-
comes inactive as to function until next assigned a ship ac-
cording to a rotation system intended to bring equalization of
work opportunity among the total pilot staff.
G. Admitted Facts of Commerce
The rates charged by Respondent for service of its pilots
are annexed to the memorandum of arrangements as ‘‘tar-
iffs’’ subject to change from time to time. The process of ac-
tual billing and ultimate payment is based on documentation
called a ‘‘source form,’’ which reports the type and extent
of service covered by any given pilotage assignment. From
this original billing form Respondent receives payment as its
basic business income.
A documentary basis exists in the record to recite that dur-
ing calendar year ending December 31, 1990, Respondent, in
the course and conduct of operating, derived gross revenues
in excess of $50,000 from providing pilotage services to ves-
sels engaged in foreign commerce by their presence in Dis-
trict 3.
H. Respective Contentions
General Counsel contends that Respondent is subject to
the Board’s jurisdiction notwithstanding that service is pro-
vided to foreign-flag vessels, themselves exempt, because the
pilots have only a sporadic and collateral role in vessel pas-
sage. Although conceding the absolute necessity of what a
pilot provides in experience and judgment, General Counsel
argues that the exempt character of a foreign vessel does not
attach to these American citizens for purposes to be served
by the Board’s public policy-based fulfillment of labor-man-
agement objectives.
Respondent contends that the pilots perform in a way that
is ‘‘intimately connected’’ to passage of these foreign-
flagged vessels, and for this reason share the doctrinal ex-
emption for the ship thus barring an assertion of jurisdiction
by the Board. Further, it is argued that joint United States-
Canada regulation of the pilotage function preempts ‘‘other
conflicting law’’ so as to dissuade the Board from asserting
jurisdiction on policy grounds.
I. Jurisdictional Analysis
Although constitutional power exists to apply the National
Labor Relations Act to foreign-flag ships while in U.S. wa-
ters, the Supreme Court held that Congress has expressed no
intention that such power should be applied. Thus under
more basic principles of maritime law, and factors of inter-
national relations, the jurisdictional provisions of the Act do
not extend to such instances. McCulloch v. Sociedad
Nacional, 372 U.S. 10 (1963).
Respondent’s main contention relies principally on Inter-
national Air Service Co., 216 NLRB 782 (1975). In this case
an American firm leased commercial airline pilots, naviga-
tors, and flight engineers to Japan Air Lines (JAL) for flying
certain international routes. The Board held this cockpit func-
tion to be an essential element of the flying which JAL sup-
plied its customers, and thus the American employer
‘‘share[d] the [airline’s] exemption from the Board’s jurisdic-
tion.’’
In National Transportation Service, 240 NLRB 565
(1979), the Board reached a reconsidered view of the ‘‘ex-
empt entity’’ principle in its application to assertion of juris-
diction. The ‘‘intimate connection’’ test was rejected, and
International Air Service tacitly overruled. In substitution the
Board held that once it was determined an employer provid-
ing services to an exempt user retained sufficient control
over its employees to enable it to engage in meaningful col-
lective bargaining, the Board’s jurisdiction was satisfactorily
established and should be asserted. The opinion in National
Transportation Service termed the former intimate connec-
tion test as too vague, noting how the ‘‘right of control’’ test
constituted ‘‘a more objective, precise and definitive standard
. . . .’’
In Community Transit Services, 290 NLRB 1167 (1988),
the Board asserted jurisdiction in such a context, finding that
the employer retained control over ‘‘a myriad of economic
terms and conditions of employment, i.e., health and life in-
surance, vacations, paid holidays, overtime, sick and annual
leave, and the stock ownership plan, as well as all other non-
economic personnel related matters.’’ The opinion in Com-
munity Transit Services also found that fundamental rationale
on the subject was consistent with intervening decisions of
the Board in Res-Care, Inc., 280 NLRB 670 (1986), and
Long Stretch Youth Home, 280 NLRB 678 (1986).
In subsequent Correctional Medical Systems, 299 NLRB
654 (1990), the Board advised that jurisdiction would be as-
serted based on its adoption of summarized facts. These
showed that although significant operational control was ex-
ercised by the exempt user, the employer under scrutiny re-
tained extensive if not exclusive control over employee com-
pensation, and that shared implementation of employment
policies would not preclude meaningful collective bargaining.
Here such operational control as might be exerted by the
master of a foreign-flagged vessel pursuant to that person’s
customary authority would not be determinative, when cor-
porate bylaws, a collective-bargaining agreement, and highly
structured employee compensation documents impinge on
this work force. I am satisfied that meaningful bargaining
within the controlling doctrine of National Transportation
Service is present. This warrants an assertion of jurisdiction
in this situation, particularly with its numerous United States
points of contact and the absence of strong policy grounds
for a contrary conclusion.2
J. Holding
Based on admitted facts of commerce, and the plain show-
ing that Respondent’s income derives from its arrangements
in aid of foreign salt water vessel operators’ transportation of
freight and commodities between and among several States
of the United States, I find Respondent’s own operations to
be an essential link in the transportation of such freight and
commodities of interstate commerce as to constitute it an
143UPPER GREAT LAKES PILOTS
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the National Labor Relations Act
and one over which the Board would assert jurisdiction. H
P O Service, 122 NLRB 394 (1958); see also Longshoremen
ILA Local 1418 (Lykes Bros.), 195 NLRB 8 (1972), for as-
sertion of Board jurisdiction over ‘‘Lykes Bros. Steamship
Co., Inc. . . . a Louisiana corporation . . . .’’
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
During 1989 Respondent’s board of directors met occa-
sionally for business purposes that included an ongoing con-
cern for the diminishing revenue that would result if the
trend toward lowered vessel traffic entering District 3 contin-
ued. By the end of that shipping season the situation ap-
peared to warrant counteracting steps, in consequence of
which the board of directors made personnel reductions in
support staff and deferred certain yearend compensation for
pilots as a matter of better managed cash flow.
An off-season exchange of bargaining proposals passed
during February through March 1990 between Peter
Madjiwita, then president of ILA Local 444, and Attorney
Chestnut for Respondent. When bargaining did not result in
a new agreement by the imminent start of the 1990 season,
the pay patterns of 1989 were applied. However the board
of directors also determined to lay off seven pilots before the
official start of the 1990 season, one of whom was soon re-
called. The remaining six were then notified of permanent
termination, and the pool operated with an approximate 50-
percent reduction of registered pilots for the balance of the
1990 shipping season.
B. Other Business Entities
Several separate entities have existed in carrying out Re-
spondent’s pilot-providing mission. The first is Seaway Serv-
ices Corporation (SSC), an ‘‘asset holding’’ corporation at
the same Garfield Avenue location as Respondent. SSC owns
the Seaway Building, as well as other property used by Re-
spondent such as pilot boats, automobiles, radios, and related
assets used in deployment, travel, and on-ship functioning by
pilots. Such assets are leased to Respondent, with SSC re-
taining legal title. The board of directors of SSC as the 1990
shipping season started was Rico, Luckenbill, Sciullo, Rog-
ers, Retired Pilot Robert O’Brien, Attorney Chestnut, and Jan
Ziegler, SSC’s corporate secretary. O’Brien had been an offi-
cer of SSC during the 10 years of its existence, most recently
its first vice president until being elevated to president of the
organization at some point in 1990.
A second entity, one also located at the Seaway Building,
is Central Dispatch, Inc. (CDI), a wholly owned subsidiary
of SSC. This corporation employs dispatchers, messengers,
and clerical personnel who coordinate and fulfill the support-
ing communication, transportation, and office needs of pilots
called from their seasonal points of domicile to board, shuttle
between, travel on, and disembark the ships in transit.
Lastly, General Business Services (GBS) is an operation
located in Attorney Chestnut’s Minneapolis law offices; one
which provides clerical, bookkeeping, and other office serv-
ices to Respondent. However a resolution of unspecified im-
port was passed at Respondent’s board of directors’ meeting
in April 1990, based on questioning of the expense and ne-
cessity for GBS to continue its services as in the past.
C. The Union
Approximately 30 years ago when a structured piloting in-
dustry seemed imminent under planned St. Lawrence Seaway
completion and expected United States and Canadian com-
plemental legislation, the ship pilots plying Lakes Huron,
Michigan, and Superior affiliated with International Long-
shoremen’s Association Local 1366. This membership subse-
quently obtained a separate ILA charter as Local 444, and
after intervening years the collective-bargaining agreement
originally effective for 1975–1976 was reached with Re-
spondent. The contract is literally still in effect by operation
of its automatic renewal clause, and thus customary subjects
of recognition, earnings, benefits, worker assignment, em-
ployee discipline, and grievance procedure even now obtain.
The labor agreement is also the basis of universal share-
holder status by an express provision that all registered pilots
enter into a stock purchase and redemption agreement with
Respondent as a term and condition of employment. Further
the labor agreement provides that Respondent ‘‘shall have
the right to select its employees and determine their number
. . . .’’
However the chief significance of this contract is to serve
as a mechanism for annual supplements for what is truly of
interest between the parties. This is the comprehensive
‘‘wage classification, salary & benefits schedule’’ for a par-
ticular season, in which pay rates are expressed in daily, an-
nual, or other terms as set forth for the approximately five
different pilot groupings. These groupings are well defined as
to scope and manner of advancement; resulting essentially in
the higher seniority board of director-weighted pilots domi-
nating the higher pay groups, and the newer, younger, non-
management pilots comprising the several lower ones. Basic
comparative pay differential runs on an approximate progres-
sion of 4 to 9 percent between the several groups.
Senff was president of the Union for several years during
the mid-1980’s, and then succeeded by Madjiwita. In the
time frame subsequent to essential happenings of this case
Donald Brennan, ranked 13th on the seniority list, has now
been elected president of the organization. During
Madjiwita’s tenure Mindaugus ‘‘Gus’’ Balanda was sec-
retary-treasurer, Paul Halverson vice president, and Melvin J.
Brown a trustee.
D. Single Employer Issue
1. Introduction
This issue is present in the case by reason of a testified-
to statement by O’Brien which General Counsel contends is
a factor in drawing the requested inference of employment
discrimination within the meaning of Section 8(a)(3) of the
Act. With O’Brien now retired from his pilot occupation and
off Respondent’s board of directors, General Counsel seeks
to establish by the theory of single employer status as be-
tween Respondent and SSC that O’Brien’s statement is
equally binding on Respondent as though made by an alleged
supervisor and agent.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Corporate governance
The 54 shares of Respondent’s class A voting stock was
distributed among 18 pilot shareholders as of a compilation
made in July 1990. The number of shares held ranged from
six apiece by Luckenbill and Rogers, down to the qualifying
minimum of one by several of those listed. Taking into ac-
count only the persons who are either directors or officers,
over a majority (approximately 54 percent) of Respondent’s
voting stock is held by that group.
As to SSC all the pilots intending to work in the 1990 sea-
son owned stock in varying amounts. There are several other
individuals, some familiar to the case as with Rico’s nephew
Ron Rico, CDI’s main dispatcher George Glibota, and Zie-
gler, and some not, who own stock in varying amounts.
These are relatively minor holdings, except for Attorney
Chestnut and an individual named Muldoon. The persons
who are either directors or officers of Respondent own ap-
proximately 45 percent of SSC stock, and Attorney Chestnut
owns an additional 8 percent.
Drawing on recitations above it is seen that Rico,
Luckenbill, and Sciullo served concurrently on the board of
directors of both Respondent and SSC. Senff and Olsen are
currently directors of Respondent and members of SSC’s
stock evaluation committee. Attorney Chestnut is the con-
tracted-for manager of both Respondent and SSC, as well as
being legal counsel to each entity.
3. Corporate operations
For purposes of this issue it is noted that Respondent is
the sole client of SSC. Although street level offices of the
Seaway Building are leased to unrelated tenants, Respondent
and SSC share the second floor space. Respondent’s manage-
ment possesses, and in late 1989 exercised, the authority to
reassign its Great Lakes Maritime Institute (GLMI) pilot ap-
plicant trainees from their function aboard vessels to dis-
patching, shuttle driving, and messenger work with SSC or
its subsidiary CDI. In this same staffing adjustment Respond-
ent’s directors also effectuated the layoff of SSC and CDI
support employees at both Chicago and Duluth.
4. Legal analysis
The courts and the Board have repeatedly set forth the test
for a single employer. Radio Union Local 1264 v. Broadcast
Service, 380 U.S. 255 (1965); Blumenfeld Theatres Circuit,
240 NLRB 206 (1979), enfd. 626 F.2d 865 (9th Cir. 1980);
Rockwood Energy & Mineral Corp., 299 NLRB 1136
(1990); Hydrolines, Inc., 305 NLRB 416 (1991). There
should exist an interrelation of operations, common manage-
ment, centralized control of labor relations, and common
ownership. Also relevant are such factors as the use of com-
mon office facilities, common equipment, and the inter-
change of key personnel. Not all these factors must be found
to establish the existence of a single employer situation, and
no one factor is controlling. Single employer status ulti-
mately depends on ‘‘all the circumstances of the case,’’ and
is characterized by an absence of the arm’s-length relation-
ship found among unintegrated companies. Operating Engi-
neers Local 627 v. NLRB, 518 F.2d 1040 (D.C. Cir. 1975).
Here SSC has barely the semblance of any independent
existence. O’Brien, its chief executive officer, was indifferent
to his appointment as president, has no office of his own at
the Seaway Building, appears occasionally at the premises
more as a visitor than an official, and gave no indication
from his testimony that any business dealings between Re-
spondent and SSC required his mental focus or prudent deci-
sion making. Facilities, property, and personnel are treated in
undifferentiated fashion between Respondent and SSC as a
practical matter, and the ‘‘arm’s length’’ characteristic of
noncommon entities is clearly missing. The situation is more
than ill-concealed, it is instead that no effective attempt has
even been mounted to draw any separateness of business pur-
pose between these two nominally distinct corporations.
5. Holding
Based on the foregoing, I find that at all times material
Respondent and SCC have been affiliated business enter-
prises with overlapping officers, commonly controllable own-
ership, an interlocking directorate, and the same individual as
manager. They have formulated and administered a common
labor policy affecting employees of the operations, and have
shared common premises, facilities, and personnel with each
other. I hold Respondent and SSC to be a single employer.
See Goodman Investment Co., 292 NLRB 340 (1989).
E. Pilot Complement
1. Profile of staff
Of the approximately 20 pilots intending to commence the
1990 season, those highest in years of service were Rico and
Luckenbill with 30 and 29 years, respectively. This was also
the time when both retired from active or full-fledged pilot-
ing duties, but remained in management positions by retain-
ing board of director membership and officer status. There
followed from these two the comparably senior group of
Rogers, Olsen, and Senff, all with about 20 years’ employ-
ment and each in positions of management. The next general
grouping was about six pilots of midseniority ranging from
Michael Opack having 16 years through several more in dou-
ble figures with Sciullo and Evavold attachable to this group
by 9 years’ service each. The final group of pilots were all
under 9 years of employment and without management par-
ticipation in Respondent.
Although these strong distinctions of seniority and mana-
gerial status exist, even newer pilots possess significant mari-
time experience. For example Tad Derf is a retired naval of-
ficer and Harold Dobbins has varied experience in Great
Lakes shipping.
2. Manner of compensation
The annual shipping season officially runs from April 15
to December 15, and for basic pay purposes the wage classi-
fication schedule in effect during a given year states an an-
nual compensation amount relating to that particular 8-month
period. A ‘‘daily,’’ or as with 1989 a ‘‘monthly,’’ rate ap-
plies for piloting assignments before or after the official sea-
son. In addition to this basic compensation pilots have an ex-
pectancy of rebate for the mandatory days off taken during
the shipping season, and for further compensation based on
a formula relating to available days for assignment.
145UPPER GREAT LAKES PILOTS
3 All dates and named months hereafter are in 1990 unless indi-
cated otherwise.
3. ‘‘Chi Chi Boys’’
Late in 1989 the newer pilots, augmented by Opack as an
activist on the point, formed themselves into a loose bond to
discuss their concerns over Respondent’s expense levels and
other management practices affecting employment. Their
most recognizable gathering occurred in very early January
1990 at a Duluth restaurant, the name of which gave those
identified with this interest group the name ‘‘Chi Chi Boys’’
The pilots aligning with this cause ranged from about 5 to
10 at varying times. They did not meet as a total group until
a ‘‘rump’’ meeting in Superior, Wisconsin, twin city to Du-
luth, just prior to traditional spring meetings in 1990. The
Chi Chi Boys had however, prior to that time, retained a
Michigan attorney to evaluate their concerns, and had ob-
tained identifying buttons which they wore openly at the
spring meetings.
F. Employee Status Issue
Respondent contends the pilots of this case are not em-
ployees within the meaning of the Act because of their share-
holder status and, alternatively, that they are managerial in
nature. General Counsel counters these contentions by first
arguing both that shareholder status is not uniformly en-
forced, and in any event does not as a matter of law strip
the pilots of employee status. Further, General Counsel as-
serts that they do not have the managerial characteristics re-
quired by controlling Board cases in this area, because they
lack any effective voice in formulating or effectuating man-
agement policies or their own terms or conditions of employ-
ment.
As to the matter of stock ownership, I do not believe the
varying amounts held by any pilot is sufficient to constitute
him as a person exempt from employee status under the Act.
Airport Distributors, 280 NLRB 1144, 1150 (1986). The sit-
uation is one in which the unique nature of pilotage pool or-
ganizations led to the obligation of shareholder status, but the
rigid bylaw requirements for office holding and stockholder
voice are insufficient to give these individuals the type of ef-
fective authority in determining business policy that the
Board requires before making such an exclusion. Specifi-
cally, the bylaws permit entrenched continuation of a board
of directors and effectively deny any bylaws amending pow-
ers to nonmanagement shareholders. Cf. Red & White Airway
Cab Co., 123 NLRB 83 (1959); Sida of Hawaii, 191 NLRB
194 (1971).
As to the subject of managerial status the lead case is
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). The opin-
ion in Bell Aerospace defined managerial employees as those
who ‘‘formulate and effectuate management policies by ex-
pressing and making operative the decisions of their em-
ployer.’’ NLRB v. Yeshiva University, 444 U.S. 672 (1980),
enlarged on this definition by adding elements of represent-
ing ‘‘management interests’’ and implementing ‘‘employer
policy.’’ General Dynamics Corp., 213 NLRB 851, 858
(1974), provides instructive comment on what constitutes
‘‘true managerial authority.’’ The important technical and
professional attributes of a job can be recognized without
that ‘‘attribute’’ meaning there is a bearing on managerial
authority. This is so when instead a ‘‘routinely and rigidly
regulated format’’ exists for the occupational discipline being
examined. I see the pilotage function as just such an in-
stance; the technical differences being more a contrast be-
tween what is scientific as in engineering, and what is expe-
riential as with judging the hazards of water navigation. In
the latter instance it is astuteness of observation, the ability
to sense collective effect of natural phenomena, and in-
grained retentiveness about the characteristics of waterways
being transited that is the essence of pilotage. Southwest Air-
lines Co., 239 NLRB 1253 (1978), is usefully compared as
a case in which flight dispatchers exercised operational au-
thority in furtherance of safety considerations with ‘‘weather
conditions’’ taken into account. The vital attributes of pilot-
age do not, however, constitute the judgmental process at-
tendant on contributing to business policy or its manifesta-
tion in the operation of an enterprise. Here there is thus in-
sufficient basis to say that nonmanagement pilots, specifi-
cally including the seven alleged discriminatees of the case,
have any effective voice in such formulation or effectuation
of policy. For this reason they are entitled to normal em-
ployee status under the law.
This holding with respect to the employee status issue
makes operative a conditional stipulation reached early in the
hearing between the parties (Tr. 14–15). On this basis I fur-
ther find that Upper Lakes Pilots Association, District No. 3,
ILA Local 444, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
G. Evidence Relating to Layoffs
1. Documentary
Minutes of a board meeting held August 15, 1989, re-
corded the director’s midseason concern for a comparatively
‘‘severe reduction in traffic levels.’’ In a subsequent meeting
on October 23, 1989, a comparative drop in seasonal reve-
nues of $630,000 at that time was reported to the directors,
with the estimate of possibly double that ‘‘if current traffic
trends continued.’’ On this basis the board formally laid off
GLMI trainees Curtis and Hayes, as well as Contract Pilots
Webster and Gainey. Additionally a support employee was
laid off at both Chicago and De Tour Village, Michigan, plus
a clerical employee of GBS as well as a one-third reduction
‘‘of the office staff located in Duluth.’’ At the board’s final
meeting of that calendar year on December 12, 1989, min-
utes noted ‘‘the severe reduction in income due to substan-
tially reduced traffic levels.’’ Pilots were nonetheless voted
compensation for their mandatory unpaid days taken during
the 1989 navigation season.
2. Status of bargaining
On January 1, 1990, Rico wrote to all pilots summarizing
what his letter of that date termed an ‘‘extremely poor finan-
cial year.’’ It also dealt with advice about certain benefit
changes, and informed pilots of a mandatory drug and alco-
hol testing program to be installed. A main point of the letter
was to emphasize the corporation’s need for a rate increase,
and it was this general background against which collective
bargaining for the coming season was undertaken.3
By letter dated February 27 Madjiwita sent Respondent the
Union’s opening proposals for 1990. This read:
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On February 26, 1990 the Negotiating Committee of
I.L.A. Local #444 held its initial meeting. The propos-
als for your consideration as a result of this meeting are
as follows:
(1) 20% wage increase—this is based on four (4)
years of no wage increases and inflation rate of 5%.
(2) Per diem to be increased to maximum allowable
under the current structure for determining per diem
rate.
(3) Increase rest days to seven (7) days per month
with pay, from the existing agreement of five (5) days.
(4) Extra work—extra pay, which would also include
pilots working during their scheduled rest days.
(5) Company and union to form their respective
committees to revise the Working Rules so that they
would be compatible with present pilotage conditions.
The revisions to be completed as soon as practical, but
no later than the Spring of 1991.
Respondent’s board of directors considered this proposal,
and responded with a letter from Senff dated March 5 which
stated:
The Board of Directors of Upper Great Lakes Pilots,
Inc. met today, March 5, 1990, and considered the pro-
posals submitted by the Negotiating Committee of
I.L.A. Local #444. After careful consideration of those
proposals and of the anticipated revenues and expenses
of the corporation for the coming year, the Board ap-
proved the following:
1. An 8% increase in base salary.
2. An increase in per diem to $42.00 per day.
3. Increase rest days to seven (7) days per month
with pay for the months of June, July, August, Septem-
ber and October, with payments deferred until the end
of December. Such rest days do not count for days
available purposes. If a pilot voluntarily returns to work
during his rest days, he will be paid for those days and
those days will also count for days available compensa-
tion at the end of the year.
4. If the Board determines that additional mandatory
days off must be taken, this will be negotiated with the
Union. Any mandatory days off will not be paid at the
end of the year.
As you know, the corporation experienced a loss last
year and is facing substantial additional expense in the
coming season. For example, we have been advised that
our health insurance costs will rise by over $400.00 per
month, per man. Further, although we anticipate a rate
increase, it is not yet certain what the amount of such
increase will be or when it will be implemented. Under
these circumstances, the Board has determined that the
above offer is the maximum which the corporation can
make for the 1990 season.
Madjiwita and Attorney Chestnut then conversed by tele-
phone, during which time the former argued for a larger pay
increase and the latter emphasized how the Coast Guard had
not authorized Respondent a rate increase for over 5 years.
From this another letter passed from Attorney Chestnut to
Madjiwita, dated March 19, stating that Respondent’s board
was adhering to its earlier economic offer. This letter urged
that membership of the Union accept the package.
3. Spring meetings
Shortly before the start of any shipping season, a series of
meetings were traditionally held in early April concerning
operation of this pilotage pool. In 1990 Respondent’s initial
board of directors’ meeting was scheduled for 3 p.m. on Sun-
day, April 8, with the directors’ meeting of SSC to follow
later that afternoon. Respondent’s annual shareholders’ meet-
ing was scheduled for 9:30 a.m. on Monday, April 9, and the
general employees’ pilots’ meeting for the same time the fol-
lowing day. The Union also scheduled its membership meet-
ing for 1:30 p.m. on Tuesday, April 10. All meetings were
held in the Seaway Building.
Respondent’s board considered vessel traffic projections at
their meeting, the shareholders voted on corporate affairs,
and the pilots bid for seasonal assignment as well as under-
went mandatory drug testing procedure. The board of direc-
tors’ meeting was a continuing one which resumed ‘‘from
time to time’’ over the course of these 3 days.
When the union membership meeting occurred as the last
phase of these customary spring meetings, Respondent’s bar-
gaining proposal was rejected by a 10-to-10 tie vote of all
participating pilots, including those in management as board
of directors’ members or corporate officers. An obvious split
of viewpoint during this twice-taken open voting showed that
higher seniority pilots of management were pitted against the
newer ones, who had already taken some group action based
primarily on their concerns that corporate revenues were
drained off too heavily by expense outlays. Madjiwita left
the room briefly, then returned to announce that the rejection
of Respondent’s last offer meant the 1989 wage classification
schedule would continue in effect for the new shipping sea-
son. After the voting and conversational aftermath subsided,
Senff performed a canvass of available board members, also
looking at the last-minute vessel traffic projections. From this
consideration a management decision evolved to lay off
seven pilots immediately and by seniority, rather than have
them leave for seasonal stations without a likelihood of suffi-
cient work to be done in the upcoming season. The decision
was hastily communicated to several affected pilots, and con-
firmed by Senff’s letter to each of them dated April 11. This
written confirmation of layoffs was stated to be on behalf of
the entire board of directors and a copy was sent to
Madjiwita. It read as follows:
The Board of Directors of Upper Great Lakes Pilots,
Inc. has been closely monitoring vessel traffic within
the St. Lawrence Seaway System along with projected
traffic levels for the next several weeks.
Due to the unprecedented decline in the current lev-
els and the lack of evidence that traffic conditions will
improve at the onset of the 1990 navigation season, we
regretfully must inform you that we will not be able to
provide you employment commencing April 15, 1990.
The Board of Directors will continue to closely mon-
itor traffic levels and will advise you of the first pos-
sible date of dispatch. We hope you will be available
at that time.
4. Postlayoff occurrences
A more comprehensive explanation of the action taken was
set out in another letter soon issued on April 13 over Senff’s
147UPPER GREAT LAKES PILOTS
4 This record contains a coincidental similarity of names. The
Union’s attorney was Fred W. Grady of Indianapolis, Indiana, while
a Coast Guard official located in Washington, D.C., whose 1991 let-
ter to Respondent is in evidence is named Fred J. Grady.
signature and sent to Madjiwita. Here the several reasons for
why a layoff was deemed necessary were given, and the op-
tion remaining from an earlier bargaining exchange of pilots
agreeing to more mandatory days off during the season was
reiterated as still being available. This letter is set forth in
its entirety as attached Appendix A to this decision.
Madjiwita involved himself in also communicating to
members about this unprecedented action, but no particular
change of positions ensued. His communication was a letter
dated May 11, enclosing a copy of Senff’s letter dated April
13 as well as a later one dated May 3 relative to vessel traf-
fic up to that point. His letter contained numerous recitations,
but primarily advised members that the Union’s executive
board was not opposed to the layoffs in lieu of additional un-
paid days off and that the Union’s attorney had advised that
the labor contract supported Respondent’s ‘‘absolute right’’
to impose the layoffs.4 A modification to the layoff action
had been reemployment of Nick Skorich, the highest senior-
ity of laid-off pilots, later in April. However Senff eventually
issued a final letter on the subject dated May 22 to the re-
maining six employees that their layoffs had been, under the
circumstances, converted to permanent discharge from em-
ployment then because of no foreseeable work. The remain-
ing active pilots worked relatively frequent assignments that
season in fulfilling all pilotage requirements of the traffic
that did result.
5. Episodal factors
In early January a telephone conversation had ensued be-
tween Pilot Howard Dobbins and Olsen. Dobbins testified
that Olsen questioned him about aims of the Chi Chi Boys,
and whether Martin Connaughton, a midseniority pilot, was
aligned with them. When Dobbins raised the matter of ex-
penses Olsen answered with a hardened and harsh voice
tone, saying that he, too, had some ideas about holding down
expenses and would develop them at the spring meetings.
On the evening of approximately April 13 Opack was tele-
phoned by Rico from Florida. Here Opack testified that Rico
questioned him about circumstances of the layoffs, stating
that he had not been consulted about what may have been
‘‘illegal’’ action.
In early June Opack and Sciullo had a brief conversation
as they were together for a time on a ship under pilotage.
Opack testified that he said there seemed to be insufficient
pilots for the traffic, to which Sciullo did not disagree.
On or about June 17 Pilot Donald Brennan and O’Brien
met passingly in De Tour Village. Brennan testified that he
remarked about how busily he had been working, to which
O’Brien replied that ‘‘if you guys would have voted for the
wage package . . . there wouldn’t be anybody laid off work
and you guys would be getting your vacation time.’’
O’Brien’s version does not differ markedly from Brennan’s
description of the words used during this exchange.
On or about September 27 Brennan appeared at Respond-
ent’s offices where Rico and Luckenbill were present. Bren-
nan had just written a letter of complaint to Captain George
Skuggen, then director of the Great Lakes pilotage staff.
Brennan’s letter was in protest of an urgent 500-mile drive
across Michigan’s upper peninsula and over to Duluth in a
car with bad brakes. The trip was to fulfill a piloting assign-
ment while senior pilots at Duluth were not utilized. Re-
spondent’s management pilots had a copy of this letter and
it generated heated discussion among those present. Rico
threatened to sue Brennan for slander given intimations he
had made to the Coast Guard official. When questioned
about what pilots ‘‘hoped to achieve,’’ Brennan answered
that it mainly had to do with learning just how money was
spent on the expense side of Respondent’s operations. Bren-
nan testified that this answer generated an angry reply from
Rico that Brennan was ‘‘not going to be around here long
enough’’ to find out.
H. Credibility
My assessment of credibility as between witnesses called
by, or associated to, the parties has a controlling effect on
how the overall case is decided. Generally I am considerably
more favorably impressed with those witnesses advanced by
General Counsel, and basically discredit Respondent’s sup-
porting witnesses. In particular instances I was highly im-
pressed from a demeanor standpoint by Derf, Dobbins, and
Brennan. They were each honest-seeming, doggedly consist-
ent, persuasively possessed of candid, accurate-seeming
memory details, generally unwavering during cross-examina-
tion and in my view worthy of being fully credited which
I do. On the opposite scale I found Senff to be vague and
unimpressive in his extensive presentation, found Sciullo to
be evasive and dogmatic to the point of doubting his accu-
racy, found O’Brien to have testified with such hesitancy and
lack of conviction as to warrant rejection of his testimony,
and found Madjiwita a singularly discreditable witness whose
awkward hesitations and frightened-seeming demeanor gave
his various assertions a frayed, confused, and palpably false-
sounding content. Apart from these frailties his initial denial
of knowledge regarding events on April 11 was alone
disqualifyingly improbable, and in sum I totally discredit his
testimony in every material regard.
I. Discussion of Unfair Labor Practice Issues
1. Section 8(a)(1)
The testimony of Brennan provides a basis to find, as al-
leged, that O’Brien coercively told him Respondent had re-
taliated because of concerted activities engaged in by em-
ployees. On the later separate occasion of Brennan convers-
ing with Rico and Luckenbill, a statement by the former that
Brennan might not be with the organization sufficiently long
to see improvement in terms and conditions of employment
was a threat of plain enough import as to constitute an inde-
pendent violation of the Act. I do not however consider
Rico’s remark about suing for slander to be an 8(a)(1) viola-
tion as alleged. The circumstances show instead that an ani-
mated exchange of opinions was being made, and it was
merely out of these personal and temperamental
countercharges that the word slander was used. I exclude this
specific point from other unfair labor practice findings made
in the case. I credit the testimony of Dobbins to the extent
that in his telephone conversation with Olsen during January
the latter uttered another threat of reprisal based on what ap-
peared as group action by the pilots inimicable to the board
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Contrary to Respondent’s objection, I hold that General Coun-
sel’s amendment to the complaint which added par. 6(d) was allow-
able within the doctrine of Nickles Bakery of Indiana, 296 NLRB
927 (1989). This view is based on the close factual relationship of
complaint par. 6(d) to the charge allegations, and that the conduct
described in complaint par. 6(d) occurred within the 6-month period
fixed by Sec. 10(b) of the Act. Cf. Columbia Portland Cement Co.,
303 NLRB 880 (1991). In this general connection, the transcript is
noted and corrected.
of directors’ feelings.5 I also believe that Olsen’s comments,
taken in their totality, constitute unlawful interrogation and
creation of the impression of surveillance. What he said was
basically probing and threatening, and gave the reasonable
implication that Respondent was ominously open to reporting
about group activities of the loosely known Chi Chi Boys.
In David’s, 271 NLRB 536 (1984), the Board adopted
findings that the impression of surveillance had been created
by telling employees that their activities had been heard
about and the name of one of them had been mentioned.
This view of the episode was grounded in American National
Stores, 197 NLRB 127 (1972), where the Board’s opinion
held that verbal statements in such regard need not be lit-
erally true, if instead they had a reasonable tendency to dis-
courage employees in exercising their statutory rights. This
was held to be the case by reasoning that such statements
showed the employer as having ‘‘sources of information’’
about union activities, thus creating the impression of sur-
veillance. David’s, supra at 552. This rationale is sufficiently
close to the Dobbins-Olsen telephone conversation to permit
and require a finding that, as alleged, the impression of sur-
veillance had been created by Olsen’s aggressively persistent
remarks.
2. Section 8(a)(2)
It was traditional in this setting that all pilots of the Dis-
trict 3 pool participate in affairs of the Union. In fact the
fundamental labor contract contains a union-security clause
requiring membership in the Union of all employees render-
ing pilotage services, after their full registration on examin-
ing board approval. At the 1990 spring membership meeting,
as previously, senior board of director and corporate officer
members participated equally with the rank and file, and for
the most part constituted the voting block that would have
approved Respondent’s proposal. I believe these are activities
that cannot be countenanced under the Act. Bylaws of the
Union forbid corporate management from nominating for, or
holding office in, any executive position of the Union. This
minor disqualification does not, however, legitimatize Senff
and others from the obvious self-dealing. Cf. NLRB v. North
Shore University Hospital, 724 F.2d 269 (2d Cir. 1983).
In Nassau & Suffolk Contractors’ Assn., 118 NLRB 174
(1957), a divided Board affirmed earlier case rationale that
when activities of supervisory personnel would ‘‘lead em-
ployees reasonably to believe that the supervisors were act-
ing for and on behalf of management,’’ a finding of unlawful
interference in the administration of a labor organization
could result. In applying this principle to the facts of Nassau
& Suffolk, the Board noted that individuals involved in the
issue were ‘‘not executives or officers [of the employer].’’
Under a still-surviving test of examining ‘‘all the cir-
cumstances,’’ I conclude that corporate officials here, acting
against a backdrop of known discord between the two inter-
est groups, interfered with administration of the Union by
their insistent and near-determinant exercise of voting with
respect to their own formulated wage proposal for the new
season. See Power Piping Co., 291 NLRB 494 (1988). The
threshold requirement of involvement with the collective-bar-
gaining relationship, as discussed in Hoyt, Brumm & Link,
Inc., 292 NLRB 1060 (1989), is also plainly met in this situ-
ation.
Here it is also established that the Union had no independ-
ent resources of its own, and relied on Respondent for such
basics as clerical service and space for union officers to be
present even for simple discussion of union business.
Madjiwita could not even state the amount of monthly rent
paid by the Union for its symbolic presence in the Seaway
Building. This near-total intrusion into the affairs of a labor
organization constitutes impermissible assistance and support
in violation of the Act. See American Tara Corp., 242
NLRB 1230, 1242 (1979). Further, the de minimis principle
of Coamo Knitting Mills, 150 NLRB 579 (1964), where use
of company time and property extended to a mere ‘‘3 percent
of the total work force,’’ is wholly inapplicable here. Cf.
Comet Corp., 261 NLRB 1414, 1430 (1982).
3. Section 8(a)(3)
a. Vessel traffic projection
Respondent relies heavily on this subject in its defense to
the allegation of discriminatory action against pilots. Al-
though it is true that a uniform downward trend in the annual
number of ships within District 3 is shown, the concern is
for whether this genuinely influenced the board of directors’
action as taken late on April 10 or early the next day. More
particularly, the incisive question is whether comparatively
fewer vessels as start-of-season traffic was an actual reason
for the abrupt layoff of pilots.
I am not persuaded to believe that this question permits an
affirmative answer. The one consistent characteristic of Sea-
way shipping was its unpredictable patterns of usage and
suddenly fluctuating change in numbers. Skuggen tellingly
referred to traffic projections as ‘‘never very successful,’’
and that even industry sources that monitored shipping were
not that reliable. When pressed on the point, Senff conceded
he could not deny knowing that Skuggen voiced such an ap-
praisal at some time during the spring meetings. As to Re-
spondent’s own attentions the date of April 23 had been offi-
cially fixed for a further keen look at the picture, although
Senff was directed only to engage in the rather nonurgent ac-
tivity of keeping track daily from the shipping reports. In
fact, Senff testified that the board of directors had formally
decided to continue all pilots in employment ‘‘at least
through May 1st.’’ (Tr. 111.) There is nothing about this
configuration that would suggest the layoffs would be made
on the accelerated basis that was used.
b. Canadian participation
A second thread of Respondent’s defense is found more in
testimony of management witnesses than in its formal con-
tentions. This has to do with the sharing of pilotage assign-
ment with Canadians in the same occupation for District 3.
Officially the current proportionate entitlement of Canadian
pilots is 18.9 percent of overall opportunities; however, it is
not sufficiently established from the evidence that this fully
149UPPER GREAT LAKES PILOTS
6 Rico’s affidavit states he is without recall of layoffs being dis-
cussed at 1990 spring meetings of the board. A conflicting inter-
lineation on p. 3 of his affidavit is disregarded.
and consistently occurred. The subject is one to which I give
limited weight. This is because both the letter of the ‘‘equi-
table’’ sharing principle did not seem to meet its spirit, and
there was an absence of documentary evidence that the 18.9-
percent figure was truly realized. The record does disclose
that Canadian pilots are employed in civil service, and with-
out according great significance to the point there is a sug-
gestion that the competition for pilotage assignments was so
not important across the border. Perhaps the best indicator of
how the subject fits into this overall picture is how Senff tes-
tified only vaguely how the sharing was ‘‘supposed’’ to
work, and that dispatching rotation ‘‘seems to work out half-
way decent.’’
c. Role of Attorney Jack Chestnut
Although not emphasized in case presentation, it is plain
that this individual is instrumental in what Respondent is and
does. That is not to say he preempted the board of directors,
or was personally involved in the disputed decision to lay
off. He is however so intertwined with the affairs of the total
enterprise, that he effectively masterminds the entire coordi-
nated business purpose. This is seen from his role on the
boards of directors, his management contracts, the pervasive
sort of legal accounting and business services provided by
his law firm, his chairing of meetings, his role as adminis-
trator of the benefit funds, and lastly his predictably overall
status as attorney for the entities involved and their
subforms. Further, the affidavit of Rico, stipulated by the
parties to be the equivalent of his live testimony, states that
Chestnut ‘‘prepares a letter for the pilots at the end of each
shipping season regarding the confidentiality of their pay.’’
I write separately on Chestnut’s role because of a hidden
significance seen to the letter dated April 13, on which
Senff’s ostensible signature appears. This letter, attached as
discrete Appendix A to this decision, appears to have been
drafted and issued by Chestnut himself. The composition,
phrasing, and format all appear to be of Chestnut’s well-pol-
ished making. Composition of the letter dated April 13 is a
well organized and compellingly logical progression of
thoughts that would do the utmost to legitimatize the drastic
action just taken. Certain phrasings are more than coinciden-
tally those of Chestnut. Four of its paragraphs begin with the
pronoun ‘‘I,’’ as also comparably done in his own letter of
July 23 to the field examiner. The ending phrase, ‘‘I hope
this,’’ represents exactly how that subsequent letter also stat-
ed its closing passages. The indenting, paragraphing and
complementary closing formats mirror the style of Chestnut’s
own letters when written on law firm stationery. Interestingly
the secretarial initials ‘‘jh’’ shown on Chestnut’s own cor-
respondence, and on Respondent’s letter dated March 5,
which also gives every appearance of being drafted by Chest-
nut, but are absent on the April 13 letter. I leave to hand-
writing experts the question of whether Senff’s cursively
written ‘‘signature’’ on the April 13 letter is his own or was
written for him. When the document was introduced at trial
Senff’s authenticating affirmance of its admissibility was first
merely a distancing ‘‘Uh-huh.’’
None of this discussion is to fault or prejudice Respond-
ent, or Chestnut acting on its behalf, from issuing a letter
such as that dated April 13 with the appearance that it had
been written by Senff himself. What I see instead is that Re-
spondent and those aligned with its ‘‘inner sanctums’’ (Tr.
491) recognized the perilous consequences of what had been
done by the board quorum, and it was time for prompt
‘‘damage control’’ to be mounted. Thus I believe, noting it
as a matter of case flavor but without actual weight in the
inferences eventually to be drawn, the letter dated April 13
was self-commissioned to himself by Chestnut for sophisti-
cated handling of Madjiwita’s request for explanatory infor-
mation.
d. Evaluation of layoff motivation
Under Wright Line, 251 NLRB 1083 (1980), affd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), General Counsel has the initial burden to
prove the union or other activity protected by the Act was
a motivating factor in an employer’s decision to make ad-
verse action against an employee. If General Counsel meets
this burden, the employer then has the burden to show it
would have taken the same action even in the absence of the
protected activity. Here the credited evidence is such that
General Counsel has established a prima facie case as to
each of the alleged discriminatees within the meaning of
Wright Line. Respondent’s overall defense fails of persua-
siveness, and for this reason I find that the layoffs would not
have occurred in the absence of attempts by the Chi Chi
Boys to concertedly affect their terms and conditions of em-
ployment.
Respondent’s claimed concern for decreased vessel traffic
is false-sounding when the precipitate nature of these layoffs
is considered. All that intervened between an intention to
monitor ship traffic for a time and the sudden layoffs was
the contract rejection on a tie vote influenced mainly by the
newer employees’ opposition. It may be conceded that Senff
checked the latest Seaway Automated Information System
(SAIS) on April 10 for actual vessels within the system, but
this raw fact subordinates to both previous less acute inten-
tions and to the inherent unreliability of early season project-
ing.6
It is plain that Respondent’s management was at least dis-
traught, and more probably dismayed to the point of anger,
over the contract rejection. The immediate postvoting scene
was termed a ‘‘melee,’’ ‘‘confusion,’’ and ‘‘smoke and con-
sternation,’’ this tellingly enough of a description to infer
that management would choose a way to neutralize their
frustration of purpose. I have already alluded to the suspect
nature of Respondent’s April 13 letter, not as to its ghost
writing for this is a matter of internal choice by the organiza-
tion, but instead as to its uncommonly extensive attempt at
defusing the entire situation. The reiteration of further man-
datory days off as a continuingly viable option is noted;
however, this factor is illusory given the Chi Chi Boys dis-
trust of Madjiwita. Such distrust was not without validity
when it is seen that he delayed any real attempt at dealing
with these vital events until 4 weeks later in his letter dated
May 11.
The 1990 shipping season required busy workloads being
imposed on the remaining pilots. Such an admitted factor
also suggests that the layoffs were without legitimate basis.
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This was uniformly shown by the increased number of bridge
hours worked by pilots during 1990. It is also notable that
the Coast Guard was formally critical, in a letter dated May
11, 1991 (which Respondent rebutted), that change point re-
quirements were not being met and a general understaffing
of pilots was apparent. Finally the statement by O’Brien, im-
putable to Respondent as done by an agent, was revealing
enough on the part of this person whose collegial activities
would easily provide him knowledge of actual motivations
harbored by Respondent’s senior management personnel.
e. Holding
It is the combination of all such factors, coupled with pro-
fane and browbeating remarks from several board members
against Chi Chi Boys’ types, that results in my holding of
discriminatory action in the layoffs taken and their ultimate
conversion to discharge. I have considered the opinion of
CPA Peter Medchill that the decision was reasonable and
prudent, but cannot give this weight in the face of strong evi-
dence compelling a contrary inference.
CONCLUSIONS OF LAW
1. Upper Great Lakes Pilots, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Upper Great Lakes Pilots, Inc. and Seaway Services
Corporation constitute a single employer.
3. Upper Lakes Pilots Association, District No. 3, ILA
Local 444, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
4. By telling employees that they have been laid off be-
cause of their protected concerted activities, Respondent has
engaged in conduct violative of Section 8(a)(1) of the Act.
5. By threatening reprisals against employees for their en-
gaging in protected concerted activities, Respondent has en-
gaged in conduct violative of Section 8(a)(1) of the Act.
6. By coercively interrogating employees about their union
or other protected concerted activities, Respondent has en-
gaged in conduct violative of Section 8(a)(1) of the Act.
7. By creating the impression of surveillance of employ-
ees’ union activities, Respondent has engaged in conduct vio-
lative of Section 8(a)(1) of the Act.
8. By corporate directors and officers voting on wage pro-
posals at a membership meeting, Respondent has interfered
with administration of the Union in violation of Section
8(a)(2) of the Act.
9. By rendering assistance and support to the Union, Re-
spondent has engaged in conduct violative of Section 8(a)(2)
of the Act.
10. By permanently terminating Tad Derf, Thomas Ojard,
John Soderquist, Howard Dobbins, Dennis Aho, and Leroy
Kolenda and temporarily laying off Nick Skorich, Respond-
ent has discriminated for the purpose of encouraging union
membership in violation of Section 8(a)(3) of the Act.
11. Except as found here Respondent has not otherwise
violated the Act as alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom, and to take certain affirmative
actions designed to effectuate the policies of the Act.
Specifically, I shall order Respondent to reinstate Tad
Derf, Thomas Ojard, John Soderquist, Howard Dobbins,
Dennis Aho, and Leroy Kolenda to their former positions of
employment and make them whole for the layoffs of April
11. Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). I shall also order that Re-
spondent make whole Nick Skorich in the same manner for
his temporary loss of earnings. Finally, I shall order Re-
spondent to remove from its files any reference to these un-
lawful layoffs, and to notify the individuals in writing that
this has been done and that the layoffs will not be used
against them in any future way. See Sterling Sugars, 261
NLRB 472 (1982).
[Recommended Order omitted from publication.]
APPENDIX A
Upper Great Lakes Pilot, Inc.
DISTRICT 3, GREAT LAKES PILOTAGE—LAKES
SUPERIOR, HURON MICHIGAN
P.O. Box 6878 ★ 802 Garfield Avenue ★ Duluth,
Minnesota 55802-6878 ★ Phone (218) 722–1425
April 13, 1990
Captain Peter A. Madjiwita
President
ILA Local No. 444
2458 Ferris
Lincoln Park, Michigan 48146
Dear Captain Madjiwita:
You have asked me to give you an explanation of
the events leading up to my decision temporarily to lay
off a number of employee pilots. I apologize for any
confusion that has resulted. My intentions were directed
to saving the company money and to saving the pilots
any inconvenience they would experience in expending
the costs and time involved in going to their stations
and then subsequently being laid off.
The Board of Directors has been concerned about the
continuing decline of levels of traffic and the number
of employees who could service this traffic economi-
cally. Over the winter months, the possibility of layoffs
was discussed with you and other union officials. At
the April Board of Directors meeting, the Board de-
cided from a policy standpoint to continue existing em-
ployees at least until May but to review the matter by
April 23 and, on the basis of then-known traffic condi-
tions, to advise the union of the number of employees
that it could support in the near future. The union
would then be requested to poll its members and advise
the company whether temporary layoffs on a seniority
basis should be imposed or if additional unpaid days
off would be accepted by the membership across the
board to accomplish the same result. I concluded from
comments and actions at the union meeting that the lat-
ter was unacceptable. It is still available if that is what
the members desire.
151UPPER GREAT LAKES PILOTS
On April 11, I became aware that not only were traf-
fic levels projected to be very low for the near term,
but also that employees who would undoubtedly be
temporarily laid off were leaving for their stations in
accordance with their areas of assignment. On this
basis, and with the above background, I consulted with
three members of the Board of Directors who were
available and decided to impose the temporary layoffs
at this time to save everyone the expense and inconven-
ience that was bound to occur in the near future.
I apologize to you and your members for not advis-
ing you of this first. I am new to this position, but I
am willing to work with you to solve all of our prob-
lems for the best interests of your members and the
company.
I have since consulted with our legal counsel, Jack
Chestnut, and he has advised me and will also advise
the Board that these layoffs should be considered as
temporary and that health benefits will continue for
laid-off employees during the period of temporary lay-
off.
I have also consulted with Mr. Chestnut about your
questions regarding requests for leaves of absence. He
advises that these requests must be approved by the
Board. Concerning benefits during unpaid leave, he
suggested that he would probably advise the Board to
honor health benefits during short requests, but that the
cost of benefits would have to be paid by employees
desiring them to be continued if the leave of absence
was for a significant period of time.
It is my intention that just as soon as traffic levels
warrant, as many employees as the traffic will allow
will be re-employed and will continue so long as we
don’t experience further declines.
I hope this clarifies matters and that we can return
to full employment very soon.
Very truly yours,
UPPER GREAT LAKES PILOTS, INC.
/s/ Captain E. J. Senff, Jr.
President