Waterways Harbor Investment Co., Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1969

179 N.L.R.B. 452 (N.L.R.B. 1969)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waterways Harbor Investment Company, Inc;
Waterways Harbor Service , Inc.; Waterways Meat
Investment Co., Inc .; Waterways Meat Co., Inc.;
Waterways Oil Investment Co., Inc .; Waterways
Oil Company, Inc.; Waterways Marine Supplies &
Service , Inc. and National Maritime Union of
America , AFL-CIO. Case 26-CA-3194
October 31, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 6, 1969, Trial Examiner William
Seagle issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondents filed exceptions to the
Decision and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in the case, including the Trial
Examiner's Decision, the exceptions and brief, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified
herein.
The Trial Examiner found, and we agree, that
Respondents' violated Section 8(a)(1) of the Act by
coercively interrogating its nonsupervisory
employees concerning the Union activity.3 The
record shows that the Company received the
Union's request for recognition on October 10,
1968, and that, within the next 4 or 5 days, Vice
President Luttrell and Manager Embry had
canvassed some 14 employees about the organizing
activity. Their interrogations of these employees
failed to incorporate any safeguards,' conveyed an
implied threat of a shutdown,' and included
statements such as ". . . this company can't stand
any union." Such interrogation clearly interfered
with employee organizational rights. It further
establishes the depth of Respondents' hostility
towards the Union and a determination to deal
swiftly and decisively with the organizational
activity.
The Respondents ' request for oral argument is hereby denied, since in
our view the record, exceptions and brief adequately present the issues and
positions of the parties
'In light of the finding that the seven Respondent corporations constitute
We also agree with the Trial Examiner's finding
that the Company's discriminatory treatment of five
union adherents - Ben Scott, James Belcher, Lucky
Ellison, Jerry Edington, and William Worley -
violated Section 8(a)(3) and (1) of the Act. The
timing of the discrimination, the concurrent coercive
interrogations, the close positive correlation between
union card signers and those eliminated from fobs,'
the abrupt and selective manner of implementing the
employment decisions, and the implausibility of the
Company's attempted explanations - all support
the finding of unlawful job discrimination. The
Company was plainly determined to rid itself
immediately of the Union element within its work
force and thus promptly cripple the organizational
effort.
As more fully set forth in the Trial Examiner's
Decision, the October 13 discharge of deckhand Ben
Scott in the Oil Company clearly flowed from his
involvement "in that union deal." The alleged
failure to wear a lifejacket was manifestly a pretext
for eliminating Scott - the only nonsupervisory
employee in the Oil Company to sign a union card '
The Company also sought to get rid of other
union card signers and did so when President
Tarver, upon learning the results of Manager
Embry's interrogations, quickly ordered the
shutdown of the Harbor Service Company, which
eliminated the deckhand jobs of Belcher , Ellison,
Edington, and Worley, and then barred those
complainants from consideration for jobs in other
Respondent Companies.
"a single integrated enterprise," performing related services and having
common officers and labor policy, we shall at times refer to Respondents
as the "Company " Individual companies will be referred to as the "Oil
Company," the "Harbor Service Company," etc
'The Company 's interrogation, as well as its job discrimination , extended
to several "boat operators" who were later determined to be supervisory
employees , and thus excluded from the Act 's protection While the conduct
towards these supervisory boat operators cannot in itself be held unlawful,
it is relevant in evaluating the Company's treatment of the nonsupervisory
employees and their union activity
'Struksnes Construction Co. Inc, 165 NLRB No 102
'While Vice President Luttrell generally expressed his shutdown warning
in terms of a prediction as to how Company customers might react to
unionization , Luttrell admitted that the adverse customer reaction was
only his "opinion" and that none of the customers had communicated any
intent to curtail business in the event the Company became unionized
Clearly, Luttrell' s "prediction" was neither based on "objective fact," nor
related to "demonstrably probable consequences beyond his control "
N L R B v Gissel Packing Company , 395 U S 575, 618 We find it to
constitute a threat of Company retaliation for employee union activity
'Eleven of the 13 employees who had signed union cards by October 10
(including 6 supervisory boat operators) were no longer employed as of
October 14 While one of the card signers (boat operator Byberg) was
discharged for reasons totally unrelated to the union activity, there is
nonetheless such a high percentage of union adherents in the group
discharged as to indicate something more than economic decision making
The Company points out that it did retain two employees (boat operator
Reed and deckhand Hopper) who had signed union cards, and that it
offered a job in the Oil Company to deckhand Jerry Howard who may
have signed a card However , it appears that Reed and Hopper had
wavered in their support for the Union, and that the Company may have
been unaware of Howard 's union sympathies at the time it offered him the
job
'The Company also fired two Oil Company boat operators involved in
the Union activity
179 NLRB No. 72
WATERWAYS HARBOR INVESTMENT CO., INC. 453
Respondents assert that the October 13-14
discharge of the four employees resulted solely from
a prior economic decision to shut down the Harbor
Service operation. In this connection, the Company
did show that it was losing money on the Harbor
Service,' and, in August, had informed the Coast
Guard of its intent to close this operation
"somewhere around the first of October." A
stockholder's resolution on September 30 authorized
the corporate dissolution and liquidation of assets of
the Harbor Service Company.' While these facts
indicate the Company was moving towards a
shutdown in the near future, we are not persuaded
that the employment decisions and precise time
schedule for the closing were formulated before the
Union arrived on the scene. Rather, the record
establishes that the Company continued the Harbor
Service on into the second week of October without
even mentioning the possibility of closing to the
Harbor Service employees10 or to its customers.
Company President Tarver testified that he had
previously made a "firm decision" to carry out the
closing "in an orderly fashion." The advent of the
Union, with its heavy support from Harbor Service
employees, clearly upset this committment to an
"orderly" discontinuance. Thus, the record shows
that President Tarver, upon hearing Manager
Embry's report on the interrogations, directed
Embry to ". . . close the harbor business up." This
direct link to the Union activity in addition to the
Respondents' entire hostile reaction to the
organizing effort amply indicate the unlawful basis
for the decision to implement the Harbor Service
shutdown at this time. That Harbor Service losses
was not the only determinant is evident from the
simultaneous discharge of the Union adherents in
the Oil Company. In short, we find, in agreement
with the Trial Examiner, that the Union activity was
the overriding factor in the decision to close the
Harbor Service on October 13.
As already indicated, Respondents' determination
to eliminate the complainants encompassed more
than the shutdown of the Harbor Service operations.
That their severance be total and permanent was
then accomplished by not considering the
complainants for jobs in other companies, and
favoring, instead, nonunion employees and new
hires. Thus, it appears that the Company
experienced considerable turnover in its deckhand
classification and that job vacancies were filled
'However, we do not adopt the Trial Examiner's somewhat conjectural
conclusions as to why President Tarver continued to operate in the face of
those losses The significant fact is that the Company did continue
operating until the Union made its appearance
'President Tarver testified that the formal stockholder action was
necessary for favorable income tax treatment of the transfer of Harbor
Service assets to the holding company, and that the Internal Revenue
Service permitted 12 months from the date of the resolution in which to
negotiate and dispose of those assets
"The only reference to a shutdown during the October 11-15
interrogations was Luttrell ' s warning that unionization , not business losses,
might result in closing And , it appears that this warning was not
addressed to the Harbor Service employees
through employee transfers. In fact, union
card-signer Worley, a deckhand discharged from the
Harbor Service, had previously worked 9 to 10
months in the Oil Company. Yet when he requested
a transfer back to the Oil Company upon his
discharge, Manager Embry quickly denied it, saying
. . he didn't need [Worley], and that was it." At
the same time, the Company hired a new employee
for a deckhand or tankerman job in the Oil
Company. Two other union supporters in the
Harbor Service - deckhands Belcher and Edington
- had prior experience as grocery deckhands in the
Marine Supplies Company. But, rather than
mention a grocery deckhand opening on October 13
to Belcher or Edington, the Company filled the
position with a new employee. In addition, the
Company made offers to retain at least two
nonunion Harbor Service employees for jobs in
other Companies. The net result of this selective
process was the permanent exclusion of the
discharged union adherents from any employment in
Respondent Companies."
With respect to the remedy for the discrimination
practiced against the four Harbor Service
employees, we do not find adequate the Trail
Examiner's recommendation that backpay accrue
from October 13-14 only until Harbor Service would
have been liquidated in a legal fashion, without
discriminatory motivation.' z For it fails to take
account of the other component of the Company's
discriminatory treatment of these employees,
namely, the denial of job opportunities for which
they would have been considered absent the
Company's resolve on and after October 13-14 to be
rid permanently of these complainants. These
employees would not be made whole for the
discrimination against them if we failed to consider
the employment in other companies that was denied
them." Accordingly, we shall order Respondent to
offer immediate and full reemployment, in jobs
substantially equivalent to their Harbor Service
deckhand jobs, to Belcher, Ellison, Edington, and
Worley in other Respondent Companies, without
prejudice to their seniority and other rights and
privileges, dismissing, if necessary, those hired in
such jobs on and after October 13, 1968. We shall
also order that the Respondents make whole these
complainants for any loss of earnings they may have
suffered by reason of the discrimination against
them, by payment to each of them of a sum of
money equal to the amount that he normally would
have earned as wages from the date of the
discrimination against him to the date of the offer
of reemployment, less his net earnings during such
period, with backpay computed on a quarterly basis,
As more fully set forth in the Trial Examiner's Decision, the
Company's attempt to portray the discriminatory selection as a
"distill[ing] down" to a work force of "superior" employees is not
substantiated in the record
We do find appropriate the usual reinstatement and backpay order
recommended by the Trial Examiner to remedy Scott's unlawful discharge
"As we have sought to make plain, we are satisfied that, had the Harbor
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with 6 percent interest , in the manner established in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order, the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondents, Waterways Harbor Investment
Company, Inc., Waterways Harbor Service, Inc.,
Waterways Meat Investment Co., Inc., Waterways
Meat Co , Inc., Waterways Oil Investment Co ,
Inc., Waterways Oil Company, Inc., and Waterways
Marine Supplies & Service, Inc , Memphis,
Tennessee, their officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and substitute the following
"(a) Offer to employee Ben Scott immediate and
full reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of the discrimination in the
manner set forth in the The Remedies section of the
Trial Examiner's Decision
"(b) Offer to employees James C. Belcher, Jerry
Roscoe Edington, Lucky E. Ellison, and William L.
Worley immediate and full reemployment in
positions in other Respondent Companies
substantially equivalent to those they previously held
in the Harbor Service Company, without prejudice
to their seniority or other rights and privileges, and
make whole these employees for any loss of earnings
suffered by reason of the unlawful discrimination
against them in the manner set forth above in this
Decision
"(c) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Reletter paragraphs 2(b), (c), and (d) to 2(d),
(e), and (f).
3. Delete the fifth indented paragraph of the
Appendix (Notice to All Employees) to the Trial
Examiner's Recommended Order and insert the
following:
Service's shutdown on October 13 been prompted by business
considerations alone, with Respondents holding no animus against the
complainants because of their union activity, those employees would have
been placed in other available employment When comparable employment
became available for each complainant under nondiscriminatory hiring
standards should be readily ascertainable
WE WILL offer to Ben Scott reinstatement to
his former or substantially equivalent position
without prejudice to his seniority or other rights
and privileges and make him whole for any loss of
pay he may have suffered by reason of our
discrimination against him.
WE WILL offer to James C. Belcher, Jerry
Roscoe Edington, Lucky E. Ellison, and William
L. Worley immediate and full reemployment at
jobs substantially equal to their old ones. We will
also make Belcher, Edington, Ellison, and Worley
whole for any loss of pay suffered by them by
reason of our discrimination against them.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM SEAGLE, Trial Examiner Upon charges duly
filed,' a complaint issued on November 13, 1968 by the
Regional Director of Region 26 of the Board, in which
violations of Section 8(a)(1) and (3) of the Act were
alleged, and the answer of the respondent, in which the
commission of any unfair labor practice was denied, I
heard this case at Memphis, Tennessee, on December 9
and 10, 1968
Subsequent to the hearing, counsel for the General
Counsel, for the Respondent and for the Charging Party
all filed briefs with the Trial Examiner.
Upon the record so made, and in view of my
observation of the demeanor of the witnesses, I hereby
make the following findings of fact.
1. THE RESPONDENT
Waterways Harbor Service, Inc., Waterways Meat Co ,
Inc , Waterways Oil Company, Inc. and Waterways
Marine Supplies & Service, Inc. (hereinafter referred to
collectively as the Waterways companies or as the
Respondent) are, and at all material times have been,
Tennessee corporations with places of business in
Memphis, Tennessee The other companies that appear in
the caption of the proceeding, i.e. Waterways Harbor
Investment Company, Inc , Waterways Meat Investment
Co., and Waterways Oil Investment Co., Inc. are holding
companies that own the stock of the respective operating
companies The operating companies, except the harbor
service company, were acquired in May 1967 by John W.
Tarver who owns the stock of each of the companies and
is president of each of them. The harbor service company
was established by Tarver in September 1967. The
Respondent admit that the Waterways companies are, and
at all material times, have been affiliated business
concerns with common officers, ownerships, and directors,
and constitute a single-integrated enterprise, whose agents
formulate and administer a common labor relations policy
for the Waterways companies, and I so find.
As the names of the various Waterways companies,
suggest, the Waterways Oil Company, Inc (hereinafter
referred to as the oil company), supplies oil refueling
service for midstream Mississippi River vessels;
Waterways Marine Supplies & Service Inc. (hereinafter
referred to as the marine supplies company) supplies
'The original charge was filed on October 15, 1968, the first amended
charge was filed on October 17 , 1968, and the second amended charge was
filed on November 1, 1968
WATERWAYS HARBOR INVESTMENT CO., INC. 455
groceries, hardware and other items to Mississippi River
boats at midstream and Waterways Harbor Service, Inc.
(hereinafter referred to as the harbor service) provides
barge movement and placement in and around the harbor
of Memphis.
During the past 12 months, the Waterways companies,
in the course and conduct of their business operations,
sold and distributed products, the gross value of which
exceeded $500,000. During the same annual period, the
Waterways companies received goods valued in excess of
$50,000 which were transported to their place of business
in interstate commerce directly from States of the United
States other than the State of Tennessee. The Waterways
companies admit that they constitute employers engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act and I so find.
II. THE LABOR ORGANIZATION INVOLVED
The National Maritime Union of America , AFL-CIO
(hereinafter referred to as the NMU ), is a labor
organization that has sought to organize the employees of
the Waterways companies.
III THE UNFAIR LABOR PRACTICES
A The Organizational Campaign
The organizational campaign that precipitated the
present proceeding was launched by Robert Collilieux,
Patrolman-Organizer of the NMU, on or about
September 21, 1968. The union was seeking to organize
the deckhands and boat operators employed on the vessels
of the Waterways companies. Collilieux himself solicited
signatures to union authorization cards, and handed out
other cards to various Waterways employees In all,
Collilieux succeeded in obtaining signatures to union
authorization cards from 13 of the employees of the
Waterways companies. Six of these signers were
deckhands. The only deckhand working for the marine
supplies company to sign a union authorization card was
James T. Hopper, III, and the only deckhand working for
the oil company to sign a union authorization card was
Ben Scott However, union authorization cards were
signed by four of the six deckhands working for the
harbor service company; i e , James C. Belcher, Lucky
Ellison, Jerry Edington and William L Worley.' In
addition to the deckhands, a union authorization card was
also signed by Raymond Barnes, who was a tankerman,3
and by six of the nine boat operators, who have,
apparently, the title of "Captain "0 R. C. Byberg was the
only boat operator of the marine supplies company who
signed a union authorization card. However, all three of
the boat operators for the oil company, whose names were
J. W. Cole, Ray Johnston and Gordon A. Reed, signed
union authorization cards, and two of the three boat
operators for the harbor service company, Floyd Barefoot
and William M. Couey, signed union authorization cards.
'The two nonsigners were Jerry E Howard and Lewis A Wilkins The
latter was , however on sick leave, having suffered an injury in an accident,
apparently
'By Coast Guard law, a tankerman must be aboard when fuel oil is
discharged from a boat , and he must have a license as a tankerman But a
deckhand is also eligible to have a license as a tankerman , and some
deckhands have such licenses
41t does not appear to be clear from the record whether the title of
"captain" as applied to the boat operators is a courtesy title
The boat operators were supervisory employees,' but
deckhands and tankermen were, of course, nonsupervisory
employees. On October 10, Collilieux sent the following
telegram to the general manager of the respondent-
This wire serves as official notification that National
Maritime Union AFL-CIO has been authorized as the
bargaining representative by a majority of your
non-supervisory employees at your marine facilities in
Memphis. We therefore request immediate meeting for
the purpose of obtaining a letter of recognition from
your company covering said personnel to be followed
by meeting for concluding a collective bargaining
agreement
The telegram of October 10 was received by the
respondent before noon that day, and its contents was at
once communicated to John W. Tarver, the president of
the Waterways companies. On October 11, Robert
Luttrell, the vice president of the Waterways companies,
and the overall supervisor and manager of their
operations, responded to Collilieux's telegram by letter as
follows
In reply to your wire of October 10 claiming to have
been authorized as the bargaining representative by a
majority of our non-supervisory employees at our
marine facilities in Memphis, we do not concede that
you represent our employees As a matter of fact, it is
our information that if you represent any of our
employees, they are relatively few.
B. The Interrogations
When the union's telegram arrived on October 10,
Tarver had to be reached in Greenville, Mississippi. He is
a certified public accountant, and a member of a firm of
CPA's - Saxton, Tarver, Kirbey and Bradley - that is
located in Greenville. Only about half of Tarver's time
was devoted to the Waterways businesses, the day-to-day
operations of which were directed by Luttrell assisted by
Charlie Embrey, who was manager of operations. Upon
learning about the union activity, Tarver instructed
Luttrell and Embrey to contact his lawyers and obtain
advice as to how to conduct themselves. One of the pieces
of advice that they received from Tarver's lawyers was to
refrain from questioning employees as to whether they
were for or against the union This advice they proceeded
to disregard, however, in its entirety
The interrogation of the employees was admitted by
Embrey and Luttrell when called as witnesses by counsel
for the General Counsel, although their admissions were
not candid and had to be helped along by reminders of
what they had deposed in their prehearing affidavits
Apparently, Embrey went into action first but Luttrell was
not far behind, either in effort or number of employees
interrogated
The evening of Friday, October 11, Gordon A. Reed,
who was the boat operator, and two of his deckhands,
Robert A. Tims and Gerald D. Holley, all of whom
worked for the oil company, and who were aboard the
Laura B, were "on the way up in Wolf River" Embrey
went and caught the boat for the express purpose of
questioning them about the union, and his interrogation of
them took place in the pilot's house on the Laura B
Embrey invited Reed, Tims, and Holley to tell him what
they knew about the union. Reed and Tims "volunteered"
namely, confessed, that they knew about the union but
'The supervisory status of the boat operators was not immediately
apparent, however, it was subsequently established
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holley declared that he knew nothing about the union,
Reed also "volunteered"that he had signed a union
authorization card, and Tims that he had not signed a
union authorization card. Asked specifically whether he
had told the employees to whom he talked that they did
not have to answer his questions about the union, Embrey
testified. "No, sir, I don't recall saying anything like
that."
On Saturday night, October 12, Embrey continued his
interrogations. He telephoned to Floyd Barefoot, one of
the three harbor service boat operators, and asked
whether he could come out to his home to talk to him.
"Sure, come ahead," Barefoot told him. Arriving at the
latter's home, he asked him to tell him what he knew
about the union activities that were going on. Barefoot
admitted his complicity, and probably also that he had
signed a union authorization card but added that although
"he went along with them on it," he had not been the one
who had started it Embrey asked Barefoot why some of
the employees had not come to him and talked to him, so
that he could find out what was wrong, and also
expostulated that in the past the employees had always
talked things out with him
On Sunday morning, October 13, Jerry Edington, one
of the harbor service deckhands, was standing in front of
the coke machine, having dust punched in, when Embrey
walked up to him and asked him whether he was "part of
this bear pack." Edington asked Embrey whether he was
referring to the union, and when Embrey replied in the
affirmative, Edington admitted his association with the
bear pack. Thereupon Embrey remarked to Edington.
"Well, this company can't stand any union."
On October 12, Luttrell interrogated George Walker,
an assistant hardware order filler for the oil company,
about the union. According to Luttrell, he told Walker
that he did not want him to supply the names of those
employees who had signed union authorization cards but
that he wanted an opportunity to give Walker "our side of
the story as far as the economic effects of having a union
at the company." Walker admitted that he knew about
the union activity but told Luttrell that he had not signed
a union authorization card, and that "he didn't want to
have anything to do with it." Luttrell then told Walker
that 95 percent of the company's customers were
nonunion and that the unionization of the company would
seriously curtail its sales - "possibly shut us down" was
the way that Luttrell put it That same day Luttrell talked
also to Gerald W Ward and R. C. Byberg, both of whom
were boat operators for the marine supplies company, and
the latter of whom was chief boat operator. Luttrell
conveyed to Ward and Byberg substantially the same
message that he had given to Walker, namely that a union
could be responsible for the shutdown of the company's
operations. During Luttrell's conversation with Ward, the
latter told him that he had been approached to sign a
union card but that he had declined to do so, and during
his conversation with Byberg, the latter told Luttrell that
he could not understand how a union could affect the
company or him. Apparently, this led Luttrell to tell
Byberg that "if he wanted a union he should go to work
for a company which had one."
Asked whether he had talked to any other employees
about the union , Luttrell testified- "I talked to a good
many of them. "I'd have to have a list to tell you."
Furnished with a list, Luttrell proceeded to name 10 other
employees to whom he had talked in the days following
the receipt of the union's telegram. Seven of these ten
employees worked for the marine supplies company -
Jack E Belcher (a grocery order filler), Lonzie Carter (a
truckdriver), James T. Hopper, III (a grocery deckhand),
Georgia Sherrod (a maid), Sandra K Cranford (a
dispatcher), Thomas D Howard (a dispatcher) and Vera
C Smith (a dispatcher). Three of the ten employees
worked for the meat company - Wesley C. Jacobs and
Waddell McBride, who were butchers, and Curtis
Tarrance, who was a janitor Luttrell told all 10 of these
employees substantially what he had told Walker, Ward
and Byberg.
C. The Discharges
Immediately after the interrogations - indeed while
they were still proceeding - the Respondent began a
series of discharges of its employees. The first two to be
discharged were Gerald W. Ward and R. C. Byberg, the
discharges occurring during Saturday evening, October 12.
These two discharges were wholly unplanned and had
nothing to do, apparently, either with the union situation,
or with Tarver's decision to go out of the harbor service
business. It seems that there was discovered a shortage in
a $1,000 fund that was used on the grocery boats for
making change, cashing checks and the like. Ward was
discharged as the operator responsible for the shortage,
and Byberg, as his superior, was also held to be at fault.
All the other discharges were in some way connected
with the union situation On October 13, the Respondent
discharged William L. Worley and Lucky L. Ellison, two
of the deckhands in the harbor service, and on October 14
the respondent discharged Jerry Roscoe Edington and
James C. Belcher, another two of the deckhands in the
harbor service. They constituted four of the six deckhands
in the harbor service, and they were the only deckhands
who had signed union authorization cards, the other two
deckhands in the harbor service, Jerry E Howard and
Lewis A. Wilkins being the nonsigners. The discharges of
the four deckhands who signed union authorization cards
are alleged to have been discriminatory. Each of them was
called in, and told that the company was going out of the
harbor service business, given 2 weeks' severance pay, and
dismissed. In addition, Raymond Barnes, the tankerman,
who had signed a union authorization card, was
discharged but his discharge is not alleged to have been
discriminatory only because he did not wish to bring
charges against the Respondent.
On October 13, the Respondent also discharged Ben
Scott, one of the four oil company deckhands. Scott was
the only oil company employee who had signed a union
authorization card, and his discharge, too, is alleged to
have been discriminatory. Scott himself did not testify
with respect to his discharge but some of the
circumstances surrounding his discharge were revealed by
Jennings W Cole, the boat operator for whom he worked,
and who was himself discharged the same day.
About 8 a.m. on October 13, Cole, who was going off
duty, was called into Embrey's office. Embrey closed the
door and asked Cole what he thought about the union
Cole replied that it seemed like a good thing to him.
Embrey asked why he thought so, and Cole mentioned
some futile attempts that the employees had made to get
meetings with management. Just then the telephone rang,
and Embrey asked Cole whether his deckhand, Ben Scott,
was there, and Cole replied that Scott had gone home.
Embrey then asked Cole whether Scott was "in that union
deal," and Cole replied in the affirmative, he also told
Embrey that Scott and he had signed union authorization
cards. Embrey then asked Cole "how Scott was doing, if
WATERWAYS HARBOR INVESTMENT CO., INC.
he was wearing his life jacket," and Cole told Embrey
that he was not wearing his life jacket. Cole had in a fact
complained to Embrey on several occasions about Scott
not wearing his life jacket but he testified nevertheless that
there was nothing wrong with Scott's work. At the end of
the interview Embrey told Scott that he could go but
about 3 p m that same day Embrey called Cole on the
telephone and told him that he was discharged
On October 13, the Respondent also discharged Ray
Johnston, the second of the two boat operators for the oil
company who had signed union authorization cards.
Johnston was called to Embrey's office, and Luttrell was
also present during the interview. But Embrey never got to
the point of opening the conversation by telling Johnston
that he was discharged, for as soon as the latter entered
the office, he remarked to Embrey: "I guess you want to
give me mine too " Embrey replied. "Well, I want to talk
to you about this and see what you thought." Johnston
repeated "Well, you might as well give me mine, too,
because I'm in it as deep as anybody else." Embrey then
proceeded to tell Johnston that they were closing down the
harbor service and letting several of the men go So far as
Johnston was concerned, Embrey explained that they were
letting him go since he had a bad record for "tearing up
equipment." Embrey was referring to an accident in which
Johnston had been involved about 8 months previously.
Embrey then added: "We don't want a union down here
and we don't want any operators that don't want to go
along with the Company " Embrey further expressed the
wish that the employees had gotten together and came and
talked to him "about this thing" before they got into it so
that they could have worked something out.
On October 13, the Respondent also discharged Floyd
Barefoot and William M Couey, two of the three boat
operators who had signed union authorization cards, and
one of whom, Barefoot, had been interrogated in his home
by Embrey.
D. The Respondent 's Explanation of the Discharges
According to Tarver , the discharges were all connected,
directly or indirectly , with a decision on his part to go out
of the harbor service business because of continuing losses.
When Tarver had acquired the Waterways companies in
May 1967, a motor vessel , the Bill B , had been used
sometimes for spotting and tieing barges but he was not in
the harbor service business on any considerable scale.
When in September 1967 Tarver decided to go into the
harbor service business , he had to expand his fleet greatly.
In addition to the Bill B , he had the Laura B , the Charlie
Embrey and the Robert S but these were fuel flat boats in
the oil service, and the last two named were obsolete.
There was also a small grocery boat, the Charlie Smith,
but this served the marine supplies company Tarver now
acquired two additional vessels, the Jeff T and the
Annilou , which were of 750 horsepower , and were
equipped with electric winches and high-powered lifts to
handle the tows, as well as with ample living quarters for
the crews The Jeff T and the Annilou represented an
investment of $300,000 . Besides the vessels, it was
necessary to acquire river docking facilities , which cost
more money. It became apparent before long, however,
that the harbor service business was proving unprofitable.
It seems that in the Memphis harbor there was an old
established firm , Warner and Tample, in the harbor
service business , and Tarver could make no headway
against its competition .' By June 1968, according to
Tarver , he had made "a firm decision" to go out of the
457
harbor service business " in an orderly fashion, " as he put
it. With this in mind , he took steps to dispose of the Jeff
T, the Annilou and the Bill B by sale or charter, and to
acquire two new fuel flat boats to replace his obsolete fuel
boats, the Robert S and the Charlie Embrey The two new
fuel boats were ordered from the LeMay Barge and
Supply Company of Greenville , Mississippi , and the first
of the two boats , the Mallard , was delivered and licensed
by October 9 In September the Bill B had been sold for
cash but neither the Jeff T nor the Annilou have as yet
been sold . The second fuel boat has not yet been delivered
by LeMay but Tarver testified that he expected it to be
delivered in January 1969
According to the further testimony of Tarver, when
towards the end of September he learned from LeMay
that the Mallard would be delivered about October 10, he
gave orders to Luttrell on October 1 to discontinue the
harbor service in the payroll period nearest the middle of
the month of October , and at the same time, he and
Luttrell agreed that they would seize the opportunity,
arising from the availability of some of the harbor service
employees for other work, to revamp the work force as a
whole, retaining those whom they considered to be
superior employees , and getting rid of the undesirable
employees As Tarver put it, they decided "to distill our
force down to the people that we considered most
efficient , most interested in the Company , and that we
considered superior employees ," or, as Tarver put it at
another point , "we agreed at that time specifically which
ones would be retained or transferred to another
company, and which ones would be let go." Tarver,
Luttrell and Embrey insisted throughout their testimony,
that they made these decisions on October 1 before they
had received the union ' s telegram and before they had the
slightest inkling that any union was attempting to
organize their employees.
E Concluding Findings
The two basic issues in the present case are whether the
interrogations conducted by the Respondent's agents were
legitimate, and whether they discriminated against the five
employees who were discharged on October 13 and 14,
1968. The two issues are closely related. A peculiarity of
the present case is, moreover, that employees of the
Respondent who were subsequently determined to be
supervisors, namely the boat operators, were also
interrogated and discharged, together with the five
nonsupervisory employees. Although the Respondent is
not legally answerable for its conduct, insofar as the
supervisory employees are concerned, this conduct may be
taken into consideration in evaluating its conduct towards
its nonsupervisory employees.
Undoubtedly, the interrogations conducted by Luttrell
and Embrey were coercive, and were therefore unlawful,
insofar as the nonsupervisory employees were concerned,
for not only did they seek to obtain knowledge concerning
the activities of the employees with respect to the union
but conveyed to them a scarcely veiled threat that the
'in April, the harbor service sustained a loss of $2,293 49, in May of
$3,447 25, in June of $4,977 48, in August of $1,350 43, and in September
of $3,865.28 However , in July, the harbor service showed a small profit of
$619 34, and the business must have broken exactly even for the other
months of the year, for there is a statement in evidence (Resp Exh 5),
which shows that the total loss for the year down to the end of the month
of September was $15 ,314 59 This figure is obtained by adding the losses
for the months of April, May, June, August , and September and
subtracting the profit for the month of July
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business might have to be shutdown if the union activities
continued, and were successful. Counsel for the
Respondent seek valiantly to represent the interrogations
by Luttrell and Embrey as mere attempts to put before
the interrogated employees the economic effect that a
union would have on the operations of the business and
"to investigate the Union's claims of representation."
Actually, Luttrell and Embrey were engaged in
threatening the job security of the employees, and in
obtaining information which they could use in carrying
out their discriminatory schemes. It is obviously frivolous
to contend that they were engaged in the disinterested
investigation of a question of representation when the
respondent had rejected out of hand the union's claims of
representation before Luttrell and Embrey had even
embarked upon the interrogations Embrey himself
understood perfectly well what he was up to, for despite
all attempts to get him to say that he was investigating
the union's claims of representation, he persisted in saying
that he "was trying to find out what was going on."
While the coercive interrogation of employees is not in
itself proof that their employer also discharged some of
them subsequent to the interrogations, it is nevertheless an
important indication that the employer in question is
ill-disposed towards the unionization of his business, and
lends credibility to allegations that the interrogations were
followed by discriminatory discharges.
In the present case, moreover, the interrogations have
more than the usual significance, for they tend also to
negate Ito some extent the contentions of the Respondent's
witnesses that they made their decisions on the discharges
of employees on October I before they ever knew of any
union activity, and hence that this activity could in no way
have influenced their decisions. Counsel for the General
Counsel argues that if, as the respondent claims "it had
irrevocably decided on October I to close the harbor
business why did Luttrell, knowing this, couch his
conversations with employees only in terms of a possible
closing of the business as the result of a successful union
campaign if, in fact, immediate closing was already a
certainty?" This argument rests upon premises that are to
a large extent invalid. The threat of a shutdown was made
by Luttrell to a number of the employees but these
employees included none of the harbor service employees
Since the respondent had no intention, prior to the
appearance of the union on the scene, of shutting down
the marine supplies business or the oil business, it could
logically threaten the shutdown of these businesses after it
learned that union activities were under way. However,
Embrey did interrogate two of the harbor service
employees, Floyd Barefoot and Jerry Edington, and while
the threat of a shutdown was not made to either of them
by Embrey, his very failure to say anything about the
shutdown of the harbor service to either of them, the
expression of his regret to Barefoot that the employees
had not come to him with their grievances, and his
warning to Edington that "this Company (i e , the harbor
service company) can't stand any union" is inconsistent
with the assumption that their fate had been determined
already While the interrogation of Edington was more
casual than that of Barefoot, this circumstance in no way
detracts from the force or significance of the warning
issued to the former.
There are, moreover, other significant indications in the
record that the decisions "to distill down" the personnel
were not made until after the union drive had been
launched. These indications are plainest in the case of the
discharges of deckhand Ben Scott and boat operators,
Cole and Johnston for the very reason that they were
employees of the oil company rather than employees of
the harbor service that was being shut down. The evidence
shows that in fact the union situation was responsible for
their discharges, and that they were not discharged until
their support of the union had become known.
According to the respondent's witnesses, Scott, who
worked for Cole, was an "unsatisfactory" or
"undesirable" employee It is a rather remarkable
circumstance that as witnesses for the respondent neither
Luttrell nor Embrey provided a single detail that would
illustrate Scott's alleged faults as an employee. Scott
worked under the general supervision of Embrey and the
immediate supervision of Cole. But the main burden of
justifying Scott's discharge was put on Luttrell, who knew
only what Embrey reported to him in the most general
terms, and Embrey himself did not venture beyond
stigmatizing Scott as unsatisfactory. It was thus left to
Cole to reveal, when called as a witness, that Scott's only
fault as a deckhand was that he sometimes did not wear
his life jacket. But the fact that Scott's discharge followed
only upon Cole's revelation that Scott had signed a union
authorization card connects his discharge with this
revelation rather than with the "distilling down" of the
employees on October 1. It is not possible to understand
why Embrey would have been interested in Scott's union
activity on October 13 if it had already been decided on
October I to discharge him. It is also difficult to
understand why Embrey had not discharged Cole the
morning of his interview with him if the decision to
discharge him had in fact been made almost 2 weeks
previously. The respondent is, moreover, in the rather
anomalous position of having discharged Scott in reliance
on the complaints of a supervisor-Cole-who was himself
discharged as unsatisfactory the very same day! In the
case of Johnston, Embrey as good as told him that he was
being fired because of his union activities by telling him
that the company did not want a union or operators who
did not go along with the company
The conduct of Tarver on learning from Luttrell and
Embrey the extent of the union activities also belies the
Respondent's contention that the time for going out of the
harbor service business had already been fixed and
determined. Tarver repeatedly declared during his long
tenure on the witness stand that it was a matter of
indifference to him whether any of his employees belonged
to a union But Embrey, while attempting to avoid the
embarrasment of connecting his instructions with the
surge of union activity, nevertheless testified that as soon
as Tarver was informed of the union activity he "just said
we'd bring the boats in and tie them up, we were going to
close the harbor business up" (emphasis supplied) But,
according to the same witnesses, this was a decision that
had already been firmly made on October 1. Embrey was
always a reluctant witness but he never was as reluctant,
as well as evasive, as when he was testifying concerning
what Tarver told him when the latter learned of the union
activity that was in progress.
The Respondent' s assertion that the selections for
discharge were made before the union activity began also
runs counter to the high degree of correlation between the
number of the union adherents who signed union
authorization cards and the identity of those discharged
The 13 union authorization card signers fared very badly
indeed in the selecting process No less than 10 of the 13
who had signed union authorization cards were
discharged. Ben Scott, who was the only oil company
deckhand of four so employed to sign a union
WATERWAYS HARBOR INVESTMENT CO., INC.
authorization card, was discharged There were six
deckhands in the harbor service, and the four of them who
signed union authorization cards, namely Belcher, Ellison,
Edington and Worley, were the four who were discharged
Byberg was the only boat operator in the marine supplies
company who signed a union authorization card to be
discharged, although his discharge was, apparently, for
just cause. All three of the oil company boat operators
signed union authorization cards, namely Cole, Johnston
and Reed, and two of the three were discharged. In the
harbor service two of the three boat operators who signed
union authorization cards, namely Barefoot and Couey,
were the two who were discharged, while the third,
Walden M. Whitehead, the nonsigner was retained
Tarver, Luttrell and Embrey made much of the fact
that they had retained, or offered to retain in their
employ, several of their employees who had signed union
authorization cards, these being Gordon Reed, one of the
oil company boat operators, Jerry Howard, one of the
harbor service deckhands, and James Hopper, III It is
well-settled, however, that a discriminatory motive in the
case of the discharge of some employees is not disposed of
by a showing that the employer did not discriminate
against others, or failed to weed out every union adherent '
In the present case, moreover, there is reason to doubt
that Jerry Howard, who was offered a job but turned it
down on the ground that he would be doublecrossing the
employees who were supporting the union, actually signed
a union authorization card, and Reed, as well as Hopper
do not appear to have been the staunchest of the union
adherents, for both of them came to Tarver either to
disavow the union, or confess union membership and
Tarver did not fix with indubitable precision just when
these acts occurred In the case of Reed, Tarver testified
that the disavowal occurred "Monday or Tuesday or
Wednesday," and he added rather enigmatically; "It was
after that Sunday when everyone's employment status had
been resolved" (emphasis supplied) According to Tarver,
however, everyone's employment status had been fully
resolved on October 1, which was a Tuesday rather than a
Sunday In the case of Hopper, Tarver, in testifying that
Hopper had come to him and "volunteered that he had
signed a Union card" merely added: "He had already
been retained . "
The most baffling of all the evidence given by the
respondent's witnesses in the present case was on the
subject of the extent of their knowledge of the union
activities of their employees Both Tarver and Embrey
testified that they had absolutely no knowledge of any
union activity until the union's telegram was received by
them about noon on October 10 Tarver, asked if he had
any such knowledge before then, replied "None
whatsoever." Yet in replying to the union's telegram the
next day Luttrell did not enter a total disclaimer of any
knowledge, for he stated that it is our information that if
you represent any of our employees, they are relatively
few" (emphasis supplied). Tarver also testified that at the
time Luttrell was consulting his lawyers his best
information was that "if any of these employees were
interested in the union, there couldn't be more than two or
three of them " The Respondent's reply to the union's
'See N L R B v W C Nabors , Co , 196 F 2d 272, 276 (C A 5), cert
denied 344 US 865, and earlier cases there cited, N L R B v
Shedd-Brown Mfg Co, 213 F 2d 163, 174-175 (C A 7), Nachman
Corporation , NLRB 337 F 2d 421, 423 (C A 7) In N L R B v Puerto
Rico Telephone Co, 357 F 2d 919, 920 (C A I), the court put the same
thought in a different way "A violation of the Act does not need to be
wholesale," it said "to be a violation "
459
telegram, as well as Tarver's own testimony, would seem
to indicate at least that even before the receipt of the
union's telegram they were not wholly ignorant of the fact
that the union was attempting to organize the employees
Even more baffling is the total disclaimer entered by
Tarver of any knowledge of who had signed union
authorization cards even as of the time of the hearing!
"As of right now," he declared under oath, "until we
walked into this Courtroom, I don't know who signed
cards and who didn't."' Tarver so testified despite the fact
that both Luttrell and Embrey had given testimony
concerning their interrogation of the employees in which
they had admitted that some employees had told them
that they had signed union authorization cards and others
had told them that they had not signed union
authorization cards. It can hardly be doubted, moreover,
that whatever Luttrell and Embrey learned in the course
of their interrogations were duly reported to Tarver.
Indeed, Tarver in the course of his testimony revealed that
various employees who had been retained had come to
him and "volunteered" the information that they had
signed union authorization cards, and cited these
confessions as proof that it was a matter of the utmost
indifference to him whether any of his employees chose to
belong to a union. The admissions of the Respondent's
witnesses, and the testimony of Scott, Johnston, and
Edington who were witnesses for the General Counsel,
establish at the least that the Respondent had positive
knowledge of the union activity of Edington, Reed,
Barefoot, Scott, Cole, and Johnston, and equally positive
knowledge that Walker, Ward, Tims, and Holley had not
engaged in any union activity. Adding the names of those
who had "volunteered" that they had signed union
authorization cards, it would seem to be quite clear that
the Respondent's knowledge of the union activities of its
employees was quite extensive long before the hearing.
Considering further that Luttrell had interrogated no less
than 13 of the employees and Embrey had interrogated
another three, it would seem reasonable to hazard the
conclusion that the Respondent's knowledge of the union
activities of its employees was encyclopaedic in nature It
is true that the burden is on the General Counsel to
establish knowledge on the part of the employer of the
union activities of discharged employees. But the proof of
knowledge need not be direct, it may be inferential;' and
the circumstantial evidence in the present case that the
Respondent's motives were discriminatory is very strong
There are numerous reasons for rejecting the
Respondent's proffered explanation of the discharges,
despite the fact that it is true that the harbor service
company was not being profitable, and that Tarver was
planning to go out of the harbor service business for some
months before the commencement of the union campaign
The evidence indicates nevertheless that he was
procrastinating from month to month in carrying out his
decision, and that the procrastination ended only when the
threat of unionization appeared. It is easy to understand,
moreover, the reasons for Tarver's procrastination Every
man hates to admit to himself that he has made a mistake
in going into a particular business venture , and is likely to
This declaration is echoed in the Respondent 's brief in the argument
"At the hearing before the Trial Examiner , the Respondents learned for
the first time the names of those employees who had signed cards with the
Union "
'See N L R B v Schell Steel Products, Inc, 340 F 2d 568, 572 (C A 5),
and earlier cases there cited , N L R B v Ambox , Inc , 357 F 2d 138, 142
(C.A 5), N L R B v Lexington Chair Co , 361 F 2d 283, 291 (C A 4),
N L R B v Superior Sales. Inc, 366 F 2d 229, 234 (C A 8)
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be loathe to cut his losses and to get out He is
particularly likely to remain in a quandary when his losses
are not overwhelming and he has a large investment in the
business which will be seriously impaired if the business is
terminated abruptly In most months of 1968, Tarver's
losses in the harbor service while substantial do not
appear to have been staggering , and in one month it even
showed a small profit , which would encourage him to
hope for better days While Tarver never admitted, of
course, that his losses in the harbor service business were
not unbearable , the mere fact that in testifying about them
he kept on explaining that the losses should be put at
higher figures , and thus in effect criticized his own
accountant ' s financial statements - a role that he
assumed as a CPA - indicates that he himself did not
regard the losses as forbidding enough . It must not be
forgotten that the harbor service company was only one of
the Waterways businesses , and constituted in reality only
one of the departments of the Waterways enterprise The
full impact of the losses in the harbor service business
cannot be accurately gauged unless one knows how well
the other Waterways businesses were doing , and Tarver
failed to offer any financial statements that would show
how the Waterways companies were doing as a whole
group Even assuming that the losses in the harbor service
business were considerable they would have to be weighed
against the impairment of the investment in the business
which included two vessels , the Jeff T and the Annilou,
which cost $300,000, and were specially designed for the
harbor service business To lay these vessels up would tend
to deteriorate them, which is clearly shown by the fact
that Tarver had to put the vessels into drydock in
Greenville for cleaning The fact that Tarver went out of
the harbor service business before either of these two
vessels had been disposed of, by either sale or charter, and
before the second of the vessels needed in the remaining
businesses had been completed suggests that his exit from
the harbor service business was rather precipitate Tarver
himself testified that he had decided in June 1968 to go
out of the harbor service business " in an orderly fashion "
Yet in October 1968 he went out of the harbor service
business in anything but an orderly fashion.
Indeed , Tarver 's exit from the harbor service business
was so abrupt that its customers were not even informed
that it was being discontinued , and advised to make other
arrangements. The taking of such steps would have been
less important , of course , if the harbor service business
had been the only one in which Tarver was engaged But,
since he was engaged in a group of related businesses, of
which the harbor service business was only one , he would
normally have wanted to retain the good will of his harbor
service customers by giving them adequate and timely
notice of his intentions. Asked to explain his failure to do
so, Tarver could only give the rather lame and
contradictory excuses that he was attempting to squeeze
as much as he could out of the harbor service business,
and that it was common knowledge in the Memphis
harbor that he was going out of the harbor service
business. If Tarver's intentions were indeed common
knowledge , his customers would be making other
arrangements , and Tarver would be deprived of the extra
dollars which he was, supposedly, seeking. Moreover, it
would hardly augment the good will of his customers to
allow them to rely on rumors.
As for the whole procedure of "distilling down" the
body of employees when an excess number of harbor
service employees became available , it seems odd and
irrational when the personnel situation of the Waterways
companies is considered. The closing of the harbor service
made available primarily a group of five deckhands (not
counting the temporarily incapacitated Wilkins), and a
group of three boat operators. These two group of
employees were at the opposite ends of the personnel
scale, so far as skills are concerned While the boat
operators would be skilled employees, it would hardly
seem that the deckhands would be employees of any very
special qualifications. One could speak of boat operators
as skillful employees whose retention would seem
desirable if at all possible but one cannot speak of the
deckhands in the same terms The chief problem of the
Waterways companies, so far as the deckhands were
concerned, would seem to have been to get enough
deckhands to man the boats, whether these boats were in
the marine supply service, the oil service, or the harbor
service The Waterways companies had some boat
operators who had 4, 6, and even 8 years of seniority But
the 13 deckhands who were employed in the same three
services in October 1968 were all without a single
exception recent employees Nine of these 13 deckhands
were first employed in 1968, and the other 4 were first
employed in 1967, 3 of these 4 having been employed late
in 1967'° It is evident that the turnover in deckhands
must have been tremendous, and that getting any
deckhands at all, whether good, bad, or indifferent, must
have been a major problem The "distilling" process
would seem to make sense only in the case of the boat
operators but the alleged discriminatees were all
deckhands. The "distilling" process would also have as its
necessary corollary that the harbor service employees,
whether boat operators or deckhands, had failed to give
satisfaction to their employer for some time, and it makes
one wonder how they could have been tolerated so long.
Luttrell attempted to answer this riddle by explaining that
he was hesitant to seek replacements in view of the
impending closing of the harbor service. But those hired in
1967 were retained for a considerable number of months
before there was any firm decision to go out of the harbor
service business, and as for those who were hired in 1968,
one would suppose that there would be little compunction
in letting unsatisfactory deckhands go precisely for the
reason that their tenure was fated to be brief In any
event, one can hardly believe that the proffered
explanation would apply to such boat operators as Cole
and Johnston who had been hired, respectively, as far
back as 1964 and 1962. If they were indeed unsatisfactory
or undesirable employees, Luttrell and Embrey had had
years to get rid of them, and all these years preceded, of
course, the decision to close the harbor service business.
When they finally made their decision as to which of the
three boat operators they should discharge, they
discharged Cole and Johnston, and decided to retain in
the oil service, boat operator Walden M Whitehead, who
had been hired by them on September 10, 1968, just 3
weeks before they decided, allegedly, to go out of the
harbor service business! They also decided to retain Jerry
Howard as a deckhand, although he had been hired a day
later than Whitehead on September 11, 19681
So remarkable were these decisions to let Cole and
Johnston go and to retain Whitehead and Howard that
the respondent's witnesses were driven to an excess use of
derogatory adjectives in the case of the former and to
superlatives in the case of the latter Tarver, for all that
he had little, if any, personal knowledge of the work of his
crews, pronounced Whitehead to be "probably the best
"The hiring dates are shown on G C Exh 2
WATERWAYS HARBOR INVESTMENT CO., INC.
overall operator in our entire fleet," going far beyond the
encomiums of either Luttrell or Embrey, whose favorite
superlative was "superior," which they applied
indiscriminately to deckhand and boat operator alike. On
the other hand, the respondent's witnesses were eager to
seize upon and to exaggerate even the most trivial faults
of the union supporters whom they were discharging They
attempted to make much of Scott's failure to wear his life
jacket, a fault that endangered nobody's life but his own,
and they attempted to make even more of the fact that
Cole had once lost a fuel ticket, although there were
meters on the boats to measure the amount of oil
dispensed Considering that Tarver, Luttrell and Embrey
endured the alleged derelections of the discharged
employees with equanimity until they joined the union,
and that they involved themselves in contradiction after
contradiction in attempting to explain the discharges, the
conclusion may be hazarded that the discharged
employees were not as unfit for further service as they
pretended that they were.
Perhaps the most damaging evidence against the
respondent is the fact that on October 13, the very day
that the discharges of the employees commenced, the
Respondent employed two new employees, who had never
previously been on its payroll, without offering either of
the jobs that had become available to any of the harbor
service deckhands who were being discharged, and whom,
according to Tarver, he would have reemployed if any
deckhand jobs were available. The two new employees
were Thomas Teague, who was employed as a grocery
deckhand in the marine supplies company, and Richard
Tims, who was employed as a tankerman in the oil
service. Tarver, Luttrell and Embrey floundered hopelessly
around in the mire of their own contradictions as they
attempted to explain the employment of Teague and Tims
despite the availability of the whole harbor service
complement, and the availability of no less than two
vacancies for deckhands in the oil service These two
vacancies had been created by the dismissal of Ben Scott
and Jerry Howard's refusal of a job as deckhand in the oil
service when it was offered to him
To the embarrassment of the Respondent's witnesses, it
was brought out that two of the discharged deckhands in
the harbor service, James C. Belcher and Jerry Edington,
had been grocery boat deckhands before they had been
employed in the harbor service. In view of this experience,
there was an added reason for offering Belcher and
Edington jobs as grocery boat deckhands. The
Respondent's witnesses had, however, a seeming reason
for disregarding them. They testified that there was a
substantial differential between the pay of a harbor service
deckhand and a grocery boat deckhand. This was true but
the reason cannot be regarded as completely satisfactory,
for the Respondent's witnesses conceded that they had not
offered the jobs to any of the harbor service deckhands
whom they were dismissing, and that they did not,
therefore, let the latter decide whether to accept the lesser
pay. After all, the lesser pay was certainly better than no
pay at all. That an employee who was being terminated
solely because of the closing down of the operation in
which he was employed would seek to be transferred to
one of the operations that was being continued is shown
by the case of William Worley, one of the four harbor
service deckhands. In the interview in which he was
discharged by Embrey, Worley requested Embrey to
transfer him back to the oil service where he had worked
for some 9 or 10 months before being transferred to the
harbor service. Embrey told Worley that he did not need
461
his services, and it is not established, moreover, that there
was any pay differential between the oil service and the
harbor service, so far as deckhands were concerned."
The Respondent's witnesses had an even harder time in
attempting to explain the hiring of Tims as an oil boat
deckhand, apart from the readiness of Worley to take the
job It seems that the great virtue of Tims in their eyes
was that he had a license as a tankerman. But he was
employed as a deckhand, and his possession of a
tankerman's license was at most a minor convenience,
since it was not necessary to have a tankerman aboard a
boat in discharging fuel oil; every boat operator had a
tankerman's license, and his presence would be sufficient
Of the four oil boat deckhands employed on October 13,
only one, R D. Ferguson, had a tankerman's license, and
Howard, who was slated for the job but had declined it,
had not had a tankerman's license. Moreover, among
those just discharged was Raymond Barnes, who was a
tankerman, and the only reason that Tarver could think of
for not turning to Barnes was that, compared to Tims,
Barnes was "inferior," a category that he applied
uniformly to all the prounion employees. But if Barnes
could have qualified as a tankerman although he was
"inferior," it becomes difficult to understand the special
virtue which, according to the respondent's witnesses,
inhered in being a tankerman, and deprived Belcher,
Ellison, Edington and Worley, supposedly, of the capacity
to qualify as tankermen because they, too, were inferior.
Towards the end of his cross-examination, Luttrell,
when pressed to explain why he had not offered a job to
one of the discharged employees and had hired two new
employees, hinted at the real reason when he declared- "I
wouldn't consider that any of the men would want the job,
particularly after Mr Howard said that he was with the
men up on the hill " (Emphasis supplied ) What Luttrell
was saying in effect was that after Howard had refused to
proffered transfer to the oil service for fear that he would
be suspected of doublecrossing the employees who were
supporting the union he just assumed that all the
terminated deckhands in the harbor service would do
likewise! This was a remarkable assumption in itself but it
would have been all the more remarkable if Luttrell did
not in fact know that the harbor service employees were
supporting the union.
On more than one occasion in the course of his
testimony, Tarver protested that he had no animosity
towards unions, and that it made absolutely no difference
to him whether his employees supported a union. But his
employees themselves did not share, apparently, Tarver's
own view of his attitude towards unions, if one is to judge
from two incidents. One of these incidents involved Ray
Johnston's anticipation of his discharge because of his
union activity that has already been related. The other
incident involved Jack Belcher, who was a grocery order
filler and substitute boat operator in the marine supplies
service, and who was the uncle of James Belcher, one of
four deckhands in the harbor service What happened in
this instance was volunteered by Traver himself during his
direct examination. Shortly after his nephew's discharge,
Jack Belcher came to Tarver and told the latter that he
wanted to discuss his nephew with him. He told Tarver
that his nephew had had a lot of pressure brought on him
by the union but that he did not really want,any part of it,
"There is no support in the testimony of the respondent 's witnesses for
the contention made in the brief of counsel for the respondent that "the
pay for deckhands in the Oil Service and Supplies & Service company
were substantially below that of a deckhand in Harbor Service "
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that if Tarver would take him back he would
personally guarantee his conduct. According to Tarver, he
replied that he did not even know Jack Tarver's nephew,
that he had been let go simply because the harbor service
was being closed down, and that "his union activity or
lack of it had nothing to do with it." Tarver added,
further however, that if his nephew put in an application
for employment in the future it would be considered but
that he would do nothing that might make it appear that
he would reward somebody for disavowing the union.
Counsel for the respondent seek to reinforce Tarver's
protestations of lack of antiunion animus by a rather
curious argument of their own They argue that the
respondent had no occasion for indulging in any union
prejudice, bias or animosity because "there were and are
no unionized concerns in the Memphis Harbor serving and
servicing midstream the vessels and barges which move up
and down the river " But this is the classic situation for
the development of antiunion animosity. If the respondent
were unionized, and its competitors remained ununionized,
it would obviously be at a competitive disadvantage.
Finally, counsel for the respondent also call attention to
the fact, which they characterize as "interesting," that of
the five complainants directly involved in the discharges
"only too bothered to testify and Worley simply stated
that Embrey told him he was being discharged because the
Harbor Service was going out of business." If this is a
complaint, it is without a proper basis. While the burden
always rests on the General Counsel to prove
discrimination by substantial evidence, he is not under any
obligation to call as witnesses each and every alleged
discriminatee In the present case, it is apparent that no
purpose would have been served by doing so, since four of
the five complainants were, allegedly, discharged for the
same reason, namely the closing of the harbor service.
While the fifth complainant Scott was discharged for a
different reason, the testimony of Cole under whose
supervision he worked was more than sufficient to
illuminate the true reason for his discharge. Presumably,
counsel for the General Counsel called Edington because
he had been interrogated by Embrey, and he called
Worley in rebuttal to counter the false testimony of
Embrey with respect to Worley's failure to seek a transfer
to the oil service. It is hardly an accurate description or
summary of Worley's testimony to say that he "simply
stated that Embrey told him he was being discharged
because the Harbor Service was going out of business."
Actually, Worley's testimony was extremely damaging to
the respondent, since it established that when faced with
his discharge he did seek a transfer to the oil service.
Moreover, counsel for the General Counsel could
complain with greater justice of the failure of the
respondent to call as a witness a single one of the alleged
paragons who took the place of one of the discharged
employees But, obviously, this case must be decided by
weighing the testimony of the witnesses who were called
rather than the testimony of the witnesses who were not
called
IV. THE REMEDIES
In view of the broad scope of the respondent ' s unfair
labor practices , which include not only the coercive
interrogations of its employees but also discriminations
with respect to the hire and tenure of their employment, I
shall recommend a broad form of cease-and -desist order
designed to effect all the guarantees of Section 7 of the
Act.
Insofar as affirmative relief is concerned, the case of
Ben Scott, who was discharged from the oil service in
which the respondent is still engaged, must be
distinguished from the cases of William L. Worley, Lucky
L. Ellison, Jerry Roscoe Edington, and James C Belcher,
who were deckhands in the harbor service, which the
respondent closed in order to defeat the organizational
attempt of its employees
The case of Ben Scott presents no special problems,
and to remedy his discharge, I shall recommend by way of
affirmative relief, that the respondent offer to him
immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges previously enjoyed
by him, discharging, if necessary, any.new employee hired
subsequent to the date of his discharge in order to replace
him I shall also recommend that the respondent make
Ben Scott whole for any loss of pay he may have suffered
by reason of his discharge by payment to him of a sum of
money equal to the amount which he would normally have
earned as wages from the date of his discharge to the date
of the respondent's offer of reinstatement less his net
earnings during the said period. The amount of backpay is
to be determined in accordance with the formula
prescribed in F W Woolworth Company, 90 NLRB 289,
and interest is to be computed on the amount so
determined in accordance with Isis Plumbing & Heating
Co, Inc, 138 NLRB 716.
The problem in the case of the other discriminatees
arises from the fact that their jobs have been abolished as
a result of the closing of the harbor service. As the
operation of this service was unprofitable, and the
Respondent did intend, eventually, to go out of this
business, I shall not recommend that the Respondent be
required to resume its operation. However, if the
Respondent is unable to dispose of the Jeff T and the
Annilou, or is unable to dispose of them for adequate
considerations, it is possible that the respondent may
decide of its own accord to resume the harbor service
business In that event, I recommend that the obligations
of the Respondent with respect to reinstatement and
backpay in the case of Worley, Ellison, Edington and
Belcher shall be the same as in the case of Ben Scott The
same obligations shall exist also if the Respondent does
not resume the operation of the harbor service business
but jobs become available for deckhands in the oil service,
since they may obtain substantially equivalent
employment in that service, which is an integral part of
the Respondent's operations. In the event, however, that
no jobs are available, either in the harbor service, if it
should be resumed, or in the oil service, the names of the
discriminatorily discharged deckhands in the harbor
service shall be placed upon a preferential hiring list, in
the order of their seniority, and they shall be offered jobs
as they became available either in the harbor service or in
the oil service, and the obligations of the Respondent
towards these employees for backpay shall continue until
they have either been offered employment by the
Respondent, or they have obtained substantially equivalent
employment with another employer. However,
notwithstanding the failure of the four discriminatees to
secure substantially equivalent employment with another
employer, the backpay obligation shall terminate at such
time as the Respondent has disposed of the vessels and
equipment for the harbor service and it is fully apparent
that the harbor service would have been liquidated at such
time in any event. To take care of any contingencies that
cannot now be forseen, I recommend further that the
WATERWAYS HARBOR INVESTMENT CO.,,INC.
Board reserve the right to modify the backpay and
reinstatement provisions of its order.
CONCLUSIONS OF LAW
1. The various Waterways companies included in the
caption to this proceeding are, and at all material times
have been, affiliated business concerns with common
officers, ownerships and directors and have constituted a
single-integrated enterprise whose agents formulate and
administer a common labor relations policy for the said
Waterways companies.
2. The said Waterways companies are engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. National Maritime Union of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
4 By interrogating their employees coercively with
respect to their union activities and sympathies on
October 11, 12, and 13, 1968, the Respondents have
interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed to them in Section 7
of the Act, and have thereby committed unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) of the Act.
5. By discharging their employees, Ben Scott, William
L. Worley and Lucky L. Ellison on October 13, 1968, and
by discharging their employees Jerry Roscoe Edington and
James C. Belcher on October 14, 1968, the Respondents
have discriminated with respect to the hire and tenure of
their employment, and have thereby committed unfair
labor practices affecting commerce within the meaning of
Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended , I recommend that the Respondent companies
enumerated in the caption to this proceeding, their
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating their employees coercively concerning
their union activities or sympathies.
(b) Threatening to discontinue any of their operations if
their employees continue their union activities, or
otherwise threatening their job security
(c) Discouraging membership in National Maritime
Union of America , AFL-CIO, or any other labor
organization of their employees , by discharging any of
their employees , or in any other manner discriminating
against them with respect to the hire or tenure of their
employment , or any term or condition of their
employment.
(d) In any other manner interfering with , restraining, or
coercing their employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action in order to
effectuate the policies of the Act.
(a) Offer immediately to Ben Scott , William L Worley,
Lucky L. Ellison , Jerry Roscoe Edington , and James C.
Belcher reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges and make them whole for any
loss of pay they may have suffered by reason of the
discrimination against them , in the manner and to the
extent set forth in section IV of this Decision entitled
463
"The Remedies."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all
payroll records and other data necessary to give effect to
the backpay requirement.
(c) Post at its general office at Memphis, Tennessee,
copies of the attached notice marked "Appendix."' 7
Copies of said notice, on forms to be provided by the
Regional Director for Region 26, shall, after having been
duly signed by respondents' representative, be posted by
respondents immediately upon receipt thereof and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondents to assure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
Respondents have taken to comply herewith "
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words, "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate our employees coercively
concerning their union activities or sympathies.
WE WILL NOT threaten to discontinue any of our
operations if our employees continue their union
activities, or otherwise threaten their job security
WE WILL NOT discourage membership in National
Maritime Union of America, or any other labor
organization of our employees, by discharging any of
our employees, or in any other manner discriminate
against them with respect to the hire or tenure of their
employment, or any term or condition of their
employment.
WE WILL NOT in any other manner interfere with,
restrain or coerce our employees in their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection .
WE WILL OFFER to Ben Scott, William L. Worley,
Lucky E. Ellison, Jerry Roscoe Edington, and James C.
Belcher reinstatement to their former or substantially
equivalent positions without prejudice to their seniority
or other rights and privileges and make them whole for
any loss of pay they may have suffered by reason of
our discrimination against them.
All our employees are free to become or remain, or to
refrain from becoming or remaining members of any
464
labor organization
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WATERWAYS HARBOR
INVESTMENT COMPANY,
INC.
Dated By
WATERWAYS MARINE
SUPPLIES & SERVICE, INC.
(Employers)
WATERWAYS HARBOR
SERVICE, INC.
WATERWAYS MEAT
INVESTMENT CO
WATERWAYS MEAT CO.,
INC.
WATERWAYS OIL
INVESTMENT CO.
WATERWAYS OIL
COMPANY, INC.
(Representative ) (Title)
Note Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161