William B. Patton Towing Co.

National Labor Relations Board - Board Decisions

Dec 12, 1969

180 N.L.R.B. 64 (N.L.R.B. 1969)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William B. Patton Towing Company and Tex-Tow
Inc. and Inland Boatmen 's Union of the Seafarers
International Union of North America, Atlantic,
Gulf, Lakes & Inland Waters District , AFL-CIO.
Cases 23-CA-3102 and 23-RC-3170
December 12, 1969
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On April 9, 1969, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled
proceeding finding that the Respondent had not
engaged in the alleged unfair labor practices and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial
Examiner ' s Decision . The Trial Examiner further
found the Petitioner ' s (herein referred to as the
Union) objections to the conduct of the election in
Case 23-RC-3170 without merit, sustained certain of
the Employer's objections, sustained some and
overruled other challenges to ballots cast in that
election, and made alternative recommendations
that the results of the election be certified in the
event the revised tally of ballots shows the Union
has not received a majority of votes cast in the
election, but that should the Union acquire a
majority vote, the election be set aside and a second
election directed.
Thereafter the Charging Party filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof; the Respondent filed cross-exceptions' and
an answering brief to the Charging Party's
exceptions.
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 these cases 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 Trial
Examiner 's Decision , the exceptions and briefs, and
the entire record in these cases , and hereby adopts
the findings , conclusions , and recommendations of
the Trial Examiner except as modified herein.
'The Respondent excepts only to the Trial Examiner ' s failure to grant its
request for a continuance and an opportunity to prepare its defenses to the
amended complaint (the complaint was amended at the hearing by the
addition of Barrett as a discrimmatee ) contending that it was thereby
denied a fair hearing At the hearing the Trial Examiner made it clear that
the Respondent would be afforded additional time, if needed , to prepare
with respect to the amendment to the complaint ; the Respondent, however,
did not request additional time . As we agree with the Trial Examiner's
dismissal of the Barrett allegation on the merits , we find it unnecessary to
pass on the Respondent 's exception Nor do we, in these circumstances,
deem it necessary to pass on or adopt his discussion of the propriety of
permitting amendment of the complaint at the hearing (See Ace Drop
Cloth Co., Inc. 178 VLRB No 107).
The Objections to the Election
The Trial Examiner sustained the Employer's
Objections 6 and 13. Objection 6 alleges that the
Union "engaged in acts of bribery or financial
inducement by having made gifts of intoxicating
liquors, alcoholic beverages and other luxuries to the
employees as an inducement to have employees vote
for Petitioner in the election and/or as an
inducement to have employees reveal how they
voted...."
As found by the Trial Examiner, on August 16,
1968,2 Glidewell, a union representative, came on
board the docked BINION (the election on the
BINION was held on August 19) with some union
material and whiskey. Glidewell, Heaton, the mate,
and deckhand Orme became involved in a poker
game during which they partook of the whiskey.
Orme testified that Glidewell talked union and
asked them to join. It is not clear whether the Trial
Examiner relied on this incident as a ground for
setting aside the election. In any event we do not
believe that providing alcoholic beverages in such
casual circumstances should be construed as an
attempt to buy votes or warrants setting aside the
election.'
The second "whiskey incident" occurred on the
day of the election. According to Orme, before the
August 19 election on the BINION, Glidewell
approached Orme, and said that Captain Lawyer
had signed a union card and that he (Glidewell)
wanted to show the card to Orme; Orme replied
that he was not interested. Glidewell also told Orme
that the outcome of the election hinged on Orme's
vote.4 At the election the Union challenged Orme's
ballot on the ground that he was a supervisor. After
the election Glidewell, according to Orme, asked
him how he voted and said that if Orme gave him
this information Orme's ballot would not be opened
and the Company would not know how he voted.
During the conversation Glidewell mentioned that he
had two bottles of whiskey that he had not yet had
a chance to bring aboard.
The Trial Examiner found that Glidewell's
postelection conduct constituted grounds for setting
aside the election because it involved "the use, as a
calculated tactic, of a tangible gift of some value,
whiskey, .... to interfere with the Board's election
process, particularly the secrecy of the ballot of an
individual voter." The Trial Examiner noted that
while the whiskey was not actually produced
Glidewell clearly indicated its availability. The Trial
Examiner reasoned that if Orme told Glidewell he
voted for the Union and Glidewell believed him the
Union would not press its challenge to Orme's
'Unless otherwise indicated all dates refer to 1968
'See Wagner Electric Corporation , 167 NLRB No . 75, fn. 2
'We agree with the Trial Examiner 's finding that Glidewell 's attempt to
show Orme Lawyer's authorization card does not constitute grounds to set
aside the election, and therefore that Objection 9, which the Trial
Examiner considered together with Objection 6, is of no merit
1180 NLRB No. 16
WILLIAM B. PATTON TOWING COMPANY
ballot. On the other hand, if Orme indicated he had
voted against the Union or refused to reveal how he
voted ("indicating," according to the Trial
Examiner, "that he had voted against the Union")
then the Union would press its challenge to Orme's
ballot.'
In our opinion the above incident does not
constitute grounds for setting the election aside.
Initially, we note that the incident occurred after the
election. It is clear that such postelection conduct
could not have destroyed the laboratory conditions
for which the Board strives in the conduct of
elections, or, in fact, have influenced or affected
Orme's vote. Additionally, we note that Orme's
testimony concerning the whiskey was not only in
response to an obviously leading question but that
his answer does not evidence that the whiskey was
offered, if it were offered, as an inducement for
disclosing how he voted. Moreover, we are unwilling
on the basis of the minimal evidence adduced on
this point to adopt the reasoning and to draw the
numerous inferences which the Trial Examiner drew
in reaching his conclusion.6 In our opinion, this
incident does not warrant setting aside the election.
Accordingly, we will overrule Employer's Objection
6.
The Trial Examiner also found Employer's
Objection 13 to be grounds for setting aside the
election.'
The Trial Examiner found that some supervisors
were solicited by the Union (Captain Lawyer and
mate Heaton) and participated in and assisted the
Union in its campaign. Applying the principles
applicable to such situations, the Trial Examiner
found that the employees did not believe that the
supervisors were actively participating in the
Union's campaign because the Employer was in
favor of the Union, since the Employer had made it
clear that it was opposed to the Union. In spite of
this finding, however, the Trial Examiner concluded
The Trial Examiner' s finding is based entirely on the following
testimony elicited on direct from Orme
Q Would you tell us about your conversation with Mr Glidewell
after the election"
A Well, he asked me to tell him how I had voted , that if I would tell
him my vote wouldn't be opened and that the Company wouldn't know
how I voted And I just told him I didn ' t care if the Company knew how
I voted
Q Did he mention whiskey or anything)
A Yes, he said he had two fifths of whiskey that he didn't have a
chance to bring aboard yet
'For example , the Trial Examiner stated that if Orme refused to reveal
how he voted this would indicate he voted against the Union It is obvious,
however, that this is not the only possible inference to be drawn from such
a refusal, for among other things , it is possible that Orme believed a secret
ballot election was precisely that For this and similar reasons the Board
refuses to speculate on how an employee has voted or why a voter
responds as he does when questioned as to how he will vote or has voted
'Objection 13 alleges "that one or more of the Employer ' s supervisors,
without the Employer ' s knowledge or consent , initiated, instigated,
participated and/or assisted Petitioner ' s organizational activities Such
continuous , direct and substantial assistence given to Petitioner's
organizational activities by Employer ' s supervisors tainted the election and
thus deprived the employees of the right to an uncoerced and free
choice
65
that the laboratory conditions for an election are
adversely effected "when a union, as here, solicits
and secures supervisory help in the union campaign"
and constituted grounds for setting the election
aside.
In the circumstances of this case we are unable to
agree with the Trial Examiner's finding. Initially, we
note that applying the proper standards the Trial
Examiner found that the employees were not misled
by the supervisor's activity since the Employer had
made it clear that it was opposed to the Union.
Moreover, in our opinion, the Trial Examiner's
additional finding, upon which he sustained the
objection, that the laboratory conditions were
affected by the supervisors' (the captains')
participation appears without merit. In fact, it
appears that the supervisors in question did not
know or were not certain of their status until
August 6, 1968.8 The record reveals that until
August 6, the supervisors' (captains and mates)
thought they were eligible to become union members
and vote in the election." The Trial Examiner relied
on this very fact in dismissing an 8(a )( 1) allegation.
He found that "the relationship of Lawyer and his
men was more that of employees of the Company,
all of whom the Union was attempting to organize,
rather than. that of management and rank-and-file,"
and that Lawyer when talking to his men was
expressing his own view and that this is most likely
how the men understood it.
In our view the relationship (fellow employees
rather than management and rank-and-file) that the
Trial Examiner found existed between the
supervisors and their men in his discussion of the
8(a)(1) allegations applies with equal significance to
Objection 13. We believe the men themselves would
consider the above found relationship the same
regardless of whether the captains were speaking for
or against the Union. Given the relationship which
existed between the supervisors and their men, we
are of the opinion that the fact that some
supervisors participated in the Union campaign
neither influenced the results of the election nor
affected the laboratory conditions the Board seeks
to maintain . Accordingly, we shall overrule
Employer's Objection No. 13.
We agree with the Trial Examiner's findings with
respect to the challenged ballots and shall direct that
the ballots of Booth and Orme be opened and
counted. Having overruled the Employer's
objections, however, we will not, as did the Trial
'On that date the Stipulation for Certification upon Consent Election
was approved , captains and mates were excluded from the unit
'Thus Captain Lawyer, whom the Trial Examiner credited, testified, "I
thought I was supposed to vote too I didn't know any different I found
out later that just the deckhands and cooks were voting "
"Additionally , it should be noted that Patton, Sr , the Employer's
president , did nothing to clarify the situation , to which the Employer now
objects For according to Captain Lawyer, Patton, Sr . told him he (Patton)
could not discuss the Union with Lawyer, pro or con, and Patton, Sr
testified he told anyone in his employ who mentioned the Union that he
(Patton ) could not discuss it
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner , order the election set aside and a new
election held in the event the Union obtains a
majority after the challenged ballots are opened and
counted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
DIRECTION
It is hereby directed that the Regional Director
for Region 23 open and count the ballots of Ray Q.
Booth and Mike Orme , and thereafter prepare and
cause to be served upon the parties a revised tally of
ballots, including therein the count of the above
ballots. If, according to the revised tally of ballots,
the Petitioner has received a majority of the valid
ballots cast in the election, the Regional Director is
directed to certify Inland Boatmen's Union of the
Seafarers International Union of North America,
Atlantic, Gulf, Lakes & Inland Waters District,
AFL-CIO, as the exclusive bargaining agent for the
employees in the appropriate unit . If, according to
the revised tally of ballots, the Petitioner has not
received a majority of the valid ballots cast in the
election , the Regional Director is directed to certify
the results of said election.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The
above-captioned Union, herein referred to as the Union,
filed a charge against the above - named Company , herein
referred to as the Company or Respondent, on August 14,
1968. Seven named employees , Campbell, Barrett, Keeton,
Goodwin , Booth , Guillory , and Beard were alleged in the
charge to have been discriminatorily discharged . A "First
Amended" charge was filed by the Union on August 27,
1965, naming employee Hendry as a discriminatee in
addition to the previously named seven employees. A
"Second Amended" charge was filed on September 13,
1968, naming five discriminatees, Barrett, Keeton,
Goodwin, Beard and Hendry, out of, and instead of, the
previously named eight employees . A "Third Amended"
charge, filed October 17, 1968, reduced the alleged
discriminatees to four, Barrett, Keeton, Goodwin and
Beard . On October 22, 1968, by letter , the Regional
Director of the Board's Region 23, Houston, Texas,
advised the Union, with copy to the Respondent that the
Regional office had concluded that the Company had
violated the Act "only as to the discharges of Wade
Goodwin and William Beard . However , as there is
insufficient evidence of violation of Section 8(a)(3) as to
the discharges of Carl Barrett and O. F. Keeton, further
proceedings are not warranted as to these allegations. I
am, therefore refusing to issue complaint against the
Employer as to the alleged violations of Section 8(a)(3)
pertaining to - Barrett and - Keeton . My refusal to
issue complaint as to the non-meritorious matters alleged
as violations of the Act [Barrett and Keeton] does not
affect these meritorious portions of the charge as set forth
herein above." The letter then notified the Union of its
right to obtain review of the above action of refusing to
issue complaint regarding Barrett and Keeton by
appealing to the General Counsel of the Board in
Washington, D.C.
A complaint was issued by the General Counsel of the
Board by the Regional Director on November 7, 1968,
alleging acts of interference and coercion by Respondent
in the form of statements and threats in violation of
Section 8(a)(1) of the Act as well as the discriminatory
discharge of employees Goodwin and Beard in violation of
Section 8(a)(3) and (1) of the Act. On November 8, 1968,
the resolution of challenged ballots and objections to an
election filed by both the Company and the Union were
consolidated for the purpose of hearing with the
above-mentioned complaint proceeding.
Meanwhile, the Union, having obtained an extension of
the time for appeal from the Regional Director's refusal
to include Barrett and Keeton in the complaint, filed an
appeal from such action with the General Counsel of the
Board on November 16, 1968, with copy to the Regional
Director and the Company. By letter of December 5,
1968, the General Counsel of the Board denied the appeal,
with copies thereof to all parties. The said denial stated,
inter alia that "Insufficient basis existed to support a
finding that Barrett or Keeton were discriminatorily
discharged rather than that they failed to report for work
as scheduled on August 10 when their regular 10-day relief
period expired. It was noted that Barrett was admittedly
unavailable on the above date and that he was unable to
accept the next normal tour which began August 20,
because of his anticipated return to school about
September 1."
The case was heard in Houston, Texas, on December
18, 19, 20, 1968, with all parties represented by counsel.
At the inception of the hearing, counsel for the General
Counsel moved to amend the complaint by adding Barrett
as an alleged discriminatee , in addition to Beard and
Goodwin who had been in the complaint originally. The
General Counsel stated that the day before, in a trial
preparation session, one of the Respondent's discharged
supervisors had given evidence to the counsel for the
General Counsel relating to Barrett of which the region
had not previously been aware. It was apparently decided
at that time to amend the complaint at the hearing the
next day to include Barrett as a discriminatee. Counsel for
the General Counsel on the same afternoon before the
hearing advised Respondent's counsel of the
aforementioned plan to amend and advised him of the
general nature of the new evidence.
Respondent objected to the Barrett amendment of the
complaint at the hearing, pointing out that the Barrett
aspect of the charge had been dismissed by the Director
and that the General Counsel had upheld the Regional
Director on appeal. I allowed the amendment to the
complaint and the Barrett termination was fully litigated.'
Respondent made it clear that in proceeding to litigate the
Barrett matter, it was not thereby waiving its objection to
the amendment of the complaint regarding Barrett.
I have given further consideration to the amendment of
the complaint at the hearing to include Barrett and it is
'Respondent , at the time the amendment was permitted, requested a
continuance of the hearing . This was denied . Respondent was allowed to
defer cross-examination on the new evidence relating to Barrett and was
afforded an opportunity to request additional time if needed to meet the
Barrett aspect of the complaint.
WILLIAM B. PATTON TOWING COMPANY
now my opinion that he was in error in allowing the
amendment.
The nature of a charge under the Act has often received
the attention of the Board and the Courts. It is well
established that a charge is not a pleading but that it
serves to set the investigatory machinery of the Board in
motion.' A complaint may be broader than the charge,
including allegations not contained in the charge, and a
complaint under various conditions, may, of course, be
amended prior to the issuance of an order in the case.' It
has been held that the dismissal of a charge by a Regional
Director does not constitute res judicata and that a party
is not stopped from filing a new charge on the same
matter on which a complaint be issued.'
In the Star Beef case, above, a union had filed a second
amended charge which included an 8(a)(5) allegation.
Subsequently, because of the death of a key witness, the
union organizer, the Union believed that it would be
unable to establish the 8(a)(5) violation. The Union then
filed a third amended charge which contained no 8(a)(5)
allegation. At the hearing, the Board amended its
complaint to include a Section 8(a)(5) allegation. Both the
Board and the Court, in upholding the amendment to the
complaint, focused on the fact that the earlier charges had
never been withdrawn and were still before the Board and
were not superseded by the third amended charge.' As the
Court observed, the Board "was entitled to consider the
second amended charge as still before it for the purpose of
sustaining a complaint thereon."
The instant situation is not one where the charge
alleged Beard and Goodwin as discriminatees and the
General Counsel in the course of investigation discovered
that Barrett was also discriminated against and therefore
added Barrett to the complaint originally or by
amendment. Nor is it the Star Beef situation where viable
earlier charges had neither been withdrawn nor dismissed
and thereby served as a basis for the complaint allegation.
The fact that in the instant case there was an outstanding
viable charge as to Beard and Goodwin, in our opinion,
does not place the matter as one where the charge simply
served to set the Board's investigatory machinery in
motion and resulted in an amended complaint that
included Beard, Goodwin and Barrett. The charge and
amended charges had set the investigatory process into
action and as the result thereof a specific and definitive
action was taken by the Regional Director, namely,
dismissal of the charge allegation regarding Barrett. In
this region and in every other region of the Board, the
standard language and expression of a nonmeritorious
charge or a nonmeritorious part of an otherwise
meritorious charge by the Regional Director is that he is
refusing to issue a complaint on the charge or on the part
thereof which his investigation has found to be lacking in
merit. If this refusal to issue complaint on the charge or
on some part thereof is not appealed or, if appealed, the
appeal is denied, the charge or part thereof involved, in
our opinion, has been dismissed and is , for all practical
purposes, dead. Since a complaint must be based on a
viable charge, albeit the complaint need not be confined to
the charge if the investigation set in motion by the charge
has revealed an additional violation, we do not perceive
'N.L.R.B. v. Star Beef Co.. 193 F.2d 8 (C.A 1).
'N.L.R.B. v. Dinion Col! Co., 201 F.2d 484 (C.A. 2).
'Jersey City Welding & Machine Works, Inc., 92 NLRB 510
'Although not part of the factual picture in the case , it is also quite clear
that not only was there no withdrawal of the earlier charges but there was
also no dismissal of such charges.
67,
that in the instant case that the charge as to Beard and
Goodwin can serve as a vehicle for Barrett being added to''
the complaint when the portion of, the'' charge involving
Barrett was specifically dismissed and the dismissal was
sustained by the General Counsel. The charge, as filed
originally, had not only set in motion the Board's
investigatory process but had focused that process
specifically on Barrett who, with others, was named in the
charge. And as the result of the investigation, the Barrett
part of the charge was dismissed by the Regional
Director. The General Counsel affirmed the dismissal on
appeal. The charge as to Barrett was dead.
We now consider the possibilities- regarding (1) the
revival or (2) the new birth of an allegation that Barrett
had been discriminatorily terminated on August 10, 1968.
We use the term (1) revival with respect to the possibility
of resurrecting and reinstating that portion of the charge
that had been dismissed, to wit, the part of the charge
asserting that Barrett had been discriminated against and
illegally terminated. The term (2) new birth refers to a
new charge alleging what had been alleged in the portion
of the old charge that had been dismissed. The last named
possibility presents no problem. A new charge alleging an
illegal termination of Barrett on August 10 could have
been filed at any time subsequent to the dismissal and
affirmation thereof on appeal of the original Barrett
allegation in the prior charge and prior to the amendment
of the complaint on December 18. Since, presumably, the
new charge would be in the context of the newly
discovered evidence which the counsel for the General
Counsel would use and used as justification for amending
the complaint, the new charge would be viable and would
furnish the necessary basis for the amendment to the
complaint. However, a new charge was not filed. This
leaves us with the question of a possible revival or
reinstatement of that portion of the prior charge
concerning Barrett that had been dismissed.
Revival or reinstatement of a charge or a portion of a
charge that was dismissed and affirmed on appeal presents
some problems. Aside from a situation where the
dismissal was attributable to fraud or concealment of a
fraudulent nature regarding evidence, it is doubtful, we
believe, that a Regional Director or anyone else can revive
or reinstate a dismissed charge or a dismissed portion
thereof. The critical obstacle is not necessarily the
6-months statute of limitations in Section 10(b) of the
Act. The basic problem will appear if we take two
illustrations. In one case, the dismissal and the attempted
or contemplated revival and reinstatement of the
dismissed and unappealed or dismissed and affirmed on
appeal charge or portion thereof are all within the
6-month period and are premised on newly discovered
evidence.' In the other case, the attempted revival or
reinstatement of the dismissed charge or part thereof
takes place 8 months, or t year or 2 years after the
original dismissal and also on the premise of newly
discovered evidence. It is doubtful if anyone would
contend that revival or reinstatement could take place in
the last mentioned situation. And the reason for such a
conclusion would not be the 6-month statute of
limitations, for, if a dismissed charge or part thereof can
be revived or reinstated it would be the original and
timely-filed charge that was being revived or reinstated,
notwithstanding that the revival occurred many months or
years after the dismissal. Quite apparently the critical
'We are , of course , assuming no fraud element in the dismissal
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factor is whether a dismissed charge or position thereof
can be revived or reinstated at any time.
If reinstatement or revival is permissible then it can be
done at any time and the entire concept of a charge or
Section 10(b) and the 6-month period can be nullified. It
is our conclusion that absent the involvement of fraud or
related conduct in the dismissal, a dismissed charge or
portion thereof, after affirmance on appeal or absent an
appeal, cannot be revived or reinstated. Consequently,
since no new charge with respect to Barrett was filed after
the dismissal, including at the hearing, it is our opinion
that the amendment to the complaint at the hearing was
not permissible and that the Trial Examiner was in error
in permitting such amendment. We therefore reverse our
ruling thereon and recommend the exclusion of the Barrett
allegation from consideration. However, in view of the
fact that this ruling is based on a procedural point, we
shall consider the litigated Barrett allegation on the merits
in the event that our procedural ruling is not upheld.
Overall, we believe that this approach will prevent undue
delay in the ultimate disposition of the case.
1. JURISDICTION
Respondent Patton and Tex-Tow are Texas
corporations that at all relevant times have maintained
their office and principal place of business at
Friendswood, Texas. They are engaged in the business of
providing tugboat services and the hauling of barges.
Patton operates three tugboats, the Industrial State; the
C. G. Andler, and the Big D. Tex-Tow is a holding
company for the tugboat Jack Binion and two barges, the
George Jr. and the David. The two companies are a single
integrated enterprise and affiliated business with common
officers, ownership, directors and operators; a common
labor policy is formulated and administered by the
directors and operators.
During a representative 12-month period, Respondent,
in the course of its business operations, performed services
in excess of $50,000 for Dow Chemical Company and
other firms in Texas, each of which purchased goods, and
services in excess of $50,000 directly from points outside
the State of Texas.
Respondent is an employer engaged in commerce
within the meaning of the Act. The Union is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Jones, an organizer for the Union, testified that
organizational activity among Respondent's employees
commenced in March 1968. Since the evidence in this
record relates to events in the latter part of July and
August, the pre-July union activity is not known.
Patton, Sr., is president of both companies and Patton,
Jr., is general manager of Patton and vice-president in
charge of operations of Tex-Tow. Both Pattons participate
actively in running the business.
Each tugboat has its own crew and the crew relates to
that particular boat and there is little or no interchange
between crews on different boats. A boat crew usually
consists of a captain, relief captain, mate, cook and two
deckhands. The first three of the foregoing are the officers
or "front end men." They generally rotate with only two
being on board at any one time .' The deckhands are
relatively unskilled men, who, as far as steadiness or
continuity of employment are concerned, are itinerant in
habit. The pay for a deckhand is $16 per day plus 10
percent bonus or $18 on a large boat. Their normal tour
of duty on a boat is 20 days on and 10 days off.
Sometimes a man will continue beyond his normal 20
days without relief, either because he needs the money or
for some other reason. Although not paid during the 10
days off, the employee is carried as an employee and
normally can be expected to commence a new 20-day
period after the expiration of his 10 days off. However,
the return to work after 10 days off is not automatic. In
most instances, the deckhand will contact the Pattons near
the end of his 10 days off to see if and when and where he
is to report back to the boat. If the man or men are in
Houston, for instance, when they call and Respondent
tells them he needs them on the boat and the boat at the
time is docked in San Antonio, Respondent will transport
them to San Antonio by car. By the same token, if a man
is relieved at Beaumont, for instance, Respondent will
furnish transportation back.
Respondent itself may initiate a telephone call to a man
if it has an opening on a boat This is generally confined
to what the Respondent considers "good" telephone
numbers, i.e. a number that through past experience
Respondent considers reliable as a means of contacting
the man. Some telephone numbers that Respondent may
have are apparently somewhat uncertain such as bars or
non-permanent abodes. Men call Respondent at various
times seeking employment. If nothing is available at the
time, Respondent enters the name and telephone number
in a book. If subsequently an opening occurs, Respondent
will try to contact the most recent call-ins first. This is
based on the belief or experience that the earlier callers
have become unavailable for one reason or other and that
the chances of finding a ready man is greater among the
most recent call-ins. The boat captains are in telephone
communication with the Pattons on a daily basis, having
radio telephone or some such method available on the
boats. The captain advises the home offices of upcoming
crew reliefs for various crew members at different times or
will advise that a crew member although due for relief
wishes to ride beyond his 20 days.
Turnover among employees is substantial. The turnover
arises not only at the end of normal tours of duty or off
time but during a 20-day tour a man may simply leave the
boat at some port and fail to return. This is not
uncommon. Patton, Sr., testified that the help situation at
times is such that he will hire a "warm body."
The Terminations
Barrett was a young man, a student, who first went to
work for Respondent during his summer vacation in 1968.
His testimony indicates that he had telephoned Patton,
Jr., about a job and he was hired on June 14. He went to
work on the tugboat Andler, as a deckhand under Captain
Lawyer and worked for 4 or 5 days until the Andler hit an
obstacle and was sent to the shipyard for repair. The
repair took about 2 weeks. Patton, Jr., telephoned Barrett
at his home in Houston on July 4 and Barrett returned to
work on the boat. He continued to work on the boat until
July 31. Shortly before July 31 he told James Patton,
Respondent's port engineer , that he would like to be off
for 10 days and then come back for 20 days before school
started.' Patton said that this would be all right. On July
31, when Barrett got off the boat, he told Patton, Jr.,
'The mate is sometimes in this work referred to as the pilot He is,
however, not a pilot in the usual sense in which that term is used on the
Mississippi or on deep water vessels
'Patton, Sr , has two sons, William Patton, Jr , referred to herein as
WILLIAM B. PATTON TOWING COMPANY 69
substantially the same thing as he told James Patton and
Patton, Jr., expressed acceptance of what Barrett said
about being off for 10 days and then returning for 20 days
before school started
Prior to leaving the boat on July 31, Barrett states that
he had signed a union card at Freeport while the boat was
docked about July 14 or 15. Jones, the union organizer,
had come to the dock with some union literature and
cards and solicited signatures on the latter Present at the
time was another deckhand referred to by Barrett as
Charlie, plus the mate and Captain O'Dell.' O'Dell signed
a union card but there is no evidence one way or the other
as to whether or not the mate and "Charlie" did so10
While on board the boat around July 23, Barrett told
Booth that his (Barrett's) father had retired after 20 years
in the Union and that the Union would raise the pay and
secure more benefits Booth said the Union would not
help "us" because it would not get the raise and the
Union would be just taking "our" money. During the
conversation Barrett states that he told Booth that he had
signed a union card
Another conversation between Booth and Barrett took
place about July 27 when each restated in substance their
views of July 23. Barrett also states that he had talked to
Booth and the mate asking them to sign union cards
About July 29 Barrett mentioned to Booth his (Barrett's)
efforts to have the cook, Booth's brother, sign a card and
that the brother had signed
Heaton had been employed as a mate or pilot by
Respondent He was unable to remember when he started
but on that day he states, while on the way to the boat,
Patton, Jr , told him that they had been petitioned by the
Union and the Union was trying to get them to go
Union." Heaton states that Patton, Jr , made no further
comment
About August 3, Heaton was relieved by the regular
mate who had returned to duty. After being thus relieved
Heaton had a conversation with Patton, Sr., in the
company office According to Heaton, Patton, Sr , told
him the Union was trying to organize and pointed out
why a union "wasn't right in a business like that." Heaton
states, "I asked him myself how many men was eligible to
vote, you know, and he had a list of men, you know, that
was eligible to vote, you see." Heaton testified that
Patton, Sr , did not exactly ask about each man on the
list but that he "was just naming each man . and
wondering if he was going to be a union man or be a
co npany man or what . . he didn't know himself, he was
just using his own knowledge, you know, in that "
Heaton's testimony does not reveal that Patton, Sr , said
or did not say, regarding any employee, that the latter
was or was not for the Union or the Company, or what, if
anything, Patton, Sr , believed or surmised regarding any
individual '= The testimony and the lack of testimony in
the foregoing words indicate that Patton, Sr., was simply
ruminating or "wondering," as Heaton said, about where
Patton, Jr , and James Patton
'Although Lawyer was captain of the Andler when Barrett was first
employed, Lawyer had completed his tour of duty and had been replaced
by O'Dell Booth replaced O ' Dell as Captain about July 20
"Heaton, who was the mate in the latter part of July was evidently a
union adherent Heaton testified that in the middle of August, when
Lawyer was again captain of the boat , Heaton and the mate were
discussing the Union Lawyer turned around and said , "' I gather you are
all for the Union ,' and we told him, 'yes' "
"Since the Union filed its petition for certification on July 22, 1968, the
conversation probably took place in the latter part of July
the men stood in the union issue and "didn't know
himself " Nor does Heaton's testimony indicate that he
himself supplied or was asked for information regarding
the men's union sentiment.
The two names of employees that Heaton could recall
as having been mentioned on this August 3 occasion,
above, are those of Goodwin and Barrett, both alleged
discriminatees " On direct examination, Heaton first said
that Patton, Sr., in the course of reading the names on the
list, when he mentioned Goodwin's name, said that he had
been terminated. The General Counsel immediately
focused on this answer in his next question-
Q He said that he had been terminated?
A I think, I believe that he had been terminated or
quit or what. I don't remember "
At another point in cross-examination, Heaton said, "I
think that he [Patton, Sr.,] was using the words that he
was terminated.""
According to Heaton, as Patton, Sr., was mentioning
the names of employees on the list, Heaton recalls that
when Barrett was mentioned, he, Heaton, said, "He is
going back to school." Patton, Sr., had made no comment
regarding Barrett when Heaton volunteered this remark.
After Heaton made the above statement, Patton, Sr.,
turned to his son James who was in the office and said,
"Well, we don't have to worry about him anyway" This
was all.
Patton, Sr , in his testimony, states that during the
conversation in the office with Heaton they talked about
Heaton's uncle who was a personal friend of Patton, Sr.,
they talked about the necessity of Heaton's securing a
tankerman's certificate since Respondent wanted all its
officers to have such a certificate; they discussed the fact
that Heaton had had to relinquish his seaman's papers
because of a narcotics violation and Patton, Sr , offered to
intercede with the Coast Guard to restore the papers,
nothing was said about a list of eligible voters or about
Goodwin, Heaton asked him if he knew that Barrett was
not going to be on the boat, Patton, Sr., asked what he
meant and Heaton said that Barrett was going back to
school. Patton, Sr , testified that he did not know why
Heaton mentioned Barrett but presumes it was to enable
the Company to secure a replacement for Barrett
"Heaton states that Patton, Sr , mentioned the names of the eligible
voters "but he didn ' t comment on it, you know "
"In August 1968, which was, of course , prior to the time of the hearing,
Respondent had discharged Heaton . Heaton is the witness who the General
Counsel saw the day before the hearing and it is his testimony that was
cited as the basis for the amendment of the complaint to include Barrett as
a discrimmatee
"As we shall see, the critical element in Goodwin 's case is whether he
had been terminated, as the General Counsel contends , or whether he had
quit, as Respondent asserts
"Aside from the uncertainty of the witness as to the word used by
Patton, Sr , the exact word used on August 3 would not necessarily be
determinative . Even if Goodwin had quit on July 31, the Company
thereafter , and on August 3, considered him a terminated employee
because he had previously quit What was the subject of rumination on
August 3 was the union or company sentiment or vote potential of eligible
voters A previously discharged employee could be considered terminated
as far as voting eligibility was concerned and an employee who had quit
and was therefore no longer an employee could be described as terminated
Or, of course , if Patton , Sr , said that Goodwin was terminated it could
also indicate that he had been discharged rather than that he had quit In
any event , from Heaton's testimony we are not prepared to find that
Patton, Sr , said terminated and not quit or vice versa , since Heaton
himself was decidedly uncertain and said, in fact , that he did not
remember
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although this and other credibility issues in the case are
not easily resolved, I credit Heaton's testimony previously
described. We credit Patton, Sr., that the topics not
mentioned by Heaton were also discussed. We believe it
more plausible that Barrett was mentioned in the context
described by Heaton than that his name came up out of a
blue sky for no apparent reason as described by Patton,
Sr
Returning now to Barrett himself, we find that,
according to his testimony, he was in San Antonio on
August 9, Friday San Antonio is about 200 miles from
Houston and Barrett lived in Houston with his mother.
The company office is in the Houston area In San
Antonio, Barrett was staying with friends. When he had
gone there or how long he had been there does not
appear Barrett was due to be back at work or available
for work on August 10.
Barrett states that on August 9 he telephoned his
mother, Louise Blair, in Houston, calling from San
Antonio. He asserts that he told her to telephone Patton
on the morning of August 10 and inquire what time
Barrett was supposed "to be back up there to work and
where I [Barrett] was supposed to catch the boat." He
also states that he told his mother "to phone me back and
tell me when I was supposed to get down there and come
to work " His mother did not telephone him on August 10
or, as far as appears, at any time in the days immediately
following August 9 There is no evidence that Barrett
called his mother on August 10 or at any other time
thereafter to find out about his job situation or when he
was to be at work. He states that he had no conversation
with his mother on August 10, but that he left San
Antonio about 9 p m., on August 10 to return to Houston
Mrs. Blair testified that her son called her from San
Antonio on August 9 and told her to telephone Patton on
the morning of the 10th "and find out what time he had
'to come and neet the boat'; [and Barrett told her] 'If I
am supposed to be there early, [on August 10] call me
back and I will be there, if not [if I am not supposed to
be there early], I will come hone in the morning [of
August ll].' Mrs. Blair states that she called "Mr.
Patton" the next morning, August 10. Although she did
not testify as to what she said to Patton initially, it can
probably be implied that she relayed her son's message,
above She states that Patton told her that the Company
had hired a replacement for Barrett and did not need him
anymore inasmuch as the Company understood that
Barrett was going back to school Mrs. Blair states that
she pointed out that her son was not going back to school
until September 3 and had understood that after his 10
days off, he would return to work on August 10 and work
20 days until September 1. Patton said he no longer
needed Barrett, he had already hired a replacement.
Although Mrs. Blair had not called back on August 10
to tell Barrett when he was to report to work, as he had
requested her to do, he did not call her again to find out
what the situation was. Nor did Mrs Blair call her son
although they both were aware and had operated on the
premises that August 10 was the day when Barrett's 10
days off expired and that he expected to return to work on
the 10th. In this rather strange situational posture, the
next move in the picture is described by Barrett He states
that he left San Antonio about 9 p.m , on August 10 to
return to Houston Barrett testified that on Sunday,
August 11, he telephoned Patton, Jr , at the company
office. The witness said several times that it was August
11 when he telephoned but, in the course of his testimony
he displayed some uncertainty At one point he said that
he thought that he was in San Antonio the first part of
the week and that he called Patton, Jr., about the first of
the week "about a Tuesday or something like that I don't
know."' 6 In any event, Barrett states that he told Patton,
Jr , on the telephone that his mother had called Patton,
Jr , the day before and had been informed that the
Company had understood that Barrett was not coming
back to work. Barrett pointed out that he had previously
informed the Company that he was planning to return
after his 10 days off and Patton, Jr., had told him at the
time that he would put him back on a boat Patton, Jr.,
according to Barrett, said that he would see about maybe
putting him on another boat but this was never done
Patton, Sr , testified that on Friday, August 9, he was
in the office. Patton, Jr., was absent. Barrett's name was
on a list in the office showing that he was to go on board
as a deckhand on August 10. Barrett's telephone number
was there " On the evening of August 9, Patton, Sr.,
states that he telephoned Barrett's number but there was
no ans ver. The next morning, August 10, Patton, Sr.,
states that Patton, Jr , called the Barrett number but there
was no answer The Pattons then secured another
deckhand because Barrett was not available Then, about
Tuesday, August 13, Patton, Sr., states that he received a
telephone call from a woman who said she was Barrett's
mother She said that her son was out of town and had
been away over the weekend and that he had called her
from out of town to ask her to call Patton to see about
going back on the boat. Patton, Sr., states that this
woman did not indicate when Barrett would be back in
town. His reply to her was that he was sorry but Barrett
was supposed to have gone out on the boat last Saturday
(August 10) and that he had tried to call him and then
had. hired a replacement The woman remarked, when he
mentioned having tried to reach Barrett, that, "we were
closed yesterday" and she said something about the
telephone out in the front or the back or something like
that Patton, Sr , states that he did not understand any of
these references since he knew nothing about the house or
anything about Barrett's mother He told the woman that
it was not "yesterday" that he had tried to reach Barrett
but that it was Friday.
In order to understand some of the foregoing, the
following evidence must be taken into consideration.
Barrett testified that there are three telephones in his
mother's home. One is in his mother's bedroom; one in
the kitchen, and one in the beauty shop that his mother
operates in the house " Whether there are three telephone
listings or one telephone with three extensions does not
appear. In addition to his mother, Barrett states that his
stepfather and grandfather live in the house. Mrs. Blair
testified that she was home every day during the period
involved in this case and that her "stepfather" lives at the
house "and he never leaves the place." She works in her
beauty shop Tuesday through Saturday. If, as Patton, Sr.,
states, Barrett's mother called him Tuesday, August 13,
and during the conversation mentioned that she was closed
"yesterday" by ways of explanation of why Patton had
been unable to reach Barrett (she assuming that Patton
had called on Monday), then there is some
"Although, of course, Sunday is the first day of the week, many people,
at least colloquially, refer to Monday or Tuesday , possibly Wednesday, as
the first part of the week
"Other evidence indicates that the Company had Barrett ' s correct home
telephone number
"His mother operates the shop without employees
WILLIAM B. PATTON TOWING COMPANY 71
understandability However, since, as we have seen, the
Patton's assertion is that they called Barrett Friday
evening and Saturday morning, August 9 and 10, and,
received no answer from this fairly well wired and fairly
populated house, the problem of resolving the credibility
conflict of whether the Pattons ever telephoned the house
and when Mrs Blair telephoned the Pattons, Saturday,
August 10, or Tuesday, August 13, remains
Patton, Jr., states that his father told him that he had
tried unsuccessfully to reach Barrett by telephone on,
Friday, August 9 Patton, Jr., states that he himself called
on August 10 without success Patton, Jr , states that he
remembers Sunday, August 11, because it was his
birthday and he was not in the office He had no
recollection of a telephone conversation with Barrett on
that day He also remembered having gone to a specific
football game on August 12 and that up to that point he
had no knowledge of any contact between Barrett and the
Company. Patton, Jr., had hired a replacement for Barrett
when the latter was not available on August 10 Barrett
telephoned Patton, Jr , according to the latter, on
Wednesday, August 14 and said that he had dust gotten
back to town and that he was interested in getting back
on a boat. Patton, Jr., replied that since Barrett had been
out of town over the weekend he had hired someone else.
Then Barrett asked about the possibility of making a
10-day trip before he returned to school and Patton, Jr ,
said that if such an opening occurred he would be glad to
call Barrett
The evidence with respect to Barrett is not easily
resolved since there are elements in the testimony of both
the General Counsel's witness and those of Respondent
that affect the credibility of each version.
The picture of Barrett as available and ready to return
to work on Saturday, August 10, is less than clear. He
was admittedly in San Antonio with friends at least on
Friday and Saturday Since he was not working and was a
student on summer vacation at the time, we can
reasonably infer that he was in San Antonio for pleasure.
In context, the distinct possibility exists that someone thus
situated is spending the weekend where he is and plans to
return home after the weekend is over. If, as was the case,
Barrett knew that he was scheduled to return to work on
Saturday, August 10, but had no knowledge of whether he
was to report early that morning or at noon or evening or
possibly the next day, the normal expectancy, in our view,
would be that he would be in contact with the Pattons, the
Company, on August 9, if he was actually available and
ready for work on the 10th. Since Barrett in effect alleges
that he was undertaking to contact the Pattons about the
time he was to report, a direct call from Barrett to Patton
on August 9 would appear to be logical. But, instead of
this, Barrett and Blair assert that Barrett chose to make a
long distance call to his mother instead of to Patton. Both
the mother and the Company were in approximately the
same Houston area Moreover, admittedly, it is not
claimed that Barrett, in calling his mother on the 9th,
asked her to contact the Pattons on the 9th and then call
her son on that date to advise him when and where he was
to report on the 10th. It is asserted that Barrett instead
told his mother on the 9th to call Patton on the 10th, not
on the 9th, and that she should then, on the 10th, call
Barrett back and tell him when he was to report It is
difficult to see how, since it was clearly one possibility
that the reporting time on the 10th might be early in the
morning, how Barrett in San Antonio could believe that,
after his mother called Patton on the 10th and then called
Barrett , that the latter could negotiate some 200 miles in
time to report But stranger still is the fact that the
mother did not call her son at all on the 10th to report the
situation and Barrett, although allegedly poised to go to
work while 200 miles away, did not call his mother back
and was content to remain in the dark about why his
mother did not call or what the job situation was.19 If
Barrett interpreted the lack of a call from his mother as
indicating that he need not report early on the 10th, we
fail to perceive why he was content to write off the
possibility of a later reporting time on the 10th. But this is
what he did since he testified that he left San Antonio
about 9 p.m , on the 10th This too is rather strange that
a young man sojourning with friends in a distant city
would leave that city on a Saturday night when, for all he
knew, there was no reason to leave on Saturday rather
than at the end of the weekend
Because of what I regard as implausible aspects in the
Barrett-Blair testimony, I am not prepared to credit this
version of events in preference to that of the Pattons. The
Pattons' version is in many respects more credible but
their testimony regarding two unanswered telephone calls
to Barrett's home on August 9 and 10 has given the
Examiner considerable concern Considering the particular
house and its occupants it seems possible but improbable
that no answer would have been received on Friday
evening or on Saturday morning This uncertainty about
the Pattons' testimony lends no vitality to the basic
version of Barrett and Blair but may actually leave the
posture as being one where I am unable to conclude
exactly what did take place In such a posture, the
complaint allegation must fail since the General Counsel
has the burden of proof and, in our opinion, he has not
established by anything approximating a preponderance of
the evidence that Barrett was available for work on
August 10 and that Respondent discriminatorily
terminated him or failed to recall him 20
Goodwin and Beard Goodwin testified that he had
worked on boats and then was away from such work "for
quite a while" before he resumed As far as appears he
had never worked for Respondent previously He called
"Blair, who testified after Barrett, whose testimony about his
instructions to his mother about calling him was unqualified , testified that
she was to call her son if he was supposed to report early Her testimony
would indicate that she was content to not inform Barrett of what Patton
had told her although the Patton message, as she described it, would
obviate the need of her son rushing back to Houston before the end of the
weekend.
"It is not essential when I am not satisfied that the General Counsel's
witnesses have given a correct version of events and when I also entertain
some doubt about Respondent ' s version, that I come forward with a
complete version of my own, particularly when I am uncertain as to what
actually did occur Thus, it may be that Blair telephoned the Pattons on
August 10 to report that Barrett was in San Antonio but would be back
early in the week and would like work at that time But neither
Barrett-Blair nor the Pattons so testified It may be that the Pattons did
not call Barrett on August 9 or 10 and that Blair or Barrett did not call
the Pattons until August 13 or 14 but the witnesses did not so testify
Heaton's testimony that on August 3 he told Patton , Sr , that Barrett was
returning to school and was not coming back to work and that Patton, Sr ,
said we do not have to worry about him, is not particularly helpful It may
increase the likelihood that Barrett was not called on August 9 or 10 but
that fact could be attributed to what Heaton had told Patton on August 3
True, in the end of July, Barrett had told James Patton and Patton, Jr ,
that he would return to work but the latest intelligence from Heaton, who
had been on the boat for a period of time with Barrett, was that Barrett
was not coming back and this report was to Patton , Sr , whose
information , therefore , on August 3, from a shipmate of Barrett was,
without qualification , that Barrett was not coming back If Patton, Sr,
was pleased to receive such information because Barrett was active in the
Union, this circumstance is not illegal.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patton, Jr , and was hired as a deckhand on July 22,
1968 The captain on the boat, the Binion, was Lawyer,
the other deckhands were Taylor and Beard, and the cook
was Hendry. Goodwin states that he thinks that Jones, the
union organizer, came aboard some days after July 22,
when the boat was near some bridge Goodwin was off
watch and asleep at the time. When he got up he saw
some booklets and he asked Taylor where they had come
from. Hendry, the cook, and the other deckhand, Beard,
were also present Taylor said that a "guy" from the
Union had left them and some other union material but
that Taylor had thrown the latter overboard because the
captain did not like the Union Goodwin states that he
then stated that he thought that it should be up to the
men and not to the captain. At a later point the witness
said that on the aforementioned occasion he also said that
personally he was for it, the Union The foregoing
conversation with fellow employees is the extent of
Goodwin's union activities shown in the record prior to
July 30, 1968, and there is no evidence of Respondent's
awareness of the foregoing. Goodwin also testified that he
did not sign a union card.='
Some days after the foregoing incident, the tugboat
arrived at Lake Charles, a routine port stop It was
probably July 30 when the boat arrived. According to
Goodwin, "We came into Lake Charles and Mr Lawyer
came up and said, 'They are sending a relief over for you'
and I said, 'Well, I haven't even been on half of my time,
what is the problem' and so [he] just turned around and
walked off."=r Goodwin said that Lawyer did tell him that
the Company would transport "me back to Houston.""
The witness also stated that he thought he might have said
that if he was being shafted that he was not going to stick
around Goodwin states that he then went ashore and
telephoned his wife to see if she would pick him up and
take him back to Houston. When he learned that she
could not, he went back on board and sold his sea bag to
Taylor in order to get bus fare. He and Beard left Lake
Charles by bus.
After returning home, Goodwin states that he called
Patton, Jr , about "my job and my check." Patton, Jr ,
told him to "hang loose" and he would give him a
"buzz" A day or so later Goodwin received his check in
the mail He states that he called Patton, Jr , and asked
"what is going on')" and Patton, Jr , said, "You know
what is going on"; Goodwin then said, "You mean this
business about the Union" and Patton said, "Well, yes,
you know what I am talking about now." Patton, Jr ,
again told him to "hang loose" but Goodwin has not been
recalled
The foregoing was Goodwin's testimony in the first day
of the hearing In our opinion, without setting forth our
overall conclusions at this point, it was the gist of the
testimony that when the boat came into Lake Charles,
Lawyer came up to him and told him that he was relieved.
Beard is not mentioned in the context. However, since
subsequent to Goodwin's initial testimony, there was
testimony of Lawyer and Beard as to events at Lake
Charles, Goodwin was recalled on the last day of the
hearing He then testified that the barge had been tied to
"After the severance of his employment with Respondent around the end
of July, Goodwin was the union observer at the Board election about the
middle of August.
As we have seen, the normal tour was 20 days on and 10 days off
Goodwin had been on about 8 days
"Lake Charles is approximately 141 miles from Houston Company
,practice was to transport the men to the boat when they were to board it
at a particular port and to transport back the men who were relieved
some trees and that later he and Beard untied the barge
and moved it to the dock, with Lawyer being at the wheel
of the tugboat during the maneuver and Orme was on the
dock After this, according to Goodwin, Lawyer told
Beard and Goodwin on the bow of the tugboat that they
were relieved He also states that, later, when he returned
for his things and those of Beard he had no conversation
with Lawyer Although, Goodwin does not fix the time, it
otherwise appears that the Binion and its barge had come
into Lake Charles in the forenoon and the final moving of
the barge from the trees to the dock was sometime that
evening
Beard's testimony is as follows: He commenced
working for Respondent in early June 1968 on a 10-day
trip relieving someone else After this 10-day trip, he was
relieved. Patton, Jr , called him back to work on July 3 on
the Binion. The General Counsel asked his witness
Q. And while you were working for Patton, did you
ever have an occasion to sign a union authorization
card?
A Yes, I think it was about the 23rd of July. Leroy
Jones came on board.
Beard states that Goodwin, Taylor and Hendry were also
present when Jones came aboard with some union cards
and literature. Jones told them that, if they were
interested in having the Union, they should fill out the
cards and give them to the captain, Lawyer " The General
Counsel then asked Beard
Q. Did you fill out the card')
A No, sir
Q You didn't fill out the card`'
A No.
Q. Did you ever sign a card, an authorization card')
A. No, sir.
It is apparent that Beard was either contradicting what
he had just testified previously about signing a card or he
was not, or that whether or not he signed a card cannot
be determined. On close examination, it will be seen that
when Beard was asked if he ever had "an occasion to sign
a union authorization card," his affirmative answer, yes,
when Jones came aboard on July 23, meant that, yes, he
did have an "occasion," an opportunity, to sign a card at
that time. He was not saying, evidently, that he had in
fact availed himself of the occasion or opportunity to sign
This is clear from the direct questions and answers cited
at the end of our preceding paragraph where Beard stated
unequivocally that he had never signed a union card
After Jones had thus come aboard and had left the
boat, Beard states that he went to Captain Lawyer and
asked him about the Union. Lawyer said that when
"they" went union, they cut the crew down and imposed
more work and, when docked, you could not get off the
boat for cigarettes and such. The General Counsel then
asked
Q Did you say anything Do you recall whether or
not you said anything. Did you say anything about the
Union?"
A. I don't believe that I did.
About five lines later, the General Counsel asked-
Q Do you recall whether or not you said anything
about how you felt about it?
"Jones testified to the same effect, explaining that'he considered Lawyer
a good union man
"Being asked twice whether he said anything at all is certainly a broad
enough question and quite understandable Then the question whether he
said anything about the Union completes the probability that a meaningful
response would be evoked
WILLIAM B. PATTON TOWING COMPANY 73
A Well, I think I just said that I believed that it was
the best And that is about all that I said.
On recross examination, Beard was asked.
Q Did you ever tell Captain George Lawyer that
you were for or against the Union
A. I didn't say whether I then was for or against it
Q. You didn't let him know?
A No I just said it might be better than what we
had I never did say one way or the other
I do not regard Beard as a witness who did not
understand questions that were put to him We have seen
that when he was asked, if he had ever had an occasion to
sign a union card, a question that most witnesses take to
mean, did you ever sign a union card (and such is
probably the usual intent of the questioner), the witness
took the question in a very precise and literally correct
sense His answer, yes, to the question, might convey the
impression that he had signed a union card But it later
appeared that, in effect, the answer was, yes, he did have
an occasion (opportunity) to sign a card when Jones came
aboard with cards and gave them out However, it later
appeared, quite clearly, when the witness was asked
directly whether he ever signed a union card, that he had
not and he so stated. Therefore, when this witness was
asked by the General Counsel whether, when he went to
Lawyer to ask him about the Union and Lawyer made
some remarks thereon, he, Beard had said "anything" at
all or "anything about the Union," Beard understood the
question including the meaning of "anything" or
"anything about the Union." He answered in the negative
Later, in response to a repeated question along the same
lines, Beard said, "Well, I think I just said that I believed
that it was the best." This delayed and somewhat
uncertain testimony was evidently the "best" that the
witness could produce at the time and it is decidedly
cryptic and difficult to interpret
Later, on recross examination, the witness, although
stating that he never told Lawyer whether he was for or
against the Union, asserted for the first time that he did
say to Lawyer in the same conversation aforedescribed,
since this is the only conversation with Lawyer that the
witness mentioned, that "it might be better than what we
had " This is the first and only mention of such a
statement The statement is on its face a tentative
speculation that the Union might be better than what we
have. Aside from the circumstances under which this
testimony eventually was given, it is nevertheless the sole
basis for the contention that Beard was active in the
Union or that he was a union adherent. At best, it is a
thin reed upon which to base the contention that, in effect,
the Respondent subsequently discharged Beard because
Beard was in the Union or was for the Union There may
be cases where the evidence shows an employer so rabidly
antiunion and so pervasive in opposing anything
pertaining to a union, that it could be concluded that an
employee who gave any indication that he was
openminded or willing to consider the possibility of having
a union was discharged for such sentiments. But the
evidence in the instant case does not depict such an
employer and, while Respondent did not want to have a
union, the 8(a)(1) evidence is less than strong.26
It is apparent that up to this point we have been
discussing the testimony of Goodwin and Beard
themselves regarding such basic matters as their union
activity and the means or likelihood of Respondent having
We shall be discussing the Section 8(axl) allegations below
knowledge of such activity We have not cited the
testimony of Respondent's witnesses in this area and while
we have given Goodwin's testimony on the circumstances
of his termination we have not yet described Beard's
testimony on the termination, nor of Respondent's
witnesses on the events of July 30-31
At this interim point, however, certain observations are
in order with regard to the General Counsel's case on
Goodwin and Beard as to its basically prima facie aspect.
Goodwin's union activity consisted of one statement, on
one joint occasion, made to three fellow employees, to the
effect that he believed that the matter of a union was
something everyone should decide for themselves and that
personally he was for it. The last part of the foregoing
was not testified to originally by Goodwin in describing
his statement but was added later when he described his
remarks. Despite this testimony, Goodwin never signed a
union card although there was ample occasion to do so.
Assuming that Goodwin did express the above prounion
sentiment to some fellow employees on one occasion,
Respondent's knowledge of such an event is not apparent
This latter aspect is discussed below in connection with
Beard
Beard's testimony on the aspect of his expression of
prounion sentiments has been previously described in
detail We seriously doubt that he told Lawyer that a
union might be better than what they had. Since the
Examiner entertains this doubt on the prima facie
presentation of Beard's testimony, he is unable to find
that Beard did make such a statement We will assume,
arguendo, however, that the statement was made since this
assumption will bring us into a discussion of the area of
company knowledge regarding union activity of employees
and also into the area of alleged 8(a)(1) statements by
Respondent
in his brief, the General Counsel states that, in effect,
Captain Lawyer knew and was informing the Company
which employees were prounion and had signed union
cards and that "Patton, Sr., obviously had the same type
of meeting with Captain Lawyer as he had with Heaton."='
In this connection, there is clear evidence that while the
petition for certification excluded supervisors from the
unit , the Union made no distinction in its organizing as
between officers and rank-and-file employees Jones, the
union organizer, admittedly told the employees that when
they signed their union cards that they should turn them
in to Captain Lawyer who presumably was to turn them
in to Jones. Jones testified that he considered Lawyer a
good union man. Lawyer had signed a union card and as
late as August 19, shortly before the election, the Union
was making use of this fact in its organizing and election
effort. Employee Orme's uncontroverted testimony is that
a union representative, Glidewell, told him that Lawyer
had signed a card and that he had just shown it to another
"Heaton's testimony , above, does not reveal that either he or Patton
expressed either an opinion or a guess as to whether any particular
employee was for or against the Union Patton was wondering how the
election would turn out and how the employees would vote Patton,
according to Heaton, did not know the answers to the foregoing and the
only tangible remark made by Heaton was that Barrett would not be
returning to work because he was returning to school. Patton said that we
need not worry about him In short , if an employee will not be returning to
the employ , he will not be a voter and there is no need to be concerned
whether he is for or against the Union The comment of Patton, of course,
would be equally intelligible if he knew or suspected that Barrett was
prounion There is no evidence of any similar meeting, such as it was,
between Patton and Lawyer
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee, Taylor, and would also show it to Orme. The
latter expressed no interest but it is manifest that
Lawyer's union adherence was being used as an attempted
means of securing the support of Taylor and Orme for the
Union. Captain O'Dell also signed a union card and the
other captain, Booth, was solicited to sign but as far as
appears did not do so. Heaton, a mate, made it known
that he was for the Union and, about August 16, on board
a vessel, Heaton told Orme that if "we" went union,
Orme would be receiving overtime when he pumped the
barges28 and Heaton asked Orme to sign a union card.
This evidence is not disputed
Lawyer testified credibly that "I thought I was
supposed to vote, too. I didn't know any different. I found
out later that just the deckhands and cooks were voting."
Lawyer states that he made no report on union activity of
employees to the Pattons and that Patton, Sr., had told
him that he could not discuss the Union with him, pro or
con. Patton, Sr., testified that he told anyone in his
employ who mentioned the Union that he, Patton, could
not discuss it. If this displays a lack of expertise or
ignorance of the labor law holdings as to the relationship
between supervisors, it is not unbelievable in the
circumstances of this case in view of the Union's lack of
demarcation between officers and rank-and-file. The
Union evidently believed or believed for some period that
officers and men were organizable or that they all might
be in the unit; or, possibly, that it might represent the
officers and the men separately; or that, in any event, it
might facilitate the organization of the men if the officers
were signed up in the Union at the same time.
And, finally, this observation is in order. Neither Beard
nor Goodwin signed a union card and, if Lawyer was
doing any informing, this intelligence would presumably
be reported. In view of the diligent effort to secure signed
cards, the importance of nonsigning cannot be deprecated.
As late as August 16 an employee who had not signed a
card was being asked to do so, apparently on the theory
that if a man signed he was for the Union and could be
expected to vote for the Union Even card signers do not
always vote for the Union in the subsequent Board
election but noncard signers are rarely regarded by any
party as people to be relied upon as ultimate union voters,
particularly when the nonsigners, as in this case, had been
solicited to sign and had had ample opportunity to do so.
Coming now to the conflicting versions of the layoff or
cessation of employment of Goodwin and Beard, we have
seen only what Goodwin testified to in his first appearance
as a witness . Goodwin stated that, when the boat came
into Lake Charles, Lawyer came up to him and told him
that he was relieved. Beard in his first appearance
describes his last day as one where there was some trouble
at the dock at Lake Charles so that it would be the next
day before the unloading could take place. He states that
Lawyer said "we," Beard and Goodwin, were relieved,
that there would be no work to do that night and that the
relief man would be down the next morning After
Goodwin called his wife, he and Beard returned to the
boat and while Beard waited, Goodwin went on board and
got Beard' s belongings . They then returned to Houston by
bus.29 Beard stated that he thought nothing of being
relieved because he had been on the boat since July 3 and
was due or overdue for relief. He does not say that he
asked to be relieved or that he had been asked if he
wanted relief or if he did or did not say he wanted to
"Orme held a tankerman 's certificate which qualified him for pumping
work.
continue.
Lawyer's version is that, prior to arriving at Lake
Charles, he had asked Beard if he wanted to be relieved.
Beard said, no, because he needed the money and would
stay on.J° The captain is in daily communication with the
company office on various matters including crew
changes. If a man or men are due for relief at a particular
port and have signified that they want relief, the captain
will so advise the Company. The Company will then
arrange to drive the relief crew to the particular port. In
view of what Beard had told him, Lawyer states that he
had so advised the Company. The Pattons confirm this
and on July 29 or 30 they had their port engineer drive
one relief man, Orme, to Lake Charles as a relief for
Taylor on the Binion , Lawyer's boat." It is not disputed
that Orme was the only man sent down from Houston to
Lake Charles.
A composite of the testimony of the various witnesses
as to the events at Lake Charles is as follows: The Binion
came into Lake Charles with a barge in tow. Because the
dock was occupied or for some such reason, the barge was
not immediately moored to the dock but was tied to some
trees as a temporary mooring. The officers and crew on
the boats normally work 6 hours on and 6 hours off and a
man in his duty period is referred to as being on watch.
Lawyer states that Taylor and Beard were on duty during
his watch and because the Company had recently acquired
the Binion from another company he had them painting
and cleaning up the boat. This is the normal type of work
of deckhands like Beard and Taylor.
After "dinner" (apparently the noon meal) Taylor and
Beard asked Lawyer if they could go to town for a
haircut. He gave permission and the two men changed
clothes and left the boat. Lawyer went to bed, being off
watch. Lawyer states that around 5 p.m., Taylor woke
him up, saying the barge had to be moved." Lawyer got
up and rang the buzzer which is used to summon crew
members who are in watch or due for going on watch to
the wheelhouse of the boat. Lawyer states that Beard was
scheduled for that watch but Beard did not respond to the
buzzer. Lawyer then looked throughout the boat but
Beard could not be found. Lawyer asked Taylor if he
knew where Beard was and Taylor said, no. Lawyer then
aroused Goodwin, who was off watch, and Taylor,
Goodwin and Lawyer moved the barge to the dock from
where it was tied to the trees.
When the barge had been moved, Goodwin, according
to Lawyer, asked if he could go to town for an hour and
Lawyer said, yes. About 25 minutes later, Goodwin
returned to the boat in a cab which remained outside the
gate at the dock. Lawyer states that he saw that there
were two persons in the cab but he could not see who they
were. Goodwin walked up to Lawyer and said that Beard
was out in the cab and that Goodwin was getting Beard's
"The principal witnesses to the Goodwin and Beard events testified in
this order on this particular subject: 12/18, Goodwin and Beard ; 12/19,
Lawyer, Beard , Lawyer, Patton , Sr.; 12/20, Patton , Jr., Goodwin.
"Since Beard had been on board since July 3, his normal 20-day tour
would have been completed July 23 The evidence in this record indicates
that continuance beyond 20 days for an additional tour is voluntary and is
not unusual . Also, in many instances, a man may leave a boat without
informing the captain and before completing his normal 20 days.
"The Binion had three deckhands , Beard , Goodwin , and Taylor, and
Hendry, the cook. Taylor was due for and evidently wanted relief.
Goodwin had only been in the Company's employ and on board the boat
for 8 days.
"Taylor was not a witness . At some later time and before the hearing he
was discharged for some reason not shown in the record.
WILLIAM B. PATTON TOWING COMPANY 75
belongings from the boat to bring them out to him.
Lawyer states that Goodwin said he, Goodwin, would be
back in 5 minutes and Lawyer said, go ahead (and get
Beard's belongings). Goodwin then got Beard's things and
went back to the cab. He got in and the cab left. Beard
and Goodwin never returned to the boat.
Following this, Lawyer states that Taylor told him that
he knew two cousins named Verdean in the Lake Charles
area that he believed he could get. Taylor and Lawyer
contacted these men by telephone and they were available
and also a third man, a cook Lawyer states that he
decided to get rid of the Binion's cook, Hendry, because
he was "incompetent."" Lawyer then called one of the
Pattons and advised them of the entire situation
aforedescribed. He was told to hire the Verdeans and the
cook, if he could, but that, if he could not, to call the
Company and the Company would send some
replacements from Houston. Lawyer hired the three men
previously mentioned and apparently they were to report
the next day. The Patton's testimony is in substantial
agreement
Goodwin's original account was quite simple It was
that, when they came into Lake Charles, Lawyer told him
that he was relieved and that the Company would provide
transportation back to Houston Goodwin states that
Lawyer then turned his back and walked away.
Cross-examination at the time of Goodwin's first
appearance as a witness brought to his attention that, in
an affidavit taken by the General Counsel, Goodwin had
said that Lawyer also told him that " . after I was off
10 days that I would be called back." Goodwin, in effect,
then affirmed at the hearing this statement in the
affidavit, saying that events were clear in his mind at that
time and that they were not as clear at the hearing ("If I
said it on there [the affidavit], he [Lawyer] said it I'm
pretty sure of that . . . . And I'm telling you now that it
was all fresh in my mind then, and it is not fresh in my
mind now.")
The foregoing, which came out on cross-examination,
was somewhat different from Goodwin's testimony on
direct examination of what Lawyer allegedly told him at
the time of layoff Beard at no time claims that Lawyer
said anything about the two or either one being off for 10
days and then being called back. Moreover, a 10-day
layoff follows 20 or so days at work and it is scarcely
probable that when Goodwin had worked only 8 days that
the Company would believe that it could disguise its
allegedly discriminatory motive by trying to depict
Goodwin's layoff as a normal 10-day layoff. Further,
failure to recall Goodwin at the end of 10 days after
having made such a statement to him would be difficult
for the Company to explain. However, if the Company
subsequently did what Goodwin claims Lawyer had told
him would be done, he, being laid off July 30 or 31, would
be recalled about August 10 and would presumably vote
in the election commencing the middle of August. This
state of affairs would not be consistent with the General
Counsel's theory, as appears from his brief, that Goodwin
and Beard were terminated (discharged on July 30 as
alleged in the complaint) because they were prounion and
because Respondent wished to eliminate them as eligible
voters.
In his second appearance as a witness, Goodwin gave
some additional details regarding the events of July 30-31
"Hendry, of course , was not in issue in this case We assume that, since
he was a cook and Lawyer described him as incompetent , Lawyer
considered him a poor cook
He states that he and Beard moved the barge to the dock
from where it was tied to the trees and that Lawyer was
at the wheel of the Binion during this maneuver and that
Orme was on the dock Goodwin then states that after the
barge had been thus moved and docked, he and Beatd
came on the Burton and while they were standing on the
bow, Lawyer told them that they were relieved After this,
Goodwin and Beard went to town in a cab Goodwin
telephoned his wife The two men returned to the dock in
a cab. Goodwin went on board the Binion and sold his sea
bag to Taylor and Goodwin got Beard's belongings and
took them out to the cab. There was no conversation with
Lawyer during this episode, according to Goodwin. The
two men returned to town and caught a bus to Houston.
Beard initially testified that there was some trouble at
the dock at Lake Charles and because of this it was to be
the next day before they could load or unload and Lawyer
told them they were relieved and that the relief crew was
coming in the next day. Beard and Goodwin then left.
Later, recalled as a witness, Beard testified that after he
and Taylor went to town for a haircut, and "just as we
were getting back, they were pulling the tug off to go get
the barges." . They were fixing to move the barges
when F D Taylor and myself got back from the
barbershop We [Beard and Taylor] got aboard the boat
and went and moved the barges " Beard states that he
helped move the barge from the trees and that Lawyer
was there on the boat although Beard opined that Lawyer
was off watch. Orme was also there According to Beard,
after the barge was moved, Lawyer said that there would
be nothing to do "until the next day, because they had
some kind of trouble, either loading or unloading that we
could go ahead home" and that the relief crew was
coming the next day. Beard then went on to state that the
foregoing conversation took place in the galley of the
Binion where "we" went to drink some coffee after
moving the barge. Beard testified that he thought that
Goodwin "was there" but, in any event, that was where he
said the conversation with Lawyer about going on leave
took place. After this conversation, Beard and Goodwin
went to town, later returned for belongings, returned to
town and caught a bus to Houston.
It is apparent that Beard's testimony is that when he
and Taylor returned from town after getting haircuts they
got on board the barge and moved it from the trees to the
dock and that, while Lawyer was on the tug at the time,
Beard thought he was off watch and a nonparticipant.
After the barge was moved, Beard was in the galley of the
tug drinking coffee. Lawyer was there and Beard stated
that he thought Goodwin was also present. Goodwin's
testimony was that he and Beard were in a small skiff
together and that they unhooked the barge from the trees
and moved it, with Lawyer being at the wheel of the tug
After moving the barge, Goodwin states that he and
Beard were on the bow of the tug when Lawyer told them
that they were relieved. Lawyer, of course, states that
Goodwin, Taylor and Lawyer moved the barge.
The General Counsel, in his brief, attaches significance
to the fact that Taylor and Beard , in the afternoon, had
gone to town for haircuts He points out that Taylor's
getting a haircut was logical since he was going home
after completing a 20-day tour of duty This is true. All
agree that Taylor was being relieved at Lake Charles and
the Company had sent Orme from Houston to relieve
Taylor. The General Counsel then argues that if, as
Lawyer testified, Beard had previously requested to
continue on duty at and beyond Lake Charles, "why
would Beard be so interested in getting his hair cut? Beard
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have been in the tugboat going up and down
polluted channels, not infrequently referred to as sewers,
for 20 days " But, if we assume the General Counsel's
premise that the haircut had significance as being
consistent with an intent to go home, the fact is that
Beard got his haircut before he and Goodwin were
allegedly told that they were relieved Beard testified that
it was after he and Taylor had the haircuts, and after they
returned to the dock and moved the barge, that Lawyer
relieved him and Goodwin. Goodwin also testified that it
was after the moving of the barge that Lawyer told them
that they were relieved Using the General Counsel's
rationale, therefore, Beard secured a haircut because he
planned to go home and did this before he was told that
he was being relieved
The General Counsel also comments on the fact that
when Goodwin came back for Beard' s belongings , Lawyer
did not seek to intervene or query Goodwin. For one
thing, Goodwin and Lawyer agree that this incident took
place in the evening after the barge had been moved
Lawyer's testimony is that the last he saw of Beard was
that afternoon when he went to town for a haircut with
Taylor and that Beard was not present that evening when
the barge was moved Therefore, when Goodwin went to
town and came back for Beard's belongings, and Beard
himself did not make an appearance, it would be
reasonably apparent that Beard had jumped or was
jumping ship and the procuring of his clothes by Goodwin
was simply the last act in the episode Jumping ship was
not uncommon and there was nothing Lawyer could do
about it at that stage or possibly at any stage Beard
himself, although he had come back in the cab with
Goodwin, remained in the cab, although it would be
normal for him to have come on board to gather up his
own clothes. His actions, if anything, indicate a desire to
avoid encountering Lawyer, and are not inconsistent with
a conclusion that he was completing his jumping ship.
"One of the primary arguments in support of the
General Counsel's case is the timing of the discharges,"
according to the General Counsel in his brief It is pointed
out that there were 14 eligible voters among the
employees on July 30 and that by August 15 this number
had been reduced to 7 Of the remaining seven, the
General Counsel points out that Reed did not vote and the
General Counsel indicated that three others were
procompany; three others of the seven were Barrett, Beard
and Goodwin, allegedly discharged illegally. The General
Counsel argues that the foregoing situation was not
fortuitous but was brought about by "Respondent's illegal
conduct."
Of the 14 original eligibles, 8 were named as 8(a)(3)
discriminatees in initial or early charges of the Union All
were dropped from subsequent charges except 4, Barrett,
Keeton, Beard and Goodwin. The Region then dismissed
the Barrett and Keeton allegations and this action was
affirmed on appeal to the General Counsel Barrett was
later placed in the complaint with Beard and Goodwin
and no one else. In view of this picture , it is not
convincing to impliedly argue that the Examiner can draw
an adverse inference against Respondent from the fact
that eligible voters were reduced from 14 to 7. If anything,
the statistics may indicate as does the record, that
turnover is high among employees in this business due to
their itinerant habits There is no basis for the Examiner
to find that employees not alleged in the complaint and
not litigated ceased to be employees because of illegal
action by Respondent. The fact that Reed, one of the
remaining seven , did not vote is because, as the record
shows, he appeared at the poll as it was closing or when it
had just closed and it was the union representative who
took the initiative to announce that Reed was too late to
vote The representatives of the other parties did not
dissent but this hardly shows that the fact that Reed did
not vote was part of Respondent's plan to have the
election result in a way adverse to the Union, which seems
to be what the General Counsel implies The Barrett,
Beard, and Goodwin allegations must rise or fall on the
evidence before us and not on some unproved implication
regarding seven or eight employees who are not before us.
Also among the various arguments advanced by the
General Counsel for not crediting the Respondent's
evidence that Beard and Goodwin jumped ship at Lake
Charles is the unlikelihood that they would have done so
at Lake Charles since they both lived in Houston This is
a logical enough argument but there is evidence that ship
jumping in this business is common and that men jump
ship at all sorts of places and that no pattern of logical
action prevails As a matter of fact, when a man seeks
and secures a tour of duty for 20 days, it is not very
logical to abandon ship at any location at the end of 4, 8,
10, 13, or 19 days or at any other time before his tour is
completed but it is done Moreover, the record is clear
that both Beard and Goodwin understood that, when a
man is relieved, the Company furnishes ground
transportation back, for instance, from Lake Charles to
Houston Goodwin testified that Lawyer told him that the
Company would transport him back to Houston " Beard,
in describing how Lawyer relieved him and Goodwin after
the haircuts, and after the return from town and the
moving of the barge, testified that Lawyer said, "we could
wait for the relief and get transportation back, but if we
left then, we would have to pay our own [way] " It would
seem reasonable, therefore, if Lawyer relieved the men, as
they claim, that they would await the free transportation
to Houston Their clothes and belongings were on board
the boat and they could stay on the boat until the relief
crew arrived or spend part of their time in town, returning
to the boat to sleep until transportation arrived Instead,
they came back to Houston by bus at their own expense
for the bus and cab fare (to town, from town to the boat,
and back to town for the bus ) All this in spite of the fact
that Goodwin testified that he was so pressed for money
that he sold his sea bag to Taylor in order to get bus fare
Since they knew that the Company was not supplying
transportation to ship jumpers, their failure to rely on
company transportation and their resort to their own
expense is perhaps more consistent with the view that they
had not been relieved but were jumping ship
It is my opinion that the evidence warrants the
conclusion that Beard and Goodwin were not relieved at
Lake Charles but that they abandoned ship Although all
aspects of Lawyer's version have received our careful
scrutiny and some portions therein gave us considerable
concern, we have reached the conclusion aforementioned,
since we find the version of Respondent's witnesses to be
the more credible .35
"This was in Goodwin's initial appearance as a witness when he
described how Lawyer relieved him when the boat came into Lake Charles
"At the time of hearing , Lawyer had been discharged by Respondent
He had also been punched in the eye by Patton, Jr 'and had a law suit
pending against the Company This is not disputed We have not reached
our conclusion on Beard and Goodwin 's case based on the Jones-Lawyer
conversations outside the hearing room in the hall or restroom while the
hearing was being held We find it unnecessary to describe that episode or
our opinion thereon Suffice it to say that it does not alter our conclusion
set forth above
WILLIAM B. PATTON TOWING COMPANY
After the events in Lake Charles, Goodwin states that
he returned to Houston and called Patton, Jr , a day or so
thereafter to ask about his job and check It is not clear
from Goodwin's testimony what he said to Patton, Jr., but
he testifies that he was told to "hang loose" and Patton,
Jr , would call him. The next day or so Goodwin received
his paycheck in the mail He states he then called Patton,
Jr , and asked "what is going on"; he states that he was
told, you know what is going on, and he said, "you mean
about the union" and Patton, Jr , said, "Well, yes, you
know what I am talking about now"; Patton, Jr., told him
to hang loose but has never contacted him Patton, Jr.,
testified that after Goodwin walked off the boat at the end
of July he neither saw him nor talked to him in person or
on the telephone and next saw him at the election on
August 15
The General Counsel in referring to the above
testimony of Goodwin states that "This conversation
clearly establishes Goodwin had been discharged because
of his prounion sympathies ..." We would agree that the
remarks attributed to Patton, Jr , virtually mean that he
was telling Goodwin that he had been laid off for union
activities. However, we do not believe that Patton said
what is attributed to him Patton, Jr., as a witness
impressed us as a rather deliberate individual Goodwin
was barely known by Patton, Jr , and had worked for the
Company only 8 days. It seems unlikely that after all the
maneuvering that the General Counsel has attributed to
the Pattons in getting rid of employees and circumventing
the Act, that Patton, Jr., would tell a recent casual
employee, in effect, that he had been laid off or
terminated for union activities Moreover, the evidence of
Goodwin's union activity is slight and the evidence of
Company knowledge thereof is nonexistent. We do not
credit Goodwin on this testimony and, since it is the basis
of an 8(a)(I) allegation in the complaint, we recommend
dismissal of that allegation as well as of the 8(a)(3)
allegations regarding Goodwin which we have previously
examined in detail.36
The other 8(a)(I) allegation is based on Beard's
testimony that about July 23, on board the boat, he asked
Lawyer about the Union According to Beard, Lawyer
said "that usually when they went union that they cut the
crew down, and had more work on you and when you
would dock that you couldn't get off the boat." Since
Respondent had never gone union and cut down the crew
or restricted the crew, Beard's testimony on its face
indicates that Lawyer was speaking from purported
knowledge or experience as to what other employers
usually did when the Union got in. It is perhaps accurate
to say that since Lawyer was speaking of employers in
general when a union came in, the implication was that
Respondent would act in the same way and that this
constituted an implied threat of economic detriment to the
men if a union came in
Lawyer's version is that he told Beard and Taylor that
they could vote any way they wanted to, that it made no
difference to him but, apparently because , as Beard
testified, Beard had taken the initiative to ask Lawyer's
opinion, Lawyer also said that Dixie Carriers (another
tugboat employer) "after they went union , they did not
carry a cook" and "if they did vote union, then we might
lose a cook "
Aside from the fact that other parts of Beard's
testimony, previously considered, did not impress the
"Our rejection of Goodwin as a reliable witness was not based on
anything in his past history before he worked for Respondent
77
Examiner as to his reliability as a witness , we also
perceive an interesting plausible element in the reference
by Lawyer to the possible loss of a cook if the Union
came in The amenities on these boats plying rather
unattractive inland channels were probably few
Apparently Lawyer, at least, regarded a good cook as
important He had, for instance, at Lake Charles, gotten
rid of the cook on the Binion because the cook was
"incompetent," which in the case of a cook, we assume,
means that Lawyer believed the cook was not a good
cook. Earlier, therefore, in the conversation with Beard
about the Union, there is some plausibility to Lawyer's
testimony that he mentioned the possibility of having no
cook on board since he knew that when another company
went union , the cook was eliminated The cook aspect to
Lawyer was evidently important. All factors considered we
credit Lawyer vis-a-vis Beard
We have therefore an opinion expressed by Lawyer,
when asked for his views, that the boat would probably be
without a cook if the Union came in, since this is what
happened at another company. The loss of a cook was
evidently a matter of personal concern to Lawyer He, like
other officers, as well as the men, as we have seen, was
being solicited by the Union and he was part of the union
drive He signed a union card and the men were told by
the Union to give their signed cards to Lawyer. Assuming
that the loss of the cook from the crew would be a
detrimental consequence if the Union came in, it is our
opinion that Lawyer, in his remarks to Beard, was
expressing his own view and this is most likely how Beard
and the others understood it On the union subject at that
time, the relationship of Lawyer and the men was more
that of employees of the Company, all of whom the
Union was attempting to organize, rather than that of
management and rank-and-file " It is therefore doubtful
that Lawyer's remarks may be attributed to Respondent.
In any event, whatever Lawyer said to Beard, it is an
isolated instance of alleged 8(a)(I) conduct The isolation
is apparent since during a union drive from March to
August, there is no other viable 8(a)(1) conduct alleged
either by way of background or alleged illegal conduct.
We therefore recommend dismissal of this July 23, 8(a)(l)
allegation
As to events involving Beard after the incident at Lake
Charles, a lady named Sandra Young testified as follows.
She operates a bar named the Sand Bar, near the canal in
Houston The customers are predominantly seamen
Around the middle of August, Young states that Beard
was in her place daily. She states that Beard's uncle has a
dump truck which he operates out of adjacent quarters.
During this period she states that Beard asked her to
telephone Respondent who is also in the Houston area.
She was to ask if Respondent wanted Beard to come in
She telephoned on two occasions and spoke to someone
"In our opinion , it was not established in the record that Lawyer was an
informer on the Union for the Respondent He evidently had some
personal doubts about the Union or the consequences of a union coming in
but may well have been more for the Union than the other way around
The union organizer Jones testified that Lawyer kept him informed about
time and place of arrival of the boats and, at the hearing , where Lawyer
was called as a witness by Respondent , his initial reaction to being asked
whether he had signed a union card (which he had done ) was one of great
agitation and reluctance, including reference to the 5th amendment The
Union, of course, knew that Lawyer had signed so perhaps it was the
Company that was the cause of concern But signing up would normally be
part of the expected procedure for an informer and "plant" and would be
known and taken in stride by his employer So why this initial reluctance
by Lawyer to reveal that he had signed a union card'
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unidentified by her. Both conversation were about the
same. She was told by someone at the Company to have
Beard call the Company. She relayed these messages to
Beard but does not know if he called the Company. Beard
testified that he asked a woman whom he knew only as
"Sandy" to call the Company on his behalf. He does not
say what he told Sandy to say and he does not know
whether she called or did not.
Patton, Sr., testified that a woman telephoned twice
about Beard's paycheck. She was told that the Company
would not send the check out without Beard's
authorization and that Beard himself should call to
authorize the Company to send or give his check to
someone or someplace. Thereafter, a young boy came to
the office for Beard's check but the Company refused to
give it to him. Eventually, Beard came to the office for
the check and received it.
Beard states that he came to the office for his check on
August 8 and received it, from Patton, Sr. The latter,
according to Beard, said we would be better off without
the Union "and then he gave me a couple of little cards or
something. I never did read them." Beard also states that
Patton, Sr., said "they were going to be out voting on the
15th or something like that, about the votes. And if I
wasn't on there I would be voting at the office at a later
date." This alleged remark does not jibe too well with the
theory that Respondent had relieved or terminated Beard
at the end of July because he was prounion and because
Respondent wished to eliminate him as a voter in the
coming election. Beard states that Patton, Sr., said that it
would be a "couple" of days before the Company called
Beard back to work. The Company did not call Beard and
Beard made no effort to contact the Company until
August 15, the day of the election. The Union filed, on
August 14, its charge alleging , inter alia , the illegal
termination of Beard on July 30. On August 15, Beard
states he called the Company from the union hall, with
Jones listening in on the extension. He does not say to
whom he spoke but states that he asked why he had not
been called. He was told that the boat had broken down
in Corpus Christi for 2 or 3 days and that it would be a
couple of more days before it was back." Beard states
that he has not been called since.
Patton, Sr., testified that in the conversation with
Beard when Beard came for his check, he did not give
Beard any propaganda about the Union. He states that
from what Beard said he understood that the latter was
going out of town for a short period and that he said to
Beard that Beard had walked off the boat in Lake Charles
and had left the Company in a hole and that he was no
longer an employee. Beard made no response. However,
Patton, Sr., states that he told Beard to contact him when
he got back and if there was an opening he would rehire
him. Patton, Sr., testified that a man walking off a boat
before his tour was up was so common that he would have
had no reluctance to rehire Beard or Goodwin. The
witness said, however, that he would not be prepared to
immediately rehire a man who walked off but would allow
a few days to elapse. This would be by way of discipline
and demonstrating, apparently, that a man could not
abandon ship one day and be rehired on that boat or any
other boat the next day or so. Thereafter, if the man
applied for work and there was an opening, he would be
rehired.
"Although a witness at the hearing , Jones did not testify in
corroboration of such a call or conversation.
Patton, Jr., states that he received a telephone call from
Beard about 10 a.m. on August 15. Patton, Jr., states that
Beard asked when he was supposed to go back on the
boat. Patton, Jr., replied that he, Patton, Jr., did not
know what was going on and that Beard would have to
call back later. The witness does not remember saying
that the boat was having trouble in Corpus Christi but
states that he may have mentioned it since it was the fact.
He also explains that the call from Beard on the 15th
took him by surprise since he was aware that Beard had
walked off the boat at Lake Charles and that his father
had previously spoken with Beard although Patton, Jr.,
did not know what had been said. Also, Patton, Jr., had
received a copy of the unfair labor practice charge which
included Beard as a discriminatee.
I believe that Patton, Sr.'s, testimony regarding his
August 8 conversation with Beard is substantially credible
although he may have mentioned the upcoming election
and expressed his view that a union was not needed. We
believe that Patton, Jr., was noncommittal when Beard
called on August 15 since he did not know at the time
what Beard 's status was or what his father had told
Beard.
The Company's position regarding Beard was that
expressed by Patton, Sr., on August 8. We are uncertain
that Beard was available for work on Respondent's boats
between August l and 15. From August 1 to 8 Beard's
availability to pick up his paycheck, let alone to work for
Respondent, is less than clear. In this period, he had
apparently delegated to the operator of the Sand Bar the
contacting of the Company by telephone on his behalf.
Sandra Young testified that in the period Beard was in the
bar every day. We are not concerned with Beard's private
life. Perhaps he had some work connection with his
uncle ' s business which is next door. We do not know.
After various efforts through others to secure his check,
Beard finally went to the Company's office for his check.
It would seem that if earlier or at any time up to August
8, Beard had telephoned the Company and had asked that
his check be mailed to his address, this would have been
done. We are uncertain that the Company had a reliable
address for Beard since it did not mail the check to such
address as a matter of course.
On August 8, Beard was in effect told that as far as
employment was concerned he would be treated like
anyone else seeking work on Respondent's boats.
Primarily, a job depended on the applicant's being
available at the tine that there was an employment
opening. Because of the itinerant habits of the workers,
the Company considered the current or most recent
applicant first if a job opened up. For the most part,
applicants took the initiative in contacting the Company
although, if the Company considered a man reliable and
had a reliable address and telephone number for him, it
might call the individual. Although ship jumping was not
uncommon, there is nothing to indicate that the Company
regarded Beard as particularly reliable and, in any event,
on August 8, Patton, Sr., told him to contact the
Company when he was available for work. At such time,
presumably, two elements would have to concur before
Beard or anyone else was given a job, namely, availability
of the man and availability of a job opening." The
"The setup bears some similarity to a hiring hall. While such halls are
usually operated by unions , an applicant generally has to be physically
present when a job is available Here , Respondent operated its own "hall"
and while physical presence at the "hall" was not required, current
availability by reason of a recent or current indication of availability had
to coincide with a job opening for actual hiring to result
WILLIAM B. PATTON TOWING COMPANY 79
evidence does not show the concurrence of these two
elements in Beard ' s case at any time between August I
and 15 and what the situation was thereafter is not shown.
In the Examiner ' s opinion the burden of proof regarding
Beard , as in the cases of Barrett and Goodwin , has not
been sustained and dismissal of the 8(a)(3) complaint
allegation is recommended.
The Challenged Ballots
Barrett. Goodwin, and Beard The challenges to the
ballots of these three voters, in our opinion, should be
sustained since they were no longer employees at the time
of the election. The circumstances under which they
ceased to be employees have been described above.
Keeton. The challenge to this ballot should be sustained
pursuant to stipulation of the parties at the hearing. The
charge allegation regarding his discharge had been
dismissed by the Regional Director and the dismissal had
been sustained on appeal.
Booth . This employee had begun working for
Respondent as a cook on the tugboat Andler on July 21,
1968. He continued in Respondent's employ up through
the date of hearing. During his work tours, Booth had the
normal 10-day relief periods but he has continued in
Respondent's employ and has not quit nor has he been
discharged. Booth's ballot was challenged by the Union on
the ground that he was no longer employed. The Union
states in its brief herein that "In view of the lack of
evidence to substantiate the challenge to Mr. Booth, the
Union does not feel that this particular challenge can be
sustained ." It is recommended that the challenge to Booth
be overruled.
Orme . Respondent purchased the tugboat Binion about
July 1, 1968. Orme had worked on the Binion for about 2
years previously when it was owned by the Gulf States
Company. During this 2-year period with Gulf States,
Orme states that he was a tankerman-deckhand. As such,
he loaded and unloaded barges with pumps; he checked
and took care of the daily maintenance and operation of
the Binion' s engine ; he made up tows and tied up and
untied barges or tows; and he worked on the boat
cleaning , chipping and painting . During his employment
on the Binion under Gulf States, Orme states he was a
pilot or mate for 14 days. At some time during his Gulf
States employment on the boat , the boat had an engineer
and Orme worked with him on the Binion . Orme states
that the only difference between his work and that
performed by that engineer was that the latter performed
major overhauls on the engine or mechanical equipment.
Orme did minor engine and mechanical maintenance.
After the engineer left, Orme occupied his room on the
Binion. Orme received $25 per day while working for Gulf
States.
When Respondent acquired the Binion , it also hired
Orme as a deckhand - tankerman on the boat . As with the
former employer, he was paid $25 per day. Patton Sr.,
testified that his pay was higher than other deckhands
;because he had a tankerman's certificate or license from
the Coast Guard . The license is issued to a man who
meets certain qualifications relating to pumping barges
and Patton states that any licensed tankerman is paid
extra . The captain and mate on Respondent ' s vessels also
usually have a tankerman's certificate and Respondent's
policy was that they should have or should acquire such a
certificate . Pumping of barges , loading or unloading,
requires the participation or presence of a tankerman
during the pumping. The deckhands on the Binion, for
instance Beard , received $18 per day but on Respondent's
smaller tugs, the rate is $16, plus a 10 percent bonus. The
mate on the smaller tugs received $28 per day, plus $5 for
pumping and a 10 percent bonus. The pay of the mate on
the Binion is not shown but presumably it is higher. The
Binion is a larger boat, carries a larger crew and-the latter
are paid more than on smaller tugs. For instance, there
are two deckhands and a cook on the smaller boats. The
Binion has two deckhands, and a third deckhand or a
deckhand-tankerman, plus a cook. In July, the Binion had
a crew consisting of Orme, Beard , and Goodwin. Taylor,
a deckhand, relieved Orme. When the boat came into
Lake Charles, Orme came to relieve Taylor and the
balance of the crew consisted of two deckhands and a
cook.
Orme testified that his work and duties on the Binion
under Respondent were the same as they were under the
prior owner except that he never served as mate or pilot
under Respondent. On board, Orme has a single room.
The other two deckhands share a room. When Taylor
relieved Orme, Taylor, who is not a tankerman, occupied
Orme's room. The record does not show where the other
crew member, the cook, sleeps but it seems likely that he
has a room since it is even more unlikely that he shares a
room with the captain or mate.
The evidence, in our opinion, does not show that Orme
is a supervisor, which is the basis given for the Union's
challenge to his ballot. He cannot and does not hire or
fire or effectively recommend or discipline employees. On
occasion he tells a deckhand where a valve or something is
and may ask a deckhand to hand him a wrench or tool as
he is making some adjustment on the engine. All those on
board have a general responsibility for the engine and this
may involve adding or checking water and oil and so forth
and Orme is probably closer to engine details than others.
He probably knows more about the engine than other men
on board, both because of his long service on the Binion
and probably because he has a greater degree of
mechanical ability. His higher pay and whatever
distinguishes him from other crew members appears to be
attributable to the fact that he has a tankerman's
certificate and Respondent's job title of
deckhand-tankerman or tankerman-deckhand appears to
be apt and appropriate.
Around the first of September the Binion was in the
shipyard for repairs. Respondent then supplied Orme with
an automobile and a credit card and paid him a salary.
For about 3 or 4 weeks, Orme drove to various ports, like
Brownsville, Port Arthur, and so forth, to meet
Respondent's boats and barges as they arrived. He then
handled or participated in the pumping of the barges at
these ports. When the Binion came out of the shipyard,
Orme returned to his duties on the Binion and was so
employed at the time of hearing.
The Union had made no distinction as to Orme in its
organizing effort and he had been solicited unsuccessfully
to sign a union card. The Union's petition described the
unit as consisting of all employees employed on five tugs,
including the Binion , with guards, watchmen , clericals and
supervisors excluded. The consent election agreement
described the unit as all deckhands and cooks employed
on four named boats, including the Binion. The excluded
categories were : office clericals, captains, relief captains,
mates, repairmen, port engineers , guards, watchmen and
supervisors . Orme's name appears on the list of eligible
voters and was not crossed out at any pre-election
conference.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is my opinion that Orme qualified as an eligible
voter Any lack of community of interest with other
deckhands, if it be the fact, appears to be no more than
that which might exist between a high paid class I
machinist qualified to operate specialized machines and a
low paid class 3 machinist in an industrial plant. Both
categories, however, would be in a production and
maintenance unit We recommend that the challenge to
Orme's ballot be overruled
Objections to the Election
Union objections It is alleged that
On or about August 15, 1968, immediately prior to the
election aboard the C G. Andler, William B Patton,
Jr , boarded the vessel and talked with the deckhand
disparagingly about the Union and allowing no time for
rebuttal This was pointed out to the Board agent at the
time At the pre-trial conference, it was agreed that the
elections would be held aboard the boats, however,
although there was room aboard the boat to vote, the
election was held on the docks, and upon information
and belief, electioneering was conducted aboard the
boat during the elections
Jones testified that on August 15 he drove to Beaumont
from Houston for the election on the Andler. He and
Goodwin (a voter whose ballot was later challenged) and
possibly someone else came in one car and about four
other union men came in another. Some of these were
voters, like Beard, Keeton (both eventually challenged),
and Guillory At the dock there were the union people, the
Board agent, Patton, Jr., and Kneese, company attorney
Jones states that Patton, Jr., boarded the Andler and the
Andler moved out and then was tied to another section of
the dock. Jones states that he saw Patton, Jr , talking to
the men on the Andler and Jones asked to be allowed to
find out if anything detrimental or coercive was being
said The Board agent allegedly refused the request Jones
states that Patton, Jr., got off the boat, talked to Kneese,
and they both were talking to the men on the dock.
In his testimony, Jones states that it had been agreed
prior to the election that the election be held on board the
boats. The consent election agreement states that "Voting
will take place on each of the following tugboats, at a
time in an area to be determined by the Board agent
conducting the election, as each of the following tugboats
come into the Houston, Freeport or Port Arthur area [the
boats are then listed, including the Andler]."
The voting took place at a poll set up on the dock when
the boat arrived at and was moored to the dock. We do
not have any testimony of the Board agent on this matter
nor do we have a report of the Regional Director setting
forth the Region's position on this aspect Although we do
not lightly regard an unexplained apparent deviation from
the terms of a consensual election agreement, we are
prepared to assume, in the absence of evidence to the
contrary, that the Board agent, in holding the election on
the dock, took such action because of the practicalities of
the situation then existing 10 What these practicalities were
we can only conjecture and whether they should have been
anticipated we do not know. It may be that the Board
representatives were not fully familiar with the size and
space aspects of the tugboats or perhaps the Board agent
at the dock saw problems in setting up an election booth
on the boat.
"Patin evidently agreed since his name appears as company observer at
the election Although Patin was a deckhand , it is established that he was
But the more important consideration, in our opinion,
is whether having the poll on the dock instead of on the
boat militated against a fair election or prejudiced the
interest of the protesting party, the Union The evidence
does not persuade the Examiner that the answer to either
of the foregoing is affirmative If anything, the dock
would appear to be a more neutral territory than the boat.
The boat was definitely employer property while the dock
was not This particular dock was owned by Mobile Oil
Company and as a dock it evidently had some
quasi-public aspects At least it was not Patton's property
like the boats were Nonemployee union representatives
could come on the dock and did come on the dock They
could not go on board the boat without Patton's
permission and did not do so On the score of space,
viewability, access, and neutrality, we incline to the belief
that the election booth poll on the dock to which the boat
was moored was probably superior to a poll on the boat
with respect to having a fair election We would not
uphold the union objection on this aspect
Returning to the other aspect of the objection
concerning Patton, Jr , boarding the boat and talking to
the men, we now consider the testimony of Patton, Jr. He
states that in addition to his administrative and
managerial work with the Company, he himself performs
repair and maintenance work on the boats, transports
crews to and from boats, brings supplies to the boats and
does almost anything in connection with the boat
operations He states that he first boarded the Andler at
Beaumont on August 15 to assist in mooring the boat and
barges and to ask Patin, a deckhand, if he would be the
company observer at the impending election The other
deckhand was Griffin While tying up the boats with the
two deckhands, Patton, Jr , made the above request to
Patin.i0aThen Griffin asked Patton, Jr, who all those men
were who were standing on the dock Patton, Jr , told him
they were the company attorney, the Board agent, the
union attorney and representatives, union people and
voters and that there was going to be an election Patton,
Jr., states that Griffin indicated concern about all the
people on the dock but Patton, Jr., told him not to worry,
to vote any way he wanted to and that nobody would
know how he voted. Patton, Jr., states that this entire
episode involving Patin and Griffin took about 10
minutes Patton, Jr., then apparently got off the boat and
returned with groceries and provisions that were needed
for the boat The taking of these stores on board took 15
or 20 minutes.
The above testimony is not controverted It is our
opinion that the fact that Patton, Jr., talked to crewmen
before the election under the above circumstances and that
Jones was not allowed to board the boat or to query the
men at the time is not an objection warranting setting the
election aside."
The other objection of the Union is that on about
August 17, 1968, Patton, Jr , boarded the Industrial State
at about 150 a m , at the Brazos River gate and rode it to
the Shell Dock at Deer Park where the election was to be
held. It is alleged that Patton, Jr., showed union contracts
with other companies and "belittled" the Union and that
he left "propaganda" aboard the vessel where the voting
not an eligible voter since he was not on the July 30 eligibility list
40 a It is, of course, quite arguable that the election agreement by its terms
did not literally require that the voting be on the boat itself
' Jones testified that he believed five men voted at Beaumont on August
15 They were Goodwin , Beard, Keeton, Guillory, and Griffin The first
four had driven from the union hall at Houston to Beaumont in the
conpany of Jones Griffin was on the boat
WILLIAM B. PATTON TOWING COMPANY 81
was to be held "Although agreed upon to have the voting
on the vessel where possible or in the immediate vicinity,
this election on August 17, 1968, was conducted outside
the gates, in the parking lot Further, there was no time
for rebuttal on behalf of the Union as to the propaganda
and conduct of the company representative "
Jones testified that on August 17, Patton, Jr , was on
the Industrial State when that boat arrived at the Shell
Dock at Pasadena for the election The witness states that
the night before he saw Patton, Jr., board the boat at the
Brazos gates in Freeport about 100 miles from Pasadena
and a trip of about 14-16 hours When the boat arrived at
the Shell Dock, Jones states that Patton, Jr , left the boat
and met his father at the gate to the dock. Some crew
member, not identified by Jones, came off the boat at
about this time, according to Jones, and the Pattons spoke
to him. Jones states that he asked to go aboard to
determine if there were any eligible voters left aboard but
this was refused, evidently by the Board agent. Jones
states that he also requested that the election be held on
board the boat but this was refused Apparently it was
agreed that Patton, Jr , and Jones go aboard together to
see if any eligible voter was still there and they did so
Jones states that he was not allowed to board the vessel
alone or to talk to the men He states that the election
was held on the 17th at the Shell Dock, outside the gate,
about 300-500 feet from the moored boat
Patton, Jr , testified that on August 16 he went to
Matagorda, Texas, from Houston because the Industrial
State was at Matagorda and it had a problem with
pumping out the barges. There was still some cargo
aboard from Corpus Christi that the barge had been
unable to pump out Patton, Jr., went down to find out
what the problem was and to fix it '= Because he had not
yet diagnosed the problem and not wishing to delay the
boat, he went aboard and rode from Matagorda to the
Shell Dock, with the trip taking 16 hours. After about 2
hours' work aboard, Patton, Jr , diagnosed the trouble
and repaired it in about 20 minutes. He then sat in the
wheelhouse with Captain Olney and after a while went to
the galley for coffee. Deckhand Venable was also in the
galley reading a book. It was about I or 2 a.m. The two
men talked an hour or an hour and a half in what Patton,
Jr , describes as a "bull session "" They talked about hot
rods, dune buggies, motorcycles and such things Then,
Patton, Jr , pointed out a union contract that was lying on
the table He asked Venable to look through it and make
up his own mind whether there was anything in the
contract that would benefit the men if the Company went
union. Together both men looked at the pay scale and
seniority clauses in the contract. Patton, Jr, in effect,
pointed out that the Company pay was better They
discussed welfare benefits but Patton, Jr., does not
remember what was said. He did not ask Venable how he
was going to vote or what his leanings were, nor did he
ask him to vote for the Company The witness states that
he saw no literature or propaganda except the union
contract and that he brought no literature on board. After
this Patton, Jr., returned to the wheelhouse. On the trip
he asked Young, the cook, to be the company observer at
the election on the 17th.°"
lqhere is an instance in the record where another boat had engine
trouble and Patton, Jr., came down with some repair parts to fix it
"Venable did not testify
"Young was the company observer at the Industrial State election on
August 17 He was admittedly not an eligible voter and was not on the
eligibility list
The Examiner does not believe that Patton's ride and
presence on the boat in itself constitutes a valid ground of
objection The circumstances under which he was on
board were legitimate and in the course of business
operations Nor do we find that what Patton, Jr., said to
Venable was legally objectionable Although the contents
of the conversation were, in our opinion, a form of
legitimate electioneering, the question is whether the time
thereof and circumstances militated against a fair election
The conversation was within 24 hours of the election.
Venable was a captive audience perhaps insofar as he was
on the boat and could not very well walk off However, he
had not been summoned to the galley by Patton, Jr Once
there he may have been theoretically free to leave since he
apparently was on his own time and off watch 'S However,
as a practical matter, the employee probably could not
walk out on the vice president of the Company in the
middle of a conversation although there is no evidence
that he remained in the galley unwillingly
The Peerless Plywood doctrine,°6 in the case itself, dealt
with "last minute speeches [of the monologue variety] by
either employers or unions delivered to massed assemblies
of employees on company time . Such a speech,
because of its timing, tends to create a mass psychology
which overrides arguments made through other campaign
media and gives an unfair advantage ." In the instant
case there is no massed assembly of employees and
therefore no mass psychology engendered Although on
company property, it is at least unclear that company
time was used. What happened is that a company official,
apparently fortuitously, was in a situation where he was
able to engage in some rather mild electioneering with a
voter, hours before an election but within 24 hours of the
election, and the Union did not have the same
opportunity We say fortuitously because of the
circumstances under which Patton, Jr., was on the boat,
because of the fact that Venable happened to be in the
galley when Patton, Jr , went for coffee; because a union
contract happened to be on the table There is no evidence
that the Company brought a union contract on board but
there is evidence that Jones had previously brought union
material and literature on the boats and it is probable that
he or a union partisan was responsible for the presence of
a union contract Union contracts are frequently used in
campaigns to show employees the advantages of having a
union We would doubt that if a foreman in an industrial
plant had had a similar conversation with an employee on
company property or on company time and property (so
that it could be said that the employee was a captive
audience), within 24 hours of the election but 5 or more
hours before, that the election should be or would be set
aside it is our opinion that the instant objection does not
warrant setting aside the election
With respect to the fact that the election was not held
on the boat but within 300-500 feet of the moored boat in
the dock area, we incorporate herein what we have stated
above concerning a basically similar situation in the
August 15 election of the Andler.
The Employer's Objections There are 15 numbered
objections filed by the Company and we consider them in
order
I Alleges that the Union "engaged in a campaign of
false and fraudulent misrepresentations . and untruths
calculated and designed to improperly influence
employees . ." We find this objection to be lacking in
"He was in the galley reading a book
"Peerless Plywood Co . 107 NLRB 427
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specificity and to be of a broad and general nature. We
find no evidence to sustain it and we do not sustain it.
2. Alleges that the Union "engaged in a campaign of
threats, coercion , and intimidation , generating fear and
concern among employees...." We repeat what we said
concerning Objection 1, above.
3. Alleges that the Union "threatened with physical
harm employees who expressed opposition to Petitioner,
or those who refused to support Petitioner...." We find
no evidence to support this objection. We do not sustain
it.
4. Alleges that the Union "threatened employees who
opposed Petitioner or refused to support Petitioner with
physical harm or dire consequences if said employees
reported to employer the facts that threats were being
made against them. .." We find no evidence to support
this objection. We do not sustain it.
5. Alleges that the Union "threatened employees who
expressed opposition to Petitioner or who refused to
support Petitioner with job loss and dire consequences in
the event Petitioner prevailed in the election. . . ." We
find no evidence to support this objection. We do not
sustain it.
6. Alleges that the Union "engaged in acts of bribery or
financial inducement by having made gifts of intoxicating
liquors, alcoholic beverages and other luxuries to
employees as an inducement to have employees vote for
Petitioner in the election and/or as an inducement to have
employees reveal how they voted...."
Objection 9, because of its content, will be considered
together with Objection 6. Objection 9 alleges that the
Union "immediately prior to the opening of the polls on
August 19, 1968, represented to two or more employees
that a captain (a supervisor in fact and as stipulated . . . )
had signed a union authorization card and offered to
produce such card for the employee's benefit, and did in
fact usher one employee into an automobile for
examination of such card. This action was deliberately
and intentionally misleading and was deliberately and
intentionally calculated to confuse the employees and to
cause them to believe that employer, acting through its
supervisors, was indicating its desire for the employees to
vote for Petitioner...."
Orme's uncontroverted testimony is that the Binion was
docked at Corpus Christi on August 16. The election was
scheduled for August 19. Glidewell , a union
representative, came on board on the 16th and brought
with him some whiskey and union material. A poker game
with accompanying drinking of the whiskey took place in
the wheelhouse of the boat. Glidewell, Heaton, the mate,
and Orme were participants." Orme states that Glidewell
was talking union and asking us to join. Heaton said to
Orme that if "we" go union, Orme would receive overtime
pay for pumping barges; Heaton asked Orme to sign a
union card.
Before the election on the 19th, Glidewell approached
Orme and said that Captain Lawyer had signed a union
card; Glidewell said that he had just shown it to Taylor, a
deckhand, and Glidewell said that he wanted to show the
card to Orme also. The latter said that he was not
interested. Glidewell also told Orme that the outcome of
the election hinged on Orme's vote. At the election the
Union challenged Orme's ballot on the ground that he was
a supervisor.
According to Orme, after the election on August 19,
Glidewell asked him how he voted and said that, if Orme
gave Glidewell this information, Orme's ballot would not
be opened and the Company would not know how he
voted. Orme replied that he did not care if the Company
knew how he voted. Glidewell, in the conversation,
mentioned that he had two bottles (fifths) of whiskey that
he had not yet had a chance to bring aboard.
As we have seen , Orme's right to vote was challenged
at the election by the Union on the ground that Orme was
a supervisor. Orme, like any challenged voter at a Board
election, marked his ballot in the voting booth, placed it
in a sealed challenge ballot envelope on the outside of
which appeared his name and brief details of the ground
for the challenge. The envelope was then dropped in the
ballot box. Depending upon the ultimate resolution of the
challenge , the envelope will or will not be opened and the
ballot counted or not counted.
Not unreasonably, in the light of the evidence, the
employer, in substance , argues that the Union tried to
secure Orme's support for the Union and endeavored to
induce him to vote for the Union and its last step in this
endeavor was to offer to show Orme the union card signed
by the captain. When Orme expressed no interest in seeing
the card, the Union thereafter challenged his ballot at the
election. But, after the election, since the Union had no
certain knowledge of how Orme had voted (the ballot
being in the unopened challenge envelope) Glidewell
endeavored to persuade Orme to tell him how he had
voted. Impliedly, if Orme said he had voted for the Union
and Glidewell credited him, the Union would not press or
support its challenge or contend that Orme was a
supervisor and the challenge would fail, with Or ne's vote
being counted for the Union. Conversely, if Orme told
Glidewell he had voted against the Union or refused to
reveal how he voted (indicating by his refusal that he had
voted against the Union) then the Union would adhere to
and press its challenge that Orme was a supervisor.
In the Examiner's opinion, the evidence does not reveal
a casual situation where, for instance, a union
representative (or an employer representative) might
chance to be in a bar or some such place and might buy a
drink or a round of drinks for some employees during a
union election campaign . The instant evidence reveals the
use, as a calculated tactic, of a tangible gift of some value,
whiskey, to induce support of the Union and to interfere
with the Board 's election process, particularly the secrecy
of the ballot of an individual voter. While the whiskey was
not actually produced in the conversation with Orme after
the balloting, the indication of its forthcoming availability
was reasonably manifested. We believe that such conduct
constitutes a valid ground of objection."
Glidewell' s statement to Orme on August 19 that
Captain Lawyer had signed a union card and that
Glidewell wanted to show the card to Orme was quite
clearly an effort to persuade Orme to vote for the Union.
Glidewell was not misrepresenting the facts, however,
since Lawyer had signed a card. If Glidewell had simply
said that Lawyer was in favor of a, or the, Union, which
was, in substance , what his statement to Orme a nounted
to, we do not believe it would be objectionable since
signing a card can reasonably be so interpreted. It could
also be said that Glidewell' s statement to Orme was
calculated to convey an assurance that being prounion
would not invite reprisals from the Company and its
supervisors if Orme supported the Union. As the employer
asserts , Glidewell' s statement could likewise convey the
message that the employer was for the Union and wanted
"If there were others , it does not appear from the record "General Cable Corp, 170 NLRB 172, 67 LRRM 1635.
WILLIAM B. PATTON TOWING COMPANY 83
employees to vote for the Union. We believe, however,
that Orme, the company observer at one of the polls, was
in a position to make his own evaluation of the situation
and to vote, in secret, according to his own convictions. A
supervisor could tell Orme or any other employee that he,
the supervisor, supported the Union or did not support the
Union, or some other person could report the foregoing to
Orme or some other employee Such statements, however,
whether believed or not believed by an employee, would
not, in our opinion, impair his own exercise of his
franchise in the secrecy of the voting booth. We,
therefore, do not sustain the foregoing aspect of the
objection.
7 Alleges that the Union "challenged the ballot cast by
employees Roy Q. Booth and Mike Orme without good
cause or a lawful basis therefor and notwithstanding
Petitioner's previous agreement, in the pre-election
conference, as to the eligibility of said employees to vote. .
We are of the opinion that in an election it is
unnecessary to determine the motives behind, or the cause
of, the challenge. The important determination is whether
a challenge is sustained or overruled If a challenge is
unsupported, the challenge will be overruled and this is
adequate disposition of whether the challenge had been
filed without good cause or adequate grounds. By the
same token, in determining whether to sustain or overrule
the challenge, one of the cognizable factors, although
probably not determinative, could or would be a
preelection agreement on eligibility of voters We do not
sustain Objection 7 as a valid objection to the election
8. Alleges that the Union "indicated, inferred and
represented by anonymous telephone calls, rumors and
otherwise that employer had terminated the employment
of employees . Booth and . Guillory, when in fact
such employees had not been terminated, and in support
thereof caused to be filed with the . Board frivolous
charges alleging violations of Section 8(a)(3) of the .
Act This action was deliberately and intentionally
misleading and was deliberately and intentionally
calculated to confuse employees and to cause them to
believe that employer had terminated their employment
and had been found in violation of the . . . Act with
respect thereto . "
There is no evidence of telephone calls, rumors, and so
forth on the above matter There is evidence that Booth
was not terminated and, by implication, at least, it is
shown that Guillory was not terminated since he was on
the voting eligibility list, remained there, and, if he voted,
which he probably did, since he was present at the voting
site on the day of election with the union representative
and others, his vote was not challenged. Booth and
Guillory were, inter alia , alleged to be discriminatees in
the original and first amended charges filed by the Union
on August 14 and 27, 1968, respectively. Their names do
not appear in the second and third amended charges filed
on September 13, and October 17, 1968, respectively.
There is no evidence that the Union knew, when it
included these two men in the charges, that they had not
been terminated. The.Union may have been ill-informed
and may have been confused and may have believed that
employees relieved for 10 days after a 20-day tour were
terminated. Since it was the Union's position that another
employee, Barrett, had been terminated by not being
recalled after a 10-day leave, it may have believed that
others were being similarly treated. The Union may have
been culpable in not adequately ascertaining the facts as
to Booth and Guillory before including them in the
charge. It appears unlikely that fellow employees, who
know that the two men were in Respondent's employ and
may have seen them working throughout, were misled,
and any confusion or lack of reliability might well have
been applied to the Union and to its detriment, as an
organization that did not know what was going on.
Moreover, allegations of numerous discharges for union
activity, including Booth and Guillory, would scarcely
embolden the remaining employees to support the Union
and may well have discouraged them, all to the Union's
disadvantage. In any event, we do not believe that the
filing of unsupported or unwarranted charges, on the facts
shown, constitutes a valid objection to the election A
charge is a claim or an assertion and it is the disposition
of the charge that is important. Many claims and
assertions are made in labor-management affairs
10. Alleges that the Union "engaged in a calculated and
designed effort to threaten, intimidate, coerce and/or
unlawfully induce employees by maintaining visual and
camera surveillance of the various voting areas and the
employees therein, both just prior to and during the actual
voting periods... "
Jones testified that he had a camera with him and that
he took a picture of Patton, Jr , talking to employees on
the boat, evidently the Andler on August 15. This was
prior to the opening of the poll on that day. The voting
booth was on the dock Jones states that he took no
pictures during the election. There is no picture in
evidence.
Patton, Sr., states that on August 17, prior to the
election on the dock area on that date, he saw Jones snap
his camera at Young, the cook on the boat, as Young,
who had come off the boat, was approaching the gate that
was on the dock. Young, said, my God, you didn't take
my picture, did you, or words to that effect, according to
Patton, Sr. What, if anything, Jones said, does not
appear
There is testimony from union and company witnesses
that may be summarized, in my opinion, as showing that,
at the August 15 and 17 elections on the Mobile and Shell
docks, the company representatives were watching the
union representatives and the latter were watching the
company representatives. Occasionally, there were words
or conversation between a representative of one or the
other party with an eligible voter in the dock area but not
at the voting booth itself or im nediately adjacent thereto.
All or most of such conversations or attempted
conversations were relatively brief and the indication is
that they were before the actual voting Such evidence as
we have of such conversations , and it is slight , indicates
that they were of no significance to the matter before us.
Each side believed or professed'to believe in the sinister
implication of any word or approach to a voter by a
representative of the opposing side.
One polling place was at the premises of the company
office and machine shop. At some point during the period
when the poll was open , two union representatives were
seen standing at a driveway entrance to the premises.
Apparently, voters would enter through this entrance. The
place where the representatives were standing was about
75 feet from the inside of the premises where the poll was
located. It is not shown that they spoke to any voters or
that any voters entered while they were standing there.
I do not sustain Objection 10 because , in our opinion, it
is lacking in substantial grounds for objection to the
election.
11. Alleges that the Union "engaged in a calculated and
designed effort to threaten, intimidate, coerce and/or
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully induce employees by transporting to the polling
areas, en masse and individually , both eligible and
ineligible voters...."
For the election on August 15 at Beaumont , Jones, the
union organizer , drove down from Houston . In his car
was Goodwin , a voter who was also the union observer at
the election and possibly another man not identified. In
addition to Jones' car, another car also came from
Houston to Beaumont with the Jones car . Both cars had
started from the union hall in Houston . Who owned or
drove the second car is not clear but there were three or
four occupants , all or most of them voters such as Beard,
Keeton and Guillory . There is no evidence of what was
said, or done during the course of the journey from
Houston to Beaumont.
While it is probably desirable that neither party
transport voters to the polls except by mutual agreement
of all parties , we do not believe that Objection 11, on this
evidence , should constitute grounds for setting the election
aside.
12 Alleges that the Union "engaged in a calculated and
designed effort to threaten , intimidate , coerce and/or
unlawfully induce employees by engaging , at or near the
polling areas , in both open and secluded interrogations
and solicitation of employees immediately prior to the
opening of the polls...."
I believe that what I have set forth above, in connection
with Objection 10, is also pertinent to Object ion 12 and
we do not sustain Objection 12.
13 Alleges "that one or more of the Employer's
supervisors , without Employer's knowledge or consent,
initiated , instigated , participated and/or assisted in
Petitioner ' s organizational activities . Such continuous,
direct and substantial assistance given to Petitioner's
organizational activities by Employer ' s supervisors tainted
the election and thus deprived the employees of the right
to an uncoerced and free choice.
As appears from previous findings in this Decision,
above, several officers, supervisors , signed union cards.
One supervisor , Heaton, a mate, pointed out the
advantages of a union to an employee and asked him to
sign a union card . Some employees were told by the
Union that , when they signed union cards, they should
give them to Captain Lawyer . Lawyer signed a card and
his card was cited by a union representative in trying to
persuade an employee to sign a card and/or vote for the
Union . One captain did not sign a card and expressed
opposition to, or disapproval of, the Union . Lawyer on
one occasion expressed the view to some employees that if
the employer was unionized the crew would no longer
include a cook since this is what he said occurred at
another unionized employer ' s business.
It is accurate to say, therefore , that supervisors were
solicited by the Union and that some supervisors
participated in and assisted the Union ' s campaign. We
can, and do , also find that the supervisors were not acting
on the employer ' s behalf in such activities . The Act's
proscription of assistance to a union refers to employers
and while ordinarily an employer is responsible for the
acts of his supervisors , his agents , this is not true in the
instant aspect . The Act does not prohibit a supervisor
from joining or assisting a union , when acting otherwise
than as an employer ' s agent . But the Act does not protect
the supervisor in his union activity , as such , and he is
subject to the disciplinary power of the employer if he
engages in such activity.
To the extent shown by the evidence , some of the
instant supervisors were acting both on their own behalf
and as agents for the Union in the organizational
campaign We would not be concerned if their union
activity was limited to the expression of prounion views or
sentiments since, like a supervisor who might say that he
did not like unions and was opposed to them, the
protection of free speech under Section 8(c) would or
should apply, at least in our opinion. Since an election
may be set aside if the objections thereto show
interference with the election process and the free choice
of employees, even though the complained of conduct does
not constitute a violation of any section of the Act, we
would also not recommend setting the election aside if the
supervisors expressed prounion (or antiunion ) views and if
this was the only ground alleged for setting aside the
election.
However, the signing of union cards by supervisors and
the solicitation of employees by supervisors to sign cards
are more than expressions of opinion. This is certainly
true of the solicitation of employees and the designation
of a supervisor as the person to whom employees should
bring their signed cards. Arguably, the supervisor's signing
of a card, while it is an act, may be said to be simply a
more demonstrative expression of opinion than the simple
expression of prounion views and should be similarly
regarded . Thus, if a supervisor , instead of saying that he is
in favor of the Union and strongly supports it, simply
signs a union card, the two situations are comparable,
since they both reflect the supervisor' s prounion views.
However, arguable may be the situation where supervisors
simply sign union cards , the solicitation of others by
supervisors and involvement in organizational mechanics,
is a horse of a different color. If supervisors in their more
customary role as agents of the employer on union and
other matters were opposing a union and were not simply
expressing antiunion views under Section 8(c) but were
also soliciting employees not to sign union cards or to sign
an antiunion petition (even if the petition was instigated
by an antiunion rank -and-file employee) and were serving
as a collection point for the antiunion petition, such
conduct would , in our opinion, serve as a basis for setting
an election aside. By the same token, the same standards
would appear to be applicable in the instant situation
where the supervisory activity was directed in the opposite
direction.
If it be said that the reason for finding that the
antiunion activity in the above illustration interfered with
a free election is because the supervisors were agents for
the employer and the employees so interpreted the
antiunion activity of the supervisors , then we must deal
with this argument insofar as it has application to the
instant factual situation . Can it be said that in the instant
case the employees believed that the fact that supervisors
had signed union cards and solicited for the Union
indicated that the employer wanted them to sign union
cards and vote for the Union. On the facts in the case we
would say, no. For one thing, by the day of the election
and before the voting , it was reasonably clear to any
employee , in our opinion , that there were two sides, the
union side and the company side, and that there was not
just a family group of outside union representatives,
prounion employees , company officials , nonunion or
antiunion employees, all united together to vote for the
Union or to try to insure that all voters voted for the
Union.
And as a general proposition , when a union is seeking
to organize an employer's employees , the employer is
either opposed to the union , or he is neutral , or he is in
favor of having the union organize his employees. We
WILLIAM B. PATTON TOWING COMPANY
need not state which of the foregoing positions is most
common, other than to state that overwhelmingly, if cases,
where the employer was opposed to the union and those
where he was neutral, are added together they would
embrace all but a very small percentage of cases. In short,
the situation of an employer wanting a union in his
business is extremely rare and employees and almost
everyone else know this Absent rather clear statement or
indication fro n top management that the Company
wanted a union among its employees or absent a
statement or claim by supervisors to employees that in
signing union cards and helping the union they were acting
to carry out company policy, I would not assume that any
employee interpreted prounion activity of individual
supervisors as an expression of company policy4' No such
statement or indication from top management existed in
this case and no such statement or claim was made by any
supervisor to an employee in this case The most
reasonable interpretation of supervisory actions in this
case by an employee, and the one that we believe existed,
was that the individual supervisor favored or wanted the
union A supervisor, after all, is still an "employee" of the
employer and can have views and interests about his pay,
working conditions, and so forth, that diverge from or do
not coincide with those of the employer. It can also be
said that prounion activity by an individual supervisor
indicated to the employee that he would not incur reprisal
from the supervisor if the employee joined the union and
supported it But since reprisal for union activity would be
illegal, the removal of any fear of reprisal, is not reason
for saying that because the supervisor's union activity had
such effect, it was therefore objectionable
However, the laboratory conditions for an election are
adversely affected, in our opinion, when supervisors, as
here, participate in and assist in an election campaign
among rank-and-file employees. Whether the supervisor is
acting against the union or for the union, and whether he
is acting as an agent for the employer or for the union or
on his own behalf, the supervisor, because he is a
"We are dealing with a one union situation, where the choice is the
union or no union Sometimes, where two unions are contending and the
indications are that the employees will vote for some union rather than no
union , the employer and his supervisors may indicate preference for one of
the two contending unions
85
supervisor, can disproportionately affect the exercise of
choice of employees in what is intended to be a free
election. The immediate supervisor, particularly, is the
person whose activities, and views on the matter of a
union may carry great weight with employees The
supervisor enjoys not only a certain status but also power
over employees and over their day to day working
conditions We believe that when a union, as here, solicits
and secures supervisory help in the union campaign, it is
grounds for setting the election aside.
14 Alleges that the Board's Excelsior rule90 with which
the employer was obliged to comply, was in violation of
the Act and the Administrative Procedure Act and that it
afforded the union an inequitable advantage
I being bound by the Board rule in the Excelsior case,
do not sustain Objection 14.
15. Alleges that the conduct of the Union and others
destroyed the laboratory condition for an election
This objection is general and conclusionary in terms
and is perhaps intended as a catchall or summary
objection Other than as stated heretofore in connection
with various objections we do not sustain this general
objection.
As heretofore appears we have not sustained the
Union's objections to the election Depending upon the
outcome of the election when the challenged ballots are
counted or rejected in accordance with our findings, the
Employer's objections would or would not result in setting
the election aside 51
CONCLUSIONS OF LAW
The burden of proof with respect to the allegations of
the complaint has not been sustained and has not been
supported by substantial evidence on the record as a
whole Respondent has not engaged in unfair labor
practices under Section 8(a)(I) and (3) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed
"Excelsior Underwear . 156 N LRB No 111
"Keeshin Poultry Company . 97 NLRB 467, 472, Rath Packing Co. 113
NLRB 382, 383