Alaska Marine Pilotage, Inc.

National Labor Relations Board - Board Decisions

May 29, 1975

218 N.L.R.B. 76 (N.L.R.B. 1975)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alaska Marine Pilotage, Incorporated and Robert J. hereby orders that Respondent, Alaska Marine
Herring. Case 19-CA-7024
May 29, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 18, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, to which the General
Counsel filed an answering brief, as well as cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings, and conclusions of the Administrative Law
Judge as modified herein and to adopt his recom-
mended Order.
The Administrative Law Judge found and we agree
that in January 1974 the Respondent denied Robert
Herring's request to take a training trip to Seward,
Alaska, in violation of Section 8(a)(I) of the Act. In
reaching this conclusion we have not relied on pre-
10(b) violations to find a continuing violation. To the
extent that we have relied on pre-10(b) evidence we
have done so solely for the purpose of throwing light
on and evaluating the violation which occurred
within the 10(b) period.2 Local Lodge No. 1424,
Association of International Machinists, AFL-CIO
[Bryan Manufacturing Company] v. N.L.R,B., 362
U.S. 411 (1960). To avoid any confusion as to our
finding in this regard we shall amend the Administra-
tive Law Judge's Conclusion of Law 4 to read as
follows:
"4. By refusing to accommodate Robert J. Her-
ring's request in January 1974 to make a training trip
to Seward, Alaska, for the purpose of adding an
endorsement to his pilot's license, because of his
activities on behalf of the Union, and because of his
other protected concerted activities, Respondent has
engaged in an unfair labor practice in violation of
Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
218 NLRB No. 30
Pilotage, Incorporated, Homer, Alaska, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
1 General Counsel's cross-exception 2 is not directed to a formal finding
and is therefore unnecessary to resolve. As indicated in the Administrative
Law Judge's Decision, General Counsel's cross-exception 1 is meritorious,
and accordingly the affidavit of J. B. McCormack is hereby stricken from
the record.
2 In finding a violation of Sec. 8(axl) within the 10(b) period we do not
rely on the Administrative Law Judge's finding of a continuing 'violation
involving pre-10(b) violations , and we specifically disavow fn. 4 of his
Decision relating to the applicability of Sec. 10(b) to this case.
DECISION
STATEMENT OF THE CASE
RussELL L. STEvENs, Administrative Law Judge: This
matter was heard at Homer, Alaska, on July 16 and 17,
1974. The complaint, issued May 10, 1974, is based on a
charge filed April 15, 1974, by Robert J. Herring, an
individual, hereinafter referred to as Herring. The com-
plaint alleges that Alaska Marine Pilotage, Incorporated,
hereinafter referred to as Respondent, discharged Herring
and, independently, refused Herring's requests for training
trips aboard vessels because of the latter's activities on
behalf of the Union, thereby violating Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended,
hereinafter referred to as the Act.
On May 17, 1974, counsel for Respondent filed an
undated motion for bill of particulars and/or production of
affidavits taken from Charging Party and probable
witnesses . On May 20, 1974, counsel for Respondent filed
an undated motion to strike paragraph 5 of the complaint.
On June 10, 1974, Deputy West Coast Presiding Adminis-
trative Law Judge Allen Sinsheimer , Jr., filed his order in
response to Respondent's said two motions, denying the
same for reasons set forth in said order. Counsel for
Respondent renewed his motions at hearing, and decision
was reserved for possible further argument in briefs. No
persuasive arguments having been made during the hearing
or in briefs, other than the remarks previously made in the
two motions filed by counsel for Respondent, and the
matter having been fully considered, the renewed motions
filed by Respondent hereby are denied.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and file briefs. Briefs , which have
been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case,' and from my
observation of the witnesses and their demeanor, I make
the following:
1 Because a partially incomplete record was developed during the
hearing herein , the General Counsel was requested during hearing, without
objection by counsel for Respondent , to obtain and file for the record,
Herring's final job performance report prepared by his former employer, the
State of Hawaii . That report was received August 9, 1974, and is included as
(Continued)
ALASKA MARINE PILOTAGE, INC. 77
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Alaska corporation with headquarters
in Homer, Alaska, where it is engaged in the furnishing of
marine pilot services. Among others, three of Respondent's
customers are Atlantic Richfield Refining Company, Shell
Oil Company, and Union Oil Company, all of which are
corporations engaged in the production and marketing of
oil products within the State of Alaska and other States.
During the past calendar year, a representative period,
Atlantic Richfield Refining Company, Shell Oil Company,
and Union Oil Company each shipped goods valued in
excess of $50,000 directly from locations within the State of
Alaska to locations outside the State of Alaska. During the
past calendar year, a representative period, Respondent
performed services valued cumulatively in excess of
$50,000 for said three oil companies. I find that Respon-
dent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Southwest Alaska Branch, Pilots Division, International
Organization of Masters, Mates and Pilots, AFL-CIO
(hereinafter referred to as the Union), is now, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
fellow pilots, and a troublemaker. Johnson contends that
he thought about the possibility of firing Herring for a
considerable period of time before Herring's actual
discharge, but that he delayed the discharge because of the
shortage of pilots. Johnson contends that he discharged
Herring at the first opportunity, when he had adequate
pilots for services within the area served out of Homer.
Instances were cited at hearing wherein Herring alleged-
ly damaged shore facilities because of his inadequacies,
and Johnson alleges that he discovered on a trip to Hawaii
that Herring had a poor work record there. Johnson
contends that Herring was fired solely because of his
personal deficiencies, and that union activity had no part
in the discharge.
Herring contends that his work with Johnson was
excellent; he was not at fault in the incidents on which
Johnson relied for the discharge; he got along very well
with ships' officers and crews; his work was "more than
satisfactory" in Honolulu; and the only reason he was
discharged was because of union and protected activities.
So far as the secondary issue concerning training trips is
concerned, Johnson acknowledges that he discontinued
training trips for Herring, but claims: (a) Herring was not
interested in training trips and demanded that he be paid
expenses in advance, and (b) that he knew he eventually
would discharge Herring, and therefore felt as though he
would be spending money needlessly, to provide funds for
Herring to take training trips.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Background
Respondent is a small corporation, organized by William
Johnson (hereinafter Johnson) in September 1965 for the
purpose of providing marine pilot services out of Homer,
Alaska, for the port of Anchorage, and various ports in the
Homer-Anchorage area. Initially Respondent only had two
employees-Johnson and his wife. Johnson hired his fast'
employee, a pilot named William Tingley (hereinafter
Tingley) in early 1967, and subsequently hired another
pilot in 1969. Since the latter date, Johnson has continued
to add pilots as necessary, and presently employs six pilots
other than himself. Johnson does some piloting when other
pilots are busy, but a substantial portion of his time is
consumed in administration of the organization, with the
assistance of Mrs. Johnson.
Johnson has been a union member many years, has been
active in union affairs, and was largely responsible for
establishment of the Southwest Alaska Branch of the
Union.
Herring first was employed as a pilot by Johnson July 10,
1971. He was discharged by Johnson February 25, 1974.
Johnson contends that Herring was discharged because he
was a disruptive influence in the organization and a poor
pilot. Johnson contends that Herring was rude to officers
and crews on ships, difficult to get along with, critical of his
an unnumbered exhibit in General Counsel's exhibit folder.
Respondent submitted an affidavit, -by letter dated August 19, 1974, in
response to the report received from the General Counsel. The latter filed a
formal objection to admission of the affidavit. Although there is some merit
A. Herring's Discharge
Resolution of this controversy depends almost entirely
upon assessment of credibility of the witnesses. Almost
without exception, the incidents and statements relied on
by Johnson for his discharge of Herring are flatly denied
by Herring.
Herring testified that the Southwest Alaska Branch- of
the Union was established in the spring of 1972, and that
thereafter the branch had meetings on approximately a
quarterly basis. Herring testified that he attended those
meetings, and that Johnson also normally attended them.
He said there was a meeting in April 1973 to which he took
a memorandum that he had prepared, listing "gripes,
complaints and proposals" for discussion among the pilots.
He said nearly all the items on his list were discussed with
the other pilots prior to the meeting, but that, as he read
the list, Johnson stated that he thought the complaints were
solely Herring's product, and that other pilots had taken no
part in their preparation. Herring testified that Johnson
was advised by other pilots at the meeting that the latter
had discussed the various proposals with Herring, and that
they agreed that some work changes were desirable.
Herring testified that the next meeting of the pilots
branch was held in October 1973, attended by the same six
pilots, including Johnson. Herring testified that,' at the
October meeting, the pilots unanimously agreed to' the
organization of a committee comprised of pilots Glud,
to the General Counsel's objections , the affidavit is admitted unnumbered,
and has been considered together with the General Counsel 's offer, in order
to complete the record and to allow full opportunity for defense.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cunningham, and Herring for the purpose of drafting
proposals for a union contract to be presented to Johnson.
Herring stated that the committee subsequently met
several times, drafted proposals, and planned to present a
contract draft at the next pilots' meeting. Herring stated
that, the draft was largely the product of the committee, but
that pilot Hurd also contributed to it.
Herring - testified that the next meeting of the pilots
branch was held approximately February 1, 1974, at which
time Herring gave-draft copies of the proposed contract to
the six pilots present. It was decided that the members
would take no action on the proposals at the meeting, but
rather would take the draft home for further study and
possible later action.
Herring testified that he was discharged February 25,
1974, and that he was given no reason for his discharge. He
testified that at no time had he ever been reprimanded,
warned, or talked to, by Johnson concerning any alleged
deficiencies in his work or his conduct as a pilot and
employee. He said that, to his knowledge, there had never
been any complaints concerning his work.
On• cross-examination, Herring testified that he worked-
for the State of Hawaii as a pilot about 3-1/2 years prior to
being employed by Johnson. He said he terminated his
employment with the State of Hawaii approximately 2
weeks prior to going on Respondent's payroll in July 1971.
Herring testified that there were "perhaps half-a-dozen
incidents that occurred on vessels while I was piloting for
the State of Hawaii," which resulted in damage to the
vessels he was piloting, other vessels, or shoreside facilities.
Herring denied that any of the incidents jeopardized his
position as a pilot, and denied that he was ever put on
notice by his supervisor in Hawaii that his performance as
a pilot was marginal. He testified that one of the
"casualties" involved the 1969 sinking of a tugboat which,
according to Herring, suddenly crossed the bow of the
vessel he, was piloting. Herring testified that he was
charged by,the coast guard with negligence because of the
sinking of the tugboat, and that a hearing subsequently was
held; in which he was found guilty of negligence. He stated
that the finding was appealed, and that subsequently the
charge was dismissed. Herring testified that, from the
finding of negligence by the coast guard until the present
time, his permanent and regular license has been lifted and
he has been operating with a 6 months' renewable license.
He said the license has been renewed approximately each 6
months and that he discussed this entire matter of the
sinking, the hearing, the appeal, and the status of his
license with Johnson prior to his employment by the latter.
He said Johnson "sympathized with my problems with the
coast guard and said he felt I'd probably be able to clear
the record in, time and that my appeal would be
successful." Herring also testified on cross-examination
that he has discussed the status of his license with Johnson
"many times.11
Johnson testified that he first experienced difficulty with
Herring within a few months after he hired him. The first
specific incident to which Johnson testified was one
involving the ship J. L. Hannah, which was one of the first
ships Herring piloted into Anchorage. The incident
occurred in 1971 or 1972, after Herring had been hired by
Johnson.2 According to Herring, he was without fault and
there was no damage to the ship, although there was
approximately $20,000 damage to the dock, which was hit
by the ship. Johnson testified that he later discussed the
incident with the master of the vessel, who labeled
Herring's-version of the accident as a lie.
The next incident, testified to by Johnson, involved the
ship Golden Gate, in January 1973. Herring had earlier
testified concerning this incident, and according to him
some words were exchanged between him and the master
of the Golden Gate when the ship was in a precarious
position, surrounded by , ice. It appeared likely that an
accident was imminent and could be avoided only by fast
action. According to Herring, he spoke curtly to the
captain and some of the crew in order to obtain prompt
action in getting the ship and crew out of immediate
danger. Johnson testified that he'was aboard the ship, and
he verified the fact that the ship was in a precarious
position at the time of the incident. His statement was "it
was a bad situation, that part of it is certainly granted." He
stated that Herring, in talking to the captain, "used a loud
and vulgar tone, four letter words and the captain didn't
like it." When asked what Herring's reaction was to the
chastisement given by the captain on that occasion,
Johnson testified "he apologized and so did the captain -
they apologized and agreed to forget about it - it was a
tough circumstance, that's for sure." Johnson also stated,
"Well, they more or less calmed down and agreed to sort of
forget about it - everybody was up tight because of the
terrific ice conditions we were having."
According to Johnson's testimony, the next incident
involving Herring occurred in March 1973, when Johnson
advised the then office manager (John Cooper, hereinafter
Cooper) that Herring was not to be dispatched on any
more training trips without first checking with Johnson.
Johnson testified that the reason for giving that instruction
to Cooper was "I didn't plan on- keeping Herring on any
longer than possible. I didn't want to pour money down
the rathole as the saying goes."
On a date not established by the record, but apparently
some time in 1973, pilot James Hurd (hereinafter Hurd)
told Johnson that, in late 1972, Herring had embarrassed
Hurd by challenging him en route to the pilotage of two
destroyers. According to the report Hurd gave to Johnson,
Herring at that time (1972) accused Hurd of being a
Johnson favorite and obtaining the assignment of piloting
the destroyer considered to be the better of the two.
According to Johnson, he had conversations on several
occasions with a Mr. Clem Tilhon, the operator of the pilot
boat, wherein Tillion stated to Johnson that Herring often
criticized Johnson's company and his copilots, and
allegedly Tillion told Johnson that he had remarked to
Herring "don't knock the brand you ride for." According
to Johnson, Tillion also stated, "I've just about given up on
Herring, there's no hope."
Johnson testified that he finally realized he would have
to take definite action concerning Herring, and that he
went to Honolulu in May 1973 to check on Herring and his
past employment with the State of-Hawaii. He said he was
2 The record does not establish a definite date, but it does show that the incident occurred early in Herring's history with Respondent,
ALASKA MARINE PILOTAGE, INC. 79
in Honolulu about 2 days, during which time he visited the
coast guard office, where he was told about some of the
incidents in which Herring was involved in Honolulu
harbor. Johnson said he was told by officials in Hawaii
that Herring was a troublemaker, and had been notified
that his work was marginal. Johnson testified that,
although his visit to Hawaii strengthened his thought that
Herring would have to be discharged, he did not
immediately discharge him because of the shortage of
pilots at the time. He said, "We couldn't afford to be with
one less."
The next incident testified to by Johnson was a report
allegedly made by Herring to Johnson, concerning a time
in early 1973 when Herring was at Cold Bay aboard the
vessels Hillyer Brown, piloted by Captain Tingley. The
vessel[ ran aground, causing considerable damage, and,
according to Johnson, Herring reported to him, "I'm going
to tell you this and I'm going to tell you one time only and
then we will forget about it - there was altogether too
much drinking going on - on that ship." Johnson testified
that Herring refused to say whether or not Tingley was
drunk, but "it sure left the implication that he was."
According to separate testimony, Herring made statements
other than to Johnson that implied Tingley was drinking,
along with others, aboard the Hillyer Brown before it ran
aground.
The next incident related by Johnson occurred in June
1973. According to Johnson, Herring boarded the ship
Texaco New Jersey about 1-1/2 to 2 hours too late on the
tide, and the ship was slowed down for arrival at Homer.
According to Johnson, Herring should have been aboard
earlier in order to make the tide into the port of
Anchorage, and that the delay was not for any reason other
than Herring's own convenience. Johnson said the delay
caused unnecessary loss of time and expense to the ship,
although no complaint was ever made 1 o Johnson by the
ship owners.
The next incident testified to by Johnson occurred in
February 1974. According to Johnson, Herring telephoned
him about 9 a.m. on that day, to discuss the piloting
schedule that Herring had at the time. Johnson said
Herring stated, among other things, "Oh, you're drunk or
you wouldn't be saying that" - and he later made the
same comment at a union meeting.
Johnson acknowledged that he never talked with Herring
concerning his alleged rudeness to ship's officers and crew,
that he never discussed with Herring any of the incidents
related above, and that he never reprimanded Herring for
any of his actions while on duty. Johnson stated that he has
piloted ships with Hemng on about 8 or 10 occasions.
Johnson testified in summary that many things entered
into his consideration of the firing of Herring, including
Herring's rude conduct, his poor work performance, his
participation in the various incidents described above, his
derogatory remarks made to employees of Johnson and
persons outside Johnson's organization, and Herring's
general attitude, conduct, and inability to get along with
others. Finally, he testified that part of the reason for
discharge was his concern about Herring"s license. Johnson
acknowledged that he talked with Herring concerning the
latter's pilot license, both before Herring was hired and
thereafter.
Concerning the various complaints made by Herring at
the union meeting in April 1973 and the proposals
thereafter presented to the members of the branch union,
Johnson testified that he did not resist or oppose the
proposals, and he stated that, in any event, most of them
already were in effect. He said the discussion of April 1973
primarily involved a proposed medical plan.
Johnson testified that Herring's discharge date was
related only to the combination of weather conditions and
availability of other pilots for hire.
Mrs. Johnson testified that Herring talked with John-
son about Herring's license suspension poor to the latter's
being hired by Respondent. She also testified that Herring
was never reprimanded, warned, or otherwise put on notice
that his work was unsatisfactory, or that his conduct was
not in accordance with the policies of Respondent. She
said Herring was hired against the recommendations of
two of the pilots working prior to Herring's employment,
that is, pilots Swett and Tingley. She said Herring exhibited
qualities that made him unsatisfactory from management
standpoint, almost immediately upon his coming aboard,
and that the first thought of possibly firing Herring
occurred in early 1972, because he caused trouble and
dissension. She said she was told by an official of Chevron
in March 1973 that Chevron did not want Herring assigned
to any of their vessels at any time in the future, because of
the unsatisfactory nature of his work and conduct. She
testified that she and others started insisting to Mr.
Johnson in April 1973, that Herring be fired. She said it
was not possible to put Captain Tingley on the same ship
with Captain Herring, even though it is necessary at times
to put two pilots aboard, ^ because of the inability of
Herring to get along with Tingley.
Mrs. Johnson also testified that Respondent had a
problem with its insurance agent in December 1973,
occasioned by Herring's reckless driving habits. She said
that, as a result of the problem, the insurance company
assessed higher rates for automobile coverage against the
Respondent.
Mrs. Johnson testified, in clarification of customary
business practice, that it is common in the trade to receive
instructions from owners of vessels to forbid certain pilots
performing services for those customers. She said, for
instance, that Respondent was requested by Chevron not
to allow Tingley to perform piloting services, and that
Captain Glud was forbidden to pilot Sea Land ships.
Finally, Mrs. Johnson testified that the proposals made
by union members already were in effect for the most part,
and that neither she nor Mr. Johnson was particularly
concerned with the proposals.
John Cunningham testified as a witness for the General
Counsel, and stated that he had been a pilot for
Respondent about 4 years. He said he attended the union
meeting of April 1, 1973, at which time Herring presented a
list of his grievances. Cunningham testified that there was
discussion at the meeting concerning the complaints and
that he as well as others had complaints. Cunningham
testified that he and several other pilots talked with
Herring about the complaints prior to the meeting, and
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the complaints concerned such things as safety
proposals, health insurance, sick leave, wages, compensa-
tion for extra work performed, and others. Cunningham
said he discussed the complaints and other matters with
Captain Johnson a few days after the meeting, and that
Captain Johnson defended himself, saying that he had
done his best and that he probably was going to have to let
Herring go because he was creating too much trouble in
the group, and causing dissension and "shaking the
organization up."
Cunningham testified that, at a later meeting of the
members of the group in January 1974, a list of proposals
was read to the group, and that the list had'been compiled
after conversations with all members of the group. He said
the proposals were not formally acted upon, because some
of the members wanted a couple of weeks to study them
prior to any action being taken. He stated the only person
who had not contributed to the proposals was Captain
Tingley.
According to Cunningham, Johnson stated at the
January 1974 meeting that it was obvious the proposals
were "practically all Herring's work." Cunningham said he
and Glad denied that statement by Johnson, and they
advised Johnson that everyone except Tingley contributed
to the proposals.
Cunningham stated that he discussed the proposals with
Johnson after the January 1974 meeting, and that,
although Johnson never stated directly that he would
refuse to negotiate with the group, Johnson "had a negative
attitude on almost all of the proposals and that gave me the
impression that he didn't want a contract."
Cunningham testified that Captain Johnson told him
after Herring's discharge that he fired Herring "for causing
too much trouble within the group, creating dissent."
William Tingley testified that he was the first pilot
employed by Johnson. He said the pilot branch of the
Union at Homer was organized in early 1972, substantially
through the efforts of Johnson. He said the branch has had
bylaws for about 2-1/2 years.
Tingl&y said the friction between Johnson and Herring
commenced 'about July '1972 and has continued to the
present: He said the two frequently have had words, and
that there was considerable friction between them at the
meeting of April 1973, during which Herring introduced
his list of complaints. He said Johnson remarked to him
that everything was alright in the Company until Herring
was hired.
Tingley testified that he and Herring are not on speaking
terms, and he stated that Herring criticized several of the
other pilots. Included were comments made by Herring to
Tingley that Cunningham was a drunk, Glud's license was
too 'limited, Johnson was skimming profits from the
corporation, and Swett was a "fuddy-duddy."
Tingley testified that the first talk about a possible
contract between the Union and Respondent Was in April
1973,' at the meeting described above. He said there was
general discussion among the members of contract propos-
als at a meeting in early 1974, before Herring was fired,
and that the same proposals were discussed after Herring
was fired.
Tingley confirmed the incident previously referred to,
wherein he was piloting a ship which ran aground in Cold
Bay, at which time Herring was aboard. Tingley stated that
Herring made the remark that he, Herring, would not have
run aground had he been piloting, and that Tingley was
drinking at the time. Tingley said the remarks attributed to
Herring were made to him by Mr. and Mrs. Falconer.
(Falconer formerly was a pilot with Respondent.)
Mr. William Murphy testified that he is a pilot for
Respondent, and that the master of the SS Sansinina
reported to Murphy that Herring had been "bad-mouth-
ing" Murphy and questioned Murphy's ability. Murphy
testified that he had discussed the contract proposals with
Johnson at some date after Herring was fired, and that
Johnson did not object to any of the proposals.
James Hurd testified that he has been a pilot with
Respondent since June 1, 1972, and that when he' arrived,
there was no apparent animosity between Herring and
Johnson. He said he first noticed such animosity in or
about May or June 1973, and that he noticed it later in
January 1974. He said officers aboard ships that he piloted
often asked about the relationship between Johnson and
Herring.
Hurd related two incidents wherein he was involved with
Herring. The first was an incident in late 1972, wherein
Hemng allegedly challenged Hurd as being a favorite of
Johnson and getting the better of two pilot jobs on
destroyers that had been assigned to Herring and Hurd.
The second was an incident in mid-1973, wherein Herring
allegedly refused to let the ship he was piloting slow down
so that a fish order could be given over the side. Hurd said
that giving fish orders in such manner was a common
occurrence. He said he mentioned the first incident several
months later to Johnson, but heard nothing further about
it. Hurd testified that he has served with Herring, as
Herring's subordinate, on or about 15 different occasions.
Hurd testified that, sometime in the fall of 1973, he
believes he heard Johnson state that if Herring "didn't
straighten up he was going to have to get rid of him."
Hurd testified that possible medical plan was at the heart
of the proposals made by the union group to the
Respondent.
John Cooper testified that he was office manager and
dispatcher for Respondent from May 1, 1971, until
February 4, 1974. He testified that Johnson remarked to
him in May 1973 that Tingley told Johnson he was
perfectly happy with the way the Company was being run,
until Herring came along and started stirring up trouble.
Johnson said Herring was the only unhappy employee.
Cooper stated ,that the friction between Herring and
Johnson first was apparent after a union meeting, in or
about May 1973.
Cooper testified that, so far as he knows, no formal or
informal reprimand ever was given to Herring about his
work.
William Bullard testified that he formerly was a pilot in
Hawaii, and' talked with Johnson about possibly working
for Respondent during a telephone conversation in May
1973. He said Johnson indicated an interest in hiring him,
but that Johnson thought it was not a good idea to come to
Homer at that time because he was "having a problem with
ALASKA MARINE PILOTAGE, INC.
Captain Herring." Bullard said he asked Johnson if the
problem with Herring had anything to do with the latter's
ship handling ability, and Johnson replied "no it was not."
Johnson said all the pilots in Homer had joined the pilots
division of the Masters, Mates and Pilots Union, and that
at one of the first meetings Herring introduced a number of
proposals that Johnson thought were extremely unfair.
Johnson allegedly told Bullard that Johnson had learned,
upon questioning other pilots, that the ideas were Herring's
own. Bullard testified that Johnson preceded the conversa-
tion with a statement, "I think I'm going to have to let
Captain Herring go, how good a friend is he of yours?"
Bullard testified that Johnson came to Honolulu about
10 days or 2 weeks after the telephone conversation, and
that he met with Johnson on two or'three occasions to talk
about his possible employment with Respondent. He said
he also talked with Johnson about Herring and the
problems in Alaska, and discussed in some detail the
proposals Herring and the others had made to Johnson.
Bullard stated that Johnson remarked that the proposals
were "going to cost him a lot of money - it was a question
of dollars and cents."
Gordon Riordan testified that he was a pilot trainee with
Respondent from March 1 to June 17, 1974, and that prior
to being hired by Respondent he came to Homer to be
interviewed by Johnson. Riordan testified that, when he
was in Homer, he saw Herring's name on the pilot's list
and he asked Johnson if this was the same Herring who
had been on Wake Island. Johnson said it was, and
Riordan asked, "He's a pretty good man isn't he?" Johnson
allegedly agreed that he was. Riordan further testified that
he knew of Herring's reputation on Wake, and that it was
excellent.
During a conversation with Johnson while in Homer,
Riordan had an opportunity to see the contract proposals,
and he testified that Johnson asked him what he thought of
them . Riordan testified that he stated he "saw nothing in it
that was unreasonable or out of line." Riordan stated that
Johnson remarked that the pilots could pay for their own
medical expenses, and that Herring would have to go if he
did not stop making trouble.
Riordan finally testified that he had a conversation with
Johnson during his training period, and that Johnson
remarked that Riordan did not know how close he came to
not being selected and that, if Riordan had views similar to
Captain Herring's, he would not have been hired. Rior-
dan's wife corroborated his testimony.
Robert Glud testified that he has been a pilot for
Respondent about 3-1/2 years, and that he is branch
officer of the Southwest Alaska Branch of the pilots
division of Masters, Mates and Pilots. Glud testified to a
conversation he had with Tingley and Herring, ' during
which Tingley made it quite plain that he also had several
complaints about Respondent. According to Glud, Tingley
stated he wanted better working conditions and more
money. Glud testified that Herring responded to Tingley
by stating that the best place to take these matters up was
in front of Captain Johnson or in a union meeting, and
"get it discussed where it belongs, not behind' somebody's
back." Glud stated that he supported the proposals
suggested by Herring.
81
Glud testified that, at the union meeting of October
1973, he reported on his visit to the international
convention in Baltimore as branch officer of the Homer
local. He said other pilots asked what type of contract
Glud had in Homer, and Glud replied that he did not have
a contract "we just have a working agreement." Glud
testified that, following his report to the union group at
Homer, it was suggested that Glud draw up a contract
proposal. He said it was voted unanimously that such a
contract be drawn up. Glud said he asked Herring and
Cunningham to assist him as a committee , to get proposals
from all members. Glud testified that the committee went
to all pilots in the unit, including Johnson, and asked if
they had anything they wanted to put into the contract. He
said the committee had several meetings, as a result of
which a draft contract was prepared, and presented to the
membership. Glud testified that Johnson stated at the
meeting of January 1974 that he felt the proposals were all
Herring's work and that he would not sign the proposal.
Glud said that he, Cunningham, and Herring responded
that the proposals represented the product of all the pilots,
not just Herring. Glud stated that the proposals presently
have the approval of the pilot group, but that no action has
been taken, pending the outcome of this case.
B. Discontinuance of Training Trips
Herring testified to the system followed by Respondent,
whereby pilots' pay is related to -license endorsements.
Testimony established that, in order to obtain endorse-
ments, it is necessary for pilots to familiarize themselves
with the ports involved, there being separate endorsements
for each port. When a pilot considers himself adequately
trained, he is permitted to take a qualifying test. If the test
is satisfactorily passed, an endorsement is placed upon the
license.
Testimony also established that training trips sometimes
are suggested by management, sometimes requested by
pilots, and sometimes mutually arranged. Management
must approve all trips, since it is necessary to coordinate
training trips with work requirements, with the latter taking
priority. Ordinarily, training trips are made aboard vessels
which are under pilotage by Respondent's pilots, but it is
possible for pilots of Respondent to go on training trips
aboard Alaska state-owned ferries. However, Alaska state
ferries do not go to all the ports for which endorsements
are obtained. Also, state ferries are only about 300 feet in
length, and of about 3,000' tons, which is considerably
smaller than vessels ordinarily piloted by Respondent's
personnel.
Herring testified without contradiction that, prior to
May 1, 1973, he went on about 50 training trips, and that
after May 1, 1973, he was given no training trips. He said
he asked for a Kodiak trip in the early summer of 1973,
and for a Seward trip in January 1974, but was not advised
in either instance that he could go on a trip. Herring
testified that, shortly after he was terminated on February
25, 1974, Cooper told him that he, Cooper, had been
ordered by Johnson not to schedule Herring for training
trips, or to permit him to take any further trips, even if
Herring paid the entire expense himself, because Herring
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a troublemaker and he did not want him going out of
town on training trips again.
Cooper testified that training trips are scheduled through
the office, either by the office manager or by Mr. or Mrs.
Johnson. He said it is necessary to have office approval
prior to taking the training trips. Cooper testified that
Herring was very anxious to, obtain training trips and told
Cooper he would go on any trip.
Cooper testified that, some time in the early spring of
1973, Johnson told Cooper that he did not want Herring to
go to any more out ports on training trips. Cooper stated
that the instruction from Johnson took place some time
shortly after the union meeting held in April 1973. Cooper
said he followed Johnson's instructions, and that he did not
advise Herring of Johnson's instructions until after Herring
was fired.
Mrs. Johnson testified that, until about the end of 1971,
Herring was riding with senior pilots for training, but that
thereafter Herring objected to having to ride with the pilots
because he felt he was well acquainted with the inlet.
Johnson testified that Herring was not interested in taking
training trips and broadening his license endorsement, and
that Herring had given the Johnsons quite a lot of trouble
by demanding that he be paid for trip expense in advance.
Johnson testified that a further difficulty with Herring was
that Herring could not be placed aboard the same vessel
with Captain Tingley, because "that's like putting dyna-
mite with matches." Johnson testified that the only
occasion he could recall wherein Herring asked for a
training trip was a trip that was requested in January 1974
to go to Seward. However, Tingley was aboard the vessel,
and Johnson would not put the two together. Johnson
testified that, in his opinion, the ferry system is an
adequate means to obtain required trips to pass examina-
tions for license endorsements.
Johnson acknowledged that he had given instructions to
Cooper not to arrange training trips for Hemng without
first checking with Johnson. He said the instruction was
given to Cooper in March 1973, because Johnson wanted
to dismiss Herring at the earliest possible time, and he
(Johnson) did not want to "pour money down the rat
hole."
Analysis and Conclusions
A. Herring's Discharge
In support of its contention of lawful discharge,
Respondent introduced testimony concerning a series of
alleged incidents to illustrate Herring's attitude and work
performance. The question is whether or not such incidents
are pretextual, or whether their cumulative effect resulted
in Herring's lawful discharge.
Herring was employed by Respondent on July 10, 1971.
The only substantial incident concerning which evidence
was adduced occurred shortly after he was employed. The
incident involved the ship Hannah, and it occurred on one
of Herring's first pilot trips into the Port of Anchorage. The
ship struck a catwalk on the dock, and, according to
Herring's version of the accident, he was without fault.
According to Johnson, as related to him by the captain of
the Hannah, Herring was at fault. However, regardless of
fault, Herring was not reprimanded or punished, and there
is no indication that the incident was considered to be a
serious one . It is not realistic to give any weight to this
incident in considering Herring's discharge, because, first,
the incident was of no more than passing interest at the
time ; second, testimony shows that casualties of this nature
are not at all unusual ; third, the incident occurred long
ago. Johnson testified that Tingley was involved in a piling
damage accident in 1974; that Swett ran a ship onto a rock
in 1970; and that Glud was involved in a collision in 1973.
All were more serious than the Hannah incident, yet none
of the pilots were disciplined. In addition, Tingley ran a
vessel aground (the Cold Bay incident),, for which he was
suspended 9 months, but not discharged. No reason was
shown why Johnson did not discipline Herring at the time,
if Johnson thought the incident was a serious one, or that
Herring was at fault. It simply is not reasonable to consider
the Hannah matter of late 1971 or early 1972 as a cause for
discharge in 1974.
Mrs. Johnson testified that thought first was given to
firing Herring the early part of 1972, and that she insisted
to Johnson in April 1973 that Herring be fired. However,
that testimony has no support in the record, and is
accorded little, if any, weight. The April 1973 date
particularly is suspect unless, contrary to the implication
intended by Mrs. Johnson, she was as exercised as her
husband about Herring's union activity..
It is clear that Herring and Johnson were not compatible
workers. Their personalities are entirely different, and the
record shows that Herring can be an abrasive person. With
the passage of time, Herring and Johnson found them-
selves at odds with each other. According to Tingley and
Cunningham, conflict between Herring and Johnson
commenced about the middle of 1972. Hurd said he first
noticed the conflict about the middle of 1973. It is not
possible to establish a definite date when their disagree-
ments first began, but, in any event, it is clear that no
action was taken by Johnson against Herring, and Johnson
never spoke with Herring about any characteristics he may
have thought undesirable.
One of the incidents relied on by Respondent to establish
the fact that Herring was fired for good cause was that
involving Herring's challenging of, Hurd relative to
assignment for piloting a destroyer in late 1972. Very little
weight, if any, is attached to that incident because, in the
first place, the alleged incident involved no more than
Herring's grousing to Hurd over what he considered a
slight, and, second, Hurd did not relate the incident to
Johnson until several months later. No more was involved
than a simple exchange of words between Herring and
Hurd. It was a minor matter. Hurd and Herring frequently
worked together on the same ship without difficulty,' both
before and after the incident.
The Golden Gate incident, which occurred in January
1973, is an extremely weak reed for any support of the
discharge of Herring. Even granting that Herring probably
used sea language at the time of the incident, as attributed
to him, it is clear from the testimony of both Herring and
Johnson that the words were uttered, during a period of
considerable danger and stress . The lives of seamen were in
jeopardy, and it was not a moment when calm, dispassion-
ALASKA MARINE PILOTAGE, INC. 83
ate words could be expected. Further than this, Johnson
testified that Herring and the captain apologized to each
other after the incident. Finally, Johnson had been aboard
the vessel with Herring about 3 days al the time of the
incident, and Johnson made no mention in his testimony of
Herring's work, attitude, or general deportment, while he
was on the vessel, other than this single outburst during a
moment of danger. This incident is assigned no weight in
Herring's discharge.
The next incident relied on by Respondent was the Cold
Bay grounding of a vessel by Tingley in early 1973.
Respondent elicited testimony from witnesses intended to
show that Herring stated to persons unidentified (other
than Tingley) that if he had been aboard the ship as pilot,
rather than as an observer, the incident would not have
happened, and further that there had been much drinking
aboard the ship. Herring denied any statement or implica-
tion that Tingley was intoxicated at the time, and Herring's
uncontradicted testimony was that he lent all the support
he could to Tingley during a later hearing concerning the
incident. No witness having stated that Herring referred to
Tingley as being drunk, or intoxication having caused the
grounding of the vessel, there is no conflicting testimony to
resolve.
Respondent alleges that in March 1973, apparently
about the same time as the Cold Bay grounding incident,
Respondent was instructed not to permit Herring to pilot
any of the Chevron ships that may request services from
Respondent. However, Mrs. Johnson testified that such
requests are not unusual , and that Tingley also was not
permitted to pilot Chevron ships. In addition, Glud was
forbidden by Sea Land to pilot any of their ships. Under
such circumstances , this factor is of slight importance.
The record shows that Johnson first made up his mind
concerning the firing of Herring after the union meeting in
April 1973, at which Herring announced his complaints.
The testimony of others relative to Johnson's decision to
fire Herring is consistent. Cunningham testified that he was
told by Johnson after the April 1973 union meeting that
Johnson did not want a union contract, and that he was
going to have to let Herring go. Hurd testified that the first
time he heard anything from Johnson on this point was in
the fall of 1973, when Johnson told Hurd that he was going
to have to get rid of Herring. Cooper testified that friction
between Johnson and Herring commenced in May 1973,
and that Johnson discontinued Herring's training trips
about the same time .3 Riordan testified that Johnson told
him in early 1974 that he may have to let Herring go.
Bullard testified that Johnson told him in May 1973 that he
was thinking of letting Herring go. Glud testified that
Johnson told him in January 1974 that he was going to fire
Herring.
In no instance, other than the testimony of Mrs. Johnson
as outlined above, which was vague and doubtful, is there
any indication of a statement by Johnson prior to the April
1973 meeting that Herring was to be fired.
The record thus shows that serious conflict between
Johnson and Herring, the first discussion of union member
complaints , the first talk about a union contract with
3 Johnson testified that the date is March 1973. Cooper's testimony is
more nearly consistent with the record and other testimony (including
Herring's), and is credited.
Respondent, Johnson's trip to Hawaii to "check" on
Herring, and the first mention by Johnson of Herring's
possible discharge all occurred about the same time in
April and May 1973. As discussed above, the incidents
prior to that date, relied on by Respondent to show cause
for discharge, simply are not credible for such purpose.
The incidents after April and May 1973 relied on by
Respondent are trivial at best, and suspect . Further,
testimony concerning them was vague and , more impor-
tant, none of them was ever mentioned to Herring.
Included are the incidents of the fish order (mid-1973);
Herring's boarding a ship late (June 1973); Herring's
urging a ship captain to ask for his pilot services
(December 1973); car damage possibly caused by Herring
(December 1973); and the telephone call to Mr. and Mrs.
Johnson by Herring, concerning a pilot schedule (February
1974).
As argued by General Counsel, it is clear that the various
incidents were pieced together after the fact of firing, in
order to support that discharge.
The record does not show poor work performance by
Herring. Only the Hannah incident involved a "casualty,"
and Herring was not reprimanded or disciplined on that
occasion. In fact, the matter was never discussed with him
by Johnson. Riordan testified that Herring was "a pretty
good man," and Johnson agreed with that assessment.
Johnson told Bullard that he had a problem with Herring,
but that there was no problem with Herring's ship handling
ability. Johnson testified that he often served aboard ships
with Herring, but he did not testify that he had any
complaints about Herring's ship handling ability. The
matter of Herring's exclusion from Chevron ships is given
little weight, as discussed above, because of the hearsay
element involved in the testimony and because other pilots
are under the same sort of restriction.
The only factor that touches upon Herring's work relates
to his license . It is true that Herring's license was on a 6-
month renewal basis, but it has been regularly renewed,
and no instance was given wherein the license interfered
with Respondent's duty to its customers. Further, Herring
explained the status of his license both before and after his
employment with Respondent, as testified to by Herring
and both Mr. and Mrs. Johnson. Thus, this factor is of no
weight in considering Herring's discharge.
Respondent rested part of its defense on its contention
that Johnson is a longstanding member and strong
supporter of the Union and was the influential force in
seeing to the establishment of a pilots' branch at Homer.
Respondent also attempted to show that many of the
employee proposals covered, subjects that were already in
effect. There was an attempt to show that Johnson not only
did not object to any of the proposals, but that he signed
the proposals and apparently was convinced that at least
some of them should be instituted. However, regardless of
claim of absence of union animus on the part of Johnson,
two facts are clear. First, meetings held by the union
members in April and October 1973 and in January 1974
were for the purpose of considering complaints, drafting
proposals, and considering the execution of a contract with
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent . Obviously, this is protected union activity.
Second, as pointed out above , Johnson's determination to
fire Herring arose after the April meeting at which Herring
first introduced the complaints . Union activity remains
protected activity, even though it may be the product of an
employee who was acting in a contentious and possibly
unreasonable manner, and specific evidence of intent to
discourage union activity is not an indispensable element
of proof of an 8(a)(3) violation . Radio Officers' Union of, the
Commercial Telegraphers Union, AFL v. N.LR.B., 347 U. S.
17 (1954).
It would seem logical for Johnson to advise Herring at
some point that his work and conduct were not satisfacto-
ry, but not only was Herring never so advised - he was
not even told why he was fired. If Johnson had good cause
to fire Herring, and if union activity was not involved,
common courtesy and business practice would suggest
giving the reason . Herring was not a clerk or laborer - he
was a skilled employee in a high -salaried position, with a
future that would be clouded by a summary discharge with
no reason given therefor . It is difficult to avoid the
conclusion that , no reason was given because the reason
was outside the provisions of the Act.
In view of the foregoing , it is found that Herring was
discharged "because" of his activities on behalf of the
Union.
B. Discontinuance of Training Trips
The fact of discontinuance of training trips is well
established by the record. Johnson admitted that he
instructed Cooper not to schedule Herring for any more
trips without first checking with Johnson, and his testimo-
ny established the fact that Johnson intended to send
Herring out on no more trips because, in Johnson's words,
it would be like pouring money down a rat hole. Johnson's
statements are fully supported by Cooper, who credibly
testified to a conversation in April or May 1973, in which
Johnson instructed him not to schedule Herring for any
more trips. The only question concerning this subject is the
approximate date of the conversation between Johnson'
and Cooper. Cooper testified that his instructions were
received by Johnson after the "first union meeting," which
established a date in Cooper's mind of approximately May
1, 1973. Johnson contends that the conversation occurred
in March 1973, which would have been before the union
meeting . Herring testified that he had been sent or
permitted to go on approximately 50 training trips prior to
May 1, 1973, and that thereafter, he was sent on none.
Herring testified that he asked for a Kodiak trip in the
early summer of 1973, and for a Seward trip in January
1974, but was not permitted to go on either. Johnson
testified that he' could recall only one request by Herring
for a trip, that being a request in January 1974 to go to
4 General Counsel - discussed at length in his brief, the possible
applicability of Sec. 10(b) of the Act to the independent 8(a)(l) violation. It
was reasoned , by analogy, that "lack of knowledge of a discriminatory act
tolls - 10(b)." The argument is persuasive, but it is not necessary to rely on
analogous situations Sec. 10(b) is not applicable herein.
First, the defense was not based, wholly or partially on See. 10(b).
Respondent did not plead the statute of limitations , but submitted the case
on its merits . Sec. 10(b) is an affirmative defense and is waived if not timely
raised. Luther W. Shumate (Union Carbide Corp.) v. N ERB., 452 F.2d 717
Seward. He said he did not permit that trip because
Tingley was the pilot, and Herring and Tingley did not get
along with each other. Herring's testimony concerning the
number of training trips and the approximate date they
stopped, and concerning his request for trips to Kodiak
and Seward, is credited. Cooper was a credible witness,
and his testimony has support in the' record. As shown
above, Johnson's frequent statements concerning the
necessity for firing Herring, and his trip to Honolulu to
check into Herring's background, all occurred after the
union meeting of April 1973. It is logical, under such
circumstances, that Johnson's instruction to Cooper
actually occurred approximately the first of May, as
testified by Cooper, and it is so found. It is also found that
Herring's requests for training trips to Kodiak and Seward
in the summer of 1973 and in January 1974, respectively,
were refused by Johnson.
Respondent introduced some testimony to the effect that
Herring did not want to make training trips, and, further,
that he demanded expense money in advance of making
the trips. Herring denied both contentions. The matter of
demanding expense money in advance is of no probative
value in settling this point of the controversy, and the
testimony intended to show that Herring did not want to
make the trips is not credited. There also was an attempt
by Respondent to show that Herring did not take the
initiative he should have by scheduling ferry trips for the
purpose of training. However, Herring testified that such
trips are not adequate training because of the limited size
of the ferry vessels, and also because they do not touch at
some of the ports where endorsements are required.
Herring's testimony on this point was not contradicted,
and is credited. It is found that ferry training trips are not
adequate for the purpose of obtaining endorsements in the
manner required, and desired, by Herring. In any event,
whether or not ferry trips were available is not controlling,
in view of the fact that Johnson admitted that he stopped
training trips for Herring, and there is no indication in the
record that training trips were stopped for anyone else. It is
also found that Herring did not know until after he was
fired that his training trips had, been discontinued by
Johnson's order to Cooper, on or about May 1, 1973.
Based on the foregoing, it is found that the allegations of
the complaint are proved, and that Respondent has refused
continuously, from about May 1, 1973, through February
25, 1974,' to accommodate Herring's' request to make
training trips for the purpose of adding endorsements to his
pilot license, because of Herring's activities on behalf of
the Union and because of his other protected, concerted
activities.4
(C.A. 4, 1971), setting aside and remanding 180 NLRB 875 (1970); Chicago
Roll Forming Corp., 167 NLRB 961 (1967).
Further, Sec. 10(b) is not applicable in this instance because of the
continuing nature of the violation. Although Johnson's order to stop
Herring's training trips was outside the 10(b) period of limitation, credited
testimony showed that at least one request for a training trip was refused
within the 10(b) period. Varo, Inc., 172 NLRB 2062 (1968); N.L.RB. v.
Kohler Company, 220 F.2d 3 (1955); N.L.RB. v. Anchor Rome Mils, 228
F.2d 775 (C.A. 5, 1956).
ALASKA MARINE PILOTAGE, INC. 85
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The Respondent's activities set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully dis-
charged Robert J. Herring. I will, therefore, recommend
that Respondent offer Robert J. Herring his former job or,
if that job no longer exists, a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of earnings
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
normally would have earned, absent the discrimination,
less net earnings during such period, with backpay
computed on a quarterly basis in the manner established in
F. W Woolworth Company, 90 NLRB 289 (1950), plus
interest at the rate of 6 percent per` annum, as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will
be further recommended that Respondent preserve and,
upon request , make available to the Board all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
and useful to determine the amounts of backpay due and
the rights of reinstatement under the terms of these
recommendations.
Upon the basis of the foregoing fmdings of fact, and
upon the entire record, I hereby make the following:
CONCLUSIONS OF LAW
1. Alaska Marine Pilotage, Incorporated, is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Southwest Alaska Branch, Pilots Division, Interna-
tional Organization of Masters, Mates and Pilots, AFL-
CIO, is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Robert J. Herring on February 25,
1974, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
4. By refusing to accommodate Robert J. Herring's
request to make training trips for the purpose of endorse-
ments to his pilot's license, because of his activities on
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
behalf of the Union and because of his other protected
concerted activities, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
5. By the action described in paragraph 3, above, and
derivatively by the independent 8(a)(1) violation described
in paragraph 4, above, Respondent has interfered with,
restrained, and coerced, and is interfering with, restraining,
and coercing, employees in the exercise of rights guaran-
teed them in Section 7 of the Act, and thereby has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDERS
Respondent, Alaska Marine Pilotage, Incorporated,
Homer, Alaska, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging_ membership in Southwest Alaska
Branch, Pilots Division, International Organization of
Masters, Mates and Pilots, AFL-CIO, or in any other
labor organization, by discharging or terminating employ-
ees, or in any other manner discriminating in regard to hire
or tenure of employment or any term or condition of
employment.
(b) Refusing to accommodate pilot employees' requests
to make training trips for the purpose of adding endorse-
ments to their pilots licenses, because of activities on behalf
of the Union or because of other protected concerted
activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, including the above-named organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Offer Robert J. Herring immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in "The Remedy" section of this Decision.
(c) Post at its Homer, Alaska, operation copies of the
attached notice marked "Appendix." 6 Copies of the notice
on forms provided by the Regional Director for Region 19,
after being duly signed by an authorized representative of
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
r In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
(Continued)
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily, posted. Reasonable steps shall betaken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT discourage membership in Southwest
Alaska Branch, Pilots Division, International Organiza-
tion of Masters, Mates and Pilots, AFL-CIO, or in any
other labor organization, by discharging or terminating
employees, or in any other manner discriminating, in
regard to hire or tenure of employment of any term or
condition of employment.
WE WILL NOT refuse to accommodate pilot employ-
ees' requests to make training trips for the purpose of
adding endorsements to their pilots licenses, because of
activities on behalf of the Union or because of other
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively, through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Robert J. Herring full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position; without prejudice to
his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of the
discrimination against him.
ALASKA MARINE PILOTAGE,
INCORPORATED