Bernhardt Bros. Tugboat Service, Inc.

National Labor Relations Board - Board Decisions

May 28, 1963

142 N.L.R.B. 851 (N.L.R.B. 1963)

BERNHARDT BROS. TUGBOAT SERVICE, INC. 851
Bernhardt Bros. Tugboat Service, Inc. and James A. Chappell
Bernhardt Bros . Tugboat Service , Inc. and National Maritime
Union of America , AFL-CIO and Inland Boatmen 's Union of
the Seafarers International Union , Atlantic, Gulf , Lakes and
Inland Waters District , AFL-CIO, Party to the Contract.
Cases Nos. 14-CA-2707 and 14-CA-2729. May 28, 7963
DECISION AND ORDER
On December 31, 1962, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent and the SIU filed exceptions to the Inter-
mediate Report and supporting briefs. The NMU filed as reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report and the entire record in these cases, including the
exceptions and briefs, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.
As found by the Trial Examiner, the Respondent extended recogni-
tion to the SIU on February 15, 1960, and thereafter executed and
maintained a union-security contract with the SIU. We conclude,
as did the Trial Examiner, that Respondent thereby violated Section
8(a) (1), (2), and, (3) of the Act, for the reason that at no critical
time herein was the SIU the freely designated bargaining representa-
tive of Respondent's crew members. We base our finding, however,
upon the coercive atmosphere engendered by Respondent's unlawful
conduct occurring both before and during the period when the SIU
was soliciting authorization cards. Thus, the record shows that Re-
spondent discharged Chappell on February 3 because of his NMU
adherence and the reason for the discharge was communicated to
crew members of the Wisconsin. In addition, on February 15, on the
very day of the SIU's solicitation aboard the Pere Marquette, the
master of that vessel told Swan, in the presence of other crew mem-
No exceptions having been filed to the Trial Examiner 's dismissal of certain allega-
tions in the complaint, such findings are adopted pro forma.
142 NLRB No. 96.
712-548-64-vol 142-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers,2 that the SIU was the only Union the Respondent would recog-
nize, "so we might just as well join it if we were talking about joining."
By way of contrast, as the Trial Examiner found, Respondent placed
no impediment in the path of the SIU organizing campaign. Accord-
ingly, even assuming only 46 employees in the unit comprised of crew
members aboard the Wisconsin, Pere Marquette, William Clark, and
Stephen Foster, we are satisfied that the SIU did not represent an un-
coerced majority of those employees and therefore was not entitled
to the recognition extended it by Respondent on and after February
15,1962.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
2 While this fact is not mentioned in the Intermediate Report, Swan testified that he
was "pretty sure" of the presence of other crew members .and no evidence to the contrary
was adduced.
°The reimbursement order of the Trial Examiner is to run in favor of all employees
who were unlawfully coerced into joining and thereafter paying membership fees, dues,
and assessments subsequent to February 19, 1962, the date of Respondent' s contract with
SIU. We deem The Standard Transformer Company case, 97 NLRB 669, to be factually
distinguishable from the instant one and need not consider whether, as the Trial Ex-
aminer found , it has been overruled sub silentio by the Board's decision in United Asso-
ciation of Journeymen & Apprentices of Plumbing & Pipefitting Industry of the United
States and Canada, Local 331, AFL-CIO (J. S. Brown-E. F. Olds Plumbing & Heating
Corporation ), 115 NLRB 594.
For the reasons stated in the dissenting opinion in Isis Plumbing & Heating Co., 138
NLRB 716, Member Leedom would not award interest on backpay or on reimbursed union
membership fees, dues, and assessments.
CONSOLIDATED INTERMEDIATE REPORT
On February 9, 1962, James A. Chappell, an individual, filed charges , in Case
No. 14-CA-2707 against Bernhardt Bros. Tugboat Service , Inc., Cassville , Wisconsin,
herein called the Respondent . On March 13 , 1962 , National Maritime Union of
America, AFL-CIO, herein called the NMU, filed charges in Case No . 14-CA-229
against the same Respondent . On March 20, 1962, the General Counsel issued a
complaint in Case No . 14-CA-2707; the Respondent filed an answer thereto. On
May 15, 1962 , the Regional Director consolidated the two cases and issued a
consolidated complaint . This alleged that since on or about February 1 , 1962, the
Respondent has interfered with, restrained , and coerced its employees by certain
specific conduct ; that on or about February 3, 1962 , the Respondent discharged
Chappell, an employee , because he joined or assisted the NMU or engaged in other
concerted activities ; that on or about February 12, 1962 , the Respondent requested
Inland Boatmen 's Union of the Seafarers International Union , Atlantic, Gulf, Lakes
and Inland Waters District , AFL-CIO, herein called the SIU, to furnish a crew for
one of its boats in order to increase the proportion of employees of the Respondent
which Respondent expected to select the SIU as their collective-bargaining agent;
that since on or about February 4, 1962, the Respondent rendered unlawful aid, as-
sistance, and support to the SIU by certain specific conduct ; that on or about
February 15, 1962 , the Respondent recognized the SIU as the exclusive -bargaining
agent of its employees and on February 19, 1962 , executed a collective-bargaining
agreement with the SIU regarding the Respondent 's employees although at neither
time did the SIU represent a majority of the employees in an appropriate unit;
that the above -described contract contained a 31-day union -security provision even
though the SIU at the time of its execution was illegally assisted by the Respondent;
and that in March 1962 the Respondent insisted that certain of its employees join
the SIU immediately as a condition of employment . It is alleged that this conduct
violated Section 8(a)(1), (2 ), and (3) of the National Labor Relations Act, as
amended (61 Stat . 136), herein called the Act. Thereafter the Respondent filed an
BERNHARDT BROS. TUGBOAT SERVICE, INC. 853
answer denying the commission of any unfair labor practices. The SIU, as Party
to the Contract, was served with a copy of the consolidated complaint, and filed an
answer denying that it had been illegally assisted by the Respondent.
A consolidated hearing was held before Trial Examiner Sydney S. Asher, Jr., on
various dates between July 20 and September 13, 1962, in St. Louis, Missouri. All
parties were represented and participated fully in the hearing. At the close of the
General Counsel's case, certain portions of the consolidated complaint were dis-
missed.' At the close of the hearing the Respondent and the SIU moved to dismiss
certain portions of the consolidated complaint, and also to dismiss the consolidated
complaint in its entirety. Rulings on these motions were reserved. The motions
to dismiss the entire consolidated complaint are now denied. The other motions
are now disposed of in accordance with the findings, conclusions, and recommenda-
tions herein. After the close of the hearing, all parties filed briefs, which have been
duly considered.
Upon the entire record in these cases,3 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all material times has been, a Wisconsin corporation
with its principal place of business in Cassville, Wisconsin, where it is engaged
in providing tug and towboat service for the transportation of commodities on the
Mississippi River and its tributaries, including the Illinois River. The parties
stipulated, and it is found, that the Respondent annually derives a gross revenue of
more than $50,000 from the operation of its tug and towboat services in inter-
state commerce between points in the States of Wisconsin, Illinois, and Missouri
and other States bordering upon the Mississippi River and its tributaries, including
the Illinois River. In view of the foregoing, it is found that the Respondent is engaged
in commerce within the meaning of the Act, and that it will effectuate the policies of
the Act for the Board to assert jurisdiction over the operations of the Respondent.3
H. THE LABOR ORGANIZATIONS INVOLVED
Both the NMU and the SIU are, and at all material times have been, labor organi-
zations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The status of pilots
During all material times, the Respondent has owned and operated the MV
Wisconsin, the MV William Clark, and the MV Pere Marquette. At all times since
February 12, 1962, the Respondent has also owned and operated the MV Stephen
Foster. These vessels ply the Mississippi River and its tributaries. Each of them
tows or pushes a load varying from 1 to 15 barges at a time. They are in constant and
continuous operation 24 hours per day, 7 days per week, except when undergoing
repairs. Often their crews remain aboard for extended periods of time, sometimes
exceeding a month. Each vessel is equipped with a ship-to-ship radio and a ship-
to-shore mobile telephone.
Each boat carries a master, sometimes referred to as a captain. He is in charge
of the vessel at all times, whether he is awake or asleep. All parties agree, and it
is found, that the Respondent's masters are, and at all material times have been, super-
visors within the meaning of the Act.
In addition to the master, each vessel carries a pilot, 2 engineers, 2 mates, 4 deck-
hands, and a cook-an all-inclusive total of 11. Except for the cook, the crew
members stand watch for 6 hours, and then have 6 hours of rest. They are divided
into two watches, so that at any given time only half the crew (excluding the cook)
is on duty. The forward watch (6 a.m. to noon and 6 p.m. to midnight) consists
of the master, an engineer, a mate and two deckhands; the after watch (noon to
1 On motion of the General Counsel paragraph V-B was stricken ; on motion of the
Respondent paragraph VIII-F was stricken, and on motion of the SIU paragraphs VIII-C
and XII-A were stricken.
9 During the hearing the Respondent moved to strike as immaterial a certain portion
of the testimony of witness Polly A. Orrell. Ruling thereon was reserved. The motion
is now granted and accordingly Orrell's testimony from page 663, line 11, to page 664,
line 7, inclusive, is stricken.
3 HPO Service, Inc., 122 NLRB 394, 395
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 p.m. and midnight to 6 a.m.) consists of the pilot, the other engineer, the other
mate and the other two deckhands. During his watch, the master or the pilot (as
the case may be) usually remains in the pilothouse most of the time; the engineer
is generally in the engineroom, and the mate and deckhands work on the tow and
about the vessel.
The General Counsel and the NMU contend that the Respondent's pilots are
supervisors, while the Respondent and the SIU maintain that they are rank-and-file
employees .4 There was a great deal of testimony by a number of witnesses regarding
the duties and authority of pilots. From the entire mass of evidence, certain facts
emerge. In the first place, a pilot assumes charge of the vessel during any temporary
absence of the master. The record shows that this happened twice on one vessel
within a 10-day period, each time for several hours.5 But there is no other evidence
as to the frequency or duration of such temporary situations. On this record it is
not clear whether this was a frequent or merely a sporadic occurrence. In the second
place, the pilots, generally speaking, had no authority to hire, discharge, or discipline
crew members. By January 1962, authority to hire and fire had been fairly well
centralized into the hands of the Respondent's executives at the home office, but the
power to discipline (short of discharge) remained primarily in the hands of the
masters. To the extent, if any, that a master delegated to a pilot authority to
discipline, this was probably unknown to the Respondent's responsible officials-at
least the General Counsel (who has the burden of proof) did not show otherwise.
As to the effectiveness of the pilots' recommendations regarding hiring and firing,
the General Counsel has shown only one instance in which such a recommendation
was made or followed.6 I conclude that the General Counsel has failed to establish
that, at any material time, the Respondent's pilots had authority to hire, fire, promote,
or discipline crew members, or effectively to recommend such action.
There remains the question of the authority of pilots responsibly to direct crew
members other than routinely. Unquestionably, from time to time pilots act as
mere conduits to relay orders of the master (or higher executives) to rank-and-file
employees. But the pilots' responsibility while on watch extends considerably fur-
ther. Thus, Capt. Donald J. Crowder, who had been master of four of the Respond-
ent's vessels, testified that a pilot on watch, relying upon his own experience and
judgment, decides if the weather is bad enough to require a lookout against shifting
navigational hazards, and if so when and where to place the lookout and which
crew member should be so assigned. Capt. Gilbert R. Schickling, who had been
pilot aboard two of the Respondent's boats and master of two of them, testified that
the pilot, while on watch, gives orders to the crew in connection with the tow, the
lookout, and the amount of power needed. Likewise, Capt. Wilbur Joggerst, pilot
and later master of the Marquette, testified that the pilot on watch is responsible for
the tow, and to see that lookouts are placed when needed. In view of the testimony
of these witnesses, which was not substantially controverted on this point, I am
convinced and find that the Respondent's pilots have authority responsibly to direct
the crew members on their watch, and that the exercise of such authority is not
merely routine, but on the contrary requires the use of independent skill and judg-
ment.7 Accordingly, it is concluded that the Respondent's pilots are, and at all
material times have been, supervisors within the meaning of the Act .8
B. The discharge of Chappell
1. Background events
Vincent Tranchita, the Respondent's treasurer, described the Respondent's original
labor policy, on direct examination, as follows:
I In its brief the Respondent contends that the pilot's authority and supervisory status
varies from boat to boat.
5 E.g., when Captain Crowder left the Wisconsin on February 2, 1962, and was relieved
some hours later by Captain Shickling; and again when Captain Shickling was transferred
from the Wisconsin to the Foster on February 12, 1962, and was replaced on the
Wisconsin several hours later when Captain Crowder returned
8 On or about February 12, 1962, Richard Bateman, then pilot of the Wisconsin, recom-
mended as deckhands his brother, Albert Bateman, and Alva Stevens ; both men were hired.
Q To the extent, if any, that the functions, duties, and authority of pilots differ from boat
to boat, this is the lowest common denominator. In other words, this is the minimum
authority possessed by any of the Respondent's pilots.
8 Compare Local 28, International Organization of Masters, Mates and Pilots, AFL-CIO,
.et at . (Ingram Barge Company ), 136 NLRB 1175
BERNHARDT BROS. TUGBOAT SERVICE, INC. 855
Q. When did the problem of labor policy first come to your attention, Mr.
Tranchita?
* * * * s *
A. Well, we knew as we were growing, even as far back as last fall [1961],
that with every boat that we acquired we were getting a step closer to union-
ization, and up to that time we wanted to run strictly non-union. [Emphasis
supplied. ]
Q. And when you say "non-union," what do you mean by that?
A. Not running under union contract.
Tranchita further testified on direct examination, and I find, that this continued
to be the Respondent's policy until the Mississippi Valley Association convention,
which began on February 4, 1962.
Captain Crowder, then master of the Wisconsin, was at home on leave between
mid-December 1961 and mid-January 1962. While he was at home, he received a
telephone call from John Bernhardt, president of the Respondent. Bernhardt said
that he had information that five of the Respondent's employees had signed NMU
pledge cards, and named them. He told Crowder that, in his opinion, "we had to
get rid of them." Crowder agreed to talk to at least one of the employees, Elmer
Taylor. Thereafter Crowder told Taylor that he know Taylor had signed a pledge
card for the NMU. Taylor replied that, if necessary to avoid controversy, he
"would drop out of the NMU." Taylor also agreed to refrain for the time being
from encouraging other employees of the Respondent to join the NMU.9 Based
upon the above, I find that prior to February 4, 1962, the Respondent was antago-
nistic toward the unionization of its employees.10
2. Facts
James A. "Dugan" Chappell was hired by the Respondent on January 28, 1962,
as a deckhand on the Wisconsin. He was a member of the NMU, and made no
secret of this fact. The master of the Wisconsin at that time was Captain Crowder;
the pilot was Richard Bateman, with whom Chappell had been previously acquainted.
A few days after Chappell's hire, Bateman asked Chappell if he still belonged to
the union, and Chappell replied that he "still carried a book." Bateman then stated
that if he ever found out that Chappell was trying to organize the Respondent's
crews for the NMU, he would put Chappell off the boat, wherever it might be.
Chappell responded that he was not trying to organize the Wisconsin." On or
about February 1,12 Bateman told Crowder that Chappell had stated that he (Chap-
pell) intended to encourage the crew of the Wisconsin to sign NMU cards. Crowder
got off the Wisconsin on February 2 to attend the Mississippi Valley Association
convention to be held in St. Louis, leaving the boat temporarily in Bateman's charge.
Shortly after reaching shore, Crowder made a long-distance telephone call to Ray A.
Eckstein, the Respondent's secretary. Among other things, Crowder reported that
"Chappell was aboard the boat talking about the NMU." Crowder and Eckstein
then decided "to attempt, at the earliest possible moment, to remove Mr. Chappell
from the vessel." 13
A few hours after Crowder left the Wisconsin, Schickling boarded her as master.
About 6 a.m. the next day, February 3, Schickling was informed by Bateman that
Chappell was being put off the boat.14 Schickling asked: "Well, what for?" and
Bateman replied, "Union activities." At breakfast that morning Schickling remarked
in the presence of several crew members that Chappell was to be put off the boat
that day. When one of the crew members asked why, Schickling answered: "I
understand it is because he is one of the union boys."
B The findings regarding the Crowder-Bernhardt telephone conversation and the Crowder-
Taylor conversation are based upon Crowder's undenied and credited testimony. Neither
Bernhardt nor Taylor testified.
io This is not related critically, but merely as a statement of fact The Respondent had
a right to be opposed to unions, so long as it took no steps forbidden in the Act N.L.R.B.
v. T A. MeGahey, Sr, et at., d/b/a Columbus Marble Works, 233 F. 2d 406, 409 (C.A. 5).
11 The findings regarding this conversation are based upon Chappell's undenied testi-
mony. Bateman did not testify.
12 All dates hereafter refer to the year 1962, unless otherwise noted.
13 The findings regarding the Crowder-Bateman talk and the Crowder-Eckstein telephone
conversation are based upon Crowder' s undenied testimony. Neither Bateman nor
Eckstein testified
14 Previously, while he was off watch and asleep, Schickling had been awakened by a
deckhand and given the same message. Liken iie Chappell had had a similar experience.
-856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, Bateman or someone else had told Chappell to get ready to get off
at the next port. After breakfast on February 3, Chappell went to the pilothouse
and inquired of Schickling why he was being put off the boat. Schickling replied:
"Well, I don't know for sure, but I will call the company and try to find out."
Schlickling then, in the presence of Chappell and other crew members, made a call
over the ship-to-shore mobile telephone to Eckstein, who instructed Schickling: "Get
him [Chappell] off the boat at Peoria, by all means don't let him on the boat."
Either during or immediately after this conversation, Chappell asked Schickling if
he was being put off because of union activities, and Schickling replied, "Yes."
About noon Polly Orrell, the Wisconsin's cook, inquired of Schickling "if it was
really true that Chappell was fired." When Schickling replied that it was, Orrell
asked: "Why did he get fired?" and Schickling responded: "Over union activities."
That afternoon the vessel reached Peoria, and Chappell got off.15 His going left
the Wisconsin short one deckhand.16
On February 4 or 5, in the presence of Crowder, Tranchita, and other executives
of the Respondent, Eckstein related a telephone call he had received from Chappell
and expressed the opinion that Chappell had tried to get Eckstein to admit that
Chappell had been discharged for union activities. Tranchita remarked that he
probably would have "made the mistake of admitting it. He wasn't that posted on
labor law." 17
On February 9, Chappell filed charges in Case No. 14-CA-2707. On February
13, the Respondent offered Chappell reinstatement , and on February 18 he returned
to work aboard the Clark.
3. Contentions of the 'Parties
The consolidated complaint alleges, and the General Counsel contends, that Chap-
pell was discharged on February 3 because he was known to be a member of the
NMU and the Respondent thought he was soliciting its employees on behalf of
NMU. The general Counsel further maintains , although the complaint does not so
state, that for the same reason the Respondent failed and refused to reemploy Chap-
pell until February 13. The answer denies each allegation of the complaint as
to Chappell, thus framing issues not only as to the Respondent's motive in discharg-
ing Chappell, but also as to whether Chappell was ever an employee of the Re-
spondent and whether the Respondent discharged him on February 3. Despite this
posture of the pleadings, the Respondent at the hearing and in its brief did not at-
tempt to contravene the fact that Chappell had been its employee on February 3,
and that he had been discharged on that date. The only defense put forth by the
Respondent is that Chappell could not have been discharged for union activities
because the record shows that, prior to February 3, Chappell had not actually en-
gaged in such activities.
The consolidated complaint further alleges, the General Counsel maintains, and
the answer denies, that on or about February 1, Bateman interrogated Chappell
about his union affiliation, and warned him not to organize aboard the Wisconsin;
and that on or about February 3, Schickling told members of the Wisconsin's crew
that Chappell had been discharged because of his activities on behalf of the NMU.
15 Before leaving the Wisconsin, Chappell had typed a document reading: "I James A
Chappell went abord [sic] the M/V Wisconsion [sic] on Jan 30 1902 and on Feb. 3. 1962
was fired for union activetys [sic] at peoria [sic] Ill without any money or any means of
getting to my home port. I have Signatory [sic] from members abord [sic] this boat to
come under a National Maritime Union contract as soon as possible " The document had
been signed by Chappell and a number of other rank-and-file crew members.
Also before leaving the Wisconsin, Chappell had requested money to get to his home.
This had been refused while he was aboard ; later when lie was ashore, the Respondent
paid him some expense money.
1e The findings regarding the events of February 3 are based upon a synthesis of the
testimony of 'Captain Shickling, Chappell, and crew members Bill LaBruyere, Polly
Orrell, and Jerry Schweain, confirmed in part by the undenled testimony of Herman
Merritt that at 7 a in. on February 3, Schickling stated "that he was called up around
2:30 in the morning to put a crew member off, an N.M.U. member, at the first oppor-
tunity." [Emphasis supplied ] Neither Bateman nor Eckstein testified.
17 This finding is based upon the undisputed testimony of Crowder. The only other
person present during this conversation who testified at the hearing was Tranchita, and
he did not mention the incident.
BERNHARDT BROS. TUGBOAT SERVICE, INC. 857
4. Conclusions
It is clear, and I find, that early in February, Bateman interrogated Chappell
regarding his union membership, and accompanied this with a threat of reprisal
should Chappell organize on the NMU's behalf. As Chappell had a right under
Section 7 to aid the NMU, as Bateman was then pilot of the Wisconsin, a supervisor,
and as the interrogation occurred in the context of the threat, I conclude that, by
this interrogation, and also by the accompanying threat, the Respondent violated
Section 8(a)( I) of the Act.
The Respond'ent's union animus , the above-described violations of Section 8 (a) (1)
of the Act by Bateman, the haste exhibited by the Respondent in putting Chappell
ashore once Eckstein had learned of his NMU membership, the Bateman-Schickling
conversation on the morning of February 3, the statements by Schickling to members
of the Wisconsin's crew and to Chappell himself on February 3, the fact that the
discharge left the Wisconsin short one deckhand, and the postdischarge discussion
of the matter between Eckstein and Tranchita all furnish compelling evidence that
the Respondent discharged Chappell on February 3 and failed and refused to rein-
state him before February 13 for a discriminatory and unlawful reason. In this
respect it should be noted that, other than union membership and activities, the
Respondent has never attempted to give to Chappell, the General Counsel, or this
Trial Examiner any explanation whatever for the discharge.ls
We turn, then, to the Respondent's defense that Chappell did not, prior to his
discharge, engage in any protected activities. Assuming, without deciding, that the
record shows no'union activities by Chappell before February 3, this is of no help
to the Respondent. In the first place, even absent any union activities, a discharge
for mere union membership is violative of the Act. And the record presents ample
evidence that the Respondent knew of Chappell's membership in the NMU. More-
over, the Respondent's antipathy to employees who did no more than sign union
cards is clearly demonstrated by the Crowder-Bernhardt telephone conversion of
mid-December 1961 or mid-January 1962, described above. In the second place,
it is not necessary for the General Counsel to show that Chappell in fact engaged
in prounion conduct, or that the Respondent knew he had done so. On the contrary,
it is sufficient if it is demonstrated that the Respondent merely suspected Chappell
of aiding the NMU. And Bateman's information to Crowder, relayed by Crowder
to Eckstein, certainly gave the Respondent reason to think either that Crowder was
already organizing the employees, or that he might be expected to do so in the near
future. Indeed, this information promptly set off a series of events culminating
in Chappell's discharge. I therefore find no merit in the Respondent's defense. It is
accordingly concluded that the reason for Chappell's discharge on February 3 and the
Respondent's failure and refusal to reinstate him until February 13 was either the
Respondent's knowledge that he was a member of the NMU, or its suspicion (whether
well or ill founded) that he was soliciting employees to join the NMU, or its fear
that he might soon do so, or a combination of these. It follows, and I find, that the
discharge violated Section 8 (a) (1) and (3) of the Act.
It will be recalled that at breakfast on February 3 Schickling stated in the pres-
ence of several crew members that, in his opinion, Chappell was being let go "be-
cause he is one of the union boys." A short while later, in the pilothouse, he in-
formed Chappell, in the hearing of other employees, that his union activities were the
cause of the discharge. Again about noon Schickling gave virtually the same in-
formation to Orrell. It is found that, in each instance, the Respondent coerced and
restrained crew members of the Wisconsin in the exercise of their protected right to
join or assist the NMU, in violation of Section 8(a)(1) of the Act.
C. Obtaining a crew for the "Stephen Foster"
1. Facts
As a result of the Chappell incident, the Respondent retained as counsel V. Lee
McMahon. He pointed out to the Respondent's executives a number of advan-
tages to unionization. Consequently, the Respondent on or shortly after February 4
substantially altered its labor relations policy.19
"Failure to disclose to a dischargee the reason for his discharge is, standing alone,
enough to support an inference that the discharge was discriminatory. N.L.R.B. v. Griggs
Equipment, Inc., 30'7 F. 2d 275 (C.A. 5).
'a These findings are based upon Tranchita 's undenied testimony.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the Mississippi Valley Association convention , which took place in St.
Louis from February 4 to 7, inclusive, Robert A. Matthews, national director of the
Inland Boatmen's Union of the SIU, saw McMahon. Matthews told McMahon that
he had heard that McMahon was representing the Respondent , and that the SIU
was going to try to organize the Respondent 's boats 20
Between February 6 and 12, Tranchita called McMahon and informed him that
the Respondent needed crew members for an additional boat it was about to acquire,
and asked : "I know you represent a lot of companies . Can you, since you are in
St. Louis and we are out of the labor market, help get someone?" [Emphasis sup-
plied .] Thereafter McMahon called Mid-American , a firm which was one of his
clients, about the matter, but obtained no results. McMahon also called Matthews
and asked him for help in obtaining crew members 21 Matthews directed Martin
Gould, an organizer for the SIU, to see what he could do. By dint of telephone
calls to New Orleans and to the SIU agent in West Virginia, and with the help of
Lou J. "Dago" Colvis, president of a local of MEBA,22 Gould rounded up a master
and six rank-and-file crew members.
On February 12 the Respondent obtained the Foster and put her into operation.
The master and six rank-and-file employees were obtained as described above; in
addition one rank-and-file employee, Herman Merritt, and the pilot, Schickling, were
transferred from the Wisconsin to the Foster.23
2. Contentions of the parties
The consolidated complaint alleges that on or about February - 12, McMahon,
knowing that the SIU was attempting to organize the Respondent's employees,
requested Matthews to furnish a crew for the Foster. It is further alleged that an
object of McMahon's conduct was to increase the proportion of the Respondent's
employees who would be expected to select the SIU as their bargaining agent. The
General Counsel admits the right of an employer, when he needs employees, to
approach a union and ask it to refer some employees, but contends that the Respon-
dent here went much further, and abandoned its usual method of recruiting, for dis-
criminatory reasons. The Respondent's answer admits that it knew of the SIU's
intent to organize its employees, and admits that McMahon contacted Matthews
.,as to the availability of workers" for the Foster, but denies a discriminatory motive
for so doing. The SIU's answer admits that Matthews was requested to refer some
applicants for employment to the Foster, but denies that the Act was violated thereby.
3. Conclusions
There is generally nothing illegal in an employer relying upon a union to provide
him with employees.24 But the General Counsel argues that here the Respondent
abandoned its normal method of recruiting, and points to the fact that no masters
were asked to help recruit, and that there were employees at home on leave 25 who
were not recalled. As to hiring methods, Tranchita testified credibly, and I find,
that since about early January the Respondent had abandoned its former practice
of hiring through its masters, and had concentrated all hiring authority in its execu-
20 The findings regarding this conversation are based upon Matthews' undenied testimony
21 The findings regarding these conversations are based upon the undenied testimony of
McMahon and Matthews.
22 The district executive board of AMEBA had assigned Colvis to assisting the SIU.
28 As part of his proof of the alleged discriminatory motive behind the hiring of crew
members for the Foster, the General Counsel sought to show that Schickling had been
promised the position of master aboard the Foster and that the Respondent had failed to
live up to this agreement . Schickling testified that McMahon stated that someone else
would be master of the Foster because "we have committed ourselves to the SIU for
30 days and you will have to run pilot on the boat " So far as I am able to determine,
the alleged "deal" between the Respondent and the SIU about which Schickling testified
was limited to masters and pilots-at least the General Counsel has not shown otherwise.
It is doubtful whether any such arrangement confined to supervisors, if one existed, would
be violative of the Act. At any rate, the complaint does not allege such a "deal" regard-
ing supervisors. It follows, and I find, that Schlckling's testimony on this subject has no
bearing on the issues herein. For the same reason I deem Immaterial the fact, relied upon
in the General Counsel's brief, that the Respondent failed to recall for use aboard the
Foster, Howard Covington, a pilot , who was home on leave on February 12
24 Morrison-Knudsen Company, Inc. v. N L R.B , 276 F. 2d 63, 67-68 (C A 9).
25 For each 2 days worked aboard boat, a crew member was entitled to 1 day of leave,
sometimes referred to in 1h record as "day; "
BERNHARDT BROS. TUGBOAT SERVICE, INC. ' 859
tives at the main office; a list of prospective employees had been maintained there
but this list had been exhausted by the time Tranchita telephoned to McMahon for
help in crewing the Foster. It is true that there were about six employees home on
leave on February 12, but Tranchita testified that he had contacted them. As to one
of them, George Kelley, Tranchita testified without denial that he attempted to
contact Kelley for use aboard the Foster but was unable to reach him. As to two
others, Gaylen Schwalb and Rudy Thompson, the record contains no proof that
they were not contacted. The three remaining ones-Slaten Bray, Bill LaBruyere,
and Jerry Schweain-all testified. Schweain went on leave from the Wisconsin on
February 10. He testified that on or about March 1 he declined Tranchita's request
that he board another boat, on the ground that he wanted to work only aboard the
Wisconsin; Bray testified that he was recalled to work on February 18, before the
contract referred to hereafter was signed; and LaBruyere testified that Tranchita re-
called him to work on or about February 22 but he declined "due to the fact that it
was too short a notice." 26 Moreover Chappell-a known adherent of the NMU-
was offered reinstatement on February 13 and was actually reinstated on February
18, before the contract's execution. Also the SIU was not the sole source of new
employees on February 12-two rank-and-file applicants, Albert Bateman and Alva
Stevens, were hired for the Wisconsin that same day on the recommendation of
Richard Bateman, then that boat's pilot 27 Moreover, of the six rank-and-file crew
members hired for the Foster on February 12 only two, William E. Lewis and Lloyd
Thurmond, were then SIU members; three, Daniel Harman, Homer Baker, and
Jimmy S. Sprinkle, were not members of either union at that time; and the sixth,
James R. Martin, was then a member of the NMU. In sum, only one-third of those
recruited for the Foster were members of the SIU. Furthermore the Respondent
unquestionably needed a crew for the Foster on February 12 and there is no showing
that any of the six rank-and-file crew members hired for the Foster with the SIU's
help were unqualified to perform the jobs for which they were hired. In addition the
SIU was not the only source contacted by the Respondent on the matter; as noted
above McMahon also communicated with a client, Mid-American. Finally, although
Gould frankly admitted that it was "of concern" to him that the crew of the Foster
would be favorable to the SIU, the record contains no evidence that any of the four
non-SIU members hired for the Foster were, before their hire, either questioned as to
their feelings toward the SIU or urged to join or support the SIU. I conclude that
the General Counsel has failed to establish that an object of the hiring of these six men
was to increase the proportion of employees which would be expected to select the
SIU as their bargaining agent.28 The motion to dismiss paragraph VII-C of the
complaint, upon which ruling was reserved, is accordingly granted.
D. Assistance to the SIU
1. The limitation upon visitors to the Wisconsin
(a) Facts
On February 12, Crowder returned to the Wisconsin from leave to take over again
as master.29 That same day McMahon came alongside the Wisconsin and asked to
speak to her master; Crowder responded. After introducing himself, McMahon
explained that the Respondent had decided that it would be more advantageous to
deal with a union, and that it preferred to do business with the SIU. McMahon
further informed Crowder that SIU organizers were going to come aboard and talk
to the crew, and that Crowder should not interfere with the SIU agents, and should
speak to the crew members himself "as little as possible" about unions. McMahon
29 The General Counsel's brief mentions the Respondent's failure to recall Gene P Cain.
However, the record shows that on February 12 Cain was working for the Respondent
aboard the Clark.
27 The General Counsel does not claim that there was anything improper in the Re-
spondent 's recruiting of Bateman and Stevens for the Wisconsin on February 12
:a L Ronney & Sons Furniture Manufacturing Co, a co-partnership consisting of Lewis
Ronney, Lillian Ronney, Sam Ronney, and Milton Ronney, 93 NLRB 1049, enfd 206
F. 2d 730 (CA. 9), cert. denied 346 U.S. 937, cited by the General Counsel, and Ten-
nessee Consolidated Coal Company, 131 NLRB 536, enforcement denied 307 F. 2d 374
(CA. 6), are distinguishable on their facts.
29 Bateman remarked to him : " Son, you have been organized ," and explained "that the
company had reached some labor agreement with the SIU ." Later that day Crowder re-
peated the substance of this conversation to McMahon , who summoned Bateman and told
him not to talk to the employees about unions
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also gave Crowder a copy of a notice , attached hereto marked "Appendix A," and
instructed Crowder to read it to the Wisconsin's crew.30 McMahon left; Crowder
posted the notice aboard the Wisconsin and directed the crew members to read it 31
Later that day Colvis and Gould, who had been assigned by Matthews to organize
the Respondent's employees, boarded the Wisconsin and began signing up the crew
for the SIU. They obtained the signatures of Bateman and all eight rank-and-file
employees aboard to cards designating the SIU as collective-bargaining agent. Later
that day (apparently after Colvis and Gould had debarked) Crowder called Eckstein
on the mobile telephone and, among other things, related the visits of McMahon,
Colvis, and Gould. During this conversation Eckstein instructed Crowder to allow
no visitors aboard the Wisconsin unless they had a letter of authorization from the
Respondent's Cassville office, adding that the Respondent' s insurance carrier was
requiring this. Crowder inquired: "You mean you don't want the crew to do any
business with any other union?" Eckstein answered: "That's what I mean, that's
right." 32
More than a week, but less than a month, later an individual who identified himself
as an NMU organizer came aboard the Wisconsin. In the presence of several rank-
and-file crew members, Crowder asked him if he had a letter of authorization from
the Respondent. When the visitor answered, "No," Crowder stated that he had
orders to allow no visitors without such a letter and therefore the visitor would
have to leave the vessel. The visitor then left the boat but continued talking to the
crew members from shore.
b. Contentions of the Parties
The consolidated complaint alleges, and the General Counsel maintains, that
on or about February 12 the Respondent, after agents of the SIU had been aboard,
adopted a rule on the Wisconsin "that from then on no more visitors were to be
allowed on board" and that an object of the Respondent in so doing was to prevent
contact between employees of the Respondent and any union other than the SIU.
Apparently, the General Counsel does not attack the validity of the limitation
itself, but only the purpose for which it was adopted. The Respondent's answer
denies all these allegations, thus raising two issues: whether any such limitation
had been imposed on or about February 12, and if so whether the motive for doing
so was discriminatory. In its brief, the Respondent argues further that "there was
no showing that NMU or any other union requested permission to board the boats
and was permission." The SIU, in its brief, maintains that adoption of such a
rule could not constitute a violation of the Act because it was "never divulged to
employees, and never promulgated."
c. Conclusions
At the outset of considering this phase of the case, it would be appropriate to
make two preliminary findings clearly supported by the record. The first is that,
beginning on February 12, the SIU embarked upon a campaign to unionize the
Respondent's boats. The second is that, beginning a few days before February 12,
the Respondent knew that the SIU intended to attempt to organize its employees,
and looked with favor on this campaign, preferring to deal with the SIU rather
than the NMU.33
With regard to the adoption of the limitation upon visitors, Tranchita testified
that, after the execution of the contract referred to hereafter on February 19, the
Respondent adopted a rule applicable to all its boats that no visitors were to be
permitted aboard without a letter of authorization, and that before receiving such
authorization a prospective visitor must sign a release or indemnification agreement
to relieve the Respondent of liability in case of accident. While Tranchita's testi-
mony convinces me that a limitation upon visitors to all the Respondent's boats
was put into effect on or after February 19, Eckstein could have adopted the rule
30 The findings regarding this conversation are based upon the testimony of Crowder
and McMahon.
a Copies of this notice were also transmitted by the Respondent, on dates not shown
in the record, to the masters of the other three boats.
82 The findings regarding this conversation are based upon Crowder's undenied testimony.
Eckstein did not testify.
' Again, this is not related critically, but merely stated as a fact. The Respondent was
within its rights in favoring the SIU over the NMU, provided that it did not engage in
conduct violative of the Act. Mary %imbreii, et at . v. N.L.R.B.,, 290 F. 2d 799, 802
(C.A. 4).
BERNHARDT BROS. TUGBOAT SERVICE, INC. 861
a week earlier as to the Wisconsin without Tranchita's knowledge. Indeed, in
view of the Crowder-Eckstein telephone conversation on February 12, especially
when viewed against the backdrop of the Respondent's favoritism toward the SIU,
the conclusion is inescapable that on that date, after the SIU agents had been
aboard the Wisconsin , the Respondent clamped a limitation upon visitors to that
boat, and that an object of this action was to isolate the Wisconsin 's crew-who had
already signed SIU designation cards-from any influence which might tend to
cause them to waver in their allegiance to the SIU , or to select the NMU as their
bargaining agent. It is so found.
Let us turn now to the defenses. Contrary to the Respondent's contention, I
do not regard it as essential to the General Counsel's case to show that the NMU
sought, but was denied, permission for its agents to visit the boats . It is enough,
as I have found, that the Respondent's motive in adopting the rule was dicriminatory.
This is so because, under these circumstances, the very existence of the limitation
hampered effective opposition to the SIU.34 As to the SIU's argument that the
rule was not violative of the Act because it was not diclosed to employees, the facts
show otherwise. Thus when a purported NMU agent later boarded the Wisconsin,
he was told in the presence of crew members that visitors were required to have
letters of authorization. It is accordingly concluded that, although the limitation
upon visitors to the Wisconsin was not illegal on its face,35 its adoption on Febru-
ary 12 for discriminatory reasons, and after the SIU's agents had boarded that boat
constituted illegal aid and assistance to the SIU violative of Section 8(a)(1) and
(2) of the Act.
2 Events aboard the "Wisconsin"
a. Facts
On February 12, Bateman had a conversation with Polly Orrell, the cook aboard
the Wisconsin. Taking a little book out of his pocket, Bateman told Orrell: "There
are some men getting on the boat and they are SIU men, they are going to organize
the boat. This little book I have it [about 5 years]. That's my life saver. I
wouldn't take anything for it." Orrell then asked: "Well, who are those men?"
and Bateman told her who they were. Apparently, although the record is not
clear, this conversation had reference to Colvis and Gould.
On the same day, presumably while Gould and Colvis were aboard, some
rank-and-file crew members were discussing the welfare plan of the contract "that
the SIU was offering." Bateman "explained how it paid off and stuff like that"
and stated that "it was a pretty good plan." 36
Among the rank-and-file crew members of the Wisconsin solicited by Colvis
on behalf of the SIU was James E. York. Aboard the boat at the time was Jim
Bernhardt, the Respondent's vice president. In the presence of several other
employees, York asked Bernhardt "if it was all right to sign the card." Bernhardt
answered "Yes, go ahead and sign, that is what the company wanted." York
then put the card in his pocket, but "after a period of time" signed it.37
Meanwhile Orrell was solicited by Colvis to sign an authorization card for the
SIU.38 She told Colvis that "she was scared to death of losing her job" if she signed.
Colvis talked to Orrell several times about the matter. Orrell told Crowder: "I am
scared to death of these men, I don't know what to do. They've got some cards
down there for us to sign and I don't know what to do." Crowder replied: "Do what-
ever you want to, Polly." Later Orrell asked Bernhardt "if it was all right to sign those
cards that Mr. Colvis wanted us to sign." Bernhardt replied: "Yes, I called John
[Bernhardt] and he said it was all right to sign it." When Orrell remarked: "I
14 Edmont, Inc., 139 NLRB 1528. In this connection it must be recalled that the Re-
spondent 's office was located at Cassville , Wisconsin , and its boats were scattered over
the Mississippi River and its tributaries.
15Biudworth Construction Company, Inc , 123 NLRB 3185.
36 The findings as to Bateman 's activities on February 12 are based upon the testimony
of Gould and crew members Polly Orrell and James E. York. Bateman did not testify.
There was further evidence that earlier that day Gould had telephoned Bateman at his
home, asked him if he were going to be aboard the Wisconsin, and talked to him face-to-
face before boarding I consider this immaterial
a7 These findings are based upon York 's undenled testimony . Bernhardt and the other
crew members named by York as having been present did not testify.
IsOrrell testified that Colvis stated that all the boats were going to be SIU and she
would have to belong to the SIU or she would not have any job. Colvis denied making
such a threat . Colvis impressed me as a more reliable witness than Orrell . Therefore
I credit Colvis' version as the more accurate
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a notion to call John," Bernhardt replied: "I have already talked to John,
Polly, can't you believe me? It is all right, go ahead and sign it." 39 When all
the other crew members of the Wisconsin had signed, Larry Moore, a rank-and-file
employee, asked Orrell: "We have all signed up with this IBU except the captain.
Are you going to be with us or are not going to be with us?" Orrell then signed
a card for the SIU, remarking that she "would go along with the majority of the
crew." 40
b. Contentions of the parties
The consolidated complaint alleges, and the Respondent's answer denies, that
the Respondent rendered unlawful aid to the SIU in that, on February 12, Bateman
and Bernhardt "solicited employees of Respondent to select the IBU-SIU as their
collective-bargaining representative." The General Counsel's brief contends that
"On the dock on February 12, Bateman contacted employee Moore with Organizer
Gould," that "Bateman explained the SIU Welfare Plan . as he accompanied
Gould around the boat," and that Bateman "solicited Polly Orrell and [told] her
he thought [the SIU] was a good idea." The Respondent's brief argues that
Bateman's explanation of the SIU's welfare plan "is certainly a far cry from . . .
actual coercion."
With regard to Bernhardt, the NMU's brief maintains that "but for the convenient
persuasion of Mr. Bernhardts [Orrell] would not have signed." Conversely, the
Respondent maintains in its brief that "Clearly, the statements by both Crowder and
Bernhardt [to Orrell] were uncoercive; rather their statements were couched in
terms which would lead her to believe that she would not be discriminated against
if she did sign."
c. Conclusions
The testimony as to what happened on the dock on February 12 is that Colvis
and Gould parked their car and "ran into Dick Bateman . . . . We talked to him
by his car when his wife came up," and that Moore drove up with his wife, and
Gould asked him if he wanted to join the SILT, after which they all boarded the
Wisconsin. As the General Counsel's brief concedes, "the evidence does not show
what Bateman said to Moore at that time." I am of the opinion, and find, that
testimony regarding this incident is without any probative value. The only testi-
mony that Bateman "accompanied" Gould is that of Gould:
Q. . . . you went to talk to the employees with Dick Bateman . . . didn't
you?
A. Dick Bateman was aboard the vessel roaming around just like everybody
else was, yes.
To say, as the General Counsel does, that this proves that "Bateman . .. accom-
panied Gould around the boat" is a distortion of the evidence. With regard to Bate-
man's remarks to Orrell about a "little book," I cannot agree that this amounted to
"solicitation" of Orrell. There remains the fact that Bateman explained the SIU's
welfare plan to crew members. Whether or not this constituted "solicitation," I
consider it the expression of Bateman's opinion regarding the merits of the SIU.
As it was not accompanied by any offer of benefit or threat of reprisal, it falls within
the protection of Section 8(c) of the Act.
So far as Bernhardt is concerned, Orrell was obviously frightened by the prospect
that if she signed a card for the SIU, she might lose her job. All that Bernhardt did
was, when questioned by her, reply in a manner calculated to reassure her that her
job was safe and that there would be no reprisal if she signed. Bernhardt's response
to a similar question by York, described above, is somewhat different, for York did
not exhibit apprehension, and the answer he received indicated that the Respondent
preferred the employees to sign up with the SIU. While the quantum of persuasion
here was greater than in the Orrell incident, it is still the law that-absent a threat of
reprisal, promise of benefit, or other coercion-an employer is free to express to
employees his preference for one union over another 41 And there were no coercive
overtones in Bernhardt's reply to York. Accordingly, it is concluded that Bernhardt's
answer to York's question was protected by Section 8(c) of the Act. It follows that
30 Orrell's explanation for her discussion with Bernhardt was: "I didn't want to do
something they didn't know about," and "I didn't know whether they was getting the
company mixed up with it or not, I didn 't know what the deal was."
4O The findings regarding Orrell are based upon the testimony of Orrell, Crowder, Gould,
and Colvis. Neither Bernhardt nor Moore testified.
41 Mary K mbrell, et al. v. N.L R B., 290 F 2d 799 , 802 (C.A. 4).
BERNHARDT BROS. TUGBOAT SERVICE, INC. 863
the motions to dismiss paragraphs VIII-A and VIII-B of the consolidated com-
plaint, upon which rulings were reserved, must be granted.
3. Events aboard the Stephen Foster
a. Facts
Colvis and Gould boarded the Foster on February 13 and signed up for the SIU
the master, the pilot, and seven rank-and-file employees. Among others, Colvis
talked to Herman Merritt. There is a conflict as to what Colvis told Merritt.
According to Merritt, Colvis stated that if Merritt "was going to work for Bernhardt
[he] would have to sign the [authorization] card [for the SIU]." Colvis denied
making such a statement. Both agree, however, that no supervisory personnel were
within hearing distance during this conversation.
The master of the Foster at this time was Capt. James A. Sprinkle; her pilot was
Schickling. According to Schickling's testimony, in the presence of Sprinkle,
Schickling, Gould, and several rank-and-file crew members, Colvis was asked by a
crew member "if the whole boat was going SIU" and Colvis replied, "Yes, the whole
boat, pilot-house on down would be SIU," adding that "they would have to join the
SIU" and that he (Schickling) said nothing.
b. Contentions of the parties
The General Counsel apparently does not contend that Colvis' alleged statement
to Merritt, if made, constituted a violation of the Act by the Respondent, as no
supervisor was shown to have heard it. But as to the other incident, the consolidated
complaint, as enlarged by the General Counsel's bill of particulars, alleges that the
Respondent rendered unlawful assistance to the SIU on or about February 13 by
the failure of Sprinkle and Schickling "to disavow a threat made in their presence
by an agent of the IBU-SIU [Colvis] to employees of Respondent on board the
Stephen Foster that said employees had to sign cards for the IBU-SIU in order to
work on the boat." The answers of the Respondent and the SIU deny this allegation.
c. Conclusions
Assuming that Colvis threatened some crew members aboard the Foster in the
presence of Sprinkle and Schickling, it is the General Counsel's theory that this placed
Sprinkle and Schickling under a duty to disavow Colvis' threat, and that they were
remiss in this regard. As to Schickling-who admittedly remained silent-I disagree.
As pilot, he was only second in command; his superior officer, the master, was
present. If any duty to speak devolved upon the Respondent, it was up to Sprinkle,
not Schickling, to do so. On this point, Schickling testified on direct examination:
Q. After Mr. Colvis said this did you say anything?
A. No.
Q. Did Captain Sprinkle say anything?
A. I don't know. I took my coffee and left. I signed the card and left.
[Emphasis supplied.]
There is no other evidence one way or the other regarding Sprinkle's reply to Colvis,
if any. It is therefore concluded that, assuming that Sprinkle was under an
obligation to repudiate Colvis' alleged threat, the General Counsel has failed to
establish that Sprinkle did not do so.
4. Events aboard the William Clark and the Pere Marquette
a. Facts
On February 14, Colvis and Gould boarded the William Clark. On this boat they
obtained the signed cards of the master, the pilot, and eight rank-and-file crew mem-
bers. On the following day, February 15, they went aboard the Pere Marquette,
where they succeeded in signing up for the SIU the master and all nine rank-and-file
crew members.
One of the rank-and-file crew members of the Marquette whom Colvis solicited
on behalf of the SIU was Kenneth Swan. Later in the day, about 5 p.m., Capt.
William G. Summey, Jr., the master, told Swan that the SIU "was the only union
that the company would recognize, so we [might] just as well join it if we were talk-
ing about joining." 42 About an hour later, Swan signed an authorization card for
the SIU.
'2This finding is based upon Swan 's uncontradicted testimony . Summey did not testify.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Davis, then a deckhand aboard the Marquette, testified as a witness for
the General Counsel that about 7 or 8 p.m. on February 15, Summey stated to Davis
and another crew member, Ralph Anderson, that "we were going to have to join
the union that we would have to belong to the union." According to Davis,
Summey further told them "to sign these pledge cards, that it didn't mean anything
until the contract was brought before us and approved." On cross-examination, he
testified:
Q. . . . Capt. Summey did not tell you that you had to sign a union card
yourself in order to keep your job?
A. No, sir.
Q. He didn't say aynthing like that?
A. Not tome.
Q. Not to anybody while you were there?
A. Not that I heard.
b. Contentions of the parties
At the hearing, the General Counsel amended the consolidated complaint to allege
that, on or about February 15, Summey solicited employees of the Respondent to
select the SIU as their bargaining agent and warned them that the Respondent would
recognize no other union. After a continuance, both the Respondent and the SIU
denied the allegation orally on the record.
c. Conclusions
'Summey's statement to Swan that the SIU was the only union that the Respondent
would recognize, so the crew members might as well join, was coercive because it
underlined the futility of selecting any other union (and in particular to the NMU)
as bargaining agent. Indeed, the threat constituted in effect an anticipatory refusal
to bargain. It is concluded that the statement interfered with the right of the em-
ployees to select a union other than the SIU as their bargaining representative in
violation of Section 8(a) (1) of the Act, and also rendered illegal aid to the SIU
in volation of Section 8(a) (2) of the Act.
As to Davis' testimony, it is so self-contradictory and confused that it "carries its
own death wound." 43 I shall accordingly base no findings thereon.
E. Recognition of the SIU
1. Facts
On February 14, Colvis and Gould turned over to Matthews the 28 signed cards
(of which 5 were supervisors) which they had obtained from the crews of the
Wisconsin, the Foster, and the Clark. Matthews dispatched a telegram to the
Respondent stating that the SIU represented a majority of the Respondent's employ-
ees and requesting a meeting to negotiate a contract. As a result of this, Matthews
met with McMahon on the evening of February 15.44 Matthews exhibited the 28
SIU authorization cards referred to above and stated that there would be more from
another boat. (At this time Colvis and Gould were aboard the Marquette obtaining
additional signed authorizations.) McMahon replied that the additional cards
should be in his hands by the next morning, and that he would then check the names
against the Respondent's payroll and the signatures against authentic signatures in
the Respondent's possession. Subject to this check, McMahon extended conditional
recognition to the SIU as the representative of the Respondent's employees in two
units, one composed of crew members other than masters, and the other consisting
only of masters. McMahon and Matthews then commenced the simultaneous nego-
tiation of two collective-bargaining contracts, one for each unit.
On the morning of February 16, Colvis and Gould turned over to Matthews an
additional 10 cards designating the SIU, signed the previous day by crew members
aboard the Marquette, of which 1 was signed by a supervisor. All 38 cards (the
28 exhibited to McMahon the previous night plus the 10 additional) were borrowed
by McMahon. On the same day, at McMahon's request, Alan Berger, Esq., com-
pared the signatures on the SIU's authorization cards with the endorsements on pay-
43NL.R B. v. Robbins Tire & Rubber Company , Inc., 161 F 2d 798, 800 (C.A 5), quoted
with approval in N.L.R.B. v. Pittsburgh S S. Company, 337 U.S. 656, 660
" Matthews testified that Gould was with him but Gould testified that he was aboard
the Marquette at the time I credit Gould's version as the more accurate. -
BERNHARDT BROS. TUGBOAT SERVICE, IN C. 865
checks supplied him by McMahon's secretary. He found that, with one or two
exceptions, the signatures matched. The record does not reveal whether Berger
reported the results of his comparison to anyone.
2. Contentions and conclusions regarding recognition
The consolidated complaint alleges that on or about February 15, the Respondent
recognized the SIU as the exclusive bargaining agent of its employees. The answers
of the Respondent and the SIU deny this allegation.
At the hearing, the General Counsel and the Respondent signed a stipulation (from
which the SIU withdrew) that on February 15 the Respondent "recognized the [SIU]
as the exclusive bargaining agent of its employees in a unit of all crew members, ex-
cept captains." The General Counsel contends that the recognition extended to the
SIU on February 15 was unconditional; the Respondent and the SIU take the position
that the recognition on February 15 was not final, but subject to a card check, and
that this condition was fulfilled on February 16. The Respondent concedes that,
although the condition was met at a later time, the recognition nevertheless dates
from February 15.
Regardless of whether the General Counsel's theory or the Respondent's theory
is followed, the result is that February 15 is the crucial recognition date.
3. Contentions and conclusions regarding unit inclusions and exclusions
on February 15
All parties agree that masters, as supervisors, should not be included in the unit.
The General Counsel and the NMU would also exclude pilots as supervisors, while
the Respondent and the SIU would include them as rank-and-file employees. It has
been found above that the Respondent's pilots are, and at all material times have
been, supervisors within the meaning of the Act. They should therefore be excluded.
The parties stipulated that, as of February 15, at least 46 individuals were em-
ployed by the Respondent within the unit, of whom 32 signed cards authorizing the
SIU to represent them, and that an additional 7, none of whom signed such designa-
tions, are in dispute. They are listed in the attached Appendix B.45 As to the
disputed individuals, the General Counsel and the NMU would include all seven,
while the Respondent and the SIU would exclude all seven. The General Counsel
and the NMU concede the authenticity of the 32 signatures on the SIU cards. Thus
the maximum number of persons in the unit, as of February 15, is 53, the minimum
number is 46, and in any event 32 eligible persons designated the SIU as bargaining
representative.
4. Contentions regarding the SIU's majority status on February 15
The consolidated complaint alleges that on February 15, the SIU did not represent
a majority of the employees in the unit. In support of this contention, the General
Counsel contends that all 32 designation cards were obtained by virtue of the
Respondent's coercion of its employees and its illegal aid to the SIU. Alternatively.
the General Counsel maintains that some individual cards were obtained under
such circumstances as to render the designations nugatory, and that the number of
these is sufficient to destroy the SIU's purported majority. Specifically, the General
Counsel contends that the designations of the six rank-and-file crew members ob-
tained for the Foster through the SIU cannot be counted because they were illegally
hired, and that the cards of eight other named rank-and-file crew members 46 should
not be counted because of coercion brought to bear upon them personally or in their
presence. Thus, according to the General Counsel's alternative theory, the SIU had
obtained by February 15 only 18 valid cards-substantially less than a majority.
The answers of the Respondent and the SIU deny that the SIU lacked a majority
on February 15. They maintain that all 32 designation cards are valid and should
be counted, and that this gave the SIU a clear majority on February 15, whether the
number in the unit was then 46, or 53,,or some number between.
"At the hearing the stipulation was 45 persons in the unit on this date, and 8 in dis-
pute Examination of the briefs reveals, however, that all parties consider that Fred
Lilley ( who was listed at the hearing as in dispute ) also should be included in the unit.
as of February 15. The list has been changed accordingly
46 Ralph Anderson , Charles V. Davis, Paul Hale, Herman Merritt, Larry Moore, Polly,
Orrell , Kenneth Swan , and James E York.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Conclusions
It has been found that the Respondent discharged Chappell on February 3, and
failed and refused to reinstate him until February 13, because it knew he was a
member of the NMU, or suspected that he was soliciting on behalf of the NMU, or
feared that he might do so. Moreover, the Respondent informed some rank-and-file
employees of the discriminatory nature of the discharge. Hence the Respondent's
violation of 8 (a) (1) and (3) of the Act created an atmosphere designed to suppress
any NMU-oriented support. By way of contrast, the Respondent placed no impedi-
ment in the path of the SIU organizing campaign, and this difference in treatment
was bound to coerce the employees and interfere with their freedom of choice.
Under such circumstances the signatures of employees affixed to SIU designations
are meaningless, and the cards are all tainted. I conclude that on February 15 the
SIU did not represent an uncoerced majority of the Respondent's employees. It fol-
lows, and I find, that by recognizing the SIU on that date as the bargaining repre-
sentative of its employees, the Respondent rendered illegal aid and assistance to the
SIU violative of Section 8(a)(2) of the Act, and coerced, restrained, and interfered
with its employees in their choice of bargaining representative, in violation of Sec-
tion 8(a)( I) of the Act.
In view of the above finding, I deem it unnecessary to determine the exact number
of employees in the unit on February 15.
F. Execution of the SIU contract
1. Facts
The simultaneous negotiation of the two collective-bargaining contracts, begun
on February 15, continued through February 16, 17, and 19, with telephone conversa-
tions on February 18. On February 19, the parties executed two agreements. The
one with which we are here concerned-for a unit of all crew members except
masters-was for a term of 5 years, and automatically renewable thereafter from
year to year unless terminated on '60 days' notice. The parties have maintained this
agreement in effect at all times since February 19.
2. Contentions of the parties
The consolidated complaint alleges that on February 19 the Respondent executed
a contract with the SIU, and since that date has maintained it in effect and enforced
it, "notwithstanding that fact that the (SIU] at the time of the execution of said
contract did not represent an uncoerced majority of the employees" in the affected
unit. The answers of the Respondent and the SIU deny this allegation, thus raising
issues as to whether any contract was signed on February 19, whether the SIU
enjoyed majority status at that time, and also whether the agreement, if any, has
been put into effect. However, at the hearing the parties stipulated that the contract
had been signed and put into effect on February 19, leaving only the issue of
majority representation. On this issue the General Counsel maintains that, aside
from the SIU's majority status on February 15, the Respondent committed a separate
violation of the Act by executing the SIU agreement at a time when the SIU
did not represent an uncoerced majority of the employees involved. The SIU, on
the contrary, contends that the only crucial date is February 15, and that the"
majority status of the SIU on February 19 is immaterial to the issues. I agree
with the General Counsel on this point, and turn to the question of the SIU's
majority status on February 19.
The parties stipulated to the names of 48 individuals who were rank-and-file
employees of the Respondent on February 19, of whom 31 signed SIU designation
cards, and there are 5 others whose status as of that date is apparently in dispute,
including 1 who executed an authorization card for the SIU. See Appendix B.47
As to the disputed employees, the General Counsel and the NMU apparently
contend that four of them (who had not signed cards) should be included and the
fifth (who had signed a card) should be excluded, presumably the Respondent and
the SIU maintain the reverse. Thus, under the view most favorable to the General
Counsel and the NMU, as of February 19 there were 52 employees in the unit,
31 of whom had signed cards authorizing the SIU to represent them; under the
47 Although the parties on the record stipulated to only 46 persons in the unit on this
date, all agree that, in addition, James Chappell and Slaten Bray were working for the
Respondent on February 19. Moreover, all parties seem to agree that there is Insufficient
proof that Thomas McKoy was an employee of the Respondent on that date.
BERNHARDT BROS. TUGBOAT SERVICE, INC. 867
view least favorable to the General Counsel and the SIU there were 49 in the unit, of
whom 32 had executed such cards.
The General Counsel further contends that here, too, all the designations are
tainted; and in particular the same 14 as named above48
3. Conclusions
The coercive atmosphere created by Chappell's discharge on February 3 still
existed on February 19. Although Chappell was reinstated in the meanwhile, this
alone cannot be considered as having remedied the unfair labor practices, for there
was neither an offer of backpay nor any 60-day posting of notices. Hence the
designations signed from February 12 to 15 cannot be accepted as indicative of the
expression of the employees' free will. The taint remained. For the Respondent
to sign a contract with the SIU and to maintain it in force under these conditions
constituted further illegal aid and assistance to the SIU, in violation of Section
8(a)(2) of the Act, and interference with the rights of the employees in violation
of Section 8 (a) (1) of the Act.
G. The union-security clause
1. Contentions of the parties
The consolidated complaint alleges that the SIU contract executed by the Re-
spondent on February 19 and maintained in effect since then contained a 31-day
union-security clause "notwithstanding the fact that the IBU-SIU, at the time of
the execution of said contract, was a labor organization assisted by the actions
described [above]." The answers of the Respondent and the SIU deny this allega-
tion, thereby framing issues regarding whether or not the contract contained such
a clause, and if so, whether the SIU was at the time illegally assisted by the
Respondent.
2. Conclusions
Article 3.01 of the contract executed on February 19 (which was put into evidence)
clearly constitutes a 31-day union-security clause. It is therefore concluded that
the contract of February 19 between the Respondent and the SIU, which admittedly
has been maintained in effect, contained a union-security clause. The first proviso
to Section 8(a)(3) of the Act prohibits the execution or enforcement of such a
clause where the contracting union has been "established, maintained, or assisted by
any action defined in Section 8(a) of this Act as an unfair labor practice." As
the Respondent had illegally assisted the SIU on February 15 by recognizing it
as the exclusive representative of its employees, it follows that by including a
union-security clause in the contract of February 19, and by maintaining such a
clause in force and effect thereafter, the Respondent further violated Section 8 (a) (1)
and (2) of the A. t. Moreover, this constituted discrimination in regard to working
conditions, violative of Section 8 (a) (3) of the Act.
H. Events after execution of the contract
1. Aboard the William Clark
a. Facts
As previously mentioned , on February 18 Chappell returned to work aboard the
Clark. Chappell had NMU cards in his possession and obtained the signatures of
several crew members thereto. On February 26, while Chappell was still working
on the Clark, Schickling became the master of that vessel.
Sometime between February 26 and March 3, Schickling informed Chappell that
he either had to sign a pledge card for the SIU or get off the boat when it reached
Cairo. Chappell retorted that he "wouldn' t sign an SIU pledge card under any cir-
cumstances if [he] lived to be a thousand years old." 49 Chappell got off the vessel
when it reached Cairo on March 3 and has not worked for the Respondent since.
48 As to 1 of the 14, Herman Merritt, the General Counsel alleges that because of
pressure brought to bear by the SIU in the interim between February 15 and 19, there is
an' additional reason why his card is a nullity.
40 The findings regarding this conversation are based upon Chappell 's undenied testi-
mony Although Schickling testified, he made no mention of this incident.
712-548-64-vol. 142-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 12 James E. York, then a member of the Wisconsin's crew, had
signed a card designating the SIU as his bargaining agent. On March 7, while
working aboard the Clark, York sought Schickling's advice regarding his joining
the SIU. Schickling told York that he would eventually have to join the SIU
and he "might as well do it now " Schickling added that York "was going to have
to join before he got to St. Louis or he was going to have to get off the boat." 50
York did not sign an application for membership in the SIU before the Clark
reached St. Louis on March 9, but did so sometime later.
b. Contentions of the parties
The consolidated complaint alleges that on or about March 7 Schickling "told
an employee aboard the MV William Clark that he had better sign a card for the
IBU-SIU so that he would not be put off the boat." The Respondent' s answer denies
this allegation.
The General Counsel's theory is that Schickling' s statement of March 7 brought
coercion to bear upon York "to join the [SIU] before the expiration of the 30 days
provided in the Act." There is no allegation, nor does the General Counsel contend,
that Chappell's second separation from the Respondent's employ, which took place
on March 3, was violative of the Act.
c. Conclusions
Regardless of the legality or illegality of the union-security clause contained in
the February 19 contract, the Act in any event gives employees a 30-day grace
period after the execution of such a clause during which they decide whether to join
the contracting union. Here the 30-day period began to run on February 19 and
therefore extended well into the last half of March. The statements of Schickling
to Chappell and York each imposed a condition of employment which involved
joining the SIU before the 30-day statutory period had expired. It is accordingly
found that each of these statements further violated Section 8(a)(1), (2), and (3)
of the Act.
2. Aboard the Wisconsin
a. Facts
On or about March 14, Jerry Ray Schweain, who had previously worked aboard
the Wisconsin, was called back to work from leave. When he boarded the boat he
had a conversation with James E. Henderson, then the Wisconsin's pilot. According
to Schweain's testimony, he remarked to Henderson that he had heard that the
Respondent "had some union troubles." Henderson replied that the Respondent
had signed a contract with the SIU for a 5-year term "and that if a man wanted to
work he could sign it, and if he didn't he could get off, that there wasn't no arguing
about it." According to Schweain, Henderson added "that he had been told that any-
one that worked on there that stayed would have to sign to join [the SIU] . . . in
order to work or they would be replaced." [Emphasis supplied.] At Henderson's
suggestion, Schweain looked at what he thought was a copy of the contract posted in
the galley. Henderson told him "that was the contract down there and a man had
a choice to either join or look for another job." Schweain replied that in his opinion
the contract would not help anyone and he did not intend to join the SIU. Hender-
son said: "Well, if a man don't sign he won't stay." [Emphasis supplied.] Remark-
ing that he would just as soon be put off right there rather than "up the river
somewhere," Schweain then left the boat. On cross-examination, Schweain testified:
Q. Did you ask him how many days you had to join the Seafarers?
A. I believe we discussed it, yes. I don't remember exactly the words he
said, but he said something about a month ....
Q. . . he told you you had a month to make up your mind if you were
going to join the Seafarers or not?
A. He said you were supposed to have a month ....
Henderson did not testify.
b. Contentions of the parties
The consolidated complaint alleges that on or about March 14, Henderson "told
an employee aboard the MV Wisconsin that said employee could not work until he
so The findings regarding this conversation are based upon the testimony of Schickling
and York.
BERNHARDT BROS. TUGBOAT SERVICE, INC. 869
signified his intention to join the IBU-SIU." The Respondent 's answer denies this
allegation.
c. Conclusions
Although Schweain appeared somewhat reluctant to admit it, his cross-examination
strongly indicates that Henderson explained the 31-day grace period provided in the
contract's union-security clause. Schweain's testimony simply does not support the
allegation that he was told that he could not work until he agreed to join the SIU.
On the contrary, it reveals that he was informed that he had a month to make up his
mind. In this respect the Henderson-Schweain incident differs substantially from
Schickling's statements to Chappell and York aboard the Clark, related above.
Nevertheless, as Henderson was a supervisor, the incident furnishes proof of an
instance of enforcement of the union-security clause. As the clause itself was in-
valid because of the Respondent's prior illegal assistance to the SIU, Henderson's
invocation of the clause constituted a further violation of Section 8(a)(1), (2),
and (3) of the Act.
1V. THE REMEDY
It will be recommended that the Respondent cease and desist from the unfair
labor practices which it has committed. As the violations of the Act found to have
taken place are persuasively related to other unfair labor practices proscribed by the
Act, the danger of their commission in the future is to be anticipated from the Re-
spondent's past conduct. It will therefore be recommended that the Respondent cease
and desist, not only from the unfair labor practices found, but also from in any man-
ner infringing upon the rights of its employees guaranteed in Section 7 of the Act.
Affirmatively it will be recommended that the Respondent make Chappell whole
for any loss of pay he may have suffered by reason of the discrimination against him
by paying to him a sum of money equal to that which he normally would have
earned from February 3, 1962, the date of his discharge, to February 13, 1962, the
date when he was offered reinstatement, less his net earnings during the said period,
plus his reasonable subsistence and travel expenses from the Wisconsin to his home
port on February 3, 1962, and from his home port to the Clark on February 18,
1962, to the extent that the Respondent has not already reimbursed him for such
expenses, all with interest from February 18, 1962, at the rate of 6 percent per year.
It will further be recommended that the Respondent withdraw and withhold all
recognition of the SIU as the exclusive representative of any of its nonsupervisory
employees for the purposes of collective bargaining, unless and until the SIU demon-
strates its majority status in a Board-conducted election.
It will also be recommended that the Respondent reimburse its employees for
any membership dues, fees, and assessments which they paid to the SIU after February
19, 1962, when the contract was signed,51 plus interest thereon at the rate of 6 per-
cent per year. Finally it will be recommended that the Respondent make available
to the Board, upon request, all records needed to facilitate the calculation of the
amount of backpay and reimbursement due hereunder, and post appropriate notices.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these cases, I make the following:
CONCLUSIONS OF LAW
1. Bernhardt Bros. Tugboat Service, Inc., is, and at all material times has been,
an employer within the meaning of Section 2(2) of the Act.
2. National Maritime Union of America, AFL-CIO, and Inland Boatmen's
Union of the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Wa-
ters District, AFL-CIO, are, and at all material times have been labor organizations
within the meaning of Section 2(5) of the Act.
51 Virginia Electric and Power Company v. N.L.R B., 319 U.S. 533; N.L R.B v. Revere
Metal Art Co, Inc., et at., 280 F. 2d 96 (C.A. 2) ; Paul M. O'Neill International Detective
Agency, Inc v. N.LR B., 280 F. 2d 936 (C.A. 3) ; N.L.R.B. v United States Steel Corp
(American Bridge Division), et at., 278 F. 2d 896, 903 (CA. 3), cert. denied 366 U.S.
908, 909; Marcus Trucking Company, Inc., 126 NLRB 1080, enfd. as modified, 286 F. 2d
583 (CA. 2) ; and Reliance Fuel Oil Corp., 129 NLRB 1166, remanded on other grounds
297 F. 2d 94, 99 (C.A. 2), cert. granted 369 U.S. 883. To the extent that The Standard
Transformer Company, 97 NLRB 669, enfd. 202 F. 2d 646 (C.A. 6), holds to the contrary,
I consider that it has now been overruled sub silentio by United Association of Journey-
men & Apprentices of Plumbing and Pipefitting Industry of the United States and Canada,
Local 231, AFL-CIO (J. S. Brown-E. F. Olds Plumbing it Heating Corporation), 115
NLRB 594.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Masters and pilots employed by the Respondent are, and at all material times
have been , supervisors within the meaning of Section 2 (11) of the Act.
4. By adopting and enforcing a limitation upon visitors to the MV Wisconsin for
the purpose of assisting the SIU, by according recognition to the SIU as the exclusive
bargaining representative of its employees at a time when the SIU did not represent
an uncoerced majority of the said employees , by entering into , maintaining, and
giving effect to a collective -bargaining contract with the SIU at a time when the SIU
did not represent an uncoerced majority of the affected employees , by providing
for union-security provisions in the said agreement , and by threatening employees
with reprisal if they failed to join the SIU within a period shorter than 30 days,
thereby rendering illegal aid and assistance to the SIU, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a) (2) of
the Act.
5. By discriminating in regard to the hire and tenure of employment of James A.
Chappell, by entering into , maintaining , and enforcing the union -security provisions
of its contract with the SIU at a time when the SIU was the recipient of illegal aid
and assistance , and by threatening reprisal against employees who failed to join the
SIU within a period shorter than 30 days, thereby encouraging membership in the
SIU and discouraging membership in the NMU, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
6. By the foregoing conduct, and by other conduct interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed them in Section 7
of the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
7. The unfair labor practices described above tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce, and con-
stitute unfair labor practices affecting commerce within the meaning of Section 2(6)
and (7 ) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding , I recommended that the Respondent , Bernhardt
Bros. Tugboat Service, Inc., Cassville , Wisconsin , its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in National Maritime Union of America , AFL-CIO,
or any other labor organization , by discriminating against its employees in regard
to their hire or tenure of employment or any term or condition of employment.
(b) Interrogating its employees with regard to their union membership or activi-
ties in a manner violative of Section 8 (a) (1) of the Act.
(c) Threatening its employees with reprisal if they should engage in protected
concerted activities and informing them that it had discharged any employee be-
cause he had engaged in such activities.
(d) Rendering illegal aid or assistance to any labor organization.
(e) Adopting , promulgating , maintaining , enforcing , or putting into effect any
limitation , rule, or regulation regarding visitors to any of its boats, where a purpose
is to hamper, impede, or retard communication between its employees and any labor
organization.
(f) Recognizing any labor organization as the exclusive bargaining representative
of its nonsupervisory employees at a time when such labor organization does not
represent an uncoerced majority of such employees.
(g) Giving force or effect to its agreement of February 19, 1962 , with Inland
Boatmen 's Union of the Seafarers International Union, Atlantic, Gulf, Lakes and In-
land Waters District , AFL-CIO , designated by the parties as the "nonsupervisory con-
tract," or any extension , renewal , modification , or supplement thereto, unless and
until such labor organization shall have demonstrated its representative status pursuant
to a Board -conducted election among such employees , provided that nothing con-
tained herein shall force or require the Respondent to change , alter, or vary the sub-
stantive provisions of the said contract.
(h) Encouraging membership in Inland Boatmen 's Union of the Seafarers Inter-
national Union , Atlantic , Gulf, Lakes and Inland Waters District , AFL-CIO, or any
other labor organization , by informing its employees that such labor organization is
the only one which the Respondent will recognize as the bargaining representative of
its employees , or by entering into, performing , maintaining , enforcing , or giving effect
to any contract , agreement , arrangement , or understanding requiring its employees
BERNHARDT BROS. TUGBOAT SERVICE, INC. 871
as a condition of employment to join or assist such labor organization , except as
authorized by Section 8(a) (3) of the Act, as amended, or by requiring its employees
as a condition of employment to join such labor organization within a period shorter
than 30 days after the execution of a contract containing a union-security clause.
(i) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Withdraw and withhold all recognition from Inland Boatmen's Union of the
Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, or any successor thereto, as the representative of any of its nonsuper-
visory employees for the purposes of collective bargaining with respect to wages,
rates of pay, hours of employment, or other terms or conditions of employment,
unless and until such labor organization shall have demonstrated its representative
status pursuant to a Board-conducted election among such employees.
(b) Make James A. Chappell whole for any loss of pay suffered by reason of the
discrimination against him in the manner set forth above.
(c) Make its employees whole for initiation fees, dues, and other moneys paid by
said employees to Inland Boatmen's Union of the Seafarers International Union,
Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, since February 19, 1962,
with interest thereon at the rate of 6 percent per year.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to compute the
amount of backpay and reimbursement due hereunder.
(e) Post at its office in Cassville, Wisconsin, and aboard each of its boats, copies
of the attached notice marked "Appendix C." 52 Copies of said notice, to be furnished
by the Regional Director for the Fourteenth Region, shall, after being duly signed
by an authorized representative of the Respondent, be posted by the Respondent and
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that these notices are not altered, defaced, or
covered by any other material.
(f) Notfiy the said Regional Director, in writing, within 20 days from the receipt
of this consolidated Intermediate Report, what steps the Respondent has taken to
comply herewith.53
It is further recommended that unless the Respondent shall, within 20 days after
the receipt of this consolidated Intermediate Report, notify the said Regional Director,
in writing, that it will comply with the foregoing recommendations, the Board issue
an order requiring the Respondent to take such action.
It is further recommended that the complaint be dismissed, insofar as it alleges
any unfair labor practice not found herein.
531f this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner."
If the Board's Order is enforced by a decree of a United States Court of Appeals, the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
shall be substituted for the words "Pursuant to a Decision and Order "
53 If this Recommended Order is adopted by the Board, the words "within 10 days from
the date of this Order" shall be substituted for the words "within 20 days from the receipt
of this consolidated Intermediate Report."
APPENDIX A
GENTLEMEN: It has come to the attention of the Company that the Inland Boat-
men's Union is attempting to organize the Company's employees. The Company
wishes to inform you at this time that under the law, if you wish to join a union, you
are free to do so and the Company will bargain with that union as your representative.
We also have no objection to bargaining with the Inland Boatmen's Union or any
other union as a matter of Company policy. We have always tried to do the right
thing from the employees' standpoint as well as the Company standpoint, and if you
want to join a union and have them bargain for you, then you only need to show the
Company that a majority of you want a union to represent you, and we will bargain
with the union you choose. In conclusion, you need not worry about getting fired
or anything else for joining a union , this Company has never operated on the other
side of the law.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
STIPULATED EMPLOYEES AS OF FEBRUARY 15, 1962
George E. Anderson *Paul Hale Earl Roth
*Ralph Anderson *Daniel Harmon Gaylen Schwalb
*Homer Baker Ray Harris Robert Simmons
*Albert Bateman *Lawrence Klema *Gerrett Specht
*John Brinkman *William E. Lewis *Jimmy S. Sprinkle
Pauline Clark *Fred Lilley *Alva Stevens
*Bertha Cline *Lloyd Loftin William C. Summey, Sr
*Edward Cline *Ira Lowe *Kenneth Swan
*Joseph Collins *James R. Martin Rudy Thompson
*Robert Collins *John R. Martin William Thompson
George Cotter *Herman Merritt *Lloyd Thurmond
*Charles V. Davis *Larry Moore *Roy Walden
Harry L. Fishel *Polly Orrell "Erwin Walther
*Delbert Flitsch LeRoy Richards *Jesse Wilkinson
Raymond Guinn *Helen L. Riley James L. Wood
*James E. York
Disputed: Slaten Bray, Gene P. Cain, James Chappell, George Kelley, Bill La-
Bruyere, Thomas McKoy, and Jerry Schweain.
STIPULATED EMPLOYEES AS OF FEBRUARY 19, 1962
George E. Anderson Robert Fries Earl Roth
*Ralph Anderson Raymond Guinn Gaylen Schwalb
*Homer Baker *Paul Hale Robert Simmons
*Albert Bateman *Daniel Harman *Gerrett Specht
Slaten Bray Ray Harris *Jimmy S. Sprinkle
*John Brinkman *Lawrence Klema *Alva Stevens
James Chappell *William E. Lewis William C. Summey, Sr.
Pauline Clark *Lloyd Loftin *Kenneth Swan
*Bertha Cline "Ira Lowe Rudy Thompson
*Edward Cline *James R. Martin William Thompson
*Joseph Collins *John R. Martin *Lloyd Thurmond
*Robert Collins *Herman Merritt *Roy Walden
George Cotter *Larry Moore Erwin Walther
*Charles V. Davis *Polly Orrell *Jesse Wilkinson
Harry L. Fishel LeRoy Richards James L. Wood
*Delbert Flitsch *Helen L. Riley *James E. York
Disputed: Gene P. Cain, George Kelley, Bill LaBruyere, *Fred Lilley, and Jerry
Schweain.
*Signed authorization cards for SIU February 12 to 15, 1962
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT discourage membership in National Maritime Union of America,
AFL-CIO, or any other union, by discriminating against our employees in hire
or tenure of employment or any working condition.
WE WILL NOT question our employees about their union membership or
activities in a manner violative of Section 8 (a)( I) of the National Labor Rela-
tions Act.
WE WILL NOT threaten our employees with reprisal if they engage in pro-
tected concerted activities and will not tell them that we have discharged any
employee because he had engaged in such activities.
WE WILL NOT give illegal aid or assistance to any union.
WE WILL NOT adopt or enforce any regulation regarding visitors to our boats,
where a purpose is to hamper communication between our employees and any
union.
AIRBORNE FREIGHT CORPORATION 873
WE WILL NOT recognize any union as the exclusive bargaining agent of our
employees at a time when such union does not represent an uncoerced majority
of such employees.
WE WILL NOT enforce our nonsupervisory contract of February 19, 1962, with
Inland Boatmen's Union of the Seafarers International Union, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO, or any renewal thereof, unless such
union wins a Board-conducted election among such employees.
WE WILL NOT encourage membership in Inland Boatmen's Union of the Sea-
farers International Union, Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, or any other union , by telling our employees that such union is the
only one which we will recognize as the bargaining agent of our employees, or
by entering into any contract requiring our employees as a condition of em-
ployment to join such union , except as authorized by Section 8(a)(3) of the
National Labor Relations Act, as amended , or by requiring our employees as
a condition of employment to join such union within a period shorter than 30
days after the signing of a contract containing a union -security clause.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in Section 7 of the National Labor
Relations Act, as amended.
WE WILL withdraw recognition from Inland Boatmen 's Union of the Sea-
farers International Union , Atlantic, Gulf, Lakes and Inland Waters District,
AFL-CIO, or any successor , as the bargaining agent of any of our nonsuper-
visory employees , unless such union wins a Board-conducted election among
such employees.
WE WILL reimburse James A. Chappell for any loss of pay suffered because
of the discrimination against him , with 6 percent interest.
WE WILL reimburse our employees for initiation fees , dues, and other moneys
paid by them to Inland Boatmen 's Union of the Seafarers International Union,
Atlantic, Gulf, Lakes and Inland Waters District , AFL-CIO, since February
19, 1962, with 6 percent interest.
All our employees are free to become, remain, or refrain from becoming mem-
bers of any union.
BERNHARDT BROS. TUGBOAT SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board 's Regional Office , 4459 Federal
Building, 1520 Market Street , St. Louis , Missouri , 63103 , Telephone No. Main
1-8100 , Extension 2142.
Airborne Freight Corporation and Local 470, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, Indpt, Petitioner . Case No. 4-RC-59271.
May 99, 1963
DECISION ON REVIEW AND ORDER
On February 7, 1963, the Regional Director for the Fourth Region
issued a Decision and Direction of Election in the above-entitled
proceeding. Thereafter, the Employer and Amalgamated Local
Union No. 355, herein called the Intervenor, in accordance with
Section 102.67 of the Board's Rules and Regulations, Series 8, as
amended, filed with the Board timely requests for review on the
ground, inter alia, that the Regional Director erred in finding that
the current contract between the Employer and the Intervenor was
142 NLRB No. 98.