Bludworth Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1959

123 N.L.R.B. 385 (N.L.R.B. 1959)

BLUDWORTH CONSTRUCTION COMPANY, INC. 385
As the Petitioner received a majority of the valid votes cast in
the election , we shall certify it as representative of the employees in
the appropriate unit.
[The Board certified International Chemical Workers Union,
AFL-CIO, as the designated collective -bargaining representative of
the employees in the appropriate unit which includes all production
and maintenance employees at the Employer 's Jacksonville , Florida,,
Wilson & Toomer Fertilizer plant, excluding all production and
maintenance employees of Florida Agricultural Supply Company,
office clerical employees, technical and professional employees, all
management employees , guards, and supervisors as defined in the
Act.]
Bludworth Construction Company, Inc. and Seafarers' Inter-
national Union of North America, Atlantic and Gulf District,
Harbor and Inland Waterways Division, AFL-CIO. Case No.
39-CA-682. March 26, 1959
DECISION AND ORDER
On June 16, 1958, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices as alleged in the complaint and recommended that
these allegations of the complaint be dismissed. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings, except as noted hereinafter, are hereby affirmed. The
Board has considered the Intermediate Report, the exceptions and
brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,,
only to the extent consistent with our decision herein.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by, inter alia, (a) interrogating Collier concerning-
his union activities, and (b) urging him to quit if he were dis--
123 NLRB No. 40.
50&889-80-vol . 123-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfied with his job. These findings were based solely on Collier's
testimony at the hearing, which the Trial Examiner credited.
At the hearing, the Respondent attempted to subpena Collier's
prehearing affidavits, given to Board investigators, which the Re-
spondent wished to use for purposes of cross-examining him. How-
ever, the Trial Examiner granted the General Counsel's motion to
quash the subpoena daces tecum presented by the Respondent to the
General Counsel, requiring the production of prehearing affidavits
or other statements by Collier concerning the matters testified to by
the latter. The Trial Examiner's ruling was correct under the
Board's then-existing rules and regulations. Subsequent to the hear-
ing, however, the Board, in Ra-Rich Manufacturing Corporation,'
determined that it would permit parties, upon proper demand, to
secure prehearing statements made by witnesses, who have already
testified in the same proceedings. Accordingly, as the Respondent
has excepted, in effect, to the Trial Examiner's above findings based
on Collier's testimony, and has also excepted to the quashing of its
subpena, it is clear that, under the Board's new practice, Collier's
testimony may. not be used as a basis for finding any violation of the
Act by the Respondent, without first giving it an opportunity to se-
cure Collier's affidavits for the,purpose of cross-examination.2
However, we shall not remand this proceeding and order the
record reopened for such purpose. The Trial Examiner found that
the Respondent violated Section 8 (a) (1) of the Act in other respects,
based upon the testimony of witnesses other than Collier, and except
as discussed hereinafter, the Respondent has not excepted to such
findings. Accordingly, as the remedy herein is sufficient, in any
event, to effectuate the policies of the Act,3 we shall not adopt any of
the Trial Examiner's findings that the Respondent violated the Act,
which are based solely on Collier's testimony.
2. One of the allegations of the complaint was that the Respondent
violated Section 8(a) (1) of the Act in the following manner:
On or about August 18, 1957, Richard Bludworth [the Respond-
ent's president] ... stated substantially to the relief captain in
the presence of a Respondent employee, "Don't let any union
men come aboard this boat."
At the hearing, this allegation of the complaint was read to Rich-
ard Bludworth by the General Counsel and the latter asked Blud-
worth if he had so stated. Bludworth denied making this statement,
1121 NLRB 700.
2 See Sec. 102 .95 of the Board 's Rules and Regulations , Series 7, as amended.
3In the absence of exceptions thereto, we adopt the Trial Examiner 's recommended
broad cease and desist order.
BLUDWORTH CONSTRUCTION COMPANY, INC. 387
but did admit ordering that all unauthorized personnel be kept off
the boats, including anyone who was attempting to organize the
-Company.4 There was no further credible testimony or discussion
about this "no-solicitation" rule at the hearing.
In his Intermediate Report, the Trial Examiner found that the
Respondent violated Section 8 (a) (1) of the Act "by issuing and
maintaining instructions to captains prohibiting unauthorized per-
sons to board its tugs, to the extent that these instructions included
representatives of the Union." (Emphasis supplied.)
The Respondent excepts to this finding. It seems clear that the
Trial Examiner found, in effect, that the Respondent's promulgation
of a "no-solicitation" rule, barring union representatives from its
tugs, was per se violative of the Act. We reject this conclusion. The
United States Supreme Court was held that "an employer may val-
idly post his property against nonemployee distribution of union
literature if reasonable efforts by the union through other available
channels of communication will enable it to reach the employees with
its message and if the employer's notice or order does not discriminate
against the union by allowing other distribution"; and the Court
has indicated that this principle is also applicable to nonemployee
solicitation which does not involve the distribution of literature.5
In the case at bar, the record is devoid of any evidence that such no-
solicitation rule diminished the Union's ability to communicate with
the Respondent's employees. Moreover, the rule did not discriminate
against the Union by allowing other solicitation.
Accordingly, in order to conclude that the rule was violative of the
Act, it would be necessary to find that the Respondent was dis-
criminatorily motivated in establishing the rule, wishing to hinder
the employees' concerted activities. Although there is evidence show-
ing that the Respondent was opposed to the unionization of its em-
ployees, there is nothing in the record to indicate why the rule was
established. Indeed, for all that is shown, the rule may have been
in existence prior to the time the organizing activities began herein.
In these circumstances, we find that the General Counsel has not
established by a preponderance of the evidence that the Respondent
was discriminatorily motivated in establishing the rule here in issue.,,
In view of the foregoing, we find, contrary to the Trial Examiner,
that the Respondent has not violated Section 8 (a) (1) of the Act in
4 The parties stipulated that "as part of the instructions to keep unauthorized personnel
off the tugboat , Joe-Ed, union organizers were included in those instructions."
8 N.L.R.B. v. The Babcock d Wilcox Company, 351 U.S. 105 ; N.L.R.B. v. United Steel-
workers of America, CIO ( Nutone, Inc .) ; and N.L.R .B. v. Avondale Mills , 357 U.S. 357.
0 We note, in addition, that the General Counsel did not allege such a violation.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARI
establishing the rule, forbidding unauthorized personnel from coming
aboard the tugboats.
ORDER
Upon the basis of the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as amended, the•
National Labor Relations Board hereby orders that the Respondent,,
Bludworth Construction Company, Inc., its officers, agents, suc-
cessors and assigns, shall:
1. Cease and desist from :
(a) Threatening to shut down its operations in the event of union-
ization; or granting wage increases for the purpose of discouraging
concerted activities.
(b) In any other manner interfering with, restraining, or coercing-
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Seafarers' International'
Union of North America, Atlantic and Gulf District, Harbor and_
Inland Waterways Division, AFL-CIO, or 'any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of-
collective bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor-
organization as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds;
will effectuate the policies of the Act :
(a) Post on its tugs copies of the notice attached hereto marked
"Appendix." 7 Copies of said notice, to be furnished by the Regional'
Director for the Sixteenth Region, shall, after being duly signed'
by the Respondent's representative, be posted immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive days there-
after in conspicuous places on the tugs, including all places where-
notices to its employees are customarily posted. Reasonable steps-.
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region in.
writing, within 10 days from the date of this Order, what steps the-
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the allegations of the complaint, insofar-
as they allege unfair labor practices not found herein, be, and they
hereby are, dismissed.
"In the event that this Order is enforced by a decree of a United States Court of-
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
BLUDWORTH CONSTRUCTION COMPANY, INC. 389
MEMBERS RODGERS and BEAN, concurring :
We agree with our colleagues' conclusion that the Respondent did
not violate the Act by promulgating the "no-solicitation" rule
which the Board is here reviewing. We believe, however, that our
colleagues have strayed from the correct path in reaching that con-
,elusion.
This case is controlled by 1V.L.R.B. v. Babcock cC Wilcox Company
.351 U.S. 105. In that case the Supreme Court ruled squarely that if
no other "distribution" is allowed, the exclusion of nonemployee
organizers from company property is to be tested against the availa-
bility of other channels of communication with the employees. To
the extent that our colleagues have applied the Babcock d Wilcox
rule in this case, we are in accord with what they have done. We
disagree with them, however, to the extent that they have superim-
posed upon the Babcock & Wilcox rule an additional test of "dis-
criminatory motivation." The Supreme Court's decision in Babcock
di Wilcox is not, in our opinion, susceptible to this treatment. Our
colleagues therefore are in error.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten to shut down our operations in the
event of unionization or grant wage increases for the purpose of
discouraging concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join or assist Seafarers' International
Union of North America, Atlantic and Gulf District, Harbor and
Inland Waterways Division, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection and to refrain from any or all such activities except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act.
All our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in Seafarers' Inter-
national Union of North America, Atlantic and Gulf District,
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harbor and Inland Waterways Division , AFL-CIO, or any other
labor organization , except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act.
BLUDWORTII CONSTRUCTION COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges, as amended, filed by the Seafarers International Union of North
America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL-
CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board, through the Regional Director for the Sixteenth Region (Fort Worth,
Texas), •isssued a complaint dated March 19, 1958, against Bludworth Construc-
tion Company, Inc., herein called the Respondent or the Company, alleging that it
had engaged in and was engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act. The Respondent in its answer admits certain allega-
tions of the complaint but denies the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before the duly designated Trial Exam-
iner at Houston , Texas, on May 6 and 7, 1958. The parties were represented by
counsel and were afforded full opportunity to be heard, to introduce relevant
evidence , to present argument and to file briefs.'
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
On the basis of the pleadings and stipulation of counsel I find that the Respond-
ent, a Texas corporation , maintains its principal office and place of business at
Houston , Texas, where it is engaged in the operation of a tugboat towing service..
During the 12-month period prior to the issuance of the complaint the Respondent
supplied services valued in excess of $200 ,000, of which more than $ 100,000, was
furnished to Warren Petroleum Company and a like amount to Ada Oil Company.
The services rendered to Warren and Ada consisted principally of towing services
from points within the State of Texas to places outside thereof. The shipments
of oil products by Warren and Ada to places outside the State of Texas amount to
more than $50,000 , respectively . I find that the Respondent is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary findings
Richard and Robert Bludworth were , and are, president and vice president of
the Company , respectively , and during the period May to September 1957, the
1 At the conclusion of the testimony , on May 7, I kept the record open in order to give
counsel opportunity to decide what proceedings , if any, they might wish to initiate in
regard to company counsel ' s motion to require the General Counsel to produce certain
affidavits , which I denied , and his subpoena duces tecum served upon the General Counsel
calling for the production of those documents . Thereafter , by order dated May 16, I
granted the General Counsel 's motion to quash the subpoena duces tecum and on May 26,
I issued an order closing the hearing , with the right to file briefs on or before June 10.
The General Counsel submitted a brief which has been considered.
BLUDWORTH CONSTRUCTION COMPANY, INC. 391
Company operated three tugs, the Joe-Ed being the only involved in these pro-
ceedings. In this period the Joe-Ed operated between Houston and Pensacola or
St. Marks, Florida, the round trip from Houston to Pensacola averaging about 12
days, while the round trip to St. Marks averaged about 9 days. During this time
E. F. O'Dell was captain of the Joe-Ed and the crew consisted of the captain,
relief captain, mate, two deckhands, and one cook. However, each member of
the crew was off every third trip, so actually there were only five men in the crew,
the captain, relief captain or mate, plus the deckhands and cook, for whom re-
placements were obtained.
Richard Bludworth testified, on the basis of company records, that Edward Leo
Collier was first employed on May 17, as a cook on the Joe-Ed, and after making
six trips was discharged on September 1. The complaint alleges that Collier was
discharged because he joined or assisted the Union or engaged in concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection. The Company denies Collier was discharged for such reasons and affirma-
tively asserts he was terminated for failure to maintain the galley in a clean and
sanitary condition and allowed the tug to become infested with roaches.
Richard Bludworth admitted that in the latter part of July or early August
someone told him union organizers had been on the tug and were attempting to
organize the employees.
B. Organizational efforts; acts of interference, restraint , and coercion
Collier, who had long experience as a cook in the United States Navy and on
tugboats, stated that as a result of a telephone call to Richard Bludworth he was
hired as a cook on the Joe-Ed and his duties consisted of the purchase, storage
and preparation of food, planning of menus, and keeping the galley clean. Col-
lier was unable to remember the precise period of his employment, so I find, on
the basis of Richard Bludworth's testimony, that he was employed from May 17
to September 1, 1957.
Collier testified that about 5 weeks prior to his dismissal, or sometime in July,
he was coming aboard the tug when Robert Bludworth hollered from the wheel-
house, "Has a union man talked to you?", and he answered, "No." He further
testified that about 6 weeks after he had been employed Bill Ladwig, a union
organizer , came on the tug and talked to the three crew members about the Union.
Ladwig remarked that another barge line had worked a man for a week, paid him
$30, and laid him off. Ladwig inquired as to the pay scale and when they informed
him it was $10 per day, he stated the union scale was $16.40 per day. Collier then
signed a union card, the other two men having already signed up. Billy Hutto,
relief captain, was on the tug at the time, but not present during the conversation.
Some 2 weeks after his conversation with Robert Bludworth, Collier said that
Richard Bludworth called him to the wheelhouse and told him the starting rate
would be $11 per day instead of $10, plus the quarterly bonus which the Com-
pany had been paying. He also stated that if the Union took over the work
would be harder since the tug pulled only one barge and the Company might be
forced out of business. The discussion ended with Richard Bludworth stating that
any man dissatisfied with his job should move on.
About 2 weeks later Richard and Robert Bludworth were in the galley when
Richard asked Collier, "what did the union man have to say?" and he replied it
"was merely routine." On the same day, when Collier and Richard Bludworth
were bringing groceries to the tug, Richard Bludworth mentioned that another
company, while building tugs, learned that they were going to be organized and
went out of business before the tugs were put into operation. Richard Bludworth
concluded by saying that the Company might have to do the same thing.
Collier tesified that some 2 or 3 weeks prior to his discharge he was on the
tug at Houston when he heard Robert Bludworth tell Relief Captain Jim Groggins
"not to let any union men aboard this boat."
During his last trip, August 19 to September 1, Collier talked to Groggins about
the Union on one or two occasions and expressed the opinion that "it was best
for everyone." Although Collier believed Groggins was a little opposed to unions,
Groggins requested Collier to give his name and address to Bob Matthews, a
representative of the Union.
Oscar M. Dunlap was employed as a deckhand for 4 or 5 months and was
terminated September 2. Dunlap, who worked on all three tugs, stated that
about August 9, Ladwig talked to the crew, apparently the deckhands and cook,
and pointed out that the union scale was $6 or $7 higher than the company wage
rate, so "we" signed in the Union. Admittedly, neither the Bludworths nor the
captain or relief captain of the Joe-Ed ever mentioned the Union to Dunlap,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although Dunlap did overhear the Bludworths tell the relief captain, around
August 22 , at Pensacola , not to allow any union officials aboard the tug.
Hutto was employed as relief captain on the Joe -Ed from December '1956 to
about August 15, 1957 , when he quit ; he returned the latter part of October 1957
and again quit about March 15, 1958. Hutto knew Collier for a long time and
admitted he could have told him to ask the Company for a job. Hutto had
several conversations with the Bludworths in which they stated the Company was
not making enough money off one tow to afford a union , that it would break
them and before they would become unionized they would sell the tugs and go
out of business . Collier was present when Richard Bludworth made a statement
to the above effect . Robert Bludworth also informed Hutto on different oc-
casions that a deckhand was worth only $10 a day and he could not see any
reason to increase the rate . The day before Hutto quit in August , the Bludworths
asked if he knew of anyone attempting to organize the employees , or if the men
were talking about the Union . Hutto told them he had heard "small talk" about
the Union but he did not know of anyone trying to organize the men.
Richard Bludworth said he was very much concerned and worried about or-
ganizational activity because a similar company , Myland Marine Construction
Company of Galveston , had to shut down as a result of unionization , a slow-
down, and lack of capital . He admitted making statements to this effect on sev-
eral occasions , obviously to the employees , and pointed out that if the time came
when the Company could not operate efficiently and profitably it would be forced
to tie up the tugs. Richard Bludworth said he may have made statements of this
character to Collier while they were purchasing groceries.
Richard Bludworth stated he and his brother had discussed pay raises for sev-
eral months and in September increased the starting rate to $12 per day and
$15 per day after 60 days of employment . Richard admitted he and his brother
discussed pay raises with the men , including Collier, in order to find . out what was
acceptable to them and to keep them satisfied.
Richard Bludworth testified he issued instruction to captains and relief captains
to keep all unauthorized persons off the tugs and these instructions included "any-
one who was attempting to organize the Company."
Neither of the Bludworths denied Collier 's testimony concerning their inquiries
as to whether a union organizer had talked to him and what he said to Collier.
O'Dell testified he first heard of the Union when Ladwig introduced himself as
a union representative and stated he was trying to organize the Company . Ladwig
further stated that if O'Dell would help him sign up the crew he would see that
O'Dell "was fixed up," even though he could not vote in an election. O'Dell
could not remember the day or month the conversation took place , nor did he
'state what , if any , reply he gave to Ladwig . He reported the conversation to one
,or both of the Bludworths . Sometime later O'Dell heard Ladwig had talked to
the crew on the Joe- Ed, but he was not aboard at the time . O'Dell said that
after his meeting with Ladwig the crew discussed organization and he, too, dis-
-cussed the subject with some of the men. O 'Dell did not know whether Collier
was a member of or active on behalf of the Union and Collier never mentioned
that he was in favor of the Union . O'Dell believed Collier remarked the Union
was not interested in his welfare but only in the payment of dues. Following
Ladwig 's visit to the tug the Bludworths instructed O'Dell not to let anyone aboard
unless on company business and counsel stipulated union organizers were included
in the instructions.
Collier denied making any remark to the effect that all the Union wanted was
his monthly dues.
By interrogating Collier regarding his union activities or membership , by urging
him to quit if he was dissatisfied with his job, by threatening to shut down in the
event of unionization , by granting wage increases and by issuing and maintaining
instructions to captains prohibiting unauthorized persons to board its tugs, to the
extent that these instructions included representatives of the Union , the Company
thereby interfered with, restrained , and coerced its employees in the exercise of
the rights guaranteed them under Section 7 of the Act , in violation of Section
8(a)(1) thereof.
The Discharge of Collier
Richard Bludworth , on the basis of company records, stated that Collier left
Houston , under O 'Dell, on August 10, for Pensacola and returned August 19.
On the latter date he made another trip , under Groggins , and returned to Houston
September 1.
Collier said after his arrival in Houston on September 1, Richard Bludworth
told him that was his last trip and asked if he wanted his check mailed to him.
BLUDWORTH CONSTRUCTION COMPANY, INC. 393
Collier inquired why he was being discharged and Bludworth told him somebody
complained about roaches on the tug. He stated he had bought and used roach
kills and spent enough money to hire an exterminator to eliminate the roaches.
Collier added he did not believe that was the reason and remarked his discharge
appeared similar to the firing of the cook on another company tug, as told to
him, for not having frozen apples on board. Bludworth said he had not heard
that one and concluded the conversation by stating he would keep Collier's phone
number and he might call him back.
Collier admitted the entire tug was overrun with roaches and at one time he had
them under control but when he returned after his trip off, apparently 30 days
before his dismissal, they were as thick as ever. Collier conceded that about 3
weeks prior to his discharge O'Dell complained about roaches on one or two
occasions, as well as the cleanliness of the stove, and that he used sprays and
pills in an effort to correct this condition. He further stated that on one occasion
O'Dell complained that the deckhands would not help get rid of the roaches.
Collier said he did everything he could to get rid of the roaches but they were
uncontrollable. On cross-examination Collier testified that while his duties in-
cluded the storage of food and sanitation of the galley he did not consider ridding
the galley of roaches as part of his job. Neither of the Bludworths complained
about the above conditions until the time of his discharge.
O'Dell, captain of the Joe-Ed for about 11/2 years, stated that Hutto gave Col-
lier's name and phone number to Richard Bludworth and mentioned that he was
a good cook. Collier was hired to fill the first vacancy and was on the Joe-Ed for
about 3 months. The Bludworths did all the hiring and firing of men although
O'Dell made recommendations in respect to discharging individuals, which were
usually followed. O'Dell said it was his practice to give a man several warnings
and an opportunity "to right himself" before recommending his dismissal.
O'Dell testified that while Collier was a good cook he neglected to keep the
galley clean, which was one of his duties, in that he did not mop the deck, clean
the stove, or get rid of or control roaches. In fact one time O'Dell found a roach
in a jelly jar. O'Dell, in line with his custom, warned Collier on three or four
occasions that while he wanted him on the tug, he could not stay unless he kept
the galley clean. He specifically complained about roaches and told Collier if
he used the spray two or three times a day they would be eliminated or con-
trolled in a short time. After each warning the galley would be cleaner but
Collier never satisfactorily controlled the roaches. These warnings were given to
Collier both before and after O'Dell learned of organizational activity as a result
of his meeting with Ladwig. In addition to these warnings, O'Dell asked Hutto,
who was a friend of Collier, to speak to him in an effort to straighten him out
and Hutto promised to do so. O'Dell denied that Collier ever had the roaches
under control or that he told Collier the deckhands were not helping to get rid
of them. O'Dell asserted that the crew sprayed their quarters daily and coop-
erated with him in this respect.
. In the latter part of August, O'Dell advised Richard Bludworth of the foregoing
situation concerning Collier and requested that he be replaced, and he was. Col-
lier's replacement improved conditions after 4 or 5 days and later effectively
controlled roaches on the tug. O'Dell did not know that Collier was a member of
the Union or that he was active in its behalf.
Richard Bludworth testified to the same effect as O'Dell in regard to company
hiring and firing procedures. Bludworth stated that in early August, O'Dell indi-
cated he was not satisfied with Collier and, again, around the same time, O'Dell
suggested that Collier be dismissed and Shook, who had made a trip as relief
cook, be hired in his place. Bludworth remarked that Shook was not too clean
and O'Dell said he was cleaner than Collier, but in any event Collier was not
discharged because of the Company's practice to allow him time to straighten
out. These complaints were based on Collier's failure to keep the galley clean and
to control roaches. Later, around August 19, while the Joe-Ed was on a trip,
O'Dell again complained on the same grounds and Bludworth decided to discharge
Collier. Prior thereto Bludworth had inspected the tug and when he found it
full of roaches he told Collier to purchase sprays, powders, or anything else
necessary to control the roaches.
When the Joe-Ed returned on September 1, Bludworth talked to Collier, in the
galley, and informed him he was discharged. Collier asked the reason for his
dismissal and Bludworth stated the galley was full of roaches, that it was his job
to get rid of them, and he had not done so. Collier said he purchased quantities
of exterminating materials and Bludworth stated all he was interested in was
results and Collier had failed in this respect.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bludworth replaced Collier with Ralph Sanders and instructed Sanders to get
the roaches under control. The tug then made a 10-day trip and upon its return
.Bludworth found conditions very much improved. When the tug returned on
the following trip Bludworth made an inspection and found the roach condition
completely controlled.
Bludworth did not know Collier was a member of the Union or active in its
behalf.
Hutto testified that sometime after he came back to the Company, in October,
1957, he made a trip to Baltimore, during which the Bludworths were on board from
Apalachicola, Florida, to Houston. On this trip Hutto asked Robert Bludworth,
what had happened to Collier. Robert Bludworth said Collier was no longer with
the Company and inquired if Hutto had known Collier was a union organizer
while employed by the Company, and he answered he had no such knowledge.
Hutto could not recall any mention of the Union having filed a charge against
the Company and while he heard Collier had filed a charge, he could not remem-
ber whether this information came to him before or after the Baltimore trip.
Robert Bludworth admitted Hutto accurately related his remarks concerning
Collier and stated they were made during a conversation in which Hutto, by
reason of his absence from the Company, inquired about various employees, in-
cluding Collier. Bludworth said his remarks were prompted by the fact that he
had no knowledge of Collier being a member of or active in union affairs until
he and representatives of the Union appeared at a hearing scheduled by the
Board on a representation petition filed by the Union.2
Hutto also stated that around March 10, 1958, he was on a trip with O'Dell
and during a discussion on the benefits of organization, O'Dell commented that
the Bludworths made a mistake by firing Collier, that if they had let him make
the discharge, they would not be having all the present trouble.
O'Dell was not questioned in regard to this conversation.
Unquestionably, the Company, as found herein, was opposed to organization, but
there is no evidence even remotely suggesting that the Bludworths or O'Dell knew
that Collier was a member of the Union or active in its behalf at anytime prior to
his discharge. The only testimony on this point comes from Collier who related
an innocuous conversation regarding the Union with Groggins on his last trip,
at a time when O'Dell had already recommended his discharge. Of course,
knowledge by the employer of a dischargee's union membership or activity is a
prerequisite to a finding of discriminatory discharge. (Howard Aero, Inc., 119
NLRB 1531.) Nor can it be said that knowledge of Collier's membership or
activity can be inferred to the Company for the record discloses that Collier
did nothing more than attend one meeting and sign a union card. Again, there
is no evidence of mass discrimination against the employees nor the discharge
of entire crews on any of the Company's tugs. (Cf. Waterman Steamship Com-
pany, supra) I, therefore, find that the Company had no knowledge, actual or
inferred, that Collier was a union member or active in organization, consequently,
by discharging him the Company did not commit any unfair labor practice. More-
over, assuming the Company had knowledge of Collier's membership in the
Unioh, the result would be the same for the evidence conclusively shows that
Collier neglected to keep the galley clean and to control roaches and that he was
properly discharged for that reason, not for his union membership or activities.
I reject Collier's weak and unconvincing explanation that he did not consider
himself responsible for pests in the galley, or that he used reasonable means to
control roaches or that at anytime he had them under control. I attach no
significance to the post discharge conversations which Hutto had with the Blud-
worths and O'Dell. I find the Company by discharging Collier did not engage in
any violation of Section 8(a)(3) or (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section II, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
2 The Board records show that -the petition, 39-RC-1197, was filed by the Union on
August 19, 1957, and scheduled for hearing on September 6. The hearing was continued
to September 17, and then postponed indefinitely. The original charge in this case was
filed on September 16.
HONOLULU STAR-BULLETIN , LTD . 395
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
Z shall recommend that it cease and desist therefrom and take certain affirmative
.action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in interrogation of employees
concerning the Union, I shall recommend that it cease and desist therefrom.
Having found that the Respondent promulgated and enforced instructions deny-
:ing union representatives * access to crews on its tugs in derogation of the rights
guaranteed to its employees under Section 7 of the Act, I shall recommend that
the Respondent rescind immediately its instructions to that extent .3 Although the
evidence here concerns events occurring in respect to the tug Joe-Ed, Richard
Bludworth admitted the foregoing instructions were applicable to all its tugs.
Thus, to limit rescission of the instructions to the Joe-Ed and permit them to
stand as to Respondent 's other tugs would render remedial relief meaningless
and futile . Consequently, I conclude that the only manner in which the Respond-
ent's unlawful instructions can be remedied effectively is to require the Respondent
to post appropriate notices on all its tugs.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
-the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
,of the rights guaranteed 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent by discharging Edward Leo Collier has not engaged in any
unfair labor practice in violation of Section 8(a)(3) or (1) of the Act.
[Recommendations omitted from publication.]
a N.L.R.B. v. Waterman Steamship Company, 309 U.S. 206, 224-229; Cities Service Oil
Company, 25 NLRB 36, 47-58, enfd. as modified, 122 F. 2d 149 ( C.A. 2) ; Richfield Oil
'Corporation, 49 NLRB 593 , 598-604, enfd . as modified 143 F. 2d 860 ( C.A. 9). See also,
N.L.R.B. v. National Organization of Masters, Mates & Pilots of America, Inc., AFL-CIO,
253 F. 2d 66, 70 (C.A. 7).
Honolulu Star-Bulletin , Ltd. and Kenneth Tamanaha and Hono-
lulu Typographical Union No. 37 , International Typographical
Union, AFL-CIO, Party to the Contract
Honolulu Star-Bulletin , Ltd.* and Anthony van Kralingen, Jr.,
and Honolulu Typographical Union No. 37, International Typo-
graphical Union , AFL-CIO, Party to the Contract . Cases Nos.
,37-CA-108 and 37-CA-109. March 26, 1959
DECISION AND ORDER
On August 23, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter exceptions to the
123 NLRB No. 51.