Gallant Man

National Labor Relations Board - Board Decisions

Sep 29, 1965

154 N.L.R.B. 1795 (N.L.R.B. 1965)

GALLANT MAN 1795
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 1700 Bankers Security Building, Juniper and Walnut
Streets, Philadelphia, Pennsylvania, Telephone No. 597-7617.
Patterson Menhaden Corporation, d/b/a Gallant Man, and
Fletcher Miller, Agent ; Surprise, Inc., d/b/a Surprise, and
Fletcher Miller , Agent and Fishermen 's Union Local 300, Amal-
gamated Meat Cutters & Butcher Workmen of North America,
AFL-CIO. Case No. 15-CA-9475. September 29,1965
DECISION AND ORDER
On June 11, 1965, Trial Examiner George L. Powell issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, Respondent filed exceptions to the Decision and a
supporting brief. The General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a, three-member panel [Members Fanning, Brown, and
Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications
and exceptions.
We agree with the Trial Examiner that Respondent violated Section
8(a) (3) and (1) of the Act as set forth in the Trial Examiner's Deci-
sion, except to the extent that the Trial Examiner found that Respond-
ent violated the Act by reducing the wages of Matthew J. Hooper and
refusing to employ Hooper and Desire Bishop because of their activi-
ties on behalf of the Union. The record establishes and it is undis-
puted that Hooper and Bishop are supervisors within the meaning of
Section 2(11) of the Act. The Board has consistently held that
154 NLRB No. 144.
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory supervisors do not enjoy a protected right to engage in con-
certed activities.' In the instant case the General Counsel does not
allege and the record does not show that the discrimination against
Hooper and Bishop was motivated by any consideration other than
their own activities on behalf of the Union. Accordingly, we shall
dismiss the complaint as to these employees.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner as modified
herein, and orders that the Respondent, Patterson Menhaden Corpora-
tion, d/b/a Gallant Man, and Fletcher Miller, agent; Surprise, Inc.,
d/b/a Surprise, and Fletcher Miller, agent; its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, as so modified : 2
1. Substitute the following for paragraphs 2(a) and (b) of the
Recommended Order:
"(a) Offer Henry Bartie, Roosevelt Fountain, David Lute, Joe
Mayne, James B. Moore, Roland Mouton, John B. Payton, and J. C.
Van Dyke immediate and full reinstatement to their former or sub-
stantially equivalent positions under Captain Fletcher Miller (in the
manner set forth above in the section entitled "The Remedy"), without
prejudice to their seniority or other rights and privileges, and notify
any of the above-named employees presently serving in the Armed
Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
"(b) Patterson Menhaden Corporation, d/b/a Gallant Man, and
Surprise, Inc., d/ b/a Surprise, shall make whole Henry Bartie, Charles
Berry, Raymond Broussard, Gene Dozier, Roosevelt Fountain, Thirlen
Lennett, David Lute, Joe Mayne, James B. Moore, Roland Mouton,
Whitney Pradia, John B. Payton, J. C. Van Dyke, and Clarence West
for any loss of earnings suffered by them as a result of the discrimina-
tion against them, in the manner set forth above in the section entitled
"The Remedy."
'National Freight, Inc., 154 NLRB 621. Compare Jackson Tile Manufacturing Co.,
122 NLRB 764 , enfd. 272 F. 2d 181 ( C.A. 5), where the Board found that the employer
violated Section 8(a)(1) of the Act by discharging a supervisor because he refused to
engage in unfair labor practices against rank -and-file employees.
2 The names of Matthew J. Hooper and Desire Bishop are hereby deleted from para-
graphs (a) and (b) of the section of the Trial Examiner's Decision entitled "The
Remedy."
GALLANT MAN 1797
2. Substitute the following for paragraph 1(d) of the Recom-
mended Order:
"(d) Reducing the pay of any employee because of union activity or
result of an election."
3. Substitute the following for the fourth paragraph of the
Appendix :
AVE WILL NOT reduce the pay of any employee because of union
activity or result of an election.
4. Substitute the following for the sixth paragraph of the
Appendix :
WE WILL offer Henry Bartie, Roosevelt Fountain, David Lute,
Joe Mayne, James B. Moore, Roland Mouton, John B. Payton,
and J. C. Van Dyke their former or substantially equivalent jobs,
preferably under Captain Fletcher Miller (without prejudice to
seniority or other employment rights and privileges), and WE
WILL pay them and Charles Berry, Raymond Broussard, Gene
Dozier, Whitney Pradia, Clarence West, and Thirlen Lennett,
with interest, for any loss suffered because of our discrimination
against them.
5. The Appendix is modified to provide a line for the signature of
Fletcher Miller, Agent.
IT IS FURTHER ORDERED that the complaint as it relates to Matthew J.
Hooper and Desire Bishop be, and it hereby is, dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq., herein called the Act.
This case, heard in Lake Charles, Louisiana, before Trial Examiner George L.
Powell on December 14, 15, and 16, 1964,' is based on a charge filed April 20 and
amended April 21 and July 6, a complaint dated September 22, and an answer of
Respondent dated October 5, denying the essential allegations of the complaint.
The several issues in the case are: (1) Whether Respondent Patterson Menhaden
Corporation, d/b/a Gallant Man, and Respondent Surprise, Inc., d/b/a Surprise,
constitute a single intergrated business enterprise; (2) whether Captain Fletcher
Miller is an agent of Respondent during the time he was not engaged in fishing with
his boat; (3) whether some 7 identified instances of employer conduct interfered with,
restrained, or coerced individual employees within the meaning of Section 8 (a)( I) of
the Act; (4) whether Respondent violated Section 8(a)(1) of the Act by: (a) dis-
criminatorily decreasing the rates of pay of Matthew J. Hooper, the mate of the
Gallant Man, and (b) discriminatorily discharging Chief Engineer Desire Bishop and
Mate Matthew J. Hooper and failing to rehire or reinstate them; and (5) whether
Respondent violated Section 8(a)(3) and (1) of the Act by: (a) discriminatorily
decreasing the rates of pay of 5 named employees,2 and (b) discriminatorily discharg-
ing and refusing to reinstate or rehire 15 named employees.
1 All dates occur in 1964 unless otherwise noted.
The complaint lists 12 named employees but it was amended at the hearing deleting 7
of the names.
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon my observation of the employees and their demeanor while testifying
and the entire record 3 in the proceeding, including the briefs of the parties, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Patterson Menhaden Corporation and Surprise, Inc., are referred to herein jointly
as Respondent. It is admitted and I find that they are Louisiana corporations each
having its legal domicile in St. Mary Parish, Box 98, Patterson, Louisiana. Each is
engaged in the operation of Menhaden fishing boats and during the 12-month period
immediately preceding the complaint, each, in the course and conduct of its business
operations, rendered services or made sales in excess of $50,000 to firms which in
turn made sales to customers outside the State of Louisiana valued in excess of
$50,000.
I find that each is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The question has arisen as to whether these Respondents are a single employer for
the purposes of the Act. All charges named Patterson Menhaden Corporation but
the first charge to also specifically name Surprise, Inc., as an employer against whom
the charge was brought, was the "Second Amended Charge" dated July 6, 1964.
Evidence was adduced at the hearing that each corporation had the same officers,
directors, and stockholders. They were: President John Santos Carinhas, Vice Presi-
dent Frances T. Carinhas, and Secretary-Treasurer W. B. Kornegay. The stock of
each corporation was held: one share by Frances T. Carinhas; one share by W. B.
Kornegay; and the remainder by John Santos Carinhas. They had a common cus-
tomer in Louisiana Menhaden Company (although in 1964 Patterson Menhaden
Company sold also to Empire Menhaden Company) ; their financial statements are
maintained and prepared by W. B. Kornegay ; the same bank , Whitney National Bank,
New Orleans, Louisiana, services their accounts (Surprise, Inc., also uses Calcasieu-
Marine National Bank, Cameron, Louisiana); they have the same insurance carrier,
Mankin & Co., Chicago, Illinois, but different policies; they have a common equip-
ment and supply storage at Patterson, Louisiana (but each also stores at other loca-
tions); and Patterson Shipyard, Inc., wherein John Santos Carinhas is a principal
owner, built and sold them their boat involved in the case; i.e., the Gallant Man to
Patterson Menhaden Corporation, and Surprise to Surprise, Inc. Each vessel had
the same captain, Fletcher Miller, who was hired by John Santos Carinhas. He, in
turn, had the sole responsibility for selecting his crew and determining when and
where and for how long to fish each day, but John Santos Carinhas determined when
the fishing season began and ended.
The operation of the Gallant Man in the 1963 season were the same as the oper-
ations of the Surprise in the 1964 season. Gallant Man fished out of Empire, Louisi-
ana, in the 1964 season with another captain. The Surprise was not constructed until
1964 but in the 1964 season it fished out of Cameron, Louisiana, with Captain
Fletcher Miller as did the Gallant Man the previous season. Minor boat repairs for
both vessels are arranged for and performed at the Louisiana Menhaden Company
dock by a shore engineer employed by John Santos Carinhas. Major boat repairs
are performed on both boats by the same company. The above applies to the
1963 season for the Gallant Man and the 1964 season for the Surprise. Both boats
are painted white with green trim . And finally, the same spotter aircraft service was
used to spot fish in the 1963 season for the Gallant Man and the 1964 season for
the Surprise.
Under the facts set out above, I find that Patterson Menhaden Corporation and
Surprise, Inc., constitute a single employer within the meaning of the Act. See
Clay and Bailey Manufacturing Company and Morgan Foundry Company, 106 NLRB
210; Detroit Plastic Products Company, 126 NLRB 1182; Ravena Sportswear, 142
NLRB 1299, 1304, footnote 8; Inter-Ocean Steamship Co. (Tomlinson Fleet), 107
NLRB 330; and see Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263.4
8 Respondent 's motion to correct transcript , to which no objections were filed by the
General Counsel , is granted.
' There is no merit to the contention raised by Respondent in its brief that the "single
employer" issue is reg judicia based on the case of Aggie & Millie, Inc., et al. Case No.
15-RC-2726 , because the Surprise was not in existence at that time.
GALLANT MAN
II. THE UNFAIR LABOR PRACTICES
1799
Background
Fishermen's Union Local 300, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, herein called the Union, won an election in a unit
of the fishing boat Gallant Man by a vote of 15 to 2 with all eligible voters voting.
The date of this election was October 18, 1963.5
Fletcher Miller testified that he had worked for John Santos Carinhas, president
of Respondent, for 18 to 19 years and that he had been the captain of Respondent's
fishing boats for some 16 years.6 "Captain" John Santos Carinhas had hired him
for captain on both the Gallant Man, in the 1963 season , and the Surprise, in the
1964 season.
The fishing season for menhaden usually begins in May and ends the following
October. The parties stipulated that the first catch in 1964 on the boat Surprise was
made on May 13. According to Captain Miller, the 1963 season ended a week or 2
weeks after the Board election of October 18, 1963, at the time the Gallant Man
quit for the season.
According to Captain Fletcher, he knew in the summer of 1963 that the Gallant
Man would not be fishing at its normal place but instead would be in Empire where
it would take the place of a boat of Respondent's which had been sunk. He said he
had been offered the job of taking the boat to Empire but refused. He further testi-
fied that by December 10 or 12, 1963, he knew that he would have a boat, the Surprise,
for the 1964 season.
The record affirmatively establishes, as admitted by Respondent in its brief to me,
that throughout the many years when Captain Miller has been captain of Menhaden
fishing vessels, he has hired his officers and crew (or practically all of them) in
December of each year for the next season . The hiring practice for some was for
them to go to Captain Miller's house before Christmas and obtain a loan . from him.
And this was done whether or not a loan was really needed. The loan would, of
course , be repaid during the following season . But not all employees followed this
practice, and were hired year after year by Captain Miller.
The theory of the General Counsel is that the Surprise replaced the Gallant Man
in the 1964 season and that the refusal of Captain Miller to hire many of the 1963
crew (who had worked on the Gallant Man) was based on antiunion considerations
as shown by the events which took place before the Surprise was built.
The Speech in the Galley
The testimony was undisputed that before the election of October 18, 1963, Cap-
tain Miller gave a speech to all of the crew assembled in the galley. Miller places
the time as from 3 to 5 days before the election.
The reason why he called the crew together at this meeting, according to Captain
Miller's version, is because he had just found out something concerning one of his
crewmembers, Roosevelt Fountain. He related that Fountain had come by his
house for a $100 loan. Inasmuch as Fountain had been making good money, Captain
Miller asked him why he would need a loan at that time. After a little coaxing,
Fountain told Captain Miller that Desire Bishop, chief engineer on the Gallant Man,
had charged him $100 for getting him the job on the Gallant Man, which money
Bishop divided with Hooper, the mate of the Gallant Man. Also according to what
Fountain told Miller, some 2 weeks after Fountain had given the $100 to Bishop,
Bishop approached him again and told him that if he did not sign a card for the
Union that he would get him fired. Accordingly, Captain Miller called the crew
together and told them this story concluding with the statement that this was a dirty
trick for Bishop to take money from a man with a wife and three kids.
Captain Miller also admitted telling the employees, at the same meeting, that
there was an election coming up. According to his testimony, he told the employees
that they could vote any way they wanted to but that he was not for the Union.
He told them that he would prefer to wait and find out how good the Union was
because, as he stated, one factory had already been authorized (gone union) and
they could wait and see how good it turned out.
There is a sharp conflict in the testimony. According to the testimony of witnesses
for the General Counsel, Captain Miller did call this meeting of the crew together
5 Aggie A Millie, Inc., Case No. 15-RC-2726.
6 Three years on Four Kids , 1 year on Al Garvio, 1 year on Jack T. Styron, 3 years
on Frenchman , 3 years on Vasco de Game, 3 years on Joseph E. Carinhas , 1 year on
Gallant Man during the 1963 season , and 1 year on Surprise for 1964 season.
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the galley and did talk about the Union and about Roosevelt Fountain. (The
Fountain story was corroborated except that Bishop denied charging Fountain for
the job, but did admit receiving a gift of $100 from Fountain of winnings at crap.)
Almost all of General Counsel' s witnesses testified, in essence , that Captain Miller
told the crew that he had been trying for a long time to find the one who had
started the Union and that he had just found out that it was Desire Bishop. He told
the crew that if they voted for the Union he was going to get himself a new crew;
was not going to use any of the men anymore and for them not to come by his
house for loans before Christmas. Some 14 witnesses testified credibly as to these
facts. The following are only examples of their testimony "If this boat goes union,"
Captain Miller said, "I am not going to use nary a man I have on here if I have to
get a whole Virginia crew." 7
.. he [Miller] did say if we voted for the union that we would lose our jobs.
We wouldn't have a job for the following season." 8
he [Miller] said, boys, I have got something to tell you ... now if you all
vote for the union you all not going to have no job next year, and he said he wasn't
going to do any more favors for us, and don't come around his house and borrow
any more money from him anymore because he don't want nothing to do with any
union men." 9
Roosevelt Fountain recalled Captain Miller saying, "I am not going to fish a
union boat. If the boat go union I will get me another crew, and you all will be
out of a job."
I credit the General Counsel' s witnesses and find Captain Miller called the meeting
of the crew together at the galley in order to inform them that he was opposed to
the Union and that if the vote went union he would not rehire them.
Miller had further testified that following the meeting in the galley he had had a
meeting between Bishop and Fountain in order to reconcile their difference. It is
not likely that Captain Miller would have called a meeting of the crew just to broad-
cast the Fountain-Bishop problem. He impressed me as a man of authority who
took a lively and personal interest in the members of his crew. When the fish were
running, these men had to work with considerable teamwork in limited space and
time, and a good spirit (rather than friction) in the crew would be an essential
element in a successful season . Captain Miller and his crew established a new
record for menhaden caught for the 1963 season. I find he called the meeting of
the crew in order to inform them that he had found out who the union leader was
and for them not to vote for the Union if they wanted to work with him. He also
talked about the Fountain-Bishop problem. It would tend to put Union Leader
Bishop in a bad light.
I find this speech in the galley violated Section 8(a)(1) of the Act because it
interfered with, restrained, and coerced employees in the exercise of the rights guar-
anteed in Section 7 of the Act by: (a) creating the impression of surveillance of
union activities in identifying Bishop as the one who started the Union; and (b)
threatening the crew with loss of employment if they voted the Union in.
The Meeting After the Election
On the date of the election and after it had been determined that the Union had
won by a vote of 15 to 2, Captain Miller told the crew to be at the boat ready to go
fishing at 5 o'clock the following morning. The day of the election was Friday,
and it was the Friday on which the crew normally received their 2 weeks' pay. The
crew asked for their pay. Captain Miller told them to come in the next morning
for work and they would get their pay, and any one that did not come in would
lose his bonus pay.10 Some heated words were exchanged over this demand by
the captain.
But the following morning the crew arrived at the dock and the net was changed
as directed by Captain Miller. Moreover, this episode of the net resulted in reduced
pay thereafter for some, as will be detailed later.
Captain Miller had been paying extra money out of his own pocket to certain
individuals. They were Raymond Broussard , David Lute, Joe Mayne, James Moore,
John B. Payton, and the mate , Matthew Hooper. He reduced this extra money
"because they refused to do what I [Miller] told them ." He had reference to what
I From the credited testimony of Desire Bishop.
8 From the credited testimony of Roland Mouton.
From the credited testimony of John Payton.
18 Bonus pay of 2 cents per 1 ,000 fish per man was paid at the end of the season pre-
sumably to keep the crew together until the season was over. The Gallant Man caught
a record of 44,068,000 in 1963. The bonus per man was almost $900.
GALLANT MAN 1801
he said was their refusal to change nets the day after the election, but as a matter
of fact he admitted that the crew did change the nets. Their pay was thusly reduced
when, according to the credited testimony of Bishop, "After the 18th of October
Captain Miller told me to pay each man his regular salary, no extra money anymore."
There is no dispute as to this reduction and to the fact that the checks of the pay
period following October 18 first reflected it. I find the pay was reduced by Captain
Miller in retaliation to the crew voting in favor of the Union. The reason advanced
by Miller fell when he admitted the nets were changed and this action followed
immediately after the election and his preelection antiunion remarks. Respondent's
entire antiunion campaign engaged in by Captain Miller as set out above, was cal-
culated to interfere with, restrain, and coerce its employees in the exercise of their
rights guaranteed by Section 7 of the Act, and I find they did so interfere in violation
of Section 8(a)( I) of the Act. When his threats did not persuade the crew to turn
down the Union he retaliated by reducing their pay. This retaliation then violated
Section 8(a)(3) and (1) of the Act as it discriminated against the employees in
wages in order to discourage their union activity.11 By reducing the pay of Mate
Hooper, Respondent violated Section 8(a)(1) of the Act because such action would
restrain and coerce employees in the exercise of their rights.
At the outset, primarily because the employees made no money from Respondent
in the period between the date the boat would "cut out" at the end of a season in
October and when fishing would resume the following May, it is immaterial and
unnecessary for me to determine in this case whether the officers and crew of the
Gallant Man were discriminatorily discharged at the end of the 1963 season or were
discriminatorily refused employment or reemployment at the beginning of the 1964
season. Under authority of Caginaw Dock & Terminal Company, 23 NLRB 630
(1940), it might be argued that the employment status remained. For certain pur-
poses casual, seasonal, and intermittent employees remain employees year after year.
Alaska Salmon Industry, Inc., et al., 33 NLRB 727 (1941) (seasonal salmon cannery
employees); G. L. Palmer and J. J. Herbert, Partners, d/b/a G. L. Palmer Packing
Company, 74 NLRB 884 (1947) (shrimp pickers on piecework); Fajardo Develop-
ment Company, 76 NLRB 956 (1948) (longshoremen); and Tamphon Trading
Company, Inc., 88 NLRB 597 (1950) (stevedores in shipping industry). For the
purposes of this Decision I will refer to the officers as crew as having been refused
reemployment.
But as to Captain Fletcher Miller, it is clear from the history of his employment
that he never relinquished being "Captain" and agent for Respondent even between
fishing seasons.
The Failure to Rehire
When the Menhaden season for 1964 began in May, the following 14 employees,
who had worked the 1963 season under Captain Miller aboard the Gallant Man,
were not employed on Captain Miller's new boat the Surprise; some, however, did
get employment on the Surprise later on the date set opposite their names:
Name of employee Date employed on Surprise
Henry Bartie--------------------------- ---------------------------
Charles Berry ___________________________ Offered job-reported too late.
Raymond Broussard_____________________ 5/18/64.
Gene Dozier____________________________ 5/18/64.
Roosevelt Fountain______________________ ---------------------------
Eddie Joseph--------------------------- ---------------------------
David Lute----------------------------- ---------------------------
Joe Mayne----------------------------- ---------------------------
James B. Moore------------------------- ---------------------------
Roland Mouton------------------------- ---------------------------
Whitney Pradia_________________________ 8/3/64-replaced West.
John B. Payton------------------------- ---------------------------
J. C. Van Dyke------------------------- ---------------------------
Clarence West__________________________ 5/25/64-later hurt back and
was replaced by Pradia.
""Sec. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaran-
teed in section 7 ;
• t R R t • •
(3) by discrimination in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization: . . . .
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 15th employee named in the complaint, Thirlen Lennett, was hired on
April 19, 1964, before the season began.
On April 18, 1964, eight of these employees 12 plus Bishop and Hooper, went to
Miller's house in Cameron, Louisiana, and requested their jobs back. The visit
was prompted by a response (dated March 30, 1964) by Respondents' attorney to a
letter (dated March 23, 1964) sent by Mouton, president of the Union, to Patterson
Menhaden Corporation and Captain Miller. This response indicated that all hiring
for the 1964 season would be as it had been in previous years.
According to the credited testimony of Bishop, the following conversation took
place between Miller and the 10 men on that day:
Q. All right. Tell us what was said during that conversation.
A. Roland came up first and said, "I got a letter from Mr. Stout." he said,
"and he said we could get our jobs back."
And Captain Fletcher, told us, said, "Well, I waited until the 20th of March
and you all-none of you all showed up so I figured you all had another job."
And someone asked-
Q. [By Mr. GARDNER.] All right. Go ahead.
A. Asked him who was going to fish the Gallant Man and Captain Fletcher
say he didn't know. He said some stranger come and got the boat and took
it away from Patterson but he didn't know who was the captain. I asked him
was his new boat going to replace the Gallant Man and he said, "No." He said
they would have 9 boats at Cameron instead of 8 they had the year before, and
I asked him then, "They going to have 9 boats and none's going to replace the
Gallant Man?" 13
And he said, "No, none's not going to replace the Gallant Man." and I
remember telling Roland to ask him over again when was it he said he had
waited, so Roland asked him over again and he said, "Until the 20th of March."
He had waited for us.
TRIAL EXAMINER: That would be 1964?
The WITNESS: That's right, 1964, and he said none of us didn't show up,
and I told him, I said, "Captain, you mean to tell me you waited until the 20th
of March and I talked with you prior to that time?" I said, "I talked with you
on the 7th of March concerning a job and you told me you had a crew then."
He said, "Well, I have the record when you came and when the others came."
And I said, "I remember, too. Why I remember so good is because my
daughter went in the hospital on the 5th of March, on a Thursday, and on the
7th of March, which is on a Saturday, is when I talked with you." Then he
retracted his statement and said he waited until the 20th day of February.
Lute substantially corroborated Bishop's testimony but added the following:
He [Miller] said, I quit the Gallant Man because I don't want to be pinned
down with the union.
Miller denied this and had a different version of the meeting. But I credit the wit-
nesses for the General Counsel against Miller as to this for the various reasons which
appear later on in this Decision.
The Individuals
1. Bartie had been employed by Captain Miller for 14 years. He had been
employed in the past in January or February of each year when Miller "would see
me around" or "send word by some of the other men that worked with him." He
never went to see Miller about a job for the 1964 season before April 18 because
Miller had "... said if we went into the union why we wouldn't have a job with
him another year." He never applied for a job thereafter .
2. Berry had been employed by Miller since 1962. When the 1962 season ended
Miller told him he ". . . still had a job to come by his house for Christmas, you know,
borrow some money." On November 15, 1963, he asked Miller for a job for
the 1964 season and was told that Miller was not going to have a boat for that
12Bartie , Broussard , Dozier , Fountain , Lute, Mouton , Pradia, and Payton.
la As to any technicality which may arise as to whether the Surprise "replaced" the
Gallant Man . I find that these officers and crewmembers went with the Captain and not
with the boat . As will be seen hereafter these men had worked continuously for Captain
Miller on different boats as he transferred from boat to boat.
GALLANT MAN 1803
season.14 Thereafter on April 16, 1964, Berry again asked Miller for a job. Present
at the time was Thirlen Lennett, his brother, Harold Lennett, and the captain of the
Vasco de Gama. Berry asked for a job for both him and Thirlen Lennett and was
told that Miller had hired a new crew as no one came to see him before Christmas.
Berry reminded Miller he had seen him before Christmas.
However Miller did offer Berry the first vacancy in April 1964 but when he was a
day late in arriving for it Thirlen Lennett was given it on April 19, 1964.
3. Broussard had been employed for about 10 years by Captain Miller. He applied
on April 18, as noted above, but was refused a job. However on May 18, 1964, he
was hired aboard the Surprise.
4. Dozier had worked continuously for Captain Miller for 5 years and in the
past had been told to come back the following season. He always came to Miller's
house on Christmas but not in 1963. He applied on April 18, as noted above, but
was refused a job. On May 18, 1964, Miller hired him aboard the Surprise.
The hearing in this case was on Monday, Tuesday, and Wednesday, December 14
through 16, 1964. A few days before it began Dozier came by Captain Miller's
house for a loan for the 1965 season but was told to come back for it on Saturday
after the hearing with the injunction by Miller, "Don't go up there and lie." Dozier
apparently conformed as I find he did not lie. Captain Miller, when asked at the
time if he had a boat for the following 1965 season, stated that he did not know.
5. Fountain first worked for Captain Miller in the 1963 season. He only applied
for a job with the other nine on April 18, 1964, for a job but was not hired.
6. Joseph had worked for Captain Miller since 1951. After the 1964 season began
he telephoned Miller for his job back as cook. He testified that Miller told him he
had gone "against him " and he "didn't have no job." Miller, on the other hand,
denied telling Joseph he had gone against him and that was why he had no job.
Further, Miller testified that he told Joseph that in 1963 Joseph had told him "a
month before we cut out that it was your last year and you were going to retire."
Joseph replied, "Yes, that's true, Cap. But I need a job bad. In fact, I'm about to
lose my home.... I've just got to have some money. I need a job." Miller told
him he had already hired a cook because he had been told by Joseph that he was
retiring and Joseph had told the cook whom Miller hired of his retirement plans.
But Miller did promise to help him out and later did get Joseph a job on the
Frenchman.
I credit Miller in this instance and find he did not hire Joseph in the 1964 season
because Joseph had told him he was retiring at the end of the 1963 season. I also
credit Miller's denial of Joseph's statement that it was because he had gone against
Miller that he had no job. I make this credibility determination on demeanor of
the witnesses as they testified, plus the extra facts that Miller did get Joseph a job
on the Frenchman; the other cook, Sam Gardner, knew of Joseph's retirement plans
and so testified ; and finally Joseph had quit in the 1962 season but before Miller hired
another cook in his place at that time Joseph changed his mind and Miller hired
him for 1963. Accordingly, Joseph is not in the same category with the others
enumerated so far. Joseph is not credited.
7. Thirlen Lennett was hired aboard the Surprise on April 19, 1964. He corrob-
orated Berry's conversation with Miller on April 16 in which Miller told them he
had a new crew. Miller told them they should have come for a job before Christmas.
Berry reminded Miller that he had come by in November and Miller admitted he
remembered the conversation.
8. Lute had been employed by Captain Miller for about 71/2 years. He was
secretary of the Union and the union observer at the election. He first applied for
a job in the 1964 season on April 18 as noted above. His testimony was that in
years before 1963 Captain Miller would tell him, "Well, see you next season" at the
time his boat would finish for the season. He was not one who would go by Miller's
house for a Christmas check before the next season.
9. Joe Mayne had worked for Captain Miller some 13 years. He applied for a
job on December 7, 1963, but was told by Miller that he had a new crew and was
not going to use his old crew anymore. Miller denied this. The General Counsel,
crediting Mayne , argues in his brief that this points up an inconsistency in Miller's
14 Miller testified that Berry said , "Well, I'll be back for Christmas," and Miller
replied , "Yeah , come on back ." I do not credit this testimony of Miller as against Berry.
Miller may have thought he told Berry to "come on back ." Berry had come around at
Christmas the year before and if told to do so in 1963 would have returned. There was
no reason for not returning except Miller' s threats before the election. When he did
return in April 1964 he was the first recalled by Miller thereafter.
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony because he told the group on April 18 that he waited until February 20
before hiring his crew. I likewise credit Mayne and find the inconsistency in Miller's
testimony.15
10. Moore had been employed by Captain Miller, in earlier years, for 8 years
but from 1957 to 1963 he had been on construction work. He worked the 1963
season on the Gallant Man with Miller, being hired in April by Desire Bishop.
He never applied for a job with Miller for the 1964 season, he said, because Miller
had told them if they joined the Union they would not have a job. Apparently
Moore had a job on the Frenchman in the 1964 season but left it and applied to
Captain Miller for work. Miller told him then he had a crew but recommended
him to Captain Frederick of the Aggie & Millie as a mate. Moore was taken and
was "doing fine" in that season.
11. Mouton had worked for Captain Miller from 1954 to 1964. He was a pilot
on the Gallant Man for the 1963 season. He "always did" come around Miller's
house at Christmas for a check but did not come in 1963. He was the Union's
president who wrote the letter of March 23, 1964, referred to above, that led to
the 10 employees going to Miller's house for work on April 18, 1964.
12. Pradia had worked for Captain Miller during the 1962 season and the 1963
season. He first applied for work in the 1964 season on April 18, 1964, with the
other nine men. In January, February, or March, 1964, while working with his
uncle doing some concrete work around Miller's house he overheard Miller tell his
uncle that he had a new boat and a new crew. Miller admitted telling the uncle
about the new boat but not about the crew saying, "Nothing mentioned about no
crew." I credit Pradia. It is not likely that Miller would not mention the crew
when talking of his new boat. Regardless of the excellent nature of the Surprise it
would take a good crew to catch a good haul for the season. Pradia was a member
of the record crew in 1963. If Miller did not have a crew at the time of the cement
work it would be reasonable for him to ask Pradia if he was going to fish the coming
season (at least ) unless he did already have a crew or did not want to hire him again.
Pradia did work on the Surprise from August 3, 1964, when he replaced West.
13. Payton had been employed by Miller from 1955 through the 1963 season. In
the past he had been hired by Miller's calling him. But although he saw Miller in
December 1963 in Cameron he was not offered employment for the 1964 season. He
said, in corroboration of Lute above, that Miller on April 18, 1964, told the 10 men
he did not want to have anything to do with a union and that is why he got rid
of the Gallant Man. Miller did not specifically deny this.
14. Van Dyke had been employed by Captain Miller from 1956 through 1963.
Miller hired him in the 1963 season by coming to his house and telling him to get
his engineer's license but had been hired in previous years when he met Captain
Miller on the street in Cameron.
Van Dyke, accompanied by Bishop who remained outside not participating in
the meeting, went to Captain Miller's house on February 16 for a job.16 According
to Van Dyke's credited story:
[Miller told me] he had another crew, and he had lost the Gallant Man, and I
asked him why did he lose the Gallant Man, and he said because of the union,
and he began to, proceeded on by telling me that he knew the leaders of the
boat, Roland Mouton, he was president, and Bishop was one of them, Matthew
Hooper was one, Henry Bartie was one, David Newton on last , and he said
that he couldn't see how the guys could, tend to make any money according to
the rules that they had, that they would fish a half an hour before sunrise,
regardless of how many fish they have out there. They had to stop an hour for
dinner, and then they had to stop fishing before sundown.
Miller had a different story. His testimony on direct examination was:
He [Van Dyke] come and asked me for a job and I told him, asked him why
didn't he come before then and he said that he was busy fishing oysters and
didn't get a chance to come . I told him, I said , "Well, Jay,"-we call him
Jay- "I didn't think you wanted to fish with me anymore is why you didn't
come around."
And he said , "No, Cap. I always wanted to fish with you."
And I asked him, "Well, why didn't you come around?"
And he said, "I just didn't have the time to come . I been fishing oysters."
18Miller testified that he had spoken highly of Mayne to Captain Frederick of the
Aggie d Millie. This however, has no bearing on whether Miller would not hire him
because of his union activities.
16 Miller places the time "in March or the first of April, something like that."
GALLANT MAN 1805
Miller went on to testify "I don't remember" when asked if he told Van Dyke
he had a new boat. He denied saying he lost the Gallant Man because it went union.
Then the following record testimony took place:
Q. Now, was there anything said about the union during the conversation
with Van Dyke?
A. Not a word that I know of.
Q. Was there same [sic] conversation where something was said about some
of the leaders or officers of the union making the union rules?
A. Yes, I did ask him that. I had seen it in one of the letters, I don 't recall
what letter it was.
[Identified the letter]
* * * * * * *
Q. And you told Van Dyke that you had seen this letter and told him what
was in it?
A. That is correct.
[Respondent then put the letter with attachments in the record.]
I credit Van Dyke's version. Captain Miller did not have as clear a recollection
but he did admit that Van Dyke said, "No, Cap. I always wanted to fish with you."
These are not the words of a man too busy "fishing oysters" to come for a job.
Something else kept him away.
Captain Miller's testimony was also inconsistent, as noted above, when he first
denied that anything was said about the Union then he was led to admit something
about the union rules . He was led further by admitting telling Van Dyke what was
in the letter. I believe the importance of this was that Van Dyke earlier had testified
to Miller's mentioning certain union leaders. One of the attachments to the letter
was a ballot for union officers. Therefore, if Miller had told Van Dyke the names
on the ballot there would be a credibility problem of what names were mentioned
in fact. The letter was dated in November 1963 and the meeting between the two
men took place in February (according to Van Dyke, but "March or the first of
April, something like that" according to Miller). It strains credulity to believe that
Miller would specifically identify a letter, 2 or 3 months after its receipt, and refer
to specific names in it when at the hearing, he could not even identify when the
meeting took place. Specifically after he had just testified that "Not a word" had
been said about the Union.
15, West had been fishing for Captain Miller a long time. He did not borrow
money from Miller at Christmas time in 1963 because Miller had told them that if
they joined the Union it would do no good to come around to borrow money. How-
ever Miller sent word for him to report to work on the Surprise. He reported on
May 25, 1964, where he worked until he hurt his back and had to quit. The following
conversation, which is not denied by Miller and which is credited, took place when
he reported to work:
Q. What did Cap say, if anything?
A. He told me why didn't I come around for Christmas, and I told him, I
said, "Well, Cap, you told us all in the galley that if we join the union" don't
come to him for no money, so that's why I didn't go.
Q. What did the Captain say?
A. Well, he say did I misunderstood him, and I said no. He didn't point me
out for signing or nothin', but I was standing up there, too.
I was struck by the clean, well dressed appearance of the witnesses for the General
Counsel. West was extraordinary! He was dressed in a tuxedo coat and trousers
with a pearl pin in the coat lapel. He wore a red tie. His feet were enclosed in
brown cowboy boots! I can only surmise that he was told he was to appear in a
formal hearing!
The Mate and the Engineer
In addition to these 15 employees, the mate and the engineer were not hired for
the 1964 season.
Desire Bishop was the chief engineer aboard the Gallant Man in 1963. He had
been employed continuously from 1950 by Captain Miller. In addition to his regular
duties he was the timekeeper for payroll purposes. He, along with several others,
testified that Captain Miller would tell the employees, "I'll see you next season" at
the end of a season.
As noted above, Captain Miller spoke to the crew before the election in October
and about a Fountain-Bishop situation. And after that meeting with the crew in
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the galley, be met with Fountain and Bishop in order to reconcile any differences
they may have had. Now at this latter meeting, according to Bishop's credited
testimony, Captain Miller told them, "Well, if the boat don't go union we'll forget
about all of this, but if it goes union , ... you'll see a whole lot of new faces on this
boat next year."
Finally, at the end of the 1963 season, Miller told Bishop and Hooper that he
(Miller) did not have a boat for the 1964 season because "the boat went union
[in the October election]." This is from the credited testimony of Bishop and Hooper
after resolving the sharp conflict.
Captain Miller admitted meeting Bishop on March 7, 1964, and that Bishop asked
him fora job at that time. His version follows
Q. [By Mr. STOUT.] Now, did you, in fact, see Desire Bishop around
March 7th, 1964?
A. That is correct.
Q. Where did you see him?
A. Mr. Kornegay's store.
Q. There was a conversation? Tell us the conversation.
A. I didn't even think he was in there. He was back there and I had heard
about his daughter being real sick so I was walking back there to talk to Mr.
Korneygay and I run into him, and I said, "Desire ," I said , "How's your
daughter doing?"
And he said, "Well, Cap, she's not doing too good."
He told me what had happened and I said, "Desire , I'm awfully sorry to
hear that," about what had happened, so I started walking, I walked away from
him and he told me, he said, "Captain, I would like to talk to you."
And I said, "Well, go ahead, Desire."
He said, "I want to ask you about my job."
And I said, "Desire, why didn't you come in December like you always did?"
He said , "Well, I was scared."
I said , "You mean to tell me after all these years that you been coming to
my house you just got scared this year) Enough not to come?"
He put his head down and didn 't say no more.
Hooper was the mate. He had worked continuously with Captain Miller from
1958 through 1963. At the end of the 1962 season Miller told Hooper he was getting
a new boat (Gallant Man) for the 1963 season and Hooper "could go with him."
After each season Miller would tell Hooper he had a job with him the following
season-except at the end of the 1963 season when, as related above, he told Hooper
and Bishop he had no boat because it went union in the election.
Hooper was with the group that applied for a job on April 18 to no avail.
Analysis of the Failure to Rehire
Captain Miller had been employed continuously as a captain by John Santos
Carinhas for some 16 years. He testified that he knew in the summer of 1963
(the middle of the fishing season ) that the Gallant Man would be in Empire the next
season to replace a lost boat, but that he had refused to go. Apparently this would
leave him without a job. It would also leave a lot of menhaden uncaught by taking
the Gallant Man out of the waters around Patterson, Louisiana. It would also leave
John Santos Carinhas and Respondent short of the profits on some 30 to 40
million menhaden which they reasonably could expect Captain Miller to catch if
he had a boat like the Gallant Man. (He caught over 44 million menhaden
in 1963 and almost 30 million in 1964. ) Respondent built a new boat, the Sur-
prise, for the 1964 season which was even bigger and better equipped than the
Gallant Man, and Captain Miller was put on command. It is only reasonable under
the circumstances in this case, and I find, that Captain Miller knew when he refused
to go to Empire with the Gallant Man that he would have another boat in Patterson
for the 1964 season . Thus, although his boat may not yet have been built at the
time he usually hired around Christmas for the following season (or when he "cut
out" in October 1963), he could have made his usual hiring arrangements as if the
boat he would captain were in being. He cannot be heard to say that he did not
hire them because he had no boat. If he did not hire, it was for some other reason,
not for lack of a boat.
Captain Miller admitted that Bishop told him he was too scared to apply for a
job before March 7, 1964. The question is why was he "scared"? Why didn't Miller
hire the crew with whom he had set a record in 1963 on the Gallant Man, when he
was getting an even newer and larger boat for 19649 It must also be remembered
GALLANT MAN 1807
that this crew, in the main, had worked for Miller for many past consecutive years
which meant that he had brought them with him as he changed from boat to boat.
Why didn't the crew apply for jobs, assuming (for the time being) such application
to be necessary ? Obviously Miller was one of the most , if not the most , successful
fishing boat captain fishing menhaden . The crew pay and bonuses were keyed to
the catch. Van Dyke expressed the crew' s desire by simply saying, "No, Cap. 1
always wanted to fish with you." Miller proudly admitted Van Dyke's saying this.
Miller pleaded that he did not know why they never applied. It is possible
that he did not know the effect of his antiunion statements on his crew. Perhaps
he was only bluffing when he told them in the galley before the election in October
that "If this boat goes union I am not going to use nary a man I have on here if I
have to get a whole Virginia crew" or words to that effect. Then on the same day
of the election but after it was known that the men had voted 15 to 2 in favor of
the Union, Miller expressed his antiunion feelings by: (1) not paying off the men
on time ; (2) ordering them to go fishing the following day, which was unusual under
ordinary circumstances; (3) threatening them with loss of bonus if they did not
report the following day; and (4) reducing the wages of several men.
Certainly Miller had made it very clear to the crew that he and they were finished
for the future and any job or loan applications would be met by, at the very least,
a denial .- Bishop was actually "scared" to apply.
Captain Miller, after creating in the minds of his long time crew the futility
(perhaps even dangerous ) of even applying for a job the next season cannot now
defend his failure to hire them for the 1964 season on their lack of application for a
job. It is noted that as late as April 18 a group of 10 men applied for jobs. Bishop
was most apprehensive on March 7 in asking for a job and only did it, as admitted
by Miller, because of his daughter 's serious illness. In conclusion , Miller, before the
1964 season began, did not get in touch with those whom he, in the past, reached
without applications.
I find that the above 14 crewmembers (Joseph excluded) plus Bishop and Hooper
were constructively not hired for the 1964 season by Miller because of their activity
in voting for the Union. This is "discrimination in regard to hire ... to . dis-
courage membership in" a labor organization and as such violates Section 8 (a) (3)
and (1) of the Act with respect to the said 14 crewmembers; and 8(a)(1) of the
Act with respect to Bishop and Hooper because such discrimination would coerce
employees in the exercise of the rights guaranteed in Section 7 of the Act.
III. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and to take certain
affirmative action in order to effectuate the policies of the Act.
(a) Make whole Henry Bartie, Charles Berry, Raymond Broussard, Gene Dozier,
Roosevelt Fountain, Thirlen Lennett, David Lute, Joe Mayne, James B. Moore,
Roland Mouton, Whitney Pradia, John B. Payton, J. C. Van Dyke, Clarence West,
Desire Bishop, and Matthew J. Hooper,17 for any loss of earnings they may have
suffered by reason of unlawful discrimination against them, by payment to each of
them a sum of money equal to that which he would normally have earned absent
the discrimination, and in the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest at the rate of 6 percent per annum computed
quarterly as set out in Isis Plumbing & Heating Co., 138 NLRB 716.
(b) If not already done so, offer Henry Bartie, Roosevelt Fountain, David Lute,
Joe Mayne, James B. Moore, Roland Mouton, John B. Payton, J. C. Van Dyke,
Desire Bishop, and Matthew J. Hooper full and immediate employment and rein-
statement to their former or substantially equivalent positions under Captain Fletcher
Miller, without prejudice to their seniority or other rights and privileges.18
As the unfair labor practices committed by Respondent are of a character striking
at the roots of employees rights safeguarded by the Act, it will be recommended that
Respondent cease and desist from in any manner infringing upon the rights of
employees guaranteed in Section 7 of the Act.
The General Counsel urges, in his brief, that in order to effectuate the purposes
of the Act and adequately remedy the violations herein, the Gallant Man should be
returned to Cameron, Louisiana, for the next season and all alleged discriminatees
offered reinstatement ahoard this vessel; or, the employees should be offered rein-
14 As Captain Miller was paying extra money out of his own pocket but was not named
as a full Respondent, no "make whole" as to reduce pay will be ordered,
18 It is noted that employment has been offered Charles Berry, Raymond Broussard,
Gene Dozier, Whitney Pradin, Clarence West, and Thirlen Lennett.
180S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement aboard the Surprise, should that vessel work out of Cameron, Louisiana,
the season when the alleged discriminatees are offered reinstatement . He also urges
that if the offer of reinstatement to employment aboard either the Gallant Man or the
Surprise is made at a time when these vessels are fishing out of a port other than
Cameron , Louisiana , it is urged that expenses entailed in transportation and moving
for all of the alleged discriminatees should be made part of the backpay remedy.I9
I am not in full accord.
I appreciate the difficulty of trying to fashion a remedy in this case and have
given consideration to the General Counsel's brief. The only consideration in these
cases is to effectuate the purposes of the Act and the very best way to do that is to
restore the discriminatees to the place they would have been absence any discrim-
ination . As the captain and the crew profited by the size of their "catch" in a given
season and as this captain and these discriminatees were a championship unit having
caught a record number of fish in the 1963 season, and as they had fished together
for many years on different boats, the best way to restore the discriminatees to their
former or substantially equivalent positions would be to restore them to a boat
under Captain Miller. It would not be necessary to restore them to any particular
boat so long as it would be approximately the equivalent of the Gallant Man and
would have Fletcher Miller as its captain . Hence , as above I have stated that it
would be recommended that they would be reinstated under Captain Miller. This,
however, does not mean they will not be reinstated if Captain Miller , for any reason,
has no boat , but it means reinstatement to the most equivalent boat bearing in mind
the capacity of the boat to catch the fish, its operaing port and the efficiency of the
captain measured under the standards of Captain Miller . I will leave it to those in
charge with compliance with my Decision, the Board's Order or the court's decree,
as the case may be, to see how the reinstatement will be best carried out under the
above criteria.
Upon the foregoing factual findings and conclusions, and upon the entire record
in the case, I came to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and Captain Fletcher Miller is its agent.
2. Fishermen's Union Local 300, Amalgamated Meat Cutters & Butcher Workmen
of North America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent has engaged in unfair labor practices within the meaning of Section
8(a) (1) of the Act by its agent, Captain Fletcher Miller: (a) Threatening employees
with loss of future employment if they voted the Union in; (b) creating the impres-
sion of surveillance of the employees ' union activity by identifying Desire Bishop as
the one who started the Union; (c) threatening not to give loans at Christmas if the
boat "went union"; (d) reducing the amount of pay for Mate Matthew Hooper
because the boat "went union"; and (e) failing to rehire Chief Engineer Desire Bishop
and Mate Matthew Hooper at the beginning of the 1964 season.
4. Respondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) and (1) of the Act by its agent, Captain Fletcher Miller, discriminating in
regard to the hire of the following 14 employees before the 1964 season began,
because of their interest in and activities on behalf of a union: Henry Bartie, Charles
Berry, Raymond Broussard, Gene Dozier, Roosevelt Fountain, Thirlen Lennett,
David Lute, Joe Mayne, James B. Moore, Roland Mouton, Whitney Pradia, John B.
Payton, J. C. Van Dyke, and Clarence West.
5. The aforesaid unfair labor practices are unfair labor practices 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 the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that the Respondent, Patterson Menhaden
Corporation, d/b:'a Gallant Man, and Fletcher Miller, Agent; Surprise, Inc., d/b/a
Surprise, and Fletcher Miller, Agent; their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of Fishermen's Union
Local 300, Amalgamated Meat Cutters & Butcher Workmen of North America,
'Howard Rome, d/ b/a Rome Products Company and Kenton Plastics Corporation,
77 NLRB 1217.
GALLANT MAN 1809
AFL-CIO, or in any other labor organization, by discharging, laying off, refusing
to reinstate, or in any other manner discriminating in regard to hire or tenure of
employment or any term or condition of employment.
(b) Threatening its employees with loss of benefits if they vote for a union.
(c) Creating the impression of surveillance.
(d) Reducing pay of boat officers should crewmembers vote in a union.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer Henry Bartie, Roosevelt Fountain, David Lute, Joe Mayne, James B.
Moore, Roland Mouton, John B. Payton, J. C. Van Dyke, Desire Bishop, and
Matthew J. Hooper immediate and full reinstatement to their former or substantially
equivalent positions under Captain Fletcher Miller (in the manner set forth above
in the section entitled "The Remedy"), without prejudice to their seniority or other
rights and privileges, and notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
(b) Make whole Henry Bartie, Charles Berry, Raymond Broussard, Gene Dozier,
Roosevelt Fountain, Thirlen Lennett, David Lute, Joe Mayne, James B. Moore,
Roland Mouton, Whitney Pradia, John B. Payton, J. C. Van Dyke, Clarence West,
Desire Bishop, and Matthew J. Hooper for any loss of earnings suffered by them as
a result of the discrimination against them, in the manner set forth above in the
section entitled "The Remedy."
(c) 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 determine
the amounts of backpay due.
(d) Post at its places of business at Patterson and Cameron, Louisiana, and on
each of its menhaden fishing boats operating out of Cameron, Louisiana, copies of
the attached notice marked "Appendix." 20 Copies of said notice, to be furnished
by the Regional Director for Region 15, shall, after being duly signed by an authorized
representative of Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to 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.
(e) Notify the Regional Director for Region 15, in writing, within 20 days from
the date of the receipt of this Decision, what steps it has taken to comply herewith 21
2D In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice . In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
In the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Fishermen's Union Local 300, Amal-
gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or
any other labor organization, by discriminating as to the hire, tenure, or any
other term or condition of employment of any of our employees.
WE WILL NOT threaten any of our employees with loss of benefits if they vote
for a union.
WE WILL NOT spy on our employees' union activity.
200-446--66--voi. 154-115
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT reduce the pay of any officer or crewmember because of union
activity or result of an election.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to organize , perform, join, or assist a
labor organization , to bargain collectively through a bargaining agent chosen
by themselves , to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any such
activities.
WE WILL offer Henry Bartie, Roosevelt Fountain , David Lute, Joe Mayne,
James B. Moore , Roland Mouton , John B . Payton , J. C. Van Dyke , Desire
Bishop , and Matthew J. Hooper their former or substantially equivalent jobs,
preferably under Captain Fletcher Miller (without prejudice to seniority to
other employment rights and privileges ), and WE WILL pay them and Charles
Berry, Raymond Broussard , Gene Dozier , Whitney Pradia, Clarence West, and
Thirlen Lennett , with interest , for any loss suffered because of our discrimina-
tion against them.
All our employees are free to become or remain members of any labor organization.
PATTERSON MENHADEN CORPORATION , D/B/A GALLANT MAN, AND
FLETCHER MILLER , AGENT: SURPRISE, INC., D/B/A SURPRISE,
AND FLETCHER MILLER, AGENT,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola ), 701 Loyola Avenue, New Orleans , Louisiana , Telephone
No. 529-2411 , Extension 63 96.
Elsa Canning Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, and General
Drivers Local Union No. 657, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Joint Petitioners. Case No. 03-RC-20.158.
September 09,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
C. L. Stephens. The Hearing Officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. Employer and
Petitioners have filed briefs which the National Labor Relations
Board has considered.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Members Fanning, Brown, and Zagoria].
154 NLRB No. 147.