George E. Light Boat Storage, Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1965

153 N.L.R.B. 1209 (N.L.R.B. 1965)

GEORGE E. LIGHT BOAT STORAGE, INC. 1209
2. By such threat , Respondents have engaged in conduct violative of Section
8(b)(4)(ii )(B) of the Act.
RECOMMENDED ORDER
I recommend that the Board 's Order be reaffirmed and enforced.
George E. Light Boat Storage , Inc. and Inland Boatmen 's Union
of the Seafarers ' International Union of North America, Atlan-
tic, Gulf, Lakes, and Inland Waters District , AFL-CIO. Case
No. 23-CA-1919. July 2,1965
DECISION AND ORDER
On May 5, 1965, Trial Examiner James V. Constantine issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent has engaged in and is engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed as to them.
Thereafter, both the Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision, and the General Counsel filed
a brief in support of his exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 except as modified herein.'
' We disagree with the Trial Examiner's dismissal of the 8 ( a) (5) allegation based on
Respondent 's refusal to continue making payments to the Seafarers ' welfare plan as re-
quired by its contract with the Union . The Trial Examiner found that the refusal was
not an unfair labor practice but a breach of contract which should be remedied in another
forum. However , where an employer refuses to continue to make payments to such a
plan in derogation of an existing contract , he in effect unilaterally changes the wages of
his employees who are the beneficiaries of that plan, and thus violates Section 8(a) (5)
of the Act See, e g., Tofenetti Restaurant Company, Inc ., 136 NLRB 1156 , affd. 311
F. 2d 219 ( C.A. 2) ; The Crestline Company, 133 NLRB 256; Cascade Employers Associa-
tion, Inc., 126 NLRB 1014 , reversed on other grounds 296 F. 2d 42 ( CA. 9). Where
the breach of the contract is also an unfair labor practice, both the Board and the courts
have jurisdiction to remedy the wrong that has been done. See, e . g., Section 10(a) of
the National Labor Relations Act, and Smith v. Evening News Association, 371 U.S. 195.
In agreeing that the Respondent violated Section 8 ( a) (1) and ( 5) of the Act , as alleged,
we find it unnecessary to consider or pass upon the Trial Examiner 's dictum as to the
requirements of mid-term notice under Section 8(d).
153 NLRB No. 96.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, George E. Light Boat Stor-
age, Inc., Seabrook, Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Change the period following the Isis Plumbing & Heating Co.
citation in paragraph 2(f) to a semicolon and add the following:
"... and pay into the Seafarers' welfare plan such sums as would
have been paid into said plan absent the illegal changes in wages."
2. Change the period following the word "work" in the sixth in-
dented paragraph of the Appendix attached to the Trial Examiner's
Decision to a semicolon, and add the following :
... and we will also pay into the Seafarers' welfare plan such
sums as would have been paid into said plan absent the illegal
changes in wages.
3. The telephone number for Region 23, appearing at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended
to read : Telephone No. 228-4722.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On November 12, 1964, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 23 (Houston, Texas), issued his com-
plaint against George E. Light Boat Storage, Inc., herein called Respondent or the
Company. This complaint is based on a charge and amended charge filed on October 1
and November 9, 1964, respectively, by Inland Boatmen's Union of the Seafarers'
International Union of North America, Atlantic, Gulf, Lakes, and Inland Waters
District, AFL-CIO. In substance the complaint alleges that Respondent engaged in
conduct violating Section 8(a)(1), (3), and (5), and that such conduct affects com-
merce within the meaning of Section 2(6) and (7) of the National Labor Relations
Act, as amended, herein called the Act. Respondent has filed an answer admitting
some facts but denying that any unfair labor practices were committed.
Pursuant to due notice, this case came on to be heard and was tried before Trial
Examiner James V. Constantine on January 18, 19, and 20 at Houston, Texas. All
parties were represented at and participated in the trial and were given full oppor-
tunity to adduce evidence , to examine and cross -examine witnesses , to present oral
argument, and to submit briefs. Respondent and the General Counsel have filed
briefs.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
George E. Light Boat Storage, Inc , a Texas corporation, is engaged at Seabrook,
Texas, in the business of furnishing crewboats to firms and companies engaged in
offshore drilling operations . One of those firms is Humble Oil and Refining Co.,
which annually ships products valued in excess of $50,000 from Texas directly to
various other States of the United States. During the 12 months preceding the trial
herein Respondent received in excess of $50,000 for services rendered to said Humble
GEORGE E. LIGHT BOAT STORAGE, INC. 1211
Oil and Refining Co. I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Inland Boatmen's Union of the Seafarers' International Union of North America,
Atlantic, Gulf, Lakes, and Inland Waters District, AFL-CIO, herein called the
Union, is a labor organization within the meaning of Sections 2(5) and 8(a) of the
Act.
111. THE UNFAIR LABOR PRACTICES
This case relates to certain conduct of the Company which the General Counsel
challenges as unfair labor practices prohibited by Section 8(a)(1), (3), and (5) of
the Act. Many essential facts are not controverted.
A. Facts coininon to the entire case
Respondent operates crewboats which transport Humble's employees and equip-
ment from Humble's shore docks at Cedar Point, Texas, to drills located offshore in
Galveston Bay and from the drills back to shore. Since June 1964, Respondent's
president, George E. Light, has owned all its capital stock and is responsible for all
its labor relations. Before that he owned 52 percent. J. B. Light and Robert R.
Breaker are Respondent's vice president and secretary-treasurer, respectively. On
December 18, 1961, following an election in Case No 23-RC-1828 among the
employees of Respondent, which the Union won, the Union was certified as majority
representative of a unit composed of "All employees employed on George E. Light
crewboats, operating out of Seabrook, Texas." Excluded from this unit are "office
clerical employees, guards, watchmen, and supervisors as defined in the Act." I find
this is an appropriate unit under Section 9 of the Act.
Following the Union's certification, Respondent and the Union entered into bar-
gaining negotiations which culminated in a collective-bargaining contract executed
in February 1962 by the parties and effective March 1, 1962. See General Counsel's
Exhibit No. 5. This contract is signed by "George E Light, Pres ," on behalf of
Respondent, and by Paul Drozak on behalf of the Union. At the meetings George E.
Light "basically" handled negotiations for the Company. Also present on behalf of
the Company at the meetings was Vice President J. B. Light. At that time J. B.
owned 48 percent, and George E Light owned 52 percent, of Respondent's stock.
Paul Drozak acted as the Union's chief negotiator. Union delegates Fred Tischhauser
and John Odom, both employees in the certified unit, also attended and participated
as representatives of the Union. After this agreement was signed the Company "for
a period of time" paid the wages and met the terms and conditions set forth therein.
In June or July of 1963, Vice President J. B. Light asked Paul Drozak, assistant
regional director of the Union, to make some modifications in the contract in order to
keep the Company in business. Soon thereafter Drozak, accompanied by employees
Odom and Tischhauser, met with President George E. Light and Vice President J. B.
Light. After the parties agreed on modifications Diozak insisted that they were sub-
ject to ratification by the men. When the men agreed to the same, the changes were
reduced to writing and Drozak on July 9, 1963, so notified Respondent. (General
Counsel's Exhibit No. 11.)
The original contract was for a term of 2 years ending at midnight of February 28,
1964, and from year to year thereafter, with the right to reopen for wages on March 1,
1963, and any anniversary thereafter upon 60 days' prior written notice by any
party to the other party.
By letter dated December 23, 1963, Drozak sent a notice of reopening to Vice
President Light. (General Counsel's Exhibit No. 6.) As a result the parties met in
February 1964, when they agreed to continue the same contract for 1 year but with
a 20-cent increase by the Company in its contribution to the union welfare fund
(from $1.75 to $1.95 per employee per day). See General Counsel's Exhibits Nos.
7-A, 7-B, and 12. Odom and Tischhauser, along with Drozak, attended these Febru-
ary 1964 negotiating sessions.
In middle September 1964, Union Representative Drozak met with Company
President George Light to discuss the arrears in the Company's payments to the union
welfare fund. Explaining why he failed to make such payments, Light claimed that
Respondent was short of funds but insisted he could resume fulfilling these obligations
if relief drivers were dispensed with. Drozak promised to take this up with the men
if Light produced evidence of financial instability. But Light never offered such
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
documentary evidence. Then Light insisted that he was going to have the men work
48 hours on and 48 off and eliminate relief operators in order to stay in business.
However, Drozak demanded that Light abide by the contract.
About 10:30 or 11 a.m. on October 1, 1964, Drozak called President Light to pro-
test the discharge of Odom and Tischhauser and the Company's individual employ-
ment contracts with the employees and the wages provided therein. (General Coun-
sel's Exhibit No. 8.) Drozak further complained to Light this violated the Union's
contract. Thereupon Light replied that Respondent had no contract with the Union.
When Drozak asked why Odom and Tischhauser were terminated, Light answered
that "Tischhauser had been a troublemaker down here since the Union came in" and
was discharged therefor, and that Odom was fired for burning up a motor 6 or 8
months before that.
By letter dated December 30, 1964, Drozak wrote to Respondent giving a 60-day
notice to reopen the contract for wage negotiations. (General Counsel's Exhibit No.
13.) No response was ever received to this request.
B. Interference, i esti aint, and coercion
A clause in the above collective-bargaining contract provides that wage rates may
be reviewed on March 1, 1963, by either party's serving the other party with a 60-
day written notice so requesting. In March 1963, President George Light and Union
Representative Drozak met to discuss a wage reopener. But those discussions ended
in the Union's agreeing to forbear for a year a "reopener" or increase in wages.
About June 1963, President George Light met with Union Representative Drozak.
Light asked that the Union agree to reduce the number of relief men. Thereafter, by
letter dated July 2, 1963, Vice President J. B. Light wrote to Drozak requesting that
the collective-bargaining contract be amended in respects there specified "on a
temporary basis" as an economy measure "to help us survive this recession and stay
in business." (General Counsel's Exhibit No 10.) By letter dated July 9, 1963,
Drozak replied to J. B. Light that the proposed modification of the contract "on a
temporary basis" was agreeable until the Company "resumes normal operations."
(General Counsel's Exhibit No. 11.)
Pursuant to a clause in the collective-bargaining contract Drozak wrote to Vice
President J. B. Light that the Union was "serving notice to open this contract for
negotiations" and requesting the designation of a meeting date therefor. (General
Counsel's Exhibit No. 6 ) Thereafter, following negotiating sessions, the parties in
February 1964 agreed to extend the prior contract (General Counsel's Exhibit No. 5)
for 1 more year from March 1, 1964, with the modification that Respondent would
increase by $.20 (from $1.75 to $1.95) its "welfare contribution" for each employee.
The details of this contribution are set forth in General Counsel's Exhibit No. 7-B.
By letter dated February 7, 1964, Drozak wrote to Vice President J B Light confirm-
ing the above terms of the new contract. (General Counsel's Exhibit No. 7-A.)
Thereafter, Respondent began contributing $1.95 for each employee into the wel-
fare fund, and honored all other terms and conditions of the collective-bargaining
agreement until about August 1964 At that time Respondent stopped making any
payments to the union welfare fund.
Sometime in August 1964, Boat Operator Odom, who had worked overtime,
requested overtime pay therefor from President Light, insisting that he was entitled
thereto under the contract. But Light refused it on the ground that he did not care
about the contract and would no longer pay the overtime rates for overtime work.
Light also told Odom that Odom was talking too much to the men and stirring up
trouble, just as Tischhauser was also, and that Odom and Tischhauser would be dis-
charged if they did not stop talking to the men.
About August 13, 1964, President George Light reprimanded employee Tisch-
hauser for "jumping" on Boat Operator LaFour and forbade Tischhauser from going
aboard LaFour's boat.' In the same conversation Light also insisted that Tischhauser
as a union delegate refrain from talking to the employees because Respondent no
longer had a contract with the Union, giving as the reason that the Union was not
I LaFour also occasionally operated a boat for Respondent, at President Light's request,
on LaFour's days off. But LaFour did not receive overtime rates therefor. LaFour
asked for work on his days off because he wanted extra money to support a large family.
Tischhauser and Odom also worked on their days off, but for other boat companies. In
August and September 1964, Tischhauser complained to LaFour that the latter was violat-
ing the Union's contract by not receiving overtime rates when he operated on his days
off and receiving only the regular rate. LaFour then told President Light that he objected
to Tischhauser 's "talking union business on the job all the time."
GEORGE E. LIGHT BOAT STORAGE, INC. 1213
furnishing suitable men to run the boats ; that, since a collective -bargaining contract
was no longer in force, Tischhauser would not be regarded as a union delegate by
Light; that Light would discharge Tischhauser if the latter did not stop talking to the
employees; and that Light otherwise was pleased with Tischhauser's work.
On October 1, 1964, Tischhauser arrived at Humble's Cedar Point docks about
6 a.m. ready to report for work. Soon thereafter President Light assembled all the
employees there and spoke to them. First Light told the men that he was putting
them on 48 hours on and 48 hours off, or , at the option of any employee , 24 hours on
and 24 hours off,2 and that he was raising wages from $ 31.50 to $36 a day for a total
raise of $76 a month in return for abolishing 4 days off a month; i e., 4 more days
were added to the working month . Then President Light asked the convened employ-
ees to sign a document embodying these changes . ( General Counsel 's Exhibit No. 8.)
This document , which 10 employees signed, provides that it shall continue in force
"until such time as the parties [individual employees and the Company ] to this agree-
ment, or those employees who are working at any future time, shall agree to alter the
pay scale and working time . New employees may be hired for a lesser rate." The
Union was not notified in advance of such talk or the execution of the document
above; nor did Respondent bargain with the Union over such terms. Additional
details of the above circumstances are set forth immediately below. Finally , Presi-
dent Light discharged Fred Tischhauser because he talked too much to the men about
the union contract . In discussing this discharge with Tischhauser , Light also said that
employee Odom was discharged the same day for burning an engine and for talking
too much to the men. These discharges are discussed more fully below . As noted
above, Light asked the men to sign General Counsel 's Exhibit No. 8. In requesting
the men to sign it, Light pleaded that it would benefit the Company to do away with
the relief men. Then, as Tischhauser and Odom left , Light told them he would give
them good recommendations as he had nothing against their work , even though he
had discharged them.
About 9 a.m . on October 1, 1964, President George Light called employee Clifford
Wheeler to the office at Seabrook . When Wheeler arrived about 1:30 p.m. Light
asked him to subscribe to "a working agreement ," which is in the record as General
Counsel's Exhibit No. 8. Wheeler signed it as requested . During the discussion
which ensued , Wheeler mentioned that he belonged to the Union . Thereupon Light
replied that "I don 't feel I have any agreement with the Union ," that "a man from
the Labor Board" told him he "did not have to go along with this agreement," and
that "as long as Uncle Sam told him he did not have to go along , that he damned
sure was not going to do it."
Odom twice requested overtime pay for twice working overtime in August . Presi-
dent Light each time denied it, stating that he would not pay it any more. In each
of these conversations Light warned Odom that Odom and Tischhauser were "stirring
up the men and causing trouble," and threatened to discharge Odom and Tisch-
hauser unless they quit talking to the men.
Concluding Findings as to Interference , Restraint , and Coercion
1. It is my opinion , and I find, that Respondent 's president , George Light , instructed
employees Odom and Tischhauser to stop talking to employees because they were
talking too much and stirring up trouble among the men, and warned Odom and
Tischhauser that they would be discharged if they did not stop talking to the men.
I further find that Light referred to such talk and stirring up as activity by Odom and
Tischhauser in approaching boat operators who worked for Respondent on their days
off for regular pay, and remonstrating with such operators that by accepting only regu-
lar wages they were violating the terms of the collective-bargaining contract and thus
undermining the Union and hurting fellow employees . The foregoing findings are
not disputed by Respondent , as its witnesses LaFour and President Light testified sub-
2 Telling them that he was forced to make certain changes in their wages and working
conditions , Light proceeded to describe them. Under the existing union contract , the regu-
lar drivers were to work 3 days in 7 consecutive days, working 24 hours on , 24 hours off,
repeating this cycle two more times , and being off again on the 7th day. A relief driver
worked the boat on the seventh day . Thus the regular drivers would work 6 days in 14.
President Light modified this so that in a 14-day period they would work 7 days This
cut out relief drivers and eliminated 1 day off in 14 , but increased daily wages from
$31 50 to $36 a day. Relief drivers work only on a regular or alternate driver's last day
in a cycle of 7 days. Alternate drivers are regulars who followed a driver for 24 or
48 hours.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantially in conformity therewith, and also President Light testified that he paid those
who worked for Respondent on their days off at regular rates which were "sub-
stantially less" than overtime rates
But Respondent contends that these facts disclose no violation of the Act because
no collective-bargaining contract was in existence at the time and because, in any
event, this type of activity is not protected during working hours. Elsewhere in this
Decision I have found that a valid collective-bargaining contract between Respondent
and the Union was in force at all material times. The question on this phase of the
case then is whether this conduct by Odom and Tischhauser is safeguarded by the Act.
Initially it is desirable to bear in mind that "The Act, of course, does not prevent
an employer from making and enforcing reasonable rules covering the conduct of
employees on company time. Working time is for work." Peyton Packing Company,
Inc., 49 NLRB 828, 843, enfd. 142 F. 2d 1009 (CA. 5). In fact the collective-
baigaining contract between the parties expressly prohibits "Union activities . . .
during working hours." See article I, section 10 But this does not end the matter.
Employees and their collective-bargaining agent are vouchsafed certain rights by the
Act, one of which is the right to bargain collectively through representatives. Included
in this right is the corollary right that an employer will not deny or take away from
employees benefits conferred upon them by a collective-bargaining agreement and
will not intentionally undercut the collective-bargaining agent.
When an employer breaches his contract with a union any employee may com-
plain thereof to such employer and to fellow employees. Such complaint may be
made "at any time" to the employer. See Section 9(a) of the Act. But I am of the
opinion that such complaint may be made during working hours to a fellow employee
who is a coparticipant with the employer in breaching the terms of a contract, so
long as this does not interfere with production. Cf. N.L.R.B. v. Washington Alumi-
num Company, Inc., 370 U.S. 9, 14, 16-17. In fact article I, section 11, of the con-
tract (General Counsel's Exhibit No 5) expressly confers this privilege upon employee
delegates such as Odom and Tischhauser. And I find that Odom and Tischhauser
did not interfere with operating schedules of any boats when they complained to
some employees that such employees were abetting the Employer in violating the
contract on their days off.
Since I find that this activity by Odom and Tischhauser is protected by the Act,
I further find that Respondent interfered with, restrained, and coerced employees
when it threatened to discharge Odom and Tischhauser for engaging therein under
the circumstances found above.
2. It is also found that Respondent disavowed its contract in President Light's
separate conversations with employees Odom and Tischhauser and Union Represent-
ative Drozak, and in executing separate contracts with employees on October 1, 1964.
As analyzed in another part of this Decision, to repudiate a valid contract transgresses
Section 8(a) (5) of the Act. But I am of the opinion, and rule, that an intentional
disclaimer of a collective-bargaining contract also independently constitutes inter-
ference, restraint, and coercion forbidden by the Act. Accordingly, I find that such
disavowal of the contract violates Section 8(a)(1) of the Act.
3. Further, I find that Respondent bargained directly with the employees on Octo-
ber 1, 1964, when it requested and obtained a written contract signed by the employ-
ees (General Counsel's Exhibit No. 8.) Elsewhere in this Decision I have discussed
Respondent's contention that its contract with the Union (General Counsel's Exhibit
No. 5) is invalid and "against public policy" because not authorized or ratified by
a vote of the directors and because not made under seal. Curiously, no such con
tention is made by Respondent as to its contract directly with employees (General
Counsel's Exhibit No. 8), although this contract neither displays a seal nor discloses
that the directors have sanctioned it.
Since Respondent admittedly executed the contract of October 1, 1964 (General
Counsel's Exhibit No. 8) and solicited employees to sign it, a violation of the Act
has been disclosed regardless of the employer's good faith unless the Union and the
Employer had reached an impasse prior thereto. N.L.R.B. v. Benne Katz, etc., d/b/a
Williamsburg Steel Products Co., 369 U.S 736, 743. This conduct constitutes a
unilateral change in working conditions which the Act forbids before an impasse.
N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. And I find that this action
was unilateral although President Light once mentioned to Union Representative
Drozak that Respondent was changing the working schedules to 1 day on and 1 day
off. Such mentioning constitutes neither bargaining nor an impasse.
Although the unilateral change and the direct dealing with the employees found
above are barred by Section 8(a)(5), I am of the opinion that they also independ-
ently constitute interference, restraint, and coercion. Hence I find that they violate
Section 8 (a) (1) of the Act as well.
GEORGE E. LIGHT BOAT STORAGE, INC. 1215
4. The General Counsel contends that President Light's statement to an employee
that the United States (through the NLRB) approved Respondent's disavowal of the
contract runs afoul of Section 8(a)(1) of the Act. But I am of a different view,
although I do find that such statement was made. It is the disavowal which gener-
ates a violation of law, and not the reason advanced for it. The reason may be
material in ascertaining whether the disavowal was made in good faith where motive
is relevant ; but in my opinion the reason itself does not amount to an unfair labor
practice. Hence I find that paragraph 7(g) of the complaint has not been established,
and I shall recommend that this segment of the complaint be dismissed.
C. The discharge of Fred Tischhauser
Respondent owns and operates boats which transport crews of Humble's employees
and Humble 's materials and supplies to and from offshore drills . An employee oper-
ator of such a boat runs it for three round trips in a 24-hour day from the shore at
Cedar Point to drilling rigs in Galveston Bay and return .3 Under the contract, in a
cycle of 7 consecutive days such operator remains on the job for 24 continuous hours
in 1 day, after which he is off for the next 24 hours. This continues for 6 consecu-
tive days. On the seventh day he is off also. If an operator works on a day off he
is paid overtime rates. Tischhauser was employed as such operator, and had been
since February 1961 when he was hired.
Tischhauser was active 4 on behalf of the Union in organizing Respondent's
employees , was designated as a union "delegate" by such employees to present their
grievances to Respondent , and often accompanied Union Representative Drozak in
the Union's bargaining negotiations and grievance meetings with President George
Light. President Light testified that he not only knew of the foregoing union activi-
ties of Tischhauser but also "discussed [the Union] quite a few times" with him. In
these latter discussions President George Light often complained to Tischhauser that
the latter talked too often about the Union to fellow operators, causing a lot of
trouble, "instead of tending to his own job, his own boat," and keeping it clean.
Among other things, President George Light complained that Tischhauser was
informing other employees that Respondent was not abiding by the terms of the
collective-bargaining agreement. President George Light further testified that Tisch-
hauser was a troublemaker also because on days when the weather was so inclement
as to reduce visibility Tischhauser either ran his boat "real slow" or refused, on foggy
days, to operate it at all. By proceeding at too slow a pace, according to President
Light, "Humble had to pay [its] men overtime " Further, President Light testified
that Tischhauser damaged a boat in 1963 causing repairs estimated at $3,000.
President Light additionally testified that Humble a number of times complained
that Tischhauser "hung around the Humble shack too much" and annoyed Humble's
employees. Light warned Tischhauser about this, about Tischhauser's attempting to
get other boat operators to drive slowly or to refuse to make runs,5 and about keep-
ing his boat clean. On October 1, 1964, Light fired Tischhauser for failing to heed
these warnings. However, other operators were complained of by Humble for the
same reason and such operators also failed to keep their boats clean, according to
President Light,° who did not discipline these other operators other than Odom.
Finally, President Light discharged Tischhauser on October 1, 1964, after having
unsuccessfully warned him for 3 weeks prior to that to attend to his own work and
leave his fellow employees alone. In this latter category President Light mentioned
that Tischhauser told fellow employees not to work overtime at regular rates of pay
and to "slow down, take your time, do not go when it is too foggy," and that some
of these employees ran Tischhauser off their boats when he talked of such matters
to them. One of the employees to whom Tischhauser was a troublemaker, according
to President Light, is LaFour, another boat operator. LaFour had agreed, as a favor
3 When the boats are idle they are docked at Seabrook in Baytown , about 20 miles from
Cedar Point.
4 Consisting of distributing "pledge cards" among the employees . Odom was the only
other active employee organizer.
5 Operator employee Jack LaFour testified that on several occasions he heard inquiries
on his radio as to the whereabouts of Odom's (Mr. Mick) and Tischhauser 's (Linda Linay)
boats. But there is no evidence that Odom and Tischhauser were operating on these days.
6 Although these shortcomings also applied to Red Mann, who operated the boat on
Tischliauser ' s days off, Mann was let go after October 1, 1964, for "different reasons,"
according to President Light.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Light, to operate a boat on his days off for $15.75 7 for 12 hours. Tischhauser
complained to LaFour that this violated the contract and asked LaFour to stop
driving the boat overtime at regular wages. LaFour then complained to President
Light that Tischhauser was bothering him, and Light considered this as "stirring up
trouble." It was one of the factors which led to Tischhauser's discharge by President
Light. Other factors were that Tischhauser told other employees that the Company
was not meeting terms of the Union's contract. President Light considered this
troublemaking also.
According to President Light, Tischhauser did not maintain his boat properly, but,
rather, allowed the bilge to accumulate a lot of oil, water, and trash. This condition
was observed for at least a year before October 1, 1964. Yet boat operators are
required as part of their duties to keep their boats clean, and are so instructed fre-
quently. Nevertheless all the operators "not too often" clean boats, according to
Lights This was also one of the reasons why Tischhauser was discharged, according
to Light.
About 2 weeks before October 1, 1964, Tischhauser bent a wheel (or propeller)
on his boat without explaining why. However, President Light testified that it is
common for a skipper of a boat to report bent wheels and that in January 1964 the
repair bills therefor ran to $1,200 for all employees.
A number of times, according to President Light, Humble complained that Tisch-
hauser was not at his boat when Humble men reported for a ride from shore to drill-
ing rig at shift time. Shift times are at 7 a.m., 3 p.m., and 11 p.m., daily. Light
insisted at the hearing that this was one of the causes leading to Tischhauser's dis-
charge. Similar complaints were received by President Light as to Odom. Accord-
ing to President Light, on one occasion Tischhauser reported to work intoxicated and
had to be taken home without operating the boat. I do not credit Light; but I do
credit Tischhauser's denial thereof.
Tischhauser testified that President Light never criticized his work or maintenance
of the boat except once in January 1963. On that occasion Light told Tischhauser
that Humble complained that Tischhauser ran his boat too slow, and asked Tisch-
hauser to "get along with them." In fact Humble once complained directly to Tisch-
hauser about this also As a result, Tischhauser did speed up his operation of the
boat, although to do so violated Coast Guard rules relating to speeds during foggy
weather.
Concluding Findings as to the Discharge of Fred Tischhauser
On the evidence unfolded by the record, I conclude and find that Fred Tischhauser
was discharged for engaging in protected union activities, and that the several pur-
ported reasons offered to justify his discharge are pretexts to disguise or hide the
true reason.
Initially it is desirable to point out that Respondent concedes that one of the rea-
sons for the discharge is based on Tischhauser's "stirring up trouble" among some
employees by telling them during working hours that they were receiving less than
contract rates when they worked overtime on their days off. In another section of
this Decision, I have found that this activity by Tischhauser was protected by the
Act although it occurred during working hours because it did not interfere with the
operation of the boats. Hence the defense that Tischhauser's activity occurred during
his working time lacks merit.
Nor are the other defenses well taken. Thus, although I find that Tischhauser's
boat was not always clean, a cause for which he could have been terminated law-
fully "for cause" under Section 10(c) of the Act, I find that his failure to maintain
the boat in a clean condition was overlooked or condoned for over a year,9 and was
abruptly seized upon to discharge him only after he became a thorn in President
Light's side by engaging in union activities (bothering other operators about over-
time) which Light vehemently opposed. Then again President Light claimed that
Tischhauser damaged a propeller. I find that he did. However, this reason I find is
a pretext because (a) this was a common incident among boatdrivers , as President
Light testified, (b) no one had previously been reprimanded or disciplined therefor,
7 President Light testified that this was "substantially different" from the contract's
terms. Under the contract LaFour should have received the overtime rate of $1 .97 an hour.
8 In fact Respondent 's witness Breaker testified , "It takes me sometimes as late as
midnight to clean up a mess that is left by a boat operator."
9 Moreover this condition is also attributable in part to at least two other boat opera-
tors ; I e , the alternate operator and the relief operator . Yet neither of them was
disciplined or reprimanded therefor.
GEORGE E. LIGHT BOAT STORAGE, INC. 1217
and (c ) Tischhauser was not disciplined or reprimanded at the time. Hence I find
condonation . Further I find pretext when this incident was much later resurrected
to justify the termination of employment . Similar considerations I find destroy
Respondent 's other enumerated causes for firing Tischhauser, i.e., other employees
were not fired therefor ,10 and, in any event, the failings in duty were overlooked or
condoned by taking no disciplinary action thereon over an appreciable length of time
during which they persisted.
Of course , rejecting a defense does not without more constitute affirmative proof
of the allegations to which the defense is interposed . Guinan v. Famous Players,
167 N. E. 235, 243 (Mass. ); N.L.R.B. V. Audio Industries, Inc., 313 F. 2d 858, 863
(C.A. 7). The burden of proof still rests on the General Counsel to prove his case.
Rubin Bros . Footwear, Inc., et al., 99 NLRB 610, 611 ,11 set aside on other grounds
203 F. 2d 486 (C.A. 5).
However, I find that the General Counsel has proved a discriminatory discharge
by affirmative evidence and reasonable inferences drawn therefrom . Thus I find
that Respondent vigorously objected to Tischhauser 's 12 union activity , had knowl-
edge thereof , and intentionally disavowed a binding collective -bargaining agreement.
In addition, I find, on Respondent 's own evidence , that one of the reasons prompting
Tischhauser 's discharge involved his efforts to prevent Respondent's circumventing
the contractual provisions pertaining to overtime rates. Finally , I find as significant
the fact that Odom, the only other active union member , was also discharged for the
same reason as Tischauser, although specious reasons 13 were asserted , on the same
day as Tischhauser . It is more than mere coincidence that the two union delegates
were simultaneously terminated for the same cause; i.e., "stirring up" referred-to
protected union activity.
Accordingly , I find that Tischhauser was terminated contrary to the provisions of
Section 8 ( a) (3) and, derivatively , 8(a) (1) of the Act.
D. The discharge of John Odom
Like Tischhauser, Odom was employed by Respondent as a crewboat operator.
Odom was hired about 7 years before his discharge on October 1, 1964. Odom
belonged to the Union, was voted by fellow employees to be a union delegate since
1962, participated on behalf of the Union in bargaining negotiating sessions, and
presented some employee grievances to Respondent as such delegate. President
George Light testified that he knew this. President Light testified that he discharged
Odom on October 1, 1964, because Odom burned up an engine about 2 weeks before
that by failing to maintain the proper oil and water level. Although Odom claimed
he brought the boat back to the dock in proper shape and that some one else burned
up the engine, President Light nevertheless discharged him. Odom's version of the
incident is as follows:
About August 1964, Odom's engine heated up on him 3 or 4 minutes after he
started to operate the boat. Upon investigating the cause thereof Odom discovered
a lack of water. Since the engine continued to heat up after he put in water, Odom
decided not to proceed to the rig offshore but returned to the Humble docks at Cedar
Point on the good engine only. The boat has two engines . With employees Redmon
and Martinez , Odom checked the heated engine and then decided not to operate the
boat. However, there was nothing wrong with this engine at that time. But Odom
10 As to drunkenness , I find that Tischhauser was not drunk on the job , crediting him
and not crediting President Light thereon . As to unavailability for work, I find that
Tischhauser was available , crediting him. I do not credit President Light thereon be-
cause of demeanor and also because I believe he was grasping at anything to justify an
illegal discharge
11 "At all times , the burden of proving discrimination is that of the General Counsel."
Rubin Bros. Footwear, Inc., et al., supra, at 611.
12 It is not illegal to dislike unions or to say so N.L R.B. v . Threads, Inc ., 308 F. 2d
1, 8 (CA. 4) And union activity does not confer immunity from discharge. Metals
Engineering Corporation, 148 NLRB 88; Rubin Bros . Footwear Inc., et al. v. N .L.R.B.,
203 F. 2d 486, 488 (C.A. 5). But hostility to unions may be used to assess evidence on the
question of whether an unfair labor practice has been committed , especially in ascertaining
the motive behind a discharge.
13 The "mere existence of valid grounds for discharge is no defense to a charge that
the discharge was unlawful." N L.R B. v. Symons Manufacturing Co , 328 F. 2d 835, 837
(C.A. 7). Accord N.L.R B v. Texas Bolt Company, 313 F. 2d 761, 763 (C.A. 5).
7 9 6 -0 2 7-6 6-v o f 15 3- 7 8
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not run it from Cedar Point to Seabrook. The next morning Odom notified
Mochman, the operator for that day, that a water problem was involved. Mochman
then drove the boat from Humble's dock at Cedar Point to Respondent's at Seabrook.
The motor burned up, according to Odom, between Cedar Point and Seabrook.
However, Odom was not reprimanded, warned, or discharged when Respondent
learned of the burned motor in August.
When Odom finished his work on October 1, 1964, employee Tischhauser informed
him that Odom had been fired. Immediately thereafter when Odom asked Light if
this were true, President Light discharged Odom telling him it was because Odom
caused too much trouble among the men, and also burned up an engine causing
damage of $2,400. Continuing, Light characterized the "too much trouble" as keep-
ing the men stirred up all the time. Odom denied he burned up the engine and
offered to prove it through two witnesses, Redmon and Martinez. Light rejected
this proffer However, Light promised to give Odom a good recommendation as a
good operator.
Odom was discharged, according to President Light, for burning up an engine,
stirring up trouble among the men, and failing to maintain his boat neat and clean.
About 2 weeks before October 1, 1964, Odom also bent a propeller on his boat, but
I find this was common among the men.
In his affidavit given to the General Counsel (General Counsel's Exhibit No. 9)
President Light avers that: (1) He was not sure whether Odom burned the engine
or whether this should be attributed to Joe Mochman, who operated the boat imme-
diately after Odom relinquished it; (2) he fired Odom 3 weeks later because no
"experienced man" was sooner available to replace him; and (3) when he "accused"
Mochman of burning up the motor, Mochman immediately "resigned" as a result of
such accusation.
Clifford Wheeler operated Odom's boat on Odom's days off; i.e., every other day
as an alternate driver. About early 1964 Wheeler's engine burned up when the water
heater hose fell across the engine with a resultant loss of fresh water. Hence it
became necessary to overhaul the engine. Yet Wheeler was neither reprimanded,
warned, nor discharged for this dereliction of duty.
Concluding Findings as to the Discharge of John Odom
On the record before me I find as ultimate facts that Odom was discharged for
engaging in union activity shielded by the Act; that, therefore, such discharge con-
travenes Section 8(a)(3) and, derivatively, 8(a)(1), of the Act; and that Respond-
ent's reasons put forth to justify the discharge are pretexts to mask or cloak the true
reason. Respondent at the trial claimed that Odom was discharged for burning up
a motor, failing to maintain his boat in a proper operating condition, interfering with
Humble Oil's control over Humble's men, failing to fasten tires as bumpers on the
rear of his boat, and stirring up trouble among Respondent's employees.
As to the burning of the motor: I find that the engine on Odom's boat was burned
sometime in August 1964. But I find that it is doubtful that he caused this because
he returned the boat to shore at Cedar Point in good working condition immediately
after he discovered improper functioning of the water circulation system. Further
I find that the boat was driven from Cedar Point to Seabrook by another operator,
Mochman, that Respondent also accused this other operator of burning the motor,
and that Respondent took no further action thereon at the time; i.e., about August
1964. Hence one of the reasons I find that this incident is a pretext flows from the
fact that no one was fired therefor at the time and it was not again mentioned by
Respondent until the very day when Odom was terminated; i e., October 1, 1964.
As to failing to keep the boat clean: I find that the boat (Mr. Mick) which Odom
ran was not as clean as Respondent desired. But I further find that Respondent's
other boats were equally unclean, that Respondent did not discipline the other boat
operators therefor, that Mr. Mick was driven also by an alternate and a relief driver,
both of whom (together with Odom) were also responsible for its uncleanliness, and
that neither the alternate nor the relief driver was disciplined therefor. Further
I find that this unclean condition was overlooked or condoned since it existed for
a substantial period of time with Respondent's knowledge.
As to interfering with Humble's control over its men. I find that this defense has
not been established because no corroborating oral or written evidence from Humble
was put on by Respondent. Hence I do not credit Respondent's evidence thereon.
I find the absence of such evidence from Humble quite significant, since evidence
from Humble was offered to corroborate other defenses of Respondent. See Respond-
GEORGE E. LIGHT BOAT STORAGE, IN C. 1219
tent's Exhibits Nos. 3 and 4. In any event I find condonation because, assuming this
condition existed, Respondent knew of this for a long time but took no disciplinary
action to correct it.
As to the bumpers: Although such bumpers were not on the boat when President
Light inspected it, I find that he remained indifferent about the situation over a pro-
longed period of time prior to October 1, 1964, when Odom was discharged. Hence
I find that this alleged dereliction of duty constitutes a pretext to conceal the true
reason why Odom was discharged.
While I have rejected Respondent's defenses as not expressive of the dominating
motive for Odom's discharge, it does not follow that it has been established solely
thereby that his discharge is illegal. It is incumbent on the General Counsel, upon
whom the burden of proof remains at all times, to prove his case by affirmative evi-
dence and rational inferences therefrom. It is my opinion, and I find, that this burden
of proof has been sustained on the entire record, including the following factors
which I find as facts:
1. Odorn was active on behalf of the Union and was elected as one of the two
employee union delegates by Respondent's employees. Respondent had knowledge
thereof for a substantial period prior to October 1, 1964.
2. Respondent strongly objected to some of Odom's union activities, particularly
those which sought to prevent Respondent from evading the overtime provisions of
the contract (General Counsel's Exhibit No. 5) with the Union.
3. Respondent repudiated the contract with the Union.
4. Admittedly one of the reasons behind Odom's discharge is his stirring up trouble
among the employees. Such "stirring up of trouble" involved attempts to prevent
renouncing of the overtime wage rates set forth in the contract. Even though such
activity took place during working hours I find that, for the reasons given in connec-
tion with Tischhauser's discharge, it was lawful union activity protected by the Act.
5. As in the case of Tischhauser's discharge, and for the reasons given in the dis-
cussion thereof, I find it is more than coincidental that Odom and Tischhauser, the
only two active union adherents, were simultaneously fired for alleged misconduct
which occurred long before and had until then been overlooked.
Hence I conclude and find that Odom was unlawfully terminated.
E. Concluding findings as to the refusal to bargain
Admittedly Respondent disavowed its collective-bargaining contract with the Union
and thereafter, on October 1, 1964, signed individual contracts with its employee boat
operators. As found below, the contract with the Union (General Counsel's Exhibit
No. 5) is valid and enforceable. I also find that Respondent stopped making pay-
ments to the union welfare fund as required by the collective-bargaining contract.
Ordinarily a breach of contract may not be considered an unfair labor practice and
must be remedied by an action in another forum. Charles Dowd Box Co., Inc. v.
Courtney, 368 U.S. 502; United Telephone Company of the West and United Utilities,
Incorporated, 112 NLRB 779, 781. Cf. Westinghouse Employees v. Westinghouse,
348 U.S. 437, footnote 2 In my opinion the failure to continue the contributions to
the union welfare fund are controlled by this principle. Accordingly, I shall recom-
mend dismissal of this aspect of the complaint.
However when the breach of a contract amounts to a total refusal to recognize the
validity or binding effect of the contract then a refusal to bargain has occurred within
the meaning of the Act Smith v. Evening News Association, 371 U S. 195, 197. See
Teamsters v. Lucas Flour Co., 369 U.S. 95; Dowd Box Co. v. Courtney, 368 U S.
502. This is so because the rejection of the contract in effect amounts to a with-
drawal of union recognition, and thus undercuts the union.
Further, Section 8(d) of the Act requires specific notices of a mid-term modifica-
tion or termination of a contract. Smith's Van & Transport Company, Inc., et al.,
126 NLRB 1059, 1061. No such notices were given here.
Respondent strenuously contends that the contract is invalid because it was not
authorized by its board of directors, citing several Texas State court decisions to that
effect. But this issue is to be determined by Federal, and not State, law in order to
avoid the variations of the law of 50 different States. New England Lead Burning
Company, Inc., 133 NLRB 863, 866, footnote 2; Michigan Bakeries, Inc., 100 NLRB
658, 660, footnote 3; N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 122-123;
Henry V. Rabouin, d/b/a Conway's Express v. N.L.R.B., 195 F. 2d 906, 910 (C.A. 2).
Hence, in the interest of achieving uniformity, I have disregarded the State decisions
and statutes pressed by Respondent but instead have sought to effectuate the policies
of the Act.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my opinion a collective-bargaining contract is valid and binding upon a corpo-
rate party thereto when, prior to its execution, its terms are known to a majority of
the stockholders and directors, no objections to such terms are voiced or advanced
by that majority, and it is signed by the president of the corporation with the knowl-
edge and consent of such majority. Cf Huttig Sash and Door Company, 151 NLRB
470. Moreover Respondent ratified the contract by abiding by its terms, by making
contributions to the union welfare fund for a considerable period of time after its
execution, and by seeking modifications of the contract during its term.
In any event, I am of the opinion, and rule, that the Act imposes an obligation
upon Respondent to bargain collectively with the Union as a majority representative
of employees and, if an agreement is reached, to signify it by a written instrument
incorporating the terms of the understanding arrived at. This obligation cannot be
evaded, nor the legislative design defeated, by the failure or refusal of Respondent's
directors to instruct its president or other ranking officers to enter into bargaining
negotiations with the Union. Hence, even the oral agreement which the document
herein (General Counsel's Exhibit No. 5) reduced to writing is a valid contract; and
Respondent could have been ordered to sign a written contract fixing its terms if
Respondent had declined to sign such written contract. H. J. Heinz Company v.
N.L.R.B., 311 U.S. 511, 523-526.
Further, I find that the contract was originally for a term of 2 years ending Febru-
ary 28, 1964; that it was modified by mutual agreement of the parties at the request
of Respondent in July 1963 (General Counsel's Exhibits Nos. 10 and 11); that it
was renewed, with further modifications, on January 31, 1964, for a period expiring
on March 1, 1965; and that it was at all times mentioned in this paragraph binding
upon Respondent.
Respondent does not contest the Union's majority. Hence it was unlawful for it
to deal directly with the employees on October 1, 1964. It follows that such indi-
vidual dealings and the execution of contracts directly with the employees disclose
a refusal to bargain with the Union, and I so find. Chemrock Corporation, 151
NLRB 1074; Wonder State Manufacturing Company, 151 NLRB 904; N.L.R B.
v. North Western Publishing Company, 343 F. 2d 521 (C.A. 7). Manifestly the
contract with the employees covers matters which are subjects of compulsory bar-
gaining with the Union. ' And neither private convenience nor economic and business
exigencies justify such unlawful conduct. Wonder State Manufacturing Company,
supra.
General Counsel also contends that Respondent failed to bargain by not respond-
ing to the Union's letter (General Counsel's Exhibit No. 13) requesting a negotiating
meeting. I find that Respondent is still under a statutory duty to meet with the
Union at reasonable times for purposes of collective bargaining, and that this obliga-
tion has not been met in that the Union's request has been ignored. Hence I find
this too violates Section 8(a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices as set forth
in section III, above, occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act. Since Respondent's
repudiation of its collective-bargaining contract with the Union and Respondent's
entering into individual contracts with its employees has resulted in elimination of
overtime rates, it is manifest that Respondent has profited and is now reaping finan-
cial gain by its wrongdoing. In equity and good conscience a person who commits
unfair labor practices should not be unjustly enriched thereby. It is therefore just
and proper that Respondent (1) cancel its contract with the individual employees,
and (2) disgorge any profit proximately resulting from its failure to pay overtime
rates (Chemrock Corporation, 151 NLRB 1074) by paying to employees so
entitled the difference between the overtime rate and the rate actually received; and
that the collective-bargaining contract with the Union be revitalized and be declared
binding upon Respondent. It will be so recommended. Any amount of backpay
due thereby shall include interest thereon at 6 percent computed in the manner pre-
GEORGE E. LIGHT BOAT STORAGE, INC. 1221
scribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recom-
mended that Respondent preserve and, upon request, make available to the Board
or its agents, all pertinent records and data necessary to analyze and calculate the
amount, if any, of overtime pay due.
Having found that Respondent discriminated against Odom and Tischhauser with
respect to their tenure of employment, it will be recommended that the Company
offer each of them full and immediate reinstatement to his former position or one
substantially equivalent thereto, without prejudice to his seniority and other rights
and privileges, and make each of them whole for any loss of earnings suffered by
reason of the discrimination against him. In making them whole Respondent shall
pay to each a sum of money equal to that which he would have earned as wages from
the date of such discrimination to the date of reinstatement or a proper offer of rein-
statement, as the case may be, less his net earnings during such period. The backpay
is to be computed on a quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as
ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent Company preserve and, upon request,
make available to the Board or its agents, all pertinent records and data necessary
to analyze and calculate the amount, if any, of backpay due.
In my opinion Respondent's discharge of Odom and Tischhauser, its total disregard
of a valid collective-bargaining contract, and its unilateral dealing with employees
demonstrate a callous flouting of statutory restrictions which "go to the very heart
of the Act" as that phrase is used in N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532
(C A. 4). Hence it will be recommended that the Order issued safeguard employees
against infringement in any manner of the rights vouchsafed to them by Section 7
of the Act.
Upon the foregoing findings of fact, and upon the entire record in this case, I make
the following:
CONCLUSIONS OF LAW
1. Inland Boatmen's Union of the Seafarers' International Union of North Amer-
ica, Atlantic, Gulf, Lakes, and Inland Waters District, AFL-CIO, is a labor organiza-
tion within the meaning of Sections 2(5) and 8(a) of the Act.
2. Respondent George E. Light Boat Service , Inc., is an employer within the
meaning of Sections 2(2) and 8(a), and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. By (a) disavowing its collective-bargaining contract with said Union, (b) fail-
ing to answer said Union's request for bargaining negotiations , (c) dealing directly
and signing contracts with employees upon bargainable matters, and (d) granting
unilateral wage increases, Respondent has engaged in unfair labor practices as defined
in Section 8 (a) (5) and (1) of the Act
4 By threatening to discharge employees who adhered to, or engaged in activities
on behalf of, said Union, Respondent has engaged in unfair labor practices as defined
in Section 8 (a) (1) of the Act.
5 By discriminating in regard to the tenure of employment of John Odom and
Fred Tischhauser, thereby discouraging membership in the said Union, a labor
organization, Respondent has engaged in unfair labor practices as defined by Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. All employees employed on George E. Light Boat Storage, Inc., crewboats
operating out of Seabrook, Texas, but excluding office clerical employees, guards,
watchmen, and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective-bargaining within the meaning of Sections 8(a) (5) and 9 of
the Act.
8. Respondent has not committed any other unfair labor practices as alleged in
the complaint.
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 Respondent, George E. Light Boat
Storage, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any labor organization, by dis-
charging employees or otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of employment.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening to discharge employees who adhered to, or engaged in activities
on behalf of, said Union.
(c) Disavowing or repudiating its collective-bargaining contract with said Union.
(d) Dealing directly with employees' union bargainable matters, including sign-
ing individual employment contracts.
(e) Granting unilateral wage increases.
(f) Giving effect to or recognizing individual contracts of employment with
employees concerning bargainable matters, including the contracts with employees
signed on October 1, 1964.
(g) Failing to answer the Union's request to meet with it at reasonable times for
bargaining negotiations.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer John Odom and Fred Tischhauser each immediate and full reinstatement
to his former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and notify each of the above-named employees, if
presently serving in the Armed Forces of the United States, of his right to full rein-
statement 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 John Odom and Fred Tischhauser for any loss of pay each may
have suffered by reason of the discrimination against him, by payment of a sum of
money equal to the amount he would normally have earned as wages from the date
of his discharge to the date of Respondent's offer of reinstatement, in the manner
established by the Board in F W Woolworth Company, 90 NLRB 289, and with
interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716.
(c) Reactivate, acknowledge the validity of, and abide by the terms of the
collective-bargaining contract entered into by Respondent and the Union and effec-
tive on March 1, 1962, as modified by the parties since then and as the parties may
further modify the same, until such contract expires or is terminated.
(d) Cancel all individual contracts with employees.
(e) Upon request meet at reasonable times with said Union for the purpose of
engaging in collective bargaining upon bargainable subjects and, if an understanding
is reached, embody such understanding in a written signed agreement.
(f) Reimburse all its employee boat operators who have worked overtime during
the existence of the above-mentioned contract with the Union by paying each a sum
he would have earned as overtime wages pursuant to the terms of said contract less
any wages actually paid to him for such overtime work, with interest thereon as
prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
(g) 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 analyze the
amounts of backpay due employees Odom and Tischhauser and backpay for overtime
due any employees under the provisions of this Recommended Order.
(h) Post at its docks at Seabrook, Texas, and at Humble's 14 docks at Cedar Point,
Texas, if Humble is willing, copies of the attached notice marked "Appendix." 15
Copies of said notice, to be furnished by the Regional Director for Region 23, shall,
after being signed by a duly 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, including all places where notices to employees are
customarily displayed at Respondent's docks and those of Humble's docks available
14 The record shows that Respondent's boat operators often report to and leave work at
Cedar Point without going to Seabrook
15 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of it Trial Examiner" in the
notice. In the further event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court of Appeals, En-
forcing an Order" shall he substituted for the words "a Decision and Ordei" If the
notice is posted at Humble's docks at Cedar Point, there shall follow the words "all em-
ployees" the words "of George E. Light Boat Storage, Inc " in notices there posted.
GEORGE E. LIGHT BOAT STORAGE, IN C. 1223
to Respondent 's employees . Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced, or covered by any other material.
(I) Notify the Regional Director for Region 23, in writing , within 20 days from
the date of receipt of this Decision , what steps Respondent has taken to comply
herewith.'6
It is further recommended that the Board dismiss that portion of the complaint
seeking relief for Respondent 's failure to make contributions to the union welfare
fund and paragraph 7(g) of said complaint.
16 If 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, of the steps which 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 offer John Odom and Fred Tischhauser each immediate and full
reinstatement to his former or a substantially equivalent position , without preju-
dice to his seniority or other rights and privileges , and make each whole for any
loss of pay he may have suffered by reason of the discrimination against him.
WE WILL NOT discourage membership in or activities on behalf of Inland
Boatmen's Union of the Seafarers ' International Union of North America,
Atlantic , Gulf, Lakes , and Inland Waters District , AFL-CIO, or any other labor
organization , by discharging employees or otherwise discriminating in regard to
hire or tenure of employment or any term or condition of employment of any
of our employees.
WE WILL NOT disavow our collective-bargaining contract with the above-
named Union of March 1 , 1962, as mutually modified by the parties since then,
and we hereby declare that such contract is valid and in force until it expires or
is terminated.
WE WILL NOT threaten to discharge employees because they adhere to or
engage in activities on behalf of the above -named Union.
WE WILL NOT bargain with or deal directly with our employees as long as the
above-named Union continues as their certified collective -bargaining represent-
ative, and we will cancel individual contracts with employees.
WE WILL pay overtime rates as provided in our contract with the above-
named Union and will reimburse at such rates employees who have worked over-
time during the term of said contract but were paid at lower rates than those set
by the contract for overtime work.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their rights guaranteed in Section 7 of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above Union, or any other labor organization.
GEORGE E. LIGHT BOAT STORAGE, INC.,
Employe,.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify each of the above -named employees if presently serving in
the Armed Forces of the United States of his rights to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing 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, 6617
Federal Office Building, 515 Rusk Avenue , Houston, Texas , Telephone No. Capitol
8-0611, Extension 4271.