Socony Mobil Oil Co., Inc.

National Labor Relations Board - Board Decisions

Jul 2, 1965

153 N.L.R.B. 1244 (N.L.R.B. 1965)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT interrogate coercively our employees concerning the union
sentiment, activities, and voting intentions of themselves or of other employees,
or inform our employees that we will not have a union.
WE WILL NOT threaten employees with blacklisting or with the loss of future
employment through the union stigma.
WE WILL NOT warn employees that their advancement will stop or that they
are jeopardizing their futures because of their adherence to the Union.
WE WILL NOT promise or grant wage increases or other benefits to employees
as an inducement to withdraw from the Union or to cease their organizational
activities.
WE WILL NOT solicit employee assistance in preparing a petition to withdraw
from the Union or to withdraw the Union's representation petition.
WE WILL NOT assign new employees to the appropriate unit for the purpose
of dissipating the Union's majority representation in said unit.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist said Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No.
891, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
WE WILL bargain, upon request, with the Union as the exclusive representa-
tive of our employees in the appropriate unit noted below with respect to wages,
hours, and other terms and conditions of employment.
The appropriate unit is:
All office clericals at our Jackson, Mississippi, terminal, excluding watch-
men, guards, and supervisors as defined in the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
DIXIE HIGHWAY EXPRESS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 6396, if they have any question concerning this notice or
compliance with its provisions.
Socony Mobil Oil Company, Inc. and Socony Vacuum Tanker
Men's Association . Case No. 2-CA-9906. July 2, 1965
DECISION AND ORDER
On February 1, 1965, Trial Examiner William Seagle issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in -unfair labor practices as alleged in the complaint
.and recommending that the complaint be dismissed in its entirety, as
-set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Trial
`Examiner's Decision and supporting briefs. The Respondent filed a
-brief, in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
'45i NLRB No. 97.
SOCONY MOBIL OIL COMPANY, INC. 1245
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 warranting a new hear-
ing 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 finds merit in the exceptions.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The complaint in substance alleged that the Respondent violated
Section 8(a) (1) and (3) of the Act by suspending employee Haleb-
lian in March 1964 because of his activity on behalf of the Union,
which was the recognized collective-bargaining representative of the
Respondent's unlicensed employees on its vessels. More particularly,
the alleged union activity consisted of the filing by Haleblian, as a
union representative, of an accusation with the United States Coast
Guard that the Respondent was "engaged in the unsafe operation of
one of its vessels, the SS Mobil Lube.
At the hearing the evidence clearly established, and the Respondent
in effect conceded, that it suspended Haleblian for union activity as
alleged in the complaint. But the Respondent contended that it com-
mitted no unfair labor practice because, as stated in its suspension
letter of March 20 to Haleblian, the accusation made by him as a union
representative to the Coast Guard was "wrongful" and was processed
in an "improper manner," and also because Haleblian's behavior dur-
ing the Coast Guard investigation on March 18 constituted "mis-
conduct."
The Trial Examiner found merit only in the final portion of this
contention. But he nevertheless recommended dismissal of the entire
complaint because, in his opinion, Haleblian was suspended solely
because of insolent and insubordinate behavior during the Coast Guard
investigation aboard ship on March 18, and there was "not really a
scintilla of evidence" connecting the suspension with the Respondent's
"great temptation to retaliate against an officer of the Association."
Haleblian's accusation to the Coast Guard and the manner in which
it was processed were not "really" causes of the suspension, in the Trial
Examiner's view.
We do not accept these unsupported opinions and views of the Trial
Examiner.
Even on the basis relied on by the Trial Examiner-that the
Respondent suspended Haleblian solely for insolent and insubordinate
behavior toward his superiors in the course of a protected concerted
'The Union 's request for oral argument is hereby denied as the record , including the
briefs, adequately presents the issues and the positions of the parties.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity-existing Board precedent, cited in the General Counsel's
brief to the Trial Examiner, requires a contrary result. The brief cited
the Bettcher Manufacturing case,2 where during bargaining negotia-
tions the company's president offered to show its books to prove that
the company was losing money, and an employee on the bargaining
committee retorted that the books could be "juggled" or "manipu-
lated." The company thereupon discharged the employee for this
retort, which "insulted" the company's president because he in effect
was being called a "crook and a liar." The Board nevertheless found
that the discharge violated Section 8(a) (1) and (3) and made the
following observations which are generally relevant to employee
engagement in concerted activity :
If an employer were free to discharge an individual employee
because he resented a statement made by that employee during a
bargaining conference, either one of two undesirable results would
follow : collective bargaining would cease to be between equals (an
employee having no parallel method of retaliation), or employ-
ees would hesitate ever to participate personally in bargaining
negotiations, leaving such matters entirely to their representatives.
We do not hold, of course, that an employee may never be law-
fully discharged because of what he says or does in the course of a
bargaining conference. A line exists beyond which an employee
may not with impunity go, but that line must be drawn "between
cases where employees engaged in concerted activities exceed the
bounds of lawful conduct in `a moment of animal exuberance' .. .
or in a manner not activated by improper motives, and those fla-
grant cases in which the misconduct is so violent or of such serious
character as to render the employee unfit for further service." We
find that Savoca's conduct, however regrettable, falls into the
former rather than the latter category, and was not so extreme as
to furnish justification for his discharge for engaging in concerted
activities .3
It is true that long-established maritime practice may require certain
amenities of a seaman toward his superiors, even when the vessel is
safely in port. But these requirements of conduct must be balanced
against the statutory right of employees to be protected in their exer-
cise of concerted activity involving the terms and conditions of their
employment. Striking that balance in this case, we are satisfied that
2 The Bettcher Manufacturing Corporation , 76 NLRB 526.
8Ibid, p 527. See also Electric Motors and Specialties , Inc., 149 NLRB 131. The
Trial Examiner did state that Haleblian 's letter to the Coast Guard contained so many
false accusations that it was "difficult to believe that it was written in good faith." We
do not regard this as a definite finding that the letter was written with malicious purpose.
In any event , the evidence would not warrant such a finding, and particularly so since the
Trial Examiner precluded the General Counsel from showing the truth of the accusations.
SOCONY MOBIL OIL COMPANY, INC. 1247
Haleblian's conduct did not pass the bounds of lawful protected activ-
ity under the standards enunciated in the Betteher Manufacturing
case. The Trial Examiner did not find that Haleblian's so-called mis-
conduct was flagrant, violent, serious, or extreme as to render him unfit
for further service, and the Respondent filed no exceptions. In any
event, we are satisfied that the evidence would warrant no such find-
ing. Moreover, we note that Haleblian was aboard ship on March 18
as a union representative, not, as the Trial Examiner found, as a "sea-
man" (he was currently on leave). This fact eliminates any possibility
that Haleblian's conduct could be considered mutinous, and makes
completely inapposite the only citation appearing in the entire Trial
Examiner's Decision, that of the Southern Steamship case in
footnote 13.
Although this case can thus be disposed of, we do not wish to leave
the impression that we adopt the finding of the Trial Examiner that
Haleblian was suspended solely for his alleged misconduct. Rather,
the Respondent's letter shows that Haleblian was suspended primarily
for different reasons, which clearly stem from the exercise of a pro-
tected concerted activity : processing a complaint before an appropriate
United States agency having the responsibility of enforcing safety
requirements affecting the Respondent's seamen, whom the Union was
charged with representing. Again, the General Counsel's brief offered
the Trial Examiner appropriate citations to the correct controlling
principles. In Top-Notch Manufacturing Company, Inc., 145 NLRB
429, the Board approved findings, at page 432, that :
Any discharge predicated in whole or in part on the effort of an
employee, representing himself and one or more other employees,
to present such grievances, absent unusual circumstances not pres-
ent here, would be a discharge for protected union and concerted
activities and therefore a violation of the Act. The merit or lack
of merit in the grievance that would be presented, if permitted, is
immaterial.
And in Mushroom Transportation, Co., Inc., 142 NLRB 1150, the
Board approved findings, at pages 1157-1158, that:
... "In order to supply a basis for inferring discrimination, it is
necessary to show that one reason for the discharge is that the
employee was engaging in protected concerted activity. It need
not be the only reason but it is sufficient if it is a substantial reason
or motivating reason, despite the fact that other reasons may
exist." ... [Footnote 23.]
... The fact that there might have been no merit to the complaints
raised by Keeler is, in itself, of no material consequence. For,
the right of employees to press complaints does not depend on
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either the employer's or the Board's appraisal of the merit of the
employees' complaint. The "wisdom or unwisdom of the men,
their justification or lack of it" . . . is irrelevant to the question of
whether employees are engaging in protected concerted activity.
And it does not appear that the complaints raised by Keeler-
whether they be his own or those of others whom he urged to seek
redress-were raised in bad faith, with knowledge that they were
groundless or with an intent to harass the employer'
Upon considerations of all the matters set forth above, we find that
Haleblian's complaint to the Coast Guard and his conduct in process-
ing it constituted protected concerted activity, and that the Respond-
ent, regardless of its asserted belief 'as to the impropriety of
Haleblian's conduct, violated Section 8(a) (1) and (3) of the Act by
suspending Haleblian for engaging in such activity.5
T11E REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices violative of Section 8 (a) (3) and (1) of the Act, we shall recom-
mend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act, including making
Haleblian whole for any loss of earnings he may have suffered because
of the discrimination against him by payment to him of a sum of
money equal to the amount of wages he would have earned during his
suspension, less his net earnings during such period, together with
interest thereon at the rate of 6 percent per annum. The loss of pay
and interest thereon shall be computed in accordance with the respec-
tive formulas and methods prescribed by the Board in F. W. Wool-
wortli Company, 90 NLRB 289, and Isis Plumbing cfi Heating Co., 138
NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Socony Mobil Oil Company, Inc., New York, New York,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Socony Vacuum Tanker Men's
Association, or in any other labor organization, by discriminating
against employees in regard to their hire or tenure of employment or
any other term or condition of employment.
(b) Taking reprisal action against Garabed Newton Haleblian, or
any other employee, for engaging in lawful union activity.
' See also Walls Manufacturing Company, Inc., 137 NLRB 1317, 1319.
6 See N:L R B. v. Burnup and Sims, Inc, 379 U S. 21.
SOCONY MOBIL OIL COMPANY, INC. 1249
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self organiza-
tion, to form labor organizations, to join or assist, the above-named
Union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as author-
ized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which it is found will effec-
tuate the purposes of the Act :
(a) Make Garabed Newton Haleblian whole for any loss of pay he
may have suffered by reason of the discrimination against him, in the
manner and in accordance with the methods referred to in the section
above, entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records relevant or necessary to a determination of the amount
of backpay due under the terms of this Order.
(c) Post on its vessels copies of the attached notice marked "Appen-
dix." e Copies of said notice, to be furnished by the Regional Director
for Region 2, shall, after being duly signed by a representative of the
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 its unlicensed employees
are customarliy posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply herewith.
9 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "a Decision and Order" the words "a Decree of the
United States Court of Appeals, Enforcing an Order".
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discriminate against any of our employees in
regard to their hire or tenure of employment, or any other term
796-02 7-6 6-v of 15 3- 8 0
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment, to discourage membership in
Socony Vacuum Tanker Men's Association, or in any other labor
organization.
WE WILL NOT take reprisal action against Garabed Newton
Haleblian, or any other employee, for engaging in lawful union
activity.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce employees in the exercise of any of their rights
protected by Section 7 of the Act.
WE wiLL make whole Garabed Newton Haleblian for loss of pay
suffered as a result of his suspension.
SOCONY MOBIL OIL COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered , defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza
1-5500, if they have any question concerning this notice or compliance
with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Trial Examiner William Seagle heard this case at New York, New York, on Sep-
tember 23, 24, and 25 , 1964, on a charge filed on March 23 , 1964 , and a complaint
issued on July 20, 1964, alleging that the Respondent had violated Section 8 (a) (1)
and (3 ) of the Act, by suspending one of its seamen, Garabed Newton Haleblian, on
March 21, 1964, for a period of 10 days because , as a union representative, he had
filed a complaint with the U.S. Coast Guard respecting alleged violations of Federal
law by the Respondent.
Upon the record made at the hearing and the posthearing briefs filed by all parties
in interest , and in view of my observation of the demeanor of the witnesses , I hereby
make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent , Socony Mobil Oil Company, Inc. (sometimes referred to as
Socony), has been at all material times a New York corporation, maintaining its
principal office and place of business at 150 East 42d Street , New York, New York,
and other places of business in the States of Texas, New Jersey, and Connecticut,
where it has been engaged in the manufacture , sale, and distribution of oil , gasoline,
and related products. As part of its business , Socony maintains a fleet of oil tankers
operating between Gulf Coast ports and ports on the eastern seaboard of the
United States.
During the past year, which is representative of its annual operations , Socony, in
the course and conduct of its operations , manufactured , sold, and distributed, at its
various places of business , products valued in excess of $50,000, of which products
valued in excess of this amount were shipped from its places of business in interstate
commerce directly to States of the United States other than the States in which it
is located and also in foreign commerce to foreign countries.
SOCONY MOBIL OIL COMPANY, INC. 1251
II. THE LABOR ORGANIZATION INVOLVED
Socony Vacuum Tanker Men's Association (hereinafter referred to as the Associa-
tion or as the Union) is a labor organization representing the unlicensed personnel
on Socony's vessels. The affairs of the Association are administered by a board of
governors consisting of six members.' At any given time two of the members of
the board of governors are on shore leave for the purpose of taking care of the
affairs of the Association?
The relationship between Socony and the Association is governed by the terms
of a collective-bargaining agreement. The last contract between Socony and the
Association provided that it was to run from March 1, 1962, to February 29, 1964,
and from year to year thereafter unless prior notice of termination or modification
had been given. Such notice had been duly given by the Association and the agree-
ment was due to expire on February 29, 1964. The parties then being still engaged
in negotiations for a new contract, the term of the existing contract was extended to
March 14, 1964.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The suspension of Haleblian arose from a situation that would be described by a
landlubber as a work assignment dispute.
Throughout the year 1963, Socony was seeking to persuade the U.S. Coast
Guard to permit it to reduce the manning requirements on its tankers so that
it could more successfully compete with foreign-owned vessels. It expected to do
this by the installation of automatic monitoring equipment which would minimize
the necessity for constant watchstanding by members of the crews of the vessels.
Socony seems to have met with little encouragement, however, from the officials of
the Coast Guard, who took the position that 46 U.S.C. 673 required that the unlicensed
crew members listed on a ship's certificate stand watch in certain specified areas of
the ship which they could not leave to perform other duties .3
One of the Socony vessels is named the SS Mobil Lube. Toward the end of
July 1963, the Respondent sent a letter to the Coast Guard requesting that the
certificate of the Mobil Lube be amended to eliminate the requirement of three
oilers, in view of the installation of monitoring equipment, which would make it
sufficient to have one man in the engineroom and another in the fireroom except when
the vessel was operating in restricted waters. After a Coast Guard officer had
boarded the Mobil Lube and observed the monitoring equipment in actual operation,
Socony's request to eliminate the three oilers was denied. Subsequently-in two
almost identical letters dated January 7 and 16, 1964-Socony changed its tack and
requested that the certificate of the Mobil Lube be amended to substitute three
unlicensed junior engineers for the three oilers, and, after a short delay, this request
was granted. The amendment to the Mobil Lube certificate, which is dated Febru-
ary 14, 1964, deleted the three oilers and added three unlicensed junior engineers but
included the stipulation: "All other particulars remain the same."
In the meantime, since the current contract was about to expire, negotiations
between representatives of Socony and the board of governors of the Association for
a new contract had commenced on February 3, 1964. Socony was represented by a
negotiating team that was headed by Arthur E. Fischer, its manager of gulf-east
coast operations, and included J. Edward Winiarski, an assistant in its employee
relations department. As the current contract covered the classifications of oilers
and unlicensed junior engineers,4 their status and duties became involved in the
'At the time of the events involved in the present proceeding these were Francis Avery,
Garabed Newton Haleblian , Robert Wolfe, Thomas Reynolds , Richard Granger, and
Nick Lessa.
a In March 1964, the two members of the board of governors who were on shore leave
were, apparently , Haleblian and Reynolds . The members of the Association on shore
leave received their regular pay from the Respondent
3 46 U S C 673 provides that "licensed officers and sailors , coal passers , firemen , oilers,
and water tenders shall , while at sea , be divided into at least three watches, which shall be
kept on duty successively for the performance of ordinary work incident to the sailing
and management of the vessel . . . Such members of the crew are known as "watch-
standers ." However, other crew members may be carried who may perform maintenance
work in any area of a ship . Such members of the crew are known as dayworkers.
b The contract provided that an unlicensed junior engineer when at sea "shall be assigned
to watches and he shall be required to assist in the general repair, upkeep and reasonable
installation of machinery and equipment as directed by the engineer in charge."
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations to some extent and the Association's representatives were informed by
Fischer that the Coast Guard had granted the amendment to the Mobil Lube certifi-
cate, substituting the three unlicensed junior engineers for the three oilers. The.
Association's representatives thereupon became suspicious about the Company's plans,
and contacted the Coast Guard in an effort to secure more information and to bolster
their opposition to the carrying out of these plans. They finally obtained from
Captain W. C. Foster of the Coast Guard a letter dated March 2, 1964, in which
the attorney for the Association was informed that "junior engineers are watch-
standers the same as oilers were."
The mounting controversy between Socony and the Association was exacerbated
by events that occurred on the Mobil Lube itself while the negotiations for a new
contract were proceeding. The Mobil Lube was scheduled to depart on February 29,
1964, on a voyage from Beaumont, Texas, to Quincy, Massachusetts . The day before
the vessel's departure, the three oilers on the vessel-their names were Donald
Sanhueza, John Ritter, and Glenn Stehle-were called to the captain's quarters and
were told by George Farnsworth, port engineer for Socony, that they were being
upgraded to unlicensed junior engineers, and that they would be expected to perform
minor maintenance work. Being assigned during the voyage to do such maintenance
work away from the ship's operating platform, which, they considered, imperiled the
safety of the vessel, the three exoilers-now unlicensed junior engineers-spoke to
their delegate on board, and he sent a telegram to the Association, asking that the
vessel be met on its arrival at Quincy to handle their grievance. The telegram was
received by Haleblian who was in the New York office of the Association at the time
that it arrived, and he conveyed the contents of the telegram to Thomas Reynolds
and Francis Avery, two other members of the board of governors of the Association.
When the Mobil Lube docked at Quincy on March 5, Sanhueza, Ritter, and Stehle
were met by Reynolds and Avery, who, after speaking to the three men, sought to
adjust their grievances with George Farnsworth, the Respondent's port engineer,
who had also met the vessel. Receiving no satisfaction from Farnsworth, Reynolds
and Avery contacted the Association's counsel, who in turn suggested they contact
the Coast Guard. However, when they contacted the Coast Guard office in Provi-
dence, that office suggested they contact the Boston office, and, when they did so,
they were referred to the New York office.
Proceeding to New York, Reynolds and Avery met with the full board of gover-
nors, which contacted the Association's attorneys, and it was decided that a complaint
should be made to the Coast Guard concerning the operation of the Mobil Lube
during the voyage from Beaumont to Quincy. When Commander Stewart was con-
tacted at the New York headquarters of the Coast Guard, he suggested that the
complaint be put in writing. A letter was then prepared, and, after it had been signed
by Haleblian on behalf of the board of governors, it was sent to the Coast Guard
under date of March 10, 1964. The letter was signed by Haleblian, since as the
member of the board then on standby he was for all practical purposes chairman of
the board, as he conceded. There is no direct evidence concerning the authorship
of the letter but the most reasonable inference would seem to be that it was com-
posed by Haleblian with the advice and assistance of the Association's attorneys,
for the other members of the board of governors were not present at the time the
letter was prepared, and they did not ratify the letter until about 2 weeks later, as
Haleblian himself testified.
In the March 10 letter of complaint to the Coast Guard the Respondent was in
general charged with operating the Mobil Lube during the voyage from Beaumont
to Quincy in an unsafe manner and in violation of 46 U.S.C. 673. Specifically, it
was charged in the letter that Stehle and Sanhueza, two of the junior engineers, had
been sent aloft to work on the kingpost during their entire watches; that the operating
platform of the vessel had been left unattended 80 percent of the time; that on one
occasion the pumpman had called the engineroom three times within an hour to
get air on deck but that no one had answered the telephone, and that the pumpman
s I do not credit Haleblian's testimony, which is denied by Fischer, that the latter told
the Association's representatives that the unlicensed junior engineers would be dayworkers,
either then or after the contract terminated Haleblian was only converting what he was
told into his own extreme view Although Socony wished to limit the duties of unlicensed
junior engineers as watchstanders, there is nothing to show that they intended to make
them dayworkers in the proper sense of that term. Quite apart from whatever the Coast
Guard regulations may have required, this would not have been possible as long as the
current contract was in effect.
SOCONY MOBIL OIL COMPANY, INC. 1253
.had had to go below to put air on deck himself; and finally, that the hazards of the
voyage had been increased by virtue of the fact "there was fog along the Coast during
the entire trip of the Mobil Lube." [Emphasis supplied.]
Between March 12 and 14, there were negotiating sessions attended by representa-
tives of Socony and the Association, and in the course of these sessions the latter
informed the former that they had filed a complaint with the Coast Guard concerning
the operation of the Mobil Lube on its voyage from Beaumont to Quincy. The
Association's representatives did not furnish the Company's representatives, how-
ever, with a copy of the letter of March 10 to the Coast Guard, nor did they do
.more than indicate that there would be a hearing on the complaint by the Coast
Guard the following week.
In testifying about these negotiating sessions, Haleblian exaggerated both the
extent to which the watchstander issue was discussed, and the nature of the reaction
of Fischer and the other Socony representatives to the news that a complaint had
been filed with the Coast Guard concerning the voyage of the Mobil Lube from
Beaumont to Quincy. Haleblian described the company representatives as very
angry at the news but I do not credit Haleblian's testimony, which was very much
shaken on cross-examination, and which, moreover, is inconsistent with Fischer's
.testimony on this subject. Nevertheless, the company representatives had good
reason to be angry, since by filing the complaint with the Coast Guard the Associa-
tion's representatives had ignored the elaborate grievance procedure of the contract
.between the Respondent and the Association.
On March 18, Commander Stewart of the Coast Guard came aboard the Mobil
Lube to investigate the complaint contained in the letter of March 10. The full
.board of governors of the Association, accompanied by Joshua Rosenberg, one of
its attorneys, came aboard the Mobil Lube that day and talked to the three unlicensed
junior engineers in the crew's messroom. They then waited to be summoned by
Commander Stewart. When the latter had come aboard the Mobil Lube, however,
he had been met on deck by Captain Lloyd Papich, the Respondent's fleet port cap-
tain whose headquarters are at Beaumont, Texas. Captain Papich introduced him-
self to Commander Stewait and invited the latter to lunch in the officers' messroom.
Encountering Captain Derwent Thomas, the master of the vessel, in the messroom,
,Captain Papich introduced him to Commander Stewart. After lunch the three
officers repaired to Captain Thomas' office, which was located amidships and was
approached from a narrow passageway on which doors opened not only to the cap-
tain's office, but to the captain's bedroom, which could also be reached from an
inner vestibule. When the three officers entered Captain Thomas' office, they found
,there J. Edward Winiarski, the Socony employee relations assistant, who had just
preceded them there. The four men sat around a table in Captain Thomas' office,
and Commander Stewart produced the letter of March 10 signed by Haleblian, and
it was read by the others who were present. When they reached the point where it
was stated in the letter that there had been fog during "the entire trip," Captain
Thomas produced his logbook, and, as they were examining it, Haleblian appeared
at the open doorway to Captain Thomas' offices Without knocking on the door, and
without addressing himself either to Captain Thomas or Captain Papich,7 he inter-
rupted their discussion with Commander Stewart by advising the latter that he had
the crew awaiting him in the messroom. Thereupon, Captain Papich told Haleblian
that Commander Stewart was aboard on ship's business, that the hearing would be
held in Captain Thomas' quarters, and that he was to return to the crew's messroom
and await further instructions. Haleblian then left and returned to the crew's
messroom.
After his departure, the company representatives asked Commander Stewart how
he wished to conduct the investigation, and the latter replied that he would like to
interview the witnesses one at a time, and that he would like to speak first to Stehle,
one of the unlicensed junior engineers. It was also decided that Commander Stewart
should conduct the investigation from Captain Thomas' bedroom.8 Captain Thomas
then left his office to summon Stehle. He went up on deck to tell the mate to get
e Apparently, the union representatives had been waiting in the crew's messroom for a
considerable period of time 'and were becoming apprehensive that Commander Stewart
might leave the vessel without talking to,them Thereupon, Rosenberg had suggested that
Haleblian go amidships and let Commander Stewart know that they were-there
7As port captain, Captain Papich outranked, Captain Thomas while'his ship-was in port.
Protocol required that Haleblian address himself 'to Captain Papich or, Captain, -Thomas
and request permission to speak to Commander Stewart.,
s Both Captain Thomas' bedroom and his-office were small rooms (about 10 by-14 feet) but
the bedroom was better insulateyl from, tije passageway and afforded more privacy. - _ ;p
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stehle but when he saw Richard Granger, an able-bodied seaman, on deck, he
instructed the latter to go to Stehle and tell the latter that he was wanted in the
captain's quarters in connection with the inquiry. Captain Thomas then returned to
his office.
In a little while, almost the whole union delegation, if not all of them, appeared at
the door in the narrow passageway to Captain Thomas' office. At the head of the
group was Haleblian; behind him were Stehle and Rosenberg; and the rest brought
up the rear. This second time Haleblian also did not knock or address himself to
either Captain Thomas or Captain Papich. Indeed, this second time, without waiting
for an invitation, he boldly barged into Captain Thomas' office, followed by Stehle
and by Rosenberg, who was at the threshold. Commander Stewart was about to go
into Captain Thomas' bedroom when Rosenberg asked the commander whether he
could go in with Stehle, and the commander agreed, Rosenberg also secured permis-
sion from the commander to have Reynolds accompany him into the bedroom on
the ground that Reynolds was the engineroom delegate and that he needed the latter
to advise him on technical matters. As Stehle, Rosenberg, and Reynolds headed
for the captain's bedroom, Haleblian attempted to follow them in but his way was
barred by Captain Papich who told Haleblian that they were involved in a Coast
Guard and company matter. Thereupon, Haleblian shouted at Captain Papich in
evident anger and annoyance. The witnesses differed as to what precisely Halebhan
said. Accordingly to Captain Papich, Haleblian said: "I do not have to ask you
people for anything." According to Winiarski, Haleblian said- "You cannot tell
me what to do." According to Haleblian himself, he told Captain Papich• "Captain,
is Commander Stewart running this investigation or are you?" At this point, Wini-
arski, who was seated on a settee in Captain Thomas' office, rose and walked over to
Haleblian and told him that Captain Papich was in charge and that his presence as
a union officer in the consideration of a company-Coast Guard matter was not
required. Haleblian then invited Winiarski to step out with him into the passage-
way, and, since Haleblian seemed to have lost his self-control and was shouting in
a very loud voice, Winiarski thought that Haleblian intended to attack him. In this
Winiarski was mistaken, for in the passageway, he and Haleblian exchanged only
more heated words rather than blows.
Haleblian himself gave a rather different version of his conduct on March 18
aboard the Mobil Lube, but I do not credit his version of the events where it is incon-
sistent with the testimony of the Respondent's witnesses. Indeed, the testimony of
the latter is corroborated to a large extent by that of two of the witnesses who were
called to testify on behalf of the General Counsel; namely, Reynolds and Granger.
Haleblian's version of the events of March 18 seems to have been designed to put
his conduct in as favorable a light as possible but it is obviously full of fictional
elements. These elements are that (1) during his first visit amidships Captain
Thomas was not in his office but at the end of the passageway where he encountered
him, and was told by him to proceed to his office; (2) when he arrived at the door
to Captain Thomas' office, Commander Stewart saw him and nodded to him; (3)
Captain Papich thereupon told him to return to the crew's messroom, and to bring
back the union delegation with him to Captain Thomas' office; (4) when he did
return only three or four members of the board of governors were with him; (5) he
did not actually enter Captain Thomas' office either the first or the second time; and
(6) when he appeared with the union delegation at Captain Thomas' office his group
was asked to whom Commander Stewart would speak first.
Immediately after Commander Stewart had completed his investigation, Captain
Papich telephoned his superior, Captain Ramsey, who was headquartered at Beau-
mont, and after relating to him what had happened during the investigation that day,
recommended to Captain Ramsey that Haleblian be terminated .9 That same day
Captain Ramsey related his conversation with Captain Papich to Fischer, Socony's
manager of gulf-east coast operations . Within the next few days Fischer also
received reports from Captain Thomas and Winiarski indicating the falsity of most
of the charges contained in the letter of March 10.10 As a result of these reports,
Fischer was convinced of the falsity of the charges that the pumpman had been
unable to reach the engineroom despite repeated attempts; that there was fog during
the entire trip of the Mobil Lube; and that on the expiration of the contract between
Socony and the Association the Company intended to convert the unlicensed junior
9 Although Captain Papich had authority to take such action himself , he thought it
desirable to review the matter with Captain Ramsey in view of Haleblian' s membership
on the board of governors of the Association.
10 He had previously also received a report from Farnsworth concerning his investiga-
tion of the grievance of the three unlicensed junior engineers.
SOCONY MOBIL OIL COMPANY, INC. 1255
engineers into dayworkers. Consequently, under date of March 20, 1964, Fischer
wrote to Haleblian as follows:
Because of your wrongful accusation regarding the seaworthiness of the
S. S. Mobil Lube; and the disruption of this vessel by the improper manner in
which you processed the accusation, and due to your misconduct on the SS Mobil
Lube March 18, 1964, at Port Socony, you are hereby suspended effective
March 21, 1964, without pay pending final disposition of your case.
In the course of looking further into Haleblian's case, Fischer examined his per-
sonnel file and found that in 1959, 1960, and 1962 he had been given two verbal
warnings and one written warning because of what the Respondent considered mis-
conduct on his part in connection with the discharge of his duties as a union delegate.
Haleblian had never filed grievances, moreover, in connection with the issuance of
these warnings. Taking final action in Haleblian's case, Fischer decided to suspend
him without pay for a period of 10 days, commencing March 21 and ending March 30,
1964, and notified Haleblian of his suspension in a letter under the latter date.ii
A disproportionate amount of the record in the present case is taken up by the
watchstander issue. It seems to be the assumption of counsel for the General Counsel
that if the position of the Respondent in the controversy that resulted therefrom can
be shown to be wrong and wholly unjustified, then it must follow as night the day
that Haleblian was suspended because he took up the cudgels for the Association in
the letter of March 10 to the Coast Guard.
This reasoning is fallacious. There is no need to decide the merits of the con-
troversy, which can be safely left to the Coast Guard. It has some relevance, to be
sure, as background. It may be assumed that the Respondent had a considerable
stake in having its proposals approved by the Coast Guard, and that it would not
welcome any development that tended to interfere with the accomplishment of its
objectives. With so strong a motive, the officers of the Respondent would have great
temptation to retaliate against an officer of the Association. The complaint of
March 10 to the Coast Guard, and the conduct of Haleblian aboard the Mobil Lube
on March 18 presented them with the opportunity. However, even the existence of
motive and opportunity is not sufficient to establish the commission of an unlawful
or wrongful act. There must still be some evidence connecting the perpetrator with
the act, and showing that the act was in fact unlawful or wrongful. Of this there is
not really a scintilla of evidence. The basic difficulty in the present case is that a
second motive was added to the original motive by the events of March 18, and
if the Respondent acted in response to this second motive, the action was not unlaw-
ful. Where there is a choice between two motives, one unlawful and the other
lawful, existence of the lawful motive must be ruled out. This is not possible, how-
ever, in the present case.
There is no doubt that the Haleblian letter of March 10 did contain accusations
that were false. Indeed the letter contained so many false accusations that it is
difficult to believe that it was written in good faith. In particular, the accusation
that the Mobil Lube had encountered fog during its entire trip was not only false
but grossly false, for there had been fog for only about 6 hours during the voyage,
and the crew had been on standby during the period of the fog. This is established
not only by the testimony of Captain Thomas but by the testimony of two of the
unlicensed junior engineers on the Mobil Lube, Sanhueza and Ritter, who were called
as witnesses by counsel for the General Counsel. Since the junior engineers talked
to at least two members of the Association's board of governors, namely Reynolds
and Avery, about the operation of the Mobil Lube during the voyage,12 it is difficult
to perceive, moreover, how any member of the board of governors could have
remained ignorant of the true facts concerning the fog. Furthermore, the accusation
that the Mobil Lube had been operated in fog during the entire voyage was coupled
with other accusations that the vessel was being operated in a hazardous manner.
Such accusations were bound to reflect on the reputation of the master of the vessel,
Captain Thomas. Indeed, Captain Thomas, who apparently regarded Haleblian as
responsible for the false statement concerning the fog, wrote a letter to the Respond-
ent a few days after the events of March 18 in which he stated that he would refuse
to command any ship to which Haleblian might be assigned.
However, Haleblian was not disciplined really because of the accusations concern-
ing the operation of the Mobil Lube. These formed merely the occasion for the
investigation conducted by Commander Stewart on March 18 during which Haleblian
misconducted himself. They thus constituted only part of the res gestae, so to
n The letter is in evidence as General Counsel's Exhibit No. 10.
12 Sanhueza affirmatively testified that he told Reynolds about the fog.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speak, of the events of that day. Haleblian was disciplined because of his misconduct
during the investigation , and there can be little doubt that his behavior constituted
misconduct.
It is really astounding that counsel for the General Counsel should take the posi-
tion that Haleblian was suspended for trivial reasons, such as failing to knock on the
door of Captain Thomas' office. Since the Captain's door was open, it wound seem
to a landlubber at least that the failure to knock was not a grievous offense which
would justify his suspension . But Halebhan was guilty of far more serious forms
of misbehavior. He was clearly both insolent and insubordinate. During his first
visit to Captain Thomas' quarters he not only failed to knock but to announce him-
self; he completely ignored both Captain Thomas and Captain Papich and inter-
rupted the conversation between them and Commander Stewart to address himself
directly to the latter without any invitation on his part; he in effect suggested to
Commander Stewart that he repair to the crew's messroom and conduct the investiga-
tion from there. During his second trip, Haleblian returned with his whole delega-
tion to Captain Thomas' quarters , although he had been instructed that if any of
them were wanted he would be sent for; he then led the march of the whole delega-
tion to the door of Captain Thomas' quarters, and boldly pushed right into Captain
Thomas' quarters in defiance of instructions, and without any invitation to enter
from either Captain Thomas or Captain Papich, or indeed without any encourage-
ment even from the members of his own delegation; he behaved in this manner,
moreover, although there was no need for barging in, since not only Rosenberg but
Reynolds were admitted to the captain's quarters to present the Association' s case;
and he not only acted insubordinately but spoke to the company representatives in a
loud and offensive manner. Basically, what Haleblian was engaged in doing was
attempting to take over the conduct of the investigation and run it to suit himself.
There can be no better indication that Haleblian himself was aware that he had
misconducted himself during the investigation than that he refrained from telling the
truth about what he had actually done. There can also be no better indication of
the unmeritorious nature of the General Counsel's case than some of the contentions
that are made to support it. One of these contentions is that Haleblian was not
acting in his capacity as an employee during the events that led to his suspension.
It is true that he was on shore leave to attend to the Association's affairs but he was
nevertheless still an employee of the Respondent, and receiving his pay from the
Respondent as one of its employees. The fact that he was on shore leave did not
excuse his insolence and insubordination. Even more incomprehensible contentions
are that the disciplining of Haleblian was discriminatory because Stehle was not
disciplined for entering the captain's quarters without permission, and that Captain
Papich necessarily condoned Haleblian's conduct because he did not order Haleblian
to leave the ship at once and did not suspend him immediately. The first of these
two contentions overlooks the obvious fact that Captain Papich had sent for Stehle
and instructed him to report to his quarters, and the second overlooks the no less
obvious fact that Captain Papich felt it necessary to consult with his superiors
because Haleblian was a member of the Association's board of governors.
I assume that Haleblian was engaged in a concerted activity not only in connec-
tion with the making of the complaint of March 10 but also in attending the investiga-
tion of the complaint aboard the Mobil Lube on March 18. An employee engaged
in a concerted activity loses the protection of the Act, however, when he engages in
misconduct, and he may be disciplined for such misconduct. Haleblian would have
forfeited the protection of the Act if he had been a factory hand and engaged in the
type of conduct of which he was guilty. As a seaman aboard a ship he must be
held to an even stricter standard of conduct, even though he was then on shore leave 13
I find that he was disciplined not because he had signed the complaint of March 10
to the Coast Guard but because he misbehaved on board the Mobil Lube on March 18
during the investigation of this complaint. It certainly cannot be said, moreover,
that his punishment was disproportionate to his offense.
CONCLUSIONS OF LAW
1. Socony Mobil Oil Company, Inc., a New York corporation, is an employer
engaged in commerce, or in an industry affecting commerce, within the meaning of
Section 2(6) and (7) of the Act
2. Socony Vacuum Tanker Men's Association is a labor organization within the
meaning of Section 2(5) of the Act.
12 Compare Southern Steamship Company, 23 NLRB 26, enfd. 120 F. 2d 505 (C.A. 3),
reversed in part 316 U.S. 31_, • .
EAST TENNESSEE PACKING COMPANY 1257
3. By suspending Garabed Newton Haleblian without pay for a period of 10 days
from March 21 to 30, 1964, inclusive, because of his misconduct on March 18, 1964,
aboard the SS Mobil Lube, the Respondent did not violate Section 8 (a)(1) or (3)
of the Act, and the Respondent did not, therefore, commit any unfair labor practice
affecting commerce within the meaning of these provisions of the Act.
RECOMMENDED ORDER
In view of my findings of fact and conclusions of law, I recommend that an order
be entered dismissing the complaint.
East Tennessee Packing Company and Independent Union of
Meat Cutters and Packinghouse Employees , Local No. 1110,
United Packinghouse , Food and Allied Workers, AFL-CIO and
Independent Union of Meat Cutters and Packinghouse Employ-
ees (unaffiliated ) and its President, Thomas Murphy, Party of
Interest
Independent Union of Meat Cutters and Packinghouse Employees
(unaffiliated ) and its President , Thomas Murphy and Independ-
ent Union of Meat Cutters and Packinghouse Employees, Local
No. 1110, United Packinghouse, Food and Allied Workers, AFL-
CIO and East Tennessee Packing Company, Party of Interest.
Cases Nos. 10-CA-5953 and 10-CB-1517. July 2, 1965
DECISION AND ORDER
On May 6,1965, Trial Examiner David London issued his Decision in
the above-entitled proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor practices and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. There-
after, each Respondent, the Changing Party, and the General Counsel
filed exceptions to the Decision and supporting briefs.
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 Brown 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 Decision,
the exceptions, the briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,.as
amended, the National Labor Relations Board hereby adopts as its
153 NLRB No. 61.