Alaska Ship & Drydock

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 874 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874
Alaska Ship and Drydock, Inc. and Piledrivers,
Bridge, Dock Builders, and Divers Local Union
2520, affiliated with United Brotherhood of
Carpenters and Joiners of America. Cases 19–
CA–27490, 19–CA–27627, and 19–CA–27700
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On March 14, 2003, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2

1 There are no exceptions to the judge’s recommended dismissal of
the allegation that the Respondent discharged David Harvey in viola-
tion of Sec. 8(a)(3) and (1) of the Act. The Respondent has excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent’s no-distribution
policy violated Sec. 8(a)(1) of the Act, we note that the General Coun-
sel did not challenge the lawfulness of the policy that prohibits the
posting of unauthorized written materials on the Respondent’s premises
at any time.
In adopting the judge’s finding that the maintenance of the Respon-
dent’s wage discussion policy violated Sec. 8(a)(1) of the Act, we find,
contrary to the judge, that the Respondent did in fact proffer a business
justification for its wage discussion policy. The Respondent asserted
that, because the employees are not aware that the hourly wage rates
are based on different skill levels, the wage discussion policy is de-
signed to prevent “hurt feelings” that would result should the employ-
ees become aware that they are being paid different hourly wage rates.
We conclude, however, that the proffered business justification is insuf-
ficient to warrant reversal of the judge’s finding of a violation.
2 In adopting the judge’s conclusion that the Respondent’s wage dis-
cussion policy violated Sec. 8(a)(1) of the Act, Chairman Battista and
Member Schaumber note that the wage discussion policy is not simply
a confidentiality policy, but expressly bans the discussion of wages.
Cf. Lafayette Park Hotel, 326 NLRB 824, 826 (1998). They also note
that, from late 2000 to 2001, the Respondent’s work force swelled from
no more than 50 to more than 200 employees, and thus a significant
number of employees were brought under the provisions in the hand-
book for the first time during the period covered by the complaint.
They further note that, although the employee handbook did not specify
a form of discipline for failure to adhere to the wage discussion policy,
the Respondent violated Sec. 8(a)(1) when Supervisor Carney told
employee Mike Hamilton that he would be in “big trouble” if he talked
about wages.
and to adopt the recommended Order as modified3 and
set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that the
Respondent, Alaska Ship and Drydock, Inc., Ketchikan,
Alaska, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified and set
forth in full below.
1. Cease and desist from
(a) Maintaining an employee handbook provision that
interferes with employee discussion of their pay rates or
salaries.
(b) Maintaining an employee handbook provision that
requires employees to obtain management authorization
to distribute literature on its premises at any time.
Threatening to discharge employees who possess or
sign union authorization cards.
(c) Threatening employees for discussing their wages
among themselves.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Expunge from its employee handbook those provi-
sions that interfere with employee discussion of their pay
rates or salaries and that require employees to obtain
management authorization to distribute literature on its
premises at any time.
(b) Within 14 days after service by the Region, post at
its shipyard and drydock in Ketchikan, Alaska, copies of
the attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
3 We have modified the recommended Order and notice to accu-
rately reflect the violations found.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
340 NLRB No. 95
ALASKA SHIP & DRYDOCK 875
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 13, 2001.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain an employee handbook pro-
vision that interferes with employee discussion of their
pay rates or salaries.
WE WILL NOT maintain an employee handbook pro-
vision that requires employees to obtain management
authorization to distribute literature on its premises at
any time.
WE WILL NOT threaten to discharge employees who
possess or sign union authorization cards.
WE WILL NOT threaten employees for discussing
their wages amongst themselves.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
WE WILL expunge those provisions from our em-
ployee handbook that interferes with employees discuss-
ing their pay rates or salaries, and that requires employ-
ees to obtain management authorization to distribute lit-
erature on our premises at any time.

ALASKA SHIP AND DRYDOCK, INC.

Irene Botero, Esq. (brief by John H. Fawley, Atty.), for the
General Counsel.
Bruce Bishoff, Esq., of Bend, Oregon, for the Respondent.
Daniel Boone, Esq., of Oakland, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. In
this consolidated proceeding, the General Counsel alleges that
Alaska Ship and Drydock, Inc. (Respondent, Company, or
ASD) violated Section 8(a)(1) and (3) of the National Labor
Relations Act (Act). Piledrivers, Bridge, Dock Builders, and
Divers Local Union 2520, affiliated with United Brotherhood
of Carpenters and Joiners of America (Charging Party or Local
2520) initiated this proceeding by filing unfair labor practice
charges on April 13 Case 19–CA–27490, July 12 Case 19–CA–
27627, and August 28, 2001, Case 19–CA–27700.1 The com-
plaint issued by the Regional Director on September 30, 2002,
alleges that ASD violated Section 8(a)(1) of the Act: (1) by
maintaining employee handbook rules barring employee dis-
cussions about their pay rates and requiring management ap-
proval for the distribution of written materials on Respondent’s
premises; (2) by a supervisor’s threats concerning employee
solicitation of union authorization cards and employee wage
rate discussions. Additionally, the complaint alleges that Re-
spondent violated Section 8(a)(1) and (3) by permanently lay-
ing off employee David Harvey. Respondent filed a timely
answer denying that it engaged in the unfair labor practices
alleged.2
I heard this case at Ketchikan, Alaska, on November 5 and 6,
2002. Having now carefully considered the entire record, the
demeanor of the witnesses,3 and the briefs filed by the General
Counsel, Charging Party, and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Alaska corporation engaged in the marine
and vessel repair business on a nonretail basis, maintains an
office and place of business in Ketchikan, Alaska. In the 12-
month period preceding the issuance of the complaint, Respon-
dent’s inflow of goods and services, either directly or indi-
rectly, exceeded $50,000. The Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act. Accordingly, I find that it would effectuate the purposes
of the Act for the Board to exercise its statutory jurisdiction to
resolve this labor dispute.

1 Most of the relevant events occurred in 2001. Unless shown oth-
erwise, all further dates refer to that year.
2 Respondent does not challenge that Regional Director’s action in
setting aside a prior settlement agreement in this matter.
3 The findings reflect my credibility resolutions based on various
factors summarized by Judge Medina in U.S. v. Foster, 9 F.R.D. 367,
388–390 (1949). I do not credit testimony inconsistent with my find-
ings. Additional discussion of some credibility issues appears below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Randy Johnson owns ASD and serves as the corporate presi-
dent. He also owns three other related enterprises, Tyler
Rental, an equipment rental company; Ty-Matt, Inc., a com-
mercial construction firm; and Alaska Personnel Incorporated
(API). API provides personnel services for the Johnson-owned
firms. This dispute only involves ASD.
ASD employs approximately 35 to 50 employees to perform
the routine marine and vessel repair work ordinarily on hand.
However, in the period from late 2000 through most of 200l,
ASD started work on its contracts to refurbish the MV Colum-
bia and the MV Matanuska, two large ferries in the Alaska
Marine Highway System (AMHS) fleet, and to build a local
passenger ferry, the Oral Freeman, the smallest of the three
projects.4 This shipyard work caused ASD’s work force to
swell to more than 200 employees at times. Respondent pre-
ferred to employ workers from the Ketchikan area in order to
avoid the higher labor costs associated with out-of-town work-
ers who received per diem and lodging reimbursements.
Throughout the relevant period, Respondent maintained and
distributed a handbook to all employees that details various
company policies. Its policy concerning pay and pay periods
includes the following provision: “An employee’s pay rate or
salary is confidential and should only be discussed with their
immediate supervisor.” (GC Exh. 17 p. 4.) The handbook con-
tains no explicit language describing any form of discipline for
failing to adhere to the pay confidentiality rule. The handbook
also contains certain “Rules of Conduct.” Failure to adhere to
these rules subjects an employee to discipline up to and includ-
ing discharge. One part of rule 17 bars the “[u]nauthorized dis-
tribution or posting of written material on the premises at any
time.” (GC Exh. 17 p. 31, No. 17.)
Because the Columbia and the Matanuska are a part of the
State-owned AMHS fleet and because the State and Federal
government funded a substantial portion of the Oral Freeman
project, the Alaska Department of Transportation (ADOT)
required ASD to file periodic reports reflecting the wage rates
paid various worker classifications used on these projects.
ADOT, in turn, provides public access to these wage reports.
Of further significance here, the U.S. Coast Guard maintains
and enforces rules requiring the testing and certification of
skilled workers performing certain tasks on passenger vessels
such as these three.
David Harvey, an experienced millwright who is the alleged
discriminatee, obtained employment with Ty-Matt in August
2000, following an interview by Lloyd Gossman, API’s human
resources director.5 Gossman entered a “COIW” classification

4 Ferries in the AMHS fleet transport passengers and vehicles among
various Alaska ports and south to Bellingham, Washington. The Oral
Freeman, owned by the Ketchikan Gateway Borough, transports pas-
sengers and motor vehicles back and forth from the city of Ketchikan,
located on the west edge of Revillagigelo Island, and the Ketchikan
International Airport located across the Tongass Narrows on the eastern
edge of Gravina Island.
5 Harvey previously worked for Ty-Matt in the period from 1994
into 1996 as a millwright.
on Ty-Matt’s records to signify his skills as a carpenter, an
operator, an ironworker, and a welder. While at Ty-Matt, Har-
vey worked on a veneer plant-remodeling project performed
jointly by Ty-Matt and another contractor. In early November,
Harvey received a transfer to a steel crew at ASD where he
began working on the Matanuska.6 The steel crew consisted of
employees classified as welders, pipefitters, and firewatch per-
sonnel. ASD records classified Harvey as a welder, a designa-
tion most likely made by Carl Smith, ASD’s production man-
ager, with input from his subordinates. As work on the Mata-
nuska began to wind down in January, ASD transferred Harvey
to the Columbia project. During his ASD tenure, Harvey came
to be well liked and regarded as a good worker by the ASD
management.
Regardless of classification, ASD managers and supervisors
frequently assign employees to jobs requiring the use of other
skills. Plainly, Harvey performed very little welding while he
worked at ASD. By his own account, Harvey’s work at ASD
consisted mostly of installing insulation, cutting holes for elec-
trical wires, and “tacking” inserts. At the time of his layoff,
Harvey was doing installation work in the women’s restrooms.
Harvey estimated that after his transfer to the Columbia in
January, he spent about 3 days engaged in welding work of all
kinds, including tack-up and actual welding, during his remain-
ing tenure at ASD.7
Harvey’s lack of the required USCG-recognized welding certi-
fication unquestionably explains the overwhelming predomi-
nance of his nonwelding work assignments. Harvey acknowl-
edged that he had never before received a formal welding certifi-
cation on any of the jobs where he worked and that ASD supervi-
sors told him he would have to be certified in order to weld on
the ships. In June, Larry Jones, ASD’s welding inspector and a
temporary supervisor through the relevant period, provided Har-
vey with an opportunity to become a certified welder but he felt
Harvey’s test sample turned out so substandard that he did not
bother to send it to ASD’s independent testing laboratory for
certification.8 According to Jones, USCG regulations require
that certified welders must perform all welding on marine ves-
sels. He claimed that ASD adhered strictly to this requirement
during the Matanuska, Columbia, and Oral Freeman projects.
In January 2001, Piledrivers Local 2520 undertook to organ-
ize the ASD workers. Mike Harvey, a supervisor, admitted that
union talk was commonplace around the shipyard through the
spring and summer. Union handbills appeared throughout the
shipyard and even on the ships under construction. Harvey
became an ardent supporter of union representation and played
6 Ty-Matt and ASD regularly interchange employees. The practice
is so common that the Johnson-owned companies require employees
sign a written acknowledgement of the interchange practice and the
practice of coordinating employee benefits to avoid any misunderstand-
ing about benefit duplication.
7 The term “tack-up” refers to temporary spot welds holding two or
more pieces of steel in place before the permanent weld occurs. Usu-
ally a tack-up work involves only rudimentary welding skills.
8 As to Harvey’s welding test, I credit Jones’ testimony over Har-
vey’s. Jones impressed me generally with his straightforward de-
meanor and I found his to be the more convincing account concerning
Harvey’s welding test.
ALASKA SHIP & DRYDOCK 877
an active and open part in the organizing effort. He attended
virtually all of the Union’s meetings and assisted Jim Strass-
burg, Local 2520’s organizer, to distribute union campaign
literature before and after work as employees entered and left
the parking lot. On one occasion while attending a union meet-
ing, Harvey stood in a window at the union hall and observed
Larry Jones, an ASD welding inspector drive by and look to-
ward him. Harvey and other employees, including Mike Ham-
ilton, solicited employees to sign union cards in and around the
employee parking lot. Harvey estimated that he successfully
solicited at least four authorization cards. Using reports that
Strassburg obtained from ADOT and provided to him, Hamil-
ton spoke to a number of employees in an effort to confirm the
ADOT wage reports ASD had filed. In certain instances, Ham-
ilton learned of variances between the reports and the actual
wages paid, and presumably sought to make the most of that for
organizing purposes. One union supporter recalled that Harvey
and about a dozen or so other employees wore union insignia
on their hardhats around the shipyard.
The organizing drive generated considerable controversy
among the employees and sparked considerable opposition
from ASD. Randy Johnson conducted two captive audience
meetings with the employees in late March and early April. At
the first meeting, Johnson spoke for about 40 minutes to ex-
press ASD’s desire to remain unorganized, to caution employ-
ees against signing union cards lest they forfeit their right to
negotiate with the company, and to suggest that the Company’s
bidding flexibility would be hampered by union representation.
Gossman also conducted a meeting with some ASD employees
in May or June to address complaints the employees registered
about the wage rates of the temporary employees from outside
the Ketchikan area. At the start of this meeting, Gossman con-
fronted Harvey with an angry tone by asking if he had a prob-
lem with the out-of-state workers. Another welder, Bill Saun-
ders, joined the issue and engaged Gossman in a heated dia-
logue over the out-of-staters. Toward the end of the meeting,
Gossman again repeated Johnson’s assertion that signing a
union card could result in the loss of the individual’s right to
negotiate with management.
ASD’s campaign against union representation also included a
series of bulletin board postings containing messages opposing
unionization. One very bold “Notice to Employees” warned em-
ployees that they risked forfeiting to union agents, some who
might be “total strangers,” the right to act on their behalf on all
job-related matters. It also argued that signing an authorization
card “may mean a pledge to pay dues, fines, initiation fees and to
participate in picketing and strikes.” This notice concluded by
urging employees to refrain from signing an authorization card so
that ASD would remain an “open shop.”
Todd Chapin worked as a laborer at ASD from December
2000 until May 2001, when he quit his employment there. On
the morning of April 12, Chapin went to the toolroom to obtain
a tool that he needed. A couple of days before, Chapin unsuc-
cessfully solicited the toolroom custodian, Cheryl Elfstrom, to
sign a Local 2520 authorization card. When Chapin entered the
toolroom on April 12, Mike Carney, the machinist supervisor
who oversaw the toolroom operations, happened to be working
behind the counter carrying on a conversation with Elfstrom. A
welder named Gypsy stood behind Chapin filling out a tool
requisition form. After making eye contact with Chapin, Car-
ney stated in a loud voice “if anybody was caught signing . . .
having these authorization cards [they] would be immediately
. . . fired.”9
Mike Hamilton worked at ASD as a laborer for about 2-1/2
years preceding his layoff in May 2001. In April 2001, Carney
confronted Hamilton in ASD’s central yard about discussing
wages with other employees. At the time, Hamilton was re-
turning to work from a break in the lunchroom located on the
floor above the machine shop. During that break, Hamilton had
spoken to an unidentified new employee concerning his wage
rate. That employee left the lunchroom just ahead of Hamilton.
Hamilton went to the locker room to collect some supplies and
the employee entered the toolroom.
As Hamilton started out across the central yard toward his
work location on the Columbia, Carney called out to him.
When Hamilton stopped and turned, Carney said to him,
“What’s this I hear about you talking about wages?” Hamilton
shrugged but did not respond. Carney repeated the same ques-
tion and Hamilton nodded affirmatively. Carney then chastised
Hamilton by telling him sternly, “You’re going to be in big
trouble.” Carney next told Hamilton that there was to be abso-
lutely no discussion of wages and repeated the “big trouble”
threat.10
On June 20, Local 2520 filed an election petition. Subse-
quently, ASD and Local 2520 entered into a consent election
agreement that provided for a Board-conducted representation
election on July 26. The election was blocked by the charge in
this case.
Around the same time, ASD’s work force started to contract
significantly primarily because work on the Columbia was
nearly completed. Planning for the work force that would re-
main after the completion of the Columbia project began in
early June. (See R. Exh. 1.)11 Of the 81 employees ASD hired
in the period from April through August, 69 no longer worked
there at the time of Harvey’s layoff of July 12. Of the remain-
ing 12, 4 left or were terminated within a week after Harvey’s
layoff. It hired 5 of the 12 following Harvey’s layoff but all
those left the Company by the end of August. Only three con-

9 Carney denied that he ever made such a remark or that this incident
ever occurred. I do not credit Carney on this point.
10 Carney admits that he confronted Hamilton after a toolroom em-
ployee made repeated claims that Hamilton bothered her by “talking to
her about wages and how much more money she could make if the
union came into the shipyard.” Carney asserted that he made reports
about Hamilton to his boss and the shipyard general manager before
confronting Hamilton personally. This happened after Hamilton pur-
portedly bothered the toolroom employee again that morning. Carney
asserts that he told Hamilton: “[D]o not talk to my employees about
union wages or anything but work because I have a certain employee
that has complained about you and I don’t want you harassing her.”
Because Respondent failed to corroborate the harassment claim sug-
gested by Carney’s account, I do not credit his story.
11 This exhibit reflects that planning. Obviously, this planning
document did not turn out to be a precise reduction-in-force timetable
as ASD retained some individuals, including Harvey, beyond July 2.
However, the exhibit shows the crew selected for the Oral Freeman
project.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
tinued to work for ASD. Altogether, 51 employees left ASD or
were terminated in June and 43 more left or were terminated in
July. In the week before Harvey’s layoff, three others classed
as welders left Respondent’s employ. Two others classed as
welders were let go the same day as Harvey and two more
welders were let go within the next 2 days. (See GC Exh. 3.)12
On July 12, Harvey and a pipefitter were working on the
women’s showers aboard the Columbia. Harvey estimated that
about 2 more days remained on that assignment. Steve Dunham,
a leadman, approached about 9 a.m. and told the two men to
“get a pallet and get your tools gathered up . . . you need to get
them off the boat,” words that amounted to their layoff notice.
Dunham completed the shower work himself. After gathering
their tools, the two men again spoke with Dunham on the Co-
lumbia’s car deck. At this time, Dunham told Harvey that he
tried without success to keep him on to work on the “camp
barge” then in the drydock. Later, at Supervisor Jones’ office,
Harvey asked what was going on. Jones told Harvey that there
was a reduction in force and that he should see Gossman after
turning in his tools. Gossman asked Harvey for his address and
told to keep in touch, as he was one of his key people. As he
left, Harvey asked Gossman what he thought about the Union.
Gossman replied that not many wanted a union. Gossman then
pointed at the Oral Freeman project visible out his window and
said “the only ones who wanted a union were the steel workers
in there, right there.” Harvey has never been recalled to work at
a Johnson-owned company.
Respondent’s records reflect that it hired eight employees in
June. That group of hires included two laborers, four painters,
a sandblaster/painter, and a welder. (See GC Exh. 3.) The
welder hired in June, Cecil Smith, left the day before Harvey’s
layoff. The same record also reflects that Respondent hired two
other welders, Steve Hinson and Dean Griffith II, in July after
Harvey’s layoff. In fact, both of these welders previously
worked on the Columbia. ASD hired Hinson on March 29,
2001. He worked until June 28 when he, in effect, obtained a
leave of absence to return home in the contiguous States be-
cause he needed to attend to some personal problems. Hinson
returned to ASD on July 12, but was let go on July 23 because
he failed to show up for work after July 19. ASD originally
hired Griffith on April 19, 2001, and let him go on June 30.
Griffith returned on July 18 and worked until August 31 when
he voluntarily left to return to his home in Oregon. Both
Hinson and Griffith were certified welders and pipefitters.
Gossman credibly denied that either Hinson or Griffith returned
to ASD to replace Harvey.
B. Further Findings and Conclusions
Section 8(a)(1) prohibits employers from interfering with,
restraining, or coercing employees for exercising their Section
7 rights. Section 7, in effect, gives employees the right to en-
gage in union or other concerted activities “for the purpose of
collective bargaining or other mutual aid or protection.” Sec-
tion 8(a)(3) prohibits employers from discriminating in regard

12 This exhibit shows all ASD employees from March through Au-
gust together with their hire and employment termination dates. For
purposes of this exhibit, employment termination may refer to a volun-
tary quit, a layoff, or a discharge.
to an employee’s “tenure of employment . . . to encourage or
discourage membership in any labor organization.”
The Wage Discussion Rule
In the absence of a business justification, an employer vio-
lates the Act by the maintenance of a rule that merely requests
employees to refrain from discussing their wages with other
employees. Radisson Plaza Minneapolis, 307 NLRB 94 (1992).
Such rules, the Board asserts, “constitutes a clear restraint on
the employees’ Section 7 right to engage in concerted activities
for mutual aid and protection concerning an undeniably signifi-
cant term of employment.” Id. citing Heck’s, Inc., 293 NLRB
1111, 1119 (1989). Respondent claims only that its handbook
rule contains no enforcement mechanism. It advanced no busi-
ness justification for the rule. Even so, the Act’s protection of
employee wage discussions presumably would be subordinate
to any alleged business justification only rarely where, as here,
a public wage-disclosure requirement exists. Accordingly, I
conclude that Respondent’s wage discussion rule violates Sec-
tion 8(a)(1), as alleged.
The Distribution Rule
A rule requiring employees to secure their employer’s per-
mission or authorization to engage in protected solicitation or
distribution activity at the employer’s premises on the employ-
ees’ own time and in nonwork areas is unlawful. Brunswick
Corp., 282 NLRB 794 (1987), and cases cited therein. More-
over, the mere existence of such a rule tends to interfere with
and restrain employees in the exercise of their statutory rights
even in the absence of employer enforcement. Id. at 795, citing
Schnadig Corp., 265 NLRB 147, 157 (1982). Here, ASD’s
handbook rule barred the distribution at anytime without man-
agement’s prior authorization. For this reason, I conclude that
Respondent’s distribution rule violates Section 8(a)(1) as al-
leged.
The Conduct of Supervisor Carney
Having rejected Carney’s account of his discussion with
Hamilton about speaking to a toolroom custodian regarding her
wages, I find that his remark that Hamilton would be in “big
trouble” for discussing wages with another employee would
have a strong tendency to coerce Hamilton’s exercise of Sec-
tion 7 rights. Waco, Inc., 273 NLRB 746 (1984). Similarly,
Carney’s loud claim in the toolroom with employees present
about discharging anyone caught possessing or signing a union
authorization card would also have a strong tendency to coerce
the employees’ exercise of Section 7 rights. Baron Honda-
Pontiac, 316 NLRB 611, 619 (1995). Both remarks amount to
nothing more than ham-handed threats that interfere with pro-
tected employee activity. Accordingly, I conclude this conduct
by Carney violated Section 8(a)(1) as alleged.
Harvey’s Layoff
In mixed motive discrimination cases, the Board applies a
causation test first adopted in Wright Line, 251 NLRB 1083
(1980), and approved by the Supreme Court in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). Following
the Supreme Court’s clarification in Office of Workers’ Com-
pensation Programs v. Greenwich Collieries, 512 U.S. 267
(1994), the Board, in Manno Electric, 321 NLRB at 280 fn. 12,
ALASKA SHIP & DRYDOCK 879
explained that its Wright Line causation test requires the Gen-
eral Counsel to first “persuade that antiunion sentiment was a
substantial or motivating factor in the challenged employer
decision.” Typically, the elements of the General Counsel’s
case include: 1) showing that the discharged employee engaged
in some protected activity; (2) proving that the employer knew
about the employee’s protected activity; and (3) establishing
the employer’s hostility toward the employee’s activity. Best
Plumbing Supply, 310 NLRB 143 (1993). Although not con-
clusive, the timing of an adverse action may be significant in
discrimination cases. Equitable Resources, 307 NLRB 730,
731 (1992).
If the General Counsel establishes a prima facie case, the
burden of persuasion shifts to the employer to show that the
same adverse action would have been taken even in the absence
of the employee’s protected activity. Best Plumbing Supply,
supra. To meet this burden “an employer cannot simply present
a legitimate reason for its action but must persuade by a pre-
ponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.”
Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
I have concluded that the General Counsel’s case concerning
Harvey lacks a persuasive quality. Even assuming the presence
of a prima facie case, I conclude that a preponderance of the
credible evidence fails to establish a causal connection between
Harvey’s union activity and his layoff. Harvey’s layoff oc-
curred in the midst of a general reduction in force near the time
when ASD completed a major project and well after Harvey
began to openly engage in union solicitation around the ASD
facility. As his layoff lacked any extraordinary characteristics
(it was neither among the first nor among the last), I find Gen-
eral Counsel failed to prove ASD acted with an unlawful moti-
vation.
Even though work remained on the Oral Freeman at the time
of Harvey’s layoff, the overwhelming evidence establishes that
the size of Respondent’s total work force shrank considerably
in June and July at the conclusion of the Columbia project. I
reject the General Counsel’s argument that the timing of Har-
vey’s layoff close to the filing of the petition supports an infer-
ence of unlawful motivation. Respondent likely knew about
Harvey’s strong union sympathies months before the filing of
the petition and did little, if anything, to signify its displeasure
with his activities.13 Because ASD simultaneously laid off
numerous other workers and did not replace others who left
voluntarily around that same time, the General Counsel’s effort
to link Harvey’s layoff to the filing of the petition amounts to a
flawed construct that ignores too many other events at the ship-
yard during that period. The magnitude of Respondent’s down-
sizing strongly favors an inference that economic considera-
tions motivated Harvey’s layoff.
The perception that welders Hinson and Griffith replaced
Harvey lacks solid foundation. Both worked on the Columbia

13 Gossman’s assertion that he knew nothing of Harvey’s union ac-
tivities until he read about it in the local newspaper lacks credibility
particularly where other supervisors testified about the pervasiveness of
the union literature around the premises and continuous employee
discussions of unionization.
and took brief leaves to attend to personal matters. As certified
welders, these two workers would have had greater assignment
flexibility than Harvey. Absent more, no basis exists to con-
clude that ASD designed their return to replace Harvey or any
of the four or five other welders (whose union sympathies are
not known) laid off with Harvey. Even if it might be possible
to view these two as replacements, it would be virtually impos-
sible to determine whether they replaced Harvey as opposed to
any of the other welders laid off with him. Put simply, no basis
exists to establish or even infer that ASD pegged the return of
Hinson or Griffith specifically to take Harvey’s place or that
Respondent shortchanged its skill pool by Harvey’s layoff.
Harvey’s layoff occurred in close conjunction with the depar-
ture of more than 20 other workers following a steady stream of
layoffs from mid-June onward. Nothing indicates a subsequent
increase in the amount of available work ever occurred; on the
contrary, the amount of work available and the size of Respon-
dent’s crew continued to diminish periodically following Har-
vey’s layoff.
In addition, the General Counsel’s case lacks the type of
supporting statements before, at the time of, or afterward be-
traying a discriminatory motive for Harvey’s layoff. Although
Respondent plainly and emphatically opposed unionization, it
quickly agreed to an election after the Union filed a representa-
tion petition. Moreover, the unlawful conduct noted above
occurred substantially before Harvey’s layoff and cannot be
correlated with any of Harvey’s protected activities. Hence,
Respondent’s 8(a)(1) conduct adds very little support for a
conclusion that it acted with a discriminatory motive when
laying off Harvey.
Both the General Counsel and the Charging Party accuse the
Respondent of offering “shifting and unreliable reasons” for
Harvey’s layoff. They argue that Gossman’s assertion that
Harvey’s layoff resulted from his lack of an appropriate weld-
ing certificate contradicts Jones’ that it resulted from a lack of
fitting work. I do not view these assertions at all contradictory.
Instead, they would appear generally compatible in that a weld-
ing certificate may well have enhanced Harvey’s retention
chances.
The General Counsel charges that Supervisor Jones treated
Harvey in a disparate manner by not scheduling him for another
welding test after 30 days as was typical. However, because
Harvey’s first test opportunity did not occur until June, I find
this claim without merit. At best, Harvey’s next opportunity
for testing would have occurred virtually at the time as his lay-
off.14 In fact, by providing Harvey with an opportunity to en-
hance his credentials when employment opportunities at ASD
began to shrink, it is possible to infer that Jones, at least, did
what he could to improve Harvey’s chances to continue with
the company.
14 The General Counsel also seems suspicious of the fact that Jones
failed to submit Harvey’s test welds to the certification laboratory. The
General Counsel’s argument confuses Jones’ supervisory judgment
with his technical qualifications at the time. Jones acknowledged that
he had no authority to certify a test at that time but, clearly, as an ex-
perienced welder serving in a supervisory role he knew what would and
what would not pass a certification test.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
As I am unable to conclude that a preponderance of the evi-
dence establishes that Harvey’s union activity constituted a
substantial or motivating factor for his layoff, I recommend
dismissal of the 8(a)(3) allegation pertaining to him.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section
2(2) of the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 2520 is a labor organization within the meaning of
Section 2(5) of the Act.
3. By maintaining handbook rules designed to bar employees
from discussing their pay rate or salary with anyone other than
their immediate supervisor, and to bar the unauthorized distri-
bution of written material on ASD’s premises at any time; by
supervisor Carney’s remark that an employee would be in “big
trouble” for discussing wages with another employee; and by
supervisor Carney’s threat to employees about discharging
anyone caught possessing or signing a union authorization card,
the Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) of the Act.
4. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, my recommended order will require it to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. My recommended order
requires Respondent to forthwith expunge the provisions in its
handbook that I have found unlawful and to post the notice
attached hereto as the Appendix so employees will know the
outcome of this matter.
[Recommended Order omitted from publication.]