American Ship Building Co.

National Labor Relations Board - Board Decisions

Jan 23, 1979

240 N.L.R.B. 1 (N.L.R.B. 1979)

AMERICAN SHIP BUILDING COMPANY I
American Ship Building Company and International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, Local Lodge
No. 358, AFL-CIO and Craig Keiffer, John L.
Dougan, James W. Henry, and Gene Alldaffer.
Cases 8-CA-10396, 8-CA-10905, 8-CA-10369, 8-
CA-10788, 8-CA-10788-2, and 8-CA-11010
January 23, 1979
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. AND TRUESDALE
On June 13, 1978, Administrative Law Judge Rich-
ard L. Denison issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, except
as modified,2 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, American Ship Building
Company, Lorain, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found
be, and they hereby are, dismissed.
IThe General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that tbe resolutions are incorrect. Standard Dry Wall Products. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1
951). We have carefully
examined the record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge's finding that Respondent
violated Sec. 8(a)(l) and (5) by unilaterally changing its absenteeism rule
and reprimanding employee Steven L. Laws for excessive absenteeism.
However, we find it unnecessary to pass upon the Administrative Law
Judge's comments regarding the statement made by Respondent's personnel
manager concerning Respondent's refusal to retract an unexcused absence
for a date on which Laws appeared at a National Labor Relations Board
hearing.
240 NLRB No. 15
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
consolidated proceeding was heard on January 13 and Sep-
tember 19, 20, and 21, 1977, at Lorain, Ohio. The charges
in Cases 8CA-10369 and 8-CA-11010 were filed on Au-
gust 13, 1976, and May 12, 1977, respectively. The com-
plaints in those cases allege that the Respondent dis-
charged Craig Keiffer on August 12, 1976, and Gene All-
daffer on January 10, 1977, in violation of Section 8(a)(1)
and (3) of the Act because of their membership in and
activities on behalf of the International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers,
and Helpers. Local Lodge No. 358, AFL-CIO.' The com-
plaint in Case 8CA-11010 also alleges as a violation of
Section 8(a)(1) that on January 10, 1977. Foreman Thomas
Boyd threatened an employee with discharge because he
requested permission to speak with his union steward. The
charges in Cases 8-CA-10788-1 and 10788-2 were filed on
February 3 and 4, 1977. In addition to alleging that Fore-
man Thomas Boyd interrogated and threatened employees
on January 14, 1977, because they were engaged and/or
appeared to be engaged in union and/or protected concert-
ed activities, the consolidated complaint, issued March 24,
1977. alleges that the Respondent discharged John L.
Dougan and James W. Henry on February 3 and 4, 1977,
respectively, in violation of Section 8(a)(1) and (4) of the
Act, because of their "attendance as a witness" at the
opening session of the hearing in this matter on January
13, 1977. The charges in Cases 8-CA-10396 and 8-CA-
10905 were filed on August 26, 1976, and March 30, 1977,
respectively. The complaints in those cases, as amended at
the hearing, allege that "the Respondent, by its following
actions has engaged in a course of conduct constituting
bad-faith bargaining, including, but not limited to, arbi-
trary, restrictive, obstructive and similar actions having for
its real objective the avoidance of meaningful negotiations
with the Unions, the ultimate frustration of the grievance
procedure, and the discouragement of employees from en-
gaging in union and/or other protected concerted activities
for the purpose of collective bargaining or other mutual aid
or protection." 2 The complaints then proceed to allege the
following as violations of Section 8(a)(1) and (5), which are
in turn cumulatively relied upon to support the General
Counsel's course of conduct theory:
Case 8-CA-10396
A. On or about May 15, 1976, Foreman Dominic Lener,
unilaterally, and without prior notification or discussion
i Hereafter referred to as the Union.
2 At the hearing, following the granting of the General Counsel's motion
to amend the complaints, counsel for the General Counsel stated, in answer
to the Administrative Law Judge's question concerning whether the phrase
"including. but not limited to" was intended to encompass other conduct
not alleged in the complaint, that the conduct enumerated in the complaints
was the only conduct the General Counsel was alleging as unfair labor
practices. This position was not altered throughout the hearing. and no
further amendments were offered.
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Union refused to allow an employee (James W.
Henry) to discuss a grievance with his steward (Gary Dale)
without Lener being present.
B. On or about June 17, 1976, Foreman Jerry Przytulski,
unilaterally and without prior notification or discussion
with the Union, refused to notify and obtain for an em-
ployee (Gary Stotzer) the employee's steward after he was
requested to do so by the employee.
C. In late July 1976, Director of Industrial Relations Jo-
seph O'Keefe attempted to interfere with the operation and
administration of the Union by requesting that an employ-
ee (Lonnie Parrett) become a steward for the Union.
D. and E. On or about August 16, 1976, Joseph O'Keefe
and Welding and Burning Department Superintendent
Robert E. Smith, unilaterally and without prior notifica-
tion or discussion with the Union, informed a steward of
the Union (Gary Dale) that he would have to receive per-
mission from Smith before he engaged in union business
and that if he failed to do so his pay would be docked. It is
also alleged that on this date O'Keefe and Smith threat-
ened to dock Dale for filing grievances and engaging in
protected union activity and that O'Keefe threatened to
discharge and/or terminate him because of his activities on
behalf of the Union.
F. On or about December 28, 1976, Robert E. Smith
threatened an employee-steward of the Union (Gary Dale)
with a reprimand because of his union activities.
Case 8CA-10905
A. On December 28, 1976, Robert Smith reprimanded
employee Ford Cole because of his union or protected con-
certed activities.
B. On January 10 and 12, 1977, Robert Smith refused to
allow employee alternate steward William Lyons to have
time to file a grievance and ordered him back to work.
C. On January 10, 1977, Foreman Roger Knight refused
to allow William Lyons an opportunity to talk privately
with an employee-grievant or to provide Lyons time in
which to file a grievance.
D. Beginning on or about January 14, 1977, and contin-
uing thereafter, the Respondent kept an employee under
surveillance because of his attendance as a witness at the
January 13, 1977, unfair labor practice hearing.
E. On January 14, 1977, Joseph O'Keefe threatened em-
ployee-steward Gary Dale that he was going to be kept
under surveillance because of his union activities.
F. On February 3, 1977, Robert Smith told employee-
steward Gary Dale that discharged employee John L.
Dougan could reapply for work if there was no grievance
pending.
G. On March 7, 1977, Yard Superintendent George
Saunders informed employees and union representatives
that the Respondent would tell representatives of the
Union when they could engage in union activities and
threatened to dock their pay if they did not comply.
H. On March 16, 1977, Robert Smith docked the pay of
employee-steward Gary Dale.
I. On March 11, 1977, the Respondent reprimanded an
employee (Steven L. Laws) as a reprisal for his attendance
as a witness at the January 13, 1977. unfair labor practice
hearing.
J. On March 16, 1977, Robert Smith threatened an em-
ployee-steward (Gary Dale) with discharge because of his
union activities.
K. On March 16, 1977, Personnel Manager Richard
Casserly refused to supply employee-steward Gary Dale
with information needed to process a grievance.
L. On March 18, 1977, Assistant Welding Foreman
Robert Rouse denied employee-steward Gary Dale permis-
sion to go on union business.
Counsel for the General Counsel and counsel for the
Respondent filed timely briefs on or about November 25,
1977. These briefs have been carefully considered. Upon
the entire record in the case, including my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION
The Respondent is a New Jersey corporation with its
principal office located in Lorain, Ohio, where it operates a
shipyard, the only facility of the Respondent involved in
this proceeding, where it is engaged in the building, repair-
ing, and servicing of ships. Annually, in the course and
conduct of its business at the Lorain shipyard, the Respon-
dent receives goods valued in excess of $50,000 from points
located outside the State of Ohio. As admitted, I find that
the Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
ii. LABOR ORGANIZATIONS
As admitted at the hearing, I find that the Charging Par-
ty, International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths. Forgers, and Helpers, Local Lodge
No. 358, AFL-CIO, sometimes referred to herein as the
Union or the Boilermakers, is a labor organization within
the meaning of Section 2(5) of the Act.
Based upon the current collective-bargaining "Agree-
ment between the American Ship Building Company and
Unions affiliated with the AFL-CIO," dated November 20,
1975, in evidence as Joint Exhibit 1, and upon the National
Labor Relations Board's decision in American Ship Build-
ing Company, 226 NLRB 788 (1976), of which official no-
tice is taken, I also find that the following International
Unions affiliated with the AFL-CIO are labor organiza-
tions within the meaning of Section 2(5) of the Act: Inter-
national Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers; United Association of
Journeymen and Apprentices of the Plumbing & Pipefit-
ting Industry of the United States and Canada; United
Brotherhood of Carpenters and Joiners of America; Inter-
national Brotherhood of Electrical Workers; Brotherhood
of Painters and Allied Trades; International Brotherbood
of Firemen and Oilers; and International Union of Operat-
ing Engineers.
AMERICAN SHIP BUILDING COMPANY
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory Status
Based upon the admissions in Respondent's answers and
the testimony of both the General Counsel's and the Re-
spondent's witnesses, including in many instances their
own testimony, I find that at all times material herein the
persons named below occupied the positions set opposite
their respective names and have been, and are now, agents
of the Respondent acting on its behalf and are supervisors
within the meaning of Section 2(11) of the Act: Robert E.
Smith, assistant hull superintendent; Joseph D. O'Keefe,
director of industrial relations; Richard Casserly, person-
nel manager; George Saunders, yard superintendent;
Roger Knight, assistant welding foreman; Dominic Lener,
welding foreman; Jerry Przytulski, burning foreman;
Roger Rouse, assistant welding foreman; and Thomas
Bioyd, assistant welding foreman.
B. Introduction
I find, in accordance with the finding of the Board in
American Ship Building Company, 226 NLRB at 791, that:
Since August 29, 1941, the International Unions
named above have been the certified joint representa-
tive in the appropriate unit of production and mainte-
nance employees at Respondent's three locations, in-
cluding the shipyard at Lorain, Ohio, here involved.
For many years the International Unions have been
parties to joint collective-bargaining agreements with
Respondent covering the employees in the certified
unit, but each International Union or its local repre-
sents employees within its own agreed jurisdiction
.... [Machinists are covered by a separate collective-
bargaining agreement with the International Associa-
tion of Machinists, AFL-CIO.] The Charging Party
Union [also the Union hereini represents by far the
largest number of employees at the Lorain shipyard
covered by the agreement, including the riggers, weld-
ers, and burners.
There are four articles of the agreement which directly
relate to this case. Article 15, entitled "Premium for Exces-
sively Dirty Work," provides that work in certain specific
areas,
and work in other confined areas, shall be
deemed to be excessively dirty work when mutually
agreed to by the departmental steward or, in his ab-
sence, the designated union representative, and a de-
partmental foreman or, in his absence, the job super-
visor.
All work shall proceed on assignment. During the
course of each work assignment . . . the departmental
foreman . . . and the departmental steward . . . will
make an acutal inspection of job conditions and if
conditions warrant payment of the premium, the em-
ployees involved will be so notified immediately.
In the event the respective company and union represen-
tatives disagree,
. . . the matter will immediately be referred to the
superintendent, assistant manager, or manager and to
one additional union representative . . . if no agree-
ment is reached, the matter will be handled in accor-
dance with the grievance procedure.
The remainder of the article specifies the premiums to be
paid for dirty work and provides that if a departmental
foreman fails to make the required inspection of the job the
premium will be paid.
Article 21, entitled "Access to Yards" states:
The appropriate union representative shall have ac-
cess to the Company's property by securing permis-
sion from the Company to obtain information relating
to pending grievances and other matters pertaining to
the proper application of this agreement.
There will be no collection of dues by the Union on
company time and there will be no other union activi-
ty on company time or company property except that
necessary in connection with the handling of griev-
ances and the enforcement of this agreement.
Artcile 25, "Machinery for Adjustment of Complaints,"
sets forth a three-step grievance procedure ending in final
and binding arbitration.3 Article 25 provides:
There will be no discrimination because of activity
in or on behalf of the Union.
The Union shall have committeemen and/or stew-
ards to handle grievances.
Loss of earnings will not result for the union offi-
cer(s), steward(s), or employee(s) which are designated
to participate in steps 1, 2, and 3 of the grievance pro-
cedure provided a request has been made to the super-
visor to leave the work assignment. Such authorized
release will not be unduly or arbitrarily withheld by
the Company.
The Company agrees that it will produce records
affecting a grievance and/or an alleged violation of
the agreement and/or the enforcement of the agree-
ment at the request of the departmental steward or
appropriate designated union officer.
The Company agrees that all of the management
representatives acting at each step of the grievance
procedure shall have appropriate authority to act on
behalf of the Company.
A grievance shall be handled according to the fol-
lowing procedures:
(I) The aggrieved employee and/or his committee-
man or steward shall discuss the matter with the em-
ployee's immediate supervisor. This verbal grievance
shall be taken up not more than ten (10) work days
following the occurrence of the alleged grievance, ex-
cept in the case of recall. In the event of a disputed
discharge, the foreman and steward of the employee
involved shall attempt to adjust the matter before the
employee leaves the property.
'Various motions by the Respondent during the course of this proceeding
to defer these cases to the grievance and arbitration machinery under the
agreement in accordance with the Board's decision in Collver Insulated
Wire. A Gulf and Western Systens Co., 192 NLRB 837 (1971) were denied
for the reasons set forth in the Administrative Law Judge's Orders. in evi-
dence, denying said motions.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) If the alleged grievance is not clarified or settled
within twenty-four (24) hours in the verbal step, the
grievance shall be presented in writing and shall state
the nature of the complaint and the relief sought. The
date the grievance was first reported to the supervisor
as a verbal complaint shall also be recorded.
This grievance shall be filed by the employee, his
departmental steward and/or Union representative,
and shall be presented to the Yard Manager and/or
his representative within five (5) work days of the ver-
bal step in the grievance procedure. The Yard Manag-
er or his representative shall hold a meeting with the
employee, his departmental steward and/or the Union
representative of the craft involved within five (5)
work days from date of presentation of the written
grievance. The Company will answer each grievance
in writing within three (3) work days of meeting date
in steps 2 and 3 with full explanation.
(3) If the grievance has not been clarified and the
Union still is not satisfied with the answer from the
Yard Manager, the Yard Committee (to be composed
of one (I) designated union representative of each
Union signatory to this agreement, one (I) steward
from the aggrieved Union, and the grievant or griev-
ants) of the Yard shall take up the alleged grievance
with representatives of top management. The Interna-
tional Representative of the Union representing the
aggrieved employee may also be present in addition to
the Yard Committee. This step of the grievance proce-
dure shall be taken within five (5) work days of the
answer of the grievance in the previous step; however,
this time limit may be waived by either of the parties
in the event the Company representative or the Inter-
national Union representatives is not available
through circumstances beyond their control. The par-
ties shall, however, make every reasonable effort to be
available in the interest of expediting the grievance
through the steps outlined.
(4) If the grievance has not been settled to the satis-
faction of all concerned in step (3) above, the matter
shall be submitted to a board of arbitration, composed
of one representative for the union or unions involved,
one representative for the union or unions involved,
one representative for the Company, and the third
representative shall be selected by the Union and the
Company. In the event the two (2) arbiters designated
by the parties disagree on the third arbiter, then the
third arbiter shall be selected within a period of thirty
(30) calendar days from a list submitted by the Feder-
al Mediation and Conciliation Service, which shall
consist of five (5) names of impartial arbitrators.
urday, Sunday, Holiday and Vacation days) of the
date of discharge. Any grievance relating to discharge
filed after this time limit will not be considered under
this section. In the event of an unjust discharge and
the employee is reinstated, he shall be restored with
full wages and all other rights to which he is entitled.
If an employee is not at work when discharged, the
Company shall notify him by registered mail at his last
known address and at the same time the Company will
also notify in writing the representative of the Union
involved at the shipyard.
Article 28, "Break and Wash-up Time," states:
The Company will continue to grant wash-up and
coffee break periods on the following basis:
(a) Coffee break will be permitted on the job once a
day and it is mutually agreed that the time consumed
shall not exceed a period of approximately eight (8)
minutes from the time the man stops work for the
coffee break until such time as he resumes his work
following the coffee break; provided, however, it is
further understood that employees in certain circum-
stances who require special arrangements for such cof-
fee break shall have special arrangements worked out
by mutual agreement between the foreman and stew-
ard.
(b) Ten (10) minutes wash-up time shall be permit-
ted prior to the quitting whistle at the end of the shift.
This time is to be used for putting away tools, wash-up
and preparing to leave the yard.
(c) If an employee does not have his ten (10) min-
ute wash-up time as outlined in (b) above, due to
working overtime, he shall be entitled to the ten (10)
minute period at the end of the overtime period.
In addition to the collective-bargaining agreement, it is
undisputed that the Respondent has distributed and main-
tains company rules and regulations which contain the fol-
lowing language:
Violation of any of the regulations listed may result
in the issuance of a reprimand slip which is a written
record of all details pertaining to the offense. ....
If an employee receives a reprimand for any reason
which does not call for immediate discharge, such rep-
rimand shall be good for only 90 days and will be void
if no more reprimands have been issued within the
90-day period.
If a second reprimand is issued within 90 days of
the first for a different offense, the penalty imposed
shall be according to the schedule of first offenses; if
the second offense is of the same nature as the first the
penalty imposed shall be according to the schedule of
second offenses whether it is another reprimand, sus-
pension or discharge. In either case the first reprimand
shall remain in effect.
If a third reprimand is necessary for any reason
within 300 days of the date of the first, the employee is
subject to immediate discharge.
There follows a numbered list of 27 "reasons for discipli-
nary action," and opposite each are the prescribed penal-
ties for first, second, and third offenses.
* * *
In either event the decision of the arbitrator shall
not change, add to or detract from any of the terms of
this agreement and shall be final and binding upon
both parties in the dispute.
In the event of a disputed discharge, the grievance
must be filed within five (5) work days (excluding Sat-
4
* *
AMERICAN SHIP BUILDING COMPANY 5
C. The Discharge of Craig Keiffer
Craig Keiffer was hired in January 1976 as a welder and
worked in that capacity until August 1976, when, as a re-
sult of lack of work in the yard, he and a number of other
welders were transferred to the labor department to per-
form laborers' work. On April 19, 1976, Keiffer received a
verbal warning from Assistant Hull Superintendent Robert
E. Smith for quitting work before the lunchtime whistle.
Keiffer was warned in the presence of Alternate Union
Steward Hill. On June 16, 1976, Keiffer received a written
reprimand from Foreman Dominic Lener, signed by
Smith, for violating company rule 4 in failing to report
promptly for his work assignment after the end of the
lunch period. On June 23, 1976, Supervisor J. C. Stuller, in
Smith's absence, issued a second disciplinary reprimand to
Keiffer for violating rule I ("loafing on the job in any man-
ner"). The reprimand contained a notation that any further
violations of company rules within 300 days of June 16,
1976, would result in Keiffer's discharge. Subsequently,
this reprimand was changed to a verbal warning following
a meeting between Smith, Lener, Keiffer, and the Union's
steward, Gary Dale, on the basis that Keiffer had shown
some improvement in his work habits. However, Keiffer
received another second disciplinary reprimand when Stul-
ler and Lener reported to Smith that Keiffer had left the
yard during working hours without the permission of his
supervisor, without a pass, and thereafter failed to return to
work. This reprimand slip also contained the notation that
a third disciplinary reprimand within 300 days of June 16,
1976, would cause his discharge. Thus, as of the time in
August 1976 when Keiffer was transferred to the labor de-
partment and began work there for Assistant Welding
Foreman Roger Knight, it is undisputed that Keiffer was
in effect on a probationary status as the result of previous
uncontested reprimands based upon reports of his former
supervisors. The General Counsel does not content that
these prior reprimands are in any way discriminatory or
that Supervisors Lener and Stuller were engaging in any
type of harassment aimed at Keiffer.
Keiffer testified that following his transfer to the labor
department Roger Knight began "harassing" him about his
work. According to Keiffer, Knight kept coming around
telling him that he was working too slow, that he had better
start working faster, and that he had two reprimands and
would have another by noon if he didn't work faster.
Knight agreed that he prodded Keiffer to work hard on
this occasion. According to Knight's more detailed and
credited testimony, Keiffer was with a group of employees
who were wire brushing rusted areas of subassemblies prior
to painting. He remembered exhorting both an employee
named Corns and Keiffer about their work. Knight ob-
served that as long as he stood nearby and watched, the
crew would work, but when he left they would quit. After
criticizing Corns, Knight told Keiffer, "Look, Keiffer, you
already have two reprimands, if you get a third one you
will be fired. Come on, shape up, let's do the work." Fol-
lowing one such incident Keiffer demanded to see his
union steward. Knight asked Keiffer's reason, but Keiffer
simply repeated his request, and Knight walked away.
Later, at lunchtime, when Keiffer approached Union Stew-
ard Gary Dale about filing a grievance over Knight's fail-
ure to get the steward, Dale told Keiffer that he did not
have a case because Keiffer had failed to comply with the
correct procedure by failing to give Knight a reason why
he wanted his steward. However, on August II11, Dale did
process through the verbal step Keiffer's grievance against
Knight for alleged harassment. 4
On August 12, Keiffer was discharged, after receiving a
third reprimand for overstaying his coffeebreak. Keiffer
testified that about 8:30 a.m. he noticed Knight timing the
work crew with his watch as they left for coffeebreak. He
estimated that he was away from work for 3 or 4 minutes,
but conceded that he had stayed off the job approximately
"15 minutes at least" in the past. About 10:30 a.m. Knight
appeared, accompanied by Welding Foreman Dominic
Lener, and told Keiffer to report to Smith's office after
lunch with all of his gear. At Smith's office Keiffer, accom-
panied by Dale, learned that he was receiving a reprimand
and was to be terminated. Dale invoked the verbal step of
the grievance procedure while in Smith's office, but was
refused permission to reduce the grievance to writing there
at that time.
Richard M. Corns, a member of Keiffer's crew that
morning, estimated that he and Keiffer returned from cof-
feebreak after approximately 3 or 4 minutes, but also testi-
fied that normally the employees took about 15 minutes,
which was a little bit longer than they were supposed to
take. Corns also acknowledged that "a bunch of guys" got
reprimands that day, in addition to Keiffer. James C. Metz
and Steven Larry Laws testified that they returned together
from coffee break, estimated at from 4 to 5 minutes, after
Keiffer had returned to work. Neither Metz nor Laws re-
ceived a reprimand.
Roger Knight credibly testified without contradiction
that although the crew of welders who were performing
laborers' work were receiving welders' pay, they were un-
happy about performing laborers' work and expressed their
dissatisfaction by "goofing off" in full view of everyone in
the yard. In fact, according to Knight, Smith had admon-
ished Knight, pursuant to complaints from the yard man-
ager and the hull superintendent, that he should see that
these men stayed on the job and worked. After a number
of admonishments, including the undisputed warnings giv-
en to Keiffer as described above, on August 12, Knight
noticed the entire crew of 15 or 16 men leaving their work
stations before the customary coffeebreak time of 8:30.
This caused Knight to decide to time the length of the
coffeebreak. He observed and recorded that they left their
work at 26 minutes after 8 a.m. Thereafter he noted the
time each man returned from work, except during a brief
span when he was distracted by one ,of the maintenance
electricians who consulted him about a power supply prob-
lem, during which period he was unable to time the return
of certain employees, including Corns. Since article 28 of
the contract provides that coffeebreak "shall not exceed a
4 The written grievance. filed 4 days after Keiffer's discharge, on August
16. contains no contention that the harassment allegedl) practiced hb
Knight was in any way related to Keiffer's union activity.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period of approximately eight (8) minutes from the time
tbe man stops work . . . until such time as he resumes
work," Knight reported to Smith anyone whom he saw
away from his work station 10 minutes or more. Keiffer
was away from his work station for 12 minutes. Nine other
employees who were also away on coffeebreak for periods
ranging from 15 to 24 minutes received reprimands, and
one, Matsako, was similarly discharged.5 Finally, the testi-
mony of the Respondent's supervisors and of the Union's
Vice President Bert Mucha was that historically the Com-
pany has sporadically at various intervals cracked down on
employees exceeding coffeebreak, by occasionally issuing
groups of reprimands.
The General Counsel contends that Keiffer was dispa-
rately treated and that the reason for his discharge was
pretextual, the true reason being Knight's desire to retaliate
against him because Keiffer filed two grievances against
Knight on the preceding day. I disagree, and find that
Keiffer's discharge was not discriminatory but was brought
about simply as the result of his continuing practice of
violating company rules. Thus, he acquired three written
reprimands within the 300-day period and was discharged.
There is no evidence that any company supervisor or man-
agement official said anything whatsoever to Keiffer which
would even remotely suggest that the Respondent was irri-
tated with him because of the grievances he filed or for any
other reason connected with his union or concerted activi-
ties. The warnings which Keiffer received from other sup-
ervisors prior to August 12, and which placed his job in
jeopardy, are not in issue in this case. The General Coun-
sel's argument that Keiffer should not have been issued a
reprimand for violating the "approximately 8 minutes" rule
when he was absent for only 12 minutes and the others
who were warned were absent from 15 to 24 minutes, or an
average of 18 minutes, does not stand up to analysis; nor
does his assertion, made in the absence of documentary
evidence, that there existed a past practice of not repri-
manding employees unless their break exceeded 15 minutes
and that therefore the August 12 reprimands would have
constituted a violation of Section 8(aX5) of the Act. Final-
ly, the General Counsel's contention that Keiffer was dis-
criminately selected while others remained unpunished is
not borne out, since a number of other employees received
reprimands and one was similarly discharged. The only
employees who were not disciplined were either those who
remained away from their work for less than 10 minutes or
those whom Knight failed to catch during the conversation
with one of the maintenance electricians. I find that the
Respondent did not violate Section 8(a)(1) and (3) of the
Act in Case 8-CA-10369 by discharging Craig Keiffer on
August 12, 1976.
D. The Discharge of John L Dougan on February 3, 1977,
and the Allegation that Thereafter the Respondent
Unlawfully Conditioned His Reapplication for Work Upon
His Not Filing a Grievance
John L. Dougan attended the opening session of the
Only Knight actually timed each employee's departure and return.
hearing in this matter on January 13, 1977, pursuant to a
subpena which the General Counsel caused to be served
upon him. Dougan was among those witnesses ushered
from the hearing room by counsel for the General Counsel
pursuant to the Administrative Law Judge's sequestration
ruling. On February 3, 1977, Dougan received his third
disciplinary warning in 300 days for leaving his work area
for lunch prior to the lunch whistle in violation of company
rule 14.
Dougan's two previous reprimands, on May 25, 1976, for
being off his job on coffeebreak an excessive amount of
time, and on June 30, 1976, for insubordination (reduced
to a reprimand from a discharge penalty), are not in issue.
On February 3, Dougan was performing his welder's job
with a fitter and a burner on the forward peak of the vessel.
At or about 11:15 a.m., the fitter and the burner invited
Dougan to leave with them for lunch, but Dougan refused
stating, "Well, I didn't hear the lunch whistle blow yet."
The fitter and the burner left after Dougan explained that
he could not go at that time because he "believed" he was
being watched. Dougan's conclusionary testimony in this
respect was to the effect that following the January 13 ses-
sion of the hearing he believed he was being watched more
than he had before because he noticed that frequently sup-
ervisors would happen to be working in his area and
seemed to be noting when he left and returned from break
and from lunch and what time he quit.
Dougan worked a few more minutes but, nevertheless,
left his work station before the whistle. As Dougan pro-
ceeded toward No. 2 lunch table in company with a few
other employees, he searched the area for Jim Gyorfi to
whom he had previously loaned his wire brush. Dougan
failed to find Gyorfi, but instead ran into Assistant Weld-
ing Foreman Robert Rouse. Although Rouse was not
Dougan's supervisor, he saw Dougan and another employ-
ee named Graham, with whom Dougan was walking, step
inside some tents until the whistle blew, after which they
proceeded toward the lunchroom. Rouse stopped them,
asked for their names and clock numbers, and asked Doug-
an if he was supposed to be working "on the 906." When
Dougan replied that this was indeed his work station.
Rouse stated that he was off the job before the lunch whis-
tle blew. Rouse then proceeded to the office and reported
the two men to Smith.6
Both Graham and Dougan received warnings for violat-
ing rule 14. Following lunch, Dougan was notified to wait
in the lunchroom with Union Steward Gary Dale. Shortly
thereafter Smith called him to his office and informed
them that he had to give Dougan a reprimand for being off
his job before the lunch whistle blew. Dougan explained
about looking for Gyorfi on his way to lunch, but Smith
stated that Dougan's excuse wasn't good enough, the repri-
mand was already issued, he couldn't do anything about it,
and that Dougan was fired. After Dougan left to get his
gear, according to Gary Dale, Dale asked Smith if Dougan
could reapply for work and Smith answered that he could
I credit the testimony of Foreman Rouse concerning his description of
the incident in which he caught Dougan and Graham away from their jobs
before the whistle. Rouse's testimony was more detailed than that of Doug-
an. who tended to gloss over how the confrontation came about, including
the omission of any reference to employee Graham.
AMERICAN SHIP BUILDING COMPANY
after 30 days. Then Dougan asked, "Well, what if there
isn't a grievance filed?" Smith responded, "I do have some
latitude in the matter, and if he doesn't file the grievance I
can take his application in about 2 weeks," but specified
that it still had to go through the review board.7 Smith's
version of the discharge interview closely corresponds with
that of Dale and Dougan with emphasis on Dougan's ad-
mission that he had in fact stopped work early.
The General Counsel contends that Dougan's final rep-
rimand and discharge was the result of disparate treatment
stemming from an alleged desire on the part of the Respon-
dent to retaliate against him for his attendance at the Janu-
ary 13 session of the hearing in this case and that therefore
Respondent's conduct toward Dougan violates Section
8(a)(1) and (4) of the Act. Counsel for the General Counsel
urges that the testimony of IBEW Local 1844 President
Thomas Visloski, Carpenters' Union Steward James Black-
burn, and Robert E. Smith shows that many employees
were in the habit of quitting before the whistle. However,
Visloski conceded that he knew from his attendance at
third-step grievance meetings that there had been many
reprimands given by the Company over the years among
the various crafts for extended coffeebreaks and leaving
the job early. Likewise, James Blackburn acknowledged
that although it was not uncommon for employees to leave
the job 5 minutes before the whistle, he knew of instances
in which carpenters had been reprimanded for quitting be-
fore the whistle, including five instances approximately a
month before he testified. Finally, Robert Smith testified
that many people quit a few minutes before the lunch whis-
tle, but when they were caught they were given a repri-
mand. This portion of Smith's credible testimony points to
the fallacy in the General Counsel's argument concerning
Dougan. Dougan admitted leaving early in violation of the
rule. Both he and Graham, concerning whom no discrimi-
nation is alleged, were given written reprimands. Other em-
ployees who were not caught did not receive reprimands.
Since this was Dougan's third reprimand within 300 days,
Dougan was discharged in accordance with the Respon-
dent's rule. The evidence refutes the argument that Doug-
an was treated disparately. Furthermore, the General
Counsel's evidence is insufficient to show that the Respon-
dent seized upon the lunch whistle incident as a means to
retaliate against Dougan because of his attendance at the
hearing. Although Dougan testified that he "believed" he
was being watched more after the January 13 session of the
hearing, and that it "seemed" that the supervisors who
were working in his area were observing him more, this
testimony is entirely conclusionary. At no time did Dougan
relate in detail any specific incident of surveillance, the
unusual nature of which would have cast suspicion on the
Respondent's motive. He also conceded that he received
"no over-harassment" following January 13. Finally, the
record shows that nothing was said to Dougan or anyone
else by Respondent's supervision which would indicate an
unlawful motive behind Dougan's termination. Nor is the
Dougan filed a grievance over his discharge.
8 Millard Sturgell, steward for Local 240 of the Painters Union. testified
concerning a recent incident in which one of the painters received a repri-
mand for going to lunch 5 minutes early.
General Counsel's "timing" argument especially persua-
sive, since Dougan's discharge occurred 3 full weeks after
the initial session of the hearing. I find that the General
Counsel has failed to prove that John L. Dougan was dis-
charged in violation of Section 8(a)(1) and (4) of the Act.
I also find that the Respondent did not condition
Dougan's reapplication for employment upon his not filing
a grievance over his discharge, as alleged. According to the
testimony of Union Steward Gary Dale, it was Dale who
raised the question of Dougan's possible reapplication for
employment. Then Smith answered, "Yeah, he could, after
30 days." Then Dale asked, "Well, what if there isn't a
grievance filed?" Then Smith answered, "I do have some
latitude in the matter and if he doesn't file a grievance, I
can take his application in about 2 weeks," noting that the
question of Dougan's reemployment would still have to go
through the review board. Thus, it is clear that what Dale
and Smith were actually discussing was the question of
how to procedurally shorten the time in which Dougan
could reapply. and not the question of whether the Compa-
ny would consider rehiring Dougan if he did not filed a
grievance.
E. The Discharge of Gene A ldaffer
Gene Alldaffer, a welder, did not testify, and the two
assistant welding foremen involved in his discharge inci-
dent, Boyd and Knight, made no reference to Alldaffer in
their testimonies. Thus, the evidence concerning Alldaffer's
case stems entirely from the testimony of Alternate Weld-
ing Steward William Lyons, Robert E. Smith, Alldaffer's
reprimand slips, General Counsel's Exhibits 22, 28, and 29,
and the written grievance filed by Lyons on Alldaffer's
behalf (Resp. Exh. 4). According to the Company's rules,
the penalty for two violations of rule 14 within 90 days is
discharge. On January 7, 1977, Alldaffer received a disci-
plinary reprimand for being caught in the main lunchroom
at 11:25 a.m., prior to the whistle. This disciplinary repri-
mand is not in issue.
On the morning of January 10, 1977, Alldaffer was noti-
fied that he was to receive a second reprimand for quitting
work at 11:10 a.m., prior to the lunch whistle. From the
testimony of Lyons it is evident that, realizing the serious-
ness of this second reprimand, Alldaffer obtained permis-
sion, in accordance with the collective-bargaining agree-
ment, to talk with Lyons about this matter after lunch.t °
Nevertheless, between the time he received notice of the
reprimand and the sounding of the lunch whistle, Alldaffer
was discovered by Foremen Boyd and Knight in company
with Lyons in the hold of the ship while Alldaffer was
drying his wet clothes with a welding torch. Boyd called
out, "Alldaffer, what the - are you talking to the -ing
union steward for?" According to Lyons' testimony, no ex-
planation was given by Alldaffer, and Lyons simply re-
sponded with an objection concerning the profanity which
9G.C. Exh. 28.
10 Lyons testified that he could not remember whether Alldaffer had per-
mission to see him after lunch or after coffeebreak. Inasmuch as it is undis-
puted. based on the reprimand slip, that the infraction occurred at 11:10
a.m., it is logical to conclude, and I find, that Alldaffer had obtained per-
mission to consult with Lyons following lunch.
7
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boyd had used. Then Boyd ordered Alldaffer back to
work. At this point Alldaffer spoke up for the first time,
asking, "Well, am I going to be able to see the steward?"
Boyd answered that if Alldaffer was around long enough,
he would be able to see the steward. The conversation end-
ed at this point, and when the lunch whistle blew Alldaffer
and Lyons went to lunch together.
After lunch one of the foremen gave Alldaffer and
Lyons a copy of the reprimand and told them to wait until
Smith could see them. Soon the two men were ushered in
to see Robert Smith, who informed them that under the
Company's rules Alldaffer would have to be discharged. 2
Lyons then proceeded to take the verbal step of the griev-
ance procedure with Smith, as noted on Respondent's Ex-
hibit 4. Smith refused to allow Lyons to immediately re-
duce the grievance to writing. Smith's explanation for this
action was that both Alldaffer and Lyons were very upset
and that Lyons was agitated, confused, and arguing inco-
herently.
The General Counsel argues that Alldaffer was dis-
charged for consulting with his steward concerning his rep-
rimand, in violation of Section 8(a)(1) and (3) of the Act. It
is also argued that Smith violated Section 8(a)( ) and (5) of
the Act by refusing to give Lyons time to immediately
write up the grievance but instead ordering him back to
work. The Respondent urges that Alldaffer was discharged
simply because he had accumulated two reprimands within
a 90-day period for violating rule 14, and that Smith's ac-
tion in ordering Lyons back to work before submitting the
grievance in written form was based upon the contract and
not discriminatory. I agree. There is no evidence with re-
spect to Alldaffer's case to indicate that the Employer's
action to him occurred because of his union activity. It is
clear from the surrounding circumstances that Boyd's tact-
less phrasing of his inquiry concerning why Alldaffer was
talking to the union steward was prompted not by anti-
union considerations but by his desire to know whether or
not Alldaffer was violating the terms of the permission he
had given for Alldaffer and Lyons to consult about All-
daffer's reprimand after lunch rather than ceasing work
before lunch. It is also clear that Alldaffer received two
(not three) reprimands for violating rule 14, which calls for
discharge under the Company's rules. Lyons' obvious con-
fusion over the number of warnings Alldaffer received cor-
roborates the testimony of Smith to the effect that Lyons
was excited and upset and argued incoherently in his of-
fice. Under these circumstances, and since article 25 of the
collective-bargaining agreement provides 24 hours for de-
i At this point in his testimony it is clear that Lyons became confused
while testifying or else misunderstood what was happening when he and
Alldaffer received a copy of Alldaffer's reprimand slip. It is clear that Lyons
thought Alidaffer was unjustly receiving a third reprimand for leaving early
for lunch, when in fact the Company was simply providing copies of
Alldaffer's previous reprimand. This caused Lyons to protest that if AlIdaf-
fer received a reprimand for leaving early, even though the whistle had
blown. Lyons should also receive one. A comparison of G.C. Exhs. 22 and
29 reveals that they are identical and that Alldaffer received only two repn-
mands instead of three. The logic of this analysis is confirmed by Smith's
testimony, dunng the course of which the General Counsel introduced Exh.
28 and 29.
12 For the reasons set forth earlier, Lyons' testimony that Smith stated
Alldaffer had received his third reprimand in 300 days is not credited.
ciding whether to present the grievance in writing within 5
workdays, Smith's action, terminating the interview after
the verbal step and sending Lyons back to work, cannot be
deemed unreasonable. Nor can it be said under the circum-
stances presented that by taking this course of action Smith
violated the wording of the settlement terms in Grievance
W-18 w-30, dated August 13, 1976, where in other circum-
stances the Company agreed that "using sound judgment,
[it] will make arrangements with the steward allowing a
reasonable time for this [the writing] purpose." I find that
the Respondent did not violate Section 8(a)(l) and (3) of
the Act in discharging Alldaffer. Nor did it violate Section
8(a)(1) and (5) of the Act when Smith refused to permit the
grievance to be submitted in written form at that time. I
likewise find that Thomas Boyd did not violate Section
8(a)(1) in his remarks to Alldaffer and Lyons on January
10, as alleged.
F. The Allegations Relating to the Discharge of James W.
Henry
James W. Henry was employed by the Respondent as a
welder from January 7, 1976, to February 4, 1977. The first
event relating to Henry in this case occurred on May 15,
1976, at which time Henry was working on the center con-
veyor way in the inner bottom of the forward end of hull
905. As he worked, Henry formed the opinion that the
working conditions in this area justified the payment of
"dirty money" under article 15 of the collective-bargaining
agreement. Henry asked the leaderman to summon the
supervisor, and when Welding Foreman Dominic Lener
appeared, Henry asked for "dirty money." Lener refused,
and then Henry invoked the inspection provision of article
15. When Steward Gary Dale arrived, he and Lener in-
spected the area; then Henry wanted a private conference
with Dale, which Lener refused to permit. According to
Henry, Lener said, "I went to the trouble to bring your
steward down here. If it has anything to do with this griev-
ance, I will hear it. If you don't want me to hear it, you will
have to do it on your own time." At that point, according
to Henry, he told Dale he would see him at lunch, and the
discussion ended.
Lener, a former financial secretary and steward for the
Union, gave testimony similar to that of Henry and Dale.
He agreed that he denied Henry's request for "dirty
money," since in Lener's opinion working conditions in
that area did not justify it. He admitted that following the
joint inspection procedure he denied Henry the opportuni-
ty to have a conference with Dale because such a confer-
ence is not provided for at that stage of the "dirty money"
provision of the collective-bargaining agreement.
The General Counsel contends that Lener's action vio-
lated Section 8(a)(l) and (5) of the Act. The Respondent
argues that all Lener did was strictly follow the provisions
of the collective-bargaining agreement. I agree. There is no
evidence with respect to this incident indicating that Lener
was in any way harassing Henry because of his union ac-
tivity. Although the Respondent's position with respect to
this incident is technical, article 15 clearly states that while
a disagreement over the payment of dirty money is being
processed through the machinery provided for in article 15
AMERICAN SHIP BUILDING COMPANY 9
"all work shall proceed on assignment." The machinery for
resolving a dirty money dispute calls for a joint inspection
by the departmental foreman and the steward, and, if they
cannot agree, "the matter will immediately be referred to
the superintendent, assistant manager, or manager and to
one additional union representative." Only if no agreement
is reached at this level is the matter handled in accordance
with the grievance procedure. In view of these provisions
and the lack of any evidence of a discriminatory purpose
behind Lener's action, I find that the Respondent did not
violate Section 8(aX1) and (5) of the Act by strictly ap-
plying the terms of the agreement concerning the incident.
Henry was one of those employees who received a repri-
mand for overstaying his coffeebreak on August 12, 1976.
After he received the reprimand that day, Henry filed two
grievances. The first grievance was because he felt the rep-
rimand was unjust, and the second accused Roger Knight
of failing to obtain his steward for him when Henry asked
for him. Henry testified that he asked Knight three times
that afternoon to see his steward. On the first and second
occasions, Knight responded that arrangements would be
made, but about 3 o'clock, when Henry asked a third time,
Knight answered that the steward was busy. The record
shows that Knight was alluding to the fact that Craig Keif-
fer had been discharged for overstaying his coffeebreak
and that the steward was preoccupied with Keiffer's prob-
lem. According to Henry, later Robert Smith came over
and told Henry and the other men, who were upset because
of the Keiffer dismissal, "Well, your steward is up there
now fighting for that man's job, and that is how it is going
to be handled." Steward Gary Dale acknowledged that he
talked to Henry about his grievance on the morning of
August 13 and that he was on other union business on the
afternoon of August 12. Henry's and Dale's testimony cor-
responds with that of Smith, who stated that when Knight
informed him that Henry wanted his steward, Smith an-
swered that Dale was engaged in union business in the
grievance procedure and that when he got through with
that Smith would notify him and get back to him. Thus, it
is clear from the testimony concerning this incident and
that concerning the Craig Keiffer discharge, that Keiffer's
reprimand and termination was the most important labor
relations problem involving Respondent's management
and the Union on August 12. Under these circumstances it
is not surprising that both the Union and management
were preoccupied with Keiffer and let matters relating to
Henry slide until the following day, in spite of Henry's
objections. I find that the Respondent did not violate Sec-
tion 8(aXI) and (5) of the Act, as argued initially by coun-
sel for the General Counsel on page 2, item 8(e), of its
brief. '
13 This incident was not alleged as a violation in any of the complaints.
nor was it ever offered as an amendment. Nevertheless, despite the assur-
ances of counsel for General Counsel, as noted earlier, concerning the in-
tended meaning of the catch-all phrase, "including. but not limited to, arbi-
trary, restrictive, obstructive and other similar actions" in the 8(aXS)
allegation of the complaints, this material is now argued to be an added
violation of the Act, not simply evidence offered to support the alleged
discriminatory discharge of Henry. In view of these circumstances and those
discussed earlier in fn. 3. I find that the Respondent has not been afforded
proper notice that the General Counsel was claiming that this incident com-
prised an independent violation of the Act.
Nothing else of significance concerning Henry tran-
spired until January 14, 1977, the day following the open-
ing session of the hearing in this matter. According to Hen-
ry and Alternate Steward William Lyons, they were
working side by side that day. Henry was on the port side
conveyor way with a pipefitter and Lyons was welding on
a gangwalk with a pipefitter. 14 As Henry and Lyons
paused, while the fitters obtained material for them, they
talked to one another. Henry testified they discussed cars
and motorcycles, but Lyons insisted that he was looking
for a welding machine, since he had just arrived on the job,
and asked Henry if he was using his machine. In any event,
both Lyons and Henry agree, at this point their foreman.
Tom Boyd, looked in on them and, seeing that they were
talking rather than working, asked "What are you guys
talking f union business for?" Lyons answered,
"Union? We're not talking union business. I'm asking
about a machine." Then Boyd walked away. According to
Henry, as he departed Boyd said, "I want this b-s-
stopped," but Lyons' testimony omits any such parting re-
mark. After Boyd left, the two men engaged in speculative
conversation concerning why Boyd had made these re-
marks. While they were talking, Boyd returned and said, "I
thought I told you guys to stop this b-s-." According to
Lyons, it was at this point that Boyd remarked. "Hey, I
know that is what you were just talking about, because you
just went back to labor court." Henry, however, attributed
this statement to Boyd during the first conversation. Next,
both men asked to see their steward, stating that they felt
they were being harassed.
Thomas Boyd remembered finding Henry and Lyons
talking on a catwalk on the center line conveyor on the 906
that day and telling them "Let's cut the bull and get back
on the job." Boyd then walked away, but returned 4 or 5
minutes later and found them still talking. He then said,
"Break it up and quit your shooting the bull," possibly
accompanied by a little foul language, after which he
added, "I want you on the job and I want you to do the
job." The two men immediately responded by accusing
Boyd of harassing them and stating that they wanted to see
their steward in order to file charges against him. Accord-
ing to Boyd, he replied, "If you want a steward, we'll set
you up an appointment. We'll get the steward, if that is
what you want, but right now get back to work and we'll
get back to you on the steward. We have got to set up an
appointment and go through the regular formalities."
The General Counsel alleges that on January 14, 1977,
Thomas Boyd interrogated and threatened Henry and
Lyons because of their union activities. I find that no un-
lawful interrogation occurred. Article 25 of the collective-
bargaining agreement requires a request to be made to the
supervisor before an employee ceases hit work assignment
to discuss a grievance with his steward. Lyons was the al-
ternate steward who had been handling employee comp-
laints in the absence of Gary Dale. I am persuaded that
Boyd's question actually related to whether or not the two
men were violating the procedures set forth in article 25. 1
find that Boyd's question about whether the two men were
'14 Neither of the fitters testified.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
talking about the Union, assuming Lyons' and Henry's
versions were credited, did not, in any event, constitute
unlawful interrogation. I also note that none of the ver-
sions of this incident contain any type of threat, as alleged.
Finally, because of the inconsistencies and differences in
the respective testimonies of Henry and Lyons, I credit
Boyd's testimony concerning his remarks and find that he
made no reference at all concerning the Union or about
the unfair labor practice trial on January 13.15 I therefore
find that the Respondent did not violate Section 8(a)(1) of
the Act as alleged in paragraph 6 of the complaint in Cases
8-CA-10788-1 and 8-CA-10788-2.26
According to Henry, a couple of days later Boyd began
following him from place to place on the job as Henry
looked for a welding machine to use. During the course of
his search, Henry states that he stopped to talk to Bill
Lyons when Boyd came up and asked what he was doing.
However, Lyons did not corroborate Henry's testimony in
this regard during his own lengthy testimony.
Henry acknowledged that it was a company requirement
that employees should have departmental numbers on their
hats for identification purposes; however, he concluded
that the policy was "a very flexible thing" because some
employees put the numbers on upside down or in Roman
numerals. Nevertheless, it is undisputed that these numbers
are required, and that those employees who are caught
without them are warned. Thus, on the morning of Febru-
ary , 1977, when Henry arrived at work without any num-
bers on his helmet, Robert Smith talked to him about this
infraction and told Foreman Rouse and Steward Gary
Dale that he had issued Henry instructions to put on the
numbers. Henry put the number on his welding hood and
went to work. Following his coffeebreak, he and Gary Dale
were told to wait in the office for a talk with Smith. Smith
testified that he scheduled the conference to discuss
Henry's "poor attitude" after Boyd reported that he had
seen Henry's number, 22, on Henry's welding hood instead
of his helmet. In the office, according to Smith, there en-
sued a "general discussion" about Henry's work habits,
hostility, and belligerency toward all his foremen. Smith
testified that Henry stated, "They are not so nice to me
either. I have got no ventilation on my jobs. I am always
eating smoke. It is bad for my health. My jobs are always
tough. I am getting stuck in small holes. I am getting
watched all the time. Robert Smith has a poor attitude too.
I'll be damned if I'm going to be docile like everyone else.
I can be the same way they can. Does everyone have to
wear numbers on their hat?" When Smith answered they
did, Henry responded, "Where are your numbers?" Smith
answered that he wore a red hat which identified him. Dur-
ing this time Steward Gary Dale had very little to say. At
15 Boyd impressed me as a straightforward and sincere witness. I have
previously noted Lyons' testimony was confused and unreliable in other
aspects. Henry impressed me as a resentful employee. defiant toward any
exercise of authority by supervision and eager to retaliate through his testi-
mony.
10 On p. 3, item 8(j), of his brief, counsel for the General Counsel for the
first time asserts that this incident also constituted a violation of Sec. 8(a)(5)
of the Act. I find that it does not. The General (ounsel's "course of con-
duct" 8(aX5) contention will be full) discussed in a subsequent section of
this Decision.
the conclusion of the meeting, Henry was told that a nota-
tion of what transpired at the meeting would be placed in
his record and that disciplinary action would follow unless
he observed the Company's rules. The meeting ended, with
Dale stating, "I can talk to him but I don't feel it will do
any good. He doesn't think he's done anything wrong." '7
Following the conference in the office, Henry returned
to work, where he was assigned to weld a ring to the un-
loader housing on the spar deck near the ship's stern. The
spar deck is the upper deck where the hatches are located
and is therefore exposed to the elements. It was cold, and
since the cranes were not operating, Henry estimated the
wind speed at above 35 miles an hour. As the 3 p.m. quit-
ting time approached, Henry noticed Roger Knight and
Tom Boyd by the ship's office looking in his direction. In
his testimony Henry expressed the belief that they were
watching him to see if he quit work early. Although Henry
testified that other employees on the ship were "already
wrapped up and ready to go standing on the gangwalk and
everything," Henry insisted that the two supervisors were
watching him alone. Henry remained working until quit-
ting time. 8
On February 2, Henry finished the job he began the
previous day and asked Knight for another assignment.
Knight directed him to weld brace bars into a basket as-
sembly located near the ship's office, and he tacked them
in place with the assistance of a fitter, after which he of-
fered and Knight agreed to have him complete the welding
on that piece of work. Henry resumed working and contin-
ued until he came to some work near a hatch combing
which dropped 80 feet to the conveyor way. Knight sug-
gested that Henry stand on a staging and weld leaning over
the hatch combing. There were no safety chains and Henry
said he wouldn't do it without a safety belt. Knight agreed.
Henry secured the belt and, with the assistance of some
staging, completed the work. According to Henry, by that
time it was 10 after 3 p.m. and Knight was inside the ship's
office "back in the corner" watching him while all the
crafts were lined up ready to go on the gangwalk at the end
of the day.' 9
On February 3, Henry was assigned to welding brace
bars along the outside of the conveyor housing 40 feet
above the spar deck on angled staging. It was snowing, and
the staging was rocking in the wind, which required Henry
to lie flat on the staging below the level of the safety chain
as he welded above his head. From time to time Henry left
the job to warm up, but he testified that although Knight
was watching he received no criticism even though he com-
pleted only a couple of feet of welding that afternoon.
On February 4, Henry returned to the same job, but he
1 I)ale's and Henry's versions of this conversation are similar. The main
difference between their versions and that of Smith is that Dale and Henry
remember Smith's mentioning a coffeebreak reprimand Henry had received
in August. Both Smith and Dale kept notes of the conference in Smith's
office. I find that the coffeebreak reprimand was mentioned by Smith as an
example of the Company's continuing problems with Henry concerning his
attitude toward Respondent's work rules.
18 Although Henry testified that he could not see anyone else on the ship
for the last 15 minutes. I find it highly improbable that Henry was working
alone on the ship after everyone else had left.
19 I find Henry's uncorroborated testimony that as he worked he was able
to see Knight grinning at him with amusement from "back in the corner" of
the ship's office. incredible.
AMERICAN SHIP BUILDING COMPANY IlI
testified that he was impeded by melting ice and snow on
the staging. Henry expressed his concern to Knight about
the danger of getting an electrical shock while lying on wet
staging and using welding equipment. Knight told him to
get some cardboard to insulate himself from the wetness,
but according to Henry this arrangement did not work very
well, since the cardboard began sliding on the chunks of
ice beneath. At this point Henry left the job, in search of a
different welding rod, according to his testimony, and
Knight told him "to get my a- out on the job." Henry
retorted, "Mr. Knight, if you don't watch how you talk to
me, I am going to whip your a-." Then Knight asked
what Henry was doing, and Henry replied that he was get-
ting some welding rods. Henry then departed to get the
rods, and Knight walked off in the direction of the ship's
office. According to Henry's testimony, as he was return-
ing with the rods he decided that he probably should go
home before anything else happened. He began wrapping
up his gear, when Supervisor Stuller told him that Smith
wanted to see him in his office, but instead Henry went to
see the clerk responsible for issuing passout slips to go
home. At this point, according to Henry, Smith saw him
and yelled, "Henry, get in here." According to Henry's
testimony, in the office Smith announced, "I am going to
issue you a reprimand for misconduct for only performing
2 feet of weld in 3 or 4 hours. I am also going to issue you
a reprimand for misconduct for threatening a supervisor
and I am going to have to discharge you. Now, let's talk
about it." However, Henry refused to talk over the situa-
tion with Smith and announced "I am not going to talk to
you. You are not a man of your word. You cannot be
trusted. You promised me cooperation and I didn't get it. I
will do my talking to the Labor Board." Then the repn-
mand papers were filled out and Henry turned in his gear,
collected his check, and left.
Steward Gary Dale first learned that a problem was de-
veloping concerning Henry's conduct when Joe Stuller no-
tified him that Smith wanted to see both him and Henry in
the office. Stuller added that Dale had better catch Henry
because Henry was getting ready to leave. Dale went di-
rectly to Henry, and Henry admitted to Dale that he had
threatened Knight. Then Dale accompanied Henry to
Smith's office. Dale's description of the confrontation be-
tween Henry and Smith is similar to Henry's version.
Smith testified that Knight had complained to him that
Henry was off his job an excessive amount of time on Feb-
ruary 3, that he had quit before the whistle, and that Henry
had failed to do the assigned work in a reasonable time,
since only about 2 feet of quarter-inch filet weld had been
accomplished between 12:30 p.m. and 3 p.m. Smith in-
structed Knight to schedule a meeting between Henry,
Dale, and Smith following coffee at 8:30 a.m. on February
4. However, on the morning of February 4 at or about 8:25
a.m., Knight reported that after having told Henry "to get
his a- back to work," Henry answered "that if he ever
talked to him that way again, he would knock the s- out
of him." Smith called Henry and Dale to the office. Ac-
cording to Smith, Henry arrived in a very hostile mood and
began the conversation by stating "Let's get this over with
in a hurry because I don't have time to talk to you either."
Smith had noticed that Henry had already requested a
pass-out from the department clerk. Smith answered,
"Okay, I will be as brief as possible." Then Smith de-
scribed what Knight had reported about Henry's meager
work accomplishments of the preceding day and stated
that it could end up in a misconduct charge, which would
be his discharge and asked if Henry had anything to say. It
was at this point, according to Smith, that Henry answered
"No, not to you. You cannot be trusted. You are not a man
of your word. I will do my talking to the National Labor
Relations Board." Since Henry refused to discuss the situa-
tion, Smith told him to stay long enough to receive his
reprimands and his departmental release and turn his tools
in. Then Henry was paid, and he left.
Respondent's position, as expressed in Smith's testi-
mony, was that since Henry had demonstrated his hostility
by a series of incidents, including his threat to Knight, and
not only failed to respond to corrective discipline but re-
fused even to discuss with Smith the incidents of February
3 and 4, Smith had no alternative but to discharge him. On
the other hand, the General Counsel argues that the evi-
dence shows that Henry was "set up" for a discharge by
Smith by giving him adverse work assignments, thereby
causing the explosive confrontation with his supervisor on
February 4, and that the Respondent seized upon these
events as a pretext to discharge Henry for appearing to
testify for the General Counsel at the January 13 session of
the hearing in this matter. I find that the General Counsel
has failed to prove this contention. Considering all of the
credible testimony, the General Counsel's argument can be
accepted only by building inference upon inference. There
is no credible evidence of a discriminatory motive directed
toward Henry. The adverse working conditions which
Henry experienced in the final days before his discharge
were those he shared with others in similar circumstances.
This conduct is not alleged as discriminate treatment in
violation of the Act, obviously for the reason that there is
no evidence Henry was singled out for any excessively dis-
agreeable assignment. I am persuaded that while the Re-
spondent may well have been eager to separate Henry from
his employment with American Ship Building Company, it
did so only for the purpose of ridding itself of a hostile and
uncooperative employee. This conclusion is confirmed by
Henry's own testimony in which he described his aggres-
sive and abrasive resistance to any type of authority. Hen-
ry further corroborated his supervisor's analysis of his un-
cooperative personality by displaying an overly
self-assured and aggressive demeanor while testifying.
Thus, when Henry attempted to leave the premises of the
Company after his confrontation with Knight on February
4 and then in the office verbally attacked Smith and re-
fused even to discuss the situation, I find that Smith was
justified in concluding that he could do nothing else but
discharge Henry. 20 I find that the General Counsel has
failed to prove that the Respondent engaged in unlawful
surveillance of Henry's activities or that it violated Section
8(aXl) and (4) of the Act by discharging James W. Henry
on February 4, 1977.
'0 Company rule 19. "Insubordination to An) Supervisor.' calls for the
penalt) of discharge upon the first offense.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The Written Reprimand Given to Ford Cole on
December 28, 1976
Ford Cole has worked for the Respondent for about 10-
1/2 years as a welder in the welding department. As of
December 28, 1976, Cole was serving as union safety com-
mitteeman. Safety men wear green helmets to facilitate
their identification. At some earlier time not specified in
the record, Cole had received a reprimand from the pipe
shop for quitting early. On December 28, Cole was ob-
served wearing his green helmet to coffeebreak by Robert
Smith at 8:30 a.m.2 About 8:45, Smith noticed Cole talk-
ing to Union Steward Gary Dale. Since Cole had obviously
overstayed his coffeebreak, Smith asked Assistant Welding
Foreman Roger Rouse to investigate. Shortly thereafter
Rouse reported that Cole and Dale were discussing a repri-
mand Cole had received earlier. According to Cole and
Dale, Cole had mentioned the reprimand and asked Dale
to set up the verbal step of the grievance procedure when
Rouse appeared and asked what they were doing. Cole re-
sponded that he was asking Dale a question about union
business and, in response to a question from Rouse, admit-
ted that he had not obtained permission to talk to the stew-
ard as required by article 25 of the contract. Shortly there-
after Smith appeared and told Cole that since he had not
requested permission to go on union business and had ov-
erstayed his coffeebreak, he would be issued a reprimand.
Cole received the reprimand later that day, which stated,
"Off job without permission of leaderman or supervisor.
Sitting at lunch table upstairs discussing grievance proce-
dure Art. 25. Did not request permission for union activity
on company time." Later, Union Vice President Bert Mu-
cha and Smith discussed the reprimand, and the matter
was settled by reducing it to the status of a verbal warning.
According to Mucha, Smith stated that he did not actually
want to give Cole a reprimand because it would be his
second and would put Cole on 300 days status. Thus, the
matter was resolved.
Gary Dale's account of the conversation with Rouse and
Smith was similar, adding that after Cole left to return to
his job Smith remarked that he was thinking of giving Dale
a reprimand for conducting union business with Cole with-
out permission but that he was going to wait and talk with
Joseph O'Keefe, director of industrial relations, about the
matter. I find, however, that the Respondent did not vio-
late Section 8(a)(1) and (5) of the Act, as alleged. It is
undisputed that under the operation of article 25 of the
collective-bargaining agreement at American Ship Building
Company permission must be obtained for employees to
pursue union business with their steward on company time.
Admittedly, Cole had not obtained permission. In addi-
tion, since Cole had clearly overstayed his coffeebreak, he
was off the job without permission in violation of the cof-
feebreak provision of the contract. Furthermore, according
to the testimony of Union Vice President Bert Mucha,
Smith did not want to place Cole's job in jeopardy under
the 300 days provision by issuing the reprimand, and the
21 Although there is no specific time for coffeebreak to begin. the record
is replete with testimony from other witnesses that coffeebreak occurs at
about this time.
matter was resolved by mutual agreement-hardly the ac-
tion of a supervisor who was harassing an employee be-
cause of his union activity. Also, although technically, un-
der the provisions of the collective-bargaining agreement,
the Respondent could also have issued a reprimand to
Gary Dale, as Smith noted in their conversation, he re-
frained from doing so. I find that the Respondent did not
violate Section 8(a)(l) and (5) of the Act on December 28,
1976, by reprimanding Cole and threatening Dale as al-
leged.
H. The Reprimand Received by Steven L. Laws on March,
11, 1977
Steven Larry Laws was one of General Counsel's wit-
nesses who attended the January 13, 1976, hearing pur-
suant to a subpoena. The day before the hearing he went to
the employment office and notified them that he would be
taking off the following day for union business. 22 Accord-
ing to Laws, in the days following January 13, he was
checked on frequently by supervisors and threatened with
reprimands by Welding Foreman Thomas Boyd. On other
occasions he claimed that Boyd and Supervisor Gene Pol-
ing stood on the top of the drydock and watched him for
20 to 25 minutes. 23
According to Laws, on about the 6th of February, he
took a week off upon the advice of his doctor because he
had chronic bronchitis, which he then followed with anoth-
er week off for vacation. He testified that he took his vaca-
tion "shortly after Henry and Dougan got fired," which
would have been sometime after February 3 and 4, 1977.
T'he only other references in his testimony to absences dur-
ing 1977 were his admissions on cross-examination that he
was absent on January 10 and March 8 without calling in.
On March I 1, Laws received a written reprimand for ab-
senteeism. Absenteeism is governed by company rule 10,
which states as follows:
Excessive absence or tardiness (the word excessive
shall be defined in the case of absence as more than 6
days in a 3-month period, unless such absence isjusti-
fied due to illness or other good reason. As applied to
tardiness the word excessive shall be defined as re-
peated tardiness within a relatively short period of
time-to be considered on its merits).
The penalties for the first, second, and third offenses, re-
spectively, are a written warning, a 3-day suspension, and
discharge. The 90- and 300-days rules also apply.
Laws asked Union Steward Dale to check into the mat-
ter, stating that he believed the reprimand to be unjustified.
According to Dale he went to the employment office and
22 There is no evidence that permission was either granted or denied.
The record reveals that all employees are checked on frequently by
their supervisors, especially when they are off the job, and that it is not
unusual for a supervisor to remind an employee that he may receive a
reprimand if he does not return to work promptly. The General Counsel
argues in his brief that the Respondent violated Sec. 8(aXI) and (5) of the
Act by engaging in unlawful surveillance of Laws. The only evidence in the
record shows that Laws, as well as other employees, were continually under
observation by supervision in the performance of their work. This evidence
is clearly insufficient to prove that the Respondent engaged in the type of
surveillance prohibited by the Act. I find that the Respondent did not vio-
late Sec. 8(a)(I) and (5) of the Act in this respect.
AMERICAN SHIP BUILDING COMPANY 13
looked at Laws' absentee record. He discovered that al-
though a notation on the back of the card indicated that
Laws had a doctor's slip and was excused for absences on
December 30 and 31, 1976, the card indicated that Laws
had been absent without an excuse or without calling in.
According to Dale, he then brought the matter to the atten-
tion of one of the clerks in the employment office, who
corrected the record. He then took the card to Personnel
Manager Richard Casserly, who promised to check into
the matter and get back to him. Later, Casserly refused to
withdraw the reprimand, in spite of the mistake. Casserly
said that Laws had brought in two slips from the eye doc-
tor, which for all he knew could have been for a 5 o'clock
appointment. Then Dale asked about the absence on the
10th of January, stating that it was a snowy day and that a
lot of employees didn't make it into work. Casserly re-
sponded that he wasn't going to take that day off or the
day that Laws was off for the NLRB hearing. The conver-
sation ended at this point, and Dale left and informed
Laws that the reprimand would not be retracted. Laws
then decided to file a grievance. 2 4
The General Counsel contends that the Respondent
treated Laws discriminately in violation of Section 8(a)(I)
and (5) of the Act by refusing to retract Laws' reprimand
when it became clear through the discovery of the error in
his absentee record that a reprimand was not warranted.
The General Counsel also urges that Casserly's remark
about the National Labor Relations Board hearing and the
Respondent's failure to issue Laws a written reprimand
based on his absence record during the latter part of 1976
as further evidence of the Respondent's discriminatory in-
tent in the issuance of the March 11, 1976, reprimand. The
Respondent contends that Laws' absentee record clearly
shows that he had at least six unexcused absences in the
90-day period prior to March 11 and, consequently, under
the Respondent's rule, was properly reprimanded. I dis-
agree. The testimony of Joseph D. O'Keefe, Respondent's
Director of Labor Relations, establishes that the meaning
behind the X's and O's on Respondent's absence records is
as follows: An O for a particular day indicates that the
employee was absent without calling in. An X shows that
the employee was absent but called in. A comparison of
the X's and O's on Laws' absence record with the list of
notations indicates, in the absence of evidence to the con-
trary, that either an X or an O may be excused depending
upon the validity of the reason. Taking these factors into
account, an analysis of Laws' absence record for the 90-
day period November 21, 1976, through March 11, 1977,
shows that he acquired four O's, on December 21, January
10, March 8, and March II, for which there is no listed
explanation.25 The only other markings on Laws' record
for the period in question which are not listed as excused
are the X's he received for February 15, 16, 17, and 18,
during which period Laws testified, without contradiction,
that he was on vacation. Although it might seem that a
24 Casserly did not testify. Dale is credited.
25 This total does not count the two O's which Dale succeeded in having
changed to X's but does count the day of the snow. since there is no evi-
dence to show that Laws was treated differently from anyone else with
respect to that day.
vacation period would appear among the notations of valid
reasons for absence on the card and not as X's indicating
that the employee called in, the testimony of Laws shifted
the burden of going forward with evidence in this respect
to the Respondent. No explanation was given. Therefore,
since Laws' absence record indicates that he had not ac-
quired a sufficient number of absences to warrant a repri-
mand, I do not find that Casserly's remark to Dale con-
cerning the National Labor Relations Board hearing
indicates that the Respondent retaliated against Laws for
appearing on behalf of the General Counsel at the January
13 session of the hearing when Casserly refused to retract
the reprimand, in view of my finding, elsewhere in this
Decision, that the Respondent bore no animus toward the
Union and the lack of other evidence proving that the Re-
spondent retaliated against witnesses. I do find, however,
that the Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally changing its absenteeism rules, al-
though its clear purpose in doing so was to stem what it
believed to be a history of excessive absenteeism on the
part of Laws. 26
Finally, there is one other incident involving Union
Steward Gary Dale, which stems directly from the events
surrounding the absenteeism reprimand given to Laws. It is
alleged that on March 18, 1977, Assistant Welding Fore-
man Rouse denied Dale permission to go on union busi-
ness, in violation of Section 8(a)(1) and (5) of the Act.
According to Dale, on Friday, March 18, 1977. after he
informed Laws that the Company was not going to retract
his reprimand, Laws stated he wanted to file a grievance.
After promising Laws that he would obtain permission for
time in which to write the grievance, Dale sought out Assis-
tant Welding Foreman Roger Rouse and told him that he
wanted to write Laws' grievance up after lunch. Rouse an-
swered, "Well, I will get back to you." Later, as Dale was
eating his lunch, Rouse appeared and said that he would
have to write the grievance up on Monday because they
were too busy and it was Friday and he couldn't get any-
one to replace Laws on the job. Dale made no further pro-
test, and the grievance was written up on Monday. Noth-
ing in Rouse's testimony is inconsistent with that of Dale
concerning this incident. However, I find that the Respon-
dent did not violate the Act, under the circumstances pre-
sented, by insisting that the writing of the reprimand griev-
ance be delayed, since it is implicit from the wording of
article 25 of the collective-bargaining agreement and from
portions of the testimony of both the General Counsel's
and the Respondent's witnesses that permission to perform
union business may be denied or postponed where a valid
nondiscriminatory reason exists. Since Rouse's explanation
to Dale concerning why he could not release Laws for the
grievance conference is unrebutted, I find that the General
Counsel has failed to prove that the Respondent violated
Section 8(a)(l) and (5) of the Act by 'efusing to allow the
grievance to be written on March 18, as alleged.2
:t In making this finding I do not rely on the treatment accorded Laws
based upon the 90-da) period following his receipt of an absenteeism repri-
mand on July 23. 1976. since contrary to the General Counsel's analysis. I
find that he could not have been properly issued a reprimand during this
perodsi
Laws' testimony that he as not replaced on Monday while assisting
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. The Docking of Gary Dale's Pay on March 16, 1977, and
Other A llegations Relating to Dale
According to Gary Dale, on August 16, 1976, he went to
Robert Smith's office to turn in some grievances. After ex-
amining the grievances, Smith commented to O'Keefe, who
was nearby, that "this is the kind of ridiculous stuff we are
getting from him." Then Smith told Dale that he was argu-
mentative and belligerent and that he "was trying to turn
things back the way they used to be, and that they weren't
going to have that." Then Smith said that if Dale contin-
ued to go beyond his jurisdiction by soliciting grievances
from those he found missed on the overtime list he would
be taken off clock and docked. Smith also said that if Dale
persisted in this practice he would be on the outside look-
ing in. Smith's remarks are alleged as unlawful threats in
violation of Section 8(a)(1) and (5) of the Act. Dale admit-
ted on cross-examination that during his tenure as steward
he spent as much as 25 percent of his worktime processing
grievances. It is undisputed that the Respondent was inter-
ested in reducing the amount of worktime that employees
unnecessarily spent on union business rather than working.
The Respondent's past problems in this area are well docu-
mented. s The record also indicates that the Respondent
had previously experienced difficulties with respect to
overtime grievances, which led it to believe that the Union
was promoting the filing of grievances. The record does not
establish whether or not this opinion, as expressed by
Smith, was in fact correct. Under all the circumstances pre-
sented, I find that the evidence is insufficient to establish a
violation of Section 8(a)(1) and (5) of the Act.
Later that same afternoon, a second-step grievance
meeting was held, which was attended by a grievance com-
mittee: O'Keefe, Smith, Dale, and Mucha. Since Dale had
already related to Muchas the substance of his earlier con-
versation with Smith, Mucha inquired about the matter.
According to Dale, Smith answered that Dale had been
argumentative and belligerent and was soliciting griev-
ances from employees Howard and Hill when they were
skipped on the overtime list. He said that from then on if
Dale wanted permission to go on union business, he would
have to get it directly from Smith. Then, according to Dale,
Mucha asked when this procedure started, and Smith re-
plied, "Right now." At this point Dale protested, and
O'Keefe said, "Well, from now on, if you continue to go on
union business without getting Smitty's permission, then,
you will be taken off the clock and docked and also if you
go out of your jurisdiction and solicit grievances, you will
be taken off the clock and docked."
Mucha testified that at the outset of the grievance meet-
ing Smith made an announcement directly toward O'Keefe
that from then on Dale would have to see Smith to go on
union business. The remainder of Mucha's description of
the conversation also varies considerably from Dale's ver-
sion. Smith denied having issued instructions to Dale to the
effect that Dale would have to see him personally in order
Dale in preparing the written grievance suggests nothing in the absence of
evidence showing that the same production and manpower situation existed
as were present on Friday.
2s 226 NLRB 788 (1976}.
to secure permission to conduct union business during
working time. I credit Smith's denial and discredit the testi-
mony of Dale and Mucha in this respect because of the
substantial differences in their versions and because the
record shows that at subsequent times Dale asked for and
received permission to go on union business from other
supervisors without any admonishment that permission
could only be obtained from Smith. I find that the Respon-
dent did not violate Section 8(a)(l) and (5) of the Act by
unilaterally changing the terms of the collective-bargaining
agreement concerning seeking permission from supervisors
to engage in union business, as alleged.
The General Counsel alleges that on January 14, 1977,
Joseph O'Keefe threatened Dale that he would be kept
under surveillance because of his attendance as a witness
at the January 13, 1977, session of the hearing in this mat-
ter. According to Dale, he attended the meeting that day
with Smith and O'Keefe, in which they kept accusing him
of soliciting grievances in the past and stated that they
were going to be watching him in the future to make sure
he did not solicit grievances, since the NLRB had already
ruled that stewards were not permitted to solicit griev-
ances. Smith remembered having a conversation with Dale
that day involving the problem of a large number of em-
ployees refusing to work overtime on Saturday but made
no reference in his testimony to any comments accusing
Dale of soliciting grievances. O'Keefe made no reference
whatsoever to this conversation. I therefore credit Dale's
undisputed testimony that he was cautioned that the Re-
spondent's supervision would be watching to see if he were
soliciting grievances from employees. I find, however, that
the Respondent did not violate Section 8(a)(1) and (5) of
the Act, since the remark was made in the context of cau-
tioning Dale against improperly using the grievance ma-
chinery as a device to harass the Respondent and was
clearly not a threat to engage in surveillance of Dale's legit-
imate union activities.29
It is also alleged that on March 16, 1977, Personnel
Manager Richard Casserly refused to supply Dale with in-
formation necessary to process a grievance. On March 16,
Dale requested that the Respondent supply the last known
addresses of certain former employees in order that griev-
ance settlement checks could be sent to them, pursuant to
an arrangement between the Company and the Union that
the Union would be responsible for distributing the checks.
It is undisputed that Dale handed the list of names to a
personnel office employee named John, who commented
that he would send them down in the mail. Three or four
days later, when Dale picked up his mail in the welding
office, he found the list returned without addresses but
with a note from Casserly stating, "Gary Dale, please ar-
range to secure the addresses of these men from your union
financial secretary." Casserly did not testify. It is undisput-
ed that Dale never received the requested information from
29 the complaint in Case 8-CA 10905 alleges in par. 10(d) that. com-
mencing on or about January 14. 1977. and continuing the Respondent has
kept "an employee" under surveillance Although the date in this allegation
corresponds with the date of Dale's conversation with O'Keefe and Smith.
there is no contention by the General Counsel in his brief that the Respon-
dent's conduct with respect to Dale falls within the scope of this allegation.
In any event, there is no evidence to support this allegation with respect to
Dale.
AMERICAN SHIP BUILDING COMPANY 15
the Respondent and that the Respondent has at all times
thhreafter refused to furnish the information on the basis
of its contention that the Union could readily secure it
elsewhere. The Board has held on many occasions that em-
ployees' collective-bargaining representatives are entitled
to information relevant to the processing of grievances.
This principle clearly extends to information readily avail-
able from the employer, even though such information
might ultimately be obtained from other less convenient
and less reliable sources. The relevance of the information
which Dale sought cannot seriously be questioned. I there-
fore find that when the Respondent, through Casserly, re-
fused to supply that information it violated Section 8(a)( )
and (5) of the Act.
It is also alleged in paragraphs (H) and (I), respectively,
of the complaint in Case 8-CA-10905, that on March 16
the Respondent docked the pay of Gary Dale and threat-
ened to discharge him because of his union activities.3 As
noted earlier in this Decision, it was on March 16 that Dale
decided it was necessary to obtain the list of addresses in
order to send the checks to the ex-employee grievants. Ac-
cording to his testimony and that of Assistant Welding
Foreman Rouse, Dale approached Rouse immediately af-
ter lunch and asked for permission to go on union business
to the employment office. In accordance with the usual
procedure, Rouse inquired concerning the nature of the
union business, and Dale stated that he needed a list of the
addresses of the successful grievants in order to mail the
checks. At this particular time, Rouse was supervising all
of the prefab in the yard himself and was undermanned.
He also had some matters that needed his attention on the
opposite side of the yard. Consequently, he responded,
"Go back to work, and I will get back to you." This an-
gered Dale, who protested, "Well, wait a minute. I want to
go on union business." When Rouse repeated that he
would get back to Dale, Dale exploded, saying, "Well, lis-
ten, Rouse, I am not going to take any of this s- this time.
I'll write you up." Rouse answered, "Come with me," and
took Dale to Smith's office, where he told him to wait.
After Rouse talked with Smith, they called Dale into the
office, where Smith asked him if what he said was true.
When Dale did not deny Rouse's version, Smith ordered
him taken off the clock until he reported back to work.
Dale also received a reprimand for misconduct, citing him
for conduct "bordering on insubordination" and further
stating, "Mr. Dale was advised that he will be removed
from the clock until he so informs his supervisor that he is
ready to return to work as a welder, which is his classifica-
tion. Mr. Dale is advised that if he follows this line of
action he will be discharged. Mr. Dale's primary job at
Amship is a welder and the Company is expecting him to
be a welder. The Company is also aware that Mr. Dale is a
union steward and he will have union problems and we will
allow him the time necessary to conduct his union business
when it is less probable to disrupt the work force within the
frame of the contract."
0 Although not alleged in the complaint hut advanced for the first time in
his brief. the General ('ounsel's contention that the reprimand which ac-
companied the docking of Dale's pay was also issued to him for a discrimi-
nator) purpose was fully litigated and will also be considered.
The General Counsel argues that the Respondent vio-
lated Section 8(a)( ) and (5) of the Act by unilaterally
changing the terms of the collective-bargaining agreement,
in refusing to allow Dale to go on union business, and by
threatening Dale with discharge because of his union activ-
ities. The General Counsel points to the language of article
25 of the contract, which states that releases for union busi-
ness "will not be unduly or arbitrarily withheld by the
Company" and that a loss of earnings "will not result . .
provided a request has been made to the supervisor to
leave the work assignment." The General Counsel points to
the testimony of Harvey Krieg, the Union's president, who
attended the contract negotiations which resulted in the
addition of this language, to the effect that the words "un-
duly and arbitrarily" were intended to mean that the em-
ployee could go on union business promptly unless an
emergency had arisen. Finally, the General Counsel argues
that Dale's remark to his supervisor did not constitute in-
subordination, in view of the frequent use of what is de-
scribed as "shipyard vernacular." The Respondent argues
that Rouse did not arbitrarily deny Dale permission to go
on union business and that the docking of Dale's pay, con-
sidered in the light of his remark to his supervisor and his
refusal to return to work, was justified.
It is clear from the language contained in artciles 21 and
25 of the collective-bargaining agreement, and from the
testimony of many of the witnesses on both sides of this
case, that it is well understood that those employees, includ-
ing stewards, who wish to go on union business must se-
cure the permission of their supervisor. Implicit in this con-
tractual language is the concept that the work of the
shipyard must continue in an orderly and productive fash-
ion and that therefore the supervisor may find it necessary
to temporarily postpone the granting of the employees' re-
quest: otherwise the word "notice" would have been the
choice instead of "permission." The testimony of many of
the witnesses on both sides of this case clearly supports this
interpretation. The only other contractual requirement is
that permission not be "unduly or arbitrarily withheld." It
is unnecessary for the purposes of this case to determine
whether or not the concerns which Rouse testified prompt-
ed him to tell Dale to return to work and that he would get
back to him later fall within Union President Krieg's un-
derstanding of the definition of an "emergency," if that in
fact was the word used in the collective-bargaining discus-
sions which resulted in the article 25 language.3' The legiti-
macy of the factors considered by Rouse in telling Dale to
go back to work for the time being were not rebutted. It is
clear that Rouse did not refuse to permit Dale to go on
union business but simply delayed permission. Dale's re-
quest related to a purely clerical matter which could have
easily been performed at another, more convenient time.
The Respondent was admittedly concerned about the
amount of time lost off the job for union business. Respon-
Il Krieg, whose discharge in October 1974. for rejecting a work assign-
ment on the grounds he was preoccupied with a grievance, was upheld by
the Board in 226 NLRB 788 (1976). can hardly be considered an unbiased
witness on substantially the same ssue n this proceeding. In testifying, he
exhibited a propensity toward exaggeration and elaboration. On cross-ex-
amination he was evasive and frequentl, exhibited an eagerness to tell a
winning story for the charging parties. I do not credit his testimony except
where specifically noted.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent was clearly concerned that Dale's frequent demands
to go on union business should not develop into the type of
situation it had experienced with Union President Krieg.
Dale agreed that he spent as much as 25 percent of his time
on union business and that he was never prevented from
filing grievances. He also testified that after Smith stated
he would be taken off the clock until he returned to work
he ignored Rouse's original instruction and proceeded to
conduct all of his union business before returning to work.
I find that the General Counsel has failed to prove that the
Respondent acted arbitrarily in refusing to allow Dale to
pursue his union business at the precise time he desired to
do so. I find that the Respondent's actions in disciplining
Dale for defying his supervisor's instruction to return to
work, docking his pay for the time in which he persisted in
remaining off the job, and warning him that further con-
duct of this nature would result in his discharge did not
constitute any unilateral change in established procedures
nor constitute unlawful retaliation against Dale for his
union activities. I therefore find that the Respondent did
not violate Section 8(a)(l) and (5) of the Act by repri-
manding and warning Dale and by docking his pay on
March 16, 1977, as alleged.
J. William Lyons
Within the scope of paragraphs 10(B) and (C) of the
complaint in Case 8-CA-10905, the General Counsel alleg-
es that on January 10, 1977, Assistant Welding Foreman
Roger Knight refused to allow Lyons, the alternate stew-
ard, to talk to employee Cash Johnson privately about a
grievance and that on January 12, 1977, Robert Smith re-
fused to allow Lyons time to file a grievance on employee
Gary Duncan.
Based upon William Lyons' undisputed and credited tes-
timony concerning the incident, I find as follows: On Janu-
ary 10, Roger Knight came to where William Lyons was
working and told him to go with him because Cash John-
son had requested to see his steward. The two men pro-
ceeded to where Johnson was working. As Lyons attempt-
ed to understand Johnson's complaint, Knight kept
interrupting. As a result of these interruptions, Lyons
asked Knight to step to one side while he talked with John-
son, whereupon Knight interjected, "That's enough of this
b-s-," and ordered the men back to work, despite Lyons'
protests that he was conducting union business with
Knight's permission. The conversation ended with Lyons
informing Knight that he would take the verbal step of
Johnson's grievance up with him on their way back to the
job.
The General Counsel contends that Knight's conduct
constituted interference with the grievance procedure and
a unilateral change in the accepted procedure under the
contract for processing grievances. The Respondent put on
no evidence to contest this issue and has not stated its
position with respect to it in its brief. In agreement with the
General Counsel, I find that the Respondent violated Sec-
tion 8(a)(l) and (5) of the Act by Knight's conduct as de-
scribed above. Although it could conceivably be argued
under the language set forth in article 25, paragraph (1),
that the first step of the grievance procedure consists only
of a joint discussion of the employee's complaint among a
group composed of the employee, his steward, and the sup-
ervisor, therefore ruling out private conferences, it is only
logical and reasonable to expect that the steward, who fre-
quently knows nothing of the employee's complaint in ad-
vance, would first need to discuss the matter with the griev-
ant.32 Furthermore, it is self-evident that where, as here, the
initial stage of the grievance procedure calls for participa-
tion by the steward, in order to function effectively on the
employee's behalf, or even in the case of an early settle-
ment, an investigation of the employee's complaint must
first be conducted. Since no orderly investigation of
Johnson's side of the story could be conducted, in view of
Knight's interruptions, it was reasonable, and consistent
with the practice followed in other such grievance discus-
sions in evidence in this case, for Lyons to request to talk
with Johnson privately. When Knight, in effect, refused to
permit this discussion to continue by ordering the men
back to work, after he had previously given his permission
for Lyons to conduct this union business at that time, he
clearly altered the accepted practice in processing griev-
ances under the first step of the collective-bargaining
agreement, in violation of Section 8(a)(1) and (5) of the
Act. I find, however, that Knight's action was motivated
not by any union animus but by a desire to maintain a
strict adherence to the terms of the collective-bargaining
agreement and by a desire not to waste working time.
On January 12, in Dale's absence, Lyons was called to
Smith's office, where he found Gary Duncan in the process
of being discharged for allegedly purposely grounding out
a welding machine. At the end of the discharge interview,
after Duncan had left to turn in his gear, Lyons informed
Smith that he wanted to grieve concerning the matter. Ac-
cording to Lyons' direct testimony, Smith then ordered
him to return to work immediately. Lyons protested, and
Smith persisted, saying, "I am giving you a direct order to
go back to work." Lyons said he was returning to work
under protest and left.
The Respondent argues that Lyons' difficulty with Smith
stemmed from the fact that Lyons, the alternate steward,
did not understand the operation of the grievance proce-
dure, attributable to his infrequent use as an alternate
steward. The total evidence in the record supports the Re-
spondent's view concerning the grievances handled by
Lyons. Thus, article 25 of the collective-bargaining agree-
ment provides for a 24-hour period between the time in
which the verbal step is taken and the time in which it is
required that the grievance thereafter be presented in writ-
ing. It is clear that the purpose of :his 24-hour period is to
give the Respondent an opportunity to check into the mat-
ter, formulate its position, and possibly settle or otherwise
dispose of the complaint at this first stage. The record is
clear, as in the case of the similar handling of the Alldaffer
matter, that Lyons did not understand the purpose of this
24-hour period. Therefore, when Duncan was discharged
and Lyons attended the discharge conference in Smith's
office and discussed his intention to file a grievance, the
12 Unlike the procedure under art. 15 of the agreement, where the steward
acquires his knowledge of the situation by a joint visual inspection of the
working conditions accompanied by the supervisor.
AMERICAN SHIP BUILDING COMPANY 17
initial phase of the grievance procedure was completed and
the 24-hour period began. It was neither necessary nor
timely for Lyons to present Smith with a written grievance
at that time, and consequently Smith operated lawfully and
within the provisions of article 25 of the contract in in-
structing him to return to work. The correctness of this
analysis is supported by Respondent's Exhibits 5 and 6,
which show that on January 12, 1977. Lyons was permitted
time to write two grievances involving Cassius Johnson.
These exhibits also show that the verbal step of each griev-
ance was taken up with Robert Smith on the preceding
day, January 11, 1977. Since it is clear that the Respondent
operated within the framework of the collective-bargaining
agreement, I find that the General Counsel has failed to
prove the Respondent violated Section 8(aXI) and (5) of
the Act concerning the January 12, 1977, incident between
Lyons and Smith.
K. Miscellaneous Allegations
The consolidated complaint in Cases 8-CA-10369 and
8-CA-10396, paragraph 10(C), alleges that in late July
1976 Joseph O'Keefe attempted to interfere with the opera-
tion and administration of the Union by requesting that
employee Lonnie Parrett be made a steward. Bert Mucha,
the Union's vice president, testified that prior to a second-
step grievance meeting on August 16, 1976, Mucha had a
discussion with O'Keefe in which O'Keefe stated that he
had remarked to Lonnie Parrett that he would like to see
him back as union steward again. Mucha responded that
O'Keefe was "supposed to stay out of this as far as being
for management," and that he had no right "to go up to
our people." Harvey Krieg testified concerning a similar
incident in mid-July 1976, in which O'Keefe remarked that
the present burning steward, named Harry Gongoloff,
wasn't doing a very good job and that he had asked Parrett
why he didn't take the job back as steward because
O'Keefe thought he could do a better job. The testimony of
Mucha and Krieg concerning these conversations is undis-
puted and credited. However, I find that this casual inquiry
by O'Keefe, which was in effect simply a compliment to
Parrett on his past performance as steward, unaccompa-
nied by any form of inducement or coercive pressure, does
not achieve the level of a violation of the Act. Further-
more, Parrett did not testify, and consequently the testi-
mony of Krieg and Mucha is hearsay concerning the ques-
tion of what O'Keefe actually said to Parrett. In the final
analysis, what actually took place was a discussion on two
occasions between the Union's chief representatives and
O'Keefe relating to the difficulties which Respondent was
experiencing with certain of the Union's present stewards
compared with the Respondent's earlier relationship with
Parrett. It is clear, and I find, that these conversations did
not violate Section 8(a)(1) and (5) of the Act.
The General Counsel contends that on June 17, 1976,
Foreman Jerry Przytulski violated Section 8(a)(1) and (5)
of the Act by refusing to obtain a steward for employee
Gary Stotzer and ordered him back to work, as alleged in
paragraph 10(B) of the consolidated complaint in Cases 8-
CA-10369 and 8-CA-10396. Gary Stotzer's testimony was
extremely confused and indefinite. He testified:
Q. When did you ask to see your Union steward?
A. I don't remember the date, but I had asked for
one. I was cutting off pad eyes on top of the boat on
the mid-body Sterling, and there was pad eyes already
cut off or something and one was gouged real bad,
and I asked for a Union steward and I had already
been mad at him from the day before, you know, be-
cause it was over wasting Company property or some-
thing, you know, between another burner that I had
helped.
Q. So that conversation was a day before?
A. Right. Then, when I talked to Jerry about it, I
tried to get a Union steward and he refused me.
Q. What did he say to you?
A. He said, "You are not getting one. I am ordering
you to the job now," you know, and I didn't get a
Union steward that day or the next.
It happened so long ago, it is hard for me to remem-
ber, you know.
Q. Was this conversation with Przytulski right after
you received a reprimand?
A. Yes, a day later.
Przytulski testified that on June 17, 1976, he boarded the
ship, where he had assigned Stotzer the job of cleaning up
the spar deck. Stotzer immediately said that he wanted to
see his steward. Przytulski answered that he saw no appar-
ent reason for a steward then because he was simply giving
him a work assignment, but Stotzer persisted, saying, "I
don't want to f- up and get another reprimand for noth-
ing." 33 The conversation ended with Przytulski telling
Stotzer to go to work while he went to look for the steward.
Przytulski then proceeded to find Steward Harry Gongo-
loff, who dismissed the matter somewhat casually and did
not come. Although the record does not reveal the basis for
Przytulski's conclusion that Gongoloff was not interested
in Stotzer's complaint, indeed a strange reaction by an em-
ployee's steward when summoned to handle the grievance.
I find that Przytulski's testimony, considered on the whole,
is far more reliable and likely to be true than that of Stot-
zer. Przytulski impressed me as an honest and straightfor-
ward witness. On the other hand, Stotzer was clearly not
just an employee who was afraid and reluctant to testify, as
argued by the General Counsel. Beyond this, Stotzer's de-
meanor, as clearly reflected in the record, was one of ex-
treme belligerence and hostility. He frequently stated that
he could not remember the events about which he was
questioned. He displayed an extremely agitated state while
testifying. The record clearly shows that Stotzer's only co-
herent thought while testifying was that he wanted to leave
the stand as quickly as possible, and he conveyed the clear
impression that he cared very little what he said as long as
that objective was attained. I do not belive his testimony,
and I find that the General Counsel has failed to prove that
the Respondent violated Section 8(a)(l) and (5) of the Act
with respect to the incident involving Stotzer and Przytul-
ski on June 17, 1976.
33 Stoizer had previously received a repnmand for poor work on a job
performed in conjunction with an employee named Harrm Akerman. The
reprimand was later withdrawn when it was discovered that Stotzer was not
responsible.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel argues that Yard Superintendent
George Saunders violated Section 8(a)(1) and (5) of the Act
on March 7, 1977, by telling Gary Dale and Bert Mucha
that the Company would tell the Union's stewards when
they could go on union business and that they would have
their pay docked if they went at other times. According to
Gary Dale, the discussion occurred in the context of a
third-step grievance meeting attended by Harvey Krieg, In-
ternational Representative Sepalak, O'Keefe, and Saun-
ders. One of William Lyons' grievances was being dis-
cussed, when someone from the Union pleaded that all
they wanted to do was to be able to go on union business.
Saunders answered that he paid the wages, that he would
tell them when they could go on union business, and that
he was not going to give everyone a free pass to go where
they wanted. Dale did not place Mucha in attendance at
that meeting and did not make any reference in his testi-
mony to the subject of docking anyone's pay. Nevertheless,
Mucha testified that he attended the meeting, in which he
heard Saunders' remark, "We are paying the bills and we
will tell the steward when to grieve or when to go on union
business." After an objection by the Union, Saunders con-
tinued, saying that if "any employee goes on union busi-
ness, they will be docked. They will be taken off the clock.
Just because a steward has a rough night the night before,
doesn't mean he can goof up in the yard the next day. We
are not going to tolerate it." Saunders did not testify at the
hearing; nor were Krieg, Lyons, Sepalak, nor O'Keefe
called upon to testify about this incident. However, be-
cause of the serious differences in their respective testi-
monies, as noted above, and considering other testimony in
this case which clearly shows that the Respondent objected
only to the Union's position that it could go on union busi-
ness at any time upon demand, unless an emergency arose,
regardless of the work requirements of the Company, I do
not credit the testimony of Dale and Mucha concerning
this incident and find that George Saunders did not make
the remarks attributed to him on March 7, 1977, and did
not violate Section 8(a)(l) and (5) of the Act.
L. The Course of Conduct Bad-Faith Bargaining
A [legations
The General Counsel contends that not only did the Re-
spondent engage in conduct amounting to unilateral
changes in wages, hours, and working conditions, but also
the sum total of Respondent's actions evinces an intent to
avoid meaningful negotiations with the Union, to frustrate
the grievance procedure, and to discourage employees
from engaging in union and protected concerted activities.
I am persuaded that this theory is illogical and without
merit when considered in the total context of the entire
record and the background furnished by the Board's deci-
sion in American Ship Building Company, 226 NLRB 788
(1976).
The issues in American Ship Building, id., closely parallel
the issues in this proceeding. In some respects it is arguable
that the instant case is an outgrowth of the Board's deci-
sion in that case and the ensuing changes in contract lan-
guage in the 1975-78 agreement, applicable here. In that
case Administrative Law Judge Almira Abbot Stevenson,
in finding certain unfair labor practices and recommending
the dismissal of other allegations stated at pages 792-793
and 802, respectively:
The record shows an association between the Com-
pany and several unions, including the Charging Party
Union, which has existed for many years. Some of the
supervision and management officials involved in this
proceeding themselves have backgrounds of union af-
filiation and advocacy. Although the association
doubtless has undergone periods of strain as it certain-
ly did in late 1974 and early 1975, nevertheless collec-
tive-bargaining agreements have been negotiated, en-
tered into, and administered. Grievances have been
filed regularly and processed through the grievance
procedure to and including arbitration. Other than ex-
pressions of disagreement and exasperation normally
characteristic of the arm's-length bargaining relation-
ship, there is no substantial probative evidence of any
desire by Respondent to deprive its employees of rep-
resentation by the Union or unions of their choice to
which they are entitled, or of other union animus.
* * *
There is no evidence that the Respondent refused to
hear the Union's evidence or arguments in support of
these grievances, or that it in any other way failed to
give them fair consideration.
I do not believe that the above facts justify the con-
clusion that O'Keefe intended to subvert or under-
mine the grievance procedure, or that his conduct on
this occasion was motivated by bad faith. Accord-
ingly, I conclude that this allegation is not supported
by a preponderance of the evidence and recommend
that it be dismissed.
The Board, in adopting in part and modifying in part Ad-
ministrative Law Judge Stevenson's Decision, did not dis-
turb her finding that no union animus existed and that the
Respondent was not seeking to subvert the grievance pro-
cedure. 34
In my view, the same factors referred to by Administra-
tive Law Judge Stevenson are dispositive of the General
Counsel's "course of conduct" theory here. Likewise, the
record in the instant case reflects that many of the super-
visors whose conduct is in issue were officers or formerly
held important positions of responsibility in the various
Unions representing the Respondent's employees, includ-
ing the Boilermakers. Moreover, Bert Mucha, John J. Gau-
ghan, Sr., Thomas Visloski, James Blackburn, and Millard
Sturgell, officials in their respective unions, each testified
that the Respondent has processed grievances under the
contract in an atmosphere free from union animus, harass-
ment, or interference. Obviously, in recent years difficulties
have arisen between the Respondent and the Boilermakers
which have led to litigation. To attempt to determine
whether this case has its genesis in hostility engendered by
4 I1he Board's major modification of Administrative Law Judge
Stevenson's Decision was to find that Union President Krieg was lawfull)
discharged for insisting on performing union business at a time when he
should hase been working.
* *
AMERICAN SHIP BUILDING COMPANY 19
Krieg's abuse of his privileges as Union President as de-
scribed in American Ship Building, id., thereby setting off a
campaign of harassment directed toward the company, or
whether its roots are found simply in the company's desire
never again to allow the problem of balancing the need to
permit time off for union business versus production needs
to get out of hand, or whether the cause lies in other areas,
would simply be an indulgence in mere speculation, con-
sidering the state of this record. 35 I do not do so. Such an
assessment is unnecessary in any event, since the only ger-
mane question is limited to whether or not substantial evi-
dence exists that the Respondent sought to undercut the
Union, as alleged, In the absence of evidence sufficient to
prove any animus toward the Union or the collective-bar-
gaining process, I find that the General Counsel has failed
to meet his burden of proof on this issue and that the Re-
spondent has not violated Section 8(a)(l) and (5) of the Act
by engaging in "course of conduct bad-faith bargaining."
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to furnish the Union with information
concerning the addresses of employees and former employ-
ees in order that the Union could forward to them checks
due them as a result of grievances they had filed, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
4. By refusing to allow Alternate Union Steward Lyons
to talk privately with an employee concerning a grievance
and by reprimanding Steven L. Laws on March 11, 1977,
for excessive absenteeism in contravention of its estab-
lished rules and practices, the Respondent unilaterally
changed the wages, hours, and working conditions of its
employees in violation of Section 8(a)(1) and (5) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent did not violate the Act in any re-
spects other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order that
the Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act. Accordingly, I find it necessary to order that the
Respondent, upon request, furnish the Union with the ad-
dresses of employees and ex-employees whenever such in-
formation is necessary to the processing of grievances at
any stage of the grievance procedure.
Having found that the Respondent violated the Act by
issuing a reprimand to Steven L. Laws on March 11, 1977,
I order the Respondent to rescind this reprimand and to
( Certainly. if the source of friction should be the Respondent's strict
adherence to its rules. or stringent enforcement of provisions of the collec-
tive-bargaining agreement, the remedy lies in negotiation. not litigation
remove it and expunge any reference thereto from Laws'
personnel file. Having found that the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally changing
the wages, hours, and working conditions of its employees
with respect to its refusal to allow the Union's employee
representatives to talk privately with employee-grievants I
order the Respondent to restore its employees' wages,
hours, and working conditions in this respect and, if the
Respondent still desires such a change, to bargain in good
faith with the Union concerning the change.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 36
The Respondent, American Sit 7 Building Company,
Lorain, Ohio, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with the Union by
refusing to furnish the Union with requested information
concerning the addresses of employees and former employ-
ees who have filed grievances which are being processed
through the grievance procedure of the collective-bargain-
ing agreement.
(b) Unilaterally changing the wages, hours, or working
conditions of its employees by prohibiting the Union's em-
ployee representatives from speaking privately with em-
ployees who desire to file grievances under the grievance
procedure of the collective-bargaining agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, supply the Union, through its employ-
ee or nonemployee representatives, with the addresses of
employees and former employees whose grievances are
being processed through any stage of the grievance proce-
dure in the collective-bargaining agreement.
(b) Restore the wages, hours, working conditions, and
other terms and conditions of employment appertaining to
the Union's employee representatives, with respect to pri-
vately interviewing employees who wish to file grievances,
at the time of the Respondent's unilateral changes.
(c) Upon request, bargain collectively in good faith with
the certified joint representative, including International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers, and Helpers, Local Lodge No. 358, AFL-
CIO, of its employees in the appropriate production and
maintenance unit concerning any changes in the wages,
hours. working conditions, and other terms and conditions
of the Union's employee representatives which have been
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established either by the collective-bargaining agreement
or by practice.
(d) Rescind the reprimand given to Steven L. Laws on
March 11, 1977, and expunge any reference to it from his
personnel file.
(e) Post at its shipyard in Lorain, Ohio, copies of the
attached notice marked "Appendix." 7 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 8, after being duly signed by an authorized represen-
tative of Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaints be, and they
are hereby are, dismissed insofar as they allege violations
of the Act not specifically found herein.
37 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unilaterally change the wages, hours,
or working conditions of our employee union repre-
sentatives or stewards established by practice, by re-
fusing to permit them to privately interview employees
who wish to file grievances under the provisions of the
collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the National
Labor Relations Act, as amended.
WE WILL restore the wages, hours, and working con-
ditions, and other terms and conditions of employ-
ment appertaining to the employee representatives
and stewards of International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers, and
Helpers, Local Lodge No. 358, AFL-CIO, to the sta-
tus which existed at the time of the unilateral changes;
and WE WILL. upon request, bargain collectively in good
faith with the certified joint representative of our em-
ployees in the appropriate production and mainte-
nance unit concerning any changes in wages, hours,
working conditions, and other terms and conditions of
employment of the employee union representatives
and stewards of our employees established by prac-
tice.
WE WILL, upon request, furnish the Union with the
addresses of employees and former employees whose
grievances are being processed through any stage of
the grievance procedure in the collective-bargaining
agreement.
WE WILL rescind the reprimand given to Steven L.
Laws on March 11, 1977, and will remove it and ex-
punge any reference to it from his personnel file.
AMERICAN SHIP BUILDING COMPANY