Atlantic Marine, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 29, 1971193 N.L.R.B. 1003 (N.L.R.B. 1971) Copy Citation ATLANTIC MARINE , INC. 1003 Atlantic Marine, Inc., and Atlantic Drydock Corpora- tion and International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths , Forgers, and Helpers, AFL-CIO. Case 12-CA-4891 October 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 11, 1971, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondents and General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as hereinafter modified. 1. The Trial Examiner found and the record establishes that on the morning of July 9, the day employee Boggs was discharged, his immediate supervisor, Hunter, asked him if what he had heard about the Union were true. The Trial Examiner, because of Hunter's temporary supervisory status and the "vagueness" of the inquiry, concluded that this interrogation did not warrant a finding of a violation of Section 8(a)(1). We disagree with this conclusion. Boggs was one of the first two employees to take an i The Respondents have excepted to certain credibility findings made by the Trial Examiner It is the Board 's established policy not to overrule a Trial Examiner 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings 2 In view of our adoption of the Trial Examiner' s finding that Respondents violated Section 8(a)(I) of the Act by stating that they would shut down rather than deal with a union, we need not pass on the Trial Examiner's alternative finding in this connection active role in the Union's organizational efforts, having signed a card the preceding day, July 8. When questioned about the Union by Hunter, he offered Hunter a card, and thereafter, during the day of July 9, solicited other employees to join the Union. Hunter terminated him because of these activities at the end of that day in violation of Section 8(a)(3) of the Act. Thus, this interrogation was not merely a vague inquiry by one without substantial authority. On the contrary, it clearly was part of the Respondents' campaign to identify and rid themselves of the union adherents in their employ. In all the circumstances, therefore, we find the interrogation of Boggs coercive and in violation of Section 8(a)(1). 2. We also find, contrary to the Trial Examiner, that Respondents violated Section 8(a)(1) when Supervisor Gordon interrogated employee Johnson. Gordon, on July 9, asked employee Johnson if he knew about the Union. Johnson answered in the affirmative, and added that he would sign a card at the first opportunity. The Trial Examiner, because of the longstanding social relationship between Johnson and Gordon, and since Gordon was not Johnson's supervisor, characterized the questioning as a casual expression of curiosity by a friend. We do not agree. The next day Gordon reported to Manager Dough- erty that Johnson had spoken favorably of the Union and had signed a card; that afternoon Johnson was terminated because of his union adherence, in violation of Section 8(a)(3). Moreover, Gordon violated Section 8(a)(1) by giving employees the impression that the Respondents were engaging in surveillance, threatening to shut down rather than deal with a union,2 and telling Johnson he could get his job back if he did not file a charge with the Board. Accordingly, in this context, we find that the aforementioned interrogation was coercive, and therefore violated Section 8(a)(1) of the Act.3 The complaint alleged, the Respondents admitted, and we find that the two corporations, Atlantic Marine, Inc., and Atlantic Drydock Corporation, constituted a single employer within the meaning of the Act. We therefore conclude that Atlantic Drydock and Atlantic Marine are jointly responsible for remedying the unfair labor practices committed.4 Accordingly, we shall enter the appropriate order and remedy. 3 Respondents , in their exceptions , contend that the issue of Hartley's interrogation of employee Johnson which the Trial Examiner found coercive and violative of Section 8(a)(l) was not fully litigated In view of our findings of other unlawful interrogations , it is unnecessary to pass on this issue because the effect of such finding would be cumulative and would not alter the order or remedy Accordingly, we do not adopt the Trial Examiner 's findings on this issue. 4 Calcasieu Paper Co, Inc., 99 NLRB 794, enfd . 203 F 2d 12 (C.A. 5); Darlington Manufacturing Company, 165 NLRB 1074, 1077, enfd 397 F.2d 760 (C A. 4); Texas Transport & Terminal Co., Inc., 187 NLRB No. 78. 193 NLRB No. 145 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondents, Atlantic Marine, Inc., and Atlantic Drydock Corporation, constitute a single employer within the meaning of Section 2(5) of the Act and are engaged in a business effecting commerce within the meaning of 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union activities, by threatening reprisals for union activity, by creating the impression of surveil- lance of employee union activity, and by promising to rehire Johnson if he did not file a charge with the Board, Respondents violated Section 8(a)(1) of the Act. 4. By terminating the employment of Potter, Johnson, and Boggs because of their union activities, Respondents violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Atlantic Marine, Inc., and Atlantic Drydock Corpo- ration, Jacksonville, Florida, their officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Discouraging membership in, or lawful activity on behalf of, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO, or any other labor organization, by discharging any employee because he engaged in union activity, or by discriminating against any employee in any manner in regard to hire or tenure of employment, or any term or condition of employ- ment. (b) Interrogating employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (c) Offering employees inducements to refrain from filing charges with the Board. (d) Threatening to engage in or engaging in reprisals if employees join or assist a labor organization, or select a representative for collective bargaining. (e) Creating the impression of surveillance of union activity. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization; to form, join, or assist the above- named Union, or any other labor organization; to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer to Roy Potter, David Johnson, and Condon Boggs immediate, full, and unconditional reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions. (b) Notify the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Make whole the above-named employees for any loss of earnings they may have suffered by reason of the discrimination, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at their facilities in Jacksonville, Florida, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondents' authorized representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dents to ensure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 5 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ATLANTIC MARINE, INC. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT say anything to give the impres- sion that we are watching out for employees' union activities. WE WILL NOT discharge or otherwise discrimi- nate against employees because of their activities on behalf of International Brotherhood of Boiler- makers , Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO, or any other union. WE WILL NOT offer inducements to employees not to file charges with the National Labor Relations Board. WE WILL NOT unlawfully question you concern- ing your union activities. WE WILL NOT threaten to shut down because of the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights to self-organization; to form, join, or assist any labor organization; and to bargain collectively with us concerning terms or conditions of employ- ment through the representative you select; or to refrain from any of these activities if you so choose. WE WILL offer to Roy Potter, David Johnson, and Condon Boggs immediate and full reinstate- ment to their former jobs with us or, if these jobs no longer exist, to substantially equivalent posi- tions , and pay them the wages they lost because of the discrimination against them with interest at 6 percent per annum. You and all our employees are free to become or remain , or to refrain from becoming, members of, or withdrawing from membership in, International Brotherhood of Boilermakers, Iron Shipbuilders, 1005 Blacksmiths , Forgers , and Helpers, AFL-CIO, or any other labor organization. ATLANTIC MARINE, INC., AND ATLANTIC DRYDOCK CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The original charge herein was served on July 14, 1970,1 the complaint issued on October 29, and the case was heard on December 16 and 17. The issues litigated related to alleged violations of Section 8(a)(1) and (3) of the Act. After the hearing briefs were filed by the Respondents and the General Counsel. Upon the entire record,2 the following findings and recommendations are made. 1. RESPONDENTS' OPERATIONS Atlantic Marine, Inc., hereinafter designated as Marine, and Atlantic Drydock Corporation, hereinafter called Drydock, are corporations under Florida law, with a principal place of business in Jacksonville, Florida, where they are engaged, respectively, in the business of shipbuild- ing and ship repair. It is admitted that they have at all times here material been commonly owned and controlled, having common officers and directors and a common labor relations policy, that their operations are integrated, and that they "constitute a single employer within the meaning of the Act." It is further admitted that during the year preceding the issuance of the complaint each of them purchased from out-of-state suppliers goods valued at more than $50,000. It is found that Marine and Drydock, hereinafter I All dates hereinafter refer to 1970, unless otherwise shown 2 For corrections of the record and the receipt into evidence of certain posthearing stipulations, see the orders of April 19 and 27, 1971 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sometimes collectively referred to as Respondents, are employers 3 engaged in commerce under the Act If. THE UNION International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths , Forgers, and Helpers, AFL-CIO, hereinafter called the Union , is a labor organization under the Act. ill. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondents violated Section 8(a)(1) by Interrogation, creating the impression of surveillance, threats of reprisal for union activity, and a promise of reemployment conditioned on not filing a charge with the Board. 2. Whether Respondents discriminatonly discharged Potter, Boggs, and Johnson. 9th, he was notified that he was being laid off for lack of work. Boggs then repaired to Hughes' Fish Camp, where he was joined by one of Marine's supervisors, Gordon, and at least seven other employees, including Potter and Johnson, an employee of Marine. A discussion ensued about the merits of union representation, in which Gordon participated, and in the course of which Johnson signed a union card and induced E. Singley to sign one. Respondents' production manager, Doherty, admittedly received a report from Gordon the next morning about the foregoing incident, including the fact there had been a discussion of the Union's organizing campaign, and that Johnson and Potter had been among those present; and Gordon admitted telling Doherty, in addition, the same morning that he had seen Johnson, among others, sign a union card. That afternoon, Potter again solicited fellow employees on the job to sign union cards. A few hours later Potter was told he was being laid off and Johnson was discharged. None of the three has been recalled. A. Sequence of Events Marine's shipbuilding operations and Drydock's ship repair facilities are adjacent to each other, and about 5 miles distant from the Mayport Naval Station, where Marine was intermittently called upon to work on naval vessels . During the period here involved, there were about 60 employees at Marine and 80 to 90 at Drydock. The Union's campaign to organize Respondents' employ- ees began on July 8, when Union Agent Brogdon gave a union card to Boggs and to Potter, which they signed that evening on the way home from work and delivered the next day.4 He then gave Boggs some more cards,5 and during that morning Boggs solicited seven to nine other employees to sign them , such solicitation occurring on and about the premises of Drydock, where he was then employed. Potter also engaged in solicitation that day on the job at the premises of Marine. All contacts between the two employees and Brogdon occurred at a restaurant known as Hughes ' Fish Camp, which was frequented by Respon- dents ' employees. Toward the end of Boggs' shift on the 3 The only apparent purpose of the "single-employer" allegation in the complaint is to establish liability of each Respondent for the acts of the other , as well as for its own acts For, the complaint alleges , generally, violations of Section 8 ( a)(I) and (3) by "Respondents" with respect to the same acts , although there is no allegation of a conspiracy among the corporate Respondents , and the various supervisors named in the complaint as responsible for conduct violative of Section 8(a)(1) are alleged in the complaint , and shown by the record, to have been at all times material in the employ of one or the other of the Respondents, and not in the employ of both at the same time Also, it is found below that the decision to lay off Potter and Boggs and to discharge Johnson was made by such supervisors While Doherty was admittedly production manager for both Respondents and there is reason to suspect that he was aware of the motivation for such layoffs and discharge , if, indeed , he did not instigate them, such suspicion does not constitute proof Under these circumstances , I am aware of no basis in Board law or common law for holding the one Respondent liable for the acts of the other , and no such Joint liability will be found However , that is not to say that one may not infer that , in view of the close working relationship between both corporations , and Doherty's dual role, there was an exchange of information among their supervisors concerning such matters of common concern as the employee union activities discussed below 4 Brogdon testified that the cards were signed in his presence on the 8th However, I deem more reliable the employees ' mutually corroborative testimony as to when and where they signed (While one of Potter's pretrial B. Discussion 1. The 8(a)(I) issues a. Interrogation Boggs testified that in the morning of July 9, while he was assigned to Drydock, his immediate supervisor, Hunter, asked if what he had heard about the Union was true; that Boggs answered in the affirmative, and asked how Hunter felt about the Union; and that, when he professed to be all for the Union, Boggs offered him a union card, but Hunter put him off with a promise to see him later at Hughes' Fish Camp. Hunter denied interrogating Boggs about the Union. While I credit Boggs on the basis of demeanor,6 as well as the circumstantiality of his testimony, I find no violation here, in view of the vagueness of Hunter's inquiry, as well as Boggs' apparent acceptance of Hunter's professed enthusiasm for the Union.7 affidavits implies that he did not sign until the evening of the 9th, this was changed in a later pretrial affidavit. There is no dispute , in any event, that both cards were signed before the two were laid off ) 5 Brogdon testified that this occurred on the 8th . However, here , again, I deem more reliable the mutually corroborative testimony of Boggs and Potter that it happened on the 9th 6 Respondents attack Boggs' credibility by citing an apparent conflict between his pretrial affidavit of July 13, and his testimony concerning the locale of the above-noted incident at Hughes' Fish Camp in the evening of July 9. However, Boggs insisted at the hearing that he gave the correct information to the Board agent who took the affidavit and it is clear, in any event , that such information appears in a later affidavit by Boggs. See Respondents' Exhibit I and General Counsel's Exhibit 3. Respondents also attack the veracity of Boggs' testimony that in 1967 or 1968 he had passed a test qualifying him to do production welding in accordance with requirements of the U.S Navy and had received a card so certifying However , Joint Exhibit I shows that he had in fact in 1968 passed such a test with respect to 2 out of 3 types of production welding and had probably been issued a certification to that effect r Hunter's regular job was not supervisory , and he happened to be acting as a supervisor only during that week in lieu of Dyal , who was on vacation The ephemeral nature of Hunter 's supervisory status would seem to explain Boggs' apparent temerity in soliciting Hunter Thus all the circumstances point to the conclusion that in his exchange with Hunter, Boggs regarded him more as a fellow employee than as a supervisor. Cf ATLANTIC MARINE, INC. 1007 Johnson, an employee of Marine, testified that early in the afternoon of July 9, his supervisor, C. Hartley,8 asked if he had signed "one," explaining that Hartley had heard about the distribution of union cards; that, when asked by Johnson how he knew about it, Hartley answered that he had ways of finding out things; that, when Johnson expressed indignation that any employees should carry tales to Hartley, he explained that he had merely happened to overhear an employee conversation; and that Johnson then asserted that he had not signed or even seen a card, but would sign one at the first opportunity. While Hartley denied that he had such a conversation with Johnson, I was favorably impressed by the latter's demeanor at this point,9 as well as by the spontaneity of his account of his colloquy with Hartley. Accordingly, I credit Johnson. He added that later the same afternoon another supervisor, Gordon, asked if he knew about the Union; that, after answering in the affirmative, Johnson asked how Gordon had learned about the Union; that he explained that he had heard about itjust after lunch from Production Manager Doherty, who had asked Gordon what he knew about the distribution of union cards; and that Johnson then remarked that, while he had heard about the Union, he had not done anything about it as yet but would sign a card at the first opportunity. Although Gordon entered a categorical denial, I credit Johnson here on the same grounds as are cited above. In view of the other unfair labor practices found herein, I deem the interrogation of Johnson by Hartley to have had a coercive tendency and hence to violate Section 8(a)(1).i0 However, in the case of Gordon there were mitigating factors. He testified without contradiction, and I find, that there was a longstanding social relationship between him and Johnson, and, since he was not Johnson's supervisor, his inquiry might well have been taken merely as a casual expression of curiosity by a friend and not as an attempt to ferret out information on behalf of management. This is confirmed by the fact that later that day Johnson had no qualms about signing a union card in Gordon's presence. Accordingly, I base no violation finding on the foregoing incident. b. Threats and promises The evidence concerning threats is confined to the events at Hughes ' Fish Camp in the evening of July 9. As already related , there was a discussion of the Union on that occasion , in which Gordon , a supervisor for Marine, participated . So far as the record shows, the only employees involved were Johnson , Potter , Boggs, the two Singleys, Hicks, and J . Smith . They debated the merits of union representation with Gordon ; and Johnson , E. Singley, and Hicks signed union cards in Gordon's presence. Boggs testified that, when someone cautioned the employees to be careful about what they said lest Gordon inform on them, he asserted that "the company" had known about the union William B Patton Towing Co, 180 NLRB No 16 8 Not to be confused with W Hartley , who was superintendent of Drydock C Hartley will hereinafter be referred to as Hartley 8 Except for an apparent evasiveness when cross -examined about his attendance during his last week on the job, Johnson impressed me as a campaign all day, and was aware of the involvement of Boggs and Potter therein; and that Gordon added that "the company" would close down rather than have a union. According to Potter, Gordon on that occasion disclosed that "they" or "the company" knew what employees would support the Union, making specific reference to Potter in that context, and that "the company" would close its gates rather than deal with a union. Johnson's version was that Gordon indicated that "the company" knew of the involvement of Boggs and Potter with the Union, and that Gibbs, Respondents' principal stockholder, could not afford a union and would close down rather than let one come in. E. Singley imputed to Gordon the remarks that he did not think Gibbs would "allow the union to come in," and that "the company" would find out one way or another who was for the Union and would close the yard before it would accept a union. Hicks' version was that Gordon indicated that "the company" could not afford a union and would probably close down, and that, if it ever became necessary to suspend operations because of a strike, they would probably never be resumed, because "the company" wasn't big enough to afford a union. Gordon denied that he had heard about the employees' union activity before the meeting at Hughes' Fish Camp in the afternoon of July 9, and that he said Respondent knew which employees favored the Union or warned of discharge for union activity. He admitted, however, warning that Gibbs could not afford a union and opining that, if Respondents had to shut down because of a strike, they could not afford to reopen. As to what Gordon meant by this remark, the best that can be made of his rather cryptic explanation is that such remark was inspired by his belief that, in view of the low state of Respondents' backlog and their production problems, they could not survive the vicissitudes of a strike. In view of the corroboration of Boggs by Potter and Johnson and the circumstantiality of their testimony, as well as demeanor considerations, they are credited as to the disclosure by Gordon that Respondents were already aware of the union activity of Potter and Boggs, and for like reasons I credit the further testimony of the latter two witnesses that Gordon divulged that management knew which employees favored the Union. It is found that by the foregoing remarks Marine unlawfully created an impres- sion of surveillance of employee union activity. As for the alleged threat to close because of a union, it is found, on the basis of the mutually corroborative testimony of Hicks and Gordon, that the latter did say, at least at one point, that, in the event of a shutdown due to a strike, he did not think Respondents could afford to reopen. However, on the basis of the mutually corroborative testimony of Potter, Boggs, E. Singley, and Johnson, it is found that Gordon also flatly warned that Respondents would shut down rather than forthright and candid witness. io Although the complaint did not specifically allege the foregoing interrogation by Hartley, that incident was adequately litigated. See Rea Trucking Company, Inc v. N.L.R.B, 439 F.2d 1065 (C.A. 9), and cases there cited it is moreover relevant to the issue of Respondents' knowledge of Johnson's union activity. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deal with a union and that Marine thereby violated Section 8(a)(l).1i In any case, even the former, more innocuous, remark is deemed to be coercive in that it raised the spectre of a permanent shutdown as the ultimate result of the employees' union activity. While the remark was couched in terms of an expression of opinion or prediction as to Respondents' ability to survive a strike, the Supreme Court has held that an employer violated Section 8(a)(1) through speeches and letters to employees, which conveyed the message that the employer was in a precarious financial position, that the union would in all likelihood have to strike to obtain its demands, and that the probable result of a strike would be a plant shutdown.12 The Court there stated: He [the employer] may even make a prediction as to the precise effects he believes unionization will have on the company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. . . . We therefore agree with the court below that "conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." Here, any expression of belief by Gordon that the economic impact of a stake on Respondents at some indefinite date in the future would be such as to require Respondents to go out of business necessarily makes certain assumptions as to Respondents' economic condi- tion at that time and the duration of any such strike. Such assumptions would seem to constitute rank speculation rather than a prediction carefully phrased on the basis of objective fact concerning "demonstrably probable conse- quences" of unionization beyond Respondents' control. It is concluded therefore that even the foregoing "prediction" by Gordon that Respondents could not afford a stake but would have to shut down permanently, if one occurred, was coercive and violated the Act.13 Concerning an incident on July 14, Johnson testified that when he returned on that date to Marine's premises to pick up his tools, he encountered Gordon and the following occurred: ... Russell [Gordon] walked out to the shop with me, and we were talkin', and he asked me-he said, "I hear 11 The apparently amicable relations between Gordon and the employees would not necessarily negate the coercive effect of his warning as to what higher management would do As the Board stated in Gifford- Hill & Co, Inc, 188 NLRB No 45, such friendly relationship would only have "invested [the supervisor' s] remarks with a greater degree of plausibility " 12 N L R B v Gissel Packing Co, 395 U S 575 13 N L R B v Gissel Packing Co, supra, Surprenani Manufacturing Company v N L R B, 341 F 2d 756, 761 (C A 6), Bancroft Manufacturing Co, Inc, 189 NLRB No 90 14 The onginal charge herein was filed by the Union on July 13, and, having been mailed to Marine the next day, presumably was not received by it until a day or two after the incident described by Johnson Construing Johnson's testimony concerning the signing of a "complaint" as imputing to Gordon a reference to the filing of such charge, Respondents raise the question, how Gordon could have known about the charge even before it y'all gonna sign a complaint-Boggs and Potter are gonna sign a complaint against Atlantic Marine?" I said, "Yeah, and I am too." He said, "Well, David," he said, "I'm pretty sure you could get your job back, if you wouldn't side with these guys on this thing." And I said, "Well, I do know I could probably get my job back, but if I hafta kiss anybody's ass to get it back, I don't need it." And at this point, George Gibbs came walkin' up and Russell trotted off, because he was scared to be seen talkm' with me.. . . Gordon, on the other hand, testified that he merely suggested on that occasion that Doherty might take Johnson back, if he offered to return on a probationary basis, but Johnson expressed indifference. For reasons already cited in evaluating Johnson as a witness, he is credited here,14 and it is found that by the foregoing assurance that Johnson would be reinstated, if he did not join with Boggs and Potter in filing a charge with the Board, Marine further violated Section 8(a)(1). c. The 8(a)(3) issues (1) Boggs As found above, on July 9, Boggs engaged in on-the-job solicitation of fellow employees on behalf of the Union, even offering a union card to his supervisor, Hunter. Toward the end of Boggs' shift he was notified by Hunter of his layoff for lack of work. Shortly thereafter, at Hughes' Fish Camp, Gordon acknowledged, as found above, that Respondents already knew of Boggs' union activity. At the time of his separation , Boggs was working as a welder for Drydock, having been transferred there a few weeks before from his regular job at Marine. As already noted, his immediate supervisor during the last week of his employment was Hunter, who assumed responsibility for the selection of Boggs for layoff. At the hearing Hunter offered a lengthy explanation of his reasons for effecting the layoff of Boggs at that particular time, but such explanation conflicts in the following respects with Respondents' records, as stipulated by the parties: a. Hunter testified that, of his welders, all but A. Howard were laid off on the same day as Boggs, and for the same reason-namely, lack of work due to delay in the arrival of certain materials . However, Respondents' was served on Marine However , Johnson imputed to Gordon only a statement that he had heard that Boggs and Potter intended to file a charge, which statement failed to specify the source of Gordon's information; and there is nothing in the record to foreclose the possibility that before July 14, Gordon, who admittedly was in the habit of fraternizing with the employees , had learned from one or more of them that Boggs and Potter were planning to file a charge . Accordingly, Respondent's attack on Johnson's credibility on the foregoing ground is rejected . Nor is any merit found in Respondents' further contention that Gordon would not, in any event , have attributed the charge to Potter and Boggs, since it was not in fact filed by them but by the Union For one thing, as already pointed out, there is nothing in Johnson's testimony to indicate that Gordon was referring to the charge as actually filed or that at the time he was aware of such filing Moreover, even if he were, it would only have been natural for him as a layman to regard the charge , filed on their behalf by the Union, as having in effect been filed by Boggs and Potter ATLANTIC MARINE , INC. 1009 records show that, of the 10 employees under Hunter's supervision, Boggs was the only one who ceased work on July 9, and that the only other one removed from the payroll during the same week was D. Williams, who is shown to have been discharged for cause on July 10.15 Thus, it appears that Boggs was the only one who during the week ending July 12, was affected by the alleged lack of work. b. While Respondents' records show an extensive reduction in the size of Hunter's crew during the following week, they show also that, in addition to A. Howard, Respondent retained a welder, A Anderson, who had been "rehired" by Drydock only 2 weeks before.16 Hunter's testimony makes no specific refer- ence to Anderson, but implies, contrary to the fact, that he was among those released at the same time as Boggs. With regard to Howard, Hunter asserted that he was a "regular" Drydock employee and that it was established policy to retain such employees in preference to one like Boggs, who had been borrowed from Marine. However, Respondents' records show that Howard had been borrowed from Marine at the same time as Boggs.17 It appears from the foregoing that the layoffs in Hunter's crew, including that of Boggs, were spread out over a period of 2 weeks and that Boggs was the first to go. It is deemed significant that (a) Hunter did not contend that there was any business reason for singling out Boggs in this manner,18 but, as noted above, attempted instead to create the impression that all the layoffs were simultaneous, and (b) Hunter not only failed to mention that Anderson was retained after the others were laid off, but also gave an explanation for the retention of Howard in preference to Boggs which is not supported by company records. It is also regarded as significant that Boggs was laid off on the very day that he launched his solicitation for the Union, that it appears from Gordon's disclosures to the employees a few hours after Boggs' discharge that such solicitation had come to the attention of management, and that Hunter, who claimed to have selected Boggs for layoff, was himself solicited by Boggs to sign a union card only hours before his layoff. In view of the foregoing circumstances, as well as Gordon's disclosure concerning management's union animus, it is found that, while there were layoffs by Drydock due to lack of material, Boggs was laid off from 4 to 8 days before any of the others in his crew, and that the singling out of Boggs for termination on the very day that he launched his solicitation for the Union was motivated at 15 See paragraphs 10 and I 1 of Joint Exh 2 i6 In addition , W Bayes, a shipfitter was retained it Par 7 of Joint Exh. 2 18 Although Doherty professed to entertain a low regard for Boggs as an employee, Hunter admitted that Boggs was a good worker and that Hunter had no "particular reason" to select Boggs for layoff 19 While Hunter's failure to mention the retention of Anderson and his untenable explanation of the retention of Howard may be deemed to invite the inference that, but for his union activity, Boggs would have stayed on rather than one or the other of them, there is no need to decide that issue now When Boggs would have been terminated , if at all, for nondiscriminatory reasons is a question to be determined in compliance proceedings 20 Neither Boggs nor Potter applied for rehire, explaining at the hearing least in part by such activity, in violation of Section 8(a)(3) and (1) of the Act.19 (2) Potter When laid off on July 10, Potter was employed by Marine. Although classified as a shipfitter, his work apparently consisted primarily in welding. As already related, Potter engaged in some solicitation for the Union on July 9. However, he was more discreet than Boggs in that Potter did not on the 9th pass out, or offer, any cards to the employees he solicited. Nevertheless, that afternoon, at Hughes' Fish Camp, Gordon indicated that Respondent was aware of Potter's union activity, as well as that of Boggs, who, as found above, had just been discriminatorily discharged. The next day, armed with a supply of union cards, Potter solicited the signatures of employees on the job. At the end of that day, he was notified by his supervisor, Reese, that he was being laid off. Potter was admittedly one of the two highest paid shipfitters in Respondents' employ, and for a penod of 5 or 6 months was assigned the job of acting leadman or "pusher," which apparently involved some responsibility for expediting the work of the other shipfitters. On July 3, he was relieved of that assignment and returned to his former duties as a shipfitter-welder. Production Manager Doherty testified that Potter's performance with his tools was only average, but this opinion was not shared by Reese, who assumed responsibil- ity for selecting Potter for layoff. Not only did Reese acknowledge at the hearing that Potter was a good worker, but the following circumstances sheds a significant light on Reese's regard for Potter's ability. In explaining why Respondents had not rehired either Boggs or Potter, although prior to, and at the time of, the hearing Respondents were admittedly engaged in recruiting, Doherty testified that he would not normally take the initiative in recalling a laid-off employee but would wait for him to apply, and that, while exceptions were made to this rule in the case of employees with outstanding ability, such exceptions were rare.20 Yet, Potter's uncontradicted testimony shows that in October 1969, Reese took the initiative in recalling him from layoff. In view of this, as well as Potter's high rate of pay, it is found that he was highly esteemed by Reese for his proficiency as a mechanic. At the hearing, Reese explained Potter's layoff on the ground that work was slack and he cited Potter's absenteeism as the principal reason for selecting him rather than any of the other employees. However, while Respon- dents' records show that his absenteeism during the year that they had been dissuaded from doing so either by a Board agent or the Union, because of the pendency of the instant charges, but they professed to be willing to return to work. Doherty indicated that he would rehire Potter, but not Boggs , because of the latter's alleged shortcomings as an employee. However , Respondents ' counsel later advised that it had been decided that there was no need for Potter's services, so that any implied offer to reemploy Potter was in effect withdrawn. In attacking the credibility of Doherty' s foregoing testimony regarding his recall policy, the General Counsel , in his brief, cites the numerous examples of rehire by Respondents of laid-off employees reflected in company records However, there being no evidence that Respondents took the initiative in any of those cases, Doherty's explanation of his recall policy is credited 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before his layoff was substantial, the only comparison in the record between him and other employees in that respect shows that during the period of about 7 months before his layoff his attendance was considerably better than that of 2 out of 7 others; namely, L. Pharr and L. Wright.21 It further appears that Pharr, a shipfitter, and Wright, a welder, continued to work for Marine after Potter's layoff. In view of the abundant evidence of Marine' s union animus , the timing of Potter's layoff in relation to his union activity, the finding above as to Gordon's disclosure on July 9 of management 's awareness of Potter's union activity,22 and the absence of any tenable explanation for the selection for layoff of an outstanding workman like Potter rather than Pharr or Wright, whose attendance was much less regular , it is found that Potter was laid off by Marine for his union activity, in violation of Section 8(a)(3) and (1). (3) David Johnson Johnson had worked for Marine as a carpenter for more than 3 years. As already related, on July 9 he had not only proclaimed to his immediate supervisor, Hartley, and to Gordon his readiness to sign a union card, but also that evening, in Gordon's presence, signed one and induced E. Singley to sign. The record indicates, moreover, that in the debate that evening between Gordon and the employees over the merits of the Union, Johnson was, next to Boggs, the most outspoken champion of the Union. The next morning Gordon admittedly gave Production Manager Doherty a report concerning the events of the previous evening, including the fact that Johnson had signed a union card, and Doherty admitted that on July 10, he told all his foremen, including Hartley, that there had been some "union activity the night before at Hughes Fish Camp" and "to keep their ears open to see if they heard anything." Doherty professed to be unable to recall whether he mentioned Johnson's name in that conversation. Johnson testified that about 3 p.m. on the 10th, Hartley declared he had to discharge Johnson because of his bad attitude, citing a complaint by Doherty that Johnson's attitude had deteriorated and he seemed not to care about his job, and that, when Johnson asked if his work was at fault, Hartley answered, "He didn't say anything so much about the work; it'sjust your attitude." Johnson added that he was assured by Hartley that Doherty would give him a good reference and might rehire him after 2 or 3 weeks, if he apologized and promised to change his attitude. Management's explanation of the circumstances leading up to Johnson's discharge was as follows: Although asserting that on June 29 he had complained generally to Hartley about the slow progress being made on boats then under construction by Hartley's crew of carpenters and had warned that, if they did not improve, it would be necessary to replace them, Doherty insisted, and Hartley agreed, that the latter alone had made the decision to discharge Johnson. Hartley testified that the lack of progress on the boats which provoked Doherty's complaint was due partly to a shortage of carpenters and partly to Johnson's poor production; that, of all the carpenters, Johnson was the only one who was not holding up his end; that, in discharging Johnson, Hartley cited that factor as well as Johnson's "disposition-conduct"; that during the last 2 or 3 months of his employment the witness had criticized Johnson's performance three or four times; that Johnson had been absent on July 6; that the witness had not reprimanded him therefor because he was tired of chastising Johnson; that he did not discharge Johnson for such absence because of the shortage of carpenters; and that, having succeeded in the meantime in recruiting three new carpenters, the witness decided to dispense with Johnson's services when he reported late in the morning of the 10th. As for Hartley's foregoing explanation of the timing of the discharge, Marine's records show that it hired four carpenters on June 30 and July 1, two more on July 10, and during the weekend of July I1 and 12 hired two additional carpenters, albeit apparently only for that weekend. It is clear from the foregoing that despite the two men hired on July 10 (one of whom never, in fact, reported for work) Marine was so shorthanded that it had to resort to the expedient of employing outside carpenters over the next weekend. As for Hartley's attribution of Johnson's discharge, in part, to his insufficient production, the following considera- tions are relevant: (a) As noted above, Johnson denied that his work was cited to him by Hartley as a factor in his discharge, insisting that the only reason given was his attitude. While maintaining that he also cited to Johnson the fact that his work was falling off, Hartley admitted telling Johnson that he might be rehired after 2 or 3 weeks if he promised to change his attitude. In view of this, as well as demeanor, I credit Johnson's testimony that the only reason given him for his discharge was his attitude. (b) The record shows, moreover, that during his last week on the job Marine had no cause to complain about Johnson's production. During the 4 days he worked that week his job consisted of building bunks for a ship called the Calanus. Johnson claimed that, although normally it takes a carpenter at least I day to build a bunk, he completed 90 percent of the work on eight bunks during that week.23 Hartley, on the other hand, insisted that Johnson completed only 80 percent of the work on three bunks, but his estimate of 1 1/2 days as the time normally required for a carpenter to complete one bunk was even more favorable to Johnson than his own testimony. And, Doherty's estimate on that point was still more favorable to Johnson, since he opined that it would take one man 24 hours to build a bunk. As to the number of bunks actually built by Johnson during the last week, the testimony of Hicks tends to corroborate Johnson rather than Hartley; for, Hicks asserted that Johnson had completed six bunks 24 and had made a start on two others. Of the foregoing 21 Par 6 of Joint Exh . 2 about 10 percent of the entire job , and, according to Hartley, 20 percent 22 Reese was vague as to just when he learned of Potter's union activity thereof and did not unequivocally deny that it might have been before his layoff 24 It is assumed that Hicks meant here that Johnson had completed 23 It was agreed that Johnson did not perform a certain finishing them to the extent indicated by Johnson and Hartley ; that is, except for the operation on the bunks, which represented, according to Johnson, only finishing operation. ATLANTIC MARINE, INC. 1011 estimates , I deem Hicks' the most reliable, since he had the least reason to embroider on the truth.25 Accordingly, I find that during the last 4 days of his employment Johnson completed all but the finishing operation on six bunks, and did an undetermined amount of work on two other bunks. Accepting Hartley's estimate that the finishing operation which Johnson admittedly did not perform on any of the bunks constituted 20 percent of the total job,26 and that it would normally require 12 man-hours to complete each bunk, I find that during those 4 days Johnson did at least as much work as would normally require 57.6 man-hours, or more than 7 man-days.27 It would seem that such a phenomenal performance would more than atone for Johnson's irregular attendance during his last week or for any alleged deficiencies in his attitude toward his job. It is difficult to believe, moreover, that, if, as Hartley claimed, he had tolerated the deterioration in Johnson's work for 3 or 4 months, contenting himself with oral reprimands, he would decide to take more drastic measures at the very moment that Johnson was doing the work of nearly two men and while Marine, as found above, was still shorthanded. It is found, therefore, upon the entire record, including (a) the timing of Johnson's discharge in relation to his avowals of prounion sentiment to Hartley and Gordon, and in relation to his signing of a union card, which was admittedly reported to Doherty only hours before John- son's discharge, (b) the implausibility of Marine's explana- tion for such timing , and (c) Marine's union animus, as demonstrated by the various other unfair labor practices found herein, including the discrimination against Potter, that the only attitude of Johnson that caused his discharge and that he was enjoined to change, if he wished to be rehired, was his attitude toward the Union. It follows that his discharge by Marine was discriminatory, in violation of Section 8(a)(3) and (1). IV. THE REMEDY It having been found that Respondents violated Section 8(a)(1) and (3) of the Act, it will be recommended that they be required to cease and desist therefrom and take 25 While he had signed a union card at Johnson's solicitation, he was still in Marine 's employ at the time of the hearing 28 See In 23, above 27 Of course, if one were to take Doherty's estimate of 24 man-hours per bunk , Johnson's performance would have been even more spectacular However, there is reason to suspect that , as some of the other witnesses occasionally did, Doherty was using the term "bunk" loosely to denote a set of two bunks If so, his estimate of man-hours per bunk would be in appropnate, affirmative action. Such action shall include a proper offer of reinstatement to Boggs, Potter, and Johnson, and their reimbursement for any loss of earnings suffered by reason of the discrimination against them. Backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum. (Isis Plumbing & Heating Co., 138 NLRB 716.) In view of the nature of the violations found herein, particularly the acts of discrimination, a threat of future violations exists, which warrants a broad cease-and-desist provision. CONCLUSIONS OF LAW 1. Atlantic Marine, Inc., and Atlantic Drydock Corpo- ration are employers within the meaning of Section 2(5) of the Act, and are engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union sentiments or activities, by threatening reprisals for union activity, by creating the impression of surveillance of employee union activity, and by promising to rehire Johnson if he did not file a charge with the Board, Respondent Marine has violated Section 8(a)(1) of the Act. 4. By terminating the employment of Potter and Johnson, because of their union activities, Respondent Marine has violated Section 8(a)(3) and (1) of the Act. 5. By like discrimination against Boggs, Respondent Drydock has violated Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: 28 [Recommended Order omitted from publication.] line with Hartley's 28 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 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. Copy with citationCopy as parenthetical citation