Austal USA, L.L.C.

National Labor Relations Board - Board Decisions

Mar 21, 2007

349 N.L.R.B. 561 (N.L.R.B. 2007)

AUSTAL USA, L.L.C.
349 NLRB No. 51
561
Austal USA, L.L.C. and Sheet Metal Workers Inter-
national Association Union, Local 441. Cases
15–CA–16552, 15–CA–16578, 15–CA–16596, 15–
CA–16642, 15–CA–16677, 15–CA–16721, and
15–RC–8394
March 21, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On April 7, 2003, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions, a supporting brief, a reply brief, and an
answering brief. The Charging Party/Petitioner filed an
answering brief, a cross-exception, and a supporting
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.
More specifically, we adopt the judge’s findings that
the Respondent violated Section 8(a)(1) of the Act and
engaged in objectionable conduct by: coercively ques-
tioning employees about their union sentiments;
threatening plant closure, job loss, stricter discipline,
and other unspecified reprisals if the employees voted
for the Union;3 promising or impliedly promising
benefits if the employees rejected the Union;4 giving

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall order a new election. First, we agree with the judge that
the Union’s objections that were coextensive with meritorious com-
plaint allegations should be sustained and warrant a new election.
Second, in regard to the Union’s additional objections, we agree that
the Respondent’s conduct of placing security guards at the gate of the
plant on the morning of the election was objectionable. Accordingly,
we find it unnecessary to pass on the issue of whether the Respondent
engaged in objectionable conduct by providing employees with an on-
premises barbeque, free concert tickets, and an off-premises party prior
to the election.
3 In finding a violation in the conversation between Supervisor John
Calhoun and employee Wayne Jenkins, Chairman Battista relies solely
on Calhoun’s statement that if the Union did not get in, the Respondent
would get rid of card signers.
4 Chairman Battista adopts the judge’s finding that the Respondent
violated Sec. 8(a)(1) by promising or impliedly promising benefits if
the employees rejected the union. In doing so, he relies only on CEO
Alan Lerchbacker’s statements that: “the Company was going to help
the employees;” he “would make a change,” and that within 6 months
informal evaluations to three employees because of
their union activity; and instructing employees not to
read or discuss union material during working time.5
We also adopt the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by: termi-
nating team leader Charles Gates because he would
not support the Respondent’s position on unioniza-
tion;6 refusing to allow Gates to return to the Respon-
dent’s premises as an employee of a contractor the day

“there will be a difference;” his references to improving insurance and
raises, and paving the driveway; and his assuring employees that he
would “put a stop to” whatever caused employees to have to go be-
tween their supervisor and their supervisor’s supervisor about raises.
5 We find it unnecessary to pass on the judge’s analysis and conclu-
sion that the Respondent violated Sec. 8(a)(1) by temporarily prohibit-
ing employees from displaying union insignia on their hardhats. In our
view, this alleged violation would be cumulative of other violations
found, and thus would not materially affect the Board’s Order. See
Strand Theatre of Shreveport Corp., 346 NLRB 523, 523 fn. 2 (2006);
Ivy Steel & Wire, Inc., 346 NLRB 404, 406 fn. 8 (2006). Specifically,
the recommended Order prohibits the Respondent from discriminating
against those who support the Union, and accordingly will preclude the
Respondent from discriminatorily barring employees from wearing
union insignia on their hardhats.
6 We agree with the judge that Gates is not a “supervisor” as defined
in Sec. 2(11) of the Act. As the party asserting supervisory status, the
Respondent’s burden is to establish that status by a preponderance of
the evidence. Dean & Deluca of New York, Inc., 338 NLRB 1046, 1047
(2003). The Respondent asserts only that Gates had the authority to
“assign” and “responsibly direct” the employees on his crew. Without
deciding whether Gates’s job functions meet the definition of either
“assign” or “responsibly direct,” we agree with the judge’s conclusion
that Gates’s duties “do not demonstrate the exercise of independent
judgment.”
“[T]o exercise ‘independent judgment,’ an individual must at mini-
mum act, or effectively recommend action, free of the control of others
and form an opinion or evaluation by discerning and comparing data.”
Oakwood Healthcare, 348 NLRB No. 37, slip op. at 8 (2006). “[A]
judgment is not independent if it is dictated or controlled by detailed
instructions, whether set forth in company rules or policies, the verbal
instructions of a higher authority, or in the provisions of a collective-
bargaining agreement.” Id. Purely conclusory evidence is not sufficient
to establish supervisory status. Golden Crest Healthcare Center, 348
NLRB No. 39, slip op. at 5 (2006).
Most of the Respondent’s evidence is comprised of conclusory
statements in Gates’s affidavit, like “I make the work assignments to
the crew” and “I . . . check on the crew to make sure they were com-
pleting the work assignments given to them.” What little specific evi-
dence put forward by the Respondent with respect to the discretion
exercised by Gates in performing these duties actually undermines its
position. Gates testified that his supervisor, Mickey Slade, “would give
[him] an overview of what needed to be done, or if he had certain peo-
ple he wanted to work on . . . certain jobs[; a]nd then [Slade] would be
off doing paperwork, and it would sort of be up to [Gates] to get these
people where [Slade] wanted them.” This appears to demonstrate that
Gates’s judgment in performing these duties was “dictated or con-
trolled” by “the verbal instructions of a higher authority.” Further, the
Respondent adduced no evidence regarding the factors weighed or
balanced by Gates in either assigning or directing employees. Thus, we
cannot conclude that the degree of discretion involved in these activi-
ties rises above the routine or clerical. See Croft Metals, Inc., 348
NLRB No. 38, slip op. at 6 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD562
after he was terminated; terminating eight employees
on May 9, 2002;7 suspending employee Tony Causey
and terminating him; giving employee Darrell Spencer
a 3-day suspension;8 and, giving employee Hank Wil-
liams a verbal warning.9

7 We disagree with our dissenting colleague’s conclusion that, in
finding this violation, the judge relied on a theory neither alleged in the
complaint nor litigated at the hearing. The complaint alleges that the
Respondent terminated the employees, thereby discriminating against
them and discouraging membership in a labor organization in violation
of Sec. 8(a)(3) and (1). Our colleague acknowledges the General
Counsel’s further explanation, in his opening statement at the beginning
of the hearing, that “[t]he employees were told that they were being laid
off, but they would not have any recall rights. So, our position is that
they were effectively terminated.” Thus, both the complaint and the
General Counsel’s litigation theory were the same, that the employees
were terminated. That additional facts and circumstances surrounding
the terminations were established through evidence adduced at the
hearing is hardly surprising: it is the General Counsel’s burden to estab-
lish sufficient facts to support finding the alleged violation. This proc-
ess of developing the underlying facts of a case does not alter the basic
nature or theory of the complaint.
8 Our dissenting colleague contends that the Respondent rebutted the
General Counsel’s evidentiary showing, arguing that the Respondent
lawfully suspended employee Darrell Spencer for performing poor
welding work. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). We disagree. The
dissent’s view does not fully account for the undisputed facts and the
judge’s credibility findings.
There is no question that the General Counsel made a showing suffi-
cient to establish that Spencer was suspended at least in part because of
his union activity. There is also no question that he was a competent
welder. He expressed his concern that the welding job at issue could
not be successfully performed using the specified wire, and he asked
Supervisor Calhoun if he could use smaller wire. It is undisputed that in
the past Spencer had been permitted to use whatever size wire he
thought was appropriate. This time, however, Calhoun denied
Spencer’s request, referring to “specifications.” Spencer followed in-
structions, and the weld failed two times. He was then suspended.
The judge did not credit Calhoun, who testified that Spencer was
disciplined for intentionally making a bad weld. He did credit Spencer,
who testified that he did not deliberately make a faulty weld but, fol-
lowing the instructions of his supervisor, did the best he could using the
wire he was instructed to use.
The record establishes that if the Respondent had treated this situa-
tion routinely, it would have permitted Spencer to use the wire of his
choice. The Respondent did not do that; instead, as the judge found, it
“put Spencer in a situation where he could not properly perform the
weld,” and then disciplined him, asserting that Spencer intentionally
made a bad weld. There is no credible evidence justifying Calhoun’s
conduct or supporting the Respondent’s purported reason for the sus-
pension. Accordingly, the Respondent did not prove that it would have
acted the same way in the absence of Spencer’s protected union activ-
ity.
9 In the absence of exceptions, we adopt the judge’s findings that:
(a) the Respondent did not violate Sec. 8(a)(1) by creating an impres-
sion of surveillance, soliciting its employees to rescind their union
authorization cards, threatening employees with termination or coer-
cively interrogating them by inquiring who had thrown away company
fliers, asking its employees for their opinion regarding why they
wanted the Union, urging all employees to vote for the Company, and
impliedly threatening plant closure; (b) the Respondent did not violate
Sec. 8(a)(3) by giving informal evaluations to three employees; (c) the
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Austal USA, L.L.C., Mobile, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraph 1(d) and reletter the subsequent
paragraphs accordingly.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
CHAIRMAN BATTISTA, dissenting in part.
I agree with my colleagues in all respects except the
following:
1. Contrary to my colleagues, I do not find that the
Respondent violated Section 8(a)(3) by suspending
employee Darrell Spencer. I conclude that the Re-
spondent suspended Spencer for making an improper
weld.
Before making the weld, Spencer told Welding Su-
pervisor John Calhoun that he wanted to use a smaller
wire than called for by the customer’s job specifica-
tion. Calhoun denied the request, citing the specifica-
tion. Following Calhoun’s instruction, Spencer made
the weld. He acknowledged that the weld was defec-
tive. The suspension notice issued to Spencer cited
“lack of quality work.”
The judge found that the discipline was unlawful. I
do not agree. I find that the Respondent has effec-
tively rebutted the General Counsel’s prima facie case
of a violation. It is uncontested that the customer
specification called for wire of a specific width. There
is no probative evidence that the specification was
faulty or was otherwise generally incapable of being
performed satisfactorily. It is clear that the Respon-
dent believed that the weld could be done under these
specifications. It is also clear that Spencer held a con-
trary belief. Obviously it is not necessary for the
Board to resolve this technical issue regarding welds.
Suffice it to say that the Respondent discharged
Spencer because, in its view, the defective weld was
Spencer’s fault.
Contrary to the contention of my colleagues, there is
no record evidence that Supervisor Calhoun had ever
authorized Spencer to ignore a customer’s specifica-
tions. Nor is there an allegation that Calhoun’s in-
struction here (i.e., to follow the customer’s specifica-
tions) was discriminatorily motivated. Finally, there

Respondent did not violate Sec. 8(a)(3) and (1) of the Act by terminat-
ing employee Joe Wooten; and (d) the Respondent did not engage in
objectionable conduct by making overtime mandatory.
AUSTAL USA, L.L.C. 563
is no record evidence to support the notion that the
work could not possibly be done under the customer’s
specifications. Indeed, it would strain credulity to
believe that Calhoun would direct an action which was
bound to result in failure. In short, Spencer’s work
was defective, and he was disciplined for that action.
I find, therefore, that the Respondent has rebutted the
General Counsel’s prima facie case. Accordingly, I
find that the Respondent’s discipline of Spencer was
lawful.
2. I do not adopt the judge’s finding that the Re-
spondent unlawfully terminated eight employees.1 I
reach this conclusion solely because the judge’s find-
ing was based on a theory that was neither alleged in
the complaint nor litigated at the hearing.
The complaint alleges that the Respondent termi-
nated the employees on May 9, 2002, thereby “dis-
criminating in regard to the hire or tenure or terms and
conditions of employment of its employees” and “dis-
couraging membership in a labor organization in vio-
lation of Section 8(a)(1) and (3) of the Act.” The
General Counsel’s theory of the case, as alleged in the
complaint and explained in his opening statement, is
that “[t]he employees were told that they were being
laid off, but they would not have any recall rights. So,
our position is that they were effectively terminated.”
The judge found the violation based on a different
theory, i.e., that the Respondent temporarily laid off
the employees but later, realizing that temporarily
laid-off employees would be eligible to vote in a
Board election, changed the layoff to a discharge. In
sum the complaint alleged a discharge based on union
activity. The violation found by the judge and my
colleagues is deficient in two respects. It is that a lay-
off was converted to a discharge in order to render
employees ineligible to vote. Because this theory was
not alleged in the complaint nor litigated at the hear-
ing, the Respondent was not on notice of the need to
litigate such an allegation.2 Therefore, I would re-
verse the judge’s unfair labor practice finding.

1 The eight terminated employees are Warren Gatwood, Curtis Glea-
son, Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia
Powell, and Dirk Spencer.
2 Desert Aggregates, 340 NLRB 289, 292–293 (2003). (The Board
may find violation not alleged in the complaint, even where the General
Counsel has not filed a motion to amend, but only if the issue is closely
related to the subject matter of the complaint and has been fully and
fairly litigated; however, whether a matter has been fully and fairly
litigated rests in part on whether the absence of a specific complaint
allegation precluded a respondent from presenting exculpatory evi-
dence or altering its conduct of a case to address the allegation.) Cham-
pion International Corp., 339 NLRB 672 (2003).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post
and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate you regarding
your union sympathies and activities.
WE WILL NOT threaten you with unspecified repri-
sals because of your union support.
WE WILL NOT threaten you with termination because
you support the Union.
WE WILL NOT discriminatorily restrict you from dis-
cussing unions.
WE WILL NOT threaten you with plant closure if you se-
lect a union as your collective-bargaining representative.
WE WILL NOT harass you because of your support of the
Union.
WE WILL NOT solicit your grievances and promise to
remedy them in an effort to dissuade you from support-
ing the Union.
WE WILL NOT threaten you with discipline pursuant to
more stringent enforcement of our rules because of your
union activity.
WE WILL NOT interfere with other employment oppor-
tunities of former employees because of their union sym-
pathies.
WE WILL NOT warn, suspend, discharge, or otherwise
discriminate against any of you for supporting Sheet
Metal Workers International Association Union, Local
441, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, rescind
the warning issued to Hank Williams and the suspensions
issued to Tony Causey and Darrell Spencer.
WE WILL, within 14 days of the Board’s Order, offer
Charles Gates, Tony Causey, Warren Gatwood, Curtis
Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd, An-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD564
dre Love, Zolia Powell, and Dirk Spencer full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Charles Gates, Tony Causey, Warren
Gatwood, Curtis Gleason, Donnell Hill, Wayne Jenkins,
Micah Kidd, Andre Love, Zolia Powell, Dirk Spencer,
and Darrell Spencer whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning, suspension, and discharges, and WE WILL,
within 3 days thereafter, notify the affected employees in
writing that this has been done and that those actions will
not be used against them in any way.
AUSTAL USA, L.L.C.
Charles R. Rogers, Esq., for the General Counsel.
William C. Tidwell III and Amy Lassiter St. Pe, Esqs., for the
Respondent.
Kimberly C. Walker and Cecil Gardner, Esqs., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Mobile, Alabama, on January 27, 28, 29, and 30,
2003.1 The consolidated complaint issued on October 22.2 The
complaint, as amended at the hearing, alleges several violations
of Section 8(a)(1) of the National Labor Relations Act (the Act)
and one warning, two suspensions, and the discharge of 11
employees in violation of Section 8(a)(3) of the Act.3 On No-
vember 1, the Regional Director issued an order that directed a
hearing on objections in Case 15–RC–8394 and consolidated
that case for hearing with the unfair labor practice cases. The
Respondent’s answer denies any violation of the Act. I find
that the Respondent violated Section 8(a)(1) of the Act substan-
tially as alleged in the complaint and also, with the exception of
the discharge of one employee, violated Section 8(a)(3) sub-
stantially as alleged in the complaint.

1 All dates are in 2002, unless otherwise indicated.
2 The charge in Case 15–CA–16552 was filed on April 17 and
amended on September 30; the charge in Case 15–CA–16578 was filed
on May 2; the charge in Case 15–CA–16596 was filed on May 9 and
was amended on May 15; the charge in Case 15–CA–16642 was filed
on June 18; the charge in Case 15–CA–16677 was filed on July 15 and
was amended on August 26 and September 30; and the charge in Case
15–CA–16721 was filed on August 26 and amended on September 25.
3 The amendment consisted of five additional 8(a)(1) allegations,
subpars. 9(i)–(m), that were tendered on a typewritten document to all
parties. A copy of that document is hereby added to the formal papers
as GC Exh. 1(mm).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Austal USA, L.L.C. (the Respondent or the Company) is a
limited liability partnership engaged in the construction of high
speed aluminum boats at its facilities in Mobile, Alabama,
where it annually purchases and receives goods valued in ex-
cess of $50,000 directly from points outside the State of Ala-
bama. The Respondent admits, and I find and conclude, that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Sheet
Metal Workers International Association Union, Local 441 (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company, a subsidiary of Austal Limited, an Australian
corporation, began operations at its Mobile, Alabama facility
late in the year 2000. Until April 2002, Vice President of Op-
erations Simon Thornton was the senior management official.
On April 12 or 13, Alan Lerchbacker was hired as chief execu-
tive officer. Bender Shipbuilding owns 30 percent of the Com-
pany. Various Bender executives have provided logistical sup-
port to the company.
In April, the Union began an organizational campaign at
Austal’s facility. On April 3, Business Manager Tommy Fisher
and other union representatives handbilled at the Company,
presenting employees with union authorization cards and a
leaflet. On April 10, the Union handbilled again, announcing a
meeting on April 11. On April 12, the Union filed the repre-
sentation petition in Case 15–RC–8394. The parties entered
into a Stipulated Election Agreement. The election was held on
May 24.
The Company responded to the Union’s campaign. Supervi-
sors began meeting, both individually and in small groups, with
employees. Bender Vice President of Support Services Danny
Sellers, who had never before provided any services to Austal,
spoke at small group meetings of six to eight employees with
Austal Production Coordinator David Growden and Vice Presi-
dent Thornton. CEO Lerchbacker was present at some of these
meetings. Sellers also “talked to everybody in the shipyard”
individually.
The vast majority of the alleged violations herein occurred
during the critical period between April 12 and May 24.
B. The 8(a)(1) Allegations
1. Welding Supervisor John Calhoun
During the next week, following the handbilling of April 3,
prior to when some employees began wearing union T-shirts
and displaying union stickers, Welding Supervisor John Cal-
houn spoke with employee Wayne Jenkins in the toolroom.
Calhoun called Jenkins aside, told him that he wanted to talk to
him, “friend to friend,” and asked if Jenkins had signed “any
AUSTAL USA, L.L.C. 565
papers to be in the Union.” Jenkins, replying to the word “pa-
pers,” replied that he had not, although he had signed an au-
thorization card. Calhoun responded, “Well good,” but then
referred to union authorization cards rather than “papers,” stat-
ing that, if Jenkins had signed a card he could write and get it
back, that “the cards will have to go across Simon Thornton’s
desk . . . [and] if the Union didn’t come in that there would be
hell to pay for everybody, . . . that they will eventually start
getting rid of the people that signed the union cards.”
Jenkins recalled that Calhoun also said, if the employees se-
lected the Union as their collective-bargaining representative,
“the Union would call a strike . . . [and] that he [presumably
referring to Thornton] would hire scabs here to take our place,
and that . . . we would not be hired back in.” Jenkins attributes
a similar statement to Calhoun in a later conversation.
Calhoun denied having any conversation with Jenkins in the
toolroom and specifically denied questioning him regarding
signing anything or threatening that there would be “hell to
pay.” I do not credit that denial. The conversation with Jenkins
occurred at the inception of the Union’s organizational effort,
prior to employees wearing union paraphernalia. Calhoun testi-
fied to having been instructed regarding what he could or could
not say in the campaign, but did not place a date upon when he
received those instructions and could not recall what he was
told, although he states he knew at the time. Jenkins’ straight-
forward testimony was fully credible. Calhoun’s bias was ap-
parent and his demeanor was less than impressive. I credit
Jenkins.
The foregoing evidence establishes that Calhoun’s initial
conversation with Jenkins occurred prior to employees wearing
union paraphernalia, thus, it occurred prior to the initial union
meeting on April 11 rather than on April 19 as alleged in the
complaint, which would have placed the conversation within
the critical period. I find that Calhoun’s questioning Jenkins
regarding whether he had signed any “papers,” coupled with
the statement that employees could get their union authoriza-
tion cards back, followed by the reference to Thornton seeing
the cards, that there would be “hell to pay” and that the Re-
spondent would get rid of card signers if the Union did not
succeed in becoming the employees’ collective-bargaining
representative constituted a coercive interrogation. I find, as
alleged in subparagraphs 7(c), (f), and (g) of the complaint, that
the Respondent coercively interrogated an employee, threat-
ened unspecified reprisals, and threatened job loss in violation
of Section 8(a)(1) of the Act.
There is no evidence of surveillance. Since Jenkins denied
having signed any papers, the factual statement that employees
could get cards back did not constitute a solicitation to revoke
anything. I shall therefore recommend that subparagraphs 7(d)
and (e) be dismissed.
After April 11, employees who supported the Union began
wearing insignia reflecting their sentiments, including T-shirts
and stickers that they placed on their hardhats. Calhoun, “see-
ing as how the hard hats belong[ed] to Austal USA,” ques-
tioned Production Coordinator David Growden as to whether
employees should be allowed to put stickers other than Austal
stickers on their hardhats. Growden agreed that they should
not, and Calhoun acknowledges that, thereafter, he asked “any
employee” that he saw to remove from the hardhat “any sticker
that Austal did not give to you.” This direction to remove the
stickers was also communicated to some employees, including
Robert Skelton, by Team Leader Joe Reed.
It appears that most employees were requested to remove the
stickers on the morning of a workday in the week following the
union meeting on April 11, but the date is not established. In
most cases, the request was rescinded about a half hour to an
hour after it was made. Growden explained that after he agreed
with Calhoun that employees should not be permitted to place
stickers on Austal property he “double-checked with my boss
Simon [Thornton].” Thornton said that he would check with
the lawyer. Shortly thereafter, Thornton told Growden that
employees could wear the stickers and Growden told Calhoun
that “we have made a mistake,” to inform the employees that
they could wear the union stickers. Calhoun did so, telling
employees that they could “feel free” to put their stickers back
on their hardhats.
In some cases, the request was not rescinded for a full day.
Employee Nathaniel Haywood was in a group of employees
receiving welding training from Calhoun at a class conducted in
the training trailer. Calhoun asked everyone in the class to
remove any stickers that were not issued by Austal. Haywood,
who had a union sticker on his hardhat, removed it. It was not
until the following day, when Haywood reported to the class in
the training trailer, that Calhoun told him that employees could
wear the stickers.
The Respondent argues that the prompt rescission of this in-
struction obviates any violation. I disagree. Unlike Atlantic
Forest Products, 282 NLRB 855 (1987), in which the unlawful
direction was given to only two employees, the direction in this
case was made throughout the facility by Reed and Calhoun,
who admits speaking to every employee he observed wearing
union stickers. In the case of Haywood, it was not rescinded
until he reported for his training class, a day after he received
the initial instruction. See Mr. Z’s Food Mart, 325 NLRB 871,
891 (1998). The rescission did not occur in a context free from
other unlawful conduct. Although the Respondent, in its brief,
characterizes the action as a “fleeting incident,” the unlawful
instruction was not isolated. The rescission was communicated
as an absence of objection by management. Employees were
told, in Calhoun’s words, that they could “feel free,” if they
wished, to wear the stickers. The rescission, stated as a man-
agement decision, did not acknowledge that employees had a
Section 7 right to wear the stickers or that the Respondent had
infringed on that right. Furthermore, it did not unambiguously
and specifically repudiate that infringement, and it did not as-
sure employees against future interference by the Employer in
the exercise of their Section 7 rights. Community Action Com-
mission, 338 NLRB 664, 667–668 (2002). The Respondent, by
directing employees to remove union stickers, violated Section
8(a)(1) as alleged in subparagraphs 7(b) and 9(j) of the com-
plaint.
Subparagraph 7(a) of the complaint alleges that Calhoun
threatened unspecified reprisals. The evidence relating to this
allegation is employee Robert Skelton’s testimony. Skelton
began wearing a union T-shirt after the union meeting on April
11. A few days after this, he encountered Supervisor Calhoun
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
and employee Glen French outside the breakroom. Skelton
recalls that, when Calhoun observed him, he asked where he
got the T-shirt and how much he had paid for it. Skelton re-
sponded that the Union gave it to him and he did not have to
pay for it. Calhoun responded that it would “cost me more than
what I realized.” Calhoun acknowledged an encounter similar
to that described by Skelton, but testified that he was talking
with employee James Pike and that employee Wayne Jenkins,
rather than Skelton, was the other person involved in the con-
versation. According to Calhoun, Pike asked how much Jenkins
had paid for the shirt and he, Calhoun, stated, “[P]robably more
than you know.”
The Respondent, in its brief, argues that Calhoun’s admitted
comment, that the shirt cost “probably more than you know,”
was a legitimate comment that referred to “fees, dues, fines,
and assessments.” That argument might have merit if Calhoun
had referred to dues or fees, but he did not. I credit Skelton. I
find that Calhoun’s reference to the unspecified “costs” that
Skelton did not realize, like the reference to “hell to pay” that
Calhoun stated when interrogating Jenkins, threatened unspeci-
fied reprisals in violation of Section 8(a)(1) of the Act.
Among the employees requested to remove stickers was Jen-
kins. When the request was rescinded, Jenkins did not have a
standard sticker to replace the one that he had removed and,
therefore, he placed a small bumper sticker on his hardhat.
Thereafter, outside the pontoon boat at which Jenkins was
working, Calhoun approached Jenkins and asked why he
wanted the Union. Jenkins told him “better benefits, the pay
scale, because they paid everybody different . . . [, and that]
nobody had the same classification.” After discussing the clas-
sification of a particular employee, the conversation continued
and Calhoun noted that, if a strike occurred, the Company
“would hire scabs” and “would not hire us back.” Calhoun
admitted that he was familiar with the word “scabs,” but denied
using it, and that, in response to a question by Jenkins, he in-
formed him that the Company had the right to replace strikers.
In early April, the Company began responding to the Un-
ion’s organizational efforts with fliers that it produced. One
morning, as employee Zolia Powell entered the breakroom and
was putting down her lunch before going to work, Supervisor
Calhoun and Fitter Supervisor Dennis Sigur entered the brea-
room, went straight to a garbage can, and looked into it. Cal-
houn asked if any of the employees present knew who had
thrown away the company fliers. After Calhoun and Sigur left,
Powell looked and saw that a stack of those fliers had been
thrown into the breakroom garbage can. Thereafter, Calhoun
approached Powell and asked her individually whether she
knew who had thrown away the fliers. She responded that she
did not. Calhoun stated that if he found out who had done so,
they would be terminated.
The General Counsel and the Charging Party argue that Cal-
houn’s asking Jenkins at the pontoon boat why he supported the
Union is encompassed by subparagraph 7(i) of the complaint
alleging unlawful interrogation. At that time, Jenkins had
openly shown his support for the Union. The inquiry was not
coercive. The Charging Party argues that Calhoun also threat-
ened discharge, as alleged in subparagraph 7(h) of the com-
plaint, when, in this same conversation, he referred to hiring
scabs if there were a strike and that the Company “would not
hire us back.” The General Counsel does not argue that the
foregoing statement is encompassed in subparagraph 7(h). See
Kimtruss Corp., 305 NLRB 710, 711 (1991).
Counsel for the General Counsel argues that Calhoun’s ask-
ing Powell whether she knew who had thrown away the com-
pany fliers coupled with a threat to terminate the individual
responsible constituted interrogation and a threat of discharge
and violated the Act as alleged in subparagraphs 7(h) and (i) of
the complaint. The destruction of company property, even if it
is in the form of antiunion propaganda, is not protected activity.
Calhoun’s inquiry was not coercive and the threat of termina-
tion for destroying company property did not violate the Act. I
shall recommend that subparagraphs 7(h) and (i) of the com-
plaint be dismissed.
Following the discovery of the fliers in the garbage can, the
Company printed another set of fliers. At a safety meeting,
Powell recalls that Calhoun referred to the fliers, urging em-
ployees to “get the facts.” Contemporaneously with his urging
employees to “get the facts,” he threatened that employees
would be terminated if they were “caught discussing the fliers
that the Union had passed out.” Employee Dirk Spencer cor-
roborates this testimony. Although less specific than Powell, he
recalled Calhoun “basically saying that you cannot say any-
thing during working hours about the Union.” Employee An-
dre Love confirms that Calhoun informed employees that “talk-
ing about the Union while you are supposed to be working is
proper grounds for termination.” On cross-examination, Powell
repeated that Calhoun made it clear that “it was okay if you
wanted to discuss the company flyers on company time, . . .
[b]ut you couldn’t discuss the union flyers on the company
time. That was the difference.”
Calhoun did not deny urging employees to “get the facts”
from the company fliers while at the same time prohibiting any
discussion of the union fliers during working time. There is no
evidence of any prohibition against all talking, such as talking
while working or waiting for a supervisor to come solve a prob-
lem. Calhoun acknowledged that talking is not an issue unless
the nonwork conversation takes away from production, that is,
when they are “standing chit-chatting” about something other
than the job. Prior to the union organizational effort, notes
from safety meetings reflect that Calhoun admonished employ-
ees for “too much talking.”
The complaint, in subparagraph 7(j), alleges that the Re-
spondent, through Calhoun, promulgated a discriminatory no
talking rule. The record establishes that prior to the effort of
the Union to organize the employees the only prohibition was
on talking that interfered with production. The credible testi-
mony of Powell establishes that, after the Union began its or-
ganizational effort, Calhoun prohibited all discussion of union
fliers on company time. The foregoing selective restriction,
targeted specifically to union related conversations, violated
Section 8(a(1) of the Act.
2. Welding Team Leader Joe Reed
Although hourly paid, Welding Team Leader Joe Reed is-
sued discipline. He was a supervisor, and the Respondent so
admits. Reed attended the first union meeting on April 11. The
AUSTAL USA, L.L.C. 567
complaint, in subparagraph 9(m), alleges that Reed engaged in
surveillance by attending that meeting. On April 11, the unit
had not been defined. The Union’s petition sought a unit of all
hourly production and maintenance employees, “including
leadmen.” (Emphasis added.) Reed was an hourly paid lead-
man. On April 12, the parties entered into a Stipulated Election
Agreement pursuant to which team leaders were excluded from
the unit. Reed attended no further union meetings. There is no
evidence that Reed attended the meeting on April 11 at the
behest of the Respondent. I shall recommend that this allega-
tion be dismissed.
In mid-April, employee Darrell Spencer, a welder, engaged
in discussions with Reed regarding the Union. In one of these
conversations, Reed informed Spencer that “the Company was
not going to pay us any more money, and that they would shut
down, and . . . leave here before they would adapt to having a
union.” Reed, although initially denying that he “ever talk[ed]”
with Spencer about the Union, and specifically denying the
comments to which Spencer testified, later acknowledged that
Spencer had come to him with some questions and “I told him
that I was not allowed to talk about union issues during com-
pany time.” Despite this purported restriction on Reed, he ad-
mitted that, in conversation with another employee, he had
informed the employee that his signing a card did not obligate
him to pay union dues. I credit Spencer. By threatening plant
closure, the Respondent violated Section 8(a)(1) of the Act as
alleged in subparagraph 9(k).
In mid-April, the Respondent, for the first time, filled out as-
sessment sheets relating to welders. Wayne Jenkins recalls that
Team Leader Reed evaluated him, stating that he was perform-
ing a job assessment and then placing letter grades on a sheet.
Employee Hank Williams, who like Jenkins wore a union
sticker and T-shirt, testified that Reed also came to where he
was working, told him to stop, and, in his presence, filled out
an assessment sheet writing down grades, “like A, B, or C.”
Williams had been working at the Company since August 2001,
and this was the first time that he had received such an evalua-
tion. Employee Donnell Hill was hired in March. He too wore
union paraphernalia. Shortly after Calhoun rescinded his direc-
tion that employees remove their union stickers, Reed came to
where Hill was working and said that there was a “new policy
that we are going to start evaluating each and every employee.”
He then filled out a sheet, grading Hill with letter grades.
Counsel for the Respondent, in his opening statement, indi-
cated that the assessments were for supervisors and were per-
formed by Calhoun. Counsel corrected the identification of the
supervisor performing the assessments to Team Leader Reed in
the Respondent’s brief. In his opening statement, counsel repre-
sented that, when it was learned that two employees had been
assessed, “we made him stop.” Notwithstanding that represen-
tation, Team Leader Reed did not acknowledge that the evalua-
tion of the employees was performed in error or that he was
made to stop. Reed testified that, when Hill questioned what the
form was for, he told him that “the assessment form was to
improve him in areas to prepare him for evaluation.” There was
no testimony relating to how the assessment related to im-
provement. Reed did not put the forms in the employees’ files
and believed that he threw them away.
The Respondent’s unprecedented assessments, giving letter
grades to Jenkins, Williams, and Hill, three open union advo-
cates, suggests an implicit threat to their employment and con-
stituted harassment. There is no evidence that any employee
who did not support the Union was similarly assessed. Reed’s
assertion that the documents were to prepare the employees for
evaluation is belied by the absence of evidence of any action
taken with regard to such preparation and the failure of the
Respondent to maintain the documents. The foregoing compels
the conclusion that the Respondent had no job-related purpose
regarding these assessments; thus I shall recommend that the
allegation that the assessment violated Section 8(a)(3) of the
Act be dismissed. The absence of any job-related purpose in
these assessments confirms that the Respondent had no purpose
other than harassing these three employees because of their
support for the Union. In so doing the Respondent violated
Section 8(a)(1) of the Act as alleged in paragraph 11 of the
complaint.
3. Production Coordinator David Growden
In mid-April, employee Tony Causey complained to Grow-
den about a warning he had received from Calhoun. Calhoun
was not Causey’s supervisor. That warning is not alleged as a
violation. In their discussion, Growden asked why the employ-
ees needed a union. Causey, focusing on the warning, re-
sponded that “nothing was being done” when they came to him
with a problem, such as the manner in which Calhoun super-
vised, noting that the employees were “getting threatened every
time they go to a safety meeting.” Growden took out a yellow
tablet and Causey continued, noting various problems. Grow-
den, although not specifically addressing the matters that Cau-
sey raised, stated that the employees “were not going to have a
union, that he was “going to do whatever it takes to keep the
Union from that Company.” Growden acknowledged speaking
with Causey and testified that he told him the Company was
going to do everything “legally possible” to keep the Union out.
According to employee Hank Williams, in April or early
May prior to the layoffs that occurred on May 9, he was ap-
proached by Production Coordinator Growden who asked him
to come to his office. Only Growden and Williams were pre-
sent. Growden asked Williams how he thought the Union
would help “on the floor.” Williams responded that the em-
ployees needed better benefits. Growden denied initiating any
conversation with Williams or questioning him and testified
that Williams told him why he thought the Union was needed.
Growden did not deny that the conversation occurred in his
office, and he admitted that he informed Williams that “we
didn’t want a union.” Growden acknowledged that he could not
“recall exactly our conversation.” He admitted that he wanted
to know “what problems the employees had” and “why some of
the employees supported the union,” stating, “It’s part of my
job to find all information about the employees’ conditions out
there.” I credit Williams.
In early May, employee Zolia Powell, having heard that
management “wanted to talk” with employees about their prob-
lems, sought to meet with Growden with another employee.
Growden dismissed that employee from the meeting and then
asked Powell what problems she was having. Powell spoke
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
about the manner in which Calhoun supervised employees,
“always threatening,” as well as various other complaints. In
the course of the conversation, Growden asked Powell for her
opinion regarding “why the employees wanted the Union at
Austal.” As Powell was leaving Growden stated that he appre-
ciated her speaking with him, that he wanted to find out what
the employees’ complaints were “and see if he could do some-
thing.”
The complaint, in subparagraphs 8(a) and (b), alleges that
Production Coordinator Growden interrogated employees and
solicited their grievances with an implied promise to remedy
them. Growden, in asking Causey, Williams, and Powell for
their opinion regarding why the employees wanted the Union,
did not seek to have them divulge their activities. Their union
sympathies were known. Growden’s question was not interro-
gation but solicitation of their grievances. I shall, therefore
recommend that subparagraph 8(b) be dismissed.
The Board addressed conduct similar to that in which Grow-
den engaged in Reliance Electric Co., 191 NLRB 44, 46
(1971), stating:
Where, as here, an employer, who has not previously had a
practice of soliciting employee grievances or complaints,
adopts such a course when unions engage in organizational
campaigns seeking to represent employees, we think there is a
compelling inference that he is implicitly promising to correct
those inequities he discovers as a result of his inquiries and
likewise urging on his employees that the combined program
of inquiry and correction will make union representation un-
necessary. [Footnote omitted.]
The foregoing three one-on-one meetings with Growden
must be viewed in perspective. Following the institution of the
union organizational campaign, the Respondent began meeting
in small groups with employees. Bender Vice President of Sup-
port Services Danny Sellers, who had never before provided
any services to Austal, spoke at these meetings and began talk-
ing “to everybody in the shipyard” individually. There is no
evidence that similar meetings had ever been held. The Re-
spondent’s managers and Sellers sought to determine “why the
employees wanted the Union at Austal.” In order to answer that
question, management officials began listening to and question-
ing employees.
When employees Causey and Powell approached Growden,
he took the opportunity to seek their opinion regarding the im-
petus for the union campaign. Although Williams had not
sought to speak to Growden, Growden sought to speak to him.
The Respondent argues that no violation should be found as a
result of these discussions because Growden “never promised
anything.” Growden admitted stating to Causey that the Com-
pany was going to do everything “legally possible” to keep the
Union out. Unless he intended the foregoing as a veiled threat
of retaliatory action, it could have no meaning other than as an
expression of commitment to be responsive to the concerns that
Causey raised. When speaking with Powell, Growden told her
that he wanted to find out what the employees’ complaints were
“and see if he could do something.” In these circumstances, as
in Mast Advertising, 286 NLRB 955, 961 (1987), “cautious
language, or even a refusal to commit the employer to specific
corrective action, did not cancel the employees’ anticipation of
improved conditions if the employees opposed the union.” I
find, as alleged in subparagraph 8(a), that the Respondent solic-
ited employee grievances and implied that they would be reme-
died.
4. CEO Alan Lerchbacker
Employee Darrell Spencer, like all employees, attended a
small group meeting in the trailer in which Production Coordi-
nator Growden’s office is located. CEO Lerchbacker was pre-
sent at the meeting Spencer attended. He recalled that Ler-
chbacker stated that he “needed some feedback,” he wanted to
know “what was the Company’s problems with the employ-
ees.” Lerchbacker stated that “he wanted to make it known that
. . . the Company was going to help the employees,” and he
specifically mentioned improved insurance and raises.
Employee Andre Love also attended a meeting at which
CEO Lerchbacker, Sellers, and Growden were present. I do not
credit his assertion that Lerchbacker affirmatively stated that he
was a “union buster,” although that may well be the impression
that Love formed. Love recalled that Lerchbacker stated that he
“would make a change,” that within 6 months “there will be a
difference.” Lerchbacker mentioned working with supervisors
and paving the driveway. Love recalls that, as soon as Ler-
chbacker mentioned those specifics, Sellers interrupted him and
told Lerchbacker that he “can’t promise us that,” that he could
not make promises “to get us to go against the Union.” Later in
the meeting, employee Clifford Rayford began speaking against
the Union, referring to his previous employment at a different
company where his pay was cut and suggesting that Austal
needed to “kick them [prounion employees] out the gate.” Love
recalled that Lerchbacker endorsed the statement, saying, “that
sounds like a good idea.” Near the end of the meeting, Love
noted that he had been promised, but had not received, a pay
raise and that he had been “going back and forth between Dave
Growden, who was sitting in there, and . . . Calhoun.” Ler-
chbacker stated that “no employee should have to go between
his supervisor and his supervisor’s supervisor about raises and
. . . he would put a stop to that.”
CEO Lerchbacker denied making any promises or adopting
any statement relating to sending employees out the gate. Ler-
chbacker was, by agreement of the parties, presented before the
General Counsel and the Charging Party rested their cases be-
cause he was going out of town. I shall not speculate whether
his mind was preoccupied. Suffice it to say that his shifting
recollections give me no confidence in his testimony. Referring
to his work history, Lerchbacker initially testified that he had
worked in both union and nonunion situations, and that “it
didn’t matter to me.” He then amended this testimony stating
that “it did matter.” When asked, regarding employee Clifford
Rayford, “Do you remember him or know him,” Lerchbacker
answered,“No.” He thereafter attributed the comments regard-
ing an employee’s experiences with a union at a pervious em-
ployer to an employee he identified as Shelton and denied that
Shelton had said anything about sending employees out the
gate. When asked again about Rayford, Lerchbacker contra-
dicted his prior answer, testifying that he did know Rayford,
but did not recall him being at a meeting. Although Sellers
AUSTAL USA, L.L.C. 569
denied that any management official made any promises in his
presence, he did not specifically deny interrupting Lerchbacker
and telling him not to make promises. Sellers did not address
Lerchbacker’s attribution of comments to Shelton rather than
Rayford, nor did he deny that Lerchbacker adopted a statement
relating to sending or kicking employees out the gate. Neither
Growden nor Sellers contradicted Love’s testimony regarding
“going back and forth” between Growden and Calhoun and that
Lerchbacker stated he would “put a stop to that.” I credit
Spencer and Love.
Lerchbacker’s request for feedback constituted solicitation.
His generalized assertion that “there will be a difference”
within 6 months constituted a promise of benefits, as did his
references to improving insurance, paving the driveway, and
assuring that he would “put a stop” to whatever caused em-
ployees to have to go between their supervisor and their super-
visor’s supervisor. The foregoing solicitation of grievances and
promises to remedy them violated Section 8(a)(1) of the Act as
alleged in subparagraph 9(l) of the complaint. The endorsement
of Rayford’s suggestion that prounion employees be kicked out
the gate threatened termination as alleged in paragraph 10 of
the complaint and violated Section 8(a)(1) of the Act.
5. Bender Vice President Danny Sellers
Employee Hank Williams recalled that, shortly before the
election, Sellers approached him and “wanted to know if I was
going to vote right.” Williams was an outspoken prounion em-
ployee and acknowledged that it was obvious how he felt. He
did not specifically recall the exact words used by Sellers who
credibly denied asking any employee how he was going to vote
but urged all employees to vote for the Company. I shall rec-
ommend that subparagraph 9(a) of the complaint be dismissed.
At a small group meeting that included employees Causey,
Jenkins, Powell, and Warren Gatwood, Causey recalls that
Bender Vice President Danny Sellers, who spoke at all of these
meetings, referred to Lerchbacker, stating that he was the new
CEO, that he had spoken with him, and that “we ought to give
Alan [Lerchbacker] a chance,” that if the employees gave him a
chance, they would “see better things happen at the Company.”
I have found that Lerchbacker himself assured employees that
he would be responsive to their complaints. Although Sellers
denied making any promises, he did not specifically deny the
foregoing comment. I credit Causey. Sellers’ assurance that if
they gave Lerchbacker a chance they would “see better things
happen at the Company” constituted a promise of benefit if the
employees rejected the Union and, as alleged in subparagraph
9(i) of the complaint, violated Section 8(a)(1) of the Act.
In the course of the meeting, Sellers mentioned discipline.
Jenkins recalls that Sellers stated that he was “looking at every-
body’s time cards” and if employees had excessive absences or
tardies, “they would be disciplined.” Gatwood recalls Sellers
stating that the Company was going to have to start going by
the disciplinary guidelines in the handbook. Causey recalls that
Sellers specifically addressed him, stating that he had “looked
at everyone’s attendance,” and that “he was the one at fault for
getting me wrote up.” Sellers admitted reviewing the atten-
dance of all employees “prior to them taking disciplinary ac-
tion.” His undenied acknowledgement to Causey that he was
responsible for him being disciplined together with his un-
denied comment that employees with excessive absences
“would be disciplined,” confirm Gatwood’s undenied testimony
that the Respondent was going to start going by the handbook.
Sellers’ presence at the facility was in response to the organiza-
tional campaign. The Respondent threatened discipline pursu-
ant to more stringent enforcement of its rules as alleged in sub-
paragraphs 9(b) and (c) of the complaint in violation of Section
8(a)(1) of the Act.
The complaint, in subparagraph 9(d), alleges that Sellers
“impliedly threatened” plant closure. Sellers acknowledged
discussing a situation at an International Paper Company plant
in a small group meeting with employee Ronnie Murphy. Both
were familiar with the situation. Murphy did not testify. Em-
ployee Andre Love, who was in the meeting, recalls Sellers
making a statement about the union at that plant being “too
greedy,” but did not place that statement in context, stating that
“it was just so much going back and forth.” The evidence does
not establish an implied threat of closure. I shall recommend
that this allegation be dismissed.
C. The Discharge of Charles Gates
Charles Gates, an experienced welder, began his employ-
ment in engineering at the Company on January 8, 2001. In
October 2001, he was promoted to team leader under Supervi-
sor Mickey Slade and received a $1-an-hour raise in pay. Engi-
neering employees perform welding and pipefitting.
It is undisputed that Gates was terminated because he refused
to support the Company’s position of opposition to the Union.
During the last week of April, Sellers spoke with Gates. Sellers
asked Gates “why the Union” was at the Company. Gates re-
sponded that employees were upset with a lack of standardiza-
tion in pay rates and the manner in which they were treated.
Sellers informed Gates that, “as a member of management, . . .
[he] had to promote a non-union view.” Gates responded that
he wanted “to be left neutral.” Sellers informed him that he
could not be neutral; he “had to promote non-union.” Gates
noted that his family was “third generation” in the Union. Sell-
ers advised Gates that he could not remain neutral and that he
would have to make “a critical career decision.” Gates left the
meeting. He was terminated for failure to uphold company
policy on May 1.
Although the Union initially sought to include leadmen, the
unit to which the parties stipulated specifically excludes team
leaders. Team Leader Joe Reed is alleged as, and admitted to
be, a supervisor. The Company argues that all team leaders are
supervisors. The General Counsel and the Charging Party argue
that, notwithstanding the shared title of team leader, the deter-
mination of whether Gates was a supervisor is dependent upon
the authority he exercised. Board precedent confirms that this
argument is correct.
It is undisputed that Reed issued discipline. Gates did not, al-
though he did serve as a witness when Supervisor Slade issued
discipline. Gates did not have authority to authorize overtime,
but he would ask for volunteers for overtime after Slade ap-
proved it. There is no evidence that Gates either had authority
to grant, or ever granted, time off. Supervisor Slade handled all
matters relating to time. The only documents signed by Gates
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
were requisitions for material from the toolroom. Although the
Company argues that two documents signed by Gates titled,
Purchase Requisition, constituted orders from outside vendors,
no vendor is shown on either document. Gates explained that
these simply reflected a change in the internal form used by the
Company. Gates’ testimony in this regard is uncontradicted,
and the small amount of material involved, one 2-inch fitting,
one 2-inch coupler, eight 1-inch fittings, and two 1-inch cou-
plers, is consistent with his testimony that these were too room
requisitions, not orders from outside vendors. There is no evi-
dence that Gates’ approval of these requests for materials from
the toolroom was other than routine.
On a typical workday, employees in engineering would
gather. “Mickey [Slade] would come out . . . and basically
[conduct] a roll call.” Slade would have a sheet that would
have “pressing items or pressing systems that we needed to pay
certain attention to . . . highlighted, or he would request certain
people to be put on.” Gates would then make the work assign-
ments and assure that the work was kept flowing. As employees
finished one task, it was up to Gates to get them “headed in the
direction of a secondary job for the day,” subject always to
Slade’s oversight; “Mickey [Slade] let me know what, if we
had other things [that] . . . he wanted done.”
As team leader, Gate answered employees’ questions to the
best of his ability. If he could not answer a question, he “would
go find him [Supervisor Slade] to get a question answered, or
have him [Slade] come look at it.”
Gates’ testimony that he spent 90 percent of his workday
working with his tools is uncontradicted.
In SDI Operating Partners, L.P., 321 NLRB 111 (1996), the
Board determined that a leadman who “gave the other glaziers
their assignments, distributing the work based in part on his
past observations concerning the employees’ qualifications . . .
[and] instructed other employees as needed in accomplishing
the work, relying on his own experience and expertise, as well
as the instruction manuals provided by the suppliers of the
products being installed” was not a supervisor. The Board
noted that the leadman did not have the authority to grant over-
time or require employees to work overtime, or “generally to
grant time off,” but that he had permitted an employee to leave
once in an emergency situation. In the instant case, Gates had
no authority relating to time. I find that Gates’ duties “with
respect to the assignment and direction of employees do not
demonstrate the exercise of independent judgment, but rather
involve routine decisions typical of leadman positions that are
found by the Board not to be statutory supervisors.” Id. [(Cita-
tions omitted.)
The Stipulated Election Agreement excludes team leaders
and supervisors as defined in the Act from the unit. Although
the Respondent argues that supervisory status was the basis for
the exclusion, the agreement does not stipulate that team lead-
ers are supervisors. There is no evidence whatsoever regarding
the discussions relating to the Stipulated Election Agreement.
In imposing on Gates the requirement that he adopt an anti-
union stance, the Respondent “made a calculated decision that
. . . [team] leaders were supervisors within the meaning of the
Act. An error in that assessment does not excuse unlawful con-
duct.” Lampi, L.L.C., 322 NLRB 502, 505 (1996).
Sellers never asked Gates about his union sympathies. The
conversation confirms that Sellers was aware of Gates’ sympa-
thies and that Gates voluntarily confirmed them when he ex-
plained that his family was third generation union. In request-
ing Gates’ opinion of why the Union was seeking to organize,
Sellers did not demand that Gates divulge the names or activi-
ties of employees whom he knew supported the Union. Con-
trary to the complaint allegation of interrogation, there is no
evidence that Sellers interrogated Gates regarding his union
sympathies or the union sympathies of other employees. Sellers
knew Gates’ union sympathies and demanded that Gates not
simply remain neutral but oppose the Union or lose his job. The
threat of termination violated Section 8(a)(1) of the Act. The
termination violated Section 8(a)(3) of the Act.
Following Gates’ termination, a foreman with MEI, an elec-
trical contractor that performed work at the Austal facility,
called Gates and asked if he was interested in working with that
company. Gates replied that he was. The foreman stated that he
needed to check with Austal. The following day, he called
Gates and told him that he could not hire him because he was
barred from Austal’s property. Production Coordinator Grow-
den confirms that he advised MEI that Austal “would rather not
have Gates on the property.” Even if I had found that Gates
was a supervisor with the Respondent, he would have been an
employee, not a supervisor, with MEI. The Respondent’s inter-
ference in Gates’ employment opportunity because of his fail-
ure to support the Company’s opposition to the Union violated
Section 8(a)(3) of the Act.
D. The Suspension and Discharge of Tony Causey
Tony Causey was a fabricator who began his employment
with the Company on May 14, 2001. Causey acknowledged
that he had been counseled regarding his attendance by his
supervisor, Dennis Sigur, prior to the advent of the Union. A
warning dated February 22 reflects that Causey was 1 minute
late on February 20 and 22 and 4 minutes late on February 21.
The same incidents of tardiness were repeated in a warning
dated March 27 that cited Causey for absences on March 4 and
5. Supervisor Sigur directed Causey to call in before 9 a.m. if
he had to be absent for any reason. Causey was an active union
adherent and his prounion sympathies were exhibited by his
wearing a union T-shirt and sticker.
On April 24, Causey sought and received permission from
Supervisor Sigur to be off on April 25, the date of his 10th
wedding anniversary. Upon reporting to work on April 26,
Sigur issued a suspension to Causey for missing the 25th. The
suspension document referred to “past tardies and absentees”
and stated “[Y]ou will be given a three day suspension . . . upon
your return.” Causey protested that he had received permission
to be off on April 25 and Sigur replied that he was “not sup-
posed to be off.” Thereafter, Causey met with Production Co-
ordinator Growden. Causey recalls that Sigur was present.
Growden does not place Sigur at their meeting. Growden ex-
plained to Causey that he was not supposed to be off because of
his attendance problems. Causey responded that Sigur had
approved his absence and asked why Sigur had “okay[ed] it if I
couldn’t be off.” Causey was asked to wait in the breakroom.
Vice President Sellers observed Causey waiting in the break-
AUSTAL USA, L.L.C. 571
room and spoke to him. Causey complained to Sellers that it
was not right for him to be written up after his supervisor
“okays me to be off.” Shortly thereafter, Causey was called
into a small group meeting that was being conducted by Grow-
den and Sellers. In the course of the meeting, the same meeting
noted above, Sellers addressed Causey’s suspension, stating
that he was responsible for Causey having been written up, that
he had “looked at everyone’s attendance,” that “he was the one
at fault for getting me wrote up.” Following this meeting, Sell-
ers told Causey to go home that day and that he would take care
of it. As Causey was leaving, Sellers approached him and told
him that he had learned that Causey had already talked with
Growden and that he would have to serve the 3-day suspension.
On May 7, Causey called into the Company prior to 9 a.m.,
between 8 and 8:30 a.m. and reported to the receptionist that he
was experiencing pain from a prior injury and was going to the
doctor. He did so and obtained a doctor’s slip. Upon reporting
to work the following day, Causey brought with him the doc-
tor’s slip. Before he saw Supervisor Sigur, Causey spoke with
his leadman who suggested that Causey see the company doc-
tor. Following this conversation, Causey was approached by
Supervisor Sigur who told him to get his tools, that he was
being let go. Causey responded that he had his doctor’s slip,
that he was out because of his injury, and that he wanted to see
the company doctor. He gave the doctor’s slip to Supervisor
Sigur. Supervisor Sigur told Causey to wait. After an hour and
a half, Supervisor Sigur returned with Growden. Causey re-
peated what he had previously said. Both then left. Supervisor
Sigur returned and escorted Causey outside where he encoun-
tered “Bender’s personnel guy,” identified in the record as
Bobby Woods, to whom he explained his injury and his desire
to see a company doctor and “to check the record.” Woods
responded that someone would contact him in 2 or 3 days. On
the same day, about 1:30 p.m., Woods called Causey and told
him he was being let go. Causey repeated that it “wasn’t right”
that he was being let go and that he had done what he was sup-
posed to as far as calling in and bringing the doctor’s slip.
Causey was never told that he was being terminated for ab-
senteeism. He was simply told he was being let go. Absentee-
ism and tardiness is reflected as the reason for the termination
on Causey’s personnel clearance report.
Sellers acknowledges reviewing the attendance of employees
and speaking with Causey regarding his suspension. He did not
deny stating that he was responsible for the suspension. He
testified that, when he spoke with Causey, Causey was “quite
convincing,” that he then spoke with Growden. According to
Sellers, Growden told him, “This is what he [Causey] probably
said to you.” Sellers acknowledged that it was and asked Grow-
den how he knew that, and Growden replied, “The time before
when he was disciplined, he used the exact same reasons.” The
foregoing testimony by Sellers reveals no substantive informa-
tion regarding the conversation with Causey or the “reasons”
purportedly stated by Growden. Causey stated only one reason
for the unfairness of the warning: he had permission from Sigur
to be off.
Growden testified that he checked with Sigur who, he says,
told him that he had not given Causey permission to be off. I do
not credit that testimony. Sigur did not testify. Growden never
stated the purported denial of permission to Causey, nor did
Growden assert making such a report to Sellers. Sellers did not
testify that he received such a report. If he had, Sellers would
certainly have informed Causey that Supervisor Sigur disputed
the claim that permission for the absence had been given.
Growden did not address the termination of Causey.
Sigur, who continues to be employed by the Company as es-
tablished by the testimony of employee Nathaniel Haywood
that Sigur is his supervisor, did not testify. I have credited
Causey’s testimony regarding his receipt of permission to be
off on April 25. His testimony regarding calling in on May 7
and his bringing a doctor’s slip on May 8 is uncontradicted.
The analytical framework of Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), is applicable in dual
or mixed motive cases after the General Counsel has estab-
lished employee union activity, employer knowledge of that
activity, animus towards such activity, and adverse action taken
against those involved in that activity. All of the foregoing
elements were established with regard to the suspension and
termination of Causey. When the reason given for an action is
either false, or does not exist, the General Counsel’s prima
facie case is unrebutted, thus there is no need for further analy-
sis. Limestone Apparel Corp., 255 NLRB 722 (1981). The
Respondent’s suspension of Causey on April 26, after Sigur
had given him permission to be off, was totally unjustified.
Causey properly reported his absence on May 7. Sigur told
Causey that he was being let go, with no further explanation,
before Causey gave him the doctor’s slip. It appears that, even
though unstated by Sigur, the Respondent had intended to seize
upon Causey’s absence on May 7 to justify his termination.
Causey’s presentation of the doctor’s slip complicated matters.
Sigur told Causey to wait, which Causey did for over an hour.
The failure of Sigur, upon his return, to state to Causey the
reason for his termination confirms that the absence of May 7
was not the reason, although absenteeism is what the Respon-
dent recorded on Causey’s personnel clearance report. Sigur
did not testify. Growden did not address Causey’s termination.
I find that absenteeism and tardiness, the reasons for the dis-
charge stated on Causey’s personnel clearance report, were
false and a pretext for terminating Causey because of his union
activity. Respondent, by suspending and terminating Tony Cau-
sey because of his union activity, violated Section 8(a)(3) of the
Act.
E. The Discharge of Joe Wooten
Employee Joe Wooten was hired as welder trainee on May 7,
2001. Thereafter he was assigned as a janitor. There is no evi-
dence that he attended in any union meetings or wore any para-
phernalia identifying himself as a supporter of the Union. The
only evidence relating to Wooten’s union sentiment was his
testimony that he spoke with William (Billy) Dunn regarding
“the advantages and disadvantages of a union, and we had both
agreed that this was what we needed to do,” that they would
vote “Yes.”
On January 29, 2003, the third day of the hearing, immedi-
ately prior to calling Wooten as his next to last witness, counsel
for the General Counsel moved to amend the complaint to al-
lege Dunn as a supervisor. I reserved ruling on the motion at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD572
that time. Dunn voted in the election without challenge. He is
not classified as a team leader. Wooten’s testimony established
that his supervisor was Pauline Nobles, who had testified on the
previous day, January 28. Counsel for the General Counsel did
not move to allege Dunn as a supervisor at that time, thus No-
bles was not questioned regarding Dunn because there was no
issue relating to Dunn at the time she testified. The charge al-
leging Wooten as a discriminatee was filed on May 9, thus the
General Counsel had more than sufficient time to determine
what allegations were needed in order to establish a prima facie
case. In these circumstances I determined that an amendment at
the eleventh hour was not timely, and I denied the motion to
amend.
Wooten was discharged on May 8. He was unable to punch
in at the timeclock that day because he had taken his timecard
home and forgotten it. He testified that he began taking his
timecard home because some unidentified person was “playing
monkey business with my timecard.” There is no evidence that
Wooten brought this to the attention of any supervisor. The
memorandum accompanying Wooten’s personnel clearance
report states that Wooten was terminated for excessive absen-
teeism. The personnel clearance report does not have an entry
for absenteeism. The work performance block on that document
is checked.
More than a month before the union organizational effort and
prior to a final warning that Wooten received on March 18,
Wooten began keeping notes documenting various incidents of
alleged discrimination and harassment that he encountered. At
the top of the document is the notation, “Attn. EEOC.” There is
no evidence that Wooten filed any charge with the Equal Em-
ployment Opportunity Commission.
The record establishes a litany of offenses by Wooten prior
to the union organizational effort. On March 18, Wooten met
with Growden and Supervisor Mickey Slade regarding his ab-
sences, work performance, and attitude. The document memo-
rializing that meeting is signed by all three participants.
Wooten testified that he signed only because he was informed
that he would be terminated on the spot if he did not do so. The
document states that it constitutes a final warning and that any
further “problems” would result in termination.
As already noted, there is no evidence that the Respondent
was aware of Wooten’s union sympathies. He attended no
meetings; he wore no union paraphernalia. The only evidence
relating to his union sympathies was his conversation with
Dunn in which both agreed that they would vote for the Union.
Even if I were to find that the General Counsel established a
prima facie case with regard to Wooten, I would further find
that the Respondent rebutted that case and established that
Wooten was discharged for cause. I shall recommend that this
allegation be dismissed.
F. The Layoffs/Terminations
1. Facts
When Austal began operations, it did not have a contract for
a vessel. It began constructing a “spec boat,” a vessel of “a
marketable size” for which the Company hoped to find a buyer.
When the Company obtained contracts for two crew boats,
vessels to ferry employees to oil rigs in the ocean, it ceased
work on the spec boat and concentrated on the boats for which
it had contracts. Although no dates were given, it appears that,
while constructing the two crew boats, Austal obtained a con-
tract for the “spec boat,” which became the New York Fast
Ferry, and a contract for a boat referred to as the Miami Dinner
Boat. Vice President Thornton testified that, in May the New
York Fast Ferry was almost complete and that the Miami Din-
ner Boat was 40 to 50 percent compete but that the “aluminum
structure and the majority of the welding were almost com-
pleted” on the Miami Dinner Boat. No spread sheets or other
documentation establishing the actual status of construction
was offered into evidence.
The Company contends that layoffs became necessary be-
cause of a lack of work caused by the loss of a prospective
contract to build a crew boat for Oceanic Fleet, Inc. The Com-
pany was advised on April 17 that Oceanic had decided to have
the boat built by a different company. Austal had been in nego-
tiations regarding the prospective contract for several months.
Pursuant to a “handshake agreement” it had begun design for
the vessel. Thornton initially testified that Austal “started pur-
chasing aluminum” in reliance on the “handshake deal,” but
later testified that the aluminum was ordered but not purchased.
Thornton testified that the next boat for which the Company
obtained a contract was a boat referred to as the New York Din-
ner Boat and that this contract was obtained in late June. No
documents establishing exactly when the contract was obtained
were placed in evidence. When employee Zolia Powell was
terminated she was told that in “three to four months, I should
see an ad in the paper, that they would be doing rehiring.” The
record does not establish whether this representation was
speculation or whether management was aware that Austal had
already obtained the contract for the New York Dinner Boat and
knew that construction was scheduled to begin in August.
Powell had heard rumor of an impending layoff prior to be-
ing called to a small group meeting. Near the end of the meet-
ing that she attended, Powell raised the issue of layoffs, stating
that she had “heard rumors that there was going to be a layoff.”
She recalls that Sellers responded first stating, “[W]e don’t do
layoff,” that, if anything, employees would be terminated.4
Thornton then stated, “We are not laying off.”
Sellers recalls Powell raising the issue of layoffs and testified
that he stated that Austal “follows the same principle that
Bender Shipbuilding follows,” that employees are not laid off,
they are terminated. I do not credit that testimony. When in-
forming Powell, “[W]e don’t do layoff,” he was stating
Bender’s policy, not Austal’s. No Austal executive testified
that Austal followed Bender’s policy, and neither Growden nor
Thornton corroborated Sellers testimony that he stated that
Austal did so. There is no evidence that Austal had any policy
at the point that both Sellers and Thornton responded to Powell
because, at that point, no layoffs were contemplated. Sellers
testified that he told Powell that, as far as he knew, no layoff

4 The Respondent’s brief incorrectly states that Powell attributed this
statement to Lerchbacker. Powell attributed the remark to “the CEO of
Benders.” Lerchbacker did not testify to making any such comment,
and Sellers testified that he was not at that meeting.
AUSTAL USA, L.L.C. 573
was planned, and Thornton did not deny stating, “We are not
laying off.” When a reduction in the employee complement
became necessary, Thornton referred to it as a layoff.
Thornton testified that a meeting at which it was determined
to reduce the employee complement occurred only 1 or 2 days
before May 9. Presumably, the selection of the employees
occurred at that same meeting. Thornton placed himself, CEO
Lerchbacker and Growden in that meeting. Although Ler-
chbacker testified regarding the loss of the prospective contract,
neither he nor Growden addressed the basis for the selection of
employees for layoff. Thornton testified that the Company
“wanted to lay off . . . the least [number of employees] as pos-
sible.” The employees were chosen on the basis of salaries, the
“lowest-paid welders,” since that trade had the least amount of
work. All welders making $13 an hour or less were laid off. A
memorandum signed by Thornton dated May 9 states: “The
following employees were laid off due to lack of work on May
9, 2002.” (Emphasis added.)
The memorandum lists nine employees as being laid off,
eight of whom are alleged as discriminates herein.5 The eight
alleged discriminates are: Warren Gatwood, Curtis Gleason,
Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia
Powell, and Dirk Spencer. No dissatisfaction with their work
was cited as a basis for their selection. All were informed indi-
vidually by Growden and “Bender’s personnel guy,” Bobby
Woods, that their selection was not personal, but that they were
terminated. Typical of the remarks made at the separation in-
terviews was the testimony of Gatwood who was told that
Company had lost a contract and that he was being terminated.
He was then assured that his termination “wasn’t any reflection
on my work, [that he] showed up for work on time, [and] [t]hey
didn’t have any problems out of me.” Gatwood was told that he
“ought to come back on a later date and put an application in.”
In a similar manner, Powell was told that she was “a great
worker.” Growden and Woods shook her hand and Woods told
her that in “three to four months, I should see an ad in the pa-
per, that they would be doing rehiring, and . . . for me to contact
the Company . . . to come back.”
Six of these alleged discriminatees testified. All six sup-
ported the Union. Gatwood, Hill, Jenkins, Love, and Powell
wore union insignia and Spencer informed Team Leader Reed
that he supported the Union. Reed did not deny that conversa-
tion. The record does not establish the union sympathies of
Gleason. Kidd was identified as not supporting the Union.
Wayne Jenkins was the only employee who followed up on
the Company’s suggestion that they put in applications. In De-
cember, he saw an advertisement that Austal was hiring in all
crafts. On December 23, he went to the company office and
filled out an application. While doing so he saw Production
Coordinator Growden enter the office. Growden noticed him,
spoke, and then entered the office of Office Manager Mary
Dwyer. Upon leaving her office, Growden opened the door of
Scott Reese, the individual who was interviewing applicants,
and stated that he needed to see him. When Reese completed

5 No party, either at the hearing or in their briefs, refers to Christo-
pher Lyles, who is listed on the memorandum but not alleged as a dis-
criminatee. I shall make no finding regarding him.
the interview he was conducting, Reese exited from his office.
Jenkins did not see where he went. Shortly thereafter, he re-
turned. He obtained Jenkins’ application from the receptionist
and called Jenkins into the office. He noted that Jenkins had
previously worked for Austal and asked why he left. Jenkins
replied that he was fired because of the Union. Reece then
asked why Austal should hire him back, and Jenkins replied
that he didn’t miss too much time, that he worked hard, and
was a good worker. Reece stated that he would give the appli-
cation to the appropriate supervisor. Thereafter, Jenkins re-
ceived an undated letter thanking him for his interest in work-
ing for Austal but informing him that he was not selected. The
letter does not inform Jenkins that his application was a futility
since the internal personnel clearance report, completed at the
time of his termination in May has “NO” circled following the
question “WOULD YOU REHIRE?”
Growden did not address the failure to the Respondent to of-
fer employment to Jenkins.
The same entry, “WOULD YOU REHIRE?” with the word
“NO” circled appears on the personnel clearance report of each
of these alleged discriminatees.
Prior to employee union activity, on February 14, employee
Patrick Lyons, simply left his employment. His personnel
clearance report shows “abandonment of employment” with no
further explanation. In response to the question “WOULD
YOU REHIRE?” the word “YES” is circled. On August 20,
employee Andrew Geoghagan, who was employed on April 9
and was not shown to have engaged in any union activity, left
for an “unspecified leave of absence.” His personnel clearance
report reflects that he would be rehired.
Donnell Hill had worked for the Respondent for less than 2
months. He was hired on March 20. When interviewing for his
job, Hill noted that he had been laid off from several jobs and
wanted to find a “good, secure job.” Calhoun assured him that
the Company “had a lot of work.” At the time he was termi-
nated, Hill asked if he was eligible for rehire and was told,
“Yes.” He was not told that his personnel clearance report had
the word “NO” circled after the question “WOULD YOU
REHIRE?”
In early June, the Company proceeded with plans to institute
an apprenticeship program developed under Thornton’s guid-
ance following an Australian model. The goal of the program
is to develop multicrafted employees. Pursuant to this 2-year
program, the apprentices receive on-the-job training for 8 hours
a day at the Austal facilities on Monday, Tuesday, Wednesday,
and Friday and classroom instruction at Bishop State Commu-
nity College on Thursday. The 18 individuals selected for the
program earn $8 per hour for a 40-hour workweek. Thornton
noted that the apprentices did not, at first, perform productive
work, that, initially their on-the-job training consists of “assist-
ing and watching” welders, fitters, and shipwrights. Although
Thornton testified that multicraft training was available for the
welders who were laid off, he asserted that “nobody wanted any
multi-craft training . . . [t]hey just were pure welders.” He
acknowledged that the employees were not asked or offered
such training at the point that they were laid off.
Between August 22 and 29, the Company hired five welders.
From September 12 through 18 it advertised for employees,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD574
including welders, through a radio announcement and, thereaf-
ter, placed advertisements for employees, including welders, in
newspapers.
2. Analysis and concluding findings
Under the analytical framework of Wright Line, I find that
the Respondent was aware of the union sympathies of six of the
employees terminated on May 9, that it bore animus towards
employees who engaged in union activities, and that the termi-
nation of these employees was an adverse action. The General
Counsel has established a prima facie case. Notwithstanding
the absence of evidence of union activity by Kidd or Gleason,
to have excluded them after asserting that the basis for selection
for layoff was classification as a welder with a pay rate of $13
per hour or less would have negated the purported nondiscrimi-
natory basis for selection.
The General Counsel argues that payroll records reflect that
multicrafted welders who were retained worked approximately
120 hours of overtime in the week following the layoff and
approximately 50 hours of overtime the following week, the
week of the election. The payroll records do not, however,
show the specific work being performed by these employees.
Even assuming that the overtime involved ordinary aluminum
welding, the number of hours worked would not provide em-
ployment for eight employees.
The record does not show the Respondent’s work schedule
prior to May 9 and whether that schedule was changed after
May 9. The layoff of the eight alleged discriminatees, six of
whom were known to support the Union, certainly raises the
suspicion that the Respondent’s action was other than economi-
cally motivated; however, suspicion is no substitute for proof
and there is no probative evidence that there was work for these
employees in June, July, and early August. There is no proba-
tive evidence establishing that the layoffs were accelerated.
There is compelling evidence that the Respondent dis-
charged, rather than laid off, these employees in order to assure
that they would not be eligible to vote. The total number of
voters in the election, including challenged ballots, was 71, thus
the layoff affected more than 10 percent of the bargaining unit.
The employees, when being informed that they were being
terminated, were told that in “three to four months” they should
see advertisements that the Respondent was “doing rehiring.”
Had the employees been laid off, as Thornton’s memorandum
states that they were (“The following employees were laid off
due to lack of work on May 9, 2002.”), the foregoing assurance
would have established a reasonable expectation of recall and,
consequently, eligibility to vote.
Sellers, Bender’s vice president, not Thornton, told Powell
that “we don’t do layoff.” In so stating, he was reporting
Bender’s practice. Austal had no policy at that time and no
Austal executive testified that Austal followed Bender’s prac-
tice. When faced with the necessity of reducing the employee
complement, Thornton’s memorandum stated “laid off.”
Sellers was not at the meeting in which the Respondent de-
termined to lay off employees. Thornton, in his testimony, did
not address the discrepancy between his memorandum stating,
“The following employees were laid off due to lack of work on
May 9, 2002,” and the fact that the employees were actually
discharged. The involvement of Bender’s executives in
Austal’s affairs suggests that, following that meeting, Sellers
explained the ramifications of a layoff as opposed to termina-
tion and the decision to lay off was changed to a decision to
discharge. Regardless of how the change came about, Thorn-
ton’s memorandum establishes that the initial decision was that
the employees were to be laid off. That decision was later al-
tered and the employees were discharged. The conversion from
layoff to discharge assured ineligibility for the election. IMAC
Energy, 305 NLRB 728, 737 (1991).
The record establishes that what would have been temporary
layoffs were converted to terminations in order to disenfran-
chise these prounion employees. If the employees had been
laid off, as Thornton’s memorandum reports, those layoffs
would have been temporary. Powell was told to look for adver-
tisements for employees in “three to four months,” and the
Respondent’s brief asserts that the Employer “went out of its
way to inform the employees that they could apply.” The brief
does not address the Respondent’s documents that establish that
such applications would be futile. If these employees had been
lawfully laid off, all would have had a reasonable expectation
of recall in the near future. The Board condemns such disen-
franchisement. In Earle Industries, 260 NLRB 1128 (1982),
the Board found that the temporary layoff of an employee
therein “was converted to a permanent layoff, which conversion
is tantamount to termination. That conversion was done solely
for the purpose of influencing the outcome of the election by
disenfranchising an eligible voter. This type of action has been
found violative of Section 8(a)(1) and (3) of the Act.” Free-
Flow Packaging Corp., 219 NLRB 925 (1975); Elm Hill Meats
of Owensboro, Inc., 205 NLRB 285 (1973). Id at 1138. See
also Link Mfg. Co., 281 NLRB 294, 299, 300 (1986), enfd. 840
F.2d 17 (6th Cir. 1988), cert. denied 488 U.S. 854 (1988). I
find that the discharge, rather than temporary layoff, of these
employees was motivated by the Respondent’s animus towards
their union activities.
The General Counsel established a prima facie case. The
Respondent rebutted that case only to the extent that it estab-
lished a business justification for temporary layoffs. The Re-
spondent’s discriminatory motive in discharging these employ-
ees is confirmed by the entry on the personnel clearance report
of each alleged discriminatee where the question: “WOULD
YOU REHIRE?” is followed by the circled word, “NO.” Not-
withstanding the invitation to each employee to reapply as soon
as they learned that the Respondent was hiring, the Respondent
had made such applications futile because its document said
“NO.” The reality of that futility was confirmed when Jenkins
sought reemployment. Employees Patrick Lyons and Andrew
Geoghagan, who simply left but who had not engaged in union
activity, were eligible for rehire. None of the Respondent’s
witnesses addressed the “NO” entry on the personnel clearance
reports of the alleged discriminatees. No explanation was of-
fered regarding the inconsistency between the assurance to each
employee that there was no problem with that employee’s work
coupled with an invitation to reapply and the entry on the Re-
spondent’s document that it would not rehire. The Respondent
sought to rid itself of these union adherents permanently. By
discharging Warren Gatwood, Donnell Hill, Wayne Jenkins,
AUSTAL USA, L.L.C. 575
Andre Love, Zolia Powell, and Dirk Spencer because of their
union activities and by discharging Curtis Gleason and Micah
Kidd so as not to negate the purported nondiscriminatory basis
for selection of the foregoing union adherents, the Respondent
violated Section 8(a)(3) of the Act.
G. The Postelection 8(a)(3) Allegations
1. Hank Williams
On June 18, employee Hank Williams, a union advocate with
whom Growden spoke privately regarding employees’ con-
cerns, was warned for having made a weld repair that failed an
X-ray test. Supervisor Calhoun showed Williams the weld, his
repair upon a weld performed by another employee that had
failed the initial X-ray test. Calhoun, when presenting the wan-
ing, struck out the work “written” and inserted the work “ver-
bal.” Williams refused to sign it.
Williams testified that he was unaware of any employee be-
ing warned for a problem with “one weld.” Warnings issued by
Calhoun to other welders refer to overall “lack of quality” not a
single designated repair. Although Calhoun testified that Wil-
liams performed the initial weld, the repair that failed, and the
third weld that passed, the warning refers only to a “weld re-
pair,” not two defective welds, the initial weld and the defective
repair. Williams testified that Team Leader Reed informed him
that Calhoun and employee Joe Brack made a third attempt on
the weld and it again failed.
The Respondent was well aware of Williams’ union sympa-
thies and its animus is amply demonstrated on the record. The
General Counsel established a prima facie case that the warning
was motivated by Williams’ support of the Union. Although
Calhoun testified that the repair was his second attempt, the
warning refers only to a single weld repair, not two defective
welds. There is no evidence of any previous instance of disci-
pline for making one defective weld. The Respondent had not
rebutted the General Counsel’s prima facie case. By warning
Williams because of his union activities, the Respondent vio-
lated Section 8(a)(3) of the Act.
2. Darrell Spencer
Also on June 18, the Respondent suspended Darrell Spencer
for failure to made a proper weld, “RT weld FR 9-10 intersec-
tion.” Spencer, like Williams, was prounion. As discussed
above, he had spoken in favor of the Union with Team Leader
Reed, who had threatened plant closure should the Union suc-
ceed in organizing the employees. Spencer acknowledged that
the weld he performed was defective, explaining that he had
informed Calhoun that he wanted to use “a smaller diameter
wire due to the thickness of the base material,” and that Cal-
houn told him he could not and insisted that the use a larger
diameter wire. The result was that “it busted out twice.”
The suspension document states that Spencer was suspended
for “lack of quality work (RT weld FR 9-10 intersection).”
Calhoun initially testified that Spencer claimed that he needed a
smaller diameter wire as an excuse when he suspended him.
Thereafter, Calhoun acknowledged that Spencer had requested
to use a smaller wire when attempting to perform the weld but
that he had denied him permission to do so, referring to “speci-
fications” that prescribed the thicker wire. Despite the wording
on the suspension, Calhoun testified that the warning was not
for making the defective weld but making a weld that Spencer
knew was bad. Spencer credibly testified that he “did not weld
it deliberately for it not to pass. I did the best that I could do”
using the thicker wire that Calhoun demanded that he use. In
the past, Spencer had been permitted to “use whatever size wire
I wanted to.”
The Respondent, having put Spencer in a situation where he
could not properly perform the weld, warned him for poor qual-
ity. At the hearing, however, the Respondent asserted that the
suspension was not for poor quality but for knowingly making
a bad weld. Such shifting rationale is a hallmark of unjustified
disciplinary actions. The Respondent did not rebut the General
Counsel’s prima facie case. The Respondent, by suspending
Spencer because of his union activities, violated Section 8(a)(3)
of the Act.
H. The Objections to the Election
The Petitioner filed objections to the election, many of which
are coextensive with the allegations of the complaint. The Peti-
tioner urges that I also find certain conduct that is not coexten-
sive with any complaint allegation to be objectionable.
1. Objection 4: mandatory overtime
Although this objection alleges that the Employer made
overtime mandatory and that this interfered with employees’
attendance at a scheduled union meeting, there is no probative
evident that overtime was ever mandatory. Employee Robert
Skeleton testified that he heard Calhoun state that employees
would be working mandatory overtime on the day after the
layoffs, but Skelton was on light duty and this purported re-
quirement did not affect him. Hank Williams testified that,
immediately after the layoff, Calhoun and Reed both stated that
the employees would have to start working some overtime. He
did not testify that the overtime was mandatory. I shall recom-
mend that this objection be overruled.
2. Objections 6, 7, 8: Parties and tickets
In the week prior to the election, employees were inundated
with demonstrations of the Employer’s largess. On May 17, the
Friday before the election, employees were treated to a catered
barbeque at the facility where food and beer were served and
pictures of one of the crew boats that had recently been com-
pleted were distributed. In the same time period, employees
were advised that CEO Lerchbacker had 50 free tickets to a
concert by a group, Poison. Although the record does not re-
flect the date of the concert, Lerchbacker confirmed that it oc-
curred before the election. On May 23, the day before the elec-
tion, the Employer hosted a dinner off premises at local restau-
rant at which free food and drinks were served.
The Employer presented evidence of various other functions
on the premises prior to the union’s organizational campaign.
Vice President Thornton acknowledged that, prior to May 17,
such functions had been handled “in house,” but explained that
the Employer began utilizing caterers when the financial con-
troller determined that the serving of beer by the Employer
raised a liability issue. Thornton acknowledged that the party
off the premises was unprecedented. CEO Lerchbacker was
offered the 50 free tickets to the Poison concert by a friend who
had a business relationship with the local convention center at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD576
which the concert was performed. He accepted them and chose
to distribute them to employees who asked for them rather than
giving them to customers or vendors with whom the Company
did business.
The barbeque on the premises would have included the entire
employee complement of approximately 80. It cost $2120,
about $26 per person. The bill at the local restaurant totaled
$1273. The number of employees, as opposed to employees and
guests, is not established, but assuming a total of 50 people, as
estimated by former supervisor Pauline Nobles, the cost per
person would have been about $25. The record does not estab-
lish the value of the Poison tickets. Assuming the value to have
been about $25, an employee who attended all three functions
would have received an economic benefit of about $75.
The Employer argues that the “Union apparently thinks
Austal employees are easily bought.” Contrary to that argu-
ment, the issue is not bribery. Assuming that staunch prounion
and antiunion employees will not be swayed by any amount of
“politicking,” the inquiry is interference with the free choice of
voters who do not have their minds made up. With regard to
them, “[e]mployees are not likely to miss the inference that the
source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is not
obliged.” NLRB v. Exchange Parts Co., 375 US 405, 409
(1964). In assessing the grant of preelection benefits, the Board,
applies objective criteria including the size of the benefit, the
number of employees receiving it, how employees reasonably
would view the purpose of the benefit, and the timing of the
benefit. B & D Plastics, 302 NLRB 245 (1991). Although nei-
ther of the two parties nor the tickets, standing alone, is of inor-
dinate value, when combined the value is not insubstantial. All
unit employees were potential recipients of these benefits. The
Employer presented no justification for the timing of these
benefits. Although there was precedent for the barbeque on the
premises, the tickets and off premises party at a local restaurant
were unprecedented. No evidence was adduced to establish that
the barbeque on the premises or the party at the restaurant on
the eve of the election had been planned prior to the union’s
organizational effort. In these circumstances, I can reach no
conclusion other than that the employees who were recipients
of these multiple benefits within days of the election would not
view them in isolation but would “reasonably view [them] . . .
as intended to influence their votes in the election.” Id at fn. 2. I
shall recommend that Objections 6, 7, and 8 be sustained.
3. Objection 9: the presence of guards
On the day of the election, when employees arrived at the
gate to the facility, they observed Production Coordinator
David Growden and two uniformed security guards. Growden
testified that he was present to identify employees and the
guards were present to “in case we had any problem where
people wanted to come on the yard that shouldn’t be there.”
Notwithstanding this purported separation of functions, testi-
mony established that the guards, not Growden, were asking for
employee identification before permitting entry to the premises.
Employee Robert Skelton was one of those employees. He
described the guards as wearing military style uniforms. This
was confirmed by employee Nathaniel Haywood who was also
asked to identify himself. Haywood noted that the guards were
carrying sidearms. Employees Joseph Kyles and David Moul-
den had their names marked off a list by one of the guards, not
Moulden. Guards had never before controlled access to the
premises. On one occasion in the past, they had been present at
the end of a workday to confirm that employees were not leav-
ing the premises with unauthorized materials. Guards had never
previously been present at the beginning of a workday to con-
trol employees’ entry onto the property. Although Vice Presi-
dent Thornton asserted that the guards were posted to “make
sure . . . we only had relevant people on site because there had
been large number of people gathering at the gates, “there is no
probative evidence of such gatherings. Growden admitted that
there had been no prior problem with unauthorized persons
coming onto the property. The unprecedented posting of guards
and requirement that employees identify themselves before
entering the premises had no purpose other than intimidation.
Similar unprecedented use of security personnel has been found
to violate Section 8(a)(1) of the Act. Beverly California Corp.,
326 NLRB 232, 261 (1998). Growden’s admission establishes
that there was no “demonstrated need for this action.” Id. I find
that the unprecedented presence of uniformed guards at the
plant entrance on the day of the election created an atmosphere
that interfered with the employees’ right to exercise their choice
free from intimidation by the Employer. I recommend that this
objection be sustained.
I have found that, after the petition was filed and prior to the
election, the Respondent engaged in violations of Section
8(a)(1) and (3) of the Act. This conduct parallels various objec-
tions to the election filed by the Union. Objection 1 alleges the
threat of unspecified reprisal to employee Skelton (subpar. 7(a)
of the complaint). Objection 2 alleges the unprecedented as-
sessment of employees that I have found constituted harass-
ment (par. 11 of the complaint). Objection 3 alleges the direc-
tion that employee remove union stickers from their hardhats
(subpars. 7(b) and 9(j) of the complaint). Objection 5 alleges
the discharges of the employees alleged in various paragraphs
of the complaint, all of which, except for the termination of
Wooten, I have found to have violated the Act.
I find that the foregoing violations of the Act that occurred
during the critical preelection period and correspond to the
Union’s objections, the grant of benefits in the form or parties
and tickets as set out in Objections 6, 7, and 8, and the posting
of guards on the day of the election as set out in Objection 9
interfered with the employees’ free choice of representation and
that the election must be set aside and a new election held.
CONCLUSIONS OF LAW
1. By coercively interrogating employees regarding their un-
ion sympathies and activities, threatening employees who sup-
ported the Union with unspecified reprisals, threatening to ter-
minate employees for engaging in union activities, prohibiting
employees from displaying union logos or insignia on hardhats,
discriminatorily restricting employees from discussing unions,
threatening employees with plant closure if they selected a
union as their collective-bargaining representative, harassing
employees because of their support of the Union, soliciting
employee grievances and promising to remedy them in an effort
AUSTAL USA, L.L.C. 577
to dissuade employees from supporting the Union, threatening
to discharge an employee for failure to oppose the Union, and
threatening discipline pursuant to more stringent enforcement
of rules because of employee union activity, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
2. By warning, suspending, and discharging employees, be-
cause of their union activities and interfering in the employ-
ment opportunity of a former employee because of his union
activities, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
(3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having discriminatorily warned Hank Williams, the Respon-
dent must rescind that warning.
The Respondent, having discriminatory suspended, Tony
Causey and Darrell Spencer, it must rescind the suspensions
and made Causey and Spencer whole for any loss of earnings
and other benefits they suffered as a result of the suspensions.
Having discriminatorily discharged and interfered with the
opportunity for employment of Charles Gates and having dis-
criminatorily discharged Tony Causey and Warren Gatwood,
Curtis Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd,
Andre Love, Zolia Powell, and Dirk Spencer, the Respondent
must offer them reinstatement and must make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge, in the case of Gates and Causey,
and from August 22, 2002, the date the Respondent began hir-
ing welders, in the cases of Warren Gatwood, Curtis Gleason,
Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia
Powell, and Dirk Spencer, to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The Respondent will also be ordered to post an appropriate
notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Austal USA, L.L.C., Mobile, Alabama, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their union
sympathies and activities.

6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(b) Threatening employees who support the Union with un-
specified reprisals.
(c) Threatening to terminate employees for supporting the
Union.
(d) Prohibiting employees from displaying union logos or in-
signia on their hardhats.
(e) Discriminatorily restricting employees from discussing
unions.
(f) Threatening employees with plant closure if they select a
union as their collective-bargaining representative.
(g) Harassing employees because of their support of the Un-
ion.
(h) Soliciting employee grievances and promising to remedy
them in an effort to dissuade employees from supporting the
Union.
(i) Threatening to discharge an employee for failure to op-
pose the Union.
(j) Threatening to discipline employees pursuant to more
stringent enforcement of its rules because of employee union
activity.
(k) Interfering with the employment opportunities of former
employees because of their union sympathies.
(l) Warning, suspending, discharging, or otherwise discrimi-
nating against any employee for supporting Sheet Metal Work-
ers International Association Union, Local 441, or any other
union.
(m) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Charles
Gates, Tony Causey, Warren Gatwood, Curtis Gleason,
Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia
Powell, and Dirk Spencer, full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Charles Gates, Tony Causey, Warren Gatwood,
Curtis Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd,
Andre Love, Zolia Powell, Dirk Spencer, and Darrell Spencer
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warning issued to Hank
Williams, the unlawful suspensions issued to Tony Causey and
Darrell Spencer, and the unlawful discharges of Charles Gates,
Tony Causey, Warren Gatwood, Curtis Gleason, Donnell Hill,
Wayne Jenkins, Micah Kidd, Andre Love, Zolia Powell, and
Dirk Spencer, and, within 3 days thereafter, notify the employ-
ees in writing that this has been done and that the foregoing
actions will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD578
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Mobile, Alabama, copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since April 9, 2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply
IT IS ALSO ORDERED that the complaint is dismissed insofar as
it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the election is set aside and Case
15–RC–8394 is severed from Cases 15–CA–16552, et al. and
remanded to the Acting Regional Director to conduct a second
election when he deems the circumstances permit a free choice.