Brown & Root-Northrop

National Labor Relations Board - Board Decisions

Mar 6, 1969

174 N.L.R.B. 1048 (N.L.R.B. 1969)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown & Root-Northrop and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW). Case
23-CA-2948
March 6, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 28, 1968, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and a
supporting brief; the Respondent filed exceptions
and a supporting brief, and subsequently filed a
brief in answer to the General Counsel's limited
exceptions. `
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Brown &
Root-Northrop, Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order
'The Respondent excepts to the Trial Examiner's credibility resolutions,
and claims a denial of due process and procedural irregularities It is the
Board ' s established policy , however, not to overrule a Trial Examiner's
resolution as to credibility unless , as is not the case here, the
preponderance of all the relevant evidence convinces us that they are
incorrect Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188
F 2d 362 (C A 3) We find no support in the record for the claim of
denial of due process and procedural irregularities
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner- With all parties'
represented, this case was tried before me in Houston,
Texas, between April 23 and 26, 1968, on complaint of
the General Counsel of the National Labor Relations
Board and answer of Brown & Root-Northrop, herein
called the Respondent 2 The main issue raised by the
pleadings are whether Respondent violated Section 8(a)(3)
and (4) of the Act by discharging Robert Lee Dugan both
because he joined or assisted the International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), herein called the
Union, and gave testimony under the Act Ancillary issues
pose the question of whether Respondent independently
violated Section 8(a)(1) of the Act by certain other
conduct to be detailed hereinafter. At the conclusion of
the hearing, the parties waived oral argument. Briefs have
been submitted by the General Counsel and the
Respondent, which have been duly considered
Upon the entire record made in this proceeding' and
my observation of the witnesses, including their demeanor
while testifying on the stand, I hereby make the following:
Findings of Fact and Conclusions
I THE RESPONDENT'S BUSINESS
Respondent maintains that the complaint herein should
be dismissed because it is not engaged in commerce within
the meaning of the Act The pleadings admittedly show
that Respondent is a joint venture comprised of Brown &
Root, Inc and Northrop Corporation which was created
and exists for the purpose of performing laboratory
support services at the Manned Spacecraft Center in
Houston, Texas, under contract with the National
Aeronautics & Space Administration, herein called
NASA, and for which Respondent will receive payment in
excess of $10 million from the Federal Government In
view of the foregoing, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate
the policies of the Statute to exert jurisdiction over
Respondent.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act , as the complaint alleges and
the answer admits
The Charging Party has requested the Board to delete the initials
"AFL-CIO" from its name in all matters pending before the Board
'The complaint , which issued on March 5 , 1968, is based upon charges
and amended charges filed and served on February 1, 1968, and March 1,
1968, respectively
'I have taken official notice of the transcript in Case 23-CA-2712 (pp
444 to 822 ), and the corresponding exhibits, which is an earlier proceeding
involving the same parties herein
4See Ready Mixed Concrete & Materials , Inc, 122 NLRB 318, Canal
Marais Improvement Corporation , 129 NLRB 1332
At the hearing in Case 23-CA- 2721, Respondent ' s Project Manager
Harry Hutchens testified that Respondent purchased expendable items
from sources located outside the State of Texas valued in excess of $I
million for which it was reimbursed by NASA, and I so find
174 NLRB No. 154
BROWN & ROOT-NORTHROP 1049
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A The Contentions
The General Counsel contends that Respondent violated
Section 8(a)(3) and (4) of the Act by discharging Robert
L. Dugan on January 26, 1968, because of his activities on
behalf of the Union, and because he gave testimony in the
earlier Board proceeding in Case 23-CA-2712 filed against
Respondent. He further contends that Respondent violated
Section 8(a)(1) by (a) warning Dugan, in the presence of
other employees, that he would be the first of the Union's
adherents to be discharged following the hearing in Case
23-CA-2712, (b) threatening employees that their
testimony in the aforesaid proceeding would result in
adverse working conditions, (c) instructing employees to
keep under surveillance and report to Respondent the
union activities of other employees due to their renewed
interest in the Union, (d) directing employees to
discontinue their association with NASA employees and
officials after working hours, in retaliation for their
renewed union activities, and (e) instructing employees to
maintain a record of the worktime, lunch breaks, and
work habits of other employees who demonstrated any
interest in the Union, said record to be utilized to rid
itself of Dugan and other union adherents. For its part,
Respondent asserts that Dugan voluntarily resigned his
position with Respondent in order to accept a better job
with another company at the Manned Spacecraft Center,
and generally denies the commission of the remaining,
alleged unfair labor practices.
B The Backdrop
As chronicled heretofore, Respondent is a joint venture
composed of Brown & Root and Northrop. At the
hearing, the parties stipulated and I find that this entity is
contractually engaged by NASA at its Manned Spacecraft
Center in Houston, Texas, herein called MSC, under a
"Cost-Plus Fee" to perform laboratory support services in
the operation and maintenance of various laboratories and
test facilities at that location which are designed to place
man on the moon. The work complement utilized by
Respondent to execute its mission totals approximately
700 employees who are located in various buildings which
comprise the Center's complex.
Since the inception of its duties at the MSC, various
unions have sought, some successfully, to enlist the
collective support of Respondent's personnel.' The latest
organizational challenge was presented on,April 19, 1967,6
when the Union participated in an election among
Respondent's laboratory support personnel which
produced an inconclusive vote' It was stipulated and I
find that, following the election and on April 25, the
Union filed objections thereto claiming that the
Respondent had so inflated the eligibility list which it had
submitted that the Union was unable effectively to utilize
the roster to determine who should be allowed to cast a
ballot, and also claiming that the list contained the names
of many ineligible electors. Thereafter, a hearing officer
for Region 23 conducted an investigation of the
objections. In his report on objections dated September
18, the hearing officer recommended that the objections
be sustained and that the challenged ballots be opened and
counted. However, the Union decided to withdraw its
petition and not to proceed further to determine its
representative status among the laboratory support
personnel. In the interim, Respondent took exceptions to
the hearing officer's report. On September 28, the Board
dismissed the entire proceeding.
Meanwhile, on May 15, the Union lodged unfair labor
practice charges against Respondent in Case 23-CA-2712
in which it alleged that Respondent had violated Section
8(a)(3) of the Act by discharging employee John
Hammond due to his activities on behalf of the Union. On
June 9, amended charges were filed in that case alleging
that Respondent further offended that section with respect
to employee Robert L Dugan This amendment was
prompted by an unsatisfactory, semi-annual performance
review which Respondent gave Dugan on May 16 In the
review, which was prepared by Group Supervisor Horace
David Moore, Dugan's attitude and proficiency were
downgraded, he was placed on a 60-day probation, and he
was denied his regular semi-annual wage increase which
would normally have become effective on May 31. On
July 31, a complaint was issued against Respondent on
the foregoing charges, and the case was set down for
hearing on September 25. Dugan gave testimony before
Trial Examiner David London on September 27, 28, and
29, whereupon the hearing was adjourned until October
16. On the following day, all parties executed an informal
settlement agreement in which Dugan received a five cent
an hour wage increase effective October 30, and a
lump-sum payment of $30.' In addition, the agreement
provided for the posting of appropriate notices by
Respondent from October 18 to December 18, and
contained an "exculpatory" clause indigenous to such
documents whereby Respondent did not admit that it had
indulged in any labor practices proscribed by the Act.
Thereafter, upon motion of Respondent dated December
26, Trial Examiner London dismissed the charges in Case
No 23-CA-2712 on January 9, 1968, with prejudice. On
January 26, 1968, Robert Dugan was "discharged" by
Respondent, as the General Counsel contends, because of
his Union proclivities and because he gave testimony
under the Act, or he "quit," as Respondent puts it, in
order to take employment with another space-oriented
company at, MSC, North American Aviation Company.
On February 1, 1968, the initial charge in this proceeding
was filed alleging that Respondent violated Section 8(a)(3)
of the Act by terminating Dugan because of his
membership in and activities on behalf of the Union. On
March 1, 1968, an amended charge was lodged against
Respondent alleging that Respondent also violated Section
8(a)(4) by separating Dugan from its employ because it
did so to punish him for giving testimony before the
'Shortly before assuming its duties for NASA, Respondent entered into
a collective- bargaining agreement with the Houston Metal Trades Council
covering Respondent ' s maintenance employees Thereafter, the
International Association of Machinists petitioned for an election among
these workers , won the ensuing election , and obtained a labor contract
from Respondent
In 1966, a representation proceeding was instituted by the International
Brotherhood of Electrical Workers seeking an election among
Respondent ' s laboratory support personnel but excluding the maintenance
employees , in which the Machinists' union intervened Neither labor
organization was successful in that balloting
'All dates herein fall in 1967 unless otherwise indicated.
'The election was triggered by a petition filed by the Union in Case
23-RC-2933 on March 7, 1967, seeking a unit of "All employees engaged
in Operational Support Services for the Laboratories and rest Facilities of
the NASA Manned Spacecraft Center " The Electricians and Machinists
intervened in that case , but withdrew from the proceeding prior to the
voting The Tally of Ballots showed that, of approximately 450 valid votes
cast, 158 were for the Union , 155 were against , I was void , and 136 ballots
were challenged
'Alleged discrtminatee John Hammond was awarded $350 as part of the
settlement , but was not reinstated
0
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board. I turn to a consideration of the evidence on these
issues.'
C. The Evidence
Robert Dugan was employed by Respondent on
December 22, 1964, as a mechanical technician in the
Chamber Support Laboratory located in Building 7 of the
MSC. It is undisputed and I find that Respondent
maintains a policy of reviewing the job performance of its
employees on a semi-annual basis. In evaluating the
manner in which an employee accomplishes his work
assignments, six criteria are utilized, namely, technical
capability, quality of work, quantity of work, safety,
responsiveness and flexibility, and communications and
work relations (supervision, fellow workers and customer).
For each of these criteria, an employee may receive any of
the following ratings "outstanding," "excellent," "good,"
"marginal," or "unsatisfactory."
Dugan received his first semi-annual appraisal on May
20, 1965, which was prepared by his then-supervisor,
Frank Holt. On that review, he received an "excellent"
for all categories except responsiveness and flexibility for
which he was given a "good" with the comment that "Mr.
Dugan can improve his responsiveness to the less desirable
assignments." As a result of this evaluation, Dugan
received a 5-cent hourly increase. His next review was
prepared by Holt on November 15, 1965, and Dugan was
accorded "excellent" gradings for all categories but safety,
for which he received a "good " In this appraisal, Holt
noted that Dugan's "work and attitude have improved
considerably in recent months" but cautioned that Dugan
"should be more careful in his attempts to lift objects," an
apparent explanation for the lesser rating on safety 10 On
this occasion, Dugan was awarded an hourly increase of
12 cents. On May 16, 1966, Holt prepared another review
of Dugan's performance and the latter was awarded an
"excellent" rating for all categories with the comment that
"We received many favorable comments on his work from
the ELSS office." The report added that Dugan "could
spend more time researching the available material to gain
more knowledge on the 20' altitude chamber." Dugan
obtained another raise of 12 cents per hour On July 13,
1966, Dugan received a letter from Harry Hutchens,
Respondent's project manager, which recited
It was with great pleasure and sincere appreciation
that I read the memorandum that Mr Harold J
Mc'vtann (of NASA) wrote concerning your excellent
efforts in connection with the ELSS Office.
Congratulations on the splendid manner in which you
are accomplishing your assigned tasks!
Our company is in existence for just one purpose
to provide the Manned Spacecraft Center with the best
possible service and support. Your performance is an
outstanding example for all of us to emulate.
'In considering these issues , I have, as indicated heretofore, taken
official notice of the transcript in Case 23-CA-2712 (pp 444 to 822) and
the corresponding exhibits , by agreement of the parties In doing so, I have
not drawn upon the record in that case in making findings of substantive
violations of the statute , but I have utilized it merely as background to
give meaning and substance to the events which unfolded after the
settlement agreement was entered into on October 17, 1967, by the
litigants
"In this connection , I would note that , on his application for
employment with Respondent , the notation appears that Dugan had
undergone an appendectomy in 1960
""ELSS" is an abbreviation for Environmental Life Support System
I am proud that you are a member of [Respondent's]
team. A copy of this letter will be placed in your
personnel file.
It is further uncontroverted and I find that the next
evaluation which Dugan received following Hutchens'
letter of commendation was prepared by Dugan's new
supervisor, Horace David Moore, on November 10, 1966
In this review, Dugan was rated "outstanding" for the
categories of technical capability, quality of work, and
quantity of work, and was graded "excellent" for the
remainder Moore commented that Dugan "has performed
his work with an outstanding rating and is partially
responsible for the increased NASA rating in the
[Chamber Support Laboratory]. He performs all jobs well
and with a thorough technical knowledge of the task at
hand. He can spend more time developing new and better
methods of performing his job. Mr. Dugan could be more
understanding in the overall requirements and tasks that
have to be performed for an effective lab " The review
was accompanied by a recommendation that Dugan be
granted an hourly wage increase of 7 cents because he was
"an above average" technician who was directly
responsible for training two new technicians and because
he "is the best mechanical technician and performs his
work with the least amount of time." Instead, Dugan was
awarded a 20-cent increment Following this evaluation,
Dugan received commendatory letters from two sources.
On December 19, 1966, Socrates Lamprose, Respondent's
laboratory manager, wrote to Dugan praising the latter
for his quick reaction during an emergency the preceding
week when a space suit being tested by a human subject
under a vacuum of 150,000 feet became decompressed. On
December 23, 1966, a similar laudatory message was
dispatched to Dugan by Robert R Gilruth, the Director
of the MSC for NASA
While Dugan was receiving these latter encomiums,
other matters drew his attention It is undisputed and I
find that in November 1966, he learned of the Union's
attempt to organize Respondent's employees when a
friend enlisted his aid in soliciting membership for the
Union. From that date forward, Dugan became an active
Union adherent. He signed an authorization card in either
November or early December 1966. He was selected as a
member of the Union's organizing committee in January
and attended practically all of the scheduled Union
meetings as well as the meetings of the committee which
were held either once or twice a week. He made several
house calls upon employees to encourage their support of
the Union, and solicited authorization cards from his
fellow technicians at the MSC before work and during his
lunch period. As early as January, Dugan commenced
wearing a button on his shop coat which designated him
as a member of the Union's in-plant organizing committee
and he wore a pencil holder in his lapel pocket which bore
the Union' s insignia . On February 1, the Union
dispatched a telegram to Project Manager Hutchens
informing him of the names of the Union's in-plant
organizers, a group which numbered 79 and which
included that of Robert Dugan. At a hearing scheduled on
the Union's representation petition which was filed on
March 7 in Case 23-RC-2933, Dugan was summoned by
the Union to give testimony and the Respondent was so
informed. Thereafter, he attended a preelection conference
and was nominated as an alternate observer for the Union
in the election which was conducted on April 19. In
addition, Dugan was present on behalf of the Union when
the election ballots were tallied. Morever, between
January and April 19, he successfully solicited the
P
BROWN & ROOT-NORTHROP
membership of 20 to 30 employees. By its own admission,
Respondent was aware of Dugan's prominence in and
activities on behalf of the Union at all times material
herein, and I so find
When his interest in and support of the Union became
manifest to Respondent in December 1966 and thereafter,
the relationship between Dugan and Supervisor Moore,
which had previously been "good," took a different turn.
Dugan's testimony is uncontroverted and I find that, on
December 5, 1966, Moore asked Dugan whether the latter
had been distributing union authorization cards and the
latter replied in the negative. Dugan sought the reason
for the inquiry and Moore responded "that if I [Dugan]
had been passing out union cards it might affect my
review " Dugan then told Moore that "if that was the
case then I needed a union " Moore concluded the
colloquy by remarking that "it didn't make any difference
to him, but higher supervision may frown on it " Later
that day, Dugan visited Moore's office to report that
Moore's earlier comments were unwise during an
organizational campaign Dugan stated that he would
personally forget the matter but cautioned that Moore
should not make such comments to other employees, for
which advice Moore thanked Dugan Dugan related that
he offered this advice to Moore because the latter had not
been with Respondent for any length of time and Dugan
believed that Moore might be ignorant of the labor laws.
Dugan testimonially reported on another conversation
which he had with Moore in January I find that, on this
occasion, Moore inquired whether Dugan was the
president of the Union and whether Dugan held any other
office in that organization Dugan replied that he was not
the president and did not occupy any important position
In February, I find that Moore informed Dugan that the
latter "had been doing a good job, and he said that he
couldn't make me lead technician if I were associated with
the Union . . because I wouldn't have time," and Moore
concluded by stating that "He hated to see me [Dugan]
get messed up." In another incident on February 23, 1
also find that Moore asked Dugan whether he had been
talking to another employee named Wimberly about the
Union on company time, and Dugan assured Moore that
he had not and that the topic of discussion centered
around Respondent's insurance program Moore then
commented that Dugan "could get into trouble for talking
union on company time " I further find that, on April 11,
as Moore passed Dugan's work station, the former
remarked, "Dugan, if you would get this union out of
your head you would be O.K." Again, on May I, Moore
complained that Dugan was receiving too many telephone
calls at work which Moore believed concerned the Union's
organizational campaign. Moore warned Dugan to cease
engaging in Union activities on company time and stated
that Respondent's officials, who were aware of the calls,
could have Dugan's telephone tapped if they deemed it
necessary. On May 12, Moore summoned Dugan and two
other employees and inquired whether they had been
making notes of possible unfair labor practices which
Moore might have been committing and, when the
employees answered in the affirmative, Moore "accused
[the employees] of stabbing him in the back or cutting his
throat "
In addition to the individual conversations which
Moore had with Dugan, Moore also conducted group
meetings with the nine or ten employees under his wing
Whereas, prior to January, these meetings occurred only
once or twice a month and merely concerned such matters
as safety and laboratory problems, after January they
1051
were held with greater frequency and the topic of Union
activities was injected for the first time It is
uncontroverted and I find that, at a meeting in February,
Moore stated "that if we voted the Union in the Company
would take all of our benefits away that we had and that
between the time that we voted the Union in and
negotiated a contract we could lose our benefits." Dugan
"argued with Mr. Moore over this point because I felt
that it wasn't true . it was against the law, that they
couldn't take our benefits away like that " At a meeting
on March 1, Moore questioned the assembled technicians
concerning the formation of a grievance committee
composed of both employees and company officials. When
Dugan asked, "Do you mean a company union')," Moore
responded, "Yes, in a sort of a way." At this meeting,
Dugan saw a memorandum reciting that an "Individual
Rights Committee" was in the process of formation to
deal with management in lieu of the selection of a labor
organization to handle this chore. During another meeting
on March 7, the date on which the Union filed its petition
for an election, Moore told the men "that this grievance
committee was in the process of being formed and would
be formed in the near future [Dugan] asked him again at
this meeting if he meant a company union and he said
no " However, Moore opined that such a Committee
"would be a good thing to air the grievances " On March
22, Dugan inquired of Moore as to why a large NLRB
poster explaining employee-rights under the Act had not
been posted in the laboratory Moore replied that neither
"he nor the Company believed in the law and they felt
that this poster was pro-union and that the law
communist-inspired." Finally, on an undisclosed date
prior to the election of April 19, Moore stated to the
technicians that "if the Union got in he couldn't give us
any more time off with pay, as he had in the past "
Continuing the narrative, Dugan received his next
semi-annual review from Moore which was dated May 16.
On this evaluation, he was rated "excellent" in technical
capacity and "good" in safety, but in every other category
he received, for the first time, a "marginal" rating. In his
accompanying comments, Moore noted that Dugan "has
made a complete reversal of his attitude since the last
review period and has affected his job performance He
has lost all initiative and desire to perform his job and
performs each task with little or no interest in job
production Mr. Dugan must improve his overall
performance and attitude and eliminate all verbal
comments about the company policies and management or
be removed from the Chamber Support Section and the
[Chamber Support Laboratory] " Moore added that "It is
recommended by this reviewer that Mr Dugan change his
overall attitude or be released from [Respondent's
employ] within a two month period " According to
Dugan, he protested to Moore concerning this appraisal
and the former testified that he had not previously been
made aware of any deficiencies in his performance or
attitude Dugan remonstrated that Moore was not
qualified to review his work because the supervisor
"couldn't tell the difference between a crow's foot and a
deep socket " In consequence of this evaluation, Dugan
was placed on probation and deprived of a regular, 5-cent
an hour wage increase which would otherwise have been
effective May 31. This circumstance prompted the Union
to file charges in Case 23-CA-2712 alleging that Dugan's
probationary status and the denial of a wage increase to
him was discriminatorily motivated Complaint in that
case issued on July 31.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed and I find that, on August 7, Dugan
was given a probationary review by Moore In this
evaluation, Dugan was rated "excellent" in technical
ability, quality of work, quantity of work, and safety, and
was accorded the rating of "good" in responsiveness and
flexibility and communications and work relations In his
evaluation comments, Moore reported that "Mr Dugan
has improved his atitude [sic] within the last 30 days and
a request is made that he be removed from probation Mr
Dugan has performed satisfactorily on the PLSS console
modification and ECV installation Mr Dugan can
continue to strive to improve his attitude toward others
and the company He should try to understand the overall
requirements necessary to have an effective lab. Mr.
Dugan should continue to restrict his verbal comments to
the members of the lab. He can strive to be more cordial
when working with members outside of CSD Mr Dugan
can best improve his performance by realizing that outside
interests during working hours only tend to reduce
productivity and destroy atitude [sic] and enthusiasm "' 1
During the evaluation interview, Moore told Dugan that
he "was the best technician that [Moore] had, but he
couldn't understand why I felt the way I did about the
Company, and that since I felt that way . I should quit
" Moore also remarked that Dugan "was being taken
off of probation but this didn't mean that I could just go
and do and say anything that I wanted, and he said that
he would be watching me very close from now on" On
August 14, 1967, Dugan's probation was lifted
Events abided until September 1967 At the hearing in
Case 23-CA-2721, Dugan was called to testify on behalf
of the General Counsel and he spent the better part of 3
days on, the stand On September 29, the hearing was
adjourned until October 16. As previously indicated, the
matter was settled by the parties on October 17, and
Dugan was awarded an hourly wage increase of 5 cents in
conformity with the terms of the settlement It is
undisputed and I find that, during the settlement
negotiations on that day, Project Manager Hutchens and
Union Representative John Vinson entered into a
conversation, together with Respondent's counsel, William
Brown, at the Board's offices in Houston Brown brought
up the subject that the mechanical technicians had been
insubordinate Vinson turned to Hutchens and stated that
the former was amazed when he heard testimony in the
pending case of the laxity on the part of the supervisors
Hutchens agreed that he too was shocked at the manner
in which the laboratory was being run As a result of their
conversation, Vinson agreed to speak with the four
technicians who had testified in the proceeding"
concerning their behavior vis-a-vis their supervisors and
Hutchens and Brown consented to commune with the
supervisors regarding their conduct toward the employees
Before the discussion terminated. Hutchens observed that
it seemed as if Dugan's laboratory crew should be
dispersed, to which Vinson replied that, inasmuch as no
collective-bargaining agreement existed between the
parties, Hutchens lawfully could transfer employees as he
saw fit Thereupon, Vinson gathered the men together and
informed them that the parties had reached a settlement
which provided for a 60-day posting period and that,
during this period, "they should keep their noses clean,
because everything that had been brought up during this
hearing, the supervision and counsel would be looking of
"Moore was testimonially brought to acknowledge that the reference to
"outside interests" was directed toward Dugan's efforts on behalf of the
Union
them They were in the limelight, so to speak." Turning to
Dugan, Vinson cautioned, "Bob, you seem to be the one
whose case is involved more than anyone else So I think
at the first opportunity you should go to Mr Moore and
tell him what has happened is water under the bridge
Let's try to cooperate " The following morning, October
18, Brown telephoned Vinson to report that the notice had
been posted and that the laboratory was in a turmoil
Vinson advised that, "if it's getting out of hand, perhaps
Mr Hutchens should call them together and find out if
they are." Later that day, Hutchens summoned the
Chambers Support Group, which included Robert Dugan,
as well as his brother, Vernon Dugan, and Philip
Schneider and Robert Petner, all of whom were the
principal witnesses on behalf of the General Counsel in
the recently concluded proceeding 10 In addition, their
supervisors were asked to attend When the men arrived,
and according to Robert Dugan's testimony, Hutchens
"read the settlement agreement to us and told us that this
agreement meant nothing more than what it said and that
some of the individuals that had testified in the hearing
may have thought they were hurting the company, but in
reality, they hurt themselves and he would be talking to
these individuals at a later date " Hutchens added that
"he was going to be watching us very close from now on,
and that he didn't want to see anything but shirsleeves and
elbows from them, from these people " Hutchens further
remarked that the men should not engage in any conduct
that would reflect upon the company, and noted that it
had come to his attention during the course of the earlier
trial that the crew had been acting in an insolent and
insubordinate manner
Hutchens testified that, on the settlement date, he and
Vinson agreed that each would attempt to speak to the
supervisors and crew, respectively, in order to pacify the
situation which existed in the Chambers Support Group
Vinson stated, that, in the event Hutchens decided to split
up the group, the former harbored no objection to such
action On October 18, Hutchens instructed Laboratory
Manager Lambrose to bring the group to his offices with
their supervisors At the meeting, he read the settlement
agreement to the assemblage and explained its contents
Hutchens then proceeded to tell the men that "many of
the acts that had been revealed in the testimony of the
prior case to be insubordinate, to have indicated an
attitude of insolence, agressiveness beyond reasonable
[sic], and that I didn't intend to tolerate that sort of thing
any further, that all I wanted to see is to see sleeves
and elbows ' Hutchens suggested that, if any employee
believed that he was unable to behave and be cooperative,
he should look for employment elsewhere Hutchens
added that "I also said that I would be talking at a latter
date to the witnesses in Case 2712 relative to the acts
revealed in their testimony " When questioned as to
whether he threatened the assembled employees that their
testimony in the prior case would result in adverse
working conditions or that they would be watched closely
in the future, Hutchens initially responded in the negative.
However, he then admitted that "I told the entire group
that I was going to be watching everybody and that I
didn't want any more of that sort of actions, I wouldn't
tolerate that sort of action That is one thing I told them
I said I would be talking later to the individuals who
"These were Robert Dugan, his brother Vernon, Philip Schneider, and
Robert Petner
"As evidenced by the testimony of Moore, Respondent knew that these
four men "became strong union organizers" since February 1967
BROWN & ROOT-NORTHROP 1053
testified , regarding their acts " When queried as to
whether he later spoke to the four witnesses , Robert and
Vernon Dugan, Schneider , and Petner , Hutchens replied
that he did not, assigning as a reason therefor that he
"decided it might just as well be misconstrued, so I
decided not to."
I credit the testimony of Robert Dugan, not only
because it is not basically out of harmony with the
testimonial utterances of Hutchens , but because Dugan
impressed me as a sincere witness who earnestly sought to
speak the truth, and I find the facts as he reported them
regarding the events which transpired on October 18.
At this juncture , it might be useful to digress
momentarily to consider the testimony of Maria Carrejo,
a witness called by and on behalf of the General Counsel,
regarding an episode which occurred prior to the
settlement of the earlier case . Carrejo is a clerk-typist in
the Laboratory Support Systems Department and
Socrates Lamprose is her immediate supervisor Her work
station is located at a desk near the entrance to
Lamprose ' s office It is Carrejo ' s testimony that, on or
about October 3, 1967, during a recess of the hearing in
Case No 23-CA-2721, she overheard Lamprose and
Moore engaged in a conversation in close proximity to her
desk According to Carrejo, Lamprose informed Moore
that Project Manager Hutchens had stated to Lamprose
that "as soon as the hearing was over, they were to get rid
of, first, Bob Dugan and then Bob Petner ." Carrejo
further testified that, a few days later , she met Dugan's
brother, Vernon , and informed the latter of the
conversation which she had overheard Prior to the close
of the hearing in Case 23-CA-2712, Carrejo received a
visit from Vernon Dugan who inquired whether she would
be willing to testify at that proceeding regarding the
contents of the conversation between Lamprose and
Moore . According to Carrejo , " I was a little hesitant and
I told him unless it was absolutely necessary, I would
rather not get involved " Carrejo was not summoned as a
witness in that proceeding After the close of the hearing,
she ran across Robert Dugan on Respondent's parking lot
and imparted the subject of the Lamprose-Moore
conversation to him . Rounding out Carrejo's testimony
concerning this incident , she averred without contradiction
that, although she was in the unit of employees who were
eligible to vote in the earlier election, she took no
"interest" in the Union , was not a union member, and
had "never really been in favor" of that labor
organization
Hutchens flatly denied in his testimony that he
informed Lamprose that the former had decided to rid
himself of Dugan and Petner when the earlier hearing was
concluded , and Moore stoutly proclaimed that he did not
receive this intelligence from Lamprose When queried by
Respondent ' s counsel on direct examination whether he
made such a statement to Moore on October 3 , Lamprose
replied, " I think there are several incorrect allegations
there Number one, I never received such instructions
from Mr. Hutchens . I am sure Mr Hutchens knows the
labor law well enough " Lamprose then related that "If I
would make such a statement , it wouldn ' t be out in the
open" and exclaimed that "I was not in the habit of
discussing disposition of my employees in the areas where
clerk-typist and other people could hear it " Lamprose
added that, while he had discussed problems of
supervision with Moore , he never had any discussion "to
the tune of [Carrejo ' s] allegation." On cross -examination,
Lamprose acknowledged that he spoke with Moore
following the hearing in Case 23-CA-2721 concerning the
testimony given by the Dugans, Petner, and Schneider,
and admitted that he "possibly" could have stated that he
would separate Dugan from Moore's supervision to
correct the problems which existed in the laboratory, but
Lamprose insisted that would have relayed this
information to an individual named Wandrey, Moore's
supervisor When questioned as to whether he told Moore
that "If moving Robert Dugan doesn't solve the problem,
then we will move Bob Petner out," Lamprose initially
replied, "I don't recall this at all. I could have said a
number of things, but I don't recall saying this."
However, he then confessed that "Since Robert Petner is
one of the group of four [who testified in the complaint
proceeding], it's possible I may have discussed the
rearrangement of all four of them " Finally, when pressed
as to whether Carrejo overheard his comment to Moore
that "We will try it by moving Robert Dugan out first
and Robert Petner, if that doesn't solve the problem,"
Lamprose gave the remarkable response that "She must
have been eavesdropping in my office if she heard such a
statement "
Neither Hutchens, Lamprose, nor Moore impressed me
with his candor on this issue or on any of the other issues
critical to this proceeding. On the other hand, Carrejo,
who had no apparent interest in the Union's
organizational campaign and did not wish to "get
involved" in Dugan's fate, testified forthrightly and
unhesitatingly. I credit her testimony and find that, on or
about October 3, she overheard Lamprose inform Moore
that, on advice of Hutchens, Respondent intended to rid
itself of Robert Dugan and then Robert Petner "as soon
as the hearing was over."
As recorded above, the settlement agreement provided
for a 60-day posting period which was scheduled to run
from October 18 to December 18 It is Dugan's
undisputed testimony and I find that, shortly prior to
December 18, he contacted Union Representative Vinson
to inquire whether he could revitalize his efforts to enlist
the collective support of his fellow employees Vinson
replied that he had received permission from his
supervisors to resume the organizational campaign,
whereupon Dugan supplied Vinson with the names of
employees to whom Vinson should transmit authorization
cards for signature Commencing on December 18, Dugan
once again began openly wearing a pencil holder in his
shop coat which bore the Union insignia, as well as a
button signifying that he was a member of the Union's
organizing committee which he displayed on his person
during working hours and during off-duty hours when he
hung his coat up in the laboratory In addition, he again
solicited his fellow employees to join the Union during
lunch breaks and in the parking lot, and also telephoned
individuals at their homes to report on the progress of the
drive and the outcome of the labor litigation between the
parties During the period from December 18, 1967, to
January 26, 1968, Dugan engaged in several conversations
with Respondent's supervisors and officials while he was
wearing the Union insignia and emblem, including Group
Supervisor Moore and Laboratory Manager Lamprose In
the same span, he obtained between 10 and 20 signed
authorization cards from the technicians in various
buildings at the MSC
By his own admission, Project Manager Hutchens
became aware of the upswing in the tempo of the Union's
organizational efforts, and of Dugan's involvement
therein Hutchens testified that, on or about January 9,
1968, he advised Lamprose that "I thought the
organizational attempts were increasing and that he
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be alert to organizing activities on company time
because in general I have taken the position that this is a
matter of business for the men on their own time and not
on company time " Hutchens placed his receipt of this
organizational intelligence on the above date because
"there came to my attention the fact that certain
employees were beginning to receive solicitation letters
again from the UAW" prior to February 2, 1968, a date
when he received a letter from the Union setting forth the
names of a new in-plant organizing committee.
Meanwhile, on December 7, Dugan received his
semi-annual performance review from Moore In addition
to the categories previously utilized in Respondent's
evaluation system, another category entitled "attitude and
attendance" was included For all categories, Dugan was
given an "excellent" rating, with Moore commenting that
Dugan "has performed well since the last review period
and has shown a desire to improve his working
relationship with his supervisor He has performed well on
the PLSS modification. [He] can improve his overall
output and quantity of work and continue to improve his
relationship with supervisors " This evaluation was
accompanied by the award of an hourly wage increase of
9 cents
Maria Carrejo testified to another conversation which
she overheard between Lamprose and his staff assistant,
Jess Harrell, on January 9, 1968. According to Carrejo,
Lamprose told Harrell that Lamprose "had been informed
by Mr Hutchens that the union was starting to organize
again and that it was of the utmost importance that Mr
Lamprose keep his eyes and his ears open regarding that,
and he wanted to know the names of the men or
especially the union organizers who were showing any
loyalties to the union or anything of that sort, and he
wanted - Mr Lamprose said that he would depend on
Jess to give him the names of any of these men who may
be coming to work late, even if it was just one minute, or
maybe if they took one minute too long off for lunch In
other words, what time they came in in the morning and
when they left, and especially if they were talking to any
NASA people or officials about the union or during
working hours or after working hours And Mr Lamprose
said that Jess knew the men's names and then they started
naming them off and, of course, first, they mentioned
Dave's [Moore] group, the Chambers Support group
That would be the two Dugans, Pat Schneider "
According to Carrejo's further testimony, this information
was to be conveyed to Hutchens because "They wanted to
use it to try to get rid of them one by one They would
start out with an oral reprimand and anything past that
would be up to Mr. Hutchens to judge them "
Lamprose's denial of Carrejo's testimony was hardly
impressive On direct examination, he testified that it was
"quite probable" that he had a conversation with Harrell
on January 9, 1968 and admitted that a special meeting of
supervisors was conducted in his office on that date at
which Hutchens attended When queried as to whether he
told Harrell that Hutchens had informed Lamprose that
the Union had commenced organizing the employees
again, that it was important for Harrell to keep his eyes
and ears open regarding organizational attempts and to
report the names of Union adherents to Lamprose, that
Harrell should make a note of the names of employees
who were tardy for work, and that Harrell should report
on employees found speaking to NASA officials
concerning the Union, Lamprose entered a categoric
denial and initially insisted that Harrell was not even in
attendance at the office meeting According to Lamprose,
the meeting was held to determine whether disciplinary
action should be meted out to Vernon Dugan, Robert
Petner , and Leadman Campbell because they had taken
more than the allotted time for their dinner break on the
preceding day, and it was decided that these men should
be given an oral reprimand Lamprose sought to explain
that he could not have instructed Harrell to spy on the
employees because "Jess Harrell is not the individual who
I would normally get that type of information from,"
pointing out that Harrell was merely an employee and
that Lamprose had several group supervisors from whom
he could receive this intelligence However, Lamprose then
conceded that Harrell had asked other employees whether
they had attended Union meetings and that Harrell
"offers information to me all the time, not at my request,
but he comes in and talks to me , tells me what is going
on I don ' t request this information , but he has an
opportunity to listen and he tells me and I listen "
Lamprose also changed tack and admitted that Harrell
was indeed at the January 9, 1968 meeting and overheard
everything that transpired Lamprose also acknowledged
that he discussed the Union ' s organizational efforts with
his counterpart in NASA and attempted to shield
NASA 's employees from solicitation by Respondent's
employees Furthermore , Lamprose ' s testimony that he
was not informed by Hutchens at the meeting that the
Union had renewed its campaign and that he should
monitor the Union ' s efforts was flatly contradicted by
Hutchens who testified that he attended the gathering and
advised Lamprose that "the organizational attempts were
increasing and that he [ Lamprose] should be alert to
organizing activities on company time "
I credit the testimony of Carrejo and find that, on
January 9 , 1968, while she was seated at her desk outside
of Lamprose's office , the latter told employee Jess
Harrell, his staff assistant , that Hutchens had reported
that the Union had renewed its campaign and that
Hutchens had charged Lamprose with the task of
obtaining the names of the employees who were active
participants in the new drive , a task which Lamprose
shifted to Harrell ' s shoulders . I further find that
Lamprose instructed Harrell to keep a record of those
employees who were even 1 minute late for work and to
take the names of employees who were conversing with
NASA employees or officials concerning the Union.15 I
also find that the names of the Dugans, Schneider and
Petner were adverted to in this discussion and that the
nature and extent of their Union activities were to be
transmitted to Hutchens because Respondent desired to
use this information "to try to get rid of them one by
one"
On January 23, 1968, Respondent was directed by
NASA to conduct an equipment test in a high altitude
chamber, and arrangements for the test were scheduled
prior to 7.30 a m ., a time when Dugan normally reported
for work . During the afternoon, it became apparent that
the procedure would run beyond the usual quitting time of
4 p m Accordingly, the mechanical technicians in the
Chamber Support Laboratory were notified that they
would be needed to work overtime. Shortly before the end
of the shift , Dugan advised his leadman , John Marburger,
that he would be unable to work overtime because he was
"I would note in this connection the testimony proffered by Respondent
of its concern that employees of NASA had been subpenaed by the
General Counsel in Case 23-CA-2721 I would further note Lamprose's
testimony that he was distressed by Carrejo's conversations with NASA's
employees regarding the Union 's campaign
BROWN & ROOT-NORTHROP 1055
ill, in consequence of which Marburger excused Dugan
from further duties However, a short time thereafter,
Marburger approached Dugan and stated that, on orders
of Supervisor Moore, Dugan would be required to remain
on the job until the test was concluded Dugan thereupon
visited Moore and the latter directed Dugan to continue to
perform his duties. Dugan protested that he was sick and
did not wish to stay on the job Moore replied that, if
Dugan "was going to take that attitude," Dugan would
have to see Lamprose and, with that comment, both men
proceeded to Lamprose's office. When they arrived,
Dugan observed Leadman Marburger enter the office
While Dugan remained outside the office for about 15
minutes, Lamprose, Moore, and Marburger conferred
behind closed doors At that juncture, Marburger left the
room and Dugan was beckoned to enter Lamprose told
Dugan that he would take Marburger's word for it that
Dugan was ill and excused Dugan from the overtime
assignment, but Lamprose cautioned that, in the future,
the failure to work overtime would constitute grounds for
dismissal 16 When this discussion, which lasted until 4 07
p.m., terminated, Dugan left the premises and went home
to bed."
The following day, January 24, 1968, Dugan reported
for work as usual. It is undenied and I find that, during
early morning while Moore was preparing employee
timesheets, Dugan drew near and shouted "Hey, you
[Moore] owe me seven minutes overtime from yesterday,"
a reference to the fact that Dugan had remained in
Lamprose's office until 4 07 p m on the preceding date
Initially, Moore decided that Dugan was entitled to a 10th
of an hour of overtime and so credited Dugan's timesheet.
For some reason not cogently explained on this record,
Moore developed second thoughts on the matter and
cancelled the award Moore admitted on the stand that
Dugan's request for overtime did not disconcert the
former, nor did Dugan's lailure to work extra hours on
the preceding day He also conceded that Dugan's use of
the term "Hey" rather than "David," while partially
constituting an act of insubordination,'8 did not draw
Moore's anger Nonetheless, Moore suddenly decided to
call upon his Section Supervisor Robert Wandrey to
report that "I [Moore] didn't want to go through the
same problems I had with Mr Dugan in the past and I
would like to have him transferred out of my section."
Wandrey readily agreed and both proceeded to the office
of Socrates Lamprose Upon their arrival, Moore
informed Lamprose that "I had to have Robert Dugan
transferred out of my group by Friday [January 26, 1968]
that I couldn't work with him " Despite the fact that
Lamprose was possessed of the authority immediately to
transfer or discharge employees in the laboratory for any
reason, he elected to telephone Project Manager
Hutchens. Although Moore testimonially confessed that
he was not disturbed emotionally by his confrontation
with Dugan on January 24, 1968, Lamprose felt called
upon to relate to Hutchens that "Dave Moore was quite
"Lamprose and Moore denied in their testimony that they learned that
Dugan was ill from Marburger and claimed that they first became aware
of the infirmity when Dugan told them so when he was called into
Lamprose's office In any event, it is clear from the testimony of
Lamprose , Moore, and Dugan , that Respondent ' s representatives knew
that Dugan proclaimed that he was not physically up to par and they
excused him from working overtime that day I so find
"The record shows and I find that Dugan had been assigned to operate a
console to monitor test conditions in the altitude chamber , and that he
normally was assisted by Robert Petner After he was relieved from
working overtime , the console was operated by Petner and two trainees
upset as to what happened here " Moreover, while
Lamprose informed Hutchens that Moore did not believe
that Dugan had been ill on the preceding day, Lamprose
admitted that it was his "considered judgment to allow
him [Dugan] to go home." At the conclusion of his
conversation with Hutchens, Lamprose recommended that
Dugan be transferred, a recommendation which was
adopted by Hutchens with the instruction that Lamprose
execute a transfer slip for Dugan with a notation that the
area of transfer be left "open "
At this point, Lamprose called Dugan to the former's
office The testimony regarding the conclusion of Dugan's
employment with Respondent is not at essential variance
and I find the facts to be as follows When Dugan
appeared at Lamprose's office, Dugan inquired into the
reasons for his transfer from the laboratory Lamprose
replied that "we had had all of the disturbances, fussing,
insolence and arrogance that we could tolerate in the
laboratory " Dugan asked where his next work station
would be, and Lamprose answered that he had "no idea."
Lamprose handed Dugan an envelope containing a
transfer slip and directed Dugan to report to Hutchens
Knowing that Dugan was on his way, Hutchens prepared
some notes in which he set forth comments concerning
insolence and insubordination which he decided to deliver
to Dugan, and summon.d Personnel Supervisor William
Kurtz and Safety Supervisor Earl Webb as witnesses to
the conversation Upon his arrival, Dugan repeatedly
interrogated Hutchens concerning the precise premise for
his transfer from the Crew Systems Laboratory However,
in Hutchen's words, Hutchens "declined to answer that "
Thereupon, Hutchens directed Kurtz to provide Dugan
with an accessions list, meaning a list of possible job
openings at Respondent's other facilities at the MSC
together with the names of the supervisors at those
locations While Hutchens informed Dugan that he was
"free to find employment with any supervisor in the
company who would accept him for employment,"
Hutchens candidly admitted that he "wasn't going to
instruct them [the supervisors] either pro or con" and that
he "would perhaps have raised my eyebrows if someone
had offered him a job " At the conclusion of this
discussion, Hutchens gave Dugan until noon the next day,
January 26, 1968, in which to relocate within the
organization Failing to obtain a position on Respondent's
staff, Dugan was told to commence his "check out"
procedures which would result in his removal from the
payroll and his relief from duties in the laboratory
Following this interview, Dugan visited various
supervisors in quest of continued employment with
Respondent When some of management's officials
inquired into the circumstances surrounding Dugan's
search for a job in their departments, Dugan stated that
"the company didn't like my union activities and I
wouldn't go to work for any of them under false pretense
[sic] that I wouldn't continue to work for the union."
Dugan was unsuccessful in securing placement with
Respondent and left the complex
The following morning, Dugan visited Personnel
Manager Coursen of North American Aviation
Corporation, a firm which is located in the same building
which houses Respondent's facilities, to seek a position
Coursen stated that job opportunities might exist with his
company, and explained that Dugan needed a clearance
"The record discloses that, prior to this incident, Dugan frequently
summoned Moore's attention with the appellation "Hey" without suffering
any untoward consequences
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Respondent before North American could hire him 19
Whereupon, Dugan ventured to Kurtz' office and
informed the latter that an opening might be available at
North American Dugan related to Kurtz that "I didn't
want a bad recommendation from [Respondent] to stop
me from getting a job somewhere else at the Manned
Spacecraft Center " Kurtz rejoined that Dugan's
termination slip would contain the reference "Unable to
get along with supervision." However, Kurtz indicated
that he would speak to Coursen and provide the latter
with "a good oral recommendation." Thereafter, Kurtz
conversed with Coursen and it was agreed between them
that, if Dugan would condescend to sign a statement that
he had "voluntarily quit" Respondent's employ, his
acquisition by North American could be facilitated Kurtz
communicated this suggestion to Dugan, asking whether
Dugan would "quit" rather than be "fired" in order to
obtain employment with the new company. Dugan told
Kurtz that he would prefer to think the situation over, and
he continued his check out procedures When he
concluded this task, Dugan informea Kurtz that "Under
the circumstances I think I would rather [the termination
slip] read that I quit It would help me in the future
getting a fob." Accordingly, Dugan signed the termination
slip which reflected that he had "voluntarily quit" his
position and, on the following week, he was placed on the
employment rolls of North American.
A few days following his departure from Respondent's
establishment, Dugan wrote a letter to Hutchens which
read-
In regards to my dismissal at Brown &
Root-Northrop on January 26, 1968 1 would like to
clarify my position in this matter.
It was not by choice or desire to quit or leave my job
at the Crew Systems Laboratory with Brown &
Root-Northrop As you know I was ordered by you on
January 25, 1968 to start processing out of Brown &
Root-Northrop at noon on January 26, 1968, if I were
unable to secure another position from the list of
openings you gave me
Since I was unable to secure a position from this list,
I started processing out at noon on January 26, 1968.
At the end of the process, I was asked by Mr Kurz
[sic] if I wanted to be fired or quit Due to prospective
future employment, I chose to go on record as
voluntary dismissal. I made this choice to protect my
record for future employment, and the welfare of my
family.
The fact that I signed the dismissal slip does not
alter the circumstances involved in this matter
Concluding the factual narrative, Carrejo testified to a
conversation in which she engaged with Moore on
February 16, 1968. According to her testimony, which I
credit, Carrejo and Moore were sipping coffee at her desk
when she asked him "How is everything going," because
she was aware that Moore had been "quite upset" about
Dugan Moore replied, "everything was 0 K actually,
I can't complain about my men. every one of them in
the group are excellent so far as their work goes It's just
that that particular group is so union crazy that it ruins
their attitude toward the company."
As chronicled heretofore, Respondent defends the
separation of Dugan from its ranks on the ground that he
voluntarily "quit" his position on January 26, 1968 This
"Dugan had submitted an application for employment with North
American shortly after he had been placed on probation as a result of
Moore ' s critical evaluation review on May 16
defense is sheer nonsense As the undisputed evidence
patently demonstrates, Dugan did not voluntarily
relinquish his employment with Respondent on that date,
but was given the option either of signing a termination
slip with the notation "voluntarily quit" or being
discharged. Not being entirely satisfied with this defense,
Respondent proceeded to dip into the well for additional
reasons to justify the severance, and the chief bucket
carrier was Supervisor Moore This young gentleman, who
expressed a strong antipathy for labor organizations in
general and the instant Union in particular, was extremely
evasive as a witness and was constantly in need of
testimonial rehabilitation by Respondent's counsel Moore
was the prime movant in Dugan's departure from the
Crew Support Laboratory When questioned as to why he
concluded that Dugan should be relieved of his duties on
January 25, 1968, Moore exclaimed this was not a sudden
decision and that he had requested Dugan's transfer on
four occasions in the past due to insolence and
insubordination. Moore pinpointed the first incident as
occurring about "August of '66," the second in "April of
1967," the third in either September or October of 1967,
and the fourth on January 23, 1968. Yet, despite these
assertions, Moore accorded Dugan an "outstanding" or
"excellent" evaluation review on November 10, 1966, with
the commendation that Dugan "has performed his work
with an outstanding rating and is partially responsible for
this increased NASA rating" of the competence of
Moore's group, and Respondent escalated Moore's
recommended wage increase from 7 to 20 cents, just a few
months after the first alleged recommended transfer in
August of 1966. When led by Respondent's counsel,
Moore changed tack and proclaimed that the first incident
took place in December 1966, which would have postdated
the favorable review which he afforded Dugan in
November of that year Again, although another incident
supposedly demanding Dugan's transfer occurred in
September or October of 1967, Moore saw fit to rate
Dugan on December 7 as excellent in all job evaluation
categories with the notation that Dugan "has performed
well since the last review period and has shown a desire to
improve his working relationship with his supervisor "
Moreover, although still another episode allegedly took
place in April of 1967, Moore gave Dugan a laudatory
review on August 7 Moore then testimonially brought
himself to admit that, following the hearing in Case
23-CA-2721, he informed Dugan that all prior incidents
were "water under the bridge," and Moore confessed that
none of these incidents played a role in his request for
Dugan's transfer on January 25, 1968 Finally, while
Moore described the incident of January 23, 1968 as
involving a protest by Dugan that his work area was
overcrowded with electricians during a cross-utilization of
skills program, there is nothing in this record which
remotely suggests that this was a factor in Moore's
decision to rid himself of Dugan from the laboratory
In sum, I find and conclude that Dugan was considered
a highly desirable mechanical technician by Respondent
from the inception of his employment in 1964 until
December 1966, as evidenced by the laudatory evaluation
reviews which he received from his Supervisors Holt and
Moore, the wage increases which he obtained, and the
letters of commendation which he was afforded by Project
Manager Hutchens, by Laboratory Manager Socrates,
and by Manned Spacecraft Center Director Gilruth I also
find and conclude that Dugan joined the Union in
November or December 1966, was selected as a member
of the Union's organizing committee in the plant, and
BROWN & ROOT-NORTHROP 1057
openly campaigned on behalf of the Union as one of the
most active adherents of that labor organization I also
find that Dugan was summoned by the Union to give
testimony in a representation proceeding which was filed
on March 7, he attended a preelection conference at the
Board's office,, was nominated as an observer for the
Union in that election, and was present on behalf of the
Union when the ballots were tallied I find and conclude,
based upon Respondent's own admissions, that its officials
were fully apprised of Dugan's foregoing activities I
further find that, during the times material herein, Moore
repeatedly expressed his opposition to Dugan's efforts on
the Union's behalf with such observations that the latter's
reviews might be affected, higher supervision "may
frown" on these activities, that Dugan would be "0 K " if
he "would get this union out of your head," and that
Moore "hated to see [Dugan] get messed up "
On May 16, Dugan received an unfavorable review
from Moore for the first time and was placed on
probation, a status which was lifted on August 14 after a
complaint had been issued on July 31 alleging that
Dugan's probation was discriminatorily motivated Dugan
testified in the ensuing proceeding for three days in the
latter part of September during which Moore and the
other company officials were in attendance Based upon
the testimony of Maria Carrejo, which I have heretofore
credited, I find that, on or about October 3, Lamprose
told Moore that, on Hutchens instructions, Dugan would
be the first employee to be terminated following the
earlier hearing, and that Petner, also a known Union
activist, would be next. I further find that, at a meeting of
employees conducted by Hutchens on October 18, he
commented that "some of the individuals that had
testified in the hearing may have thought they were
hurting the company, but in reality, they hurt themselves
and he would be talking to these individuals at a later
date." I find that, in this same discussion, Hutchens stated
that he "was going to be watching" the employees "very
close from now on."
Following the posting period which ended on December
18, Dugan renewed his activities on behalf of the Union
and Respondent became aware of them. In the meantime,
on December 7, Dugan received a highly commendatory
evaluation rating from Moore. I have also found, again
based upon Carrejo's credited testimony, that on January
9, 1968, the very day on which Trial Examiner London
dismissed the complaint in Case 23-CA-2721 with
prejudice, Lamprose informed his assistant, employee Jess
Harrell, that Lamprose had been apprised by Hutchens
that the Union had renewed its campaign and that Harrell
should report the names of employees who displayed any
loyalties for the Union; that Harrell should observe the
employees who were late for work or took too much time
for lunch, and, that he should note the identity of
employees who engaged in conversations with officials or
employees of NASA concerning the Union both during
working and nonworking time I find that this surveillance
was primarily directed toward Robert and Vernon Dugan,
Petner, and Schneider, all known union campaigners, and
was for the purpose of utilizing the uncovered information
"to get rid of them one by one They would start out with
an oral reprimand and anything past that would be up to
Mr Hutchens to judge them."
I further find that, on January 23, 1968, Dugan became
ill and informed his superiors that he would be unable to
work overtime on that date Although his immediate
supervisor, Marburger, initially excused Dugan's absence,
this judgment was overruled by Moore who summoned
Dugan to the office of Lamprose by whose "considered
judgment" it was decided to permit Dugan to leave for
home I find that, on the following morning, Dugan
requested payment for 7 minutes overtime when he
remained in Lamprose's office the day before and that he
sought to draw Moore's attention on this occasion by
referring to Moore as "Hey" Later that day, Moore
informed Lamprose that the former could no longer
tolerate Dugan and the latter had to be transferred from
his crew by January 26, 1967, a personnel action which
was completed as requested Finally, approximately a
month later, Moore told Carrejo that "that particular
group is so union crazy that it ruins their attitude toward
the company," a comment which I find had reference to
the Dugans, Petner, and Schneider
Based upon the foregoing findings and the entire
record, I am convinced that Dugan was terminated on
January 26, 1968, not because of any deficiencies in his
work habits or personnel conduct, but because he cast his
lot with the Union and actively campaigned on its behalf,
and because he gave testimony adverse to Respondent in
the earlier Board proceeding Dugan had been an excellent
employee so far as Respondent was concerned until it
learned that Dugan was stabbing it "in the back" by his
organizational efforts Once this intelligence concerning
these efforts was received, Dugan suddenly developed
innumerable faults At the height of the preelection
campaign in April, the first alleged incident of misconduct
by Dugan arose which led to an unsatisfactory review the
following month and his placement on probation
Nevertheless, he received a commendable review on
August 7 and again in December. On January 9, 1968,
when the prior proceeding had been laid to rest,
Respondent embarked upon a course to get rid of the
most active Union adherents "one by one," and Dugan's
name topped the priority list. Despite the fact that Moore
himself testified that nothing of a serious disciplinary
character occurred on January 23, 1967, he nonetheless
decided to obtain Dugan's transfer and ultimate
termination from the laboratory. By his own admission,
Hutchens made no attempt to obtain work for Dugan
elsewhere in his complex and frankly admitted that he
would have been astonished if Dugan indeed obtained
another position in his company
Accordingly, I conclude that Dugan was in essence
terminated by Respondent on January 26, 1968, because
of his activities on behalf of the Union and because he
gave testimony under the Act By the foregoing conduct, I
conclude that Respondent violated Section 8(a)(3) and (4)
of the Act, respectively
I have heretofore found that, on October 3, Carrejo
overheard Laboratory Manager Lamprose tell Supervisor
Moore that, on instructions from Project Manager
Hutchens, Respondent was going to rid itself of Robert
Dugan first, and then Robert Petner, after the Board
hearing was concluded in Case 23-CA-2721 In my
opinion, such a threat could reasonably have coerced and
restrained Carrejo in the exercise of her rights under
Section 7 of the Act, and I conclude that Respondent
thereby violated Section 8(a) (1) of the Act
I have also found that, at a meeting on October 18,
Hutchens informed Robert Dugan, as well as Vernon
Dugan, Robert Petner, and Philip Schneider, all of whom
gave testimony in the earlier Board proceeding and who
were known, Union supporters, that they had hurt
themselves by so testifying and that, thereafter,
Respondent's officials who closely monitor their activities
thereafter I conclude that this statement offended the
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provisions of Section 8(a)(1).
I have heretofore found that, on January 9, 1968,
Lamprose informed an employee named Jess Harrell that
the latter was instructed to spy upon and report the names
to Lamprose of those employees who favored the Union
so that they might be singled out for discharge, and that
Lamprose also instructed Harrell to make a list of the
names of employees found to be in conversation with
employees and officials of NASA concerning the Union
after working hours. By this conduct, I conclude that
Respondent violated Section 8(a)( i) of the statute
I have further found that, during his discussion with
Harrell on January 9, 1968, Lamprose also instructed the
former to keep under surveillance and report to Lamprose
whether other employees renewed their activities for the
Union, and ordered Harrell to maintain a record of the
work habits of other employees who manifested an
interest in the Union in order to use these records to
effect the termination of union adherents. By doing so, I
also conclude that Section 8 (a)( l) was thereby violated by
Respondent.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. International Union, United Automobile Aerospace
and Agricultural Implement Workers of America (UAW)
is a labor organization within the meaning of Section 2(5)
of the Act
3 By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4 By terminating Robert Lee Dugan, thereby
discriminating in regard to his hire and tenure of
employment, because he joined and assisted the aforesaid
labor organization, and rendered testimony under the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (4) of
the Act.
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (4)
of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent discriminatorily
terminated Robert Lee Dugan because of his activities on
behalf of the Union and because he gave testimony under
the Act, I will recommend that Respondent offer him
immediate and full reinstatement to his former or
substantially equivalent employment and make him whole
for any loss of pay he may have suffered by reason of the
discrimination practiced against him, by payment to him
of a sum equal to that he would normally have earned
from the date of the discrimination to the date of offer of
reinstatement, less his net earnings during said period. The
backpay shall be computed in accordance with the Board's
formula set forth in F. W Woolworth Company, 90
NLRB 289, with interest thereon at the rate of 6 percent
per annum in the manner prescribed in Isis Plumbing &
Heating Co, 138 NLRB 716
Because of the nature and extent of the unfair labor
practices engaged in by Respondent, which evince an
attitude of opposition to the purposes of the Act in
general, I deem it necessary to recommend that
Respondent cease and desist from in any other manner
infringing upon the rights of employees guaranteed in
Section 7 of the Act
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record in the case, I
make the following
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommended that Respondent, Brown &
Root-Northrop, Houston, Texas, its officers, agents,
successors, and assigns, shall-
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
or any other labor organization, by terminating
employees, or in any other manner discriminating in
regard to hire or tenure of employment, or any other term
or condition of employment
(b) Terminating employees for giving testimony under
the National Labor Relations Act, as amended
(c) Warning employees that active union adherents
would be the first to be terminated following the
conclusion of unfair labor practice proceedings before the
Board in which they were involved and gave testimony.
(d) Threatening active union supporters that, following
the conclusion of unfair labor practice proceedings in
which they were involved and gave testimony, their
activities would be closely watched.
(e) Instructing employees to spy upon and report to
Respondent concerning the Union activities of active
adherents of that labor organization in order to single out
those adherents for discharge, and to surveille the
activities of employees in their conversations with
employees or officials of NASA after working hours
concerning the Union
(f) Instructing employees to keep under surveillance and
report to Respondent concerning the union activities of
other employees who renew their interest in that labor
organization
(g) Ordering employees to maintain records of the work
habits of other employees who manifested an interest in
the Union in the order to utilize said records to rid
Respondent of union adherents.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form labor organizations, to join or
BROWN & ROOT-NORTHROP 1059
assist the Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
2. Take the following affirmative action which I find
necessary to effectuate the policies of the Act.
(a) Offer to Robert E Dugan immediate and full
reinstatement to his former or substantially equivalent
employment and make him whole for any loss of pay he
may have suffered as a result of the discrimination
practiced against him, in the manner set forth in the
section of this Decision entitled "The Remedy "
(b) Notify Robert E Dugan if presently serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(c) Preserve, and upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to ascertain any backpay due under the
terms of this Recommended Order
(d) Post at its place of business in Houston, Texas,
copies of the attached notice marked "Appendix "30
Copies of said notice, to be furnished by the Regional
Director for Region 23, shall, after being duly signed by a
representative of Respondent, be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days of receipt of this Decision, what
steps the Respondent has taken to comply therewith 21
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "a
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"in the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
America (UAW), or any other labor oiganization, by
terminating employees, or in any other manner
discriminating in regard to hire or tenure of
employment, or any other term or condition of
employment
WE WILL NOT terminate employees for giving
testimony before the Board under the National Labor
Relations Act, as amended
WE WILL NOT warn employees that active union
adherents will be the first to be terminated following
the conclusion of unfair labor practice proceedings in
which they are involved and give testimony
WE WILL NOT threaten active union supporters that,
following the conclusion of unfair labor practice
proceedings in which they are involved and give
testimony, their activities will be closely watched
WE WILL NOT instruct employees to spy upon and
report to us concerning the union activities of adherents
of that labor organization in order to single out those
adherents for discharge, and we will not spy upon the
activities of employees in their conversations with
employees and officials of NASA after working hours
concerning the Union
WE WILL NOT instruct our employees to spy upon
and report to us regarding the union activities of other
employees who renew their interest in the Union.
WE WILL NOT order our employees to maintain
records of the work habits of other employees who
manifest an interest in the Union in order to use these
records to get rid of the union adherents
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist the Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Robert E Dugan immediate and full
reinstatement to his former or substantially equivalent
employment and make him whole for any loss of pay
suffered as a result of our discrimination against him
WE WILL notify Robert E Dugan, if presently
serving in the Armed Forces of the United States, of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
All our employees are free to become or remain or to
refrain from becoming or remaining members of the
above-named Union or any other labor organization
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that-
WE WILL NOT discourage membership in or activities
on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
Dated
BROWN &
ROOT-NORTHROP
(Employer)
By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Bldg , 515 Rusk Ave , Houston, Texas 77002,
Telephone 228-4722.