Gibbs Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1963

142 N.L.R.B. 1204 (N.L.R.B. 1963)

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gibbs Corporation and Gibbs Shipyards, Inc. and Larry A. Perrin
Gibbs Corporation and America Corporation , d/b/a Gibbs Ship-
yards, Inc. and Sheet Metal Workers International Associa-
tion, AFL-CIO , Local No. 435 and Independent Workers Union
of Florida, Party to the Contract
Gibbs Shipyards , Inc. and Guyton V. Harvey, Jr . and Harris A.
Stebbins. Cases Nos. 12-CA-2293-1, 12-CA-2293-2, 13-CA-2338,
12-C,4-2406-1, and 12-CA-2406-2. June 18, 1963
DECISION AND ORDER
On December 11, 1962, Trial Examiner Frederick U. Reel issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondents Gibbs Corporation (herein called Gibbs) and Gibbs
Shipyards, Inc. (herein called Shipyards), had engaged in and were
engaging in certain unfair labor practices alleged in the complaint,
and recommending that they cease and desist therefrom and take
certain affirmative action as set forth in the attached Intermediate
Report. The Trial Examiner dismissed the complaint against Re-
spondent America Corporation. Thereafter, Respondent Shipyards
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
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 Intermedi-
ate Report and the entire record in this case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following modifications.
The Trial Examiner found that the Respondents Gibbs and Ship-
yards, by Foreman Strickland's telling Harvey his layoff resulted
from lack of status in the Independent, violated Section 8 (a) (1), (2),
and (3) of the Act. We agree that this statement violated 8 (a) (1)
and (2), but we do not find that the statement itself constituted dis-
crimination violative of 8(a) (3) 2
We agree with the Trial Examiner that both Gibbs and Shipyards
are jointly and severally liable for the violations of the Act com-
1 Respondent Shipyards has requested oral argument . The request is hereby denied be-
cause the record, the exceptions , and briefs adequately present the issues and positions of
the parties.
2 We are finding , in agreement with the Trial Examiner , that the layoff itself was in
violation of Section 8(a) (3) of the Act.
142 NLRB No. 128.
GIBBS CORPORATION AND GIBBS SHIPYARDS, INC. 1205
mitted between February 14 and April 6, 1962, during which period
Gibbs operated the shipyard as debtor-in-possession, and Shipyards
effectively controlled Gibbs. In any event, even were we to find that
Shipyards was not responsible for these violations at the time of their
commission, we would still require Shipyards, as a. successor of Gibbs
under all the circumstances, to remedy those violations.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
The notice is hereby amended so that the note will read :
NOTE -We will notify the above-named employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
This matter was initiated by charges filed March 5 and 7, 1962,' against Gibbs
Corporation and Gibbs Shipyards, Inc., alleging, inter alia, the discriminatory dis-
charges on or about March 1 of four employees (Harvey, Stebbins, and two Perrins),
and by a similar charge filed April 19 against America Corporation, d/b/a Gibbs
Shipyards, Inc. Following issuance of a complaint on April 20, and the denial of
motions to dismiss, issue was joined by the filing of answers, and the matter was
heard before Trial Examiner Goldman in Jacksonville, Florida, in mid-June. Before
issuing his report, however, Trial Examiner Goldman died, and the matter was set
down for hearing de novo. On July 17, new charges were filed by Stebbins and
Harvey, alleging that Gibbs Shipyards, Inc., further discriminated against them by
refusing to rehire them on July 17 and on August 24, and an amended complaint,
encompassing these allegations as well as those theretofore alleged, issued and was
duly answered. The matter was heard before Trial Examiner Frederick U. Reel at
Jacksonville, Florida, on October 15 through 17, and it was stipulated that certain
portions of the record made before Trial Examiner Goldman are to be considered as
part of the record before me. At the conclusion of the hearing, all parties waived
oral argument, but thereafter briefs were received from General Counsel and from
counsel for America Corporation and Gibbs Shipyards, Inc. Counsel for Gibbs Cor-
poration filed no brief but rested on oral argument made on the record before Trial
Examiner Goldman, which I have examined. Upon consideration of the briefs, and
upon the entire record before me 2 (including those portions of the prior record
which were incorporated in the second hearing by stipulation), and upon my observa-
tion of the witnesses, I make the following•
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Gibbs Corporation, herein sometimes called Gibbs, for many years operated a
shipyard in Jacksonville, Florida, where it engaged in activities affecting interstate
commerce within the Board's jurisdiction. See, e.g., Gibbs Corporation, 131 NLRB
955, and cases cited at 958, footnote 14. On December 19, 1961, Gibbs and Re-
spondent America Corporation (herein called America) entered into an agreement
whereby America agreed to purchase the business from Gibbs, including the real
properties, machinery, equipment, and work in progress, but not including accounts
receivable or payable. Respondent Gibbs Shipyards, Inc (herein sometimes called
Shipyards) was incorporated on December 27, 1961, as a wholly owned subsidiary
of America for the purpose of acquiring and operating the shipyard.
Unless otherwise specified, all dates referred to herein are In 1962.
s General Counsel's motion to correct certain errors in the transcript Is hereby granted
and the record is corrected accordingly.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Late in January 1962 Gibbs filed a petition for financial reorganization under
section 11 of the Bankruptcy Act, and thereafter until the consummation of the
sale operated the shipyard as debtor-in-possession. The referee in bankruptcy
entered an order on March 2 authorizing the sale, and on March 26 entered an order
confirming the sale, which order became final on April 6. In subsequent litigaticn,
still in progress, the Trustee in bankruptcy and officers of Gibbs are in dispute with
Shipyards over certain proceeds claimed by the Trustee.
During the interval between the execution of the agreement to sell (December 19,
1961) and the effectuation of the final order confirming the sale (April 6, 1962),
various transistional steps were undertaken in anticipation of the sale. The first
of these steps, already noted, was America's formation of Shipyards, with repre-
sentatives of America comprising Shipyards' board of directors and its officers.
Prior to February 14 the Gibbs executive committee consisted of seven representa-
tives of that Corporation, but on that date a new executive committee was formed
for Gibbs consisting of five nominees of Shipyards. These five included Edwin
Fletcher, R. D. Hall, Jr., and Willard Walter, who on that date became president,
treasurer, and vice president, respectively, of Gibbs. Two of those, Hall and
Walter, had been officers of Gibbs; Fletcher was brought into the picture by America
at the time it first contemplated buying out Gibbs? The other two members of
the Gibbs executive committee after February 14 were Gordon Greenfield and Eileen
Evers, who were active in America but took no active part in Gibbs or Shipyards.
These five persons resigned "as Directors, Members of the Executive Committee,
and as officers of Gibbs Corporation" effective on the date on which the order of
confirmation of the sale became final. On April 9, 1962, immediately following
the effectuation of the sale, the prior officers of Shipyards, who had been officers
of America Corporation, were also replaced by a new set of officers consisting of
Fletcher, Walter, John McKenzie, and John Warren, as president, vice president
(administrative), vice president, and assistant secretary, respectively. Labor rela-
tions at the shipyard were unaffected by the sale as the supervisory and rank-and-file
personnel were unaffected by the transaction, and the collective-bargaining repre-
sentative and its contract continued unchanged.
In short, during the pendency of the sale (between mid-February and April 6),
Gibbs, operating the shipyard as debtor-in-possession, was effectively under the
control of Shipyards, in that Shipyards' nominees comprised the executive committee,
and Fletcher, a Shipyards nominee, was president of Gibbs and in actual command
of operations at the shipyard. Fletcher stopped being president of Gibbs and be-
came president of Shipyards as soon as the legal transfer of title to the latter
corporation became effective. America, however, took no part in the operation
other than to create Shipyards and to be represented, by key figures, on the execu-
tive committee and the board of directors. Although Gibbs agreed that after the
Shipyards nominees took over active control in February, the Gibbs stockholders
and board of directors would not interfere with the operation of the business, this
in my judgment does not absolve Gibbs Corporation of liability for violations
committed while the business was being conducted under its corporate name. On
the other hand, Shipyards can derive no comfort from the "successorship" cases cited
by its counsel, for its liability here stems from its de facto control at the time of the
unfair labor practices.
On the foregoing facts I find that Shipyards is engaged, as was Gibbs, in activities
affecting commerce within the jurisdiction of the Board, and that Gibbs and Ship-
yards are jointly and severally liable for any unfair labor practices committed be-
tween February 14 and April 6, but that America Corporation is not an employer
of Shipyards' employees, that America is not engaged (so far as this record shows)
in activities within the Board's jurisdiction, and that America's motion to dismiss the
complaint as to it should be, and hereby is, granted.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers International Association, AFL-CIO, Local No. 435, herein
called the Union or Local 435, and Independent Workers Union of Florida, herein
called the Independent, are labor organizations within the meaning of the Act. At
all times here relevant the Independent was the collective-bargaining representative
of the employees at the shipyard, and it enjoyed amicable relations with the em-
3 Although Fletcher had been approached by representatives of Gibbs in December 1961,
the record is clear that his actual advent into this picture came as a result of his negotia-
tions with America, and that he acted primarily as a representative of America and
Shipyards.
GIBBS CORPORATION AND GIBBS SHIPYARDS, INC. 1207
ployer. See the earlier Gibbs cases, referred to above. The Umon, during the
events described below, was engaging in organizing activities, apparently in an effort
to unseat the Independent as the majority representative.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The layoff of Harvey and Stebbins
On Tuesday, February 27, Guyton Harvey and Harris Stebbins, who were em-
ployed as first class sheet metal workers in the "west yard," handed union authoriza-
tion cards on behalf of Local 435 to a number of employees in the sheet metal
shop before the start of work. Their foreman, Robert Strickland, observed this
activity, and (according to Stebbins and Harvey) said, "This is bad business."
Later in the day Strickland saw Harvey with union cards in his pocket and upon
ascertaining what they were again said (according to Harvey), "That is mighty
bad business." Stebbins testified that during the day he and Strickland discussed
Stebbins' union activity, and that Strickland said, "That is bad business. It looks
bad coming from the Sheet Metal Shop." According to the testimony of one Earl
Dennis, another sheet metal worker, Strickland stated that morning, when Stebbins
was handing out cards, that "people had gotten in trouble for things like that."
Later in the day, according to Dennis, Strickland (in the presence of one Batten,
an electrician) said, "That's bad business, isn't it?" as he examined one of the
union authorization cards. Strickland admitted being aware that Stebbins was
handing out union cards, but denied making the various statements attributed to
him, a denial corroborated by Batten with respect to the last-mentioned episode.
Also on or about February 28, one Dick Carter, a sheet metal mechanic, had some
union cards. According to Carter, Strickland asked if Carter had been passing out
any cards, and when Carter responded in the negative, Strickland said: "I am glad
you didn't pass any because you need your job too bad." According to Strickland,
he knew Carter was distributing cards and made a jocular reference to that fact
after the layoffs described below.
At the end of work on February 28, Strickland told Harvey "to take a couple
of days" or "a few days" off as it was necessary to have a layoff until certain ships
came in. Strickland advised Harvey to check back 2 days later. Strickland gave
similar instructions to Stebbins that evening, telling him he was laid off for lack
of material, and to check back on Friday.
On Friday, March 7, Harvey and Stebbins returned together, and Strickland told
them they were laid off based on lack of seniority. According to Harvey, when
he asked for the real reason for the layoff, Strickland observed that Harvey did not
belong to, or have seniority in, the "yard union" (i.e. the Independent), and then
added that he (Strickland) could not talk about it. Harvey's version of those
events is corroborated by Stebbins, but denied by Strickland insofar as he is alleged
to have said that Harvey's lack of seniority in the yard union had anything to do
with the layoff.
One week later Harvey returned to get his tools which he had left on a boat on
which he had been working. As he collected his tools, he observed two men, Love
and Pietsch, both of whom he regarded as junior to himself in service, working on
the boat. Stebbins testified that while Harvey went for his tools, Strickland said to
Stebbins, "Well, you see what has happened," and added in response to Stebbins'
defense of the Union, "Stebbins, I am not against the Union. You know it was
not up to me." Stebbins attributed to Strickland at this time the statement that
he (Strickland) had been "cut back to leaderman's pay." Strickland did not in
fact sustain a pay cut, although he had considered it a distinct possibility at that
time.
According to Respondents, the layoff of Stebbins and Harvey was part of a
general reduction in force which was necessitated at that time by the economic
difficulties of the Employer and a consequent shortage of materials. The order
of layoffs was determined under the Employer's agreement with the Independent,
by giving due consideration to seniority, ability, and physical fitness. Stebbins and
Harvey testified that several sheet metal workers junior to them were retained at
the time of their layoff, among them Pietsch, Probst, Paugh,4 and Love. The
parties stipulated that Pietsch and Probst were junior, as well as one Arthur Lhati,
and the testimony of Strickland, a witness for Respondents, confirms the junior
status of Paugh. As to Love, Strickland testified to a belief that Love had seniority
* Paugh is sometimes erroneously referred to In the transcript as "Paul "; Pletsch as
"Peach" or "Tietsch"; and Probst as "Pope."
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over Harvey, and Harvey testified to a conversation with Love in which the latter
conceded Harvey's seniority.
According to Strickland, Pietsch and Probst were retained in preference to Harvey
and Stebbins because the former pair were working on a particular project which
considerations of efficiency required that they finish. Harvey's work was taken
over by Love, whom Strickland regarded as not only senior to, but "a lot better"
than Harvey.5 As to Paugh, he, like Stebbins, was engaged in heating and shrink-
ing, but Strickland testified that he considered Paugh the more qualified for that work.
During the months following the layoff of Stebbins and Harvey, the Employer
hired a number of sheet metal workers, but did not recall either of the two in question
until the following September. A stipulation establishes that four such men were
hired early in April. A general recall of employees occurred between April and
June, but it is not clear that this encompassed sheet metal workers. It is clear,
however, that substantially more sheet metal workers were employed on June 1
than on March 1, but recall letters were not sent to Stebbins and Harvey until
September, after the events described immediately below.
B. The failure to rehire Stebbins and Harvey on July 17, 1962
The prior hearing in this proceedings before Trial Examiner Goldman closed
June 15. About 1 month later, on Monday, July 16, Harvey and Stebbins applied
unsuccessfully at the Gibbs personnel office for work. The next morning, accord-
ing to both men, they again applied shortly before 9 a.m., and on this occasion a
new employee at the personnel window took their names. Five minutes later,
according to their testimony, the regular personnel records clerk returned and
informed them no sheet metal workers were being hired that day. They then went
to the union hall, and there learned that one Sumner, a sheet metal worker, had been
hired at the shipyard that morning. They returned to the personnel office, accom-
panied by one Sharman, another sheet metal worker, who applied for a job and was
given an application. While helping Sharman fill out his application, they saw
two other sheet metal workers, Hays and Eason, apply at the personnel window.
Later that morning, the Employer hired Hays and Eason as first and second class
sheet metal workers, respectively, and told Sharman his application would be kept
on file. Stebbins (according to his and Harvey's testimony) then went back to the
window, and the records clerk again told him they were not hiring sheet metal
workers.
Stebbins and Harvey filed new charges on July 17 alleging that the refusal to
hire them on that day violated Section 8(a)(1), (3), and (4) of the Act. Two
months later, in mid-September, each received a special delivery letter calling him
back to work.
Respondents' explanation of this episode is that late on July 16 an emergency
arose requiring sheet metal workers, and that the vacancies were filled the next
morning by the time Harvey and Stebbins applied. The records clerk testified she
did not speak to Harvey or Stebbins on July 17 until Sumner, Eason, and Hays had
been hired, and that she then spoke to Harvey, and saw Stebbins later in the day or
the next day. According to Personnel Director Carroll, the records clerk told
him on July 17 or 18 that Harvey and Stebbins had applied, and when he asked at
what hour, he was told it was late in the morning. The records clerk at first
denied that she had told him Harvey and Stebbins had applied for work, and then,
when pressed, said that she did not recall whether she had as it was of no moment
to her.
C. The layoff of the Perrin brothers
Larry and Robert Perrin, who were employed at the shipyard as third-class
pipefitters, were laid off on March 1. Robert Perrin testified that he obtained
authorization cards for the Union on February 28 from Carter, gave a few to his
brother Larry, and distributed the others among other employees. At noon the
next day, according to Robert Perrin's testimony, Foreman Adams told him that
Yard Superintendent Hartley had inquired of Adams concerning Perrin's union
activity. According to Robert Perrin, that afternoon, about 3:30, Hartley told
him he was being laid off as there were "too many men on the boat," and that
Hartley would try to get him back to work "when things died down." Robert
e Harvey, Stebbins , and the other sheet metal workers referred to herein were all "first
class sheet metal workers" under the Employer 's system of grading men as first, second,
or third class . The Union recognized no such distinction among its members, dividing only
into journeymen and apprentices.
GIBBS CORPORATION AND GIBBS SHIPYARDS, INC. 1209
testified that at least one third-class pipefitter junior to him , Shorty Stacy, was
retained.
According to Larry Perrin, he distributed a few cards on February 28. The next
afternoon, according to Larry, Foreman Adams told him that he was being laid off,
that it was not because of his work, and that Adams "couldn't tell me right then
why he had to lay me off." The following Monday, according to Larry Perrin,
he went back to see Adams, who told him that Hartley was responsible for the
layoff and it was because Hartley thought Larry "was connected with the union
activity in the yard." Larry Perrin further testified that he then saw Personnel Di-
rector Carroll in an effort to regain his job. According to Larry, he told Carroll
that Hartley was responsible for the layoff as Hartley thought Larry "was in union
activity." Lary testified that Carroll promised to look into it but later told Larry
there was nothing he (Carroll) could do, that Adams should not have told Larry
"anything he had told," and that Hartley had said they could not use Larry. Ac-
cording to Larry Perrin, he knew there were third-class pipefitters junior to him in
service retained when he was laid off and he named two, Stacy and Dick Wheatley.
A stipulation establishes that Stacy and one Richard Collins were third- class pipe-
fitters junior to both Perrins and that Wheatley was junior to Robert Perrin.
Carroll, called as a witness by Respondents, was not asked to, and did not, directly
deny Larry Perrin's testimony concerning their interview on March 5, except inso-
far as he testified that he knew of no union activity on Perrin's part at the time of
the layoff on March 1, and that "the reduction of the people in and about the
end of February and the first of March including the Perrins ... [was] part of
the general reduction of force at that time."
The testimony of Adams and Hartley, however, directly contradicted that of
the Perrins. According to Hartley, he had noticed on several occasions that Robert
Perrin would "stop other men and talk to men and also leave the job and roam
around the yard." Consequently, at the time when it was necessary to lay some
men off, Hartley decided (according to his testimony) that Robert Perrin should
be among those to go. Asked by company counsel whether he had mentioned
Perrin's habit "of talking or wandering around the yard" to Foreman Adams,
Hartley replied, "I may have." He further testified that Larry Perrin was selected
for layoff because he had not been doing satisfactory work as a sil-brazer. Although
Hartley did not usually specify the individuals to be selected for layoff, he did so
in the case of the Perrins and one or two other pipefitters laid off that day. He
admittedly did not check the seniority of these men, although that was a factor
which the contract required be given consideration, explaining that he knew the
Perrin were relatively new employees. (He estimated Robert Perrin had been
at work 3 or 4 months or so; the record establishes Perrin's length of service at over
9 months.) He further testified that he had first noticed Robert Perrin's work ap-
proximately 2 weeks before the March 1 layoff (Perrin who had been hired in
May 1961, testified that Hartley saw him on the job periodically since then), that
he first noticed his bad work habits 2 or 3 days before the layoff, that he did not
warn or reprimand Perrin, but that when he told Adams to let Perrin go, he told
Adams that it was because Perrin was "goofing off."
Hartley denied knowing of the Perrins' union activity or mentioning it to Adams,
and in the latter respect Adams corroborated his testimony . According to Adams,
Hartley told him on February 28 that a reduction in force would be necessary, and
the next day told him to let the Perrins and another man go. Adams testified that
he did not notice Robert Perrin's talking on the job, although he had noticed
Perrin's tardiness and absences. Adams testified that Hartley never gave any reason
for singling out the Perrins for discharge. He further testified that Hartley would
have had opportunities to observe the men at work, but no more so in the last few
days of February than at any other time. Adams denied the statements attributed
to him by the Perrin concerning the grounds for the layoffs.
Unlike Stebbins and Harvey, the Perrins were never called back to work, although
it is stipulated that a third-class pipefitter was hired on April 6 and another on
May 14, and although it is clear that employment at the shipyard doubled between
March 1 and June 1, and that the Employer's practice was to recall laid off men
when work became available.
D. Concluding findings
With respect to the Perrin layoff just discussed, the issue is plainly one of
credibility as between the Perrin on one hand and Hartley and Adams on the
other. Although it seems clear that substantial layoffs were being effectuated at
the shipyard at the time the Perrin were laid off, their testimony, if credited, estab-
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lashes that Hartley specifically picked them out for layoff ( in itself a departure
from his practice not to specify particular individuals for layoff ) in disregard of
their semority , because Hartley had become aware of their union activity. Upon
my observation of the witnesses and upon analysis of the testimony , I believe that
the Perrins ' testimony is accurate and truthful , and that the testimony of Adams and
Hartley in certain respects is not.
Among the factors which have led to this resolution of the conflict in testimony,
in addition to the demeanor of the witnesses themselves , are the following : Personnel
Director Carroll failed to deny the testimony of Larry Perrin concerning their in-
terview. Hartley admittedly failed even to check the seniority records before
specifying the Perrins for layoff, although seniority was a prime consideration under
the contract governing layoffs. Hartley himself attributed the layoff of Robert
Perrin to the latter 's alleged tendency to "goof off ," but this tendency was never
noticed by Foreman Adams, and indeed was not noticed by Hartley until a few
days before the layoff. Finally , there is a sharp and significant conflict between
the testimony of Hartley and Adams ; the former testified unequivocally that when
he told Adams to let Robert Perrin go he told Adams it was because Perrin was
"goofing off ," and Adams testified , equally unequivocally , that Hartley gave no
reason at any time for singling out the Perrins for layoff.
Credibility resolutions also underlie the determination as to whether Stebbins and
Harvey were unlawfully discriminated against at the time of their layoff and again
at the time of their applications in July. With respect to the latter episode, their
credibility is essentially pitted against that of the personnel records clerk. Ac-
cording to their testimony , they applied for work on the morning of July 16 and
were promptly told no work was available . When they applied early the next
morning ( according to their testimony ) a girl at the personnel window took their
names, and then a few minutes later the personnel records clerk told them no jobs
were available . According to the personnel records clerk , however, she did not
see either of them on July 17 until after the jobs which had become available that
day were filled . The conflict is a critical one, as several jobs were filled that
morning, and if the testimony of Harvey and Stebbins is to be credited , they would
have been offered those jobs but for the fact that their names were apparently on
a "blacklist ," occasioned-so far as can be inferred from this record-either by
their union activity or their role as protagonists in this case . Little clue in resolv-
ing this conflict is afforded by the demeanor on the witness stand of Harvey and
Stebbins on the one hand and the records clerk on the other. In one significant
detail , however, her testimony as to the episode conflicts with that of Personnel
Director Carroll . According to his testimony , the records clerk told him later
that day or the next that Stebbins and Harvey had applied , and when he asked at
what time, he was told it was around noon or late morning . The records clerk,
however, testified that she did not tell Carroll about Harvey 's and Stebbins' applying,
and, when pressed , modified her testimony to "I don't recall really."
I find that in this respect , at least , the records clerk was not testifying truthfully.
Stebbins ( an ex-schoolmate of hers) and Harvey had been key witnesses in this
proceeding only a month before, and as Strickland put it in another context, "half
the people in Gibbs" knew about the instant hearing. Although it may be that the
records clerk might have forgotten casually mentioning their July 17 application to
Carroll ( in itself an unlikely assumption ), I cannot believe that the matter would
have been so faintly engraved on her memory after Carroll asked her what time they
had applied , especially as she was able distinctly to recall , 3 months later , that they
had applied on that particular day. The testimony of Stebbins and Harvey as to
the events of July 16 and 17 is corroborated by the testimony of several other
witnesses . In the crucial point-whether they applied early on July 17, well before
Sharman, Hays, and Eason-their mutually corroborative testimony is contradicted
by that of the personnel records clerk. Faced with a close question of credibility,
I resolve it against the personnel clerk whose testimony on a closely related point
appears equivocal or false.
The original layoff of Stebbins and Harvey is likewise beclouded by credibility
issues. It is clear that layoffs were being effected at that time ; it is also clear that
Stebbins and Harvey had just commenced distributing union cards , that they were
laid off without regard to seniority , and that their reemployment was delayed until
September although vacancies existed well before then . The credibility issues are
whether Strickland repeatedly referred to their circulation of cards as "bad business,"
whether at the time of the layoff he referred to Harvey's lack of status in the
Independent , whether he referred to his own lack of union animus when he spoke
to Stebbins on March 9, and whether he told Carter that he was glad Carter had
GIBBS CORPORATION AND GIBBS SHIPYARDS, INC. 1211
not passed out union cards as Carter needed his job. (This last was not denied
in haec verba, but Strickland's tesimony that in his conversation with Carter he
"laughed at [Carter] and . . . said, `I understand you're passing out cards, too, and
you're not laid off' " is tantamount to a denial.)
Strickland's demeanor on the witness stand left a good deal to be desired; on
one occasion his own counsel and on another occasion the Trial Examiner found
it necessary to admonish him for answers which were nonresponsive and which
betrayed some irritation at being cross-examined. But in fairness to Strickland it
must be noted that, according to his testimony, the layoff of Stebbins and Harvey
was no different from other layoffs at that time, and his irritation apparently arose
from being asked to remember details of what he, ostensibly at least, regarded as
a routine matter which did not stand out in his memory.
The credibility issue is vital here, for other factors effectively cancel out in de-
termining whether the layoffs were discriminatory. For example, it is true that I
have found discrimination at this time against the Perrins for their union activity.
But in their case Superintendent Hartley admittedly singled them out for dismissal,
and this lends more credence to his denial that he "put the finger" on Stebbins and
Harvey. Similarly, Strickland's explanation that Paugh and Love were better work-
men than Stebbins and Harvey is not capable either of demonstration or of disproof
on this record. While some suspicion attaches to the failure to recall Stebbins
and Harvey at the time new men were hired, this does not conclusively show dis-
crimination at the time of layoff. And while it is reasonably clear to me that
Stebbins and Harvey were discriminatorily treated in July, this may well have been
due to their having testified in June rather than to their union activity in February.
But, if Strickland made the comments attributed to him by Stebbins, Harvey, Carter,
and Dennis-i.e., if on the day preceding the layoffs he said that distribution of
union cards was "bad business," that "people had gotten in trouble for things like
that," and that he was glad to hear Carter had not been involved as Carter needed
his job; and if, after the layoffs, he said that Harvey's lack of status in the Inde-
pendent was a factor in his layoff, and stated to Stebbins, anent the latters layoff,
"I am not against the union. You know it was not up to me"-then viewing the
record in the light of those statements the evidence, in my view, would preponderate
in favor of a finding of unlawful selection for layoff
The credibility issue is difficult as well as vital. The "props" which facilitate
disposition of that issue in the Perrins case and in the July 17 application are absent
here. As already noted, Strickland's impatience on cross-examination might furnish
such a prop, but I cannot say with candor that it influences me. Stebbins attributed
to Strickland a statement that the latter had suffered a cut in pay. This appears
not to have occurred, and I must assume that Stebbins is not quoting Strickland
correctly. But Strickland feared the possibility of such a cut, and I can see no
reason for Stebbins to have fabricated that part of the conversation, so I conclude
that while Stebbins may have been inaccurate in this detail, the inaccuracy does not
shed much light on his basic credibility.
Further discussion of this credibility problem would contribute nothing to its
solution. I can say no more than that as I sat and listened to the testimony and
observed the witnesses, and again as I relived the experience by reading the testi-
mony, that of Stebbins and Harvey had-for my ears-the ring of truth. Other
ears or eyes or minds might well have reacted otherwise and, if so, either I am
wrong or they would be. As Judge Frank observed in N.L.R.B v. Dimon Coil
Company, Inc., 201 F. 2d 484, 489 (C.A. 2), quoting Sir James Stephen, "Mis-
carriages of justice [arising from erroneous resolutions of credibility] . must
be set down to the imperfection of our means of arriving at the truth." Needless
to say, it is my earnest hope that I have not erred in resolving this matter, but
resolving it to the best of my ability and with full consciousness of the inadequacy
of any rationale beyond my own inner conviction, I credit the testimony of Stebbins
and Harvey, and also that of Dennis and Carter, and therefore find that Stebbins
and Harvey were selected for layoff because of their union activities.
In short, I find that the layoff of the Perrins, Stebbins, and Harvey was based
in part on their union activity and therefore violated Section 8(a)(3) and (1) of
the Act. I further find that the Employer by telling Harvey his layoff resulted
from lack of status in the Independent rendered unlawful support to the Independent
and encouraged membership therein in violation of Section 8(a)(1), (2), and (3)
of the Act. Finally, I find that the Employer's failure to reemploy Stebbins and
Harvey in July was in part attributable to their union activity and in part to their
having testified at the first hearing in this case , and therefore violated Section
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1), (3 ), and (4 ) of the Acte In view of the violations of Section 8(a)(3)
and (4 ), and the fact that the supervisory hierarchy of Shipyards is substantially
unchanged from that employed by Gibbs (which had been subject to previous broad
orders enforced by court decree , see 131 NLRB 955, enfd. 308 F. 2d 247 (C.A. 5) ),
I shall recommend a broad cease-and -desist order. See 131 NLRB at 956, foot-
note 3, 964.
IV. THE REMEDY
With respect to Shipyards, I shall recommend the conventional remedy for the
violations found: cease and desist from the unfair labor practices found and
from like or related violations of the employees' rights; reinstate the Perrin (no
reinstatement is sought for Stebbins or Harvey); reimburse the four discriminatees
for losses suffered as a result of the discrimination in accordance with the formulas
set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716; 7 and post appropriate notices. In my judgment, no relief
beyond a cease-and-desist order is required to remedy the unlawful support given
the Independent; an order to withhold recognition would go far beyond the
relief warranted on this record. With respect to Gibbs, I shall recommend only
that it be jointly and severally liable with Shipyards for any sums found due the
discriminatees for the period between the layoffs and the consummation of the sale
of the shipyard. I see no need to order any further relief as to Gibbs, particu-
larly as it is not now operating and is subject to restraining court decrees arising
out of earlier cases before the Board. Cf. N.L.R.B. v. Dixon, 184 F. 2d 521, 522,
523 (C.A. 8), and cases there cited.
CONCLUSIONS OF LAW
1. Respondents Gibbs and Shipyards are employers engaged in activities affect-
ing commerce within the meaning of the Act.
2. The Independent and the Union are labor organizations within the meaning
of the Act.
3. Respondents Gibbs and Shipyards are jointly and severally liable for any
violations of the Act committed between February 14 and April 6, 1962.
4. By laying off Harris Stebbins, Guyton Harvey, Robert Perrin, and Larry Perrin
on or about March 1, 1962, because of their activities on behalf of the Union,
Respondents Gibbs and Shipyards engaged in unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and (7) and 8(a)(3) and (1) of the Act.
5. By advising Guyton Harvey that his layoff was attributable to his lack of
status in the Independent, Respondents Gibbs and Shipyards engaged in unfair
labor practices affecting commerce within the meaning of Sections 2(6) and (7)
and 8(a)(1), (2), and (3) of the Act.
6. By refusing to reemploy Guyton Harvey and Harris Stebbins when they
applied for work on July 17, 1962, because of their union activity and their having
testified in this proceeding, Respondent Shipyards engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a) (1), (3), and (4) of the Act.
7. Respondent America is not engaged in activities affecting commerce within the
meaning of the Act, is not an employer within the meaning of the Act, and com-
mitted no unfair labor practices within the meaning of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this case, I recommend:
A. That Respondent Gibbs Shipyards, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employees because of their activity on behalf
of Sheet Metal Workers International Association, AFL-CIO, Local No. 435, or
because they filed charges or testified in proceedings under the National Labor
Relations Act.
ONo independent violations of Section 8(a) (1) are alleged in the complaint.
7 Backpay for the Perrins runs from the date of layoff to the date of compliance with
the order herein recommended. Backpay for Harvey and Stebbins runs from the date of
layoff to the date of reemployment in September.
GIBBS CORPORATION AND GIBBS SHIPYARDS, INC. 1213
(b) Supporting Independent Workers Union of Florida by advising employees
that their tenure or terms of employment may be affected by their status in that
organization.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer Larry Perrin and Robert Perrin immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their seniority
or other rights and privileges, and make each of them and Guyton Harvey and
Harris Stebbins whole in the manner set forth in the section of the Intermediate
Report entitled "The Remedy" for any losses suffered as a result of the discrimina-
tion against them.
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
and determine the amounts of backpay due under the terms of this order.
(c) Post at its shipyard in Jacksonville, Florida, copies of the attached notice
marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Twelfth Region, shall, after being duly signed by authorized rep-
resentatives of Gibbs Shipyards, Inc., be posted by it immediately upon receipt
thereof and 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 to insure that the said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twelfth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps Gibbs Shipyards, Inc., has taken to comply herewith.9
B. That Respondent Gibbs Corporation, its officers, agents, successors, and assigns,
shall, jointly and severally with Gibbs Shipyards, Inc., make whole Robert Perrin,
Larry Perrin, Guyton Harvey, and Harris Stebbins in the manner set forth in
the section of the Intermediate Report entitled "The Remedy" for any losses suffered
as a result of the discrimination against them between the date of their respective
layoffs on February 28 or March 1, 1962, and April 6, 1962.
C The complaint against America Corporation should be, and the same hereby
is, dismissed.
"In the event that this Recommended Order be adopted by the Board , the words "As
Ordered by" shall be substituted for the words "As Recommended by a Trial Examiner of"
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 of" shall be inserted immediately following the words "As Ordered by."
9In 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 Gibbs Shipyards, Inc., has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board and
in order to conduct our labor relations as required by the National Labor Relations
Act, we notify our employees that:
WE WILL NOT discharge or layoff or take any other action against an em-
ployee because he is a member of, or supports, Sheet Metal Workers Interna-
tional Association, AFL-CIO, Local No. 435, or because he is not a member,
or supporter, of Independent Workers Union of Florida, or because he has filed
charges or given testimony in proceedings under the National Labor Relations
Act.
ALL OUR EMPLOYEES have the right to form, join, or assist any union, or
not to do so. WE WILL NOT interfere in any way with our employees in the
exercise of those rights.
WE WILL offer immediately to Larry Perrin and Robert Perrin the jobs they
last held or jobs like them, without loss of any rights or privileges they had
in such job.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give Larry Perrin, Robert Perrin, Guyton Harvey, and Harris
Stebbins whatever backpay each lost as a result of being laid off February 28
or March 1, 1962.
GIBBS SHIPYARDS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act, after discharge from the
Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, 33602, Telephone No. 223-4623,
if they have any question concerning this notice or compliance with its provisions.
Walker Electric Company and Local Union No. 390, International
Brotherhood of Electrical Workers, AFL-CIO and District 50,
United Mine Workers of America , Party to the Contract. Case
No. 23-CA-1448. June 18, 1963
DECISION AND ORDER
On February 19, 1963, Trial Examiner William J. Brown issued
his Intermediate Report 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 Inter-
mediate Report. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices alleged in
the complaint and recommended that those allegations of the com-
plaint be dismissed. Thereafter, the General Counsel, the Charging
Party, the Respondent, and the Party to the Contract filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,' as modified herein.2
1 We find it unnecessary, however, to pass upon the Trial Examiner's Interpretation of
Section 8(f) appearing in footnote 7 of the Intermediate Report.
7 We agree with the Trial Examiner's finding that the Respondent bargained with District
50 at a time when Local 390 represented a majority of its employees in an appropriate unit,
142 NLRB No. 134.