Golden Stevedoring Co.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 410 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
Golden Stevedoring Co., Inc. and International Long-
shoremen’s Association, AFL–CIO, South At-
lantic and Gulf Coast District. Cases 15–CA–
13334, 15–CA–13394, 15–CA–13610, 15–CA–
13870, 15–CA–13871, 15–CA–14186, 15–CA–
14209, and 15–CA–14314
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On July 28, 1998, Administrative Law Judge Keltner
W. Locke issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed cross-
exceptions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified2 and set
forth in full below.
1. The General Counsel has excepted to the judge’s
dismissal of the complaint allegations that the Respon-
dent violated Section 8(a)(3) and (5) of the Act by its
postelection change in policy for allocating, unloading,
and recouping work between unit and nonunit (tempo-
rary) employees, thereby reducing the hours of work for
bargaining unit members. After carefully reviewing the
record in light of the General Counsel’s exceptions, we
have decided to affirm the judge’s finding that the Gen-
eral Counsel failed to show that a change in work as-
signments occurred.

1 The Respondent, the General Counsel, and the Charging Party have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s credi-
bility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Although the Respondent excepted to the judge’s finding that it vio-
lated Sec. 8(a)(1) and (3) by suspending employees Autry, Burrell, and
Scott on July 20, 1995, the Respondent failed to provide specific sup-
porting argument in its brief.
2 We shall modify the recommended Order to provide a remedy for
the creation of impression of surveillance violation found by the judge,
which he inadvertently failed to include. Additionally, we shall modify
the recommended Order to conform with Indian Hills Care Center, 321
NLRB 144 (1996). Also we shall modify the judge’s recommended
Order in accordance with our recent decision in Ferguson Electric Co.,
335 NLRB 142 (2001). Finally, the judge inadvertently failed to pro-
vide the standard case citations for the computation of the make-whole
remedies. We shall correct this oversight.
In this connection, we observe that the judge either
discredited the General Counsel’s witness or found that
their testimony lacked probative value. In contrast, the
judge explicitly credited the testimony of the Respon-
dent’s witnesses that after the election there was no
change in work assignment practices. The General
Counsel has failed to show that the judge’s credibility
resolutions are inconsistent with documentary evidence
or otherwise contrary to the clear preponderance of all
the relevant evidence. In his exceptions, the General
Counsel relies heavily on charts (based on payroll re-
cords) comparing the percentage of total hours that
“regular” and “temporary” employees worked before and
after the Union’s certification. This evidence, however,
is insufficient to overcome the force of the credited tes-
timony chiefly because the General Counsel has included
in his computations hours worked by employees who did
not perform the specific unloading and recouping tasks in
issue.
Accordingly, we find no merit in the General Coun-
sel’s exceptions, and we adopt the judge’s dismissal of
the relevant complaint allegations.
2. The Respondent has excepted to the judge’s finding
that the strike which employees engaged in between
January and November 1996 was an unfair labor practice
strike. The Respondent also excepts to the judge’s find-
ing that two letters sent to Union Organizer George Bru
in February 1996 contained unlawful threats to have him
arrested. As explained below, we do not agree with the
judge’s finding that the strike was an unfair labor prac-
tice strike, but we agree with his finding that the Re-
spondent unlawfully threatened to have Bru arrested.
The Strike
a. Background
The Union won a Board-conducted election on July
12, 1995, and was certified as the employees’ bargaining
representative on July 21, 1995. Thereafter, the parties
began negotiations for a collective-bargaining agreement.
Bargaining continued with no success until January 23,
1996. That evening, the Union held a meeting with em-
ployees to discuss the status of bargaining.
According to Union Organizer George Bru, he opened
the meeting by reading to the employees the Respon-
dent’s proposed contract. The employees unanimously
voted to reject it. Following this vote, Bru explained the
difference between an economic strike and an unfair la-
bor practice strike. He cited as examples of unfair labor
practices concerns he had heard employees express about
what they believed to be the Respondent’s harsher en-

335 NLRB No. 37
GOLDEN STEVEDORING CO. 411
forcement of safety rules and the Respondent’s use of
temporary employees.3 Bru also testified that he opened
the floor for discussion and an employee mentioned an-
other unfair labor practice charge pending before the
Board at that time.4 Bru further testified that a union
attorney told the group that, in his opinion, the Board
would find merit in the Union’s charges and deem a
strike to be an unfair labor practice strike. Finally, Bru
testified that Union Representative Benny Holland told
the employees as follows:
We were at a stand still. We rejected the last proposal
by the employer. [Holland] said now it’s up to the
body to decide what they want to do, whether or not we
should continue as we are in negotiating, trying to ne-
gotiate, or continue to move in the pace we were going.
And that’s no where. We weren’t moving anywhere.
So [Holland] suggested that we vote to strike.
The employees then voted unanimously in favor of striking.
Employee Wyatt was the only employee who testified
about the strike vote. He testified that the first topic of
the strike meeting was the failure to make progress in
contract negotiations. He recalled that, at the meeting,
various employees had said that if they accepted the Re-
spondent’s proposal the treatment of employees would
not change; that the Respondent might offer money, but
would not change the way it treated employees; and that
the employees would not get what they wanted in bene-
fits and treatment if they did not strike. When asked for
specifics about mistreatment, Wyatt replied, “Mainly
being knocked out of hours, temporaries coming in and
replacing you when you should be working. The har-
assment about seat belts and hard hats and all this type
stuff.” Then, according to Wyatt, the Union’s attorney
stated that a strike regarding money would be an eco-
nomic strike, but that “the unfair labor [practice strike]
was what we was after [so] that we couldn’t be re-
placed.”
b. The judge’s conclusion
The General Counsel contended that the Respondent
violated Section 8(a)(5) of the Act by unilaterally chang-
ing enforcement of safety rules and by using temporary
employees to perform work previously performed by unit
employees, and that these unfair labor practices were a
motivating factor in the decision to begin the strike. The
judge dismissed both complaint allegations. Nonethe-
less, he found the strike was an unfair labor practice

3 These matters were the subjects of union unfair labor practice
charges and complaint allegations, but, as discussed infra, the judge
found that the Respondent’s conduct did not violate the Act.
4 The General Counsel did not issue complaint on the charge about
which the employee spoke.
strike based on his finding that the Respondent violated
Section 8(a)(5) of the Act by unilaterally changing its
disciplinary policy from a system of oral reprimands to
written warnings. According to the judge, Bru’s strike
meeting discussion of employee concerns regarding
changes in safety procedures was broad enough to en-
compass the change in the disciplinary policy. Thus, the
change in the disciplinary system must have been one of
the reasons the employees voted to strike. Therefore, the
judge concluded that the strike was an unfair labor prac-
tice strike from its inception.
c. Discussion
It is well established that a work stoppage is consid-
ered an unfair labor practice strike if it is motivated, at
least in part, by the employer’s unfair labor practices,
even if economic reasons for the strike were more impor-
tant than the unfair labor practice activity. See Burns
Security Services, 324 NLRB 485, 492 (1997), enf. de-
nied on other grounds 146 F.3d 873 (D.C. Cir. 1998). It
is not sufficient, however, merely to show that the unfair
labor practices preceded the strike. Rather, there must be
a causal connection between the two events. See John
Cuneo, Inc., 253 NLRB 1025, 1026 (1981). In sum, the
unfair labor practices must have “contributed to the em-
ployees’ decision to strike.” RGC (USA) Mineral Sands,
332 NLRB 1633 (2001).
Here, the record fails to show that any unlawful con-
duct contributed to the employees’ decision to strike. As
stated above, the employees were upset about the en-
forcement of safety rules and the use of temporary em-
ployees, but the judge found, and we agree, that neither
the safety rules enforcement nor the use of temporary
employees constituted an unfair labor practice. The
judge did find, and again we agree, that the Respondent
violated Section 8(a)(5) by changing its disciplinary pol-
icy from a system of oral reprimands to written warnings.
Contrary to the judge, however, we cannot find any evi-
dence that the employees “were motivated by [this] un-
fair labor practice” when they decided to strike. Most
significantly, no witness who was present at the strike
meeting made any reference to this issue. Rather, the
record indicates that in deciding to strike the employees
were motivated solely by conduct that has not been
shown to constitute an unfair labor practice, i.e., the en-
forcement of safety rules, the use of temporary employ-
ees, and the Respondent’s contract proposal.
In essence, the judge inferred that because the employ-
ees had complained to Bru about being harassed on
safety violations, “[t]hose complaints must certainly have
embraced the unilateral change in discipline which the
government has proven violative.” The record, however,
fairly considered as a whole, does not support the judge’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
inference. In sum, it is simply not possible to conclude
on the basis of the employees’ general testimony about
“harassment” that any concerns they may have had about
“formalization” of the disciplinary procedure, by substi-
tuting written for oral warnings, contributed to their deci-
sion to strike.
Accordingly, we conclude that the strike which com-
menced on January 29, 1996, was an economic, rather
than an unfair labor practice, strike, and we shall modify
the recommended Order accordingly.5
Notwithstanding this modification, we adopt the
judge’s ultimate conclusion that the Respondent violated
Section 8(a)(3) and (1) of the Act by failing to reinstate
Burrell on January 21, 1997, when he advised the Re-
spondent of his availability, desire, and fitness for work.
In this connection, it is well established that economic
strikers must be reinstated upon application, absent a
legitimate and substantial business justification, such as
permanent replacement. See Associated Grocers, 253
NLRB 31, 32 (1980), enfd. 672 F.2d 897 (D.C. Cir.
1981); see also Laidlaw Corp., 171 NLRB 1366 (1968),
enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970). Here, the Respondent does not defend
against the refusal to reinstate allegation on the ground
that Burrell had been permanently replaced, and the
judge properly rejected the other business justifications
the Respondent offered.
Our dissenting colleague argues that the Respondent’s
refusal to reinstate Burrell in January 1997 was lawful
because it had previously offered him reinstatement in
November 1996. For the following reasons, we reject
the dissent’s contention.
The relevant facts can be summarized as follows. In
November 1996, following the Union’s unconditional
offer to return on behalf of the strikers, Burrell received a
letter from the Union’s attorney notifying him to report
back to work. At that time, however, Burrell had a cast
on his leg due to an injury sustained while working for a
different employer during the strike. Burrell went to the
Respondent’s president, Edgard Gonzales, to explain that
he wanted to return to work as soon as he obtained a
medical release. Gonzales’ own credited testimony es-
tablishes that he agreed to reinstate Burrell when a medi-
cal release was obtained.
On January 9, 1997, Burrell’s doctor gave him a re-
lease to return to work on January 20, 1997. On January

5 Specifically, we shall amend par. 3 of the judge’s Conclusion of
Law and modify par. 1(d) of his recommended cease-and-desist order
to reflect our finding that employee Donald Burrell was an economic,
not an unfair labor practice, striker.
Our reversal of the judge’s unfair labor practice strike finding does
not affect any other aspect of the judge’s remedy.
21, 1997, Burrell reported to Gonzales’ office with his
doctor’s release, ready to work. When told that Gonzales
was busy, Burrell left his doctor’s release and his phone
number on Gonzales’ desk. Burrell then advised Super-
intendent Johnson that Burrell was ready to report to
work. Johnson told Burrell that he had to talk to Gonza-
les. Later that day, when Burrell returned to Gonzales’
office, Burrell was told that Gonzales had left for the
day. In short, the Respondent did not reinstate Burrell on
January 21, 1997, and gave him no explanation for its
failure to do so. Two months later, on March 26, 1997,
the Respondent sent a letter to Burrell telling him to re-
turn to work by April 14, 1997.
On these facts, our dissenting colleague would find
that the Respondent’s reinstatement offer, conveyed to
Burrell through the Union in November 1996, which
Burrell was unable to accept because of his injury, re-
lieved the Respondent of any obligation to reinstate
Burrell in January 1997, when he was released for duty.
We do not agree.
Under well-established Board law, an employee is af-
forded “a reasonable period of time to determine if he
wishes to accept or reject the [reinstatement] offer and
during which he can, if he accepts, take those steps nec-
essary to return to work pursuant to the offer.” Frede-
man’s Calcasieu Locks Shipyard, 208 NLRB 839 (1974),
enfd. mem. 493 F.2d 663 (5th Cir. 1974). There is no
per se rule establishing what constitutes a “reasonable
period of time.” Rather, “[w]hat constitutes the ‘reason-
able time’ will depend essentially on the situation in
which an employee finds himself.” Id. Accord: Ester-
line Electronics Corp., 290 NLRB 834 (1988). See, e.g.,
Creutz Plating Corp., 172 NLRB 1 (1968) (respondent
required to keep offer of reinstatement open longer than
6 months in order to allow ill employee sufficient time to
recover).
We find the above principles applicable to Burrell’s
situation. In November 1996 when the Respondent of-
fered him reinstatement, Burrell was unable to work due
to his injury, and he so informed Gonzales. Gonzales
promised Burrell that he could return to work when he
obtained his doctor’s release. On January 21, 1997,
Burrell reported to the Respondent with his doctor’s re-
lease, ready to return to work. He was not reinstated.
Under these circumstances, we cannot agree with our
colleague that the Respondent’s reinstatement obligation
expired in November 1996, when Burrell was unable to
return to work. Rather, in accord with Board precedent,
we find that the reinstatement offer continued for a rea-
GOLDEN STEVEDORING CO. 413
sonable period of time.6 Further, we find that, given
Burrell’s inability to work because of his injury and the
Respondent’s express promise to reinstate him when a
medical release was obtained, a reasonable period of time
continued until January 21, 1997, when Burrell notified
the Respondent that he was able to work. See also NLRB
v. Mooney Aircraft, 61 LRRM 2164, 2165–2166 (5th Cir.
1966), contempt proceeding on order in 138 NLRB 1331,
1333 (1962), enfd. 328 F.2d 426 (5th Cir. 1964) (finding
it unreasonable for an employer to refuse to extend an
offer of employment considering the wrongfully dis-
charged employee became ill within the fixed reporting
time). Thus, on January 21, 1997, the Respondent
unlawfully failed and refused to reinstate Burrell in vio-
lation of Section 8(a)(3) and (1) of the Act.7
Threat of Arrest
For the reasons set forth below, we adopt the judge’s
finding that the Respondent violated Section 8(a)(1) of
the Act by threatening to cause the arrest of Union Offi-
cial Bru if he engaged in protected activities on the Ala-
bama State Docks.
The Respondent and other stevedoring companies
lease property from the Alabama State Docks Depart-
ment. The entire State facility is fenced and policed by a
security force. A State road cuts through the facility.
As stated above, the Union is the employees’ certified
bargaining representative. When the Respondent’s em-
ployees began their economic strike on January 29, 1996,
the State Docks Department designated a gate through
which the Respondent’s employees were to pass, and
another gate (the main gate) for all other employees. The
Union picketed at the gate designated for the Respon-
dent’s employees. Shortly after the strike began, Union
Agent Bru learned that some of the Respondent’s non-
striking employees were using the main gate. He com-
plained to the chief of the State Docks police force, who
told him that he needed to provide proof that the main

6 We reject the dissent’s attempt to distinguish the above-cited cases
on the ground that they involve “discriminatee[s]” while Burrell “was
simply a striker who could not accept the reinstatement offer when it
was made.” Like a discriminatee, Burrell was entitled to an offer of
reinstatement. Indeed, the dissent concedes this point. Further, it is
well established that the reinstatement rights of economic strikers, like
the reinstatement rights of discriminatees, are based on the statute. See
Brooks Research & Mfg., 202 NLRB 634, 636 (1973). In sum, there is
no legal basis for the distinction the dissent draws between discrimina-
tees and strikers or for its position that Burrell should not be afforded a
reasonable period of time to accept the Respondent’s reinstatement
offer.
7 Accordingly, we shall provide for our usual reinstatement remedy.
The effect the Respondent’s March 26, 1997 letter may have on the
remedy is an issue best left for resolution at the compliance stage of
this proceeding.
gate had been “tainted” before the Union could lawfully
picket the main gate.
Accordingly, Bru stationed a striker at the main gate to
observe who entered. On February 1, 1996, the observer
called to inform Bru that he had seen some of the Re-
spondent’s employees passing through the main gate.
Bru immediately drove on the State road passing through
State Docks property to the Respondent’s maintenance
garage. Bru remained in his car, which he parked on the
side of the State road, to photograph license plates of
cars parked near the Respondent’s maintenance garage.
Bru did not enter the Respondent’s leased premises.
On February 2, 1996, one of the Respondent’s secre-
taries8 delivered to Bru a letter signed by the Respon-
dent’s president, which stated:

On Thursday, February 1, 1996, you were observed in
the parking lot adjacent to the Golden Stevedoring Co.,
Inc., new maintenance shop at approximately 7:50 a.m.
You appeared to be taking down the license tag num-
bers of employees of Golden Stevedoring, Co., Inc.

You have no legitimate business on the leased property
of Golden Stevedoring, Co., Inc.
THIS IS A WARNING! You will be trespassing in
violation of the laws of the State of Alabama if you en-
ter the leased property of Golden Stevedoring Co., Inc.,
without my written permission.

On February 20, 1996, Bru again entered the State facility to
investigate whether any of the Respondent’s nonstriking
employees had used the main gate. This visit prompted a
second letter, dated February 21, 1996, and signed by the
Respondent’s president, which stated in part as follows:
“THIS IS A SECOND WARNING! . . . Further trespassing
. . . will result in a warrant being issued for your arrest.”
“It is beyond question that an employer’s exclusion of
union representatives from public property violates Sec-
tion 8(a)(1), so long as the union representatives are en-
gaged in activity protected by Section 7 of the Act.”
Bristol Farms, 311 NLRB 437 (1993). On February 1,
1996, Bru drove on a State road nearby the Respondent’s
maintenance garage to investigate reports that the main
gate had been tainted. The record shows that on that day
Bru remained on public property and did not enter the
Respondent’s leased premises. Clearly, then, the Re-
spondent’s February 2, 1996 threat to have Bru arrested
8 There is no evidence that the secretary was aware of the contents of
this letter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
violated Section 8(a)(1),9 if Bru was engaged in protected
activity at the time of the February 1, 1996 incident.
The Act protects a union’s right to picket an employer
with whom the union has a labor dispute. As the Su-
preme Court stated in Steelworkers (Carrier Corp.) v.
NLRB, 376 U.S. 492, 499 (1964), “The primary strike,
which is protected by the proviso [to Sec. 8(b)(4)(B)], is
aimed at applying economic pressure by halting the day-
to-day operations of the struck employer. But Congress
not only preserved the right to strike; it also saved ‘pri-
mary picketing’ from the secondary [ban]. Picketing has
traditionally been a major weapon to implement the goals
of a strike.”
Other employers sharing a common situs with the pri-
mary employer may be insulated from the disruption of
the labor dispute by establishing “neutral” gates, i.e.,
gates reserved for the employees of the employer not
involved in the labor dispute. So long as the employees
of other employers enter through neutral gates, the union
may not picket the neutral gates. Neutral employers are
insulated from the picketing, however, only so long as
the reserve gate system is faithfully observed. If em-
ployees of the struck employer enter through a neutral
gate rather than a gate designated for them, the neutral
gate is considered “tainted” and a union may lawfully
engage in picketing at that gate. See J. F. Hoff Electric
Co. v. NLRB, 642 F.2d 1266, 1269–1271 (D.C. Cir.
1980), cert. denied 451 U.S. 918 (1981). However, iso-
lated or de minimis use of a neutral gate by a primary
employer’s employees will not render lawful the union’s
picketing at that gate. See Plumbers Local 274, 267
NLRB 1111, 1115 (1983).
Based on these principles, we make the following find-
ings in this case. The Union, which otherwise could only
picket at the gate the State Docks Department had desig-
nated for the Respondent’s employees, could picket at
the main gate if the Respondent’s nonstriking employees
were entering through it. When Bru drove on a State
road near to the Respondent’s maintenance garage on
February 1, 1996, he was investigating reports that the
Respondent’s nonstriking employees were using the
main gate, rather than the gate designated for them. In
doing so, he was seeking to gather information relevant

9 The February 2, 1996 letter accused Bru of trespassing and warned
him that the Respondent would take action against him if he continued
such activity without the Respondent’s permission. It is clear from the
second letter of February 21, 1996, that the action the Respondent
threatened was to have Bru arrested.
Although we rely on the February 21, 1996 letter as lending context
and meaning to the warning the Respondent issued to Bru on February
2, 1996, it is unnecessary to pass on whether the second letter inde-
pendently violated the Act. A finding of such an additional violation
would be cumulative and would not affect the remedy.
to whether the Union’s picketing could be lawfully ex-
tended to the main gate. Bru’s investigation, clearly un-
dertaken in his capacity as an agent of the employees’
bargaining representative, was protected activity.10 Thus,
the Respondent’s attempt to exclude him from public
property and its threat to have him arrested for engaging
in protected activity violated Section 8(a)(1).
Our dissenting colleague would not find that the threat
to have Bru arrested violated the Act. He reasons that
because none of the Respondent’s employees knew of
the threat, the threat could not have chilled the Section 7
rights of the Respondent’s employees. He concludes,
citing Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992),
that Section 7 rights are those of employees, not unions.
The Board rejected our colleague’s sweeping interpre-
tation of Lechmere in BE & K Construction Co., 329
NLRB 717, 724 (1999), enfd. 246 F.3d 619 (6th Cir.
2001). In that case, the Board squarely held, with court
approval, that Lechmere did not negate the principle that
acts of unions and their agents can be protected under the
Act. Id. at 724.11 As the Board observed, it would be
“curious and myopic” to hold otherwise, for a contrary
interpretation would mean that “conduct that is protected
when engaged in by . . . employees . . . would lose its
protection if engaged in by the employees’ union on their
behalf.” Id. The instant case illustrates how a similarly
anomalous result would occur were we to agree with our
colleague.
As stated above, the Respondent’s employees were
engaged in picketing that was restricted to a specified
gate because the Alabama State Docks Department estab-
lished a reserve gate system. However, if the Respon-
dent’s nonstriking employees were using the main gate
reserved for neutrals, then the striking employees could
lawfully extend the picketing to that gate. Bru, an agent
of the certified bargaining representative, while on public
property,12 was seeking to gather information relevant to
whether the reserve gate system was tainted. The Re-
spondent threatened to have Bru arrested if he did not
cease his activity.
In other words, Bru’s investigation, undertaken on be-
half of the employees he represented, was linked to the
employees’ Section 7 right to strike, which included the
10 Bru’s action was also prudent. A suspicion that a reserve gate sys-
tem has been tainted does not entitle a union to expand picketing to
neutral gates. The union must be able to show proof of taint. See Oil
Workers Local 3-689 (Martin Marietta), 307 NLRB 1031, 1032 (1992).
11 Accord: Petrochem Insulation, 330 NLRB 47, 49 (1999), enfd.
240 F.3d 26 (D.C. Cir. 2001).
12 The dissent’s reliance on Food & Commercial Workers Local 880
v. NLRB, 74 F.3d 292 (D.C. Cir. 1996), cert. denied 519 U.S. 809
(1996), is misplaced because the issue in that case was whether nonem-
ployees had a right of access to private property.
GOLDEN STEVEDORING CO. 415
right to extend picketing to another location if the reserve
gate system was tainted. The Respondent, by threatening
to have him arrested, sought to prevent Bru’s gathering
of information vital to determining whether the reserve
gate system was tainted. Interfering with Bru’s gathering
of information directly relevant to the course of the em-
ployees’ protected activity would necessarily interfere
with the employees’ Section 7 rights.
To find that the threat to have Bru arrested did not vio-
late the Act, as our colleague proposes, would create the
following anomaly: The Respondent’s employees had a
right protected by Section 7 to extend their picketing to
the main gate if the reserve gate system was tainted, but
the Respondent could, through threats, lawfully attempt
to prevent the employees’ bargaining agent from gather-
ing information vital to ascertaining whether the employ-
ees’ may exercise that Section 7 right. We decline to
join our colleague in reading the Act in such an incon-
gruous way.
3. The Respondent has excepted to the judge’s finding
that the Respondent violated Section 8(a)(5) by unilater-
ally changing its disciplinary system from one based on
oral reprimands to one using written warnings. Contrary
to our dissenting colleague, we agree with the judge’s
analysis and conclusion.
On July 13, 1995, a day after the Union won the elec-
tion, the Respondent’s superintendent, Kenneth Johnson,
began issuing written warnings, placing them in an em-
ployee’s personnel file, and giving a copy of the warning
to the disciplined employee. Prior to the election, the
Respondent gave warnings orally. The Respondent ad-
mitted that this change was based on its attorney’s advice
“to document everything that happened, because there
would probably be an unfair labor practice filed.”13
As the judge recognized, the Board has held that “in
order for a statutory bargaining obligation to arise with
respect to a particular change unilaterally implemented
by an employer, such change must be a ‘material, sub-
stantial, and a significant’ one affecting the terms and
conditions of employment of bargaining unit employ-
ees.” Millard Processing Services, 310 NLRB 421, 425
(1993) (citation omitted). In finding that the Respon-
dent’s formalization of its disciplinary procedure consti-
tuted such a change, the judge relied on Garney Morris,
Inc., 313 NLRB 101, 119–120 (1993), enfd. mem. 47
F.3d 1161 (3d Cir. 1995). In that case, the Board found
that a respondent violated Section 8(a)(5) when it
unilaterally implemented a new, more detailed
disciplinary warning form. The judge reasoned that if a
form to a more change from a simple warning
a simple warning form to a more complicated one consti-
tuted a “material, substantial, and significant” change in
working conditions, then, a fortiori, such a change oc-
curred when the Respondent switched from oral to writ-
ten warnings. Further, the judge stated that written warn-
ings have a “greater permanence than evanescent
speech.”
13 The judge found that except for placing the disciplinary message
in written form the Respondent did not impose greater punishment for a
particular infraction after the election than it had imposed before.
Support for the judge’s analysis can be found in the
strikingly similar case of Amoco Chemicals Corp., 211
NLRB 618 (1974), enfd. in relevant part 529 F.2d 427
(5th Cir. 1976). In Amoco, the respondent, shortly after a
representation election, unilaterally changed from an oral
warning system to a written warning system. The Board,
in finding that the change significantly affected working
conditions, explained, “Written warnings are more for-
mal and tend to become a permanent part of an em-
ployee’s personnel file.” Id. at 618 fn. 2.14 The court of
appeals agreed with the Board, stating that under the new
system of written warnings “the employer’s complaints
tended to become a permanent part of an employee’s
personnel file which could affect his future job security.”
529 F.2d at 431. See also Migali Industries, 285 NLRB
820, 821 (1987) (finding that the respondent violated
Sec. 8(a)(5) by unilaterally changing from oral to written
warnings for absenteeism and tardiness, even though no
discipline issued pursuant to changed procedure).
Here, as in Amoco, the Respondent unilaterally
changed from an oral warning system to a more formal
written warning system. Here, too, as in Amoco, under
the new system, the written warning is retained in the
employee’s personnel file and could affect his job secu-
rity. Further, it is immaterial, as it was in Amoco and
Migali, that, as part of the change from an oral to a writ-
ten system, the Respondent did not impose discipline
more harshly. Therefore, we conclude, in agreement
with the judge, that under established Board precedent
the Respondent violated Section 8(a)(5) by its unilateral
formalization of its disciplinary procedure.
The cases relied on by the dissent are distinguishable
on their facts. In Allied Mechanical Services, 320 NLRB
32 (1995), enfd. 113 F.3d 623 (6th Cir. 1997), the Board
found that the respondent had merely clarified, not
changed, its existing policy on overtime pay. Here, by
contrast, it is clear that a change in policy occurred; the
issue presented is whether the change was “material,
substantial, and significant,” a question not addressed in
Allied Mechanical.
Champion Parts Rebuilders v. NLRB, 717 F.2d 845,
853–855 (3d Cir. 1983), merely involved a change in

14 There was no finding by the Board that the respondent imposed
discipline more harshly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
company procedures for photocopying doctors’ excuses.
There was no evidence that the change adversely affected
the employees’ ability to make the copies and collect the
wages they were due. Therefore, the court concluded
that the change had only a minimal effect on the employ-
ees’ terms and conditions of employment. Here, how-
ever, the Respondent’s change from oral to written warn-
ings could adversely affect employee job security be-
cause the warning notices were to be placed in an em-
ployee’s personnel file.
Finally, in Rust Craft Broadcasting of New York, 225
NLRB 327 (1976), the company substituted timeclocks
for manual notations to record worktime, and in Litton
Systems, 300 NLRB 324, 331–332 (1990), enfd. 949
F.2d 249 (8th Cir. 1991), the company installed a central
clock and buzzer system to signify the beginning and
ending of breaks. In these cases, the changes did not
have any meaningful effect on the employees’ terms and
conditions of employment because employers simply
chose more efficient and dependable methods of enforc-
ing existing workplace rules.15 By contrast, as discussed
above, the Respondent’s change did have a significant
impact on employees’ working conditions because disci-
pline was now more formal and permanent with a likely
affect on job security.
Accordingly, for all these reasons, we adopt the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing its
disciplinary system from one involving oral reprimands
to one using written warnings.
4. The Respondent has excepted to the judge’s finding
that the Respondent violated Section 8(a)(1) by creating
the impression of surveillance. Contrary to our dissent-
ing colleague, we adopt the judge’s finding.
In July 1995, Superintendent Johnson and employee
Carey Wyatt were discussing the Union. Wyatt’s cred-
ited, uncontradicted testimony was that Johnson “told me
to watch my back, to watch it close, that they will be out
to get me.” The judge found that Johnson’s statement
would reasonably create the impression that employees’
union activities were under surveillance.
Our dissenting colleague asserts that Johnson’s state-
ment cannot be treated as creating the impression of sur-
veillance. He relies on Rock-Tenn Co., 315 NLRB 670,
683 (1994), enfd. 69 F.3d 803 (7th Cir. 1995). In Rock-
Tenn, the Board found a respondent’s statement that it

15 Similarly, in Goren Printing Co., 280 NLRB 1120 (1986), cited
by the dissent, the employer simply replaced its existing rule, requiring
employees orally to inform a supervisor if they were leaving work
early, with a policy that employees provide a supervisor with a written
note. Such a change had an “inconsequential impact” on the employ-
ees. Id. at 1120.
was “tired of [a union officer] misleading the people and
that she had to stop it or further action would be taken”
was a threat of future action, but did not create the im-
pression of surveillance.
We do not agree that the Board’s reasoning in Rock-
Tenn compels dismissing the creation of surveillance
allegation in this case. In Rock-Tenn, the respondent
stated to the local union president that it would take fu-
ture action if conduct that occurred in the past were re-
peated. The respondent’s employees knew that the re-
spondent’s knowledge of the past conduct was not ac-
quired through surveillance. Thus, employees could not
reasonably believe the respondent had surreptitiously
observed past activity, and the reference to the future
obviously referred to unspecified discipline for similar
conduct rather than implying surveillance. Given the
context, there was no implication in the statement that
employees’ protected activity would be monitored.
In the instant case, Johnson ended a conversation about
the Union by telling Wyatt to “watch [your] back.”
Given the context in which the statement was made, we
find that a clear implication of Johnson’s remark was that
the Respondent would be monitoring Wyatt to see
whether his union activity continued. If so, “they” would
“get” him. In Rock-Tenn, as explained above, the record
as a whole clearly disarmed what might otherwise have
been a statement creating the impression of surveillance.
In contrast, the record here supplies no basis for finding
that Wyatt could not reasonably believe that Johnson’s
statement implied future monitoring of union activity.
Our colleague suggests that a statement cannot create
an impression of surveillance when the statement refers
only to future employer conduct. We can discern no
logical reason why only statements implying that surveil-
lance has already occurred can be found to create the
impression of surveillance. Further, such a position is
contrary to Board law. See Florida Coca-Cola Bottling
Co., 321 NLRB 21, 22–23 (1996), in which the Board
found that a statement expressing an intention to monitor
union activity created the impression of surveillance.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
“3. The Respondent violated the Act by the following
conduct: By creating the impression that employees’
union activities were under surveillance, as alleged in
paragraph 7(a) of the complaint; by threatening employ-
ees with closure of the facility, as alleged in paragraph
8(c) of the complaint; by threatening to cause the arrest
of a union official if he engaged in union or protected
concerted activities on the Alabama State Docks, as al-
leged in paragraph 8(d) of the complaint; by suspending
employees Leon Autry, Donald Burrell, and Larry Scott
GOLDEN STEVEDORING CO. 417
on July 20, 1995, insofar as the suspension extended be-
yond that date, and by issuing to them “final warning”
letters as alleged in paragraph 9 of the complaint; by re-
fusing to reinstate economic striker Donald Burrell in the
absence of a legitimate and substantial business justifica-
tion; and by unilaterally changing its disciplinary system
from one predominantly involving oral reprimands to
one using written warnings, without notifying the Union
of the change and affording it the opportunity to bargain,
as alleged in paragraph 23 of the complaint.”
ORDER
The National Labor Relations Board orders that the
Respondent, Golden Stevedoring Co., Inc., Mobile, Ala-
bama, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure if they
select the Union to represent them or engage in other
protected concerted activities.
(b) Threatening to cause the arrest of union officials
because they engage in union or other protected con-
certed activities on the Alabama State Docks.
(c) Warning and suspending its employees because
they engaged in union or other protected concerted ac-
tivities.
(d) Failing and refusing to reinstate economic strikers
in the absence of a legitimate and substantial business
justification.
(e) Creating an unlawful impression of surveillance of
employees engaging in union or other protected con-
certed activities.
(f) Unilaterally changing its disciplinary system from
one based on oral reprimands to one using written warn-
ings, or unilaterally changing any other term or condition
of employment affecting bargaining unit employees and
involving a mandatory subject of collective bargaining,
without first giving notice to the Union of the proposed
change and affording the Union the opportunity to bar-
gain about it.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful disciplinary
warnings it issued to Leon Autry, Donald Burrell, and
Larry Scott on July 20, 1995, and, within 3 days thereaf-
ter, notify the employees in writing that this has been
done and that the warnings will not be used against them
in any way.
(b) Make Leon Autry, Donald Burrell, and Larry Scott
whole, with interest, for any loss of earnings or other bene-
fits suffered as a result of their unlawful suspensions from
work on July 21, 1995, with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspensions,
and, within 3 days thereafter, notify the employees in
writing that this has been done and that the suspensions
will not be used against them in any way.
(d) Within 14 days from the date of this Order, offer
Donald Burrell full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(e) Make Donald Burrell whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful refusal to reinstate him on January 21, 1997. Back-
pay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, supra.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
reinstate Donald Burrell and, within 3 days thereafter,
notify him in writing that this has been done and that the
refusal to reinstate him will not be used against them in
any way.
(g) Within 14 days from the date of this Order, rescind
the written warning disciplinary procedure it imple-
mented after employees selected the Union on July 12,
1995, and reinstate the oral reprimand procedure previ-
ously in effect.
(h) Within 14 days from the date of this Order, or such
additional time as the Regional Director may allow for
good cause shown, remove from its files all written
warnings it issued using the disciplinary procedure it
instituted after July 12, 1995, and, within 3 days thereaf-
ter, notify employees in writing that this has been done
and that the warnings will not be used against them in
any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Mobile, Alabama, copies of the attached
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
notice marked “Appendix.”16 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 12, 1995.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting in part.
I disagree with my colleagues in four respects.
1. I disagree with my colleagues that the Respondent
violated Section 8(a)(5) by unilaterally changing its dis-
ciplinary policy from a system of oral reprimands to a
system of written warnings. Contrary to the complaint’s
allegations, the judge found that the Respondent did not
tighten or significantly change, the enforcement of the
rules. Indeed, the judge found that the Respondent did
not issue any discipline for infractions that it previously
would have ignored or handled without discipline. My
colleagues do not disturb these factual findings.
The Board has long held that a unilateral change in a
mandatory subject of bargaining is unlawful only if it is
“material, substantial, and significant.” Alamo Cement
Co., 281 NLRB 737, 738 (1986). Consistent with this
approach, the Board, in Goren Printing Co., 280 NLRB
1120 (1986), found lawful an employer’s unilaterally im-
posed requirement that employees provide a note, rather
than an oral report, if the employee needed to leave work
early. The Board reasoned that the employer did not
change its rules but rather instituted a more “dependable”
method of enforcing its rules. Likewise, in Rust Craft
Broadcasting of New York, 225 NLRB 327 (1976), the
employer installed timeclocks to replace printed cards that
employees manually printed to record their time at work.
The Board found that the employer did not violate the Act

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
by “unilaterally initiating a more dependable method of
enforcing its longstanding rule that employees record their
time ‘in and out.’” Id. at 327.
Similarly, the Respondent did not in any way change
its policy concerning what conduct would be subject to
discipline or what level of discipline would be applica-
ble. Rather, the Respondent simply implemented a more
dependable method of memorializing its disciplinary
practices by writing down the discipline. Such a change
does not rise to the level of a material, substantial, and
significant change. See also Champion Parts Rebuilders
v. NLRB, 717 F.2d 845 (3d Cir. 1983) (company’s
change in practice for employees’ copying doctors ex-
cuses by no longer routing them through union steward
not unlawful); Allied Mechanical Services, 320 NLRB 32
(1995), enfd. 113 F.3d 623 (6th Cir. 1997) (clarification
of existing overtime pay policy consistent with policy in
employee handbook); and Litton Systems, 300 NLRB
324, 331–332 (1990), enfd. 949 F.2d 249 (8th Cir. 1991)
(installation of a central clock and buzzer system to sig-
nify the beginning and ending of breaks).
My colleagues speculate that the Respondent’s change
from oral to written warnings “could adversely affect
employee job security” because such warnings were to
be placed in the personnel files, and the “more formal”
discipline is “likely” to affect job security. However,
this speculation is contrary to the judge’s finding that the
Respondent did not increase the disciplinary penalties or
expand the range of conduct subject to discipline. More-
over, Garney Morris, Inc.,1 relied on by my colleagues,
is distinguishable because there, the employer added to
the range of conduct for which discipline could be im-
posed by adding “much more” detail to its disciplinary
form and changing its disciplinary procedure.
2. I also disagree with my colleagues’ adoption of the
judge’s finding that the Respondent violated Section
8(a)(1) by creating the impression of surveillance, and
therefore, I also disagree with their modification of the
judge’s recommended Order based on this finding. The
complaint alleges that in July 1995 Kenneth Wayne
Johnson, the Respondent’s superintendent, “created an
impression among its employees that their union activi-
ties were under surveillance.” The judge credited em-
ployee Carey Wyatt’s testimony that, in a discussion
about the Union, Johnson told him to “watch my back, to
watch it close, that they will be out to get me.” The
judge found that this comment constituted an unlawful
impression of surveillance. I find, however, that this
1 313 NLRB 101, 119–120 (1993), enfd. mem. 47 F.3d 1161 (3d Cir.
1995).
GOLDEN STEVEDORING CO. 419
comment did not reasonably convey the impression that
the Respondent had engaged in surveillance.
In my view, the statement was at most, a threat that, in
the future, someone would “get” Wyatt because of his
union activity. It was not a statement that, in the past, Re-
spondent had surreptitiously spied on his union activity.
Accordingly, I would dismiss this allegation. Had the
complaint alleged that the statement constituted an
unlawful threat, I might well find it a violation of Section
8(a)(1). See Rock-Tenn Co., 315 NLRB 670, 683 (1994),
enfd. 69 F.3d 803 (7th Cir. 1995) (statement constituted
threat but was alleged as impression of surveillance and
therefore could not be found). Contrary to my col-
leagues’ assertion, I note that Johnson’s statement does
not constitute a threat of future surveillance. At most, it
constitutes a threat of future retaliation. Further, even if
it were a threat of future surveillance, that is not the same
as the creation of an impression of surveillance. In this
latter regard, and contrary to my colleagues, the conduct
in Florida Coca-Cola Bottling Co., 321 NLRB 21, 22–23
(1996), was not found to create an impression of surveil-
lance. It was found to constitute a threat of surveillance.
See Conclusion of Law 3(b), above.
3. I also find that the Respondent did not unlawfully
threaten to arrest Union Organizer George Bru. The evi-
dence reflects that, on February 1, 1996, Bru entered the
State docks where the Respondent and other companies
perform work, and he watched outside a gate to deter-
mine whether the Respondent’s employees were using it
to enter the worksite. The next day, the Respondent sent
Bru a letter warning that he had no legitimate business on
the leased property and warning that his entry without
the Respondent’s written permission constituted trespass.
Bru entered the worksite again a few weeks later and the
Respondent sent him a letter stating that further trespass
would result in his arrest. Bru is a union agent, not an
employee. There is no evidence that any of the Respon-
dent’s employees knew about the threat.
I disagree with the finding of a violation. The question
is whether the Respondent’s threat to arrest Bru chilled
the Section 7 rights of the Respondent’s employees. It is
clear that the threat was not made to an employee, and
that no employee learned of the threat. Accordingly, I
find that the Respondent’s employees’ Section 7 rights
were not chilled by the threat. See Pacific Dry Dock Co.,
303 NLRB 569, 571 (1991) (employee rights not chilled
because employee did not know about threat to arrest
former employee who entered property to act as a union
observer in election).
Contrary to the judge’s conclusion, the Board’s law on
this issue has not changed, and his reliance on Mr. Z’s
Food Mart, 325 NLRB 871 fn. 2, 882–884 (1998), and
Indio Grocer Outlet, 323 NLRB 1138 (1997), is mis-
placed. Unlike those cases, there is a specific fact-
finding here that the Respondent’s communication (set
forth in a letter to a union representative) was not
brought to the attention of any employee.
My colleagues rely on BE & K Construction,2 a case in
which I did not participate. Contrary to my colleagues, I
do not find it “curious and myopic” that the Board should
accept the Supreme Court’s clear holding in Lechmere3
that “[b]y its plain terms . . . the NLRA confers rights
only on employees, not on unions or their nonemployee
organizers.” Accord: Food & Commercial Workers Lo-
cal 880 v. NLRB, 74 F.3d 292 (D.C. Cir. 1996) (nothing
in Lechmere suggests that the rights of nonemployees are
enhanced when access to private property is sought by
nonemployees to communicate with the employer’s cus-
tomers).
Further, BE & K is distinguishable. In that case, the
employer sued the union in retaliation for the exercise of
a Section 7 right. The lawsuit, by its nature, was an open
and public act. Therefore, employees would be aware of
it and would be chilled thereby. By contrast, the threat
here was conveyed in a private letter to the union agent.
The employees were not aware of it.
4. Finally, I disagree with my colleagues that the Re-
spondent violated Section 8(a)(3) by refusing to reinstate
Donald Burrell. The complaint alleges that the Respon-
dent has refused to reinstate him since on or about Janu-
ary 20, 1997. The facts show that Burrell participated in
a strike ending in November 1996. The Board majority
finds, and I agree, that the strike was an economic rather
than unfair labor practice strike. At the end of the strike,
Burrell received a copy of a letter sent to strikers by the
Union’s attorney, notifying them to report back to work.
Burrell informed Gonzales, the Respondent’s president,
that he was physically unable to return to work at that
time because of an injury, but that he would like to return
when physically able. Gonzales replied, “Okay.” On
January 9, 1997, Burrell’s doctor gave him a release to
work on January 20 and Burrell informed Gonzales’ sec-
retary and Superintendent Johnson on January 21 that he
was ready to report to work. The Respondent did not
offer to reinstate him at that time. On March 26, 1997,
the Respondent mailed Burrell a letter directing him to
report to work, which letter he did not receive.
An economic striker has the right to be placed on a
preferential hiring list upon making an unconditional
offer to return to work. Laidlaw Corp., 171 NLRB 1366,
1369–1370 (1968), enfd. 414 F.2d 99 (7th Cir. 1969),

2 329 NLRB 717 (1999), enfd. 246 F.3d 619 (6th Cir. 2001).
3 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 420
cert. denied 397 U.S. 920 (1970). See also NLRB v.
Fleetwood Trailer Co., 389 U.S. 375, 378 (1967) (eco-
nomic striker who offers unconditionally to return to
work is entitled to immediate reinstatement unless his
employer can show a legitimate and substantial business
justification for refusing to reinstate him). While on
strike, a striker remains an “employee” because he is an
“individual whose work has ceased as a consequence of,
or in connection with, any current labor dispute or be-
cause of any unfair labor practice.” NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 345 (1938) (quot-
ing Sec. 2(3) of the Act).
Based on the above, Burrell had a right to reinstate-
ment as of November 1996, when the strike ended. The
Respondent offered him reinstatement. However,
through no fault of the Respondent, Burrell could not
accept the offer. At that point, Burrell was neither a rein-
stated striker nor a striker (for the strike was over). He
therefore had no striker rights; he had only the right of
any employee or applicant, i.e., the right not to be dis-
criminated against. There is no showing that the Re-
spondent discriminatorily refused to take him back. In-
deed, the Respondent offered him reinstatement on
March 26. At most, there was a breach of promise when
the Respondent failed to honor Gonzales’ “okay” by fail-
ing to reinstate Burrell on January 27. However, a
breach of promise is not an unfair labor practice.
My colleagues say that an employee has a reasonable
period of time to accept a reinstatement offer. However,
the cases that they cite stand only for the proposition that
a discriminatee has a reasonable period of time to accept
a reinstatement offer. That principle is based on the re-
medial principles of the Act. However, the instant case
does not involve a discriminatee. Burrell was simply a
striker who could not accept the reinstatement offer when
it was made. The case does not involve a remedy for a
discrimination.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT threaten employees with plant closure
if they select International Longshoremen’s Association,
AFL–CIO, South Atlantic and Gulf Coast District, or any
other labor organization, to represent them or engage in
other protected concerted activities.
WE WILL NOT threaten to cause the arrest of union
officials because they engaged in union or other pro-
tected concerted activities on the Alabama State Docks.
WE WILL NOT issue warnings to or suspend our em-
ployees because they engage in union activities or other
protected concerted activities.
WE WILL NOT fail or refuse to reinstate economic
strikers in the absence of a legitimate and substantial
business justification.
WE WILL NOT create an unlawful impression of sur-
veillance of employees engaging in union or other pro-
tected concerted activities.
WE WILL NOT unilaterally change our disciplinary
system from one based on oral reprimands to one using
written warnings, or unilaterally change any other term
or condition of employment affecting our employees
represented by the Union and involving a mandatory
subject of collective bargaining, without first notifying
the Union and giving it the opportunity to bargain
regarding this proposed change as required by the
National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings we issued to our employees, Leon Autry,
Donald Burrell, and Larry Scott, on July 20, 1995, and
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that the warnings
will not be used against them in any way.
WE WILL make Leon Autry, Donald Burrell, and
Larry Scott whole, with interest, for any loss of earning
or other benefits they suffered because we suspended
them from employment on July 21, 1995.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspensions, and, within 3 days thereafter, notify the
employees in writing that this has been done and that the
suspensions will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Donald Burrell full reinstatement to his for-
mer position or, if that job no longer exists, to a substan-
GOLDEN STEVEDORING CO. 421
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Donald Burrell whole for any loss of
earnings and other benefits he suffered because we re-
fused to reinstate him on January 21, 1997, and thereaf-
ter, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to reinstate Donald Burrell, and WE WILL,
within 3 days thereafter, notify him in writing that this
has been done and that the refusal to reinstate him will
not be used against him in any way.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the written warning disciplinary procedure
we implemented after our employees selected the Union
on July 12, 1995, and reinstate the oral reprimand proce-
dure previously in effect.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all written warnings which
we issued using the disciplinary procedure we instituted
after our employees selected the Union on July 12, 1995,
and WE WILL, within 3 days thereafter, notify employ-
ees in writing that this has been done and that the warn-
ings will not be used against them in any way.
GOLDEN STEVEDORING, INC.
Charles R. Rogers Esq., for the General Counsel.
Willis C. Darby Jr., Esq. and Elizabeth D. Rehm, Esq., of Mo-
bile, Alabama, for the Respondent.
Mary Olsen, Esq., of Mobile, Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this
case, the General Counsel (the General Counsel or government)
of the National Labor Relations Board (the Board) alleges that
Golden Stevedoring Co., Inc. (the Respondent or Employer)
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). I find that the General Counsel has
established that Respondent violated Section 8(a)(1) of the Act
by making certain statements to employees, violated Section
8(a)(1) and (3) by suspending three employees and issuing
them warning letters, and by refusing to reinstate an unfair
labor practice striker, and violated Section 8(a)(1), (3), and (5)
of the Act by unilaterally changing from a policy of issuing oral
reprimands to issuing written disciplinary warnings without
notifying the Union and according it an opportunity to bargain
about the change. In other respects, I find that the Respondent
did not violate the Act, as alleged.
Procedural History
The record establishes, and I find, that the International
Longshoremen’s Association, AFL–CIO, South Atlantic and
Gulf Coast District (the Charging Party or the Union) filed
charges against the Employer on July 25, 1995 (Case 15–CA–
13334), August 28, 1995 (Case 15–CA–13394), December 14,
1995 (Case 15–CA–13610), and May 14, 1996 (Cases 15–CA–
13870 and 15–CA–13871).1 On November 30, 1995, the Re-
gional Director of Region 15 of the Board issued the original
order consolidating cases, consolidated complaint and notice of
hearing in this manner, and amended it four times before hear-
ing.2 The fifth order consolidating cases, fifth consolidated
complaint and notice of hearing, dated July 11, 1997, will be
referred to as the “complaint” in this decision.
I heard this case in Mobile, Alabama, on July 28 through
August 1, September 22–26, and October 1–3, 1997.3 The
parties filed posthearing briefs, which I have considered.
FINDINGS OF FACT
I. STATUS OF THE PARTIES
The complaint alleges, Respondent has admitted, and I find
the following to be true. At all material times, Respondent, a
corporation with an office and place of business at Mobile,
Alabama, has been engaged in the loading, unloading, and stor-
age of cargo from ships and barges; during the 12-month period
ending October 31, 1995, it purchased and received at this
facility goods valued in excess of $50,000 directly from points
outside the State of Alabama. I conclude that at all times mate-
rial to this case, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
Although Respondent does not admit that the Charging Party
is a labor organization within the meaning of Section 2(5) of
the Act, I find that the evidence establishes this fact. Respon-
dent has admitted the appropriateness of the unit described in
the complaint, and also has admitted the allegations in com-
plaint paragraph 21, namely, that the Board conducted an elec-
tion among Respondent’s employees on July 12, 1995, that the
Charging Party won this election, and that on July 21, 1995, the
Board certified the Union as the exclusive representative of the
Respondent’s employees in the unit described in the complaint.
In these circumstances, there can be no doubt that the Charging
Party is a labor organization within the meaning of Section 2(5)
of the Act.4

1 The Charging Party amended certain of these charges before the
hearing. The formal documents do not include the charges filed in
Cases 15–CA–14186, 15–CA–14209, and 15–CA–14314. However,
the complaint alleges and the Respondent admits the filing and service
of these charges.
2 At hearing, the General Counsel orally amended par. 1(e) of the
complaint to correct a typographical error in the date. As amended, the
complaint alleges that the amended charge in Case 15–CA–13610 was
filed on February 22, 1996 (rather than 1995), and served on February
23, 1996. (Tr. 41.) The General Counsel also amended par. 17 of the
complaint orally, at the hearing, to allege that James Lambert was re-
fused reinstatement on December 10, 1996, rather than December 10,
1997. (Tr. 42.)
3 I order the transcript of the hearing corrected in accordance with
“Appendix B” to this decision. Additionally, numerous references in
the transcript to “Gonzalez” should be corrected to “Gonzales.” Refer-
ences to “HEARING OFFICER” signify the administrative law judge.
4 Additionally I find that at all times material to this case since July
12, 1995, based on Sec. 9(a) of the Act, the Union has been the collec-
tive-bargaining representative of the Respondent’s employees in the
unit described in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 422
The complaint alleges and Respondent has admitted that Ed-
gard H. Gonzales,5 Kenneth Wayne Johnson, Vandon Scott
Johnson, and Ken Wear are its supervisors within the meaning
of Section 2(11) of the Act and its agents within the meaning of
Section 2(13) of the Act. I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The events in this case concern a union organizing campaign
culminating in a Board-conducted election on July 12, 1995,
which the Union won, and a strike from January 29 to Novem-
ber 11, 1996. I will discuss the unfair labor practice allegations
in chronological order.
A. June 15, 1995–Alleged 8(a)(1) Statement
Complaint paragraph 8(a) alleges that about June 15, 1995, at
Respondent’s facility, Respondent’s president, Edgard H. Gonza-
les, “by telling employees that Respondent did not have any
money, would not give employees a raise, would never sign a
contract and, if employees wanted to make more money, they
should go work for a different employer, informed its employees
that it would be futile for them to select the Union as their bar-
gaining representative.” (GC Exh. 1(bbb).) Respondent’s An-
swer moved to strike this allegation on the basis that the state-
ment in question was protected by Section 8(c) of the Act..6 I
have enied the motion to strike.
At hearing, Carey Wyatt testified that on June 15, 1995, he
met with Gonzales in a conference room at the Respondent’s
facility, and that no one else was present. At that time, Wyatt
was an employee of the Respondent. On direct examination by
the General Counsel, Wyatt testified as follows:

Q. What was said at this meeting?
A. He set about telling me there was no way that a Un-
ion was going to come in, that he had no money and he
had a yellow legal pad that he was writing on, writing
numbers down, showing the cause and effect of what a
Union causing him to give more money and more benefits
and stuff, he was writing all this down and showing me
that, you know, there’s just no way that this can be done.
He says, I do not have the money, I will shut my doors be-
fore I pay this. [Tr. 535–536.]

It is necessary to consider everything which Gonzales re-
portedly said to determine whether the message was, as alleged
in the complaint, “that it would be futile for them to select the
Union as their bargaining representative.” Wyatt’s testimony
on cross-examination provides a more complete account:

Q. Tell me what Mr. Gonzales said about the bank-
ruptcy.

5 The correct spelling of “Gonzales” ends in an “s,” as shown in the
complaint, rather than a “z.” (Tr. 48.) However, certain documents,
including some letters sent by Gonzales, spell his name “Gonzalez.”
(See, e.g., GC Exhs. 9 and 10.)
6 Sec. 8(c) of the Act states: “The expressing of any views, argu-
ment, or opinion, or the dissemination thereof, whether in written,
printed, graphic, or visual form, shall not constitute or be evidence of
an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.”
29 U.S.C. § 158(c).
A. He said that if we persisted in pushing him to do
the things that the labor would want him to do, as far as
money and insurance and vacation and all that stuff, that it
would drive him to bankruptcy. He would have to shut his
doors.
I asked him at that time if other companies could do it,
why can’t he.
Q. And what was his response?
A. He said that he had to lower his prices to be able to
maintain the clientele that he does. Therefore, he could not
afford to pay us what we was asking. [Tr. 572.]

Later in the cross-examination, Wyatt described how Gonza-
les added up the expenses he believed his company would incur
if it agreed to the Union’s bargaining demands:

We talked about, like I said, he drawn on a yellow le-
gal pad, you know, what he felt it would cost him to, you
know, provide better insurance, what it would cost for va-
cation for every one of his employees, what it would cost,
you know, to get better life insurance and holiday pay and
so forth and so on like this, and come up with a huge fig-
ure down at the bottom and circled the figure and basi-
cally told me that this is what it’s going to cost me and I
just do not have it, you know, I’m going to go bankrupt if
I’m forced to pay this, so therefore, I’m never going to pay
it, you know. [Tr. 572–573; emphasis added.]

Gonzales testified that Wyatt requested this meeting. Al-
though Gonzales stated that the meeting took place in the con-
ference room at Respondent’s facility, his testimony contra-
dicted Wyatt’s in most other respects:

A. Well, it was a relative short conversation. I didn’t
know what he wanted, and I just asked him about his kids,
family, you know, general questions or conversation. And
at some point, he started talking to me about the union.
He say that really not him or the rest of the guys working
in the company wanted to bring the union in.
Then I said, But you all are doing it. Then he say, Yes,
but we can solve this, you know. We don’t need to get to
extremes. If you’ll get me a raise, I can stop this.
Q. What was your response?
A. I told him it was illegal for me to even discuss with
him that.
Q. Anything else?
A. That’s pretty much the end of the conversation.
Q. During the conversation, did you fill out a note pad
and show it to him?
A. I don’t think I did. [Tr. 2459–2460.]

Based in part on my observations of the witnesses, I credit
Gonzales rather than Wyatt.7 Having determined that Gonzales
7 In addition to my observations of the demeanor of the witnesses,
there is another reason I am reluctant to credit Wyatt. The complaint
alleges that Wyatt’s meeting with Gonzales took place on June 15,
1995, which is almost 1 month before the election. It does not allege
that Gonzales had a similar meeting with any other employee on or
around that time. Why would Gonzales single out Wyatt?
GOLDEN STEVEDORING CO. 423
did not make the statements attributed to him, I recommend that
the allegation in paragraph 8(a) be dismissed.
B. July 11, 1995—Alleged 8(a)(1) Statement
Complaint paragraph 8(b) alleges that the Respondent,
through its president, Edgard Gonzales, “by telling employees
that he did not like the union; if it was within his power, the
employees would not get a union; and that he would not sign a
contract with the Union; informed its employees that it would
be futile for them to select the Union as their bargaining repre-
sentative.” (GC Exh. 1(bbb).) Respondent’s answer moved to
strike this allegation on the basis that the alleged statement was
protected by Section 8(c) of the Act. I denied that motion.
The day before the Board-conducted election, according to
Donald Burrell, who was then employed by Respondent, he
was leaving a vessel and saw “Mr. Gonzales and his wife were
sitting in his car at the bottom of the gang ramp.” Burrell testi-
fied that Gonzales motioned for him to come over:

A. I went to his car, and he said he wanted to talk to
me about my vote tomorrow. And if I’m not mistaken, he
said, How was you going to vote tomorrow? And I told
him right now I was undecided. I didn’t know how I was
going to vote. And—
Q. What was said then?
A. Say that again now?
Q. What was said after that?
A. All right. After that was said, he told me that, if
you decide to go with the Union, that he would never sign
a contract with the Union as long as he’s been there. He’s
been there 16 years and they have tried it before. They
didn’t get it, and he would not sign a contract with them
now.
Q. Okay. What was said after that?
A. All right. After that was said, he asked me have I
ever had any dealings with the Union before. And I told
him, no I never had any dealings with the Union before. I
said, My daddy was in a union once before, and that union
got busted up.
And he told me, he said, You see. That’s what the Un-
ion gets you. It loses your jobs. It takes your jobs away
from you.
Q. Okay. What was said after that?
A. Okay. After that, he told me that—there was a guy
on the dock at the time. I don’t know who he was. He
called him over to the car and told him, he said, I’m
through telling Mr. Burrell here what the Union will do for
you. He said, What the Union going to do for you is take
your job.

If Gonzales had known that Wyatt supported the Union, such
knowledge might explain the meeting and the comments attributed to
him by Wyatt. Stated another way, Gonzales might have chosen to
express his opinion about the Union to someone he knew supported it.
However, the record does not establish that Gonzales had knowledge of
any employee’s union activities, let alone Wyatt’s, on June 15, 1995.
To the contrary, Wyatt stated in his pretrial affidavit, “To my knowl-
edge, prior to about 3 days before the election, Edgard [Gonzales] had
no concrete knowledge about who was a union supporter.” (R. Exh.
19.)
You’re not going to work as much as you can—will
now. That when you decide to vote Union, you’re not go-
ing to have a job.
Q. And who was it that was saying that?
A. Some guy that Mr. Gonzales knew. I didn’t know
him. [Tr. 965–966.]

Although Burrell testified that Gonzales’ wife was in the car
at the time of this conversation, she did not corroborate
Burrell’s testimony. However, her testimony does not consti-
tute an absolute denial that such a meeting took place, because
she was responding to a question, “Do you recall any occasion
when Mr. Gonzales had a conversation with Mr. Burrell at
night when you were on the wharf?” (Tr. 2398, Emphasis
added.) Thus, her testimony does not exclude the possibility
that Gonzales had such a conversation with Burrell during the
day.
It appears that Respondent’s counsel believed that Burrell
testified that his conversation at Gonzales’ car took place at
night. Thus, to refute Burrell, he introduced a timesheet show-
ing that Burrell got off work at noon on July 11, 1995. (R. Exh.
91.)
However, Burrell did not testify that the conversation took
place at night. He testified, “It was about 11:00” but did not
specify whether before noon or midnight. (Tr. 965.)
Nonetheless, and even though Gonzales and his wife did not
squarely deny the allegation, I do not credit Burrell. He pref-
aced his testimony with “if I’m not mistaken . . . . That, in it-
self, does not inspire confidence in the testimony. Moreover,
based on the demeanor of the witnesses, I do not find Burrell to
be particularly reliable.
I find that the government has failed to establish this allega-
tion, and recommend that it be dismissed.
C. July 13, 1995—Alleged Unilateral Change
in Disciplinary Policy
Paragraph 23 of the complaint alleges that about July 13,
1995, Respondent instituted a new disciplinary policy for safety
violations, tardiness and work violations, which included issu-
ance of written warnings, suspensions, and terminations for
violations of this policy. Paragraph 25 of the complaint, admit-
ted by Respondent, alleges that these matters are mandatory
subjects of bargaining. Complaint paragraph 26 alleges that
Respondent made the alleged changes without giving the Union
prior notice and an opportunity to bargain about them, and
paragraph 29 alleges that these actions violated Section 8(a)(1)
and (5) of the Act. Respondent’s answer denied the allegations
in all these complaint paragraphs except paragraph 25.
The allegations concerning unilateral changes in rule en-
forcement become easier to evaluate if divided into the follow-
ing categories: (1) change from a system of oral reprimands to
written warnings; (2) change in enforcement of safety rules;
and (3) change in enforcement of attendance rules.
1. Change from oral to written discipline
Respondent’s superintendent, Kenneth Johnson, admitted
that after the election, he began issuing written warnings, which
he had not done before. He made this change because the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 424
spondent’s attorney told him to do so.8 Johnson credibly testi-
fied that the company lawyer told him “to document everything
that happened, because there would probably be an unfair labor
practice filed.” (Tr. 2006.)
Respondent’s president, Gonzales, also acknowledged this
change, which he called a “formalization.” He testified that
before the election Respondent had a “custom” that most of the
warnings were given orally, but that after the election, “We put
more attention of putting everything in writing when the need
for that was there.” At the same time, he denied that the admin-
istering of discipline had intensified. (Tr. 53–54.)
There is a greater conflict in the evidence regarding whether
the Respondent actually got tougher in imposing discipline, or
issued warnings where no discipline would have been given
before. I find that a preponderance of the evidence does not
establish that Respondent issued discipline for infractions it
previously would have ignored or handled without discipline.
2. Safety rules
The record clearly fails to establish that the Respondent
tightened its enforcement of safety rules in response to the Un-
ion’s organizing effort. To the contrary, the motivating factor
appears to be periodic inspections by the Occupational Safety
and Health Administration, and a 1994 inspection in particular.
Thus, to the extent that Respondent made a change in how
strictly it enforced safety rules, that change took place well
before the union organizing drive.
In reaching this conclusion, I particularly rely on the testi-
mony of John Todd, which I credit.9 Todd began work with
Respondent in about 1992. Although at the time of the hearing,
Todd held the position of mechanic, he began work for Re-
spondent as a laborer. On direct examination, Todd testified
that after a 1994 inspection by the Occupational Safety and
Health Administration, the Respondent toughened its enforce-
ment of safety standards:

Q. BY MR. DARBY: What happened with respect to
safety after the OSHA inspection in 1994?

8 As a witness, Kenneth Johnson was somewhat laconic, but very be-
lievable, called by the General Counsel, he testified as follows:
Q. Before the Union election in 1995, July of 1995, isn’t it true that
it was rarely any written warnings given out?
A. I never did see a need to do that.
Q. But it’s true?
A. I always—Yes, it’s true. I never did give any out. I always used
verbal.
Q. Okay. So you never gave any?
A. No.
Q. Now after the election, that changed didn’t it?
A. Yes.
Q. Who made the decision to change that?
A. Mr. Darby told me that, to write down everything that happened.
Q. Is that what you did?
A. That’s what I did. [Tr. 122–123.]
9 I observed Todd’s demeanor as he testified. He impressed me as
being a reliable witness. It may be noted that the week before Todd
testified, the Respondent had suspended him for an unauthorized ab-
sence from work. (Tr. 2023.) Therefore, it does not appear that Todd
was in any special position of favor with the Company or the recipient
of preferred treatment.
A. It became very strict, very rigid.
Q. All right. And who participated in making it strict?
A. Edgard Gonzales.
Q. Who else?
A. Kenny Johnson. They enforced it; all the supervi-
sors enforced it. [Tr. 1944.]

On cross-examination by the General Counsel, Todd de-
scribed how the Respondent conducted periodic safety meet-
ings for its employees, and encouraged safe practices with both
a “carrot” and a “stick.”

Q. Did those meetings start after that OSHA inspection
in 1994?
A. We had—we used to have drawings, and he would
have safety meetings. We would have safety—we would
have—after every ten ships if there was no accident, we
would have a drawing, and it was—you know, we’d have
those safety meetings.

. . . .

Q. What kind of drawing are you talking about? A
raffle or a door prize sort of thing?
A. No. It was just pick a name out of the hat, you
know, people

. . . .

Q. Okay. Well, just let me clarify for the record, be-
cause I didn’t understand what you meant by drawings.
He picked—Mr. Gonzales would pick a name out of the
hat, and that name, the person, would win money?
A. Yes, sir.
Q. Okay. Now, that was—I believe you said that was
before the OSHA inspection. Is that right?
A. Yes. We’ve had them ever since I’ve been there.
Yes, sir.
Q. So it’s continued.
A. It was continued.
Q. But you said that something about the enforcement
of the safety rules became stricter after the OSHA meet-
ing?
A. After the meeting, they was very strict. He made
everybody—we had to wear hardhats, safety glasses, man-
datory wear steel-toed shoes. If not, you don’t go on the
job. You get sent home. If not, they would make ways to
help you get them, get the things that you needed. [Tr.
1958–1959.]

Other witnesses corroborated Todd’s testimony. For exam-
ple, a general picture emerged from the record that Superinten-
dent Kenneth Johnson had a longstanding practice of stepping
on employees’ shoes to determine whether the toes had a pro-
tective steel liner for safety. This practice originated well be-
fore the union campaign and, apparently, was a custom among
other employers operating on the docks, as well.10 One of Re-
spondent’s employees, Ray Sanders, testified as follows:
10 Kenneth Johnson testified that in the most recent OSHA inspec-
tion the inspector found one employee who was not wearing steel–toed
GOLDEN STEVEDORING CO. 425

Q. Does Kenny Johnson ever check to see if you’ve
got safety shoes?
A. Yes.
Q. How does he check?
A. Step on them.
Q. Has Kenny Johnson ever stepped on your feet?
A. Yes.
Q. Before the election?
A. Yes.
Q. Does he step on your toes any more since the elec-
tion than he did before?
A. Yes. Ain’t nothing changed. [Tr. 1539–1540.]

Even some of the employees most identified with the Union
gave testimony establishing that the Respondent’s enforcement
of safety rules antedated the union campaign.11 For example,
Donald Burrell worked for Respondent both before and after
the election in which employees selected the Union. His testi-
mony, as clarified on cross-examination, indicates no signifi-
cant shift in application of the safety boot policy after the elec-
tion.
On direct examination, Burrell stated that after the election,
management “made it a point that where if you wasn’t going to
wear your hard hat, your safety glasses and boots, they was
going to send you home.” (Tr. 1013.)
According to Burrell’s testimony on direct examination, be-
fore the election, management made temporary workers go
home if they did not have steel-toed boots. However, on cross-
examination, Burrell clarified that even before the election,
Superintendent Kenneth Johnson would send regular employ-
ees home if they did not have their safety boots:

Q. BY MR. DARBY: All right. Was it was common
knowledge that people got sent home before the union
election if they came to work without safety-toed shoes?
A. Not a regular employee.
Q. Who would get sent home?
A. A laborer—a temporary.
Q. Anyone else?
A. No, sir. One of the regular employees—he would
probably make them—Kenny would make them go get
steel-toed boots, because he knew they had them, and
come on back to work.
Q. Okay. He didn’t say he had to go stay home all
day, but he would get—Kenny would—if you didn’t have
your steel-toed boots, he would send you home and you’d
come back. Is that right?
A. Yes, sir.

shoes. (He “had got by us,” Johnson testified.) The Respondent sent
him home to put them on. (Tr. 2043.)
11 One former employee, Larry Scott, did describe a stark change in
rule enforcement after the election: “Before we voted Union, guys
were wearing tennis shoes on the boat. They’d get off in a hole. Tank
top shirts. Some of them had on baseball caps. They’d pull their hard
hats off and put their baseball caps on. No safety glasses. After we
voted the Union in, everything got strict. You’d have to have your steel
toed shoes, safety glasses, hard hat and no tank top shirts.” (Tr. 738–
739.) This testimony is not consistent with the picture painted by other
witnesses, and I do not credit it.
Q. And that’s before the Union came in.
A. Yes, sir. [Tr. 1094; Emphasis added.]

Burrell did express the view that after the election manage-
ment checked more frequently to be sure that employees were
using their safety devices. Just before giving this testimony,
however, Burrell described an accident involving one of the
heavy chains used to hoist cargo. (Tr. 1011–1012.) The record
reflects that loading and unloading ships and railroad cars does
expose the longshoremen to significant hazards.
The testimony of another union supporter, Carey Wyatt, in-
dicates that management did become more vocal about safety
after the election. However, it does not establish that supervi-
sors imposed any more discipline for safety violations than they
had before the election. Wyatt gave the following testimony on
redirect examination:

Q. BY MR. ROGERS: You testified on cross exami-
nation regarding the safety rules and whether you had to
follow them or not. After the election, did the administra-
tion of the safety rules change?
A. I don’t know that they changed. I know they was
being enforced. I do not know whether, like he had men-
tioned whether, you know, it had been a rule all along and
we just didn’t know it, but it was not being enforced be-
forehand versus now, it is being enforced.
Q. When you say “versus now,” what do you mean?
A. After the election.
Q. What do you base that statement on?
A. Mainly Scott Johnson running around yelling at
everybody, telling them they better buckle up or he was
going to write them up, you know, they better wear their
hard hat, you know, or they’re going to get wrote up.
Q. When did he start doing that?
A. Probably a week or so after the election. It wasn’t
the next day, you know, but it was real soon after the elec-
tion.
Q. What was it again that you saw him do?
A. I never seen him write up anybody but I seen him
fuss at quite a few of them, telling them, you know, if you
don’t do it, you’re going to get wrote up. [Tr. 619–620;
Emphasis added.]12

Based on the credited testimony, I do not find any substantial
change in safety rule enforcement after the election. It is possi-
ble that there was some fluctuation in the enforcement of the
safety rules from time to time, arising not by design but from
the human tendency to let attention to the rules “slide” while
focusing upon the demands of work, followed by the opposite
reflex after the authoritative reminder produced by an OSHA
inspection. Similarly, supervisors might have focused more on
12 Another employee supporting the Union, Leon Autry, also gave
testimony indicating that management became more vocal after the
election about employees obeying the safety rules. Wyatt described
how Supervisor Scott Johnson told a forklift driver who failed to wear
his seat belt that he would be written up the next time it happened.
Autry also testified he heard Johnson remind forklift drivers to wear
their safety glasses at all times. (Tr. 1164–1166.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 426
safety requirements after an accident like the one described by
Burrell.
However, a preponderance of the evidence does not establish
that Respondent instructed its supervisors to tighten their en-
forcement of the safety rules or otherwise implemented a more
rigorous enforcement of them after the election. I conclude that
the General Counsel has not proven any material, substantial
and significant change took place in the Respondent’s safety
rules or in their application.
3. Attendance rules
Similarly, the record does not reflect any significant change
in the enforcement of Respondent’s rules regarding attendance.
For example, Wyatt testified that there was never a time before
the election when Superintendent Kenneth Johnson threatened
his job or threatened him with further discipline for being late.
(Tr. 550.) Instead, Johnson would give him a tongue-lashing
using vulgar expletives. (Tr. 549.)
It could be argued that a threat of further disciplinary action
for tardiness is a more serious form of discipline than upbraid-
ing the late employee with a barrage of dirty names. However,
the opposite also could be argued. Based on the record in this
proceeding, I do not reach the conclusion that an employee
received any harsher reprimand for an attendance infraction
after the election than he did before.
To summarize, the evidence does not establish that the Re-
spondent created or imposed any new rules after the election
that had not been in existence before. The record also does not
establish that Respondent applied the existing rules to actions it
would have ignored before. Similarly, except for placing the
disciplinary message in written form, Respondent did not im-
pose greater punishment for a particular infraction after the
election than it had imposed before.
In sum, I find that Respondent did not tighten the application
of its disciplinary rules or expand their scope. However, I find
that after the election, Respondent’s managers began delivering
disciplinary messages to employees in written form, rather than
orally, as they had previously done. Therefore, I must decide
whether this action constituted a unilateral change in any term
or condition of employment which was a mandatory subject of
collective bargaining.
4. Analysis
Generally, an employer has a duty to bargain with the exclu-
sive representative of a unit of its employees before making a
change in wages, hours, or other working conditions, but that
duty arises only if the change is a “‘material, substantial, and a
significant’ one affecting the terms and conditions of employ-
ment of bargaining unit employees.” Millard Processing Ser-
vices, 310 NLRB 421, 425 (1993), citing Angelica Healthcare
Services, 284 NLRB 844, 853 (1987).
In Garney Morris, Inc., 313 NLRB 101 (1993), the Board
found that an employer had made an unlawful unilateral change
by adopting a new discipline form without bargaining with the
exclusive representative of its unit employees. The employer
already had been using a written form for 10 years but, the
judge found, “The new form was much more detailed. It pro-
vided space for a narrative description of the reason for the
warning, another place for a reply by the employee, and a place
for the ultimate determination by the supervisor.” Id. at 120.
The Board affirmed the judge’s conclusion that unilateral im-
plementation of the form violated Section 8(a)(5).
If a change from a simple warning form to a more compli-
cated one constitutes a “material, substantial and significant”
change in working conditions, the same logic would mandate
finding a material, substantial and significant change when the
Respondent switched to written warnings when previously it
had used no forms at all. In all likelihood, the psychological
effect of this abrupt change from spoken to written reprimands
probably was greater than that produced simply by changing
the form.
It should be stressed that Respondent did more than make a
private notation that an oral warning had been given, for refer-
ence if further disciplinary action were needed in the future.
Rather, the change involved providing the employee with a
piece of paper memorializing the disciplinary action.
Notwithstanding the common phrase “reduce to writing,” the
psychological impact of placing words on paper is to magnify
their effect, not to reduce it. Written words acquire a height-
ened credibility and aura of permanence, acknowledged by
such expressions as “get it in writing” and “see it in black and
white.”
In some areas, the law also accords greater respect to the
written word than to the spoken. For example, in many juris-
dictions, the law distinguishes between spoken defamation,
slander, and written defamation, libel. The Act itself includes,
within the definition of collective bargaining, “the execution of
a written contract incorporating any agreement reached if re-
quested by either party.” 29 U.S.C. § 158(d) (emphasis added).
I conclude that the change, delivering disciplinary warnings
to employees in written form, did increase the psychological
severity of the warning given for an infraction. Reprimands are
not CandyGrams, and it would be unlikely for an employee to
prefer receiving them on paper, with its greater permanence
than evanescent speech.
Therefore, I find that Respondent’s “formalization” of its
disciplinary procedure, replacing oral warnings with written,
does constitute a significant change in a condition of employ-
ment which is a mandatory subject of collective-bargaining.
The record also establishes that Respondent made this change
without notifying the Union, and without giving the Union the
opportunity to bargain about this change or its effects. Such
action violated Section 8(a)(5) and (1) of the Act.
D. July 20, 1995—Suspension of Autry, Burrell, and Scott
Paragraph 9 of the complaint alleges that about July 20,
1995, Respondent suspended Leon Autry, Donald Burrell, and
Larry Scott. Respondent admitted this allegation. However,
Respondent denied the allegation in paragraph 19 that it took
this action because the employees had formed, joined, or as-
sisted the Union and engaged in concerted activities, and to
discourage employees from engaging in such activities.
On July 20, 1995, Autry, Burrell, and Scott were unloading
coils of metal from railroad cars. The day did not get off to a
good start. The employee assigned to bring drinking water to
the jobsite did not arrive as soon as expected. According to
Burrell, he told their supervisor, Scott Johnson, that the men
GOLDEN STEVEDORING CO. 427
would unload only two cars, but would unload no more until
the water arrived. Burrell testified as follows on direct exami-
nation:

A. The morning of the—that you’re talking about, we
had—if I’m not mistaken, we had about 25 rails cars that
he wanted to do that day. And we told him—said, Yes.
We probably could get those, you know. And what hap-
pened was, they was late with the water.
And normally we could do two rail cars 20 minutes.
So I told the guy, I said, Well, we need to get some water
around here. Because it was hot. And I said, We going to
get started on doing these rail cars. I said, We’ll do two
rail cars. After that, we need some water.
Q. Now, did you—is this what you told to Scott John-
son?
A. Yes. Scott Johnson. Okay. Then he said, Fine.
We’ll get you some water around. And he told me that
Willy Brown was sick that morning, but they would get
some water. Okay. Then after that happened, we did the
two rail cars. The water came. We got water. (Tr. 97;
Emphasis added.)13

The record makes clear that the men never actually stopped
work. As Burrell testified, the water arrived before the time the
walkout would have begun.
However, a dispute then arose as to whether the men were
unloading the rail cars as expeditiously as they could. Under
certain circumstances, a crane can lift two large rolls of metal at
one time, but when the coils are the wrong distance apart the
longshoremen can put the necessary cable only through one
coil.
The General Counsel’s witnesses testified, in effect, that su-
pervision was demanding that they hook the cable around two
coils at time, when the spacing of the coils made the demand
impractical, impossible, or unsafe. Burrell’s testimony is repre-
sentative:

We started back on the next two rail cars. And all of a
sudden, Scott Johnson said, I want you all to get two cars
at a time. And I told him at the time, I said, Scott, we
can—we’ll get two when we can. Right now, they’re too
close together. We can only get one at a time.
I said, If we can get two, we’ll get two. He said fine.
So he left. We proceeded to go ahead on and do the work,
getting the one at a time like we could. And, say, oh, 15
or 20 minutes later, Jay Johnson come back, which he was
already down there with us, but he was on the ground.
And he come to us and he said, Well, I want you all to
get two. And I told him, I said, Well, we’ll get two if we
can. But right now, seeing that they’re close together, we
can’t get but one at a time. So we proceeded on to getting
the one at a time. [Tr. 972–973.]

13 Leon Autry corroborated Burrell’s account: “Mr. Burrell stated—
I think it was to Jay Johnson—that if we don’t get—if I don’t get no
water by the time I finish these two cars or something, I’m not going to
work any more.” (Tr. 1207.)
According to Burrell, one foreman, J. H. Johnson (“Jay”
Johnson), said he could hook up two coils to the crane at one
time, but spent about 15–20 minutes trying to do so without
success. (Tr. 974–975.) Although Johnson testified as a wit-
ness for the General Counsel, his testimony does not corrobo-
rate Burrell’s. I do not credit Johnson.14
The parties developed a mass of conflicting evidence about
whether or not the men could have and should have been at-
taching two coils to the crane cable at a time, but clearly, they
were only attaching one at a time.15
Superintendent Kenneth Johnson recommended to Gonzales
that Autry, Burrell, and Scott be laid off. Respondent did lay
off these three, and called in temporary workers to finish their
shifts. Johnson explained the reasoning for his recommenda-
tion in this testimony:

Q. Why did you tell him that?
A. Because they was dragging the job out. They were
goofing off. They weren’t working.
Q. How were they goofing off?
A. They were unloading one coil at a time.
Q. Were they always unloading one coil at a time that
day?
A. According to Scott Johnson, whenever I was pre-
sent whenever he called me there, they would unload two
coils. Whenever I left, they would unload one. At one
particular time, I think I was there, I drove up on them and
they had one coil hooked up and I asked them what was
the matter, couldn’t you unload two. And they could have.
[Tr. 129.]16
14 Frequently, Johnson answered questions “I don’t know” even
when the questions did not appear particularly difficult. Additionally,
based on the demeanor of the witnesses, I am not convinced that John-
son’s testimony was reliable.
Moreover, Johnson testified that Superintendent Kenneth Johnson
instructed him to hook up just one coil to the crane at a time. It is not
clear when Superintendent Johnson gave him this instruction, but it
may have been long before July 20, 1995. However, another witness,
Larry Scott, contradicted Johnson on this point.
15 For example, John B. Todd Jr., a mechanic for Respondent, sug-
gested that pulling two coils at a time was the normal practice rather
than the exception. Todd testified that on this particular date, “like I
say, they were pulling one at a time. They were told to pull two at a
time where available, which most of the time, you can pull two at a
time. The only time you only pull one is if you have an odd number or
if you want to break—if you’ve got three in a row, and you break one
out. And they consistently pulled one at a time.” (Tr. 1935.)
By comparison, Leon Autry’s testimony paints a picture of Superin-
tendent Kenneth Johnson making highly unreasonable demands on the
men:
Q. Did any—you started—you said you started at seven o’clock.
After seven o’clock do you recall any supervisor coming up to the rail
car where you were?
A. Kenny Johnson came around about 7:15, which is my supervisor,
and told us he wanted us to do twice as many rail cars by twelve
o’clock as we done all day the day before. We’d already did like 13
cars that whole day. So that mean he want us to do 26 cars by twelve
o’clock. (Tr. 1150; emphasis added.)
16 Johnson also testified that on this date, the employees in question
were “doing everything they could to drag the job out” such as standing
around standing around drinking water and talking when they should
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428

From the record, it is clear that the discipline imposed on
Autry, Burrell, and Scott involved two separate decisions. The
first was a decision to send them home on July 20, 1995, and
call in temporary workers to do the work. Clearly, Kenneth
Johnson made the decision authorizing the first-line supervisor
to send the three men home.
Johnson testified that he told the supervisor that if the men
kept pulling only one coil off the rail car at a time, “to knock
them off17 and call the temporary agent and get some men there
that would work.” (Tr. 2032.) This decision, made in the field,
was distinct from the later decision, approved by the Respon-
dent’s president, to issue disciplinary letters informing Autry,
Burrell, and Scott that they would remain suspended through
July 21.
Gonzales, rather than Superintendent Johnson, issued these
disciplinary letters, but Johnson testified that he recommended
that the three employees be disciplined for “goofing off” rather
than doing their work. Johnson also testified there was no other
reason why he recommended that they be laid off. However,
the warning letters which Respondent provided to Autry,
Burrell, and Scott gave a number of reasons:

You were called to come to work today at 07:00 hrs. at
North C to help unload rail cars loaded with 10 tons steel
coils.
You caused delays on the job on purpose, you refused
to carry on with instructions that you [sic] supervisors
gave you. You were told to hook the cargo to unloaded
[sic] 2 pcs. at the time and your [sic] only rigged one. Af-
ter the superintendent Mr. Kenneth Johnson moved away
temporarily from the working area you continued stretch-
ing the job as you could manipulate it.
You used abusive and foul language toward supervi-
sors on the job.
Take this as a second warning.
Yesterday you were reprimanded for your behavior
and actions verbally by Mr. Kenneth Johnson, [General].
Superintendent, by Mr. Ken Wear, Supervisor, and Mr.
Jay Johnson, acting Foreman.
Because of your behavior you were knocked off at
3:00 PM yesterday afternoon even when we had nine more
railcars to unload that we have now to pay demurrage on.
You were knocked off today at 8:30 AM due to your
refusal to follow instructions.
As a disciplinary action you are to be out of a job the
rest of the day today and tomorrow.

. . . .

Be hereby notified. This will be your last warning.
Next time you fail to follow instructions and refuse to
work, disrespect your superiors, disappear from the job or
slow the job down on purpose you will be terminated from

have been working. (Tr. 2028.) “In other words,” Johnson testified,
with apparent conviction, “they done got lazy.” (Tr. 2029.)
17 In the slang used on the Alabama docks, “knock off” has a less
sinister meaning than in detective novels. As an intransitive verb, to
“knock off” simply signifies quitting work for the day, and, used transi-
tively, it means telling employees it was the time to do so.
your employment with Golden Stevedoring Co., Inc. [GC
Exhs. 2, 3, and 4.]

These letters characterize the discipline as a “second warn-
ing,” and state that the previous day, July 19, 1995, the em-
ployees had been “knocked off” at 3 p.m. “even when we had
nine more railcars to unload that we have now to pay demur-
rage on.” However, the record establishes, and I find, that work
had stopped the previous afternoon because of an electrical
storm which made working around the crane dangerous.18
To determine whether these layoffs and disciplinary letters
violate Section 8(a)(3) of the Act, I apply the criteria estab-
lished by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, the General Counsel must first
make a prima facie showing “sufficient to support the inference
that protected conduct was a ‘motivating factor’ in the em-
ployer’s decision” to take the action which allegedly violated
Section 8(a)(3).
Once the General Counsel has made such a showing, the
burden then shifts to the employer “to demonstrate that the
same action would have taken place even in the absence of the
protected conduct.” Wright Line, 251 NLRB 1083, 1089. If
the General Counsel does not present evidence establishing
such a prima facie case, the respondent does not have to dem-
onstrate that it would have taken the adverse employment ac-
tion anyway.
The General Counsel may establish the prima facie case by
proving the following four elements: (1) The alleged discrimi-
natee engaged in union or protected concerted activities. (2)
The respondent knew about such activities. (3) The respondent
took an adverse employment action against the alleged dis-
criminatee. (4) There is a link, or nexus, between the protected
activities and the adverse employment action.
At the first step, the government must prove that the alleged
discriminatees engaged in union or protected concerted activi-
ties. At the time of the July 20, 1995 discipline, the Union’s
organizing campaign had just ended in an election victory for
the Union.
Moreover, for the reasons stated below, I conclude that man-
agement considered that Autry, Burrell, and Scott had been
engaging in concerted activities on July 20. Although that may
not have been the case, management acted on such a belief in
deciding to lay them off.
It should be stated that, based on Burrell’s testimony on
cross–examination, I do not find that he had conferred with
other workers about the water issue before he told the supervi-
sor that they would stop work if the water failed to arrive:

Q. Did you and the other men, or some of the other
men that you were working with, decide among yourselves
that you weren’t going to unload any more coils from any
more rail cars until you got water?
A. No, sir.
Q. You didn’t do that.
18 Superintendent Johnson testified that he sent everyone working
that job home after the lightning began. (Tr. 2361.)
GOLDEN STEVEDORING CO. 429
A. No, sir. [Tr. 1041–1042.]19

However, I also conclude that Burrell’s statement, threaten-
ing to cease work if the water had not arrived by a certain time,
constituted concerted activity protected by the Act. The Board
has held that individual action is concerted where the evidence
supports a finding that the concerns expressed by the individual
are the logical outgrowth of the concerns expressed by the
group. See Mike Yurosek & Sons, Inc., 306 NLRB 1037, 1038
(1992).
Here, the record amply reflects that other employees besides
Burrell were concerned about having drinking water at the job-
site. I find that the government has established the first Wright
Line element.
At the second step, the General Counsel must prove that Re-
spondent knew about the protected activities. The evidence
abundantly establishes this element.
Undoubtedly, the Respondent was particularly sensitive to
the issue of concerted activity because of the recent organizing
campaign which had culminated in the Union’s victory in the
July 12, 1995 election. In fact, management was so sensitized
to this subject that it perceived that Autry and Scott, as well as
Burrell, had threatened to cease work if the water did not arrive.
Thus, in explaining why he took the disciplinary action alleged
in paragraph 9 of the complaint, and admitted by Respondent,
Gonzales testified in part as follows:
A. They were unloading steel coil for breakout. And
they were told to do lifting of two coils at a time. And
they were lifting only one. And they were coming off the
car. At one point, they refused to work because they said
that they weren’t going back to work because there was no
ice water there. And they just kept talking and talking to
other people on the job. So I have to call them back. [Tr.
59; emphasis added.]20

Gonzales, who received his information from Superintendent
Kenneth Johnson, was wrong. The employees hadn’t refused to
work. Burrell had merely made the threat. However, based on
Gonzales’ testimony, I find that when he made the decision to
discipline Burrell, Autry, and Scott, he believed that they en-
gaged in a concerted refusal to work because they did not have
ice water. In sum, the government has proven the second ele-
ment of the Wright Line test.
The General Counsel also must demonstrate that the dis-
criminatees suffered an adverse employment action. The warn-
ing letters they received stated that as “a disciplinary action you
are to be out of a job the rest of the day today and tomorrow.”
(GC Exhs. 2, 3, and 4.) Clearly, this layoff constituted an em-

19 Autry’s testimony also suggests that when Burrell made this de-
mand for water he had not conferred in advance with other employees.
(Tr. 1207.)
20 Gonzales also gave as an additional reason for laying off the men,
that they were using foul language. Considering that these employees
were seasoned longshoremen working at a port, this stated reason was not
instantly convincing. Respondent tried to draw a distinction between
profane banter among employees and profanity directed at a supervisor in
a spirit of name calling. I still find the “foul language” reason to be a
makeweight which drains some of the credibility away from the other
reasons Respondent gave for the layoffs.
ployment action and it certainly was adverse. The government
has proven the third of the Wright Line criteria.
Finally, the General Counsel must show that there is a nexus
or link between the employees’ protected activities and the
adverse employment action. The testimony of Gonzales’ presi-
dent establishes this necessary link. Asked the reason for the
discipline, Gonzales answered, in part, “they refused to work
because they said that they weren’t going back to work because
there was no ice water there.” (Tr. 59.)
In addition to this admission, connecting the disciplinary ac-
tion with the perceived concerted activity, the record contains
ample evidence from which to infer a link between the recent
union activity and the discipline. The timing alone, 8 days after
the election, raises suspicion.
Even more significant, I believe, is the fact that the discipli-
nary letters claimed that the three employees had been sent
home for misconduct the previous day, July 19. However, the
record establishes that they stopped work early that day because
of a storm. Almost certainly, the Respondent would have been
aware of this fact, which leads to the conclusion that the state-
ment about prior discipline was knowingly false.21
When evidence indicates that a stated motive is a pretext, the
Board may infer that the real motive is unlawful. For this rea-
son, as well as the statements of Gonzales and the timing of the
discipline, I find that the General Counsel has established the
necessary nexus between the protected activities and the ad-
verse employment actions.
Therefore, the government has proven a prima facie case,
and the burden shifts to the Respondent to establish that it
would have taken the same action against the discriminatees
regardless of their protected activities. Respondent asserts that
Autry, Burrell, and Scott were deliberately slowing down the
work by removing only one coil of metal at a time when they
could have removed two.
A deliberate work slowdown on the job may involve con-
certed activity by a number of employees, but it is not protected
by the Act. Unlike a strike, in which employees refuse to work
but also don’t get paid, in an on-the-job work slowdown the
employees still draw a paycheck while failing to perform the
work expected in return. Therefore, Respondent presented evi-
dence to show that Autry, Burrell, and Scott were deliberately
slowing down the work by removing only one coil from a rail
car when they could have been attaching the cable to two.
Under Wright Line, the Respondent must show that it would
have taken the same disciplinary action even if the alleged dis-
criminatees had engaged in no protected activity. That means
the Respondent does not have to prove that the misconduct
actually took place, but only that it held a reasonable belief that
it did, and acted on that belief in good faith.22
21 It is not clear that Respondent’s president, Gonzales, either pre-
pared or signed the disciplinary letters. Although they bear a rather
illegible signature, which purports to be that of Gonzales, the name
below the signature is spelled “Gonzalez” with a “z” rather than an “s.”
(GC Exhs. 3, 4, and 5.) However, Respondent is bound by the discipli-
nary letters it issued to the discriminatees, regardless of who prepared
them.
22 However, if the asserted misconduct arose out of the alleged dis-
criminatees’ protected activities, for example, if the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
The parties developed a substantial body of testimony, con-
flicting in various details, concerning whether or not the men
should have been attaching one or two coils of metal to the
crane cable on that particular day. Considering the amount of
time that elapsed between the event and the hearing, none of
the testimony can be considered 100 percent reliable. How-
ever, I believe that the most accurate account may be found in
the testimony of Larry Scott, one of the three alleged discrimi-
natees.
Respondent’s attorney subjected him to an exhausting cross-
examination, which afforded a greater opportunity to take note
of Scott’s demeanor and composure “under fire.” Based on
those observations, I credit his testimony about what happened
while he was unloading the rail cars on July 10, 1995. Al-
though it was not in his apparent interest, Scott testified that it
was not unusual for longshoremen to attach two coils to the
crane cable at one time:

Q. Would you ever lift one coil when you could lift
two?
A. No, sir.
Q. Two is the way to do it?
A. Yes, sir. [Tr. 766.]23

However, on July 20, 1995, Scott’s testimony made clear, it
was not possible to get the cable through both spools of metal.
As Scott testified, Foreman Jay Johnson tried to do so without
success.
Nonetheless, Superintendent Kenneth Johnson appeared in-
tent on doing the task in that manner. His attitude is quite un-
derstandable, considering that Respondent had undertaken to
unload 95 rail cars full of the heavy coils, and a storm the pre-
vious day had forced the men to cease work early. Moreover, it
cost Respondent demurrage penalties if the unloading took too
long.24
Johnson clearly was trying to make up for lost time, and was
not about to take “can’t do” for an answer. Scott testified, in
part, as follows:

Q. What did Kenny Johnson say when he came up to
the rail car?
A. He told us to pull two and we told him we couldn’t,
you know. On some of them, we could get two. On some
of them, we couldn’t.
Q. Who told him that?
A. Donald Burrell. You know, all of us. I told him, see,
it’s spaced out. If I had dropped the chain back up in the
rail car, I showed him, I went through the hole and I pulled
the chain back and the chain only come back so far. I said,

claimed that they engaged in picket-line misconduct, the Board uses the
decisional framework of NLRB v. Burnup & Sims, 379 U.S. 21 (1964),
rather than Wright Line. See E. W. Grobbel Sons, 322 NLRB 304 (1996).
In this case, the alleged misconduct, a slowdown at work, does not arise
out of the discriminatees’ protected activities. Philips Industries, 295
NLRB 717, 732 (1989).
23 The witnesses, including Scott, were sequestered during the hear-
ing. Scott’s testimony presumably is uninfluenced by any knowledge
of how other witnesses answered.
24 The disciplinary letters to Autry, Burrell, and Scott referred to
these demurrage penalties. (GC Exhs. 3, 4, and 5.)
we can’t get the two. He said, well, if you all can’t get the
two, I can get somebody that can, you know. So we went
ahead and got the one. He left. Then Scott Johnson called
him back again on the radio.
Q. How do you know that?
A. He was standing right there in front of us.
Q. Scott Johnson was?
A. Yes, sir. He called him back and he told him, hey,
they are still pulling the one. Kenny came back again. He
said, I’ll tell you what, just get your ass off the rail car. He
said, I’ll get somebody to get them. So, we got off. We
went on to sit down under the little shack.
Q. Okay. Hold on. Before you got off the rail car, did
you hear anyone use any foul language on the rail car?
A. No, sir.
Q. Not at all?
A. No, sir. [Tr. 725–726; emphasis added.]

I conclude that Kenneth Johnson also was testifying truth-
fully when he expressed his opinion that the men were “goofing
off.” When he was present at the unloading site that day, the
men would appear to be hooking two coils to one cable. Yet he
heard from Foreman Scott Johnson that whenever he, Kenneth
Johnson, left the jobsite, the men would go back to unloading
just one coil.
Superintendent Johnson’s own observations seemed to con-
firm the foreman’s report. “At one particular time,” he testi-
fied, “I think I was there, I drove up on them and they had one
coil hooked up and I asked them what was the matter, couldn’t
you unload two. And they could have.” (Tr. 129.)25
From his testimony and my observations of him as a witness,
Kenneth Johnson did not appear to have particularly strong
feelings about the Union. In all likelihood, few things in life
disturbed his equilibrium. But undoubtedly, one of those few
was an employee who was not serious about his work. Such an
attitude would trigger in Johnson the unique feeling of exas-
peration usually observed in the parent of a teenager.
A suspicion that his men were playing games with him, go-
ing through the motions without being serious about accom-
plishing the assigned job, could push this sense of frustration
into the red zone. And that is what seemed to be happening on
July 20, 1995, when the crew only appeared to be following
Johnson’s instructions when he was there to watch.
From the perspective of the crew, however, the facts were
quite different. They believed it impossible to do the job the
way Johnson wanted them to do it or, if not absolutely impossi-
ble, so time consuming it would be counterproductive. After
all, one foreman, Jay Johnson, had wasted about 20 minutes in
an unsuccessful attempt to hook two coils onto one cable. Yet
Kenneth Johnson would appear at the site and demand that they
do the work that way.
Clearly, Johnson’s frustration at the rate of progress pro-
pelled him to call in temporary workers to replace Autry,
25 Johnson also testified that as he was walking off after talking to
the men, someone said “f— you.” (Tr. 2033, 2362.) I credit this testi-
mony. However, I find that when Johnson sent the regular employees
home on July 20, 1995, and called in temporary workers to finish the
job, his only motive was to get the tasks done on time.
GOLDEN STEVEDORING CO. 431
Burrell, and Scott on July 20, 1995. The evidence does not
support a finding that when he took this step Johnson was mo-
tivated by animus towards the Union.26
Similarly, the record does not establish that he laid them off
because Burrell said they would stop work if the water did not
arrive. Indeed, Johnson credibly testified that he did not learn
about the “water flap deal” (as he called it) until after he sus-
pended the three. (Tr. 2033, 2363.)27
With respect to the layoff on July 20, 1995, I find that Re-
spondent has proven that it would have taken the same action
against Autry, Burrell, and Scott regardless of their union and
protected concerted activity. Superintendent Johnson would
have laid off any employee whom he had perceived to be work-
ing slowly when there was so much urgent work to be done.
However, the disciplinary actions went further than merely
laying off the three employees on this one day when temporary
workers were summoned to do the job. The July 20, 1995 let-
ters to Autry, Burrell, and Scott specifically stated, “As a disci-
plinary action you are to be out of a job the rest of the day to-
day and tomorrow.” (GC Exhs. 2, 3, and 4.) Each letter ended
with a notice that it was a “last warning” and concluded

Next time you fail to follow instructions and refuse to
work, disrespect your superiors, disappear from the job or
slow the job down on purpose you will be terminated from
your employment with Golden Stevedoring Co., Inc. [GC
Exhs. 2, 3, and 4.]

The letters do not mention Burrell’s threat of concerted ac-
tivity, but Gonzales mentioned it when testifying about the
reasons for the discipline. (Tr. 59.) Moreover, the disciplinary
letters threatened to terminate the employees the next time they
refused to work or disrespected superiors. They made no ex-
ception for activities protected by the Act.
The burden of proof clearly rests on Respondent to establish
that it would have imposed the same discipline even in the ab-
sence of protected activities. Based on the testimony of Gonza-
les and the language of the disciplinary letters, I am not con-
vinced that Respondent would have taken the same action
against Autry, Burrell, and Scott regardless of the recent union
campaign and Burrell’s statement that the employees would
stop work unless water arrived. Perhaps that is so, but I do not
believe Respondent has proven it by a preponderance of the
evidence.

26 Some of the witnesses identified with the Union indicated that af-
ter Autry, Burrell, and Scott were laid off on July 20, 1995, the tempo-
rary workers showed up very quickly to replace them. Such a rapid
response could be consistent with a prearranged plan to remove the
alleged discriminatees from the job quickly while minimizing the im-
pact on production. However, Scott estimated the intervening time to
be longer, between 30 minutes and an hour. (Tr. 768.) I credit this
testimony.
27 Significantly, on direct examination by the General Counsel,
Johnson testified that he laid off Autry, Burrell, and Scott because they
were “dragging their feet on the job” but did not mention Burrell’s
statement that they would stop working if they did not get drinking
water. (Tr. 129.) Johnson’s concern clearly focused on getting the 95
rail cars unloaded, not on retaliating against employees for concerted
activity.
Therefore, with respect to the disciplinary letters themselves,
which placed the employees on a “final warning” status, and
the period of suspension after July 20, 1995, I find that Re-
spondent discriminated against Autry, Burrell, and Scott in
violation of Section 8(a)(3) and (1) of the Act.
E. July 1995—Creation of Impression of Surveillance
and July 24, 1995—Written Warning
to Employee Carey Wyatt
Paragraph 7(a) of the complaint alleges that “About July
1995, on a date not more precisely known, Respondent, by
Kenneth Wayne Johnson, created an impression among its em-
ployees that their union activities were under surveillance.”
This alleged 8(a)(1) violation will be considered with the al-
leged violation of Section 8(a)(1) and (3) raised by paragraphs
10, 19, and 28 of the complaint.
Paragraph 10 of the complaint alleges that about July 24,
1995, Respondent issued a written warning to Carey Wyatt. In
its answer, Respondent admitted that it “furnished Carey Wyatt
with a copy of a ‘disciplinary notice’ on July 27, 1995,” but
otherwise denied the allegations.28 It denied the allegations in
paragraph 19, that it had given Wyatt this warning to discour-
age union activities, and it also denied the conclusion alleged in
paragraph 28, that this action violated Section 8(a)(1) and (3) of
the Act.
Wyatt testified that “about a week or so” before receiving the
written warning on July 27, 1995, he and Superintendent John-
son were discussing “the Union and all” and Johnson “told me
to watch my back, to watch it close, that they will be out to get
me.” (Tr. 540.)29
28 The choice of words used by Respondent in answering the com-
plaint may have some significance. Instead of admitting that it “issued”
such a warning to Wyatt, it admitted it “furnished” him with a copy of
it. Perhaps Respondent wished to emphasize its position that its disci-
plinary policy had not changed, but instead, it was merely writing down
the warnings which previously had been given orally. Nonetheless, I
have concluded that this “formalization” (as Respondent called it)
resulted in harsher discipline being issued because a written warning
has greater impact than an oral one.
In deciding the issues raised by par. 10, I will rely on my conclusion
that there is no significant difference between furnishing an employee
with a copy of the memo which memorialized discipline and issuing the
disciplinary memo directly to him.
29 Wyatt’s testimony generally accords with his pretrial affidavit ex-
cept to the date of Johnson’s alleged statement. The affidavit, given on
August 16, 1995, places the date of the statement as a week before the
election, which was July 12, 1995, rather than a week before the July
27, 1995 disciplinary notice. In his affidavit, Wyatt stated in part as
follows:
About a week before the election, I was in my office, which I
share with the other checkers and Kenny Johnson. At this time
Kenny said to me “As a friend, I’m warning you to watch your
step. They’re going to be out to get you.” He used some exam-
ples like your wife coming up here 5 or 10 minutes before lunch,
letting the guys go to lunch 5–10 minutes early, and taking them
to get their cars while they are on the clock. I told him that I was
going to watch my back and he didn’t have to worry about that.
This is all I remember about this conversation. We were the only
2 people in the office at the time. [R. Exh. 19, at 3.]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
Johnson did not deny such a statement. Although the trier-
of-fact may reject uncontradicted testimony, I believe that be-
fore doing so, the record should establish some persuasive rea-
sons to find the testimony unreliable. There are no reasons,
extrinsic to the testimony, for rejecting it, and I credit Wyatt.
I find that Johnson offered this information to Wyatt in a
friendly spirit, not to instill in Wyatt a feeling that he was under
surveillance or otherwise intimidate him in the exercise of Sec-
tion 7 rights. However, intent generally is not an element of an
8(a)(1) violation. Rather, the Board applies an objective stan-
dard to determine the effect that a statement reasonably would
have on employees.30
Here, the statement reasonably would create the impression
that employees’ union activities were under surveillance, and
that they could suffer retaliation for engaging in such activities.
Therefore, I conclude that the statement interferes with, re-
strains, and coerces employees in the exercise of Section 7
rights. I find that it violates Section 8(a)(1) of the Act, as al-
leged in paragraph 7(a) of the complaint.
Turning to paragraph 10 of the complaint, the Respondent
does not dispute that on about July 27, 1995, it gave Wyatt a
memo from Superintendent Kenneth Johnson to President Gon-
zales. This memo stated:

I told Mr. Wyatt to be at work today at 07:00 and Mr.
Wyatt showed up for work at 07:35 with no phone calls to
inform him would be late. He said he forgot to set his
alarm clock.

Mr. Wyatt has been informed that this is the second
time in eight days period that he has failed to show up to
work on time. [GC Exh. 15.]

Wyatt did not remember whether or not he had been 35 min-
utes late on that day, as stated in the memo. He testified, “I do
not recall. I knew I had been late one morning but I do not
remember the amount of time.” (Tr. 544.)
In determining whether this warning violated Section 8(a)(1)
of the Act, I will apply the Wright Line analytical framework
described above. At the first step, I must examine whether
Wyatt had engaged in union activity or concerted activity pro-
tected by the Act.
Wyatt testified that he made the initial contact with the Un-
ion and got 18 to 19 people to attend a meeting with Union
Organizer George Bru. (Tr. 530.) He also testified that he
wore a hat with a union emblem to work every day, and handed
out 50 union hats and more than 100 union pins. (Tr. 532–
534.)
I am skeptical about parts of Wyatt’s testimony. Wyatt
stated in an August 16, 1995 affidavit that “To my knowledge,
prior to about 3 days before the election, Edgard [Gonzales]
had no concrete knowledge about who was a union supporter.”
(R. Exh. 19.)

30 See, e.g., Waco, Inc., 273 NLRB 746, 748 (1984). There are ex-
ceptions. See, e.g., Tualatin Electric, Inc., 319 NLRB 1237 (1995) (an
employer’s “no moonlighting” policy violated Sec. 8(a)(1) where the
evidence established that the respondent intended to use it to exclude
job applicants sent by the union during a “salting” campaign).
If Wyatt had worn the union hat to work every day as he
claimed at trial, the Respondent clearly would have been aware
that he supported the Union. Moreover, if even a fraction of
the employees who received hats and pins wore these items,
their support for the Union could not have escaped Respon-
dent’s notice.
Another witness, J. H. (“Jay”) Johnson, testified that he had
seen Wyatt wearing a union hat while working at Golden. (Tr.
702–703.) In a pretrial affidavit, however, Johnson had stated
“I have never worn any union buttons, badges, or other para-
phernalia [sic]. I don’t remember any employee wearing any-
thing, eithe.” (R. Exh. 21; emphasis added.)
Because of these contradictions, I greatly discount Wyatt’s
testimony about the extent and notoriety of his protected activi-
ties. However, the record does not contradict his testimony that
he made the initial contact with the Union and set up the first
meeting of employees with the union organizer. Therefore, I
conclude that the General Counsel has proven the first element
of the Wright Line test.
The second element the government must establish is that the
Respondent knew about Wyatt’s protected activities. Notwith-
standing that I believe Wyatt exaggerated while testifying about
his union activities, I conclude that Respondent did know that
he supported the Union. Superintendent Johnson’s advice to
Wyatt, to “watch his back” and “watch it close” lends support
to this conclusion. I find that the General Counsel has estab-
lished the second Wright Line element.
At the third step, the General Counsel must prove that Wyatt
suffered an adverse employment action. A disciplinary warn-
ing certainly constitutes such an action. The government has
established the third Wright Line element.
However, I conclude that the General Counsel has not
proven the final requirement, a link or nexus between the pro-
tected activity and the discipline. Wyatt did not deny being 35
minutes late on the day in question, but testified that he could
not remember. I find that he was late, as described in the disci-
plinary memo.
Moreover, Superintendent Johnson attaches great importance
to punctuality. I observed the quiet pride he displayed when
testifying that he had not been late to work since 1962. (Tr.
1994.) I find that Johnson did not treat Wyatt any differently
than he would have treated any other employee who arrived for
work 35 minutes late. In sum, I find that the government has
failed to establish the required link between Wyatt’s protected
activities and the discipline taken against him.31
Therefore, I find that Respondent did not violate Section 8(3)
by issuing the warning to Wyatt, and recommend that this alle-
gation be dismissed. However, I note that issuance of this writ-
ten warning results from the unlawful unilateral change in dis-
31 My finding that Johnson did not treat Wyatt disparately would
also lead to the conclusion that Respondent could meet its burden of
rebutting a prima facie case, by demonstrating that it would have taken
the action against Wyatt regardless of protected activities. However, I
believe the evidence falls short of making such a prima facie case, and
therefore, no burden fell on Respondent to rebut it.
GOLDEN STEVEDORING CO. 433
ciplinary procedures which violates Section 8(a)(5) and (1) of
the Act.32
F. July 25 and 26, 1995—Written Warnings
Issued to Donald Burrell
Paragraph 11 of the complaint alleges that about July 25 and
26, 1995, Respondent issued written warnings to Donald
Burrell. Paragraph 19 alleges that Respondent was unlawfully
motivated in issuing these warnings, and paragraph 28 alleges
that the warnings violated Section 8(a)(3) and (1) of the Act.
Respondent admitted that on July 25, 1995, it “furnished
Donald Burrell with a memorandum from Kenneth Johnson to
Edgard H. Gonzales relating to Donald Burrell” and that on
July 26, 1995, it “furnished Donald Burrell with a copy of a
‘Disciplinary Notice’” but otherwise denied paragraph 11. It
also denied that it violated Section 8(a)(3) and (1) of the Act.
At the outset of this discussion, I will note that these written
warnings, like the one issued to Wyatt on July 24, 1995, were
the result of a unilateral change the Respondent made without
notifying and bargaining with the Union, in violation of Section
8(a)(5) and (1) of the Act. (See below.) Therefore, the written
warnings must be rescinded to remedy the 8(a)(5) violation.
Here, I will consider whether they also constitute discrimina-
tion in violation of Section 8(a)(3). Since the conclusions I
reach do not affect the remedy, this discussion will be brief.
The first of the warnings concerned Burrell being late to
work; the second concerned forklift safety. I will discuss them
in sequence.
On July 25, 1995, Burrell received a copy of a memorandum
from Superintendent Johnson to President Gonzales. It stated:

This is to inform you that yesterday July 24, 1995, Mr.
Donald Burrell was told to come to work July 25, 1995 at
07:00 a.m., and he showed up at 07:45 a.m. When I asked
him for a reason of his delay his answer was that he over
slept. I had to send him back home since somebody else
had taken his place already.

32 As stated above, placing this warning in written form does consti-
tute a departure from Respondent’s preelection practice, and is evi-
dence that the Respondent made the unlawful unilateral change alleged
in pars. 23, 25, 26, and 29 of the complaint. Under certain circum-
stances, where an employer has committed widespread unfair labor
practices, a unilateral change in disciplinary procedure can violate Sec.
8(a)(3) as well as Sec. 8(a)(5). For example, in Garney Morris, Inc.,
above, the Board adopted the judge’s finding that “each and every
time” the Respondent issued discipline using a more onerous form it
unilaterally adopted, that action violated Sec. 8(a)(3) as well as Sec.
8(a)(5). Garney Morris, Inc., 313 NLRB at 120.
However, in Outboard Marine Corp., 307 NLRB 1333, 1337 (1992),
the Board reversed a somewhat similar finding by the judge. The
Board stated that “conduct indicative of a statutory failure to bargain in
good faith does not establish discriminatory conduct, in violation of
Sec. 8(a)(3). Unlike the judge, we are not persuaded that the Respon-
dent’s overall animus and conduct prove a preconceived plan to rid the
Calhoun plant of the Union and that, therefore, the unlawful impasse
was necessarily discriminatory.”
Based on the present record, the evidence of animus is insufficient to
provide a basis for concluding that merely issuing the warning in writ-
ten form violated Sec. 8(a)(3) as well as Sec. 8(a)(5).
Should this happen again I would have to terminate
Mr. Burrell’s employment with this company.

Please note this is one more warning that Mr. Burrell is
receiving concerning his job performance. [GC Exh. 5.]

At the hearing, Burrell admitted that he had been late on the
day in question. However, he testified that he was 5 or 10 min-
utes late, not the 35 minutes stated in the warning memorandum.
Burrell further testified, in part, as follows:

Q. Okay. And when you came in to work, who did
you talk to?
A. When I got to work, I talked to [Supervisor] Ken
Wear, and—
Q. What did you tell him?
A. I told him that my—that I was—I said I overslept, if
I’m not mistaken —that I overslept, and I’m here now. He
said, Well—if I’m not mistaken, he told me, he said, Well,
Kenny Johnson has already filled your spot. I got to talk
to him. So—
Q. Then what happened?
A. And he called him on the radio. It was about 15 or
20 minutes later, Kenny Johnson did come. And every-
body—wasn’t nobody around at the time but me and
Kenny. And the first thing he asked me was why was I in-
fluencing these other guys to go Union, you know—to be
dealing with the Union.
And I said, Boss, what you mean by influencing these
guys? These guys are grown men. I can’t influence them.
And at that particular time, somebody else walked up.
And he didn’t want nobody to hear that conversation but
me and him. So the conversation stopped.
And he told me that he had filled my spot, to go home
and come back in the morning. [Tr. 986–987; Emphasis
added.]

Two procedural matters must be discussed in connection
with the testimony excerpted above. The first concerns the
question which Burrell attributes to Superintendent Johnson,
asking why Burrell was “influencing these other guys to go
Union.” The complaint does not allege this statement to be
unlawful interrogation, or, in fact, to be any violation of the
Act. The complaint does not refer to the quoted question at all.
The quoted question would appear to be unlawful interroga-
tion of a employee about his union activities. However, based
in part on my observations of the witnesses. I do not credit
Burrell’s testimony and therefore do not find that Johnson
asked the question Burrell attributes to him.
The second procedural matter concerns the Respondent’s
motion at hearing to strike the testimony quoted above, on the
basis that there is no allegation in the complaint that, by send-
ing Burrell home on this date, it suspending him in violation of
the Act. The General Counsel agreed with Respondent that the
complaint did not allege that Respondent had sent Burrell home
unlawfully on this date, and the testimony merely completed
the story about what happened to Burrell at that time. (Tr.
988.) Denying the motion to strike, I accepted the testimony
for that purpose.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 434
Even if the complaint had alleged it to be violative, I would
not find that the Respondent violated the Act by failing to offer
Burrell work on this date. Burrell admittedly was late to work
and, his own testimony indicates, the Respondent already had
filled his position with another person. Clearly, Respondent
had a legitimate business interest in having someone report to
work at the appointed time, whether it was Burrell or someone
else.
As to Burrell receiving a warning for being late, I note again
that Superintendent Johnson, who hadn’t been late to work
once in 35 years, was a stickler for punctuality. For the same
reasons discussed above in connection with the July 24, 1995
warning issued to Wyatt, I conclude that the General Counsel
has not established a prima facie case of discrimination.
Under the practice in effect before the election, Johnson
would have “chewed out” Burrell orally, rather than given him
a written memorandum. The evidence establishes that such an
oral reprimand would not have violated the Act, and that the
only violation arises because of the unilateral change in the way
warnings were issued. Therefore, I recommend that the allega-
tion that this warning violated Section 8(a)(3) be dismissed.
On July 26, 1995, Burrell received another warning. This
one concerned Burrell driving a forklift even though not li-
censed to do so, and took the form of a memo from Foreman
Jay Johnson to Superintendent Kenneth Johnson. It stated as
follows:

Mr. Burrell was working on the M/V “ARATI” today.
He is a labor[er] and while he was in the hole [sic] of the
ship he was spotted by his job foreman driving a forklift in
the hole [sic]. He was immediately told to get off of the
lift, that was not his job, not to get back on it.

At approximately 21:45 Mr. Burrell was then seen
again on the forklift that is not his job and he is not a fork-
lift operator. I felt he was being insubordinate and ignored
the foreman’s instructions. [GC Exh. 6.]

The parties developed a hefty body of evidence concerning
this issue, including testimony from a number of witnesses
about the events in question and the driving of forklifts in gen-
eral. However, as noted above, the resolution of this 8(a)(3)
issue will not affect the remedy in this case, because the issu-
ance of the written warning constituted an unlawful unilateral
change under Section 8(a)(5) of the Act.
Therefore, I will address this allegation very briefly. In fact,
the key testimony in resolving it comes from Burrell himself.
From that testimony it is clear, and I find, that Burrell knew
that he wasn’t supposed to drive a forklift but thought he could
do it without getting caught. He got caught.
On July 26, 1995, Burrell and the other members of his crew
had a long day. They started work at 7 a.m. that day and were
still on the job at 9:45 p.m. The crew wanted to finish but the
forklift driver had to use the restroom. As Burrell stated in a
pretrial affidavit and admitted during the hearing, he “knew that
if he left he wouldn’t be coming back because it takes 15 min-
utes to climb up out of the hol[d]” to get to the restroom on the
dock. Eager to finish the day’s work, Burrell got on the fork-
lift. (R. Exh. 37.)
Burrell testified, and other witnesses confirmed, that Presi-
dent Gonzales had a policy that only licensed forklift drivers
operate that equipment. From the record, I infer that Gonzales
felt just as emphatically about this policy as Kenneth Johnson
felt about punctuality.
In his testimony, Burrell admitted that he was aware of Gon-
zales’ forklift policy. When asked on direct examination if he
were aware of the forklift policy, Burrell replied, “The only
policy that we had on the job was not to let Edgard Gonzales
see you drive it.” (Tr. 992–993.)33
Although Burrell had been told not to drive a forklift when
Gonzales was “on the boat,” he chose to do so on a night when
Gonzales indeed was on the boat. In fact, Burrell admitted
having seen Gonzales that evening on the vessel. Yet even at
hearing, Burrell did not believe Gonzales had seen him commit
the infraction:

Q. You don’t think he saw you.
A. He did not see me.
Q. How do you know he didn’t see you?
A. Because, like I said, I sat there and I watched him
leave. And it was dark at the time. So, you know, when
it’s dark and you’re on that ship, you barely can see ex-
actly who’s up top. [Tr. 1091.]

Clearly, Burrell guessed wrong. I do not find it to violate the
Act for the Respondent to discipline an employee who knew
that an action was against the rules but did it anyway, thinking
he could get away with it in the dark. Applying the Wright
Line analysis here in the same manner as described above, I
find that the General Counsel has not established a prima facie
case.
The only violation here arises from the unilateral change of
issuing disciplinary warnings in writing, and not from the dis-
cipline itself. Therefore, I recommend that the Section 8(a)(3)
allegation be dismissed.
G. August 2, 1995—Alleged Unilateral
Reduction in Hours Worked
Paragraph 12 of the complaint alleges that “since about Au-
gust 2, 1995, Respondent has reduced the work hours of its
employees by utilizing temporary employees to perform work
previously performed by bargaining unit members.” Paragraph
28 alleges that this reduction discriminated against employees
in violation of Section 8(a)(3), and interfered with, restrained,
and coerced them in violation of Section 8(a)(1) of the Act.

33 Burrell’s testimony on cross–examination was even more definite:
Q. You knew not to drive that forklift while Edgard was
there, didn’t you?
A. Yes, sir.
Q. Why did you know not to drive that forklift in front of Ed-
gard Gonzales?
A. I had been told by Jay Johnson, Scott Johnson, Kenny
Johnson, Ken Ware not to drive the forklift if Edgard is on the
boat—that not let him see you drive it.
Q. All right. And over what period of time did all of your su-
pervisors tell you not to drive that forklift if Mr. Gonzales was on
the boat?
A. Since I’ve been there. [Tr. 1090–1091.]
GOLDEN STEVEDORING CO. 435
Paragraph 24 of the complaint alleges that “about August 2,
1995, Respondent “changed its policy for assignment of work
at its facility thereby reducing the hours of employment for
bargaining unit members.” Paragraphs 25, 26, and 29 allege
that Respondent took this action without notifying the Union or
affording it the chance to bargain about the changes, that the
changes were mandatory subjects of collective bargaining and
that accordingly, the alleged unilateral change violated Section
8(a)(5) and (1) of the Act.
1. Sufficiency of pleadings and proof
A procedural matter should be discussed first. Before, dur-
ing, and after the hearing, the Respondent has contended vigor-
ously that the General Counsel failed to place it on notice of the
specific conduct the government considered unlawful. As I
understand the thrust of the Respondent’s argument, it asserts
that the General Counsel never identified the work which the
Respondent supposedly took away from employees in the bar-
gaining unit and assigned to temporary workers from a labor
service.
However, the General Counsel contends that the government
does not have to point to any specific task that the Respondent
took away from Employee “X” and assigned to Temporary
Worker “Y.” According to the General Counsel, the govern-
ment can meet its burden of proof with statistical evidence
showing a reduction in the number of hours worked by regular
employees as compared to the number of hours worked by
temporary employees during a given period.
Thus, in opposing the Respondent’s motion to dismiss these
allegations, the General Counsel stated on the record “it’s the
General Counsel’s position that we’re not required to specify
the different duties that the temporary employees did in the
place of the bargaining unit employees.” (Tr. 1893.)
Notwithstanding this argument, I believe that proving what
duties the temporary workers performed constitutes an essential
element of the General Counsel’s case. Unless the government
proves that the temporaries performed work which previously
had been assigned to bargaining unit employees, it cannot es-
tablish that there has been a unilateral change in the terms and
conditions of employment in the bargaining unit.
Stated another way, the General Counsel bears the burden of
proving the unilateral change in terms and conditions of em-
ployment alleged in the complaint. The only way the govern-
ment can prove that any change occurred is by establishing
what the terms and conditions of employment were before the
alleged change, also establishing what the terms and conditions
of employment became after the change, and then comparing
the two.
Additionally, not every unilateral change in a term or condi-
tion of employment produces a duty to notify the Union and
bargain with it. Only a change in a mandatory subject of bar-
gaining creates this obligation. The General Counsel bears the
burden of proving that an alleged change did involve a manda-
tory subject of bargaining. It is difficult to imagine how the
General Counsel could carry this burden without proving the
specific condition of employment which had changed.
However, a clear distinction must be drawn between the
specificity required for an adequate pleading and the specificity
needed to carry the burden of proof in the courtroom. I con-
clude that the complaint placed the Respondent on sufficient
notice to satisfy due process requirements because it alleged the
general elements the government had to prove. For example, it
alleged that the Respondent unilaterally had changed manda-
tory terms and conditions of employment.
Under the “notice pleading” standards which are now widely
accepted, the complaint need not contain a wealth of detail
about the facts which the government intends to prove at trial.34
In sum, I find that the complaint does not deny the Respondent
its due process rights.
At trial, however, the government still must present evidence
to prove each element of its case, including that a unilateral
change occurred and that it involved a mandatory subject of
bargaining.
To satisfy the government’s burden of proof, the General
Counsel necessarily must identify which terms and conditions
of employment have changed, and how. At the hearing, how-
ever, the General Counsel had some difficulty describing ex-
actly what had changed:

MR. ROGERS: Our allegation goes to the idea that the
—after the election, the Respondent began to reduce the
number of hours worked by its bargaining unit employees
and any—but they still had the same amount of work to
do, and increased the number of hours worked by tempo-
rary employees as a way to punish the employees for vot-
ing the Union in, basically.
JUDGE LOCKE: Now, is this with respect to any par-
ticular work, like the recoupment, or—
MR. ROGERS: The only time the temporary —
JUDGE LOCKE—any particular job classification?
MR. ROGERS: Well, the only time the temporary
employees are used on any sort of large basis is when
they—this is based on my reading of the record, based on
my reading of the documents. And I think that Respon-
dent even mentioned the same thing earlier. The only time
the temporary employees are used on anything other than a
one, two or three basis is when they have ships come in.
And you can tell from the payroll records. There will
be—the payroll records will be one page, one page, one
page, and then there will be three pages. And you can tell
when the temporary—when the amount of work increases.
So as a matter—as a practical matter, the times when
it—when this activity happened were when ships were, I
think, either being loaded or unloaded. At any rate, the re-
cords show—will show when a lot of the temporary em-
ployees were hired day by day. [Tr. 1905–1906.]

However, even assuming that the payroll records relied on
by the General Counsel did show an increase in the hours
worked by temporary employees, these documents do not de-
scribe what the temporary employees were doing. The records

34 Thus, the General Counsel argued, “it’s just not necessary that we,
in the pleadings, identify the duties that the temporary employees did in
place of the bargaining unit employees.” (Tr. 1894.) Literally, that is
true. There is no requirement that these job duties be identified in the
complaint. But having no obligation to describe evidence in a pleading
does not eliminate the duty to present such evidence at trial.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 436
indicate that the temporaries did something, that Respondent
kept track of how much time they spent doing it, and, presuma-
bly, that Respondent was preparing to pay them for it. How-
ever, the time records do not establish whether the temporaries
were performing bargaining unit work.35
Thus, proving an increase in hours worked by temporary
employees does not, by itself, establish a prima facie case that
either Section 8(a)(3) or (5) has been violated.
With respect to the 8(a)(3) allegation, the complaint alleges
that Respondent reduced the hours of its employees unlawfully
as a means of discriminating against them. Although the com-
plaint asserts that Respondent used temporary employees to
perform the work the regular employees would have done, that
averment concerns the means allegedly used to accomplish the
discrimination, and not the discrimination itself. The 8(a)(3)
prima facie case still must be established by proving the Wright
Line elements discussed above.
With respect to the 8(a)(5) allegation, the General Counsel
bears the burden of proving that the temporary employees were
performing bargaining unit work in a way, or to an extent, that
they did not before the election. As discussed above, the Gen-
eral Counsel cannot satisfy this burden simply with records
showing that on some days, temporaries worked more hours
than they used to work. Evidence must show what kind of
work they were doing, that the performance of this work by
temporaries rather than bargaining unit employees changed a
term or condition of employment that was previously in effect,
that the changed term or condition of employment was a man-
datory subject of collective bargaining, and that the Respondent
made the change without notifying the Union and affording it
the opportunity to bargain about the change and its effects.
2. The evidence
As stated above, the General Counsel relies largely on the
Respondent’s payroll records to establish the violations alleged
in complaint paragraphs 12 and 24. Therefore, it is appropriate
to begin with an examination of those records. (GC Exh. 16.)
The payroll records do not establish what the General Coun-
sel’s brief claims. A table in the General Counsel’s brief osten-
sibly “summarizes the information contained in the records in
G.C. Exh. 16.” The table is highly abstracted. It does not
break down the hours worked into the total for regular employ-
ees and the total for temporary workers. Instead, it provides
only a percentage derived by the General Counsel’s calcula-
tions. This table states, in part example, that in January 1995
temporary employees worked 18.57 percent of 3506.75 hours,
that in July 1995 temporary employees worked 33.50 percent of
7090.50 hours, and that in August 1995 temporaries worked
26.19 percent of 2072.00 hours worked by the regular and tem-
porary employees. (GC Br. 19–20.):
However, going back to the source documents in General
Counsel’s Exhibit 16 and adding up the hours produces an ap-
parent discrepancy when those actual figures are compared to
those summarized in the table. For example, the payroll re-
35 In addition to the payroll records, the General Counsel also relies
on testimony to establish that there was a unilateral change involving a
mandatory subject of bargaining. This evidence will be discussed
below.
cords for January 1995 show that during that month, regular
employees worked a total of 7089.75 hours, and temporaries
worked a total of 914.50. Thus, regular employees alone
worked more than twice the number of hours shown in the table
for the hours of regular employees and temporary employees
combined.
The payroll records for July 1995 show that regular employ-
ees worked a total of 7876.50 hours during that month, and
temporaries worked 3024.50. Thus, the total number of hours
worked by regular employees that month, as established by the
source documents, exceeds the number of hours shown in the
table for regular employees and temporary employees com-
bined.36
What caused the discrepancy between the figures given in
the General Counsel’s brief and the totals from the source data?
In making his computations, the General Counsel did not in-
clude all the hours shown in the payroll records, but rather
made an assumption which excluded a substantial number of
those hours. The General Counsel’s brief explains the calcula-
tion this way:

Since temporary employees were only called in when
the Respondent was loading or unloading a ship, the only
time that a permanent employee could be replaced by a
temporary employee was when a ship was being worked.
Comparisons should be made, therefore, only by using
days when ships were being worked. It is a fair estimate
that the Respondent was working a ship when its total
number of hours worked was 400 or more per day. . . . By
adding the total number of hours in a month worked on
days when the Respondent’s employees worked a total of
400 or more per day and comparing the percentage of the
total hours worked by temporary employees each month,
an accurate picture of the Respondent’s hiring practices
can be adduced. (GC Br. at 19, emphasis added.)

The General Counsel is quite explicit about this methodol-
ogy, but I do not share the General Counsel’s confidence in it.
The methodology assumes facts that are not in evidence. For
example, the record does not establish a satisfactory basis for
concluding that “temporary employees were only called in
when the Respondent was loading or unloading a ship.”
Perhaps the General Counsel simply made this assumption
because it sounded reasonable, and not because evidence estab-
lished it. Even if the assumption turned out to be true, how-
ever, it would not justify ignoring hours listed on the official
payroll records and excluding them from the computation. If
any bargaining unit work has been shifted from unit employees
to temporaries, an accurate determination of the amount must
begin with accurate figures showing how much work was done.
The further the figures depart from the actual amounts, the
further the computation veers from the truth.
The government’s methodology rests on another question-
able assumption as well. The General Counsel attaches special
significance to the days on which ships were in port. However,
36 However, the percentage of total hours worked by temporaries in
July 1995 is about 28 percent, which is not too far from the 33.5 per-
cent figure given in the table.
GOLDEN STEVEDORING CO. 437
it does not appear that the General Counsel identifies such dates
with records listing the ship names with dates of arrival and
departure. Instead, the government makes an assumption that
“the Respondent was working a ship when its total number of
hours worked was 400 or more per day.”
The General Counsel’s brief calls that figure a “fair esti-
mate,” but does not cite any evidence as a basis. Indeed, the
General Counsel does not even provide much argument to sup-
port this assumption, let alone evidence. Considering the entire
record, I find the assumption unproven.
At a more basic level, the government’s methodology is ob-
jectionable intuitively. Excluding hours worked on the basis of
an arbitrary formula has some of the flavor of pulling cards out
of a deck before the game begins. Someone seeking only to
build a house of cards will not suffer if all the tens or queens
are missing, but a fair game requires playing with a full deck.
So does an accurate computation.
However, there are other flaws besides the exclusion of data.
The government’s methodology does not appear to treat the
data in ways likely to yield a mathematically sound result.
The problem becomes apparent when the General Counsel’s
brief argues that the “average monthly average percentage of
total hours worked by temporary employees from January 1995
through July 1995, inclusive, is 26.13. The monthly average
percentage of total hours worked by temporary employees from
August 1995 through January 1996, inclusive, is 41.91.” (GC’s
Bri. at 20.)
Although the words “average monthly average percentage”
sound awkward or redundant, they accurately reflect the route
taken by the General Counsel to his conclusion. In arguing that
the proportion of work performed by temporaries increased
after the election, the General Counsel relies on what is essen-
tially an average of averages. However, averaging averages is
more likely to lead to confusion than to clarity.37 This tech-
nique cannot be used accurately to make the comparisons
sought.
The General Counsel bears the burden of proving that the
Respondent has reduced the amount of work assigned to em-
ployees in the bargaining unit. However, I find that the gov-

37 The inaccuracy introduced by taking an average of averages ap-
pears in even a simple hypothetical calculation. Assume that in January
regular employees worked 10 hours and temporaries worked 5 hours;
that in February regular employees worked 12 hours and temporaries
worked 8, and that in March regular employees worked 240 hours and
temporaries worked 30 hours. During this calendar quarter, regular
employees worked 262 hours and temporaries worked 43 for a total of
305 hours. For this 3-month period, temporaries worked about 14
percent of the total hours.
However, if percentages are calculated for each month rather than by
quarter, the temporary employees worked 33 percent of the total hours
in January, 40 percent of the total hours in February, and 11 percent of
the total in March. The average of these percentages is .28, or double
the actual percentage of hours worked by temporaries over the 3-month
period. For the same reasons that this calculation produced an inaccu-
rate result, the General Counsel cannot obtain a mathematically mean-
ingful result by comparing an average of the percentages of hours
worked in each of seven separate months before the election with an
average of the percentages of hours worked in each of five separate
months after the election.
ernment has not demonstrated, through the payroll records, that
such a reduction took place.
The testimony also does not support such a conclusion, al-
though it consumed much of the 13 days of hearing. Much of
this testimony concerned a task called “recouping.”38 Carey
Wyatt, called by the General Counsel, described the task in this
manner:

Q. [W]ell, the standard procedure and the way we had
always done it before was we’d work an aluminum boat,
and in the course of unloading this boat, bundles of alumi-
num would get damaged. They’d bust open and all this.
We would just slide the stuff aside and whenever the boat
was finished, then our regular laborers would come in and
re-bundle this and we’d go on and put it in stock to be
shipped out. [Tr. 554.]

The evidence clearly establishes that temporary workers did
at least some of the recouping before the election. However,
the General Counsel presented evidence that the temporaries
did more of it afterwards, and this increase constituted part of
the alleged unilateral change. Wyatt testified that there were
occasions after the election when temporaries would be called
in to recoup. However, the vagueness and inconsistency of his
testimony limits its value. For example, on cross-examination,
Wyatt testified in part as follows:

Q. Your testimony is that on five or ten occasions after
the boat sailed, temporary people were called in to help re-
coup?
A. I exaggerated a little on the ten. I know there was
not ten boats. It was more probably in the line of anywhere
from three to five, maybe six boats. Yes, they were called
in. [Tr. 600.]

Although Wyatt testified about an occasion when, he said,
temporary employees worked on recouping aluminum in a
warehouse called “Cotton Five,” he admitted on cross-
examination that he had not seen them do it. (Tr. 585–586.)
Thus, his testimony does not establish that temporaries were
doing work previously done by bargaining unit employees, or
that they were doing more of it than they did before the elec-
tion.
Additionally, Wyatt did not remember how many temporary
workers were in his own crew or what kind of work he and the
other crew members were doing at the time the temporaries
were recouping. (Tr. 586–587.) The lack of specific informa-
tion renders much of his testimony tantamount to expressions
of opinion or repetition of hearsay. Therefore, I do not credit it.
Another of the General Counsel’s witnesses, J. H. Johnson,
testified on direct examination that the recouping practice
changed after the election. Before the election, according to
Johnson, “They would wait until the ship was over and let the
regular laborers do it.” (Tr. 658.) However, Johnson stated on
direct examination, that policy changed:

Q. And then after the election, when did they do the
recoup?
38 The work allegedly done by temporaries also included the typical
duties of a longshoreman unloading cargo.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 438
A. During the ship.
Q. And who did it?
A. Laborers, multi-temp’s. [Tr. 657–658.]

Apart from the lack of specific information, two problems cast
doubt on Johnson’s testimony. First, Johnson’s testimony
clearly establishes that the Respondent had a long practice of
assigning temporary workers to perform work similar to that
done by the regular employees,39 so the asserted change essen-
tially is quantitative, not qualitative, in nature. Johnson’s tes-
timony, however, does not establish to what extent the use of
temporary workers increased.
Second, an inconsistency between Johnson’s testimony on
direct and cross-examination undermines his credibility. As
quoted above, Johnson testified on direct examination that after
the election, Respondent began using temporary workers to do
the recouping while the regular employees were still unloading
cargo from the hold of the ship. However, on cross-
examination, Johnson gave the following answers to questions
regarding when the temporary workers (multitemps) began
recouping while the vessel was still in port:

Q. How often and when did that first start happening?
A. After the election.
Q. When these multi-temp laborers were recouping
and our men were sitting at home with no work, was there
a boat being loaded or discharged?
A. I don’t know.
Q. It’s important that you try to remember whether a
boat was being loaded or discharged when this activity
that you have described occurred.
A. Which activity are you talking about?
Q. When temporary employees were recouping and
our men were sitting at home with no work.
A. It had to be after a vessel.
Q. It would have to be after a vessel had left port?
A. Yes. [Tr. 699–700.]

In addition to this inconsistency between direct and cross–
examination, there are other reasons to doubt the reliability of
Johnson’s testimony. Johnson, who had been a foreman or
acting foreman, admitted that he had never supervised employ-
ees doing recouping while a vessel was still in port. (Tr. 701.)
Additionally, Johnson never supervised a crew while that crew
was recouping. (Tr. 702.)
Moreover, Johnson’s job duties involved working on a ves-
sel, but the recouping by temporary employees allegedly took
place in a warehouse. For all of these reasons, I have doubts
about the reliability of Johnson’s testimony on this matter, and
do not credit it.
Another witness, Larry Scott, also testified that unlike before
the election, when they performed recouping after the departure
of the vessel, “After the election, they were recouping while we
was on the boat bringing the stuff up. They had guys up in the
warehouse, cotton five, recouping then.” (Tr. 805–806.) How-
ever, Scott did not work in the warehouse and only went there
occasionally to use the restroom.

39 For example, Johnson testified that, before the election, if the
work got slow, temporary workers went home first. (Tr. 656.)
Additionally, Scott’s testimony suffered from internal incon-
sistencies. On direct examination, he testified that after the
election, the Respondent “was bringing in more temporaries,
guys. It used to only be just the workers, the ones that worked
for the company, because it was just enough work for us. After
we voted for the Union, they was bringing in something like 25,
30 temporaries to hurry up and finish.” (Tr. 737.)
At one point during cross-examination, Scott stated that “the
recouping was only for us, the employee that worked for
Golden.” However, in the next sentence, he qualified that abso-
lute position by stating “Most of the time it’d just be for us.”
(Tr. 855; emphasis added.) Later in his cross–examination,
Scott contradicted his earlier statement that it “used to only be
just the workers, the ones that worked for the company” (Tr.
737) who did the recouping.

Q. Before the election some of the time temporary em-
ployees help recoup is that correct?
A. Sometimes. [Tr. 855.]

Scott also maintained that on two occasions after the elec-
tion, the Respondent would use temporary employees to per-
form recouping at a warehouse called “Cotton Five” while the
regular employees remained on a vessel unloading the cargo.
However, he could not be any more specific as to date. (Tr.
807–808.)
As stated above, Scott was in this warehouse only briefly, to
use the restroom, and the record does not establish that he had
any personal contact with the individuals he believed were
doing the recouping. Although I have concluded that Scott was
an honest witness, the accuracy of his testimony is still limited
both by his opportunity to observe an event and by his ability to
recall when the event took place. Here, he had little opportu-
nity to observe, and inconsistencies in his testimony suggest
that his recollection is less than perfect.
For example, Scott testified on direct examination that he
observed temporary workers doing recouping after the election
only two or three times. (Tr. 738.) However, on cross–
examination he changed that testimony to “4 or 5 times,” lead-
ing me to conclude that Scott really wasn’t certain. This incon-
sistency, although not major, does affect the weight I give
Scott’s testimony. Considering his admission that before the
election temporary employees performed recouping “some-
times” (Tr. 855), Scott’s testimony fails to establish that the
Respondent made any significant change in how it assigned
regular employees and temporary workers to this task.
Donald Burrell testified in conclusory terms that after the
election, a change occurred in the use of temporary employees.
However, his testimony is so general that it lacks probative
value in establishing that Respondent increased the use of tem-
porary workers after the election. (See, e.g., Tr. 1013–1018.)
Leon Autry, called by the General Counsel, gave testimony
regarding the use of temporary workers before and after the
election, but in general, I found it rather confusing.40 More-
40 An example of Autry’s testimony on this matter is quoted below.
Q. What did those temporary employees do before the elec-
tion when there was no ship in port?
GOLDEN STEVEDORING CO. 439
over, although Autry’s initial testimony indicated he had seen
temporary workers doing recouping in a warehouse, cross-
examination revealed that actually, he had not observed them
doing any work.

Q. Okay. The only thing you saw is what you testified
before. You saw them eating lunch. Is that right?
A. Well, I seen them—half of them was laying up on
the aluminum stuff asleep. Most of them were asleep
probably—or going to sleep or something.
Q. Okay. Well—
A. It wasn’t that they was even talking about—some of
them was eating and some of them was laying up on the
aluminum asleep. That’s as far as I know. [Tr. 1303.]

In addition to these uncertainties in his testimony, certain as-
pects of the cross–examination raised doubts about Autry’s
candor.41 For all of these reasons, I do not credit his testimony.
Some other witnesses testified that there had been no change
in recouping practices. James David Shiver Jr., a forklift
driver, testified that he saw no difference. (Tr. 1786.) The
Respondent’s superintendent, Kenneth Johnson, testified, in
part, as follows:

Q. Let’s say you don’t have enough work for every-
body, for all of your regular employees. How do you
choose who is going to do the work?
A. The man that’s been there the longest.
Q. And how long has that been your policy?
A. Ever since I can remember.
Q. Is that your policy?
A. Yes, sir.
Q. Have you ever been criticized for that policy?
A. Yes, sir.
Q. Who’s criticized you?
A. Edgard.
Q. And what did Edgard criticize you about? What did
he want you to do?
A. Rotate it and swap it around.
Q. And did you? Do you?
A. No.
Q. You don’t. You do it your way?
A. That’s the way I do it. I work the oldest man.
Q. Was that true before the election?
A. Yes, sir.
Q. Is it true now?
A. Yes, sir.

A. They came in to help us if we needed help. But before that
time, they only came if we—you know, if we had cars to unload,
we unload the cars and then we did the recoup. But then after
then, then it was like you do the cars and you do the recoup. It
was like we did the cars and they did the recoup. But before then
it was not like that. That’s when—you ask me a question. I’m
going to tell you the answer. [Tr. 1295.]
41 For example, Autry’s pretrial affidavit stated at one point that he
had taken photographs to show that some employees, favored by man-
agement, drove forklifts without being disciplined for a safety viola-
tion. (Tr. 1283.) However, when asked about this matter on cross–
examination, his responses suggested to me some degree of equivoca-
tion, rather than difficulty with memory. (Tr. 1282.)
Q. Has it ever been any different?
A. No, sir. [Tr. 2002–2003.]

Although Johnson’s words appear in print to be terse, if not
gruff, his demeanor at the hearing conveyed no sense of hostil-
ity or antagonism. The brevity of his responses seemed to arise
from a sense of economy that regarded frill with some degree
of suspicion. It was an attitude fully at home in a person who
had not been late to work in 35 years, and who appeared to
view life from an island of order somehow unperturbed by the
natural amount of chaos in the world. I believe Johnson’s tes-
timony shares this reliability, and I credit it.
Based on his testimony, as well as the absence of credible
testimony to the contrary, I find that Respondent did not change
the way it assigned temporary workers to recouping or other
tasks performed by employees in the bargaining unit.42 Simi-
larly, I find that the government has not proven that Respondent
has reduced the hours of employment for bargaining unit mem-
bers.
In sum, the record does not establish that Respondent vio-
lated Section 8(a)(5), (3), or (1) in the manner alleged in para-
graphs 12 and 24 of the complaint. I recommend that these
allegations be dismissed.
H. August 1995—Threat of Plant Closure
Paragraph 8(c) of the complaint alleges that about August
1995, a more precise date being unknown to the General Coun-
sel, Respondent, by Edgard H. Gonzales, “at the Adams Mark
Hotel, threatened its employees with plant closure if the Union
was selected as their bargaining representative.” The Respon-
dent denied this allegation.
The wording of this allegation suggests that in August 1995
employees were considering whether to select the Union to
represent them. However, they had already chosen the Union,
which the Board certified on July 21, 1995.
The General Counsel elicited testimony from Larry Scott
that Gonzales made such a threat of plant closure during a ne-
gotiating session with the Union:

Q. What did he say?
A. He said before the Union would come in, he’d close
the doors. He said he don’t like the Union, he don’t want
the Union. He said he went Union one time and they bank-
rupted him or something. [Tr. 721.]

Another witness for the General Counsel, Mason Barnes,
gave similar testimony:

Q. Well, what did he say at this negotiation meeting?
A. At this negotiation—just about every one we had—
that he would close his doors before he went union, that he
was not going to be union, period; he wasn’t for a union,
he wasn’t for anything to benefit the employees, unfair la-
bor practices or anything, he wasn’t for it, he was totally
against it. [Tr. 1625–1626.]
42 Although much of the testimony at hearing focused on the recoup-
ing work, the General Counsel also contends that the Respondent in-
creased the extent to which it used temporary workers to do other work
performed by bargaining unit employees. I find that the evidence does
not establish this allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 440

Gonzales gave a different version of what he told the em-
ployees on the Union’s negotiating committee. He testified that
he told them he would not sign the Union’s contract proposal,
and gave them reasons why he would not. To sign that pro-
posal, Gonzales said, “would have meant for us, for Golden, to
increase of operation in over 300 percent.” (Tr. 2639.)
According to Gonzales, he further told the union negotiators
“that for Golden to accept that contract, we had to have the
ability to pass the extra costs on to the customer, and by our
doing that, we were not going to be competitive; the customers
were going to abandon us; and likely they were going to go and
land in the hands of the nonunion shops in the port.” (Tr. 2639.)
For two reasons, I credit the testimony of Scott and Barnes.
First, Gonzales did not squarely deny making the “close the
doors” threat they attributed to him.
Second, Gonzales’ wife, Norma Gonzales, testified that she
attended all bargaining sessions between Respondent and the
Union. (Tr. 2398.) However, her testimony does not rule out
the possibility that Gonzales made the alleged plant closure
threat.
On the other hand, it is somewhat risky to infer too much
from Norma Gonzales’ failure to deny, absolutely and un-
equivocally, that her husband made such a statement, because
no attorney asked her specifically if he threatened to close the
plant. Respondent’s attorney did ask her if her husband ever
said “outright, I won’t sign a contract” but that question is dif-
ferent from asking whether or not Gonzales said that he would
close the plant.43 The issue raised by the complaint allegation
concerns a threat of plant closure, not a refusal to bargain.
Additionally, neither the General Counsel nor the Union’s at-
torney asked Norma Gonzales specifically whether her husband
made such a threat of plant closure. However, on cross-
examination, the General Counsel did elicit the following tes-
timony:

Q. Okay. Did Mr. Gonzales say what would happen if
he ended up—if he was not competitive?
A. Well, if he was not competitive with the other non-
union shops, probably down the road he would have to
close.
Q. Did he say that at the meetings?
A. Not in the meetings. I don’t remember if he said it
in the meetings. [Tr. 2403; Emphasis added.]

Norma Gonzales’ testimony that she did not remember if her
husband made such a statement leaves open that possibility.
It concerns me that the General Counsel did not adduce tes-
timony from more witnesses on this point, considering that,
according to Norma Gonzales, between 10 and 15 individuals
attended each negotiating session on behalf of the Union. (Tr.
2399.) However, I have concluded that, in general, Scott is a
reliable witness. Another witness, Barnes, has corroborated his

43 In response, she testified, “The only thing that I heard was that he
said that he was willing to sign a contract, if we could be competitive in
the market with the non-shop stevedores. Otherwise, if it was not com-
petitive, there was no way that he was going to sign something that
would hurt the company.” (Tr. 2400.)
testimony, which has not been absolutely denied by Gonzales
or his wife.44 Therefore, I will credit Scott.
I find that at a negotiating session in August 1995 Gonzales
told union negotiators, including employees Scott and Mason,
that before the Union would come in, or before he “went un-
ion” he would close his doors. The timing of this statement,
after the employees already had voted for the Union seems
unusual, but, for the reasons stated above. I find that Gonzales
made it. Applying an objective standard, I find that these
words reasonably would be understood to constitute a threat of
plant closure if employees persisted in supporting the Union or
seeking the Union to represent them.
My crediting of Scott’s testimony does not signify that I dis-
credit Gonzales, because Gonzales did not squarely contradict
Scott. Crediting the testimony of Gonzales and his wife, I find
that he did explain his refusal to agree to the union proposal on
economic grounds. However, Gonzales’ comments about the
acceptability of the Union’s bargaining proposal are not at is-
sue. The closure threat alleged in the complaint, and estab-
lished by the testimony of Scott and Barnes, does not concern
any economic consequences of the Union’s porposal. Rather, it
relates closure to the fact that the employees “went union.”
That is a clear threat of retaliation.
Therefore, I find that the statement violates Section 8(a)(1)
of the Act, as alleged in paragraph 8(c) of the complaint.
I. November 10, 1995—Alleged Discriminatory Recall
Complaint paragraph 13 alleges that about November 10,
1995, “Respondent recalled its employees Mason Barnes and
Donald Burrell to work while they were working for another
company, thereby adversely affecting their hours of work and
their earnings.” Paragraph 19 alleges that Respondent took this
action because employees formed, joined, or assisted the Union
and engaged in concerted activities and to discourage employ-
ees from engaging in these activities. Paragraph 28 alleges that
this action violated Section 8(a)(3) and (1) of the Act.
Respondent admitted that on November 10, 1995, it “called
Mason Barnes and Donald Burrell” to work for it, but stated
that it otherwise did not have information sufficient to form a
belief about the allegations of paragraph 13. It denied the alle-
gations of complaint paragraphs 19 and 28.
Mason Barnes testified that on one occasion, Superintendent
Kenneth Johnson had announced that the Company only
needed five employees to work the next day. So Barnes, along
with Donald Burrell and about five others, went to another
stevedoring company, Southern Cargo, and talked with a fore-
man, who said to report at 6 a.m. the next day. He did. (Tr.
1627–1629.)
Another of Respondent’s employees, Donald Burrell, also
went to work that day at Southern Cargo. Although Barnes
44 In general, I did not find Barnes to be a reliable witness. On
cross–examination, he answered so many questions with the expression
“possible” that it raised a question as to whether he was making the
effort to answer fully. However, I note that Barnes’ testimony is con-
sistent with the statement in his May 19, 1997 affidavit, that “Gonzlez
[sic] stated that he was not going to go union and before he went union
he would close his doors.” (R .Exh. 55 at 2.) Moreover, Barnes’ testi-
mony corroborates, and is corroborated by, that of Scott.
GOLDEN STEVEDORING CO. 441
could not recall the date specifically, I find, based on the entire
record that it was around November 10, 1995.
Barnes testified that around lunchtime he and Burrell left the
ship where they were working in a hold. As they came down
the gangway, one of Respondent’s supervisors, Ken Wear, met
them and said they were supposed to report to work for Golden
Stevedoring at 1 p.m. that day. According to Barnes, Wear told
him to get a forklift and meet him at the “Cotton Five” ware-
house. (Tr. 1629.)
Barnes and Burrell told their supervisor at Southern Cargo
that they were returning to work at Golden Stevedoring, and
went to the “Cotton Five” warehouse, where they waited.
When Kenneth Johnson arrived, he instructed them to stack
aluminum ingots and band them together, which they did. At
about 4 p.m., a supervisor sent them home for the day. (Tr.
999–1000; 1630.)
The men wanted to work longer that day, and returned to
their supervisor at Southern Cargo, a man Burrell identified as
“Wayne.” He had already found replacements for them that
day, but told them to return the next. Although rain prevented
them from working the following morning, Burrell and Barnes
did work for Southern Cargo that afternoon. (Tr. 1000–1001.)
Later, Barnes received a letter from Gonzales. That letter
stated as follows:

We have had as one of the company policies and for a
long time the “no loan” of personnel or equipment to
competitor’s companies operating at the same ports that
this company does business.
We are sure that even when this policy has not been
given in writing to you it has been communicated verbally
and enforced any time any of our employees has chal-
lenged this disposition of the company and has been dis-
charged from his duties with the company.
We have the confirmation that you, in open violation
to [sic] this rule, have been soliciting and accepting work
with some of our competitors at this port.
Should you continue to do so, we will have no other
alternative than to permanently separate you from this or-
ganization. [R. Exh. 41.]

The complaint does not allege that anything in this letter vio-
lates the Act. As the exhibit number indicates, the Respondent,
not the General Counsel, introduced it into evidence at the hear-
ing. Rather, the complaint alleges that their “recall,” while they
were working for the other employer, violated Section 8(a)(3).
To violate Section 8(a)(3), an employer must engage in some
act of discrimination in regard to hire or tenure of employment
or any term or condition of employment. See 29 U.S.C. §
158(a)(3). Therefore, the government’s theory of violation
appears to be that the Respondent discriminated against Barnes
and Burrell by putting them to work. In his opening statement,
the General Counsel explained the government’s theory as
follows:

[T]he allegation is that . . . these two employees, Mason Bar-
nes and Donald Burrell, were discriminated against because
of their support for the Union in this retaliatory manner, yank-
ing them from one good job to another job with Respondent
when the evidence shows that there was no work for them to
do.

The General Counsel’s brief states that the “Respondent’s
animus motivated it to force two of its union–supporting em-
ployees to leave a more lucrative job even though it really did
not have enough work to keep them busy. Therefore, the recall
of Barnes and Burrell from their job at Southern Cargo on No-
vember 10 violated Section 8(a)(1) and (3) of the Act.” (GC
Br. at 22.) However, the General Counsel does not cite any
legal authority to support this theory of violation.
As I understand it, the government’s theory necessarily rests
on the premise that Barnes and Burrell had a right to work
elsewhere whenever their employer could not put them to work.
Presumably, unless the employees had such a right to be work-
ing somewhere else, the Respondent would not act unlawfully
by denying them the opportunity.
However, the concept that an employee of one company has
a right to be working for another company on his day off re-
quires some examination. If such a right exists, what is its
source? The General Counsel has not claimed that the Act
confers such a right, and otherwise has not described its origin.
Whatever its source, the General Counsel must bear the burden
of proving that such a right exists if the government contends
that it was unlawful to take the right away.
In the absence of any argument or evidence that such a right
has been created by law, I will assume that if it exists, it springs
from the relationship between employer and employee. At the
time of this alleged 8(a)(3) violation,45 the Union and Respon-
dent were engaged in negotiations for their first collective-
bargaining agreement. In this circumstance, absent lawful im-
passe, the Respondent could not implement a new rule prohibit-
ing “moonlighting” unilaterally. At least, it could not do so
lawfully, and, as noted, the government doesn’t allege that
Respondent implemented such a rule unlawfully.
Therefore, whatever preexisting policy the Respondent had
on such outside work remained in effect. If the preexisting
policy allowed an employee to work elsewhere on his day off,
then denying an employee that right would reduce his privi-
leges as an employee. If motivated by antiunion animus, such a
denial would discriminate against him in violation of Section
8(a)(3).46
As noted above, a predicate to proving the denial of this right
is proving its existence. Barnes testified that it was common
for Respondent’s employees to work for other companies:

Q. BY MR. ROGERS: My question was from the time
you started working there, when did you first see—or

45 The complaint does not allege that Respondent violated Sec.
8(a)(5) by unilaterally implementing a new rule to prohibit its employ-
ees from working for other stevedoring companies in their spare time.
46 Cf. Tualatin Electric, Inc., 319 NLRB 1237 (1995), in which the
Board found that an employer’s policy against “moonlighting” violated
Sec. 8(a)(1) because, in that case, there was “abundant evidence in the
record indicating that the moonlighting policy was adopted primarily as
a result of the Respondent’s antiunion animus.” In the instant case,
there is no evidence that Respondent adopted the “no moonlighting”
policy to interfere with employees’ union activities or their exercise of
other protected rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 442
when did you first notice that Golden employees or people
who worked for Golden worked for competitors?
A. Probably about the second month after I was work-
ing there that people would work for other companies.
When they didn’t have no work here, they would work for
other ones, and then after we voted a union, they got to
where they worked more because in case they get a strike,
the hours got cut back. Where we used to get 40 hours a
week, we wasn’t getting that no more.
Q. How often would you see someone who works for
Golden working for a competitor after that second month?
A. Every time they got a chance.
Q. Well, how often would that be?
A. Every week. [Tr. 1637.]

Barnes acknowledged that, more than once, he had heard a
rumor that the Respondent did not allow its employees to work
for competitors on their days off, but he provided no more spe-
cific information.
Initially, Donald Burrell, like Barnes, testified that he had
been unaware Respondent had a rule against employees work-
ing for competitors on their days off. However, on cross-
examination, Burrell admitted that when he was first hired by
the Respondent, an individual nicknamed “Santa Claus” had
given him this information:

THE WITNESS: Santa Claus told me this when I first
got hired at Golden. When I first—about a month or two
after I got hired at Golden. And I went and worked for
Coastal Cargo, which worked—I worked it with Santa
Claus. And he remembered me from over there at Golden.
And he said, You know Edgard going to fire you if he
finds out you’re working for somebody else. [Tr. 1137.]

Because of this contradiction between Burrell’s initial testi-
mony and his testimony later in cross-examination, I do not
credit him. Moreover, other testimony, which I do find credi-
ble, establishes that the Respondent had a longstanding rule
prohibiting its employees from working for the competition
during their days off. For example, James Shiver Jr. described
how he learned about the rule long before the Union’s cam-
paign:

Q. And about when was that, if you recall?
A. That was about—it was about—it was long before
any of the union stuff ever even came about. There was
about three or four of us who went to work with another
company over there and went to work at night, which was
Premier Stevedore. And there was three or four of us—
they had made a place for us to work at night, which paid
good money, but no steady work, you know, but just one
of those things that the work—there wasn’t much to it,
but, you know, you grabbed it when it was there. And
then, when it was gone, it was gone.
So Mr. Gonzales called at all different times—there
was approximately three or four of us—into the office and
reminded us—you know, he told us that Premier was a
company that was—I don’t know what you call it—
competition, and Golden had the rule which—I knew it
before I even did it—before I even worked with them, I
knew about it because Mr. Gonzales told us that long be-
fore he ever even caught up with us working, but we was
hoping to get by with it for a little while.
And he called us into the office one at a time and told
us that we had a choice, that the company had a rule that—
work with Golden or work with—wherever you wanted to
work. And so he asked me was—which one was my
choice. I told him—I said, “Naturally, I’m going to work
with Golden because there is—I’m going to continue to
work with Golden because there’s not enough work with
Premier,” which there wasn’t. And all I said was, I enjoy
my job with Golden. [Tr. 1786–1787.]

Moreover, Respondent’s superintendent, Kenneth Johnson,
testified that for the past 7 or 8 years before the hearing, Re-
spondent had a policy that did not allow its employees to work
for other stevedoring companies. (Tr. 2037.) As discussed
above, I found Johnson to be a reliable witness, and I credit this
testimony.
The record does not establish any instance in which the Re-
spondent knew about one of its employees doing work for a
competitor and either ignored or condoned it. Although Barnes
testified that Respondent’s employees did perform work for
competitors, he provided no specific instances, and the record
contains none. Therefore, I do not credit his testimony.
Because, at all times material to this issue, Respondent had a
rule against employees working for competitors, and because
the evidence does not establish that Respondent enforced the
rule disparately, I conclude that its employees did not have the
right to work for competitors during their time off. Since they
did not have that right, requiring them to report to work for
Golden did not constitute an “adverse employment action”
necessary to satisfy the third step of the Wright Line analysis.47
In sum, I do not find that Respondent violated Section
8(a)(1) and (3) of the Act in the manner alleged in paragraph 13
of the complaint. I recommend that these allegations be dis-
missed.
J. January 29—November 11, 1996—
the Strike Against Respondent
Paragraph 14 of the complaint alleges that from about Janu-
ary 29 until November 11, 1996, certain employees of Respon-
dent, represented by the Union and employed at its facility,
ceased work concertedly and engaged in a strike. Paragraph 15
alleges that the strike was caused by Respondent’s unfair labor
practices described in complaint paragraphs 7–13, 19, 23, 24,
and 26. Although Respondent admits that the Union went on
strike, it denies that the strike was caused by unfair labor prac-
tices.
At the hearing, the General Counsel adduced testimony from
Union Organizer George Bru concerning the decision to go on
strike. Bru described a union meeting on January 23, 1996, at
which he told employees about the difference between an eco-

47 However, I would find that the General Counsel proved the first
two requirements, protected activities and employer knowledge, with
respect to both Barnes and Burrell. The record does not establish the
required link or nexus necessary to satisfy the fourth element of the
Wright Line test.
GOLDEN STEVEDORING CO. 443
nomic strike and an unfair labor practice strike. Bru gave them,
as an example of an unfair labor practice, that “Carey Wyatt
had had his keys taken away from him . . . for no apparent rea-
son other than he suspected that Mr. Gonzales didn’t trust him
because he was involved with the Union.” (Tr. 197.)
The complaint does not include such an allegation, although
the General Counsel stated that it was the subject of a charge. I
presume that the allegation either was withdrawn or dismissed
before the hearing. However, the General Counsel still con-
tends that it may provide the basis for a finding that unfair labor
practices caused the strike.
Thus, the General Counsel stated, “as I understand it there’s
also the theory that even if the issue of ULP strikes can also
hinge on ULPs that the union thinks at the time are valid
whether they’re found later on to be—whether it’s found later
on that the allegations are not supported is a separate issue.”
(Tr. 198.)48 However, the General Counsel cited no authority
for this theory and may have backed away from it somewhat in
the posthearing brief, which states that to “be classified as an
unfair labor practice strike, unfair labor practices must be, at
least, a motivating factor in the decision to begin the strike.”
(GC Br. at 24.)
I conclude that to satisfy its burden of proving that the strike
was an unfair labor practice strike, the government must pre-
sent evidence establishing that the employer committed unfair
labor practices, rather than merely the employees’ belief that
the employer had committed unfair labor practices.49 Addition-
ally, the General Counsel must present evidence showing how
the unfair labor practices influenced the employees in their
decision to strike.
Bru also testified that at this meeting, he told the employees:

I know that you guys have been complaining to me of
unfair treatment by your employer. I know that you’ve
been saying that you’ve been singled out and harassed.
And I said, in particular, on safety violations. The com-
pany had changed its policy. I said I know the company
has changed its policy because I continue to hear state-
ments from you guys. [Tr. 202.]

Bru clearly was referring to the allegation that the Respon-
dent was enforcing its safety rules more stringently. Thus, he
told the employees, “they are getting tighter on you wearing a
hat. I said I know that. You have to wear your seat belt all the
time. These are things that, in the past, they may say something
to you every now and then.” (Tr. 202.)

48 The General Counsel also disclaimed any interest in proving that
Respondent took away Wyatt’s keys. “The fact that there was a charge
filed about it and it was brought up at this meeting is what’s important.”
(Tr. 199.)
49 Clearly, the Union is not required to file an unfair labor practice
charge as a predicate to asserting that the strike was an unfair labor
practice strike. See Burns Security Services, 324 NLRB 485 (1997).
(“The employees may legitimately choose to protest an unfair labor
practice by calling a lawful strike rather than filing an unfair labor
practice charge, and the Board will not draw any adverse inference
from the employees’ exercise of this legitimate form of protest.”)
However, that principle is different from stating that an unfair labor
practice strike can be proven without proof of unfair labor practices.
Additionally, Bru testified that during this meeting, a union
attorney, Christopher Krafchak, announced that “the NLRB had
agreed to hear the charges that had been filed by the union.
And he said at that point we’d have a good chance of winning
these—he thought we’d have a good chance of winning these
charges which number probably 15 by then. . . . And it was his
opinion that this was, in fact, an unfair labor practice charge or
strike, if we chose to go on strike, it would be designated as an
unfair labor practice strike.” (Tr. 209–210.)
The employees attending this meeting voted to strike, but de-
layed actually going on strike until a tactically opportune time.
Bru testified that during the entire strike, the pickets carried
signs stating “Golden Stevedoring Company on strike, protest
unfair labor practice.” (Tr. 211.)
Based on Bru’s testimony, which I credit, I find that the un-
ion members had under consideration the unfair labor practice
allegations at the time they voted to strike. Additionally, I find
that they were motivated by an actual unfair labor practice
which the Respondent committed, the unilateral change in dis-
ciplinary procedure when Respondent began putting warnings
in writing.
It is true that, according to Bru’s testimony, he spoke about
the alleged unilateral change in safety rules, and I have found
that Respondent did not make such an unlawful change. How-
ever, I find that Bru’s discussion also fairly encompassed the
change to written warnings rather than oral reprimands. Thus,
Bru testified he told the voters, “I know that you’ve been say-
ing that you’ve been singled out and harassed. And I said, in
particular, on safety violations.” (Tr. 201–202; emphasis
added.)
Thus, Bru treated the alleged change in safety rules merely
as an example of the complaints he had received from employ-
ees about being “harassed.” Those complaints must certainly
have embraced the unilateral change in discipline which the
government has proven violative.
I find that the strike against Respondent was, at all times
from its inception, an unfair labor practice strike.
K. February 2 and 21, 1996—Alleged Threats and Attempt to
Cause the Arrest of Union Organizer Bru
Paragraph 8(d) of the complaint alleges that by letters dated
February 2 and 21, 1996, Respondent, by Edgard H. Gonzales,
“threatened Union officials with arrest if they engaged in union
or concerted activities on the Alabama State Docks.” The Re-
spondent, in its answer, admitted “that by letters dated February
2, and 21, 1996,” it “threatened George B. Bru with arrest if
Bru continued to trespass on property in the possession of
Golden Stevedoring Co., Inc., while engaging in activity in
violation of section 8(b)(1)(b) of the Act.”
Paragraph 8(e) of the complaint alleges that on about Febru-
ary 21, 1996, Respondent, by Edgard H. Gonzales, “attempted
to cause the arrest of a union official because he was engaged
in union and concerted activities on the Alabama State Docks.”
The Respondent denied this allegation by stating that it was
without knowledge of it.
The State of Alabama has a large facility with docks for
ships arriving from the Gulf of Mexico. Longshoremen work-
ing for the various stevedoring companies load and unload
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 444
cargo from these vessels and their employers, the stevedoring
companies, have facilities which they lease from the State of
Alabama. Although the Alabama State Docks occupy a large
area, it is fenced, and a security force polices the area. I credit
the testimony of Union Organizer George Bru concerning the
events on the occasions when he encountered these police offi-
cers.
When the strike began, the State Docks established a gate
system which reserved one entrance for use by those associated
with Golden Stevedoring, and another entrance for others. The
Union lawfully could picket only at the entrance reserved for
the Respondent, unless the main gate, used by all others, be-
came “tainted.” In labor law terminology, a gate becomes
“tainted” when it is used by persons associated with the em-
ployer the Union is striking, and at that point, the Union may
picket at that entrance as well.
Bru credibly testified that the Union had received reports that
Respondent’s nonstriking personnel had been using the main
gate. He wanted to document that the gate was being “tainted”
in this fashion by taking photographs of cars as they entered
and left. If such photographs established “taint” by personnel
associated with Golden Stevedoring, he would take this evi-
dence to the chief of the officers policing the State Docks to
justify the Union picketing at the main entrance.
On February 1, 1996, Bru, with camera ready, sat at the front
gate trying to spot someone from Golden Stevedoring trying to
enter. Instead, someone from Golden Stevedoring spotted him,
or so he later surmised. Bru then rode around the docks to talk
with various people 50 and then returned to the entrance.
Several days later, one of Respondent’s secretaries hand de-
livered a letter to Bru. This letter, dated February 2, 1996, and
signed by Gonzales, stated:

On Thursday, February 1, 1996, you were observed in
the parking lot adjacent to the Golden Stevedoring Co.,
Inc., new maintenance shop at approximately 7:50 a.m.
You appeared to be taking down the license tag numbers
of employees of Golden Stevedoring Co., Inc.
You have no legitimate business on the leased property
of Golden Stevedoring Co., Inc.
THIS IS A WARNING! You will be trespassing in
violation of the laws of the State of Alabama if you enter
the leased property of Golden Stevedoring Co., Inc., with-
out my written permission. [GC Exh. 10.]

Bru was not then employed by the Respondent, had never
been, and had never applied to be. Although an employee of
Respondent delivered the letter to Bru, the record does not es-
tablish that she read it or knew its contents.
On February 20, 1996, Bru was driving his Isuzu Trooper on
a road within the property operated by the State of Alabama as
the Alabama State Docks. He was near a location where ves-
sels dock and cargo is loaded or unloaded by longshoremen.
One of Respondent’s employees, Carey Wyatt, was with Bru
in the car. They went to a spot which, Bru testified, was about

50 The Union represents the employees of other employers operating
on the State Docks, as well as the employees of Golden Stevedoring.
130 yards from a ship being unloaded51 by Respondent’s em-
ployees. Bru testified they parked in a spot unlikely to cause
interference with the unloading, and watched for about 10 min-
utes, trying to recognize any of Respondent’s employees who
had entered by the main gate rather than the gate reserved for
Golden Stevedoring. (Tr. 179.)
Bru testified that the chief of the State Docks police force
and another officer, Sergeant Hale, came into the area and mo-
tioned Bru and Wyatt to come over to the north side of the pier,
where they had a discussion. At some point, Respondent’s
president, Edgard Gonzales, joined this group. (Tr. 180–182.)
According to Bru, he told the officers

that we had accusations that—from the [striker the Union had
posted to observe the main gate] that someone had entered the
gate that was known to work for Golden and . . . there were
two other people in the car with this person and they were go-
ing to the ship, so he thought, to go to work. . . . I told the
Chief I took Carey Wyatt with me [to the pier] to identify the
car. So the Chief said, “Well I don’t have any problem with
you being here, Mr. Bru, but I have a problem with Carey
Wyatt being here because he’s not supposed to enter through
the front gate.” [Tr. 180–182.]

According to Bru, Gonzales spoke with the police chief, but
Bru did not hear what Gonzales said. (Tr. 182.) Bru then took
Wyatt back to the front gate, dropped him off, and returned to
Pier North C, the area where Respondent’s employees were
unloading the vessel. (Tr. 183.)
Bru later received a second letter by hand delivery. This let-
ter, dated February 21, 1996, and signed by Gonzales, stated:

On Tuesday, February 20, 1996, you were observed on
Pier North C, Alabama State Docks, which was in the pos-
session of Golden Stevedoring Co., Inc., where Golden
Stevedoring Co., Inc., was handling pipe produced by
American Cast Iron Pipe Company, Inc., Birmingham,
Alabama for shipment aboard the vessels Ikiena and Ar-
temis S.B.
It is our understanding that you were directed by a se-
curity officer of the Alabama State Docks Department to
leave Pier North C and not to enter Pier North C again
while the Ikiena and Artemis S.B. were being loaded by
Golden Stevedoring Co., Inc.52

On Wednesday, February 21, 1996, you were again observed
on Pier North C where Golden Stevedoring Co., Inc., was con-
ducting its operations loading the Ikiena.

You have no legitimate business on the Pier North C
while Pier North C is being used by Golden Stevedoring
Co., Inc.
We have requested the Alabama State Docks Depart-
ment security to remove you from Pier North C.
51 Longshoremen refer to “discharging” a vessel rather than unload-
ing it, but to avoid confusion, I will reserve the term “discharge” for its
usual meaning in the employment law context.
52 Contrary to the Respondent’s “understanding,” the record does not
establish that a security officer asked Bru to leave. I credit Bru’s testi-
mony that the officer only asked Wyatt to leave.
GOLDEN STEVEDORING CO. 445
THIS IS A SECOND WARNING! You have been
trespassing on the property in the possession of Golden
Stevedoring Co., Inc., in violation of the laws of the State
of Alabama. Further trespassing on property in possession
of Golden Stevedoring Co., Inc., will result in a warrant
being issued for your arrest. [GC Exh. 9.]

The record does not establish that any employee of Golden
Stevedoring ever saw this letter. Bru testified on cross-
examination that, to his knowledge, no employee of the Re-
spondent was given either letter. (Tr. 275–276.)
The Respondent argues both that it was within its legal rights
to send these letters to Bru, on the basis that he was actually a
trespasser on property within Respondent’s control, and that the
letters could not interfere with, restrain, or coerce employees in
the exercise of Section 7 rights because Bru was not an em-
ployee and no employee ever saw them.
The General Counsel responds that even though Bru is not
an employee of Respondent, he is an employee of the Union,
and that the law only requires the person coerced to be an “em-
ployee,” not an employee of the coercer. Additionally, the
General Counsel argues, employees of the Respondent deliv-
ered the letters to Bru. (Tr. 1891–1892.)
The Supreme Court held in Lechmere, Inc. v. NLRB, 502
U.S. 527 (1992), that an employer lawfully may tell union offi-
cials who are not its employees to leave its property. From that
principle flows the corollary that an employer may have such a
nonemployee arrested for trespassing if he refused to leave.
However, when an employer’s exercise of this property right
is evaluated, the way the employer normally uses the property
provides important context. For example, it matters whether
the property in question is a laboratory where chemists com-
pound the manufacturer’s secret ingredient, or whether, at the
other extreme, the property is a showroom, which the employer
has opened to the public.
Thus, in Albertson’s Inc., 289 NLRB 177 (1988), individuals
who previously had worked for the supermarket returned after
they had been discharged lawfully and ate in the market’s delica-
tessen area, which was open to the public for exactly that pur-
pose. The discharged employees also brought union officials
with them, and the officials also partook at the delicatessen.
The Board reversed a judge’s conclusion that respondent did
not violate the Act when its manager threatened to have the
individuals arrested if they did not obey his demand to leave.
Citing Harolds Club v. NLRB, 758 F.2d 1320, 1323 (9th Cir.
1985) and Brunswick Food & Drug, 284 NLRB 661 fn. 5
(1987), the Board held that because the activities of these indi-
viduals supported the normal use of the delicatessen and were
not obtrusive, it was immaterial that the conduct took place on
the respondent’s property.
In the present case, the Respondent’s property interest is
even more attenuated. Although Respondent leases a facility
within the Alabama State Docks, it did not seek to have Union
Organizer Bru removed from this facility, and the Respondent
does not even claim that Bru trespassed there. Rather, Respon-
dent sought to exclude Bru from other portions of the State
Docks. Specifically, Respondent asserted that it had the right
to oust Bru from a parking lot adjacent to its facility and from a
Pier, “North C.”
Respondent makes an elaborate argument regarding its prop-
erty interest in these parts of the Alabama State Docks, and its
asserted right to exclude Bru from any area on the Docks where
its employees happen to be loading or unloading a vessel.
However, Respondent has presented no evidence to establish
that Bru ever came close enough to any of these locations to
interfere with this work in any way. I find that Bru never inter-
fered with the Respondent’s operations but merely viewed them
from a distance sufficient to stay out of the way.
Respondent has not established it had any property interest in
Pier, “North C,” except for its own right to be present. I find
the evidence is also insufficient to establish that Respondent
had the right to exclude Bru from a parking lot adjacent to its
facility.
Additionally, the Respondent’s argument does not overcome
the reality of how the State of Alabama operates its docks, and
what people it allows on them. In view of the guard houses, it
certainly does not appear that the State of Alabama allows un-
escorted tourists to drive up and down the docks to sightsee.
On the other hand, a large number of companies do business on
the Docks, and employees of many different companies have
access.
The Alabama State Docks more closely resemble a construc-
tion site, with many different companies and their employees
sharing the property while they performed work, than a single
employer’s private property, over which it maintained tight and
exclusive control. The Respondent threatened Bru with arrest
because the union official was present in areas over which Re-
spondent had far less than exclusive control, and even though
Bru’s presence did not impede the Respondent’s work.
The State of Alabama had allowed Bru to pass the guard-
house and enter the Docks that it owned. The State of Alabama
certainly had authority to demand that Bru leave, but the record
does not establish that anyone else had such authority. How-
ever, the State of Alabama did not ask Bru to leave.
Bru’s testimony had the ring of truth when he quoted the
Alabama State Docks police chief as saying, ‘Well I don’t have
any problem with you being here, Mr. Bru, but I have a prob-
lem with Carey Wyatt being here because he’s not supposed to
enter through the front gate.” (Tr. 180–182.) Considering that
other companies operating on these docks had collective–
bargaining relationships with the Union, it seems logical that
Bru would have free access to the docks so that he could con-
duct union business.
Moreover, I find that Bru clearly enjoyed the status of an
“employee” under the Act. Many cases have held that the defi-
nition of “employee” in Section 2(3) of the Act is broad.53 No
one has contended that Bru occupied a supervisory position
with the Union, and the record does not indicate any other way
in which he would fail to meet the Section 2(3) definition.
Having found that Bru satisfies the statutory definition of
“employee,” I must now determine whether it matters that he is
not, has never been, and has never applied to be an employee of

53 See, e.g., see also Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), and
other cases cited below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
Respondent. The Board’s decision in Pacific Dry Docks Co.,
303 NLRB 569 (1991), suggests that the identity of Bru’s em-
ployer makes a difference in determining whether the arrest
threat violated Section 8(a)(1).

In that case, a former employee named Aguiar visited the re-
spondent’s facility on the day of a Board-conducted election.
The respondent’s general manager became angry with Aguiar
and threatened to call the police if Aguiar did not leave.
Aguiar clearly was an “employee” within the broad scope of
Section 2(3) of the Act, but the Board did not find that the
manager’s threat violated Section 8(a)(1). To the contrary, the
Board held that “the Respondent’s employees’ Section 7 rights
were not chilled by [the general manager’s] display of anger”
towards Aguilar. “[W]e emphasize that there is no evidence
that any employee heard [the general manager] threaten to call
the police or to have Aguiar arrested if he did not leave the
yard.” 303 NLRB at 571. This language would support the
Respondent’s argument that its letters to Bru could not interfere
with, restrain or coerce employees because none of its employ-
ees had read the letters or knew about their contents.
Still, I believe the law on this point has changed since the
Board issued the Pacific Dry Dock decision in 1991, but the
change is not the result of the Supreme Court’s later decision in
Lechmere. Indeed, the Court’s rationale in Lechmere would, if
anything, bolster the Board’s holding in Pacific Dry Dock that a
respondent’s threat to cause the arrest of an individual affiliated
with the union would not interfere with employees’ Section 7
rights if (1) the person threatened was not the respondent’s
employee and (2) none of the respondent’s employees knew
about the threat.
However, more recent Board cases suggest that this aspect of
Pacific Dry Docks no longer represents the current state of the
law. For example, in Mr. Z’s Food Mart, 325 NLRB 871
(1998), the Board stated:

We note the judge’s analysis . . . finding that the Re-
spondent violated Sec. 8(a)(1) by prohibiting nonemployee
organizers from distributing leaflets in front of three of its
stores and threatening to call and calling the police to evict
them, is consistent with our decision in Indio Grocery
Outlet, 323 NLRB No. 196 (1997). [Id. 871 fn. 2.]

In the cited Indio Grocery Outlet, the Board does not discuss
the significance of whether or not the respondent’s employees
heard or knew about respondent’s threat to have the union offi-
cials arrested for trespass. In view of the Board’s holdings in
Indio Grocery Outlet and Mr. Z’s Food Mart, and in light of
my finding that Bru satisfies the Section 2(3) definition of
“employee,” I reject Respondent’s defense that the threats of
arrest did not violate Section 8(a)(1) because not communicated
to an employee.
Although I find that the threats of arrest contained in the Re-
spondent’s letters to Bru did violate Section 8(a)(1), as alleged,
I do not conclude that Respondent made an attempt to have Bru
arrested which would constitute a separate unfair labor practice.
The Respondent may well have called the Alabama State Docks
police when it was aware that Bru was near a location where
Respondent’s employees were performing work, but the Act
does not make that action unlawful.
Calling the police to investigate Bru’s presence is quite dif-
ferent from taking some more direct action focused on having
Bru arrested or issued a criminal citation. The Union was on
strike against Respondent, and the record establishes that at
times, there were instances of misconduct associated with the
picketing. Asking the police to find out if a union official had a
legitimate reason for being on the Docks in the vicinity of Re-
spondent’s employees is quite different from insisting that the
police arrest this person regardless of probable cause.
In sum, I find that the Respondent violated Section 8(a)(1) of
the Act by the threats of arrest in its February 2 and 21, 1996
letters to Bru, as alleged in complaint paragraph 8(d). I do not
find that Respondent violated the Act by attempting to have
Bru arrested, as alleged in complaint paragraph 8(e), and rec-
ommend that this allegation be dismissed.
L. Alleged Refusal to Reinstate Strikers
Complaint paragraph 16 alleges that on about November 11,
1996, the Union made unconditional offers to return to their
former positions of employment on behalf of Donald Burrell,
Mike Linsey, and James Lambert. Complaint paragraph 16
alleges that since on or about November 11, 1996, the Respon-
dent has failed and refused to reinstate Mike Lindsay,54 that
since on or about December 10, 1996, Respondent failed and
refused to reinstate James Lambert, and that since on or about
January 21, 1997, it has failed and refused to reinstate Donald
Burrell.
Respondent has admitted that the Union made unconditional
offers to return to work on behalf of the strikers on November
11, 1996. Respondent also has admitted that it has failed and
refused to reinstate Mike Lindsay. However, the Respondent
has denied that it failed and refused to reinstate Lambert and
Burrell.
1. Refusal to reinstate Michael Lindsay
Although Respondent has admitted it refused to reinstate
Lindsay, and although I have found that Lindsay is an unfair
labor practice striker who has made an unconditional offer to
return to work, the controversy does not end at that obvious
point. The Respondent has asserted that Lindsay engaged in
strike misconduct sufficiently serious that he forfeited his right
to reinstatement under the law.
On direct examination, Respondent’s president, Gonzales,
described the reasons he decided not to reinstate Lindsay:

Q. Mike Lindsay was not rehired after the strike. Did
you make the decision not to hire him?
A. Yes I did.
Q. What was the basis for that decision?
A. Misbehaving.
Q. What do you mean by that? I mean in what way?
A. Being abusive in many ways.
Q. Like what?

54 Certain pleadings spell the name “Linsey,” but I credit the dis-
criminatee’s testimony that his name is spelled “Lindsay.”
GOLDEN STEVEDORING CO. 447
A. Threatening people on the way to work. Trying to
stop them from coming and passing the picket line.
Q. You said he was misbehaving?
A. That’s correct.
Q. The behavior you mentioned is threatening people
on their way to work and trying to stop people from cross-
ing the picket line?
A. Using abusive language. [Tr. 89.]

The testimony of Respondent’s president establishes that Re-
spondent based its decision not to reinstate Lindsay solely on
the misconduct described above, which took place while Lind-
say, a striker, was on the picket line. (Tr. 91.) Therefore, the
proper legal standard to apply arises from the Supreme Court’s
decision in NLRB v. Burnup & Sims, 379 U.S. 21 (1964). See
E. W. Grobbel Sons, 322 NLRB 304 (1996). In Burnup &
Sims, the Supreme Court described the test as follows:

In sum, Section 8(a)(1) is violated if it is shown that
the discharged employee was at the time engaged in a pro-
tected activity, that the employer knew it was such, that
the basis of the discharge was an alleged act of misconduct
in the course of that activity, and that the employee was
not, in fact, guilty of that misconduct. [379 U.S. at 23.]

Therefore, I must determine whether or not Lindsay engaged
in the conduct which Respondent cites as the basis for its deci-
sion not to reinstate him.
To support its allegations that Lindsay had engaged in picket
line misconduct, Respondent called Joseph Miller, who had
been employed by a temporary agency and worked behind the
picket line for Respondent during the strike. Miller testified
that sometime “around June” 1996, he had difficulty crossing
the picket line because the pickets “would turn around and walk
across the pedestrian walkway so you couldn’t get through.”
(Tr. 1376.) Miller further testified about an exchange he had
with one of the pickets:

Q. What was said to you?
A. He—they started hollering, You scabs. You took
our jobs and all this. And I told them, I said, No, I said,
We didn’t take your jobs. I said, you walked off from
your job. And he started cussing me and then I said some-
thing back to him and then he said that he would cut my
throat and all that.
Then I just went on through the picket line and went
on to work, never paid any more attention to him.
Q. Do you know who that person was that said—that
said, I’m going to cut your throat?
A. Yes, ma’am. Mike Lindsey.
[Tr. 1376.]

Respondent also called Miller’s wife, Wanueta Charlene
Miller. She testified that sometime after July 4, 1996, she was
driving her husband to work. She entered the dock area to drop
her husband off without incident, but on her way back out,
traffic forced her to stop at an intersection. According to
Miller, a picket she later identified as Lindsay approached to
within three feet of her or vehicle (Tr. 1352) and described her
husband in the following vulgar terms: “‘Your husband’s a
f______ scab.’ He repeatedly said my husband was a pussy.
He told me that he was going to f___ my world up and he just
kept saying, bitch, I’m going to f___ you up. He kept coming
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
closer and closer to my car. He kept saying that if I crossed the
line again—you know, like I say, he kept saying, ‘I’m going to
f___ you up.’” (Tr. 1350.)
Jesse J. Horton, Jr., who performed work for Respondent be-
hind the picket line, testified that on one occasion Lindsay
called him a “goddam scab” and said he would “whip” Hor-
ton’s “ass.” Horton did not recall the date of this incident, and
his testimony was not clear as to how far Lindsay was from him
at the time of the alleged comments. (Tr. 1716–1719.)
Respondent also called Daniel Jarvis. As the Respondent’s
“town runner,” Jarvis crossed the picket line frequently during
the strike. (Tr. 1824.)
According to Jarvis, at first, when Lindsay was trying to per-
suade Jarvis to join the strike, he treated Jarvis politely. How-
ever, Jarvis testified, when he continued to work behind the
picket line, Lindsay’s attitude changed.
According to Jarvis, Lindsay began “flipping the bird” when
Jarvis crossed the picket line, and Jarvis returned this vulgar
display. Lindsay’s speech became commensurate with his sign
language.
Jarvis testified that on one occasion when he crossed the
picket line, Lindsay “said something like he was going to come
into my house and he knew where I lived, he was going to rape
my mother and kill me.” Jarvis replied, “Come on,” that “me
and my grandfather would be there waiting for him.” (Tr.
1827.)
Jarvis further testified that Lindsay “spit at me twice and
flipped a cigarette in the truck on it.” (Tr. 1828.)55 This ciga-
rette didn’t “just blow in the truck,” Jarvis added, “He thumped
it in there on me.” (Tr. 1829.) Jarvis believed that the cigarette
incident probably took place on the same day Lindsay threat-
ened to kill him. (Tr. 1828.)
Lindsay denied trying to spit on anyone and also denied
threatening to kick anyone’s “ass.” (Tr. 1737.)56 With respect
to the allegation that Lindsay threw a lighted cigarette into
Jarvis’ truck, Lindsay stated that he guessed “the wind caught it
and took it in his window.” (Tr. 1739.)
Lindsay also denied using curse words on the picket line
other than “calling people some damned scabs, you know, noth-
ing other than that.” (Tr. 1736.) He specifically denied ever
going up to a woman in a car and calling her a bitch. In fact, he
denied ever approaching a woman in a car while he was on the
picket line. (Tr. 1737.)
Lindsay also testified that he met with Gonzales, who told
Lindsay that he would not be reinstated because of picket line
misconduct. Gonzales described for Lindsay some of this con-
duct, including the “whip your ass” comment. According to

55 According to Jarvis, Lindsay was about 6 feet away and that the
spittle came within about two feet of hitting him.
56 On cross-examination, Lindsay testified in part as follows:
Q. And is it your testimony that you’ve never told anybody
you’d kick their ass without doing it?
A. Rephrase that.
Q. Well, have you ever told anybody you would kick their
ass, but you didn’t kick it?
A. Well, if I told somebody that I was going to kick their ass,
one of us would get their ass kicked. And, no, sir, I don’t make
idle threats, if that’s what you’re insinuating. [Tr. 1765–1766.]
Lindsay, he replied to Gonzales, “Well, Mr. Gonzales, if I was
going to say I was going to whip your butt, one of us would
walk out with a butt-whipping.” (Tr. 1735–1736.)
A substantial amount of evidence, from a number of differ-
ent witnesses, paints a consistent picture of Lindsay’s conduct
at various times on the picket line. Lindsay did deny this con-
duct, and buttressed his denial with an emphatic assertion that
he did not make idle threats, but his choice of words (“if I told
somebody that I was going to kick their ass, one of us would
get their ass kicked”) does not suggest he had a particularly
peaceful disposition.
I do not credit Lindsay’s testimony and find that he engaged
in the acts described by Respondent’s witnesses. The question
remains as to whether this misconduct was of sufficient severity
that it deprived Lindsay of his right to reinstatement. I find that
it was that serious.
The testimony of the various witnesses demonstrates a pat-
tern of behavior that reasonably would tend to coerce or intimi-
date employees in the exercise of rights protected under the
Act. Lindsay’s conduct exceeded the bounds of peaceful and
reasoned conduct to the extent that Respondent was justified in
denying him reinstatement. See Clear Pine Mouldings, 268
NLRB 1044 (1984).57
Therefore, I find that Respondent did not violate the Act by
refusing to reinstate Lindsay. I recommend that this allegation
be dismissed.
2. Alleged refusal to reinstate James Lambert
Respondent has denied the complaint allegation that since
about December 10, 1996, it has refused to reinstate James
Lambert. Rather, it contends that it offered Lambert reinstate-
ment by letter on November 14, 1996, and notified the Union’s
attorney of this offer by letter dated November 15, 1996.
However, Respondent also takes the alternative position that
Lambert had abandoned his job with the Respondent before the
strike. Therefore, according to Respondent, at the time of the
strike, he had no rights as an employee, and Respondent had no
duty to reinstate him. (Tr. 1466, 1475.)
The evidence establishes that Lambert suffered an injury in
June 1995, and had not returned to work when the strike began
on January 29, 1996. According to Lambert, one day while
riding by, he observed the picket line and learned in that way
about the strike. He decided to join the picketers. However, he
did not know on what date he began picketing.
Lambert testified that he went down to see Respondent’s
president, Gonzales, the day after the strike ended. (Tr. 1433.)
57 In Clear Pine Mouldings, 268 NLRB supra at 1046, the Board
stated, in part,
[W]e reject the per se rule that words alone can never warrant a denial
of reinstatement in the absence of physical acts. Rather, we agree with
the United States Court of Appeals for the First Circuit that “[a] seri-
ous threat may draw its credibility from the surrounding circum-
stances and not from the physical gestures of the speaker.” [Citing
Associated Grocers v. NLRB, 562 F.2d 1333, 1336 (1st Cir. 1977),
denying enf. in part 227 NLRB 1200.] We also agree with the United
States Court of Appeals for the Third Circuit that an employer need
not “countenance conduct that amounts to intimidation and threats of
bodily harm.” [Citing NLRB v. W. C. McQuaide, Inc., 552 F.2d 519,
527 (3d Cir. 1977).]”
GOLDEN STEVEDORING CO. 449
After being told that Gonzales was out of the office, Lambert
waited 15 minutes and then left, because he had to pick up his
children at school. (Tr. 1434.)
Lambert said that he returned 3 or 4 days later but still
couldn’t see Gonzales. (Tr. 1434.) He claimed that, in total, he
returned to Gonzales’ office “about three or four times.” (Tr.
1435.)
Finally, on December 10, 1996, Lambert got to meet with
Gonzales in his office. Gonzales asked him why he waited.
Lambert replied, “I didn’t receive—didn’t have no letter to
come back on the 18th.” (Tr. 1436–1437.)
According to Lambert, Gonzales told him that he sent a letter
to “come about the 18th. He said, Why didn’t I come show up
on the 18th?” Lambert replied that he didn’t know anything
about it on the 18th. “The only thing I know is it said return
back to work.” (Tr. 1437.) Lambert further testified:

Q. Okay. And then what was said?
A. He asked me about where do I live? And I asked
him, I really couldn’t understand what he was saying and I
couldn’t—I just told him I didn’t know where I lived.

. . . .

Q. Okay. Why did you tell him that you didn’t know
where you lived?
A. Because I figured that he should already know
where I lived. He got my address.
Q. And had you received a letter from Mr. Gonzales
regarding the end of the strike?
A. No, sir. [Tr. 1437–1438.]

Based on this testimony, and on the fact that Lambert did not
return to work for the Respondent, the General Counsel argues
that Respondent conditioned the reinstatement of Lambert on
his reporting for work right away, or at least by some date the
Respondent arbitrarily chose. The General Counsel’s brief
contends that “The Respondent has no justification in making
reinstatement conditional upon returning to claim a job by a
certain date. Therefore, the Respondent’s justification for not
hiring Lambert does not support its action. Thus, the Respon-
dent’s failure to reinstate Lambert after he appeared for [em-
ployment] within a reasonable time after the offer of reinstate-
ment was made violated Section 8(a)(1) and (3) of the Act.
A.P.A. Warehouse, Inc., 302 NLRB 10, 12 (1991).”
However, the General Counsel’s argument depends upon
whether Lambert’s testimony is credible. I do not credit Lam-
bert because, as discussed further below, documentary evidence
thoroughly undermines his credibility.58 This documentary
evidence largely concerns when Lambert received his physi-
cian’s permission to return to work.
The evidence clearly establishes that Lambert suffered an
on-the-job injury about June 9, 1995. Lambert testified that he
received a “return to work” release signed by a physician in

58 Additionally, Lambert’s response when Gonzales asked for his
address (falsely professing that he did not know his own address), and
the differences between his testimony on direct and cross-examination
make me concerned about the reliability of Lambert’s testimony.
September 1995, and took it to Respondent’s superintendent,
Kenneth Johnson.
According to Lambert, the doctor’s slip restricted him to
light duty (Tr. 1450), and Johnson told him “there ain’t no work
on the dock, not for me.” (Tr. 1451.) However, the evidence
establishes that Lambert began receiving “return to work” slips
at least as early as June 20, 1995. (R. Exh. 47–1.) Although the
June 20, 1995 slip, and two others he received later in June
1995 did contain work restrictions, on July 5, 1995, Lambert
received a “return to work” slip, which was explicitly without
restrictions. (R. Exh. 47–4.)
Lambert claimed in his testimony that when he spoke with
Respondent’s superintendent, Kenneth Johnson, in September
1995, he was seeking light duty work consistent with the re-
strictions on his “return to work” slip. (Tr. 1452, 1477.)59
However, I do not credit this testimony, because the physician
had already released Lambert to work without restrictions on
July 5, 1995. (R. Exh. 47–4.)
Additionally, during cross-examination, Respondent’s attor-
ney asked Lambert if he ever took a “return to work” slip that
said “without restrictions” to Kenneth Johnson. Lambert re-
sponded, in effect, that he didn’t know, because he just looked
at the words “return to work” at the top and paid no attention to
the rest of the slip.60 However, this testimony is not consistent
with Lambert’s earlier testimony that when he visited Kenneth
Johnson in September 1995, “I was looking for light duty work.
That’s what my doctor had on my paper, for light duty work.”
(Tr. 1452.)
Moreover, Lambert’s testimony does not explain why he de-
layed 2 months after receiving an unrestricted release to return
to work before asking the Company to put him back on the job.
This circumstance also makes me doubt the reliability of Lam-
bert’s testimony.
An obligation to offer someone reinstatement depends upon
the status of that person and the nature of the strike. If the evi-
dence establishes that Lambert was an employee of the Re-
spondent at the time the strike began, and went on strike, then
he has the same reinstatement rights as other striking employ-
ees.61 On the other hand, if Lambert was not employed by
Respondent at the time the strike began, he is not entitled to
reinstatement rights.
59 Lambert testified, in part, as follows:
Q. Okay. But every time that you delivered a return to work
slip, Mr. Johnson told you that he didn’t have any light duty work
on the dock for you.
A. Yes. [Tr. 1477.]
60 Lambert testified: “I don’t know nothing about all that restriction
and without and was my first time of getting hurt on the job. I don’t
know nothing about all that right there and I ain’t paid no attention to
none of that. I was just looking on this and return back to work on the
top right there.” (Tr. 1469.)
61 The instant situation is different from that Pirelli Cable Corp., 323
NLRB 1009 (1997), in which an employee on workers compensation
leave at the time a strike began received a letter from the employer,
demanding that he return to work. When the injured employee was
unable to comply, the employer unlawfully determined that he was on
strike. In the present case, when the strike began Lambert no longer
was receiving workers compensation benefits, and had received a doc-
tor’s release to return to work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
As noted above, after Lambert received the physician’s per-
mission to return to work without restrictions, he took no action
for a substantial period of time. The record does not establish
that Lambert had any other reason to delay return to work.
In that regard, after he was injured, Lambert filed a workers’
compensation lawsuit against the Respondent. He settled that
lawsuit, although the record is not entirely clear as to when that
settlement occurred. However, Lambert received his last work-
ers’ compensation check some time before October 1995. (Tr.
1459.) Thus, the facts would not support a conclusion that a
pending workers’ compensation action impeded his return.
Certainly, Lambert was not receiving workers compensation
when the strike began 3 months later. Although physically
able, he was not working for the Company at the time.62 More-
over, the record does not establish any other way in which
Lambert had an employment relationship with Golden Steve-
doring at the time the strike began. I find that the government
has failed to establish that Lambert was an employee of Golden
Stevedoring at the time of the strike. Since he was not an em-
ployee, he cannot be entitled to reinstatement.63
In sum, I find that the evidence does not establish that Re-
spondent discriminated against Lambert, as alleged in the com-
plaint. I recommend that this allegation be dismissed.
3. Alleged refusal to reinstate Donald Burrell
The Respondent has denied the complaint allegation that
since on or about January 21, 1997, it refused to reinstate Don-

62 Lambert did not know about the strike when it began, but only
learned of it later when, while driving past, in March 1996, he noticed
some pickets. (See Tr. 1481, “I was riding around and I saw them out
there on the picket line.”) Since Lambert was not an employee of Re-
spondent when the strike began, it is clear that he was not an employee
of Respondent 2 months later, when he found out about it. If a non–
employee obtains a picket sign and patrols in front of the struck busi-
ness, those actions do not confer upon him the same employee status
enjoyed by the strikers, even though he professes common cause with
them.
63 There is some dispute in the record as to whether Lambert did, or
did not receive a letter from Gonzales offering him reinstatement. The
Respondent’s answer contends that it made such an offer, but Lambert
denied receiving it. That denial, of course, provides a perfectly reason-
able explanation for why Gonzales would ask Lambert for his address.
It appears likely Respondent mailed such an offer to Lambert, but that
he did not receive it.
It may be argued that by making an offer of reinstatement to Lam-
bert, Respondent conferred on him an employee status which he other-
wise would not possess. Moreover, it is true that once an employer has
offered reinstatement to a striker, and the striker accepts the offer, the
employer must treat the returning strike in a nondiscriminatory manner.
The fact that the employer had no legal duty to offer the striker rein-
statement, and did so gratuitously, does not privilege the employer to
discriminate against the striker after his return to work. See Diamond
Walnut Growers, 312 NLRB 61 (1993); Rose Printing Co., 304 NLRB
1076 (1991).
However, those cases may be distinguished from the instant situa-
tion, involving an unsuccessful attempt to offer reinstatement to some-
one who had no status as an employee at the time. Since Lambert, by
his own testimony, did not receive such an offer, it could not be effec-
tive in creating an employment relationship where none existed at the
time.
ald Burrell. Its answer asserts that it offered reinstatement to
Burrell by letter on March 26, 1997.
Respondent’s answer raises, as a defense, that Burrell en-
gaged in “serious acts of interference, restraint and coercion
during the strike” and, as another defense, that Burrell had not
been capable physically of performing the duties of his job.
The evidence establishes that Burrell participated in the
strike, and was entitled to reinstatement as an unfair labor prac-
tice striker. At the end of the strike in November 1996, Burrell
received a copy of a letter sent to strikers by the Union’s attor-
ney, notifying them to report back to work. Burrell and several
other strikers went to the Respondent’s facility, and spoke indi-
vidually with Respondent’s president, Gonzales.
Burrell’s own testimony establishes that because of an in-
jury, he was not physically capable of returning to work at the
time of this conversation with Gonzales. Thus, Burrell stated
that his physician released him to return to work on January 20,
1997 (Tr. 1004), which was about 2 months after the conversa-
tion he had with Gonzales at the end of the strike.
From the testimony of both Burrell and Gonzales, it is clear
that during their meeting in November 1996, Burrell indicated
that he wished to return to work after his physician gave him a
medical release to do so. Similarly, it is clear that Gonzales
said nothing to suggest that Burrell would not be welcome to
come back at that time.
Thus, Gonzales testified that he referred to the cast on
Burrell’s leg and asked him when he would be out of it. Ac-
cording to Gonzales, Burrell said,“I got to see my doctor. It’s
probably going to take a month or so. And then he said I’ll get
back when I get ready. And I said okay.” (Tr. 94; Emphasis
added.) Thus, Gonzales’ own testimony establishes that he led
Burrell to believe that he would be reinstated when released by
his doctor to return to work.
Respondent placed into evidence a March 26, 1997 letter di-
recting Burrell to report to work. (R. Exh.38.) Respondent
contends that this letter refutes the complaint allegation that it
failed to offer Burrell reinstatement.
However, based on the testimony of Gonzales, which I
credit, I find that he personally had offered Burrell reinstate-
ment in their meeting in November 1996, with Burrell to return
to work when he received his doctor’s release to do so. The
difficulty here does not concern a failure to offer Burrell rein-
statement, but Respondent’s failure to make good on that offer.
Burrell testified that on January 21, 1997, the day after the
date his physician stated Burrell could return to work,64 he went
to Gonzales’ office, told a secretary about his release to return
to work, and asked to see Gonzales. When Gonzales was not
available, he went to Superintendent Kenneth Johnson and told
him he was ready to report to work. According to Burrell,
Johnson said, “You talk to Mr. Gonzales.” (Tr. 1003–1005.)
Burrell stated that he returned to Gonzales’ office that after-
noon but received word that Gonzales had gone home. Burrell
then left and did not return to the Respondent’s offices. I credit
64 Based on Burrell’s testimony on cross–examination, it appears that
Burrell actually saw the doctor somewhat earlier in the month, but that
the physician set January 20, 1997, as the date when Burrell would be
medically able to return to work. (Tr. 1035.)
GOLDEN STEVEDORING CO. 451
Burrell’s testimony. Further, I find that Burrell’s conversations
with Superintendent Johnson, as well as his communication
with the secretary, placed the Respondent on notice of Burrell’s
availability, desire, and fitness for work.
As an unfair labor practice striker, Burrell was entitled to re-
instatement at that time. It does not matter that Respondent
later sent Burrell the March 26, 1997 letter directing him to
report for work. Respondent’s actions on January 21, 1997,
and its inaction thereafter, clearly conveyed the message that it
did not intend to reinstate Burrell and that any further attempt
to obtain reinstatement would have been futile. The law does
not require Burrell to engage in a futile act.
Respondent raises the defense that Burrell engaged in acts of
strike misconduct so severe that it did not have a duty to rein-
state him. The record does not establish that Burrell engaged in
such misconduct and therefore, I reject this defense.
Respondent also raises as a defense that on April 10, 1997,
Burrell filed an application for Social Security disability insur-
ance benefits. On that application, he stated “I became unable
to work because of my disabling condition on October 28,
1996. I am still disabled.” (R. Exh. 34.) In effect, Respondent
contends that if Burrell had become disabled on October 28,
1996, and remained disabled on April 10, 1997, then he was not
able to return to work when he sought reinstatement.
Respondent does more than argue that the disability applica-
tion proves Burrell could not do his former work. Respondent
asserts that Burrell should not even be able to claim that he
could; having professed to one agency of the government that
“I am unable to work,” Burrell should not be allowed to say to
another agency, “Yes I can.”
Preventing someone from explaining an inconsistency differs
drastically from hearing the explanation but rejecting it as un-
persuasive. However, that is the thrust of Respondent’s argu-
ment. In legal terms, Respondent is raising an estoppel theory,
and it may well present an issue of first impression for the
Board. At least, the Respondent has not relied upon Board
precedents in making this argument, but instead has cited deci-
sions of certain of the United States Courts of Appeals, rather
than of the Board, to support its estoppel argument.
The authority cited by Respondent consist of cases filed
against employers by individuals alleging that employers had
discriminated against them in violation of the Americans With
Disabilities Act (ADA).65 At some risk of oversimplification,
the employment discrimination portion of that statute may be
described as prohibiting employment discrimination against a
qualified individual with a disability.66 It requires employers to
make reasonable accommodations, which allow such individu-
als with disabilities to work.
On occasion, a person claiming to be the victim of such dis-
crimination will also have filed a Social Security disability appli-
cation. To qualify for such benefits, the person must be unable to

65 42 U.S.C. § 12101.
66 The Americans With Disabilities Act defines the term “qualified
individual with a disability’’ to mean, in part, “an individual with a
disability who, with or without reasonable accommodation, can per-
form the essential functions of the employment position that such indi-
vidual holds or desires.” 42 U.S.C. § 12111(8).
engage in “substantial gainful activity”67 and, typically, will state
on the application that he or she is unable to work.68 An em-
ployer defending a lawsuit under the ADA may assert that since
the plaintiff claimed on his Social Security disability application
that he couldn’t work at all, he should not be entitled to claim
inconsistently that he can work if the job or work environment
were modified to accommodate his disability.
Respondent’s argument might suggest that considerable ju-
dicial precedent supports its estoppel theory, but my own re-
view of the cases does not disclose such certainty among the
circuits. Moreover, after the hearing closed and the receipt of
briefs, the United States Court of Appeals for the Eleventh
Circuit, in which the Respondent is located, issued its decision
in Talavera v. Sch. Bd. of Palm Beach County,69 which does not
support the Respondent’s theory.70
The Talavera case involves an interpretation of the ADA,
not the National Labor Relations Act. However, understanding
the Court’s reasoning may be helpful in deciding what effect
Burrell’s Social Security disability application should have
under the Act applied here.
Again with some risk of oversimplification, the Court’s rea-
soning may be described as follows: Since the Social Security
Administration does not take into account an employer’s legal
duty to make accommodations which allow an individual with a
disability to work, any decision by the Social Security Admini-
stration that someone cannot work only means that the person
cannot work without accommodation. It cannot be assumed
that this individual still would be unable to do a job after the
employer has made the reasonable accommodation required by
the Americans With Disability Act.71 Therefore, in Talavera,
the Court stated, in part, as follows:

Whether in any particular situation there is an incon-
sistency between applying for [Social Security disability]
benefits and bringing an ADA claim will depend upon the
facts of the case, including the specific representations
made in the application for disability benefits and the na-
ture and extent of the medical evidence in the record.

67 The Social Security Administration describes its disability evalua-
tion process at 20 CFR § 404.1520 which states, in subpar. (b), “If you
are working and the work you are doing is substantial gainful activity,
we will find that you are not disabled regardless of your medical condi-
tion or your age, education, and work experience.”
68 As discussed below, the term “unable to work” used on the dis-
ability application is neither as precise nor as narrow as the term of art
“substantial gainful activity” used in the Social Security disability
regulations.
69 129 F.3d 1214 (11th Cir. 1997).
70 United States Courts of Appeals in some other circuits also have
concluded that judicial estoppel should not create an absolute bar to an
ADA plaintiff who also filed an application for Social Security disabil-
ity benefits. See, e.g., McCreary v. Libbey-Owens-Ford Co., 132 F.3d
1159 (7th Cir. 1997), Weigel v. Target Stores, 122 F.3d 461 (7th Cir.
1997); and Johnson v. State of Oregon Department of Human Re-
sources, 141 F.3d 1371 (9th Cir. 1998).
71 Presumably, a statement that “I cannot work” on a Social Security
disability application must be understood, in the context of that law, to
mean “I cannot work without an accommodation.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
However, we do hold that an ADA plaintiff is es-
topped from denying the truth of any statements made in
her disability application. Our basis for this holding is that
an ADA plaintiff should not be permitted to disavow any
statements she made in order to obtain [Social Security
disability] benefits.

The Equal Employment Opportunity Commission (EEOC)
has reached a similar conclusion. On February 12, 1997, the
EEOC issued notice number 915.002, discussing, among other
issues, the same one presented to the court in Talavera. The
EEOC noted that the definitions of disability used in the Social
Security Act and the ADA are not the same. Similarly, the
EEOC observed, the statutory purposes of the Social Security
Act and the ADA are different.
After discussing the distinctions between the Social Security
Act and the ADA, the EEOC concluded that “an individual who
asserts that s/he is both ‘totally disabled’ and a ‘qualified indi-
vidual with a disability’ has not necessarily made inconsistent
representations. Accordingly, the doctrine of judicial estoppel
should not be used to prevent the individual from raising an
ADA claim.”72
This analysis is persuasive, but, I believe there is another
reason, apart from those articulated by the Eleventh Circuit in
Talavera and by the EEOC in its notice, for deciding that judi-
cial estoppel should not be applied. When a claimant states on
an application for Social Security disability benefits that he is
unable to work, he is not making a statement of fact so much as
alleging a conclusion of law.
The form provided by the Social Security Administration,
which the claimant signs to initiate the legal process, does in-
clude a statement that the claimant “became unable to work” on
a date the claimant specifies. However, the claimant does not
have to prove he actually became “unable to work” to establish
entitlement to disability benefits.
The claimant does have to prove a number of requirements
specified in Society Security regulations, including the absence
of “substantial gainful employment,” but this term of art is not
precisely the same as being “unable to work.” Moreover, al-
though a claimant who satisfies this requirement may then es-
tablish entitlement to disability benefits by showing the effect
of his medical impairments on his ability to work, he may also
establish entitlement by an alternate method based solely on the
severity of his medical condition.73
For example, considering the regulations in effect during the
time period relevant to the complaint, a claimant with a medi-
cally severe condition, who was not engaged in “substantial
gainful activity,” could establish entitlement to Social Security
disability benefits by proving he had an “organic loss of speech
due to any cause with inability to produce by any means speech
which can be heard, understood, and sustained.” See 20 CFR
Part 404, appendix 1, “Listing of Impairments,” Listing 2.09.

72 EEOC notice number 915.002, Enforcement Guidance on the Ef-
fect of Representations Made in Applications for Benefits on the De-
termination of Whether a Person Is a “Qualified Individual with a Dis-
ability” Under the Americans with Disabilities Act of 1990 (ADA),
February 12, 1997.
73 20 CFR § 404.1520.
However, a person with an organic loss of speech can still do
many things. For example, assuming he had the other neces-
sary qualifications, he could still work, in many instances, as a
lawyer, veterinarian, plumber, or longshoreman. But to start
the legal machinery to obtain the Social Security benefits for
which he might qualify, this claimant would still sign an offi-
cial form giving a date on which he became “unable to work.”
It is not logical to assume that a government agency would
make an applicant state, as a predicate to receiving benefits,
that he had medical problems more severe than required by the
regulations for entitlement to those benefits. Therefore, the
phrase “became unable to work” must be considered an abbre-
viated way of alleging eligibility. At its heart, it is a legal con-
clusion.
The Social Security disability regulations are so complex
that a claimant may well be unaware of whether his medical
condition qualifies him for benefits or not. Such a judgment
depends upon both medical and legal knowledge, which the
claimant may not possess.
To determine whether his condition meets the legal and
medical requirements, the individual must file a claim, provide
the medical information, and wait for the decision of the re-
viewing doctors and judge. It would be draconian to penalize a
claimant for signing a claim form stating he was “unable to
work” when signing that form was the only way to reach a
medical and legal determination of the underlying issue.
I find that Burrell’s signing of the Social Security disability
claim did not estop him from asserting, in this proceeding, that
he was able to return to work on January 20, 1997. In making
this finding, I note that Burrell did not appeal his disability
claim to the administrative law judge level after it was denied.
The decision not to appeal is tantamount to accepting the “ver-
dict” of the reviewing doctors that he was, in fact, able to work.
I find that to be the case.
In other respects, the Respondent has failed to prove any jus-
tification for failing to reinstate Burrell. I find that its failure to
do so violates Section 8(a)(3) and (1) of the Act, as alleged.
M. November 1996—Refusal to Reemploy Larry Scott
Complaint paragraph 18 alleges that since about late No-
vember 1996, a more precise date being unknown, Respondent
refused to reemploy Larry Scott. The Respondent admits this
allegation. However, Respondent denies the complaint’s con-
clusion that this refusal violated the Act.
At the outset, some unusual things about this allegation should
be noted for clarity. First, even though Scott had been employed
by Respondent and participated in the strike, the complaint does
not allege that Respondent refused to reinstate him. Rather, it
alleges that Respondent refused to reemploy him.
The government appears to concede that Scott engaged in
strike misconduct, which would disqualify him from being
entitled to reinstatement. However, the General Counsel does
contend that the Respondent unlawfully refused to hire him
again later. Thus, the General Counsel’s opening statement
included the following explanation:

Our allegation is not that he was unlawfully refused re-
instatement from the strike. The Company’s position is
that he was engaged in strike misconduct and we have no
GOLDEN STEVEDORING CO. 453
allegation, we have no way to refute that. However, that
wasn’t why they didn’t hire him. What was told to him
was that you are not being hired because you are refusing
to implicate the Union in advocating strike misconduct.

Respondent’s president, Edgard Gonzales, testified that he
did not rehire Scott because during the strike, Scott had thrown
rocks at cars and this action had been documented on video-
tape. Gonzales also gave two other reasons for refusing to
rehire Scott. First, Gonzales believed that Scott had a criminal
record.74 Second, according to Gonzales, on one occasion,
Scott had brought a knife to the jobsite.75
With respect to the knife incident, Respondent called Ray
Sanders as a witness. Sanders, a forklift operator for the Re-
spondent, testified that he had a conversation about the Union
with Larry Scott while they were in the hold of a ship. I find
that this conversation took place before the strike.
According to Sanders, Scott pulled a knife, called a “Dutch,”
which was about 8–10 inches long. (Tr. 1517–1519.) Sanders
complained to Gonzales, saying “I couldn’t drive the [fork]lift
and concentrate with somebody in the back of me with a knife.”
(Tr. 1519–1520.)
At the time, which was tense because of conflicts with the
Union before the strike, Gonzales decided not to discharge
Scott but instead called Scott’s probation officer.76
With respect to the alleged picket line misconduct, Steven
Lee Demler, an independent truckdriver who had to cross the
picket line to make deliveries, gave testimony indicating that
Scott had thrown a rock, causing damage to Demler’s truck.
(Tr. 1398–1402.) Based on my observations of the witnesses, I
credit Demler.
Demler filed a complaint, which resulted in Scott being ar-
rested. However, according to Demler, who attended the pre-
liminary hearing, the judge dismissed the case because the
amount of damage to the truck exceeded the jurisdictional limit
of the court. (Tr. 1413.)
Respondent also showed a videotape it made at the picket
line. The tape is somewhat fuzzy, and it does not establish that
Scott threw the rocks. However, Demler identified Scott and
himself on the tape and Demler’s testimony, together with the
tape, establish by a preponderance of the evidence that Scott
did throw the rock. Moreover, when he testified, Scott did not

74 At the hearing, I rejected an exhibit (R. Exh. 61) purporting to re-
cite Scott’s criminal record. However, the evidence, including Gonza-
les’ credible testimony about his conversation with Scott’s parole offi-
cer, provides ample basis to conclude that at the time he decided not to
rehire Scott, Gonzales held a reasonable, good-faith belief that Scott
was a felon.
75 When a reason for an allegedly discriminatory act relates to the
discriminatee’s conduct on the picket line, the Board does not analyze
the case under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Instead, it applies the
analytical framework of NLRB v. Burnup & Sims, 379 U.S. 21 (1964). See
E. W. Grobbel Sons, 322 NLRB 304 (1996). In this case, however, the
Respondent asserts reasons for its action related both to picket line mis-
conduct and to events before the strike. Therefore, I will discuss both
standards.
76 Scott did not deny having a previous conviction or being on pro-
bation.
clearly deny it. On cross-examination, Respondent showed
Scott the videotape, and then asked him about it:

Q. BY MR. DARBY: What were you doing when your
arm went over your head in a throwing motion?
A. I was probably throwing a rock, throwing some-
thing, a cigarette or something. I don’t know what I was
throwing.
Q. You may have been throwing a rock; is that right?
A. I wasn’t throwing it at no truck.
Q. You may have been throwing a rock?
A. Uh-huh.
Q. Let me ask you this. Did the rock hit that truck
while you were there?
A. I don’t know. [Tr. 792.]

Scott’s response, “I was probably throwing a rock,” certainly
does not refute Demler’s testimony that he was, indeed, throw-
ing a rock. I find that Scott did engage in the picket line mis-
conduct which formed part of the basis for deciding not to re-
hire him.
It may be argued that Scott’s pulling a knife on another
worker before the strike could not motivate the decision not to
rehire him because the Respondent did not discharge Scott for
it at the time. However, I reject that argument. The record es-
tablishes that it was not too uncommon for a longshoreman to
carry a knife, which would suggest that this conduct, without
more, might not cause sufficient concern to prompt a discharge.
Moreover, because of the tensions before the strike, the Re-
spondent had an additional reason not to take action which
might cause unrest among the employees.
Scott’s action during the strike indicated a continuing pro-
pensity for violent behavior. When Respondent considered that
tendency together with the fact Scott had pulled a knife on an
employee and with Scott’s criminal record, the case became
more compelling that a substantial risk would arise if Scott
returned to the jobsite.
Applying a Burnup & Sims analysis, I find that the govern-
ment has not proven that the asserted picket line misconduct
did not, in fact occur. To the contrary, I find that it did occur.
Moreover, the strike-related conduct had added portent in light
of the prestrike incident when Scott pulled a knife at work.
Evaluating this matter under Burnup & Sims, I conclude that
Respondent acted lawfully in failing to rehire Scott.
Because two of Respondent’s reasons for deciding not to re-
hire Scott do not involve strike misconduct, I also will evaluate
the case under Wright Line. I find that the government has
established a prima facie case. It has proven that Scott engaged
in union activities which the Respondent knew about, that Re-
spondent failed to rehire Scott, and that there was a link be-
tween Scott’s protected activities and this adverse employment
action.
However, the Respondent has amply rebutted the prima facie
case by showing that Scott engaged in picket line violence, and
that in light of Scott’s bringing a dangerous weapon to work
and having a criminal record, it was reasonable to fear what
might happen if Scott returned to the workplace. I find that in
light of this behavior, the Respondent would not have hired
Scott in any event, regardless of his protected activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
Therefore, I recommend that the allegation raised in com-
plaint paragraph 18 be dismissed.
N. November 1996 – Alleged Statement by Gonzales
Complaint paragraph 8(f) alleges that some time in Novem-
ber 1996, Respondent, by Edgard Gonzales, “advised an em-
ployee that he would be rehired if he implicated the Union in
strike misconduct.” Respondent denied this allegation.
At the close of the General Counsel’s case Respondent
moved to dismiss this allegation, arguing that the complaint
does not allege, and the proof did not establish, that Gonzales
told an employee he would be rehired if he lied about the Un-
ion’s involvement in strike misconduct. The evidence estab-
lishes at most, according to Respondent, that Gonzales told an
employee he would be rehired if he told the truth about the
Union’s involvement in strike misconduct. Telling an em-
ployee he would be rehired if he told the truth, Respondent
contends, does not violate the Act. (Tr. 1857.)
In opposing Respondent’s motion to dismiss the allegation,
the General Counsel argued that the employee involved, Larry
Scott, “testified that he was told that if he—that he could have
his job if he would state that the Union was responsible for
putting him up to illegal or unlawful picket line misconduct.
That’s a credibility resolution you’ll have to make.” (Tr. 1892.)
From the General Counsel’s argument on the record, as well
as from the specific language of the complaint itself, it does not
appear relevant to the government’s theory whether the state-
ment Gonzales sought to elicit from Scott would be true or
false. Stated another way, the complaint itself does not allege
that the Respondent was soliciting Scott to lie about the Union,
and nothing that the General Counsel said on the record indi-
cates that it mattered to the government whether Gonzales was
trying to get Scott to tell a lie or tell the truth.
However, that distinction makes a difference. Suppose for
the sake of analysis that union officials did tell Scott to engage
in picket line violence, and that Gonzales was merely trying to
get Scott to tell the truth. In that event, the complaint really is
alleging that encouraging Scott to tell the truth about unpro-
tected activity somehow interferes with employee rights to
engage in protected activity.
Specifically, the complaint alleges that the Respondent inter-
fered with, restrained and coerced employees in the exercise of
Section 7 rights by advising an employee that he would be re-
hired if he implicated the Union in strike misconduct. Indis-
putably, however, engaging in strike misconduct is not one of
the employee rights protected by Section 7. Encouraging truth-
ful testimony about misconduct condemned by law does not, in
any obvious way, discourage employees from engaging in con-
duct protected by the law.
On the other hand, soliciting an employee to lie about the
Union’s involvement in strike misconduct obviously could chill
the exercise of employee rights. Union officials and members,
faced with the prospect of defending against false allegations of
misconduct during a strike could become more reluctant to call
a lawful strike. “Trumping up” false charges or evidence
against the Union would constitute a serious violation of the
labor law. However, that is not what the complaint alleges.
GOLDEN STEVEDORING CO. 455
Additionally, that is not what the complaint means. At hear-
ing, when Respondent moved to dismiss this allegation, the
General Counsel either could have clarified its meaning, or
moved to amend the complaint. Thus, the General Counsel
could have explained that paragraph 8(f) was alleging that Re-
spondent attempted to suborn false statements about the Union,
using the promise of a job as the payoff. Or, the General Coun-
sel could have moved to amend the complaint by inserting one
word, “falsely,” between “he” and “implicated.” The General
Counsel did neither.
Insertion of that one word presumably would have added to
the government’s burden of proof. However, at the hearing, the
General Counsel did not attempt to introduce evidence to estab-
lish either that the Union was not implicated in strike miscon-
duct, thereby showing that the solicited statement would have
been false, or that Gonzales did not believe the Union to have
been implicated in such misconduct, thereby showing he was
trying to get Scott to lie.
Therefore, I conclude that the complaint does not allege that
the Respondent encouraged Scott to make false statements
about the Union. However, it is not apparent how encouraging
an employee to make true statements about unprotected activi-
ties would interfere with any employee’s right to engage in
protected activities. Paragraph 8(f) of the complaint does not
allege a violation of Section 8(a)(1) of the Act. I recommend
that it be dismissed.
In case the Board disagrees with me, I will discuss the evi-
dence and resolve credibility issues in the discussion below.
At the end of the strike, Larry Scott went to the office of Ed-
gard Gonzales to seek reinstatement.77 Scott testified that Gon-
zales invited him to sit down, and described the conversation as
follows:

Q. Then what was said?
A. He said, what did you come here for, like that. I
said, everybody else went back to work. I said, I got a let-
ter saying I could come back to work. He said, not you.
Q. I’m sorry. He said what?
A. He said, not you. He said, your service is no longer
needed. I said, well, I got a letter. He said, I didn’t send
you no letter. I said, well, everybody else went back to
work, why can’t I go back to work, you know. He said,
your service is no longer needed. He said because you put
down tacks and thrown rocks at my truck. I said, I didn’t
throw no rocks at your truck and I said, I ain’t put down
no tacks. I said, because I caught a flat tire with those
tacks that was out there. He said, you put them tacks
down. I said, no. I said, you put the tacks down, like that.

77 Scott testified that he received a letter concerning return to work.
From the record as a whole, I conclude that Scott received this letter
from the Union’s attorney, not from the Respondent.
He said, well, you was throwing rocks at my truck. I said, I
didn’t throw no rock at your truck. I said, Ms. Norma, I said
your wife throwed rocks at the truck and you put down the
tacks.
So he said, the Union put you up to do that. I said, no
Union put me up to throw no rock and put down no tacks
because I didn’t put down no tacks and I didn’t throw no
rocks. He said, you tell me that the Union told you to put
down those tacks and throw those rocks, he said, you can
get your job back. I said no. I said, I ain’t put down no
tacks and I ain’t throwed no rocks.
So he started saying some more kind of—he went
through the whole thing again. He said, did you put them
tacks down. I said, your wife put the tacks down. He said,
did you throw the rocks. I said, you throwed the rocks.
We went back over it again. He said, you want your
job, you put down the rocks, the Union told you to put
down the tacks and throw the rocks. I said, you put down
the tacks and your wife throwed the rocks, like that. He
said, you can’t say that. Get the hell out of my office. I
shot him the bird and walked out.
Q. Have you ever had any contact with the company
about a job again?
A. No, sir. [Tr. 741–743; emphasis added.]78

Edgard Gonzales testified that he made a tape recording of
his conversation with Scott, and Respondent introduced this
tape into evidence. (R. Exh. 30.) Respondent also played it for
Scott while he was on the witness stand.
Scott testified that the tape he heard was accurate, but he in-
dicated it was not complete. Scott said that the tape did not
include an exchange between Gonzales and Scott as Scott was
leaving the office. Although Scott’s testimony is not altogether
clear on what the tape left out, it generally is to the effect that
Gonzales again offered to rehire Scott if Scott said that the
Union told him to throw rocks and spread tacks.
In sum, Scott does not contradict the substance of the tape,
which did not substantiate his version. With respect to the
parting comment which Scott attributed to Gonzales, I am re-
luctant to credit Scott’s testimony on this point. According to
Scott, the parting comment was only one of at least three times
Gonzales offered to rehire Scott if Scott said that the Union was
behind the picket line misconduct. Yet the evidence does not
establish the other two times.
78 It may be noted that at this point, Scott was not an employee of
Respondent, because Respondent had made a lawful decision not to
reinstate Scott because of his misconduct on the picket line and else-
where. However, he was still an “employee” as Sec. 2(3) of the Act
defines that term. See Thomas Steel Co., 289 NLRB 389, 392 (1986);
Little Rock Crate Co., 227 NLRB 1406 (1977); and Town & Country
Electric, 309 NLRB 1250, 1255 (1992). See also Eastex, Inc. v. NLRB,
437 U.S. 811 (1971). In determining whether what Gonzales said
violates Sec. 8(a)(1) of the Act, it does not matter that Scott’s employ-
ment relationship with Golden already had been severed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 456
Moreover, it is clear that Scott was angry at the time he left
Gonzales office. He made a vulgar gesture to Gonzales as he
left, and Scott’s description of the conversation suggests that he
allowed anger to prevail over logic. Thus, Scott told Gonzales
that Norma Gonzales threw the rocks and spread the tacks, even
though the evidence doesn’t support such an allegation and,
apparently, Scott didn’t believe it.
If Scott were sufficiently upset to accuse the company presi-
dent’s wife of throwing rocks on the picket line, the same anger
probably affected his memory as well. In these circumstances,
and notwithstanding his efforts to recall and relate the facts
accurately, I do not find his recollection to be reliable.
I find that Gonzales did not make the offer attributed to him
by Scott, and alleged in complaint paragraph 8(f). Even were I
to find that paragraph sufficient to describe a violation of Sec-
tion 8(a)(1), I would recommend that this allegation be dis-
missed.
O. Complaint Paragraph 7(b) Dismissed
For clarity, I note here the disposition of the allegation in
complaint paragraph 7(b). At trial, the Respondent moved to
dismiss the allegation in complaint paragraph 7(b) for lack of
proof. The General Counsel stated he had “no defense” to the
motion to dismiss and I granted the motion.
CONCLUSIONS OF LAW
1. Respondent Golden Stevedoring, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Longshoremen’s Association, AFL–CIO,
South Atlantic and Gulf Coast District is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated the Act by the following conduct: By
threatening employees with closure of the facility, as alleged in
paragraph 8(c) of the complaint; by threatening to cause the
arrest of a union official if he engaged in Union or protected
concerted activities on the Alabama State Docks, as alleged in
paragraph 8(d) of the complaint; by suspending employees
Leon Autry, Donald Burrell, and Larry Scott on July 20, 1995,
insofar as the suspension extended beyond that date, and issu-
ing to them “final warning” letters as alleged in paragraph 9 of
the complaint; by refusing to accord employee Donald Burrell
his reinstatement rights as an unfair labor practice striker, as
alleged in paragraph 17 of the complaint; and by unilaterally
changing its disciplinary system from one predominantly in-
volving oral reprimands to one using written warnings, without
notifying the Union of the change and affording it the opportu-
nity to bargain, as alleged in paragraph 23 of the complaint.
4. Apart from the violations described in paragraph 3, above,
Respondent did not, in any other manner alleged in the com-
plaint, violate the National Labor Relations Act.
REMEDY
Since Respondent has been found to have violated the Act, it
must remedy those violations fully. The remedy shall include
posting a notice, as set forth in appendix “A” of this decision,
to address Respondent’s unlawful threat of plant closure and
the other violations found herein.
The remedy shall include ceasing its practice of issuing writ-
ten warnings in lieu of oral reprimands, and expunging from the
files of all employees in the bargaining unit any and all written
notices of disciplinary action which it issued at any time after
July 12, 1995, the date on which a majority of the employees in
the bargaining unit selected the Union to represent them.
The remedy shall also include rescinding the disciplinary
warnings issued to Leon Autry, Donald Burrell, and Larry Scott
on July 20, 1995 (GC Exhs. 2, 3, and 4), and expunging all
references to warnings from their files. In view of my finding
that Respondent did not violate the Act by sending these em-
ployees home early on July 20, 1995, the remedy does not in-
clude making them whole for losses of pay they suffered on
that date, but Respondent shall make them whole for losses
they suffered on July 21, 1995, because Respondent’s suspen-
sion unlawfully precluded them from working on that date.
Although the disciplinary warnings issued to Autry, Burrell,
and Scott indicate that Respondent also had imposed discipli-
nary layoffs on these employees by telling them to quit work
early on July 19, 1995, the evidence does not establish that to
have been the case. Rather, the evidence indicates that weather
conditions forced the Respondent to send the three men, and
other workers, home early on that date.
However, since the July 20, 1995 disciplinary notices pur-
port to be “Final Warnings,” and apparently claim that status
based upon the three men having received discipline the previ-
ous day, the remedy will include ordering the Respondent to
expunge from its files all references indicating that Autry,
Burrell, or Scott received discipline on July 19, 1995. This
portion of the remedy is not based on a finding that Respondent
discriminated against these employees by sending them home
early on July 19, 1995, but on the need to eliminate all vestiges
of the warnings Respondent unlawfully issued on July 20,
1995, including the inaccurate claims in these warnings that the
the employees had been disciplined previously.
GOLDEN STEVEDORING CO. 457
The remedy shall also include an order that Respondent offer
immediate and full reinstatement to Donald Burrell, and make
Burrell whole, with interest, for all losses he suffered by reason
of Respondent’s unlawful refusal to reinstate him on January
21, 1997.
[Recommended Order omitted from publication.]