Greenville Shipbuilding, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 891 (N.L.R.B. 1967)

GREENVILLE SHIPBUILDING, INC.
Greenville Shipbuilding , Inc. and United
Steelworkers of America, AFL-CIO
Greenville Shipbuilding , Inc. and
International Brotherhood of
Boilermakers , Iron Shipbuilders,
Blacksmiths, Forgers and Helpers,
AFL-CIO. Cases 26-CA-2269, 26-CA-2450, and
26-CA-2593
June 23, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On March 24, 1967, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision with a supporting
brief. The General Counsel filed cross-exceptions to
the Decision with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Greenville
Shipbuilding, Inc., Greenville, Mississippi, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
In finding Vickers ' speech of June 22 coercive , we rely
particularly on Vickers ' repeated references to the fact that the
owners of the shipyard had other businesses and, unlike the
employees , did not have to depend on the shipyard for a living In
our opinion these references , in the context of Respondent's
unconcealed opposition to the Union as reflected by the speech as
a whole, would inevitably be understood by the employees as a
repetition of the threats earlier made by Vickers and Supervisors
Muirhead and Tohdl to close down in the event the employees
selected the Union to represent them
891
Recommended Order, as herein modified.
1. The notice is hereby modified in order to
conform it to the provisions of the Order by deleting
the third indented paragraph and substituting the
following therefor:
WE WILL NOT interrogate our employees
about their activities on behalf of any labor
organization.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: These proceedings,
brought under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, were
heard, upon due notice, on October 26 and 27, 1966, and
January 19, 1967, at Greenville, Mississippi.' The original
charge in Case 26-CA-2269 was filed by United
Steelworkers of America, AFL-CIO, herein called
Steelworkers, on December 3, 1965, and amended on
January 10, 1966. The original charge in Case 26-CA-2450
was filed by International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL-CIO, herein called Boilermakers, on June 9, 1966,
and amended on July 29, 1966. The General Counsel of the
National Labor Relations Board, herein called the Board,
issued a consolidated complaint on August 1, 1966, which
was amended on October 21, 1966. Boilermakers filed the
original charge in Case 26-CA-2593 on November 2, 1966,
after the hearing in consolidated Cases 26-CA-2269 and
26-CA-2450 was closed and before briefs were due. The
charge in Case 26-CA-2593 was amended on November 9,
1966, and again on November 16, 1966. The General
Counsel issued the complaint in this case on
November 17, 1966, and on the same date filed a motion
with me to consolidate Case 26-CA-2593 with
consolidated Cases 26-CA-2269 and 2450 and to reopen
the hearing. Pursuant to the Board Rules and Regulations,
Section 102.35(h), and to avoid multiplicity of suits, over
the objection of counsel for Respondent, I granted the
motion to consolidate and to reopen the hearing.
In Case 26-CA-2269, where Steelworkers were the
Charging Party, a settlement agreement had been entered
into by the Regional Director for Region 26, the
Respondent, and Steelworkers. The General Counsel
seeks to set aside this settlement agreement in certain
particulars because of alleged breaches of the above
settlement agreement by the acts and conduct alleged in
Cases 26-CA-2450 and 26-CA--2593 .2
' Prior to the reopened heanng , Pargen Robertson resigned
from the government and Kenneth D Henderson thereafter
appeared as the counsel for the General Counsel
2 The Respondent moved to dismiss those allegations of the
consolidated complaint , issued on August 1 , 1966, involving
Steelworkers on the ground that the case had been settled and the
alleged breaches of the settlement agreement concerned
allegations of violations of Sec 8(a)(1) of the Act whereas the
settlement agreement encompassed conduct dealing with
violations of Sec. 8(a)(3) of the Act Associate Chief Trial
Examiner, Charles Schneider , denied Respondent's motion on
August 31 , 1966 Upon Respondent 's motion to the Board for
special permission to appeal the Associate Chief Trial Examiner
Schneider's denial, the Board , on September 22, 1966, denied
Respondent special permission without prejudice to renewal of its
motion in any exceptions filed with the Board Respondent
renewed the motion before me at the outset of the heanng and in
its brief For reasons which will appear , infra, the motion is
denied.
165 NLRB No. 134
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, including the briefs filed by the
parties, and from my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The General Counsel alleged, Respondent admitted,
and I find that Greenville Shipbuilding, Inc., herein called
Respondent, is and has been, at all times material herein,
a Mississippi corporation with its principal office and
place of business located at Greenville, Mississippi, where
it is engaged in the construction of tugboats and other
vessels. During the 12-month period preceding the
issuance of the consolidated complaint of August 1, 1966,
Respondent, in the operation of its business, sold and
shipped from the Greenville, Mississippi, location
products, constructed by it, which were valued in excess
of $50,000, directly to points outside the State of
Mississippi, and during the same period, it purchased and
received at its Greenville, Mississippi, location, goods,
wares, and merchandise valued in excess of $50,000
directly from points outside the State of Mississippi.
Accordingly, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and that it would effectuate the purposes of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The General Counsel alleged , Respondent admitted,
and I find that Steelworkers and Boilermakers are labor
organizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended, in consolidated Cases
26-CA-2269 and 26-CA-2450 alleged interrogation and
threats by Respondent's supervisors and agents, Jack
Tohill, Elmer Vickers, and Arthur Hill, in violation of
Section 8(a)(1) on various dates in October and November
1965.3 The consolidated complaint further alleges threats
to employees by Respondent's supervisor and agent,
Buddy Muirhead, in May 1966 and by Supervisor and
Agent Elmer Vickers on June 22, 1966. The allegations
concerning Vickers evolves around a speech made by him
to the assembled employees on June 22, 1966.
Respondent, in its answer, denies that any of the conduct
described above violated the Act in any way.
The complaint in Case 26-CA-2593, consolidated for
hearing with the above-described cases, alleged that
Respondent's agent, Elmer Vickers, threatened
employees with discharge because of union membership
or support on October 28, 1966; on the same date harassed
its employee, James West; and assigned West more
arduous duties because he gave testimony under the Act.
3 These allegations concern the charge filed by the
Steelworkers in Case 26 -CA-2269. The original complaint and
the settlement agreement referred to above also included
allegations concerning the discriminatory discharges of two
employees The amended consolidated complaint omits the
alleged discriminatory discharges and therefore seeks to set aside
the settlement agreement only in part , that part which concerns
the alleged violations of Sec 8(a)(1) as described above
" Mwrhead 's last name is incorrectly spelled in several places
The above - described conduct is alleged to constitute
violations of Section 8(a)(1) and (4) of the Act. A further
8(a)(1) violation allegation is made because of alleged
threats by Respondent 's supervisor and agent, Floyd
Baugher , on November 9, 1966. The Respondent, while
admitting Vickers and Baugher were supervisors within
the meaning of the Act, denied that they engaged in any
conduct violative of Section 8(a)(1) and (4) of the Act.
Under well -established Board precedent it is necessary
to consider first those allegations concerning
Respondent ' s conduct after the consummation of the
settlement agreement of April 18, 1966 . If it is found that
such conduct was violative of Section 8(a)(1) and violative
of the terms of the settlement agreement , it is only then
that the settlement agreement may be set aside and
consideration given to conduct occurring prior to April 18,
1966, which is alleged in the consolidated complaint as
violative of Section 8(a)(1).
B. Conduct of Supervisor Muirhead
James West testified that in the latter part of May 1966,
prior to a scheduled representation election to be
conducted by the Board, he had a conversation with Henry
C. Muirhead,4 an admitted supervisor within the meaning
of the Act. The evidence revealed that on this particular
day West met Muirhead on the dock and engaged him in
conversation and West asked what would a union do to
this job if it came in. According to West, Muirhead replied
that Vickers5 had enough money that he could go back to
towing on the river, that Vickers' partners also had plenty
of money, and that the job would have to close down.
Muirhead, presently employed elsewhere, testified that
he recalled James West and that West may have been an
extra welder sent down to assist his crew on occasion. He
stated that he had read the notice to employees that
Respondent posted pursuant to the settlement agreement
entered into concerning the Steelworkers charges. That
his superior, Yard Superintendent Mason, had directed
him to read it and advised him to be extremely careful of
all actions and words so that nothing would occur that
could be considered intimidation or coercion against the
employees. Pursuant to this precautionary advice,
Muirhead testified that, he thereafter, told employees who
asked him questions about a union that he was not
permitted to express an opinion. Muirhead could recall no
employees by name to whom he made this comment and
did not recall talking to West about the union. He
specifically denied that West had asked him what would
happen if the union got in, but later modified his testimony
by stating he could not recall such a question. He further
testified that if such a question were asked by West, he
would have followed his practice of refusing to comment
and would walk away from the questioner.
I credit West, who, throughout the hearing, impressed
me as a forthright witness possessed by a desire to tell the
truth. On the other hand, Muirhead conveyed the
impression that he was prepared to support the
in the transcript of the proceedings The record is hereby
corrected in that respect The General Counsel's pleadings refer
to "Buddy" Muirhead, a nickname which Henry C Muirhead
readily admitted when he testified Henry C Muirhead is
therefore substituted wherever Buddy Muirhead appears in the
pleadings
5 Elmer Vickers , president , active head and one of the chief
stockholders of Respondent
GREENVILLE SHIPBUILDING, INC.
Respondent in its defense, regardless of the true facts.
Accordingly, I find that Muirhead's threat that the yard
would close upon the advent of the Union constituted
interference, restraint, and coercion of employees' rights
guaranteed by Section 7 of the Act and thus was in
violation of Section 8(a)(1) of the Act .6
C. Vickers' Speech of June 22,19667
On the morning of June 22, 1966, Elmer Vickers caused
all employees to be summoned to the carpenter shed of the
plant where he delivered a speech which I find to be
violative of Section 8(a)(1) of the Act. Respondent's
counsel argue that Section 8(c) of the Act protects the
speech in that it merely expresses views, argument, and
opinion . Contrary to this contention, I find that in its
overall context and in specific paragraphs and statements,
the speech was replete with unmistakable and thinly
veiled threats of reprisal if the employees voted for the
Union. The employees so understood the speech and it is
manifest to me that Vickers intended the employees to so
understand it.
Vickers was appraised by me as a man who has little
regard for the truth where it is adverse to his own
interests. Vickers brazenly testified to obvious untruths
and when the true facts were brought out, blandly
acknowledged them without embarrassment. Accordingly,
I discredit Vickers whenever his testimony is in conflict
with the findings herein s
Initially, I find that Vickers delivered the speech as
written without major deviation, but with emphasis where
indicated. I credit the testimony of West and Leonard
Dees that Vickers told a couple of jokes during the course
of his speech, and that they understood Vickers to say that
if they (employees) were discharged on account of union
activities, they would not find work in Greenville; if the
men went out on strike they would lose their jobs; if a
union was brought in the yard wouldn't be there; and he
would not sign a contract with the Union. I believe,
however, that the speech was coughed in the terms as
contained in the attached Appendix A. But this fact as I
have noted above does not mitigate the coerciveness of the
8I note that Muirhead's statement as testified to by West,
paralleled a similar statement contained in Vickers' speech of
June 22, 1966, see "Appendix A "
7 The text of this speech with the original emphasis,
capitalizations and italics , is reproduced as "Appendix A" of
this Decision
6 Significant in this regard is Vickers' testimony in response to
the Trial Examiner 's question
TRIAL EXAMINER What promoted you to make this
speech? What was the reason for this speech9
A Because there had been a notice posted that the
Steelworkers were coming in
TRIAL EXAMINER Did you hear about Boilermakers
coming in 9
A No
TRIAL EXAMINER You heard nothing about the
Boilermakers at all9
A No
On recross-examination by the General Counsel, Vickers
professed not to remember that a representation hearing was held
by the Board concerning a representation petition filed by the
Boilermakers and that the hearing on the petition was held the
day before the speech. On further examination , however, he
acknowledged that he had received the documents notifying him
of the hearing on the representation petition, that it was held on
893
speech . The Fourth Circuit Court of Appeals in
McCormick Concrete Co. of S.C., Inc.,`' quoted with
approval the oft -repeated observation of Judge Learned
Hand in a similar situation:
" . . Arguments by an employer directed to his
employees have such an ambivalent character; they
are legitimate enough as such, and pro tanto the
privilege of `free speech ' protects them; but, so far as
they also disclose his wishes, as they generally do,
they have a force independent of persuasion. The
Board ' is vested with power to measure these two
factors against each other, . . . Words are not pebbles
in alien juxtaposition ; they have only a communal
existence ; and not only does the meaning of each
interpenetrate the other , but all in their aggregate
take their purport from the setting in which they are
used , of which the relation between the speaker and
the hearer is perhaps the most important part. What
to an outsider will be no more than the vigorous
presentation of a conviction, to an employee may be
the manifestation of a determination which it is not
safe to thwart...." N.L.R.B. v. Federbush Co., 121
F.2d 954 ,957 (2 Cir. 1941).
To reiterate , though an attempt has been made to cough
the words of the speech in verbiage which is argued as
"views, argument, or opinion," protected by Section 8(c)
of the Act, semantic obfuscation cannot obliterate the
plain message intended and conveyed to the employees.
This was not an attempt to influence the employees by
reason, but was an appeal to fear.' °
Section 8 (c) of the Act does not define freedom of
speech as absolute . The Congress , in enacting the Act, as
amended , was far too intelligent to be absolutists about
freedom of speech . Thus picketing may be an expression
of free speech or it may be a violation of the Act,
dependent on the surrounding circumstances and the
purpose. Here, in my view, Section 8(c) cannot be
stretched to immunize expressions that tend to bring about
the very substantive evils which Congress sought to
prevent by the Act . Moreover , nowhere in the speech,
which among other things professes to be a statement of
the law , is there even a hint of the employees ' guaranteed
June 21, 1966, at 10 a in , and that he saw copies of the petition
and was present at the representation hearing He then testified
as follows
TRIAL EXAMINER So, therefore , when you made your
speech on June 22, you knew that the Boilermakers had filed
a petition and that a hearing was held on the previous day
concerning the Boilermakers petition Is that correct?
A That is right.
Further indicative of Vicker's propensity as I have found above, is
his refusal to admit that the capitalization , italics, and other
forms of emphasis in the speech were in fact for the purpose of
emphasis or were in any way emphasized by him Even though he
admitted that many of the underlinings were made by himself,
and he considered them important , his adamant refusal to
acknowledge the purpose , and the fact of emphasis stretches
credulity His general demeanor, his testimony as described
above, and other facets of his testimony convinced me that he was
an unreliable witness
"371F2d149,152.
10 Marsh Supermarkets, Inc , 327 F 2d 109, 111 (C A 7), cert
denied 377 U S 944, citing Hendrix Mfg. Co, 321 F.2d 100, 104
(C A. 5), where the court of appeals held that certain remarks
were "subject to construction by the listener as a plain warning
that Union victory meant (loss of employment) "
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights under Section 7 of the Act," or the employer's
obligation to bargain in good faith if the employees select a
union to represent them for the purposes of collective
bargaining.
Analysis of the speech itself establishes that there are
23 references to strikes, there are 12 references to the fact
that the Company runs the plant, that the Union cannot
make the Company sign the union contract, that the
Company can say no to the Union. No mention is made of
the collective-bargaining process or the Company's legal
obligation to enter into collective bargaining in good faith if
the Union was selected by the employees as their
representative. On two occasions the speech emphasized
that the owners had other businesses and did not need the
shipyard. On the other hand, in each such instance the
point is made that the employees would have no job and
would have difficulty on securing a job in Greenville.
There are numerous references to the dire consequences
of unionization upon the employees and their families.
In my opinion, the entire thrust of the speech with its
over emphasis on strikes, serious consequences, loss of
jobs, and closing of the plant clearly was intended to and
did instill fear in the minds of the employees. Possibly
such an impact would not be effective against a group of
attorneys, college professors, or other groups of greater
sophistication. But here in this plant in Greenville,
Mississippi, where the evidence disclosed that an
employee who could read and write was considered
educated and where the rate of illiteracy was apparently
high, the natural and foreseeable result of such a speech
was to stifle and interfere with union organization by
threats of loss of jobs and closing of the plant.''
To recapitulate, my reasons for finding, above, that
Vickers' speech of June 22, 1966, was violative of the Act
is predicated on the finding that the speech, standing
alone, when viewed in its entirety, (1) contained plain,
unmistakable threats of reprisal against employees'
selection of the Union as their collective-bargaining
representative, (2) inhibited Respondent's employees from
exercising their guaranteed rights in Section 7 of the Act,
(3) asserted that it would be futile to select a bargaining
representative as no benefits but dire consequences would
result, i.e., strikes and plant closing, (4) promised that
future benefits would flow from Respondent if the
employees refrained from union activity or selection of the
Union as their representative, (5) indicated that
Respondent would not enter into the collective-bargaining
process in good faith if the Union was selected by the
employees as their bargaining representative.
D. Presettlement Conduct
In view of my findings above, I conclude that the
settlement agreement of April 18, 1966, was properly set
aside. It is plain that the postsettlement violations
demonstrate that efforts of adjustment by way of
settlement agreement had failed to achieve their purpose.
It is therefore necessary to consider the presettlement
conduct alleged in the consolidated complaint, as
amended.13
1. Conduct of Supervisor Jack Tohill
Perry King testified that he was employed by
Respondent as a welder from 1963 until November 11,
1965, when he was terminated. In the latter part of
October 1965 he had a conversation with Jack Tohill, an
admitted supervisor within the meaning of the Act. Tohill
met King as King was walking down the gangplank off a
boat and stated that he wished to see King in the office.
The two men went into the office and Tohill said he
understood that King had been having dealings with "this
union. "14 King admitted that he had. Whereupon Tohill
said, "Well, I don't know how you are situated about your
job. I probably could pull through and make it, but, there
will be a lot of people laid off, and the Company will shut
the job down before the union will come in, and that's
about the biggest of it." Tohill did not testify and King's
testimony stands uncontradicted in the record. As I credit
King, I find the interrogation as to King's union activities
coupled with the threat of loss of jobs and closing of the
plant to be violative of Section 8(a)(1) of the Act.
2. Conduct of Supervisor Hill
King testified that Arthur Hill, an admitted supervisor
within the meaning of the Act, was his immediate foreman
and that he had a conversation with him about
November 4, 1965. He testified that in the presence of
several other employees while they were eating and
discussing a conversation between Oscar Haley and
Vickers, Hill got up and said, "There has been too much
talk about this union. Somebody is going to lose their lob."
Haley testified that Hill said that he would fine the next
man that he heard say anything about the union, "mention
it in any way, shape or form." As Hill did not testify, the
above versions of Haley and King, which are in general
mutually corroborative, stand uncontradicted on the
record. I accept King's milder version and find that this
statement constitutes a threat of unlawful reprisal to
employees for engaging in protected activity and therefore
violative of Section 8(a)(1) of the Act.
Raphael D. Garner, fitter and welder, employed by
Respondent since 1963, and currently an employee,
testified that he solicited Foreman Hill to reinstate Haley a
day or so after Haley's discharge on November 11, 1965.
Hill thereupon asked Garner if he knew the three pushers
for the Union and that if he could get their names and turn
them in, it might clear Haley's name and get him back to
work.
11 Virginia Electric and Power Company, 314 U.S 469 In the
Virginia case, the Supreme Court considered it significant that
the company advised its employees that they did have a right to
join or designate the union as their collective - bargaining
representative In the instant case, the absence of such a
statement can only lead to a conclusion that the omission was
deliberate in order to avoid, as the speech states, any
misunderstanding by the employee
11 " . it may be said that the language of Section 8(c) of the
National Labor Relations Act, as amended by the Labor
Management Act of 1947, 29 U S C A., § 141 et seq , 61 Stat 136,
is no more than the restatement of the principle embodied in the
First Amendment " N L R.B v. Bailey Company, 180 F 2d 278,
280 (C.A. 6), or as expressed by the Supreme Court "The
remedial function of § 8(c) is to protect noncoercive speech by
employer and labor organization alike in furtherance of a lawful
object It serves that purpose adequately without extending its
protection to speech . , in furtherance of unfair labor practices.
" International Brotherhood of Electrical Workers Local 501 v.
NLRB., 341 U S 694, 704
11 Pioneer Natural Gas Company, 158 NLRB 1347
14 Steelworkers Apparently after the settlement agreement
entered into by Steelworkers, Boilermakers undertook the task of
organizing Respondent's employees
GREENVILLE SHIPBUILDING, INC. 895
Garner further testified that a day or two later Hill said
to him, "if they hear any more about the Union, that Mr.
Vickers might fire someone, the ones talking about the
union."
As Garner's evidence is uncontradicted on this record
and I find Garner to be a credible witness, I find that the
first statement by Hill to constitute unlawful and coercive
interrogation concerning protected activity and the second
statement to constitute a threat of unlawful reprisal for
engaging in protected union activity. Each of these
statements are, therefore, found to be violative of Section
8(a)(1) of the Act.
3. Conduct of Vickers
Oscar Haley testified that he was employed by
Respondent from 1962 until his discharge on
November 11, 1965. He testified that about November 4,
1965, about 7 p.m. he was on the way to the toolroom to
pick up a tool, when he saw Vickers in a conversation with
employee Dale Flowers. When Haley approached, Vickers
stepped out into the road about 25 feet away from Flowers
and said, "Before I start, I am going to say that I told them
they were a damn lie, that I didn't believe that you had
anything to do with it." Vickers then continued, "They tell
me that you are trying to promote a union out here. We are
not going to have any union out here, we will close this
place down, I will bulldoze a dump out here at the gateway
and no one can get in here and we will close it down. I have
all the money I need. I don't need any more, Mr. McCool
and Mr. Wallace, I think have what they want. They don't
want any either and we will just close it down."
Haley replied, "You are right, they are a lie, because I
haven't tried to promote any union. All I did was sign a
union card and pass it back to the man that gave it to me."
Vickers testified that he called Haley over and said to
him, "Doc,15 I would like to ask you a question." Upon
Haley replying, "Yeah," Vickers then said, "Haley, I know
you will tell me the truth. I heard that you were pushing
the union down here, and I would just like to know." Haley
replied, "Elmer, I am not going to lie to you. I am not
pushing any union, but if the boys go union, I would have
to go with them."
I share Vickers' opinion of Haley's capacity to tell the
truth and I fully credit Haley's version. Even on Vickers'
abbreviated version, I would find unlawful interrogation as
to union activity. The question posed by Vickers is a not
too subtle form of interrogation as to union leadership and
adherence. However, I find that Vickers did say more and
that he threatened to close the plant in the event the
employees selected a union . I find that the above
statements were violative of Section 8(a)(1) of the Act.
E. Conduct Subsequent to Close of Hearing on October 27,
1966
As stated at the outset of this Decision , the complaint iii
Case 26-CA-2593, consolidated after the hearing in the
previously consolidated complaints, concerns a charge
filed by the Boilermakers over treatment of employee
James West on October 28, 1966, just one day after the
close of the previous hearing.
James West testified that on October 28, 1966, he was
assigned by his leadman, Floyd Baugher, an admitted
supervisor within the meaning of the Act, to assist Frank
McKeenan, a pipefitter. It appears that ordinarily
McKeenan would not require assistance, but at that time
he was recovering from an injury. While McKeenan and
West were on their way to get pipe for additional work in
the hold of the boat, McKeenan suggested that they get a
coke. McKeenan and several others were near the coke
machine, drinking coke, while West was standing there, as
he does not drink coke. At this time, Vickers passed by
and said to West, "What are you doing here? You aren't
drinking coke, what are you waiting on?" West replied he
was waiting for McKeenan. Vickers then said, "You aren't
drinking coke. You are supposed to be working from the
time you get here until you leave. I know you are union,
because everyone else is afraid of you, but I'm not." At
this point, according to West, Vickers "grabbed" him by
the arm and led him off in a forceful, angry manner. West
thereupon departed in search of a truck on which to load
pipe. He got into a pickup and was about to start it when
Vickers looked into the window of the truck from the
passenger side and said, "Hoss,'s from the time you get
here until you leave I want you to work and do nothing else
but work. West, me or you is going to leave here and it sure
as hell ain't going to be me." West then started the truck
and departed. While West was getting the pipe,
McKeenan came to him and said, "Mr. Baugher wants you
up on the deck. You're supposed to do some welding up
there." West took his welding machine on deck and
Baugher said to him that he was to weld on the deck,
instructing him what was needed. After a while, West said
to Baugher, "Vickers is sure making it bad, he ain't
nothing but a horse's ass." Baugher said, "Don't blame
me, I'm just doing my job." Thereafter, West testified, he
worked on the deck in full view of supervision at all times,
took one break in the morning but took no breaks in the
afternoon because, "I want to make a showing and I
wanted to keep my job."17 West further testified that prior
to his assignment to work on the deck, he had been
welding and tacking in the hold, that the work was less
arduous in the hold because he worked in different
positions and was able, at times, to sit while working. On
the deck, welding or tacking was in one position and as he
was in full view of supervision he kept working without
resting because of his desire to "make a showing" and his
instructions from Vickers to work all the time. West also
testified that more and heavier rods were used for the
work on the deck, than in the hold.
West then testified that about 1-1/2 weeks later, West
was welding on the deck when a can containing his
welding rods was overturned. Vickers came upon the
scene and after determining that the rods were West's,
said to West, "I don't want them spilled all over the deck
like this, I want you to pick them up." West went over and
stood the can up. West claimed that the rods were not out
of the can. Vickers then added, "Now I want you to go to
tell Mr. Graves."i8 Baugher then came up and after some
preliminary conversation, West said, "Well, Mr. Vickers,
he got on me about rods, Mr. Baugher, they wasn't even
spilled on the deck or anything." Baugher replied, "Jim,
15 Apparently a nickname for Haley
16 Vickers denied that he used this term, but Respondent's own
witnesses testified that Vickers used this manner of address quite
frequently.
11 At the time of the hearing on January 19, 1967, and for a
month previous, West was again working in the hold.
18 Charles Graves, International representative of
Boilermakers, who entered an appearance in this case in behalf of
the Boilermakers.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you're going to have a hard time whether the union goes in
or not from now on, why don't you just leave and get you
another job." West replied, "I could if I wanted to but my
home is here, I got to stay here. My wife is a teacher at the
village and this is my home and I'm not leaving."19
Vickers, in his testimony admitted that he singled out
West at the coke machine because he was not drinking a
coke, denied that he "grabbed" West by the arm, and then
stated that he followed West to the truck and said to him,
"West, all of this fooling around has got to be stopped. All
I'm expecting out of you is work, as long as you do your
work, union or no union, you have got a job here." Vickers
also stated that he instructed Baugher, immediately
thereafter, "find something for West to be doing to keep
him busy."
Vickers also testified, with regard to the spilled rods,
that 12 to 15 had rolled over the deck and that he told
West, "Well, how about picking them up and putting them
back in your can and keep them in there because
somebody will step on them and hurt themselves." West
replied, "Yes, Sir" and then Vickers said, "Now go tell
Graves that, you tell him everything else."
Baugher, in his testimony, conceded that he had
assigned West to help McKeenan on the day of the coke
incident; upon Vickers' orders to keep West busy, he had
put West to work on the deck; he had not informed
Vickers that he had assigned West to help McKeenan; and
he believed he put someone else on to help McKeenan.
Concerning the spilled rods incident, Baugher denied
telling West that he was going to have a hard time and to
quit.
I credit West's versions of the incidents described
above. Vickers admitted referring to West's known union
activity at the time of the coke incident and at the time of
the spilled rods incident, I discredit Vickers' and
Baugher's testimony where it is in conflict with West's.20
Owen Haley contributed nothing by his testimony as he
admitted he paid little attention and that his memory was
poor. I do not credit Owen Haley where his testimony
contradicts West's.
It is clear that Vickers harbored deep resentment
against West because of his known union sympathies.
Accordingly, Vickers went out of his way to pressure
West, to find fault with him over trivialities, to taunt him
over his union sympathies, to exact a higher standard of
work performance from him by keeping him "busy," and
to generally harass him. Baugher, quite aware of Vickers'
attitude, readily cooperated with Vickers, but, apparently,
wishing to be relieved of any burden, suggested that West
quit his employment. West refused to accede to this
suggestion for the cogent reasons he stated in his
testimony as set forth above.
The General Counsel urges a finding that the above
constitutes discriminatory treatment because West gave
testimony under the Act in the earlier hearing. There is
much force to this argument as the coke incident followed
West's testimonial appearance in the previous hearing by
just 2 days and but 1 day after the hearing closed.
However, I am not persuaded that this is the case as
nowhere in West's recital, which I have fully credited, is
there any reference by management to West's adverse
testimony in the previous hearing. I do find that each of
the incidents described above constituted independent
violations of Section 8(a)(1) in that they constituted threats
19 The foregoing statements reflect the testimony of the
interchange elicited on cross-examination
of unlawful reprisals and discriminatory treatment
because of West's known union sympathies. At any rate,
as the remedy for the 8(a)(4) violation is similar to the
8(a)(1) violations which I have found, I need not and do not
find that Respondent has violated Section 8(a)(4).
It is clear that Respondent, by conduct occurring after
April 18, 1966, the date of the settlement agreement, was
continuing to engage in the same type and character of
unlawful conduct. I find, therefore, Respondent did not
comply with the terms of the settlement agreement and
sustain the setting aside of this agreement.
Upon the basis of the above findings of fact and upon the
entire record in this case, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act to assert jurisdiction
herein.
2. Steelworkers and Blacksmiths are labor
organizations within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Regional Director for Region 26 was justified in
setting aside the settlement agreement of April 18, 1966, in
Case 26-CA-2269.
6. Respondent did not violate Section 8(a)(4) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall order that it cease and desist
therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
The pattern of the violations found evinces a general
hostility on Respondent's part to the purpose of the Act
and to the rights of employees to engage in legitimate
concerted activities for purpose of organization or other
mutual aid and protection. Accordingly, in order to make
the remedy coextensive with the threat of future unfair
labor practices, I shall issue a broad order enjoining all
forms of unlawful interference with rights guaranteed
employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the foregoing evidence and conclusions and the
entire record in this proceeding, and pursuant to Section
10(c) of the Act, it is recommended that Respondent,
'Greenville Shipbuilding, Inc., Greenville, Mississippi, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their activities on
behalf of any labor organization.
(b) Threatening employees with discharge, plant
closing, or economic reprisal because of their union
activities or sympathies.
(c) Informing employees that it will be futile to select a
20 Vickers testified that he did not dislike unions Clearly, his
own admissions establish his union antipathy.
1
GREENVILLE SHIPBUILDING, INC.
union to represent them and that selection of a union
would mean strikes and loss of jobs.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any and all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its Greenville, Mississippi, establishment,
copies of the attached notice marked "Appendix B."21
Copies of said notice, to be furnished by the Regional
Director for Region 26, after being duly signed by the
Company's representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it,
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.22
21 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
22 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read. "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
GREENVILLE SHIPBUILDING CORPORATION
TALK DELIVERED BY MR. VICKERS ON JUNE 22,
1966
We have called you together today to talk about a
serious matter. Please pay careful attention to what I am
about to say, because it will have an important effect on
you, your job, and your future relations with this company.
I am reading my remarks so that I will have a record of
exactly what is said here today.
As all of you know, the union is trying to get in here. I
believe you know how the company feels about this, but so
there will be no doubt in anybody's mind, I want to let you
know exactly where we stand.
WE DO NOT WANT THE UNION IN HERE !
WE ARE TAKING A STRONG STAND AGAINST THE
UNION !
WE ARE GOING TO FIGHT WITH EVERY LEGAL MEANS
TO KEEP THE UNION OUT !
We don't want any of you to be able to come in later and
say, "Why didn't the company tell us how it felt about the
union?"
897
We are telling you now that we are against the union and
that we don't want the union in here. That is the
company's position and there should be no doubt in
anyone's mind as to where we stand.
Here is a question you should ask yourself: Are you
going to put your faith and confidence in the company and
its managers and supervisors that a lot of you have known
and trusted for years- or- are you going to turn your job
and your future over to the union and a few paid union men
who have no real interest in either you or the company?
This is a very serious question that is facing you, and you
should give it careful thought.
The union organizers and the men pushing the union
have probably made a lot of promises and big claims about
what the union can do. Anybody can talk big and make a
lot of promises about spending the company's money. It is
one thing for them to make those promises- it is
something else for them to make good on those promises.
Ask the union to guarantee in writing that you will get the
things they promise. They will not give you any such
guarantee , because the union knows the only thing it can
guarantee you is a strike and that you will have to pay
regular dues, fees, and assessments to the union . I think
you would make a serious mistake to turn your job and
your future over to the union . You know this company, and
you know what we stand for. The company and its
managers and supervisors are friends of yours. You know
that we have your best interests at heart, regardless of
what you have been told by the union men.
Let's just suppose for a minute that you listened to the
union and voted for the union in an election. Would the
company have to fulfill the promises the union made to
you? The answer is NO. If the union won an election,
would the company have to sign a contract and agree to
the union's demands? Again, the answer is NO.
There is no law that forces the company to agree with
the views and demands of the union , even if the union
should win an election here. If there were any such law, do
you think there would be hundreds of union strikes every
year?
The union never bothers to tell you the truth, because
the truth is- even if every one of our employees signed a
union card- even if the union won a Labor Board
election- the company still would not have to sign the
union 's contract and fulfill the promises of the union or
agree to the union 's demands. There is nothing automatic
about signing a union contract, even if the union should be
voted in here. The company still would have the right to
say NO to the union.
Suppose the union should win an election here and then
the company did not agree to the union 's demands and
contract proposals. What could the union do about it? How
could the union make us sign its contract? Ask yourself
that question and think about it- How could the union
make us sign its contract?
There is only one true answer to that question. The
union would call you out on strike to try to get the things
the union promised to get for you. In other words, you
would have to pay a lot of your money to the union in dues
and fees. But when the chips were down to try and get the
things the union promised you, you would be the ones who
would have to go out and walk the pavement in a strike.
You would be the ones on the picket line. It would be you
and your families who would suffer. It would be you who
would do without your pay. The union organizers would
lose nothing because of the strike. Their families would
not be deprived of anything. They would continue to draw
their salaries all during the strike. They have nothing to
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lose, so the union doesn't mind calling a strike. But with
you, it is different. You have everything to lose.
Remember these things about a strike:
First, if the union called you out on strike, you would not
get paid. The company won't pay your wages during a
strike and neither will the union. They may promise they
will pay you $2.00 or $3.00 a day for carrying a picket sign,
but I doubt that they would even do that.
Second, you cannot collect unemployment money while
out on strike. The law does not permit the payment of
unemployment money to employees on strike.
Third, and this is the most important of all- if you go
out on strike, you can lose your job. If the union calls you
out on strike over the things it has been promising, the
company is perfectly free, under the law, to hire
permanent replacements for you. Once this happens, the
company is under no obligation to give you your job back,
even after the strike is over. I want to repeat that, because
it is so important. If the union calls you out on an economic
strike, the company is free to hire permanent
replacements for you. If you are replaced during a strike,
your job is lost. Thousands of union members have lost
their jobs in strikes, and the same thing could happen here
if the union got in.
I sincerely hope that we never have any union trouble
here. I hope that we never have a strike. I hope that none
of you ever lose your job in a strike. We have good
employees here and we are proud of you. I hope that none
of you ever get involved in any union trouble. But I want
you to understand that this is serious business and you
should not take it lightly. We know our rights under the
law and we intend to stand up for those rights. We are not
afraid of the union, and if the union wants a fight, we are
prepared and will not back away from it.
The union organizers may say they won't call a strike
without your consent, but when the time comes to strike,
the union will tell you to strike-they won't ask you. They
will say that you voted for them in the election and that you
have to do whatever they tell you. If any of you object and
say you don't want to go out on strike, the union could
make it pretty rough on you.
I understand that some of the men pushing the union
have been making some rash statements. They will try to
make you believe that the union will start running this
company if it gets in here. Let's get that straight before we
go any further- as long as this yard stays open, we are
going to run it- not the union. The union does not have
one cent invested in this company and it is never going to
tell us how to operate. Company representatives sign your
paychecks and pay your wages- not the union. The
company gave you your job here- not the union. The
union does not pay your wages- it did not give you your
job- it has never given you one cent, and it never will.
The union is interested in you for only one reason. They
want to get your name on the union 's books so they can
begin charging you regular dues, fees, and assessments.
This is nothing but a big money deal to the union. They
know they can take hundreds and hundreds of dollars
away from you if they get in here. Your money is the only
thing the union is really interested in. Once the union gets
your name on their books, you will pay plenty, whether you
like it or not.
Most of you are married and have families. All of you
have responsibilities and obligations that make it
necessary for you to work. Otherwise, you would not be
here. You should not let the union put your job in danger or
do anything that could throw you out of work. Jobs like
yours are hard to find here in Greenville.
You should not let the union turn you against the
company and change the personal relationship that has
existed between you and the company. You have good
jobs, and this is a good company to work for. We have
always tried to be fair with every one of our employees,
and we will continue to deal fairly with you in the future.
We have always followed a policy of improving working
conditions and raising wages, and we will always continue
to follow that policy. No union can force us to do more than
that.
As some of you men know, when we first started this
yard in 1961, there was only a few men working here,
which some of you are still here. I don't have to remind you
of the conditions that we were working under then. There
was hardly a road in this weed field that we started in. We
had very few tools and equipment to work with. We more
or less started with nothing and I feel that everybody has
worked hard towards trying to build this place up. You
men may not know it, but we have put everything in profit
that this company has made back into the company trying
to improve the working conditions. As for the owners of
the company, we have not taken a dime out of the
company since it started and we don't intend to until this
company has built itself up to 4 fair yard and we have
equipment to work with. The owners are in private
business, as you all know, and we don't have to depend on
the yard for a living. I have my towing company that will
support me and my family. Mr. Wallace has his machine
shop that will take care of him. Mr. Wasson has his
insurance company. We operate this yard because we
want to, not because we need to.
I spend a lot of time at the yard because I enjoy working
around men and I enjoy this kind of work. In the last 5
years we have gone from 5 men to anywhere from 50 to 80
men without the help of any union or union organizer and
we are certainly not going to stand around now after doing
all this work and let some outsider, who knows nothing
about our work or our men or the conditions that we work
in, tell us how to run our business. As long as we sign the
checks of the Greenville Shipbuilding Corp. we will still
run this shipyard- not the union.
Here is something else- all of the other outfits that
build boats here in Greenville are non-union. None of them
have a union and none of them plans to have a union.
Those are the companies we have to compete with- we
have to keep our costs of operation in line with them. If we
don't, they will take our customers and our business away
from us. Our wages and benefits are already equal to or
above the other shipyards here in Greenville. Our
customers, like Twenty Grand, come to us now because
they know they can depend on us to meet a deadline. They
know we have always been reliable. They could change
their mind about us if the union got in and began to disrupt
our operation, with their work restrictions or strikes or
picket lines. If our customers take their business and go
somewhere else, this yard is going to be in a fix. I have my
other business that I can live on. Mr. Wallace has his
machine shop and Mr. Wasson has his insurance business.
The union organizers would just pack up and move on and
the union would still pay them their salaries and expenses.
But what about you? Where would you go to find another
job as good as this one?
You should not be rushed into anything by the men who
are pushing the union. Don't be rushed into anything by
men who are being paid by the union and who are trying to
make personal gains at your expense. This is a serious
GREENVILLE SHIPBUILDING, INC.
matter and you have a lot at stake. You should not let
anyone talk you into doing something that could endanger
your job and your security. Be sure you have all the facts.
If you have any questions, we will be glad to discuss them
with you at any time. Please think carefully about these
things. I would hate to see any of you make a mistake you
could always regret.
Thank you.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
The Congress of the United States, in order to lessen the
possibility of strikes and consequential damage to
interstate commerce, passed the Labor Management
Relations Act, as amended, for the purpose of encouraging
the practice of collective bargaining between employers
and representatives of employees who are freely chosen by
employees, and without unlawful interference by
employers.
WE WILL NOT interfere, restrain, or coerce our
employees in the selection of International
Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO, or any
other union as their collective-bargaining
899
representative.
WE WILL bargain in good faith with Boilermakers or
any other union selected by our employees to
represent them and sign an agreement if one is
reached.
WE WILL NOT threaten to discharge or to engage in
reprisals against any of our employees because they
engage in union activity or became members of a
union or are in favor of union organization.
All our employees have a right to engage in union
activity, to join or assist in forming a union in order to
bargain collectively concerning wages, hours, and working
conditions.
All our employees may, if they choose, refuse to engage
in union activity or refrain from joining or assisting a union
or union organization.
Dated By
GREENVILLE SHIPBUILDING,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 534-3161.