Hoboken Shipyards, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1507 (N.L.R.B. 1985)

HOBOKEN SHIPYARDS 1507
Hoboken Shipyards, Inc. and Joel Fredericson. Case
22-CA-12558
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
:HUNTER. AND DENNIS
On 31 December ^ 1984 Administrative Law
Judge Winifred D. Morio issued the attached deci-
sion. The Respondent. and the General Counsel
filed exceptions and supporting briefs, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegat-
ed 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, i and
conclusi_ons2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent,- Hoboken
Shipyards, Inc., Hoboken, New Jersey; its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility 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
2 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(3) and (1) of the Act by refusing to hire employee Fredericson, we
find that the evidence here presents a dual-motive situation However, we
conclude, as did the judge„that the Respondent has failed to meet its
burden under Wright Line, 251 NLRB 1083 (1980), to establish that it
would have taken the same action with respect to Fredericson even
absent his union activities Accordingly , we do not rely on the judge's
pretext analysis
Member Dennis agrees with the judge that the Respondent refused to
hire Fredencson only for unlawful reasons, but emphasizes that the
Board's test in Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d'
899 (1st Cir 1981 ), cert denied 455 U S 989 ( 1982), applies to "all cases
alleging violation of Sec 8 (a)(3) or violations of Sec 8 (a)(1) turning on
employer motivation ," including both "pretext" and "dual motivation"
cases The General Counsel, as the judge found, presented a prima facie
case under Wright Line, which the Respondent failed to rebut with credi-
ble-legitimate reasons for its failure , to hire
DECISION -
STATEMENT OF THE CASE
WINIFRED D. MORIO , Administrative Law Judge. This
case was tried before me on January 30, and 31, and
February I 1 and 2, - 1984, at Newark , New Jersey. The
complaint , which - was issued by the Regional Director
275 NLRB No. 212
for Region 22 on September 30, 1983, alleged, in sub-
stance, that Hoboken Shipyards, Inc (Respondent/-
Company) violated Section 8(a)(1) and (3) of the Act by
failing- to hire Joel Fredericson and Thomas Jefferies be-
cause they engaged in certain protected union activities,
including filing grievances, enforcing the collective-bar-
gaining agreement, and seeking union office and because
they filed or assisted in filing a complaint with the Equal
Employment Opportunity Commission (EEOC) and a
class action suit against Bethlehem Steel Corporation
(Bethlehem Steel). The answer, filed by Respondent,
denied the commission of the alleged unfair labor prac-
tices and, affirmatively, alleged that Respondent was not
a successor to Bethlehem Steel and was not obligated to
hire former Bethlehem Steel employees
All parties were given a full opportunity to participate
in the proceedings, to cross-examine witnesses, to argue
orally, and to file briefs. Briefs were filed by both par-
ties.
On the entire record in the case -and my observation of
the witnesses and after careful consideration I make the
following
FINDINGS OF FACT
I. JURISDICTION
Based on the pleadings and the admission of the par-
ties, I find that Respondent is an employer engaged in
commerce within the ' meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
The parties admit, and I find, that Industrial Union of
Marine and Shipbuilding Workers of America, Local 15,
AFL-CIO (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
Bethlehem Steel had collective-bargaining agreements
with the Union for many years, which agreements cov-
ered all its employees at the shipyard at Hoboken, New
Jersey. In December.1982 Bethlehem Steel sold the ship-
yard to Respondent and on January 1, 1983, Respondent
began its operations at the shipyard. Respondent, under
the terms of-the purchase and sales agreement between
the parties, purchased only the personal and real assets of
Bethlehem Steel and reserved the right to hire its own
employees and to regulate its labor relation policies. The
agreement also . provided that Respondent would not
consider an employee's'seniority with Bethlehem Steel as
a factor in its decision to hire employees and it further
stated that Respondent did not succeed to or assume the
collective-bargaining agreement in existence between
Bethlehem Steel and the Union. Although Respondent
was not obligated to hire Bethlehem Steel employees it
did hire, as part of its initial work force, approximately
103 former Bethlehem Steel employees, in addition to
other employees. Respondent granted recognition to the
Union in December 1982 because the Bethlehem Steel's
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former employees constituted a majority of Respondent's
initial work force, and Respondent entered into a collec-
tive-bargaining agreement with the Union, effective from
December 1982 to December 1983. The-total number of
applications for employment filed by both former em-
ployees of Bethlehem Steel and by other - individuals
numbered -between 1500 and 2000 and from this number
approximately 500 to 600 individuals were hired. In the
rigging department, the department in which Frederic-
son and Jefferies had been employed as riggers at Bethle-
hem Steel, Respondent hired 61 former Bethlehem Steel
employees.' However, it did not hire 70 of the former
employees, some of whom had greater seniority as rig-
gers than did Fredericson In addition to hiring former
Bethlehem Steel rank-and-file employees, Respondent
also hired some of Bethlehem Steel's supervisory staff,
including Joseph Cangelosi , as assistant general manager,
Donald Finley, as director of industrial ° relations, and
Ray Govic, as rigging foreman The General Counsel
contends that these individuals made the,decision not to
hire Fredericson and Jefferies because of their 'knowl-
edge about the Union and other protected activities of
both individuals while they were employed at Bethlehem
Steel.
The record establishes that the operation of the ship-
yard, while under the control of Bethlehem Steel, had
been unsuccessful. for some time before November 1982
when Eliot Braswell, an officer of Respondent, decided
to purchase the yard. In an effort to make the operation
successful, Respondent instituted a number of changes.
Thus, major reductions were made in the expenses for
fuel and lighting at the shipyard The supervisory staff
under the Bethlehem Steel operation. had numbered 160
but Respondent limited its supervisory staff to 60 individ-
uals In addition , and with the Union 's agreement, the
number of shop stewards-was reduced,- the lunch period'
was shortened, the length of vacation period also was re-
duced , and the employees were not assigned to perma-
nent shifts but were assigned as needed Cangelosi testi-
fied that as a matter of self- interest he was determined to
gain greater control over the operation at the shipyard
and to put together the best possible organization and,
with this goal in, mind, he instructed the foremen of each
department to provide him with a list "of the best, most
dependable , easiest to supervise , most skilled , most pro-
ductive, most supportive" individuals. He wanted people
who would "put out the effort to make " our second
chance a successful chance "
Cangelosi also told the supervisors not to list those in-
dividuals who' had been absent frequently, or were
drunkards, thieves, malcontents, refused to cooperate, or
wanted things their own way Ray Govic, who had been
rigging "foreman with Bethlehem Steel and had a .similar
position with Respondent, '-provided a list of 20 names in
response to Cangelosi's,request. The names,of Frederic-
son and Jefferies were not on that list -
i The number of former Bethlehem Steel riggers hired by Respondent
was 61 and the other individuals hired numbered about 28
B The Prior Activities of Fredericson and Jefferies
Joel Fredericson commenced his employment with
Bethlehem Steel in 1976. In about the spring of 1978 Fre-
dericson began to become active in internal union affairs
and in 1979, he campaigned on behalf of a 'fellow employ-
ee, Mike Armenio, who was seeking the position of shop
steward. Fredericson testified that due to the fact that
supervisors voted in the election for shopsteward, he
circulated petitions challenging t'heir 'participation in the
election. In addition, he distributed literature -to fellow
employees in which'he urged employees to become-more
active in internal union matters and m - which ' he criti-
cized the Union for failing to take a stronger position
against what he perceived to be contract violations by
the Company. In February 1981, Fredericson was elect-
ed to the position of night-shift shop steward for the rig-
ging department and he continued in that position until
he was laid off in December 1982 During his tenure as
shop steward, Fredericson filed numerous grievances and
many of these grievances were resolved in favor of the
aggrieved employee Basically,'the grievances related to
supervisors performing riggers work, violation-of seniori-
ty rights, and the failure to pay employees for perform-
ance of "dirty" work.2 Donald Finley, director of labor
relations, testified that the type and number of grievances
filed by Fredericson were similar to the type and number
of grievances filed by other shop stewards. Govic cor-
roborated Finley's testimony on this point.3 Fredericson
also testified that in July 198Lhe was nominated for the
position of executive secretary of the Union but was dis-
qualified from running for the position by the Union In
the letter, which he forwarded to the Union's executive
board about being improperly disqualified, Fredericson
noted that John Iwasiuta and Michael Armenio, who had
sought the, positions of president and trustee, respective-
ly, also had been improperly disqualified These two in-
dividuals were hired by Respondent, as were Girolamo
Calo and Manuel Alvarado who signed the letter of pro-
test to the executive board. A second election was held
in September 1982 and this slate included Fredericson,
Jefferies, Jose Alvarado, and Thomas Stokes Respond-
ent did not hire these four individuals Alvarado was not
hired because he failed to pass the- physical examination
and Stokes was not hired because he had =a drinking
problem and a poor performance record. Alvarado and
Stokes apparently did not file charges.4' The reason for
not hiring Fredericson and Jefferies will be' discussed
-below ' •
In addition to these activities, Fredericson investigated
a grievance filed by Jefferies in May 1982 with- respect
2 Employees were paid additional moneys for performing work which
was considered of a particularly dirty nature
9 Govic testified that several of the shop stewards -who had filed nu-
merous grievances were hired by Respondent, and others who had filed
only a few grievances were not hired because of poor work performance
This testimony was not refuted , ,
.
4 Respondent hired Gerry Calo, Joseph Centeno, . Larry" Piston, and
Norman Young, all of whom had run unsuccessfully for union office On
the other hand, employees C Thompson, D Hanks, A Sillette, J
Murray , I Wilson, and J Wingert, who held union positions -as shop
stewards , were not hired because of medical reasons or poor work per-
formance -
HOBOKEN SHIPYARDS
to the failure by Bethlehem Steel to.grant Jeffries his se-
niority status in accordance with the provisions of the
contract The grievance was processed and Jefferies was
given his proper seniority, however, the parties were
unable to resolve Jefferies' "backpay claim Subsequently,
Jefferies and other employees, who Fredericson had dis-
covered in the course of investigating Jefferies' claim
had not received their correct seniority status, filed class
suits" which- were settled by Bethlehem Steel.,It is con-
ceded that Cangelosi, Finley, and 'Govic, in their super-
visory positions with Bethlehem Steel, knew about these
activities of Fredericson and Jeffries.
IV. THE ALLEGED EVIDENCE OF ANIMUS
George Murch had been employed by Bethlehem-Steel
in the rigging department for many years and at one
point he had been employed as a supervisors According
to Murch, at some point in 1981 when "Fredericson was
seeking the position of shop "steward or some other union
position, he overheard a discussion between Govic and
another supervisor, Mel Cumberbatch6 about whether
Fredericson would be elected., During the conversation,
Govic stated that Fredericson would not be; elected be-
cause the men did not like him and he was a communist.
Murch claimed that he heard this. statement made by
Govic on several occasions around the time Fredericson
was seeking the position of shop steward or some other
union position in 1981 7 Murch also claimed. that Govic,
Finley, and other supervisors, on several , occasions,
around the' time of the election, stated that Fredericson
"would be trouble." On another occasion Murch over-
heard Finley, Phil Ditmar, president of the Union, and
John Kullen, a union representative, discussing Frederic-
son. According to Murch, one ' of the three, he was
unable to state which one, said that Fredericson "would
be trouble" if he became shop" steward Murch also testi-
fied Finley, Ditmar, and Kullen spoke to him about the
election and said to him, "see what you can do, don't let
Fredericson in.", -
Joseph Jugovich, also a former employee of Bethle-
hem Steel, testified, that he' heard Govic, ' on several un-
specified occasions, refer to Fredericson as a commu-
nist 8 He also testified , "They all used to call him a com-
munist and I used to just laugh and like it just , I,think
they just used the word to say something, I don't even
think they knew what the word meant. And 'they just
said that if he gets in they're"going to break the union
and different things like that
5 Murch was removed from his supervisory position because he had a
drinking problem Govic refused his request for employment with Re-
spondent because of that problem
6 Cumberbatch had been employed by Bethlehem Steel but was not
employed by Respondent It appears that Cumberbatch died at some
point prior to the hearing As noted during the hearing , any statements
made by Cumberbatch while employed by Bethlehem Steel are not rele-
vant to the issues in the case I, therefore , have not considered statements
'allegedly made by Cumberbatch. to his brother John Herbert .
It is unclear from Murch's testimony whether these alleged state-
ments were made in February 1981 when Fredericson was seeking the
shop steward position or in mid-1981 when he sought the position of ex-
ecutive secretary
8 Jugovich also was not hired by Respondent
1509
Govic did not deny that he had referred to Frederic-
son as a communist , nor did he deny " that he had said
that Fredericson could cause trouble. Finley testified that
he heard Ditmar and Kullen refer to Fredericson as a
communist and heard them refer to him and others on
the opposition slate, including John Iwasuita , as trouble-
makers. Finley denied that he had referred to Frederic-
son as a communist and denied that he had agreed with
others that Fredericson was a communist.
In August 1982 Fredericson circulated ' a letter in
which he criticized management about the safety condi-
tions at the yard and in which he implied that the lack of
concern by the management of Bethlehem Steel about
these conditions had cause the death of an employee.
Cangelosi testified that he thought the letter inappropri-
ate and annoyance would be a mild term to express his
displeasure about the letter . Cangelosi admitted that he
was aware that Fredericson had filed grievances and had
engaged in some ' activities , which he termed stunts, in-
cluding the "posting of this and distribution of this, the
campaign literature with everyone 's picture on it." Ac-
cording to Cangelosi, he was not surprised that Frederic-
son's name was not on the list of riggers recommended
to be hired by Govic because "he was not one of the
ones that I knew we counted on to get things done."
The Reasons Stated by Respondent for its Failure
to Hire Fredericson and Jefferies
A. Fredericson
1. Fredericson only wanted to work nights Govic had
repeatedly experienced difficulty when attempting to get
Fredericson ' to work the day shift when the need arose.
Govic knew - this would be even more troublesome as
Hoboken -intended to operate with a leaner work force
and would require more flexibility of its crews.
2. Fredericson frequently . refused to work overtime.
Govic also realized that having riggers who were willing
to work overtime would be essential to meeting the new
company 's goal of greater efficiency.
'3. Fredericson constantly complained that the rigging
work assigned to him was too dirty or too heavy. He
'frequently demanded that another employee be assigned
to assist with what he considered "heavy" work, al-
though other riggers were able to handle the assignment
alone. In short, Fredericson was difficult to work with
because he would not accept reasonable assignments
without .a hassle.
4. Fredericson 's abilities did not measure up to the em-
ployees selected . Although Fredericson was a first class
rigger , Govic did not consider him to be a, top flight
rigger because he had difficulty 'doing so many normal
rigging duties " without assistance which other riggers did
not require.
5. Fredericson often avoided undesirable assignments
by feigning illness. On several occasions when Govic as-
signed Fredericson a , dirty job in the engine room or
some other dirty area of the ship , Fredericson , would
work for a short period of time, then go to the dispensa-
ry and go home "sick.".
1510 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
6. Fredericson was absent frequently. Govic found
that Fredericson's absences often coincided with occa-
sions when Fredericson knew he would be doing dirty
or heavy work. Fredericson's calling in "sick" or with
"home problems" made Govic's job much more difficult
as: he attempted to cover Fredericson's job.
7. Fredericson did not like working at the Bayonne
drydock facility. Hoboken (and Bethlehem formerly) also
operates out of a drydock in Bayonne.. It is often neces-
sary to send employees to Bayonne to work. Fredericson
complained about those assignments and about transpor-
tation to and from Bayonne. Govic knew that this would
be an even greater problem given Hoboken's desire to be
more efficient and flexible.-.
8. Fredericson would not produce 8' hours of work for
8 hours of pay. Govic .felt that Fredericson's avoidance
tactics of complaining, going to the dispensary, constant-
ly requiring assistance, etc., resulted in about one-half
day's work being accomplished by Fredericson in a full
day.
B. Jefferies
1. Jefferies, on several' occasions, reported to work
after drinking either before shift or during lunchbreak.
At times Govic suspected he was drinking during the
shift. When Jefferies was under the influence, he became
antagonistic and difficult to supervise. Although Jefferies
was never so drunk that he could not work, his drinking
was a problem for Govic. Govic knew that while Bethle-
hem had "turned its head" to this type of problem, Ho-
boken would not do so Jefferies is only one of many rig-
gers whose drinking was a factor in their being excluded
from the list of top candidates.
2. Jefferies was a foul-mouthed, abusive employee who
verbally attacked Govic on many occasions. While use
of slang language is not unusual in a shipyard, the
manner in which it is used can be particularly offensive.
Govic was daily the subject of Jefferies' verbal attacks.
For. example, if Govic gave Jefferies an assignment he
did not like, a typical Jeffenes' reply would be: "You
goddamn mother-fucker. Why do I get all the fucking
shitty assignments? You must be fucking crazy." Al-
though Govic took the abuse as a Bethlehem supervisor,
Jefferies' foul mouth was a prime factor in Govic's rejec-
tion of him as a top candidate. Jefferies' latest tirade at
Govic occurred in the last few weeks when Jefferies
came to the yard and confronted Govic saying, "You
goddamn mother-fucker. If I catch, you out here on the
street I'm going to kill your mother-fucking ass." Frank-
ly whatever Jefferies' chances of employment at Hobo-
ken were prior to that vulgar death threat, they' are vir-
tually foreclosed From Hoboken management's perspec-
tive, a memberof management is not to be threatened in
that fashion and certainly will- not be required to hire or
supervise anyone who'threatened him in that fashion.
3. Jefferies' general performance as a rigger- was not
considered by Govic 'to be as good as the people hired.
Jefferies' performance, of course, included' his antagonis-
tic manner and the difficulties it caused from a_manage-
ment perspective.
4. Jefferies seemed to consider his moonlighting jobs
more important than his job with Bethlehem. Govic fre-
quently met resistance in getting Jefferies to work over-
time or on days because of other jobs Jefferies had.
5. Jefferies did not like to work any shift but the night
shift and often refused day-shift work . This was appar-
ently the result of his moonlighting . However it caused
Govic scheduling problems at Bethlehem which he knew
would be even greater at Hoboken.
6. Jefferies did not like to work overtime , apparently
because of his moonlighting .: - - - • --. Cl ?-_ .
7. Jefferies did not like to work at the Bayonne facility
and resisted assignments there.
8. Jefferies was a constant complainer who was diffi-
cult to supervise.
In addition to the above reasons for not hiring Jeffer-
ies, Repsondent also claimed that when Jefferies filed his
application for-employment he had been on layoff status
from Bethlehem Steel since June 11 , 1982. After he filed
the application he did not pursue it until he updated it in
June 1983, while other riggers who filed applications
checked repeatedly to see if work was available .- More-
over , Jefferies had a felony conviction on his record
which would require Respondent to seek security clear-
ance for him because the Company planned to work on
Navy ships-and such work required clearance . Respond-
ent had received applications from other - qualified appli-
cants for whom such clearance would be unnecessary.
An Examination of Respondent's Reasons for the
Failure to Hire Fredericson and Jefferies -
A. Fredericson •
Fredericson applied for a position with Respondent in
December 1982. According to Fredericson, when- he
filed his application he spoke to Finley about the possi-
bility of being hired and Finley responded that the se-
niority gained by employees at Bethlehem Steel would
not determine the employees to be hired by Respondent,
employees would be hired based on their skills and abili-
ties. Finley also told him that he had -no reason to be-
lieve that Fredericson would not be hired and that he
would be called when there was available work. Freder-
icson claimed that he spoke also to Govic about the pos-
sibility of employment and Govic stated that he had no
problem in hiring him but he would have to' discuss the
matter with Finley.9 According to Finley, before hiring
commenced, he had explained to the foreman of the de-
partments the type of employees to be hired and, thereaf-
ter, he had left the decision of the person to be hired to
the discretion of the foreman. Thus, when Fredericson
inquired about the possibility of employment Finley
claimed that he responded that the selection of the spe-
cific individual 'to be hired was within the control of the
foreman and it depended on the • work available, the
number of men needed, and the foreman's judgment as to
those individuals best qualified. Govic also denied the
statements attributed to him by Fredericson, contending'
that his only response was that the work was slow and
9 Fredericson apparently did not explain to Govic that he had dis-
cussed the matter with Finley
HOBOKEN SHIPYARDS
that "he stood the same way as everybody else and they
not hire."
In January 1983 Fredericson was sent by Respondent
for a physical examination, which was necessary before
an employee could be considered for permanent employ-
ment At that time Fredericson was asked to sign a docu-
ment which stated that he would be offered employment
if he passed the physical examination. Fredericson did
pass the examination but. he was not hired It,appears
that at least 10 other riggers, who'•were'former Bethle-
hem Steel employees, also passed the physical examina-
tion and they were not hired because Govic' considered
that their prior work performance while employed at
Bethlehem Steel had been unsatisfactory. 10
As noted, Respondent contends that one of the reasons
Fredericson was not hired was because he insisted-on
working only nights while employed by Bethlehem Steel
and such conduct could not be tolerated under the more
flexible operation contemplated by Respondent.In
support of this contention, both Govic and Finley testi-
fied that sometime- in 1981, before Fredericson became
night-shop steward for the rigging department, he asked,
for personal reasons, to be assigned only to the night
shift. Finley testified that other employees made similar
requests and the request were granted, if considered le-
gitimate. Joseph Jugovich, who had knowledge about
the shifts that individuals worked because of his position
as timekeeper witli Bethlehem Steel, testified' that there' '
were several employees who worked only the day shift
and other employees who worked only the night shift. In
1981 Frdericson, by virtue of his position as shop stew-
ard for the night shift, had superseniority on that shift
and he worked nights on a regular basis. However,-Re-
spondent's representatives claim that in 1982 when there
was no work on the night shift, they.offered work on the
day shift to Fredericson, which he refused. Fredericson
denied this contention. In 1982 there were several riggers
who had greater seniority than Fredericson and who
would have been entitled, therefore, to be offered avail-
able work -before such' work- was offered to Fredericson.;
The exhibits in evidence establish that these riggers with
greater seniority did-not work the day shift in 1982. It
appears that either work was not available or.'that these
individuals did receive. offers of work and refused them.
Notwithstanding this fact, ; several of these individuals
were hired by Respondent. 12 - -
Respondent contends that Fredericson frequently re-
fused, to perform overtime work. It appears that,prior to
1981, Fredericson worked overtime about as frequently
as did the other employees. However, after he became
shop steward Fredericson did refuse to work overtime,
he claimed, because he attempted to, equalize the over-
time work in accordance with the provisions of the col-
lective-bargaining agreement. Govic admitted that when
Fredericson refused the overtime :work he said, "give, it
10 It appears -that several, former Bethlehem, Steel employees who had
been, employed as riggers were not asked, to take the physical examma-,
lion because Govic considered them unsatisfactory
" The evidence does establish that under Respondent's present oper-
ation employees are not assigned to specific shifts
12 The riggers included Arditi, Oquendo,, Ciannamea, Armenio, and
Davenport '(G C Exh 3)
1511
to the other people that aren ' t working that steady."
Govic testified that he frequently received telephone
calls from the night foreman in which the foreman com-
plained about the refusals of employees to work- over-
time. However , it is evident from Govic 's testimony that
these refusals were made by many employees and not
solely by, Fredericson . In fact ,. according to Govic, the
problem was more difficult when ' two or more employ-
ees refused the overtime work . According to Jugovich,
several former Bethlehem Steel employees , including
Daniels , DePinto, Duke, . Armenio, Cirillo, Lasko, Atilio,
and others refused overtime work . These employees
were hired by Respondent.
Respondent asserts that Fredericson frequently com-
plained about work assignments being either too-heavy
or too-dirty , and that these complaints were unrelated to
his position as shop steward . Further, on one occasion
when Fredericson requested assistance , a machinist was
assigned to assist him and , thereafter , Fredericson filed a
grievance about the machinist working out of his trade.
Fredericson claimed that , although others did complain
about assignments , he did not do so on his own behalf.
Rather, he complained as shop ' steward on behalf of
other employees about the Company 's failure to pay the
proper pay for "dirty" work and about assigning other
crafts to perform rigger's work . John' Hubert , a former
employee of Bethlehem Steel , testified that all the men
complained about performing "dirty" work and Freder-
icson , on their behalf, attempted to secure the proper pay
for such work . The records reveal that Fredericson did
file grievances about supervisors performing unit work
and about the failure by Respondent to pay employees
the proper pay for performing "dirty" work- and many of
these grievances were resolved in favor of Fredericson's
position.
Govic testified that he did not consider Fredericson as
well qualified as other riggers selected for hire because
he had difficulty performing normal rigging duties with-
out assistance from other riggers . Govic claimed that due
to his size , Fredericson frequently requested assistance to
perform tasks which other riggers were capable of per-
forming without assistance .,' 3 -Fredericson admitted that
on occasion he asked for assistance to, perform a task but
he claimed that he frequently assisted other riggers when
asked to do so. Govic agreed that other riggers also re-
quested assistance at times but that Fredericson required
such assistance more frequently than did the other rig-
gers. Govic also admitted that there were tasks which
could be performed more competently by employees
with smaller physiques , while other tasks could be ac-
complished more - effectively by_ employees with larger
physiques . Fredericson was termed a first class rigger
Although a first , class rigger was considered more knowl-
edgeable about the duties of a rigger , it appears that the
status was, based on' the number of years an individual
was employed, rather than on their 'actual abilities. Re-
spondent did hire, several former Bethlehem Steel em-
ployees who were classified as second and third- class
13 Fredericson was about 5 foot 4-3/4 inches and of a slight build
However, it appears that there were other riggers also of a slight build
and at least one rigger was a woman
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
riggers and several other individuals who did not possess
rigging experience.14 Govic was the foreman on the day'
shift and, therefore, he did not supervise Fredericson on
a regular basis, but relied on the observations and com-'
ments made by Mel -Cumberbatch about Fredericson.
Benjamin Mahone,15 who was Fredericson's "snap-
per" 16 and who worked with him, testified that Freder-
icson was-a good worker with average production who
did not refuse assignments. In January 1983, Bethlehem
Steel gave Fredericson a letter of recommendation
which stated that he was a satisfactory employee
Govic claimed that Fredericson avoided undesirable
assignments by feigning illness or by being absent ' when
he knew that such work was to be assigned to him: Fre--
dericsoii claimed he never left work to avoid a -difficult
assignment but there were occasions when his wife was
ill, or giving birth, or when a robbery occurred or a pipe'
broke in his home and on these occasions it was neces-
sary for him to leave work. The records indicate that
Fredericson was absent for-illness for -approximately 16
hours in 19,82. The records also,establish that Frederic-
son was not absent in 1982 more frequently than some-
other employees and was absent less frequently than
others. ' Govic testified that he did hire some former
Bethlehem employees who had attendance problems.
Respondent claims that Fredericson refused or at-
tempted to avoid assignments to the Bayonne facility.
Fredericson testified that after he became shop steward
he was assigned from February to June 1981, exclusive-
ly, to the Bayonne facility In June he had car trouble
and he asked to be assigned to the Hoboken facility and
this request, apparently, was refused. Subsequently, he
again had car trouble and he reported to the Hoboken
facility, rather than to the Bayonne facility. He requested
transportation, by a company van, to the Bayonne facili-
ty and this request was refused. Fredericson filed a
grievance contending that he had been discriminated
against by being forced to work at the Bayonne facility,
constantly, while other employees could, pick the. loca-
tion where they wanted to work. He requested that his
future assignments be "made on the basis of a fair and
equitable system of rotation " He also requested payment
for the pay he lost.when the Company refused his re-.
quest for transportation to Bayonne The decision ren-
dered with respect to the grievance did not find that
Fredericson had been discriminated against by his assign-
ment to Bayonne. According to the decision, the majori-
ty of the Bethlehem Steel work in 1981' was at the Ba-
yonne facility, in 1981 Fredericson had worked-approxi-
mately the same amount of time at both facilities 17 and.
14 At one point Fredericson was selected to attend an apprentice pro-
gram which was designed to train those employees who had potential for
advancement with the Company Murch testified that the individual di-
recting the program complained to him that Fredencson and others in
the program refused to follow his directions
is Mahone was hired by Respondent but discharged when he failed to
pass the physical examination - '
16 A "snapper" is similar to a lead foreman , it is not a supervisory po-
sition -
17 Fredericson contended that he was being isolated from the majority
of the riggers by being assigned to Bayonne The decision does not sup-
port that assertion
-
other employees had worked at the Bayonne facility
more frequently than had Fredericson. Fredericson's
claim that he was entitled to transportation also was
denied on the ground that such transportation was not
provided for according to the practices and procedures
existing at the shipyard
Govic testified that because Fredericson avoided
work, required assistance with his work more frequently
than others, and constantly complained about the work,
he did not work a full 8 hours for his pay and therefore
he refused to hire him:
B. Jefferies
Jefferies, initially, testified that he had been employed
by Bethlehem Steel for 18 years as a rigger. However,
his employment was not a continuous one and he had
several-breaks in his employment with Bethlehem Steel,
at least two of which were-due to the fact that he was in
prison. Jefferies applied for employment with Respond-
ent and was not hired.1' At the time he applied, Jefferies'
claimed that he spoke to Govic and asked him why he
had not been hired. Govic responded that he did not
know and told him to speak to Finley, and Govic then
said , "the guys in the office don't like you." At another
point, Jefferies testified that he asked Govic whether an
individual had to be -Italian to work at Respondent and
Govic pointed to a black man who had been hired Jef-
feries claimed that in October 1983, he was called to take
a physical examination and on that day he spoke with
Govic. Govic asked him, "What are you doing to me?
This girl got me up to here. Why did you go to the
Labor Board?" The charge in the instant case had been
filed at the time.19 Govic denied that he mentioned any-
thing to Jefferies about the Labor Board and he claimed
that his only statement to Jefferies was that conditions
would be different at Respondent, there were many more
rules and regulations.
Respondent contends that one of the reasons it failed
to hire Jefferies was his alleged use of alcohol or drugs.
Govic- testified that he observed Jefferies under the "in-
fluence of alcohol or drugs or whatever it is, but he was
an influence of something, alright "20 Jefferies claimed
that he had stopped drinking several years before the in-
cidents in the instant case on the advice of his doctor.
Several witnesses testified that Jefferies, as a general
rule, did not drink, although he might on occasion take a
drink. It appears that drinking was a common problem in
the rigging department and that several employees had
been disciplined for drinking or. being under the influ-
ence of alcohol during working time. Several former em-
ployees of Bethlehem Steel were rejected by Respondent
because of their drinking habits, including Benequez,
McLaughlin, Wilson, Super, Lewis, Wilson, Murch,
18 At least two other individuals who had been involved in the EEOC
suits against Bethlehem Steel also applied and were hired by Respondent
19 A Board agent did speak with Govic during the investigation of the
charge
20 The Gene'ral Counsel filed a motion to strike the portion of Re-
spondent 's brief which states that one of the reasons that Jeffenes was
not hired was because of the belief by Respondent that Jefferies was
under the influence of drugs This issue will be considered below
HOBOKEN SHIPYARDS
Stokes, Rossis, Alston, and Knight. On the other hand,
Respondent did hire several employees who-had drinking
problems because, according to Govic, of their skills,
abilities , and availability for. different shifts
It is undisputed that the use of vulgar and abusive lan-
guage was common in the shipyard It appears that em-
ployees used it, at times, in greeting one another and in
general conversation with one another . It was also used
when superiors gave assignments which were considered
undesirable by employees . However , as James Emman-
uel, an employee witness, testified , it generally was not
used directly to a supervisor but was said as the employ-
ee walked away from the supervisor. Govic testified that
Jefferies constantly used vulgar and abusive language to
him in a belligerent manner . Jefferies admits that he
might have spoken to Govic in such a manner, and other
witnesses testified that Jefferies did curse- Govic at
times.21 In the summer of 1983 outside the shipyard, Jef-
feries in .a loud and angry voice and in the presence of
many employees, yelled at Govic and threatened to give
him a "blow job" in order to get a job. Although Jeffer-
ies denied that he threatened to kill Govic, as Govic
claimed, Jefferies admitted that he made the above state-
ment. The testimony of witnesses called by the General
Counsel establishes that Jefferies was screaming and yell-
ing at Govic at the time. Emmanuel testified that he told
Jefferies "it wasn't right, what he said" to Govic. Em-
manuel denied that he heard Jefferies threaten to kill
Govic, however, he admitted that he did not hear every-
thing that was said at the time.
Govic testified that he did not consider Jefferies' over-
all work performance to be as good as the work per-
formance of the individuals he hired. Govic claimed that
this conclusion was based on several factors, including
the refusal by Jefferies to work overtime, his limited
availability for work on other than the night shift, his re-
sistance to assignments in Bayonne , and his constant
complaints about work assignments. The General Coun-
sel contends that the fact that Jefferies worked for many
years for Bethlehem Steel and was reemployed by that
company on several occasions refutes Govic's statement
that Jefferies was not a good worker. Moreover, the
General Counsel contends that Jefferies was seldom of-
fered overtime. work or work on the day shift because of
his low seniority and the fact that he worked other jobs
did not mean that he did not consider his employment
with Bethlehem Steel to be his primary employment.
The General Counsel further contends that Jefferies did
not refuse assignments to the Bayonne facility and that,
generally, the complaints voiced by Jefferies concerned
alleged racial discrimination in job assignments and that
his other complaints about undesirable assignments were
similar to complaints made by other employees.22
Jefferies testified that while employed' by Bethlehem
Steel he worked for other companies during the 1970s
and that he performed this work during day time. Ac-
cording to Jefferies, the amount of time he worked other
21 Jugovich testified that he did not know what Jefferies said to Govic
but, "All I know is, he carries on "
22 Mahone , who was Jefferies ' snapper, testified that Jefferies did not
complain about assignments
1513
jobs varied from 50 to 20 hours per week. Jefferies also
testified that at the- time that he filed his application with
Bethlehem Steel,' employees had the option of working
the day or night shift and he. requested only night-shift
work. Jefferies claimed that because of -his low seniority
he rarely was offered either overtime work or work on
the day shift but he admitted that on occasion he 'did
refuse such offers of work.
Initially, Jefferies testified that he worked- at the Ba-
yonne facility on the ship, OE II, in 1981 and 1982. Sub-
sequently, he testified that he did not work much for
Bethlehem Steel in 1981 and 1982 . 23 Jefferies denied that
he refused assignments to the Bayonne facility, and
Mahone , who was his snapper , testified that Jefferies did
not complain about assignments to the Bayonne facility.
It was Jefferies' testimony that he thought that he re-
ceived the dirtiest and least agreeable assignments . Jeffer-
ies, initially , testified that he did not complain about such
assignments but he - then stated that it- was possible that
he told Govic, "Yugo, you're fucking me, you give me
all the dirty assignments."24
Respondent also claimed that it did not hire Jefferies
because, unlike other applicants , he did not pursue his
employment application between December 8, 1982, and
June 25, 1983. The General Counsel contends that Jeffer-
ies spoke to Finley or' Govic on several occasions re-
garding his application. Jefferies testified that he spoke to
Finley about his application 6 months after he filed his
application, which would be about June 1983, and that
he spoke to Govic after he spoke to Finley. At another
point, Jefferies testified that he spoke to Govic about
two or three times before he spoke to Finley, but he did
not specify the time when he spoke to Govic. It appears
that applications for employment were maintained for
more than 6 months. -
Finally , it is Respondent 's position that it planned to
do work for the United States Navy and that such work
required security clearance . Respondent contends that it
would require additional paper work to secure clearance
for Jefferies, who had a felony conviction , and such
effort was unwarranted when there were other qualified
applicants who would not pose such problems. However,
Finley also testified that Respondent did hire employees
Miller, Nunez, Olivieri, Abreyo, Robertson, and Marti-
nez, all of whom had similar convictions and who would
require - specific clearance . The record fails to reveal
whether the work records of these employees was other-
wise satisfactory.
Discussion
The existing legal principles establish that Respondent
was not obligated to hire the employees of Bethlehem
Steel merely because it purchased the assets of that com-
pany.25 Moreover, the record establishes that Respond-
23 Govic testified that the OE II, was in the Bayonne facility in 1979
and not in 1981 or 1982
24 The record establishes that other employees left work rather than
perform what was considered a dirty assignment It also appears that
some of the employees cursed when they received such assignments but
the record fails to disclose that other employees spoke directly to Govic
in the same manner as did Jefferies
25 Howard Johnson Co v Hotel Employees, 417 U S 249 (1974)
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent reserved the right to hire its.own work force. in the
Purchase and Sales Agreement it signed with Bethlehem
Steel. The General Counsel does not deny that Respond-
ent had the right to select its own work force, to hire or
to refuse to hire any Bethlehem Steel employee. Howev-
er, the General Counsel contends that that right is not.
absolute because -Respondent could not refuse to hire an
individual for reasons proscribed by the Act. In the in-
stant case, the General Counsel asserts that Respondent
refused -to hire Fredericson and Jefferies because they
engaged-in union activities while employed by Bethle-
hem Steel and/or because they were involved in the
charges filed with the Employment Opportunity Com-
mission .(EEOC). The refusal to hire these individuals,
therefore, was for reasons proscribed by the Act. -
It is Respondent's position -that it was incumbent on
the General Counsel to establish that a prima facie case
exists and this she has failed to do. Respondent also as-
serts that assuming that a prima facie case was estab-
lished "it was adequately rebutted by the legitimate, non-
discriminatory reasons articulated by the employer in
support of. its hiring decisions and the General Counsel
failed to show those reasons to be pretextual."
It is well recognized that it is the burden, of the Gener-
al, Counsel to establish the elements of a prima facie case
Thus, in Wright Line, 251 NLRB 1083, 1089 (1980), the-
Board stated: -
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this_is es-
tablished, the burden shifts to the employer to dem-
onstrate that the same action would have taken
place even in the absence of the protected conduct.
The elements of the prima facie case in a' refusalto-
hire situation were stated in Big E's Foodland, Inc., 242
NLRB 963, 968 (1979), as' follows: " - `
Essentially, .the elements, of a.discriminatory refusal-
to-hire case are the' employment application by each
discriminatee, the refusal to hire each, a showing
that each was or might be expected-to be a union
supporter or sympathizer, ad further showings that
the employer knew or suspected such sympathy or
support , maintained - an aniums against it , and re-
fused to hire the applicant because of such animus.
The_ record reveals that the General-Counsel has estab-
lished the elements articulated in the, decision in Big E's
Foodland with respect to Fredericson and some of the
elements with respect to.Jefferies. Both applied for posi-,
tions_ with Respondent in December 1982 and Respond-
ent,refused.to hire either. individual. Although, the Gen-
eral ,Counsel attempted to establish that both were disci-,
dent union members.and,,,thus, presumptively they were
not union sympathizers' or supporters, there is sufficient'
evidence in this record to establish that Fredericson was
an active shop- steward who filed several grievances
while employed at Bethlehem Steel and that. Jefferies
was involved in the EEOC suit filed against that compa-
ny. Cangelosi, Finley, and Govic had full knowledge of
these activities in their supervisory capacity at Bethle-
hem Steel and also had this knowledge when the deci-
sion was made not, to hire -Fredericson and Jefferies
The General Counsel does not contend that at the time
that Fredericson and Jefferies applied for employment
with Respondent in December 1982 Respondent's repre-
sentative expressed hostility toward them because of
their prior ativities at Bethlehem Steel Rather, the Gen-
eral Counsel claims that Finley and Govic expressed
their hostility toward Fredericson while all three were-
employed at Bethlehem Steel. There is no similar allega-
tion concerning Jefferies. In support of her contention
about the expression of hostility toward Fredericson,
counsel relied on the testimony of George Murch and
Joseph Jugovich.26 Murch did testify that at around the
time of•a union election he heard Finley and Govic state
that Fredericson was a communist and trouble Although
Murch's testimony on this point was vague with respect
to the precise time these statements were made, it does
appear that they were made either in early 1981 or mid-
1981. Jugovich also recalled that Govic and others re-
ferred to Fredericson as a communist but also was vague
with respect to the time when these statements were
made . Govic did not refute this -testimony but he did
state that Fredericson was a "bright" person who was fa-
miliar with the union contract.
Also, as evidence of Respondent' s animus toward Fre-
dericson, the General Counsel referred to Cangelosi's
testimony that he was annoyed with Fredericson because
he distributed a leaflet critical of the safety conditions at
the shipyard while under the Bethlehem Steel manage-
ment.
Respondent argues that the' factors outlined above
cannot be considered in isolation , the entire course of its
conduct must be evaluated to determine whether the de-
cision not-to hire Fredericson and Jefferies was made for
discriminatory reasons. Respondent asserts that the
Board and the courts have considered several facts in as-
sessing whether the refusal to hire was discriminatory;
including "the presence or lack of anti-union animus, the
employer's record of hiring other union employees, the
employer's reliance on former management officials with
first hand knowledge of the applicant 's abilities , and the
existence of a valid independent reason for not hiring an
applicant."
In the instant case, it is undisputed that Respondent
hired many, of the former Bethlehem Steel, employees
and, thereafter, entered into a collective-bargaining
agreement with,the,Union. Thus,,it does not appear that
Respondent, had a general animosity toward the concept
of its employees being represented by the Union. Re-
spondent also hired former, Bethlehem Steel employees'
who as shop stewards at Bethlehem -had filed, several
grievances and it refused.to hire other former shop stew-
ards who had filed fewei grievances. Govic testified that
the decision to hire or not,_hire.these shop stewards was
based , on an evaluation of their work performance and
26 The General Counsel also referred to alleged statements made by
Cumberbatch For reasons stated above, I have not considered these al-
leged statements '
HOBOKEN SHIPYARDS
the record fails to reveal evidence to refute that conten-
tion
Mahone and Murch , credibly, testified that Frederic-
son and Jefferies satisfactorily performed the work as-
signed to them . However, Govic, who did not work on
a regular basis with either individual , claimed that he
had knowledge of their work performance and he did
not consider their performance to be as competent as
that of other employees As Respondent has noted, it is
not the responsibility of the Board to substitute its judg-
ment for that of the employer and, absent other consider-
ations, Govic's judgment as to the comparative abilities
of the applicants should be accepted . 27 However, the
record reveals that there are other ,factors which must be
considered.
Respondent has cited several cases in support of its po-
sition that its refusal to hire Fredericson was not viola-
tive of the Act . In each of the cited cases, there is an
element which was not in dispute, i.e., the Respondent
advanced a valid business justification for its failure to
hire applicants for employment . In General Processing
Corp., 267 NLRB 1281 ( 1983), the evidence , established
that an employee of the former employer made the deci-
sion , on behalf of the new employer , not to hire some of
the employees of the former employer . The reason ad-
vanced , which the administrative law judge credited- and
which the Board accepted , was.that the former employ-
ees refused to file applications for positions with the new
employer In R & S Transport , 255 NLRB 346 (1981),
when the applicants were not hired the administrative
law judge in failing to find a violation stated:
nor have the Respondent 's reasons for not hiring
the alleged discriminatees been shown to be pretex-
tual. To the contrary , I am persuaded that the Re-
spondent exercised reasonable business judgment in
selecting and rejecting applicants on the basis of the
information it received on their relative suitability
for employment.
In Big E's Foodland, the administrative law judge recom-
mended the dismissal of the complaint because he also
found that valid reasons existed for the failure to hire the
applicants . And again in Border Steel Rolling Mills, 204
NLRB 814 (1973), 'and in Bosk Paint and Sandblast Co.,
266 NLRB 1033 ( 1983), the adminstrative law judge rec-
ommended that the complaint be dismissed based on his
finding that the company ' had advanced a valid reason
for the failure to hire the applicant.
At issue in this case is whether the reasons advanced
by Respondent for its failure to hire Fredericson are
valid.
Respondent claims that Fredericson refused work on
the day shift, insisted on working only on the night shift
and, thus, demonstrated his lack of flexibility , a element
considered essential by Respondent for its operation of
the plant. However, the record establishes that many em-
ployees while employed at Bethlehem Steel worked spe-
cific shifts and were permitted to do so, if , according to
27 NLRB v Ogle Protection Service, 375 F 2d 497 (6th Cir 1967), cert
denied 389 U S 843 (1967)
1515
Finley, their reason for asking to work a particular shift
was considered legitimate . Initially, Fredericson had
sought work on the night shift because he had children
and his wife worked or went to school during the day.
After 1981 , Fredericson , by virtue of his status as shop
steward , had superseniority on the night shift and
worked only on that shift . Fredericson denied that he
was offered day work in - 1982, when work on the night
shift was eliminated He claimed that several other em-
ployees had greater seniority than he had and these indi-
viduals would have been entitled to work on the day
shift before he was entitled to such work . The record
does reveal that other individuals had more seniority
than Fredericson and, thus, would have been entitled to
work the day shift in 1982 . This does not preclude to
possibility that ;Fredericson could have been offered
work on the day shift , which he refused . It does establish
that other employees with greater seniority also refused
work on the day shift . Govic, repeatedly , stated that he
considered "employee flexibility " to be an important
factor in his determination to hire or not to hire an em-
ployee. Notwithstanding the importance he attached to
this flexibility factor , Govic did hire several employees
who had refused to work the day shift while employed
at Bethlehem Steel . Assuming that Fredericson refused
day-shift work in 1982 , Respondent has failed to explain
why other employees who refused day-shift work while
employed at Bethlehem Steel were hired but Fredericson
was not.
Respondent contends that Fredericson refused to work
overtime . - Govic admitted that Fredericson stated that
his refusal to perform the overtime work arose because
of his efforts to equalize the overtime work . Respondent
argues that Ferdericson should , have , engaged in these
work stoppages but, rather , should have performed the
work and then filed a grievance . However , as noted, em-
ployees frequently refused overtime work but, neverthe-
less, they were hired by Respondent . Respondent failed
to explain why it selected these individuals who, appar-
ently, gave no reason for their refusal to perform the
overtime work but refused to hire Fredericson who ex-
plained that his refusal was due to his efforts to equalize
the overtime work,
Fredericson testified that his complaints about "dirty
work" were not made on his own behalf but were made
in his capacity as shop steward . The record supports that
assertion Thus, John Hubert credibly testified that the
former Bethlehem Steel' - employees frequently com-
plained about per work which they considered
dirty and that Fredericson 'sought to have them compen-
sated for the work , in accordance with the provisions of
the contract. The record also discloses that Fredericson
filed several grievances about the failure by-Respondent
to pay the employees for this work and these grievances
were resolved in favor of the employees.
Although Govic claimed that Fredericson ' frequently
sought assistance with his work, he admitted that other
employees also needed assistance , at times. Govic also
admitted that certain jobs could be performed more com-
petently by smaller men . Govic testified that he did not
consider Fredericson as well qualified as other riggers
1516 DECISIONS OF NATIONAL_LABOR RELATIONS BOARD
who were hired However, Govic failed -to explain why
he hired some individuals who had,no experience as rig-
gers but refused to hire Fredericson who had several
years of experience with Bethlehem Steel. The record
does reveal that Govic refused to hire other former
Bethlehem Steel employees who had experience as rig-
gers but those refusals were due to the fact that the em-
ployees had drinking, attendance, or medical, problems. -
Respondent failed to establish that Fredericson had these
types of problems .
As -noted, the payroll records do not support Respond-
ent's assertion that Fredericson was absent or left work
frequently to avoid difficult assignments . Further,
Mahone ' who was Fredericson's snapper and who
worked -with him on a regular basis, credibly testified
that Fredericson was a good worker who did not com=
plain, on his own behalf about the work assigned to him
It does appear that Fredericson objected to his assign-
ment to the Bayonne facility and requested transporta-
tion to that facility. Fredencson's claim that he was as-
signed more frequently to that facility for discriminatory
reasons was rejected in the grievance process as was his
claim for'transportation to this facility.
Govic constantly referred to Fredericson as a com-
plainer. Fredericson did complain about the failure to
equalize the overtime work, the failure to pay employees
extra compensation for performing dirty work, as re-
quired by the contract, and about supervisors and others
performing unit work. These complaints were made,
however, about these matters. - The' complaint appeared
to have been' justified because many were resolved in
favor of the employees.
Respondent -was not obligated to hire Fredericson.
However, as set forth above, the reasons advanced by
Respondent for its refusal to hire Fredericson were
either untrue or demonstrate that Fredencson was treat-
ed in a disparate manner The Board has considered situ-
ations where the reasons advanced by a respondent for
its actions were untrue. and 'has concluded that the true
motive for the respondent's actions must be other than
what the respondent, alleged. 28 The Board also has held
that if the stated motive for respondent's conduct is false;
then the trier of the facts can infer that the true motive
for the respondent's actions is an unlawful one which re-
spondent seeks to disguise.29 Further, the Board has'con-
cluded that if a respondent acts in a disparate manner, it
is evidence that the respondent's alleged reasons for its
action are pretexts advanced to hide its true motive ' 30 In
the instant case, assuming that I had found that Frederic-
son refused to work the day shift, refused to perform
overtime work, and complained about dirty work, as al-
leged, the record establishes that Respondent hired other
individuals who had engaged in similar conduct but re-
fused to hire Fredericson. This action by Respondent
demonstrates that the alleged valid business reasons for
not hiring Fredericson were pretexts.
28 Daniel Construction Co, 229 NLRB 93, 95 (1977)
29 Webb's Industrial Plant Service, 260 NLRB 933, 939 (1982), Shattuck
Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966)
30 John P Bell & Sons, 266 NLRB 607, 610 (1983)
Assuming that the facts, in this case had presented a
dual-motive situation within the rationale of Wright Line,
I find that the General Counsel established a prima facie
case with respect to Fredericson and the burden then
shifted to Respondent to establish "that the same action
would have taken place in the absence of protected con-
duct." It is my opinion that Respondent did not meet its
burden and its defenses have ;created suspicions about its
actions. However, I do not consider that this case pre-
sents a true dual-motive situation. Rather, I find that Re-
spondent refused to hire Fredericson solely for unlawful
considerations and, therefore, has violated Section 8(a)(3)
and (1) of the Act.31
The record reveals that Jefferies and-other miniorities
participated in the EEOC charge and the class action
suit filed against Bethlehem Steel. Thus, it appears that
the criteria • stated in Meyers Industries, 268 NLRB 493
(1984), to establish concerted activity has been met.
However, the record does not support the General
Counsel's contention that, Respondent refused to hire Jef-
feries for discriminatory reasons. This record fails to
reveal evidence that Cangelosi, Finley, or GOvic ex-
pressed animus towards Jefferies for his activities. The
General Counsel claims that the fact that Fredericson,
Jefferies, Stokes, and Alvarado,-all of whom ran against
incumbent union representatives, were not hired estab-
lishes Respondent's animus. As noted, the decision not to
hire Jefferies was not made by the incumbent union rep-
resentatives who might have had animus toward the four
individuals who attempted to unseat them It was Re-
spondent's representatives who made the decision not to
hire the four individuals and the record fails to reveal
that these representatives had any interest in the internal
affairs of the Union. Respondent's representatives testi-
fied that the decision not to hire the four` individuals was
based on valid business considerations. I have found, as
noted above, that Fredericson was not hired for discrimi-
natory reasons; although I do not find that the reasons
were related to his internal union activities. Govic's testi-
mony that Stokes and Alvarado were. not hired for busi-
ness reasons was not refuted..The record supports Re-
spondent's contention that its refusal to hire Jefferies also
was based on business considerations.
Initially, it should be noted that Respondent did hire
other individuals _who participated in the EEOC suit
filed against Bethlehem Steel. Govic testified, however,
that he refused to hire Jefferies because he had a drink-
ing problem and/or was under the influence of drugs
while employed at Bethlehem Steel. The General Coun-
sel contends that Respondent did not raise the alleged
use of drugs by Jefferies as a defense in its position paper
or at any point during the investigation of. the case and,
therefore, an adverse inference should be drawn against
Respondent based, on its shifting defenses It does appear
that the reference to the alleged use of drugs by Jefferies
was raised, for the first time,,during the hearing. Howev-
er, Jefferies was aware at the time of the hearing that it
was. Respondent's contention that he used drugs but,
nevertheless, he did not refute this allegation Moreover,
31 Brown & Lambrecht Earth Movers, 267 NLRB 186, 189 (1983)
HOBOKEN SHIPYARDS
counsel's claim that Respondent has presented shifting
defenses is not quite accurate Respondent contended
that Govic suspected that Jefferies was drinking and that
when he was under the influence he was hostile and dif=
ficult to supervise. The gist, of Respondent's complaint,
even in its position paper, was that Jefferies- was a diffi-
cult employee. The record.supports the claim that Jeffer-
ies was a difficult employee to supervise and it is. imma-
terial whether this difficulty arose from the use of alco-
hol, drugs, or any other reason. Thus, Govic testified
that, while employed at Bethlehem Steel, Jefferies _fre-
quently berated him and used vulgar language to him in
the presence of other employees. Jefferies admitted that
he did speak to Govic in a belligerent manner and did, at
times, use vulgar language. Jugovich testified that Jeffer-
ies "carried on" when he spoke to Govic. Although-the
record does establish that use of vulgar language was
common in the Bethlehem Steel shipyard, it does' not
appear that employees routinely used vulgar language in
a belligerent manner when speaking to supervision. In
Atlantic Steel, 245 NLRB 814, 816- (1979), the Board
stated that it knew of no case which held "that an em-
ployee's use of an obscenity to a supervisor on the pro-'
duction floor following a question concerning working
conditions is protected as would be a spontaneous out-
burst during the hearing of a formal proceeding or in
contract negotiations." In Atlantic Steel an employee
made a vulgar comment on one occasion to a supervisor,
and the supervisor as he walked away heard the com-
ment . An .arbitrator found that' such conduct warranted
the discharge of the employee. The Board accepted the
arbitrator's decision and upheld the discharge of the em-
ployee based on the employee's entire record, including
his work performance and his attendance record In the
instant case, the record reveals that Jefferies used vulgar
language to Govic on several occasions. It further estab-
lishes that, although Jefferies was not offered work on
the day shift or overtime work on a frequent basis, he
did refuse such offers when they were made.
The General Counsel cites Hagerty Catering Co., 236;
NLRB 1553 (1978), and Model A & Model T Reproduc-
tion Corp., 259 NLRB 555 ( 1981), in support of her posi-
tion that the use of-vulgar language is not grounds for an
employer to discharge an employee when it was some
action of the employer which provoked the employee to
use the vulgar language It should be noted that in both
of those cases the use of the vulgar language occurred
only on one occasion and that in each case the employer
had engaged is-some conduct which provoked the em-
ployee to 'the use of vulgar " language The General Coun-
sel argues that if Jefferies used vulgar language he was
provoked to the use, of such language because he be-
lieved that Govic assigned all the undesirable work to
minority employees Although the record does establish
that Bethlehem Steel did not give Jefferies and other mi-
nority employees their correct seniority "status, the
record'fails to establish that Govic assigned all the unde-
sirable work to minority employees. In fact, the testimo-
ny in the record establishes that all employees received
such assignments at times. The General Counsel also
cited Longshoremen ILA Local 333 (ITO Corp.), 267
NLRB 1320 (1983), for the proposition that the use of
1517
profanity in an employment setting where profanity is
generally accepted and/or tolerated by management does
not justify the employer's refusal to hire Jefferies on "op-
probrious" conduct grounds. There are 'several differ-
ences between that 'case and the instant one. The first
difference is that' this-record does not establish that this
Respondent accepted or 'tolerated the use of such Ian-
guage If there was- an' acceptance of such language in
the shipyard it occurred when the yard was under the
operation of the Bethlehem Steel and not under Re-
spondent's operation. Moreover, the record establishes
that Respondent was determined to run a successful op-
eration and it is unlikely that it would have tolerated
such conduct by an employee to a supervisor, and Govic
was aware of this fact when he decided not to hire Jef-
feries. There are other facts in this case which differ
from those in the ITO Corp case. This case involves the
use of vulgar statements by an' employee to a supervisor
on the work floor whereas the ITO Corp. case involved
the issue of whether 'a union official could cause the loss
of an'employee's job because the employee used vulgar
language to the union official As the Board stated, "It is
well established that an employee has a statutory right to
voice dissatisfaction with' a union 's conduct and its poli-
cies, regardless of their propriety, without suffering re-
prisal by being deprived of work for doing so "
Although I do not find that Respondent's refusal to
hire Jefferies in January 1983 was because of the incident
in the summer of 1983, I do find that the incident sup-
ports Respondent's 'position that Jefferies was a difficult
employee. The testimony of the witnesses establish that
Jefferies screamed vulgar statements at Govic and threat-
ened him with a "blow job." This conduct can best be
described -by the words of Emmanuel, who was a wit-
ness for Jefferies. Emmanuel testified that he told Jeffer-
ies that, "it wasn't right what he said" to Govic. The
General Counsel contends that these comments 'were
made outside of work and were caused by Govic's refus-
al to hire Jefferies Although the incident did occur out-
side of the shipyard, it took place in the vicinity of the
shipyard and in the presence of many employees. More-
over, one of the reasons why Govic refused to hire Jef-
feries was'because he used abusive language to him, as
he did on this occasion.
In sum , this record fails 'to establish that Respondent
had animus towards Jefferies because of his protected ac-
tivities. Furthermore, assuming that the General Counsel
had established a prima facie case it is clear that Re-
spondent's refusal to hire Jefferies was motivated by le-
gitimate business considerations and not for any reason
prescribed by the Act.32 Accordingly, I shall recom-
mend"that this allegation be dismissed
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
32 Although Respondent advanced other reasons for its refusal to hire
Jefferies, I am convinced from my observation of Govic that it was Jef-
feries' conduct towards him that caused Govic to refuse to hire him
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization with the meaning
of Section 2(5) of the Act.
3. In refusing to hire Joel R. Fredericson, Respondent
was motivated by discriminatory considerations 'and,
therefore, by this act Respondent has engaged in, and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
. 4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act..
5 Respondent did not otherwise engage in the unfair
labor practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that Respondent unlawfully refused to hire
Joel R. Fredericson, I shall recommend that Respondent
be ordered to offer Joel R. Fredericson immediate em-
ployment in the rigger classification or in a substantially
equivalent classification. I further recommend that Re-
spondent be ordered to make whole Joel R. Fredericson
for any loss of earnings he- may have suffered as a result
of the discrimination against him . Backpay may be com-
puted with interest as described in F W. Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
650 (1977). . -
On these findings of fact and conclusions of law and
on . the entire record, I issue the following recommend-
ed33
• (a) Offer- immediate employment to Joel R. Frederic-
son in the rigger classification or a substantially equiva-
lent classification and reimburse him for moneys lost by
reason of its discrimination in accordance with the for-
mula set forth in the section of this decision entitled
"The Remedy." -
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Hoboken, and Bayonne, New Jersey fa-
cilities copies of the attached notice marked "Appen-
dix."34 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent 's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
34 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "I31(d) Notify the Regional Director in writing
within 20 days from the date of this Order what steps the Respondent has
taken to comply ' ' .
APPENDIX
ORDER
The Respondent, Hoboken Shipyards, Inc., Hoboken,
New Jersey, its officers, agents, successors, and assigns
shall
1.' Cease and desist from
(a) Refusing to hire applicants for employment because
of their union and protected activities.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effecuate the policies of the Act.
33 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings ,, conclusions, and recommended
Order shall, as provided in Sec . 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
NOTICE To EMPLOYEES _
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to hire applicants for employ-
ment because of their union or protected 'activities '
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the National Labor Relations Act
WE WILL offer immediate employment to Joel R. Fre-
dericson in the rigger classification or in a substantially
equivalent classification and make him whole for any loss
of earnings he may have suffered by reason of our dis-
crimination against him. -
HOBOKEN SHIPYARDS, INC.