ITT Federal Services Corp.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 998 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
ITT Federal Services Corporation and Lockheed
Martin Services, Inc. and Seafarers Interna-
tional Union, Atlantic, Gulf, Lakes and Inland
Waters District, a/w Seafarers International Un-
ion of North America, AFL–CIO. Cases 24–CA–
7658 and 24–CA–7659
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On April 19, 1999, Administrative Law Judge Leonard
M. Wagman issued the attached decision. Respondent
ITT Corporation filed exceptions, a supporting brief, and
a reply brief. The Charging Party filed cross-exceptions,
a supporting brief, a supplemental brief, and an answer-
ing brief.1 Respondent Lockheed Martin Services, Inc.
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order only to the extent con-
sistent with this Decision and Order. Chairman Hurtgen
joins in this opinion, except as to part V, from which he
dissents.

1 The Charging Party contends, in its answering brief, that the Board
should dismiss Respondent ITT’s exceptions 3, 4, 8, 9, 10, 22, and 23
because they do not conform to the Board’s Rules and Regulations.
Specifically, the Charging Party contends that these exceptions are not
discussed in Respondent ITT’s brief and should, therefore, be dis-
missed. We deny the Charging Party’s request because Respondent
ITT’s exceptions are in substantial compliance with Sec. 102.46 of the
Board’s Rules and Regulations.
The Charging Party has requested that we take administrative notice
of employee Candelario’s posthearing termination, as allegedly estab-
lished by “annex 1” and “annex 2,” which are attached to its answering
brief. “Annex 1” and “annex 2,” both of which postdate the hearing,
are two union documents regarding a grievance filed on behalf of Can-
delario. We deny this request. Although the Charging Party did not
cite Fed.R.Evid. 201 as a basis for its request, it has failed to show that
these documents are susceptible to notice under this Rule or otherwise.
Fed R Evid. 201(b) states:
A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction
of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.
The proffered documents, which, as stated above, concern an event
that occurred after the hearing, are not susceptible to administrative
notice under either category of Fed.R.Evid. 201(b). See, e.g., Dahl
Fish Co., 279 NLRB 1084, 1109 (1986), enfd. mem. 813 F.2d 1254
(D.C. Cir. 1987).
In any event, insofar as the Charging Party’s request for administra-
tive notice is related to the 8(a)(1) allegation involving Candelario, we
have adopted the judge’s finding that ITT unlawfully threatened Cande-
lario with unspecified reprisals for supporting the Union.
2 Respondent ITT Corp. and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
I. BACKGROUND
The relevant facts are these. The Union represented 46
marine and ocean engineering (MOE) employees em-
ployed by Martin Marietta Service Corporation (Martin
Marietta), one of ITT’s predecessors, at its facilities at
Roosevelt Roads, Ceiba, Puerto Rico. The parties had
executed a collective-bargaining agreement on August
18, 1995, to expire on July 31, 1997.
In October 1996,3 Respondent Lockheed Martin Ser-
vices, Inc. (LMSI) and ITT learned that the United States
Navy had selected ITT as the successful bidder on a con-
tract to perform the ocean engineering work at the Roo-
sevelt Roads Naval Base’s Atlantic Fleet Weapons
Training Facility, which the LMSI bargaining unit em-
ployees had previously performed. Following a phase-in
period that began on or about October 28, ITT took over
the operation from LMSI on December 1. On that date,
LMSI provided a payroll list of its employees to ITT.
The list contained the names of 272 employees, of whom
approximately 45 were in the unit. On December 8, the
Respondent changed the name of the bargaining unit
from the MOE department to the surface craft depart-
ment. The size of the unit was reduced to 28 employees,
and, of the 272 employees on LMSI’s payroll list, ITT
began its operations at Roosevelt Roads with approxi-
mately 180.
The complaint allegations involve, inter alia, three em-
ployees—Richard Rhinehart, Peter Torrens, and Harry
Wessel—who worked for LMSI and its predecessors and
were, since the inception of the union movement in 1993,
union activists.
II. ALLEGATIONS REGARDING LMSI’S
BLACKLISTING RHINEHART, TORRENS, AND
WESSEL AND CAUSING OR ATTEMPTING TO
CAUSE ITT TO DISCRIMINATE AGAINST
RHINEHART, TORRENS, AND WESSEL BY FAIL-
ING OR REFUSING TO HIRE THEM
We agree with the judge that LMSI did not violate the
Act by blacklisting Rhinehart, Torrens, and Wessel, or
by causing or attempting to cause ITT to fail and refuse
to hire these individuals as alleged in the complaint. The
judge found that the record did not show any effort by
LMSI to provide any information to ITT regarding these

3 All dates will refer to 1996 unless otherwise indicated.
335 NLRB No. 79
ITT FEDERAL SERVICES CORP. 999
individuals’ union sentiments and activities. Also, the
payroll list prepared by LMSI officials (and delivered to
ITT officials) during the transition period had no infor-
mation about these individuals’ union sentiments and
activities. Finally, there was no showing that David
Graham, ITT’s hiring official (or any other ITT re-
cruiter), ever received any information from LMSI re-
garding applicants’ union activities or sentiments.
III. NOVEMBER 1996 REFUSAL TO CONSIDER
AND REFUSAL
TO HIRE ALEGATIONS
We agree with the judge’s findings that ITT did not re-
fuse to consider or refuse to hire Torrens, Rhinehart, and
Wessel in November 1996. The judge found that Gra-
ham, ITT’s hiring official, had no knowledge of the un-
ion activities of Torrens, Rhinehart, or Wessel, and there
was no showing that Graham ever saw these individuals’
names in November, because they did not submit appli-
cations, and Graham relied exclusively on applications.4
IV. FEBRUARY 1997 REFUSAL TO CONSIDER AND
REFUSAL TO HIRE ALLEGATIONS
A. ITT’s Alleged Failure and Refusal to Consider or
Hire Wessel in February 1997
We agree with the judge’s finding that ITT did not
unlawfully fail and refuse to consider or hire Wessel on
or about February 10, 1997. The judge found that there
was no showing that the Union referred Wessel for a
position at ITT after December 1. Nor was there any
showing that Wessel made any effort to find employment
at ITT’s Roosevelt Roads operations.
B. ITT’s Alleged Failure and Refusal to Consider and
Hire Torrens and Rhinehart in February 1997
We find, contrary to the judge, that ITT did not violate
Section 8(a)(3) of the Act by refusing to hire Torrens and
Rhinehart in February 1997.5
The relevant facts are these. Torrens and Rhinehart
were both longtime employees of LMSI and its predeces-
sors. They were also union activists throughout the
course of their employment. Torrens, an unlicensed en-
gineer, became an alternate delegate in 1993 or 1994. In
the main delegate’s absence, he attended meetings, filed
grievances, and otherwise represented unit employees.
In August 1995, he served as an active member of the
Union’s negotiating committee. After LMSI discharged

4 The judge’s analysis of these allegations comports with FES, 331
NLRB 9 (2000). See discussion of FES, infra. Specifically, as stated
above, Graham had no knowledge of the union activities or sentiments
of Torrens, Rhinehart, and Wessel.
5 The judge did not independently pass on the refusal-to-consider al-
legations. We find no merit in these allegations. See fn. 9, infra.
Rhinehart on June 21, Torrens became the main delegate
for the unit. Torrens was laid off on November 30.
Rhinehart served as a second officer on the Hugo. As
stated above, he served as the main delegate for unit em-
ployees until he was discharged. As main delegate, he
presented grievances to LMSI and filed unfair labor prac-
tice charges against his employer. LMSI discharged
Rhinehart on June 21 for an incident relating to his time
and expenses report for work performed on June 11.
Stated briefly, LMSI had, on at least three occasions,
directed Rhinehart to change the number of hours he had
entered on the top part of his report. Rhinehart refused
each time. On June 17, Rhinehart filed a grievance on
behalf of himself and six other employees, alleging that
LMSI was wrongfully refusing to pay them for the ap-
propriate number of hours.6 On June 21, Human Re-
sources Manager Jose Morales insisted that Rhinehart
change his report. Rhinehart refused. Morales asked
Rhinehart if he understood that if he refused to change
the report, he would be discharged. Rhinehart said that
he understood this, and Morales fired him. Minerva Do-
nato, a human resources official, helped prepare Rhi-
nehart’s discharge paperwork. Rhinehart’s discharge
was not alleged as an unfair labor practice.
In January 1997, ITT, which had, as stated above,
taken over operations from LMSI on December 1, began
to seek referrals from the Union to fill positions in the
surface craft department. On January 14, 1997, Steve
Ruiz and Jose Morrero, representing the Union, met with
ITT’s surface craft department manager, Richard Cabral,
and hiring official Lisa Ramsey to discuss why ITT was
not hiring former LMSI employees (including Rhinehart,
Torrens, and Wessel). Ruiz and Morrero asked if ITT
would hire Rhinehart. Cabral stated that he had no prob-
lem hiring Rhinehart, who, he said, was a good boat han-
dler. Regarding Torrens, Cabral stated that he had a
problem with Torrens because of his excessive absences
from work. Ruiz asked how Cabral knew about these
alleged absences; Cabral replied that he had previously
worked with Torrens. (Presumably, Cabral meant that he
had worked with Torrens while both were employed by
GE, one of LMSI’s predecessors.)
Later that month, the Union invited Torrens to come to
its hall to fill out an application for a position at ITT’s
Roosevelt Roads operation. Torrens complied with this
request, and, sometime before February 6, the Union
directed him to report to the main gate at Roosevelt
Roads, where Donato, ITT’s human resources adminis-
trator, would meet him. Torrens reported as instructed,
6 The grievance was pending at the time of the hearing. The dispute
allegedly dealt with the computation of overtime, a subject covered by
the collective-bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
and Cabral interviewed him. After the interview, Tor-
rens never heard from ITT again. On February 6, Donato
sent an employment requisition to the Union announcing
an opening for an unlicensed engineer position. (Torrens
had worked as an unlicensed engineer for LMSI.)
That same month, Ruiz advised Rhinehart that ITT
was hiring for Rhinehart’s second mate position. Ruiz
instructed Rhinehart to complete an application for em-
ployment with ITT as a second mate. Rhinehart com-
plied with these instructions. On February 10, 1997,
Rhinehart and several other applicants, including Tor-
rens, reported to the gate at Roosevelt Roads. Cabral
interviewed Rhinehart. Cabral stated that he knew where
Rhinehart had worked last, how long he had worked
there, and why he had left. Cabral asked Rhinehart what
he had liked about his last job; Rhinehart replied that he
had liked the men he had worked with. Cabral also
asked him what he did not like about his last job; Rhi-
nehart replied that he did not like the way management
had lied to the employees and cheated them out of their
pay. Cabral asked Rhinehart what he would do if things
had not changed. Rhinehart answered that he wanted to
work and get paid, and that he would get along with his
fellow employees, as he had in the past. Rhinehart asked
Cabral what positions were open; Cabral stated that there
were two deck positions, engine positions, and two mate
positions. Rhinehart did not hear from ITT after this
interview.
Later that month, Ruiz invited Rhinehart to sit with the
Union during contract negotiations with ITT. On Febru-
ary 26, 1997, Rhinehart sat with Ruiz and Morrero at the
bargaining table. ITT’s negotiators were Employee Rela-
tions Manager John Bligh, Ramsey, Donato, and Cabral.
When the union group entered, Bligh objected to Rhi-
nehart’s presence on the grounds that Rhinehart was no
longer a unit employee. Bligh waved his finger close to
Rhinehart’s face, asked what he was doing there, and
threatened to pull out of the negotiations. Ultimately,
Bligh withdrew his objection, and negotiations pro-
ceeded peacefully.
The next day, Ruiz asked Cabral about getting Rhi-
nehart a second mate’s job. Cabral answered that he did
not “get a warm fuzzy feeling” from Rhinehart. Ruiz
asked Cabral to elaborate, but Cabral would only state
that, “[r]ight now, that is the only answer that I am going
to give you, because Richard [Rhinehart] is sitting there.”
The Union filed a grievance regarding Rhinehart, alleg-
ing that ITT was discriminating against him. Ruiz also
asked ITT for an explanation regarding its treatment of
Rhinehart. Sometime after December 1, 1996, ITT hired a
second mate in the mainland United States, without going
through the Union or offering the job to Rhinehart.
The judge, applying a Wright Line7 analysis, found
that ITT unlawfully refused to hire Torrens and Rhi-
nehart. We disagree, and reverse the judge’s findings.
In Wright Line, supra, the Board set forth a test of cau-
sation for all cases alleging violations of Section 8(a)(3),
or violations of Section 8(a)(1) turning on employer mo-
tivation: To establish that an employer unlawfully dis-
charged an alleged discriminatee, the General Counsel
must show, by a preponderance of the evidence, that the
protected activity was a motivating factor in the em-
ployer’s decision to discharge that employee; once the
General Counsel has made this required showing, the
burden shifts to the Respondent to demonstrate that it
would have taken the same action even in the absence of
the protected union activity.8
Regarding the instant case, Wright Line establishes the
analytical framework for resolving alleged 8(a)(3) viola-
tions raised by refusal-to-hire allegations. Based on the
Wright Line burdens of proof, the recent decision in FES,
supra, sets forth the specific criteria that the General
Counsel has to meet to demonstrate a prima facie case of
a refusal-to-hire violation:

To establish a discriminatory refusal to hire, the
General Counsel must . . . first show the following at
the hearing on the merits: (1) that the respondent was
hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or
generally known requirements of the positions for
hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the
requirements were themselves pretextual or were ap-
plied as a pretext for discrimination; and (3) that anti-
union animus contributed to the decision not to hire
the applicants. Once this is established, the burden
will shift to the respondent to show that it would not
have hired the applicants even in the absence of their
union activity or affiliation.
FES, supra at 12.9 [Footnotes omitted.]

7 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983), overruled in part
on other grounds Director, Office of Workers Compensation Programs,
Dept. of Labor v. Greenwich Collieries, 512 U.S. 267, 276–278 (1994).
8 Wright Line, supra at 1089.
9 The General Counsel also alleged that ITT refused to consider Tor-
rens and Rhinehart for employment on or about February 10, 1997.
Under FES, supra at 15:
[t]o establish a discriminatory refusal to consider, pursuant to
Wright Line . . . the General Counsel bears the burden of showing
the following at the hearing on the merits: (1) that the respondent
excluded applicants from a hiring process; and (2) that antiunion
animus contributed to the decision not to consider the applicants
for employment. Once this is established, the burden will shift to
ITT FEDERAL SERVICES CORP. 1001
As to the first prong of the above-stated test, the Re-
spondent was hiring at the time Rhinehart and Torrens
applied for jobs with ITT in February 1997. In January,
ITT began to seek referrals from the Union to fill unit
positions. In February, ITT sent an employment requisi-
tion for an unlicensed engineer position to the Union.
(Torrens had worked as an unlicensed engineer.) Addi-
tionally, ITT hired a second mate from the mainland
United States.
As to the second prong, the judge correctly found that
Torrens and Rhinehart were amply qualified for unit
work. Torrens had worked for LMSI and its predeces-
sors for 17 years (including work as an unlicensed engi-
neer), and LMSI and its predecessors had employed Rhi-
nehart (who was the second mate on the Hugo) for al-
most 18 years. Furthermore, Cabral stated that Torrens
was a good boat handler.10
Regarding the third prong, we find, contrary to the
judge, that there is insufficient proof that antiunion ani-
mus contributed to ITT’s refusal to hire Torrens and
Rhinehart in February 1997. Although the judge cor-
rectly found that ITT was aware of Torrens’ and Rhi-
nehart’s history of union activism under ITT’s predeces-
sors, he erred in concluding that LMSI’s alleged hostility
toward union activists resurfaced under ITT.11

the respondent to show that it would not have considered the ap-
plicants even in the absence of their union activity or affiliation.
As discussed below, we reverse the judge’s finding that ITT’s anti-
union animus contributed to its decision not to hire Torrens and Rhi-
nehart in February 1997. In light of this reversal, we also find that
antiunion animus did not contribute to ITT’s alleged refusal to consider
Torrens and Rhinehart for employment in February 1997. Further,
under the above-quoted test for a refusal-to-consider allegation, we find
that ITT did not exclude Torrens and Rhinehart—both of whom were
interviewed by Cabral—from the hiring process.
10 The judge also found that Cabral and ITT did not raise the issue of
Torrens’ and Rhinehart’s qualifications for refusing to hire them.
11 Regarding ITT’s knowledge of Torrens’ and Rhinehart’s history
of union activism, the judge essentially found that ITT Managers Do-
nato and Captain Franklin Woods had previously worked for LMSI and
were aware of Torrens’ and Rhinehart’s roles as union activists. As
stated above, Donato had helped prepare Rhinehart’s discharge paper-
work, having been terminated for refusing to change his time and ex-
penses report. Rhinehart filed a grievance regarding ITT’s computation
of overtime. Donato was also, according to the judge, aware of a warn-
ing regarding excessive absences which was given to Torrens on Feb-
ruary 1. (The warning was expunged by LMSI pursuant to a settlement
agreement.) The judge specifically found that Woods brought his
knowledge of and hostility toward Torrens’ union activities with him
based on the fact that Woods had ordered Torrens off the Hugo when
Torrens appeared to distribute layoff papers. In response to a grievance
filed regarding this incident, ITT advised Torrens that Woods had been
counseled regarding his use of profanity toward Torrens. The judge’s
decision does not describe any other incidents in which Woods ob-
served Torrens or Rhinehart engaging in union activities.
Additionally, the judge found that Cabral had an opportunity to learn
about Torrens’ and Rhinehart’s union activities at LMSI from an LMSI
manager.
The judge based his finding that antiunion animus con-
tributed to ITT’s refusal to hire Torrens and Rhinehart on
the following incidents: (1) Bligh’s hostility toward
Rhinehart when Rhinehart arrived to participate in con-
tract negotiations with ITT; (2) Cabral’s statement to
Ruiz that he did not get a “warm fuzzy feeling” from
Rhinehart; (3) an independent violation of Section
8(a)(1) committed by Cabral approximately 3 months
after the alleged unlawful refusals to hire; and (4) ITT’s
resort to the mainland United States to fill a second
mate’s position.
Contrary to the judge, these findings fall far short of
demonstrating that antiunion animus contributed to ITT’s
refusal to hire Torrens and Rhinehart.
Bligh’s behavior toward Rhinehart on February 26,
1997 does not demonstrate his—let alone ITT’s—
antiunion animus. As stated above, Bligh challenged
Rhinehart’s right to sit with Ruiz and Morrero at the ne-
gotiating table because Rhinehart was no longer a unit
employee. Bligh waved his finger close to Rhinehart’s
face, asked what he was doing there, and threatened to
pull out of the negotiations. The evidence, however,
does not establish that this behavior, although perhaps
“hostile” or rude, was motivated by antiunion hostility.
To the contrary, Bligh’s challenge to Rhinehart’s pres-
ence at the negotiating table could well have been moti-
vated by his concern that Rhinehart was not a unit em-
ployee. In any event, after Ruiz explained that the Union
wanted Rhinehart at the negotiating table because of his
expertise on the contract project, Bligh withdrew his ob-
jection and negotiations proceeded peacefully.
As stated above, on the day after this incident, Ruiz
raised the possibility of ITT hiring Rhinehart with
Cabral. Cabral replied that he did not “get a warm fuzzy
feeling” from Rhinehart. Ruiz pressed Cabral for a fur-
ther explanation, but Cabral would only say that, “[r]ight
now, that is the only answer that I am going to give you,
because Richard [Rhinehart] is sitting there.” The judge
included Cabral’s “warm fuzzy” remark in his discussion
of ITT’s alleged demonstration of antiunion animus, but
he did not explain why this colloquialism evidenced an-
tiunion animus. We find that Cabral’s remark is hope-
lessly vague and that a link to Rhinehart’s history of un-
ion activism while he was employed at LMSI has not
been shown.
The judge further found ITT demonstrated its anti-
union animus because it hired (sometime after December
1, 1996) a second mate in the mainland United States for
work at Roosevelt Roads without going through the Un-

Chairman Hurtgen does not pass on whether the General Counsel
has established the element of knowledge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
ion or offering the job to Rhinehart. The judge did not
explain why this behavior constituted antiunion animus.
Presumably, the judge believed that this was evidence of
ITT’s antiunion animus because ITT had gone to such
tremendous lengths (i.e., resorting to the faraway
mainland United States) merely to avoid hiring Rhi-
nehart. Based on this record, such a finding would be
speculative. In sum, nothing in this record suggests that
ITT’s “resort” to the mainland United States was moti-
vated by its desire to avoid hiring Rhinehart because of
his union activities or sentiments, or to avoid hiring
through the Union.
The judge’s final finding regarding ITT’s alleged anti-
union animus rests on an independent 8(a)(1) violation
committed by Cabral on May 1, 1997, which was more
than 2 months after ITT allegedly unlawfully refused to
hire Torrens and Rhinehart.12 The violation was a threat
of unspecified reprisals made by Cabral to Roberto Can-
delario, an employee. This violation, standing alone—as
it must in light of our reversal of the judge’s other find-
ings regarding ITT’s alleged antiunion animus toward
Torrens and Rhinehart—is an insufficient basis for find-
ing that ITT’s antiunion animus contributed to its refusal
to hire Torrens and Rhinehart. The violation was an iso-
lated one, and is not indicative of any overall pattern of
antiunion conduct by ITT, who, as stated above, had en-
tered into contract negotiations with the Union and was
not found to have otherwise violated the Act in this pro-
ceeding.13
In sum, the judge based his finding of antiunion ani-
mus on the three incidents described above plus an inde-
pendent 8(a)(1) violation. As we have discussed, the
judge’s finding of antiunion animus based on the three
incidents is insufficiently supported by the evidence.
And, the independent 8(a)(1) threat of unlawful reprisals
is an insufficient basis for finding that antiunion animus
contributed to ITT’s decision not to hire Torrens and
Rhinehart. For these reasons, we reverse the judge, and
find that the General Counsel has failed to establish that
antiunion animus contributed to ITT’s decision not to
hire Torrens and Rhinehart in February 1997.
V. THREAT OF UNSPECIFIED REPRISALS
Contrary to our dissenting colleague, we agree with the
judge that ITT violated Section 8(a)(1) by making a
threat of unspecified reprisals for engaging in union ac-
tivity to employee Roberto Candelario.

12 See sec.V, infra.
13 Indeed, ITT had not made any effort to avoid recognizing or bar-
gaining with the Union. ITT was negotiating with the Union, and
sought employment referrals through the Union.
On May 1, 1997, Candelario reported for work at 7:30
a.m. He intended to help the Union with its contract ne-
gotiations with ITT, which were scheduled for 10 a.m.
Sometime that morning, Surface Craft Department Man-
ager Cabral approached the USNS Hunter, which was
docked at Roosevelt Roads Naval Station. Candelario
was standing on deck. Cabral called out to Candelario,
and invited him to join him. Candelario left the Hunter
and entered an ITT vehicle which Cabral was driving.
As Cabral began driving, he stated that they were going
outside the gate to check up on some signs and decals
posted beyond the naval station. As they drove, Cabral
explained to Candelario that he wanted to check the signs
and decals to make sure that they were not on Navy
property. Cabral and Candelario passed union signs and
decals which read “ITT unfair labor practice” or exhib-
ited the name ITT and dollar sign figures. When they
turned back toward the base, Cabral stated that “who-
ever’s doing this better watch out.”
The judge found that Cabral’s statement to Candelario,
a union activist, was a thinly veiled warning that he or
any other unit employee who might openly support the
Union’s bargaining effort by expressing opposition to
ITT’s labor relations policies would suffer discipline—
including discharge—at ITT’s hand. The judge further
found that, through this remark, Cabral sought to inter-
fere with, restrain, and coerce Candelario in the exercise
of his Section 7 rights.
The Board’s well-established test for interference, re-
straint, and coercion under Section 8(a)(1) is an objective
one and depends on “whether the employer engaged in
conduct which, it may reasonably be said, tends to inter-
fere with the free exercise of employee rights under the
Act.” American Freightways Co., 124 NLRB 146, 147
(1959). Thus, the critical question here is whether
Cabral’s statement may reasonably be understood as
unlawful under Section 8(a)(1). We agree with the judge
that it may.
Essentially, our colleague argues that Cabral’s state-
ment to Candelario was ambiguous (i.e., his statement
could reasonably have been interpreted as referring to his
concern with the placement of signs and decals outside
Navy property) and hence not violative of the Act. In
this regard, our colleague contends that the General
Counsel has not established a basis for finding that
Cabral was concerned with the content of the signs as
opposed to their placement. However, contrary to our
colleague’s contention, the General Counsel does not
have the evidentiary burden of divining Cabral’s per-
ITT FEDERAL SERVICES CORP. 1003
sonal motivation for making the statement.14 The Gen-
eral Counsel’s burden is to demonstrate, by a preponder-
ance of the evidence, that Cabral’s comment could rea-
sonably be construed as violative of Section 8(a)(1).
The General Counsel has met his burden. As stated
above, Cabral sought out Candelario, a union activist,
and invited Candelario to drive with him in a company
car to observe signs and decals outside the naval station.
As they drove, Cabral and Candelario passed union signs
and decals which declared “ITT unfair labor practice” or
displayed the ITT name next to dollar signs. When they
turned back to head toward the base, Cabral told Cande-
lario that “whover’s doing this better watch out.” The
“this” part of his statement, reasonably construed, re-
ferred to the protected activity of posting union signs
which expressed opposition to ITT’s labor policies. The
“better watch out” part of the statement, reasonably con-
strued, referred to potential reprisals ITT would take
against employees who opposed ITT’s labor policies and
supported the Union.15 Even if Cabral’s motivation was
to express his concern about the placement of the signs
and decals, the remark would still be unlawful because
the statement itself does not express that thought, and
Cabral ran the risk that his statement—or any ambiguity
in his statement—could be construed by an employee as
containing an unlawful threat. Thus, as the judge found,
Cabral’s statement violated Section 8(a)(1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth in full below, and orders that the
Respondent, ITT Federal Services Corp., Roosevelt
Roads, Ceiba, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
because they engage in activities on behalf of Seafarers
International Union, Atlantic, Gulf, Lakes and Inland
Waters District, a/w Seafarers International Union of
North America, AFL–CIO, or any other labor organiza-
tion.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

14 “It is well settled that the test of interference, restraint, and coer-
cion under Sec. 8(a)(1) of the Act does not turn on the employer’s
motive or on whether the coercion succeeded or failed.” American
Freightways Co., supra at 147.
15 The very words “better watch out” have previously been construed
as conveying a threat in violation of Sec. 8(a)(1). See, e.g., Southern
Devices, Inc., 173 NLRB 1436, 1437 (1968).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Roosevelt Roads, Puerto Rico facility copies of the
attached notice marked “Appendix.”16 Copies of the
notice, on forms provided by the Regional Director for
Region 24, after being signed by ITT’s authorized repre-
sentative, shall be posted by ITT and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by ITT to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, ITT has gone out of business
or closed the facility involved in these proceedings, ITT
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by ITT at Roosevelt Roads, Puerto Rico at any
time since May 1, 1997.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that ITT has taken to comply.

CHAIRMAN HURTGEN, dissenting in part.
Unlike my colleagues, I do not find that the Respon-
dent violated Section 8(a)(1) of the Act by threatening an
employee with unspecified reprisals for engaging in un-
ion activity.
The incident involved Richard Cabral, an ITT man-
ager, and employee Roberto Candelario. They were in
an ITT vehicle which Cabral was driving. Cabral told
Candelario that they were going outside the gate to check
on some signs and decals posted beyond the naval sta-
tion, to make sure they were not on Navy property. They
passed union signs and decals that said “ITT unfair labor
practice” or had ITT and dollar signs printed on them.
When they turned back toward the base, Cabral said that
“Whoever’s doing this better watch out.”
The judge found that Cabral’s statement was a thinly
veiled warning that Candelario or any other unit em-
ployee who might openly support the Union’s bargaining
efforts by expressing opposition to ITT’s labor relations
policies would suffer discipline, including discharge. He
found the comment violative of Section 8(a)(1) of the
Act. My colleagues agree. I do not.
In my view, this finding represents a marked overread-
ing of Cabral’s statement. At a minimum, the inference
16 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
of possible discharge is utterly baseless. Further, it is far
from clear that Cabral was threatening to do anything
with respect to Section 7 activity. It is at least as likely
that Cabral was merely indicating that whoever was re-
sponsible for the signs and decals needed to be careful
about where he put them (i.e., not on Navy property).
The General Counsel has not established a basis for find-
ing that it was the content of the decals, not their loca-
tion, that concerned Cabral. To the contrary, given the
fact that the mission of the two men concerned where the
signs and decals were posted, the reasonable interpreta-
tion is that the persons doing the posting should “watch
out” as to where they placed the decals. In these circum-
stances, the General Counsel has not shown that Cande-
lario reasonably would have interpreted Cabral’s state-
ment as a coercive threat concerning Section 7 activity.
Thus, contrary to my colleague’s suggestion, my position
does not hinge on divining Cabral’s motivation. In sum,
I find that the General Counsel has not met his burden of
establishing that Cabral’s statement was unlawful. I
would therefore dismiss this allegation as well.1

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

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

WE WILL NOT threaten employees with unspecified
reprisals because they engage in activities on behalf of
Seafarers International Union, Atlantic, Gulf, Lakes and
Inland Waters District, a/w Seafarers International Union
of North America, AFL–CIO, or any other labor organi-
zation.

1 Even if the Cabral statement was unlawful under Sec. 8(a)(1), it
shows, at most, animus toward the decal posting, not animus against the
union activity of Torrens and Rhinehart.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

ITT FEDERAL SERVICES CORPORATION

Virginia Milan-Giol and Efrain Rivera-Vega, Esqs., for the
General Counsel.
James G. Baker, Esq. (Spencer, Fane, Britt & Brown), of Kan-
sas City, Missouri, and Francisco Chevere and Luis R.
Amaddeo, Esqs. (McConnel Valdes), of San Juan, Puerto
Rico, for Respondent ITT Federal Services Corporation.
Victor M. Comolli, Esq. (Shuster Usera Aguilo & Santiago), of
San Juan, Puerto Rico, and Andrew L. Tomlinson, Esq., of
Cherry Hill, New Jersey, for the Respondent Lockheed
Martin Services, Inc.
Ginoris Vizcarra de Lopez-Lay, Esq., of Santurce, Puerto Rico,
for the Charging Party.
DECISION
STATEMENT OF THE CASES
LEONARD M. WAGMAN, Administrative Law Judge.
These cases1 were tried in San Juan, Puerto Rico, on March 31,
April 1, 2, 28, and 30, 1998.2 Upon a charge filed by Seafarers
International Union, Atlantic, Gulf, Lakes and Inland District,
a/w Seafarers International Union of North America, AFL–CIO
(SIU), against Martin Marietta Government Services (LMSI),3
in Case 24–CA–7303, and a charge filed by Harry Wessel, an
individual, against Lockheed Martin (LM), in Case 24–CA–
7327, the Regional Director for Region 24 of the National La-
bor Relations Board (the Board), issued a consolidated com-
plaint on May 30, 1997, alleging that LMSI and LM had vio-
lated Section 8(a)(5), (3), and (1) of the Act by unilaterally
assigning supervisory duties to bargaining unit employees and
issuing a warning to a bargaining unit employee for refusing to
carry out those supervisory duties.
Upon further charges filed by SIU against LMSI, LM, and
ITT Federal Services Corp. (ITT), in Cases 24–CA–7404, 24–
CA–7658, and 24–CA–7659, the Regional Director for Region
24 issued a consolidated complaint on July 31, 1997, alleging
that LMSI violated Section 8(a)(3) and (1) of the Act by black-
listing, or otherwise attempting to cause, or causing ITT to
refuse to hire, employees Peter Torrens, Harry Wessel, and
Richard Rhinehart because of their union activity. The same
complaint alleged that ITT violated Section 8(a)(3) and (1) of
the Act by refusing to consider and refusing to hire Torrens,
Wessel, and Rhinehart on November 14 and again on February
12, 1997, because of their union activity. Also, this same con-
solidated complaint alleged that ITT violated Section 8(a)(5)
and (1) of the Act by making unilateral changes in the bargain-
1 The caption of these cases has been amended in accordance with a
stipulation between the General Counsel and Respondent Lockheed
Martin Services, Inc.
2 All dates are in 1996 unless otherwise indicated.
3 As a result of a merger, Martin Marietta Government Services has
become Lockheed Martin Services, Inc., a wholly owned subsidiary of
Lockheed Martin Corp.
ITT FEDERAL SERVICES CORP. 1005
ing unit employees’ terms and conditions of employment and
by refusing to meet with SIU and process grievances. Further,
this complaint alleged that ITT violated Section 8(a)(1) of the
Act, when a supervisor threatened an employee with unspeci-
fied reprisals for engaging in union activity or belonging to a
union.
Further, upon the charges recited above, and charges filed by
SIU against LM, LMSI, and ITT in Case 24–CA–7726, and
against ITT in Cases 24–CA–7786, 24–CA–7819, and 24–CA–
7875, the Regional Director issued a second consolidated
amended complaint setting forth the alleged violations of the
Act as stated above, and alleging additional unilateral changes
in wages and other terms and conditions of employment as
violations of Section 8(a)(5) and (1) off the Act.
On March 10, 1998, the Regional Director issued her Order
Consolidating Cases covering Cases 24–CA–7303, 24–CA–
7327, 24–CA–7404, 24–CA–7658, 24–CA–7659, 24–CA–
7704, 24–CA–7726, 24–CA–7786, 24–CA–7819, and 24–CA–
7875. LMSI, LM, and ITT, respectively, filed timely answers
to the complaints and their amendments.
At the outset of the hearing, the General Counsel announced
that LMSI, LM, and SIU had joined in an informal settlement
remedying the allegations in Cases 24–CA–7303, 7327, and
24–CA–7404. Whereupon, I granted the General Counsel’s
motion to sever those cases from the consolidated complaint.
On April 30, 1998, upon the completion of the hearing in
Cases 24–CA–7658 and 24–CA–7659, I severed Cases 24–
CA–7704, 24–CA–7726, 24–CA–7786, 24–CA–7819, and 24–
CA–7875 from the consolidated complaint and postponed the
hearing in these five cases indefinitely, pending the execution
of a collective-bargaining agreement between SIU and ITT and
their resolution of outstanding grievances. Thereafter, on De-
cember 2, 1998, upon the General Counsel’s motion, I issued
my Order Severing and Dismissing Cases upon advice that ITT
had complied with its out-of-Board settlement agreement with
SIU.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, LMSI, ITT, and SIU, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times material to these cases, Respondent ITT, a cor-
poration duly authorized to do business in the Commonwealth
of Puerto Rico, has had an office and place of business at Roo-
sevelt Roads, Ceiba, Puerto Rico, where it has been engaged in
the government contracting of government defense services.
During the 12-month period preceding January 30, 1997, ITT,
in conducting its business operations purchased and received at
its Roosevelt Roads, Puerto Rico facility goods valued in ex-
cess of $50,000 directly from points outside the Common-
wealth of Puerto Rico. ITT admits, and I find, that ITT has
been, at all times material to these cases, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
At all times material to these cases, Respondent LMSI, a
wholly owned subsidiary corporation of LM, has been a Dela-
ware corporation, with an office and place of business at Roo-
sevelt Roads, Ceiba, Puerto Rico, where it engaged in the gov-
ernment contracting of government defense services up until
November 30. During the 12-month period prior to November
30, LMSI, in conducting its business operations, purchased and
received at its Roosevelt Roads, Puerto Rico facility goods
valued in excess of $50,000 directly from points outside the
Commonwealth of Puerto Rico. LMSI admits, and I find that
LMSI has been, at all times material to these cases, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. LMSI and ITT admit, and I find,
that at all times material to these cases, SIU has been a labor
organization within the meaning Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
On June 15, 1993, the SIU filed a petition seeking a repre-
sentation election in a unit of 46 marine and ocean engineering
employees employed by LMSI’s predecessor, Martin Marietta
Services Corporation at its facilities at Roosevelt Roads, Ceiba,
Puerto Rico. Thereafter, on August 24, 1994, following a
Board-held election, the Regional Director for Region 24 issued
a certification designating the SIU as the exclusive collective-
bargaining representative of the following appropriate unit:

Included: All employees employed by the Employer at its
Marine Ocean Engineering facilities at Ceiba, Puerto Rico,
including Facility Monitors, Marine Technicians B, Associate
Maintenance Specialists, Industrial Maintenance Specialists
B, Repair Technicians B, and Second Officers

Excluded: All office clerical employees, the maintenance co-
ordinator, the operations coordinator, the logistics coordinator,
the stock assistant, the stock clerk, the typist clerk A, guards
and supervisors as defined in the Act.

During the representation election, Martin Marietta’s chief
engineers and chief officers voted challenged ballots. Martin
Marietta and SIU reached a collective-bargaining agreement on
August 18, 1995, without resolving the unit placement of either
the chief engineers or the chief officers. This agreement be-
came effective upon ratification by the unit employees on Au-
gust 22, 1995. Its expiration date was July 31, 1997.
On October 13, 1995, the SIU filed a unit clarification peti-
tion with the Regional Director for Region 24, seeking clarifi-
cation of the unit placement of the chief engineers and chief
officers. Martin Marietta’s position was that the chief engi-
neers and chief officers were supervisors under the Act, and
thus should be excluded from the bargaining unit. SIU urged a
finding that these classifications were not supervisory and
therefore should be included in the unit. On September 30, the
Regional Director issued a decision finding that the chief engi-
neers and chief officers were not statutory supervisors and were
included in the bargaining unit.
In October LMSI and ITT learned that the U.S. Navy had se-
lected ITT as the successful bidder on a service contract to
perform government services at the Roosevelt Roads Naval
Base’s Atlantic Fleet Weapons Training Facility. ITT took
over the operation from LMSI on December 1, following a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
phase-in period that began on or about October 28. On that
date, LMSI provided a list of its employees to ITT. The list
consisted of 272 employees, of whom approximately 45 were
in the bargaining unit that SIU represented for the purpose of
collective bargaining.
As of December 8, ITT changed the name of the bargaining
unit from the Marine Ocean engineering department to the sur-
face craft department. Also as of the same date, ITT’s payroll
records show that it had reduced the bargaining unit to 28 em-
ployees. Of the 272 employees on LMSI’s payroll list, ITT began
its operations at Roosevelt Roads with approximately 180.
Among the LM employees who ITT did not hire in Novem-
ber, were SIU activists Peter Torrens, Harry Wessel, and Rich-
ard Rhinehart. Later, in February 1997, ITT asked SIU to refer
additional employees for employment in the bargaining unit.
However, ITT did not hire Torrens, Wessel, or Rhinehart in
February 1997.
The issues presented in these cases are whether a preponder-
ance of the record evidence Shows that Section 8(a)(3) and (1)
of the Act4 were violated by:

a. LMSI’s blacklisting employees Torrens, Wessel,
and Rhinehart or otherwise causing or at tempting to cause
ITT to discriminate them by refusing to hire them because
of their union activity.
b. ITT’s refusal, on about November 14, to consider
for employment, and its refusal on about the same date to
employ Torren, Wessel, and Rhinehart, and by
c. ITT’s refusal, on about February 12, 1997, to con-
sider for employment, and its refusal to employ Torrens,
Wessel, and Rhinehart.

These cases also present, as a further issue, whether ITT by
Richard Cabral threatened an employee with an unspecified
reprisal because its employees engaged in union activity.
B. Interference, Restraint, and Coercion
On the morning of May 1, 1997, Richard Cabral, manager of
the surface craft department approached the USNS Hunter,
which was docked at Roosevelt Roads Naval Station. He called
out to employee Roberto Candelario, who was standing on
deck, and invited Candelario to join him. Candelario had re-
ported for work at 7:30 a.m. and intended to help the SIU in
contract negotiations with ITT, scheduled for about 10 a.m.
Candelario left the ship and climbed into a seat in an ITT vehi-

4 Sec. 8(a)(1) of the Act provides:
It shall be an unfair labor practice for an employer—to interfere
with, restrain, or coerce employees in the exercise of the rights guaran-
teed in Section 7.
Sec. 7 of the Act provides in pertinent part:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or pro-
tection.
Sec. 8(a)(3) of the Act provides in pertinent part:
It shall be an unfair labor practice for an employer by discrimina-
tion in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor
organization.
cle driven by Cabral. As Cabral began driving, he stated that
they were going outside the gate to check up on some signs and
decals posted beyond the naval station.
Cabral drove through gate 1 to a place called “Don’s Light-
house.” As they drove along, Cabral explained to Candelario
that he, Cabral, wanted to check the signs and decals, to make
sure they were not on Navy property. They passed SIU signs
and decals which said, “ ITT unfair labor practice” or had ITT
and dollar signs printed on them. When they turned back
around toward the base, Cabral remarked that “whoever’s doing
this better watch out.”5
The General Counsel contends that Cabral’s remark to Can-
delario that “whoever’s doing this better watch out” was a
threat of reprisal against employees who engaged in union ac-
tivity and therefore violated Section 8(a)(1) of the Act. I find
that Cabral’s remark to Candelario, a union activist, was a
thinly veiled warning that he or any other bargaining unit em-
ployee, who might openly support SIU’s bargaining effort by
expressing opposition to ITT’s labor relations policies would
suffer discipline, including discharge at ITT’s hand. I further
find that by this remark, Cabral sought to interfere with, re-
strain, and coerce Candelario in the exercise of his right under
Section 7 of the Act to support a labor organization. Accord-
ingly, I find that by Cabral’s veiled threat, ITT violated Section
8(a)(1) of the Act. Leather Center, 308 NLRB 16, 27 (1992).
C. The Alleged Discrimination
1. The transition
a. The facts
Peter Torrens worked for LMSI and its predecessors at the
Roosevelt Roads Naval station from April 1979, until Novem-
ber 30. LMSI employed Torrens as an unlicensed engineer on
a Navy surface craft, TRB-3. At the beginning of his employ-
ment at Roosevelt Roads, by RCA, which merged with General
Electric, Torrens was a marine tech C. During the years lead-
ing up to his employment by LMSI, Torrens progressed to ma-
rine tech B, then marine tech A, and finally, under LMSI, to
unlicensed engineer. LMSI’s payroll record shows that his
hourly wage, as of November 30, was $12.79.
During his employment by Martin Marietta and its successor,
LMSI, Torrens actively supported SIU. He was one of the Ma-
rine and Ocean engineering department employees, who sought
SIU as their collective-bargaining representative. In 1993 or
1994, soon after SIU began its organizing campaign among the
MOE employees, Torrens became an alternate delegate.
As an alternate delegate, Torrens helped SIU’s organizing
campaign among the MOE employees. He attended an SIU
meeting. Torrens received and distributed SIU pledge cards, T-
shirts, hats, and pins. If the main SIU delegate was not present,
Torrens attended meetings, filed grievances, and otherwise
represented the MOE unit in matters involving Martin Marietta,
LMSI, and, finally, LM. In August 1995, Torrens was an ac-
tive member of the SIU’s negotiating committee, dealing with
Martin Marietta, after it had become a subsidiary of LM. When
5 My findings of fact regarding Candelario’s encounter with Cabral
on the morning of May 1, 1997, are based upon Candelario’s undenied
testimony.
ITT FEDERAL SERVICES CORP. 1007
LMSI discharged SIU Delegate Richard Rhinehart, on June 21,
Torrens became the main delegate for the MOE bargaining
unit. In that capacity, he met with management regarding
grievances and filed grievances.
On September 18, 1995, Torrens received a verbal warning
from MOE Manager Alexander De Jesus for making a phone
call to the SIU without notifying management or obtaining
management approval of his intention to engage in union busi-
ness during his worktime.6 In his testimony in these proceed-
ings, De Jesus admitted that while he was MOE manager, he
would issue warnings to employees he observed doing union
business during their worktime. In the warning issued to Tor-
rens on September 18, 1995, De Jesus invoked section 4.05 of
the collective-bargaining agreement, which required that Tor-
rens ask his immediate supervisor’s permission before leaving
his work duties to engage in union business.
On January 23, and 24, February 8, 12, and 28, the Board’s
Region 24 conducted a hearing on SIU’s petition to clarify the
bargaining unit by determining the unit placement of chief offi-
cers and chief engineers. Torrens attended one of the January
sessions. He did not testify at this hearing. On February 1,
MOE Manager De Jesus issued a second disciplinary warning
to Torrens for excessive absences. The warning asserted that
between June and December 1995, Torrens had been present
for duty on his assigned surface craft “only 37 percent of the
time.” According to Torrens, De Jesus included in his calcula-
tions, Torrens’ attendance at the clarification hearing, the time
Torrens spent in negotiations on behalf of SIU, his vacation and
sick days.
On April 3, SIU filed an unfair labor practice charge against
Martin Marietta in Case 24–CA–7404, which alleged that the
warning that De Jesus issued to Torrens on February 1 violated
the Act. Thereafter, the Regional Director issued a consoli-
dated complaint including allegations that by this warning,
LMSI had violated Section 8(a)(1), (3), and (4) of the Act.
Thus, the consolidated complaint alleged that by issuing this
warning, LMSI had discriminated against Torrens because he
supported SIU and because he had appeared at the clarification
hearing in January. In the settlement agreement covering Cases
24–CA–7303, 24–CA–7327, and 24–CA–7404, referred to
above at page 2, LMSI agreed to expunge from its records the
warning issued to Torrens on February 1.
On September 3, employee Ricky Alvarez asked Torrens to
represent him in a meeting regarding a fuel spill, with members
of LMSI’s management in the human resources office on the
base. During the meeting, Torrens made a comment to Human
Resources Manager Jose Morales about Alvarez. Morales an-
swered that Torrens was there only to sit and take notes. Six
days later, Torrens filed a written grievance complaining that
Morales had thwarted Torrens’ effort to act as an SIU delegate
in processing Alvarez’s grievance.
An incident involving Torrens on October 4 provoked him to
file another grievance. On that day, De Jesus gave some layoff
bumping forms to Torrens and asked him to distribute them to

6 My findings regarding Torrens’ verbal warning are based upon De
Jesus’ uncontradicted testimony and the warning that I received in
evidence.
employees scheduled for layoff. De Jesus explained that the
forms originated from the human resources office.
In the afternoon of the same day, Torrens boarded USNS
Hugo to distribute forms to two bargaining unit employees who
were aboard. He found the employees and they began filling
out the forms. Soon, Captain Frank Woods came to Torrens and
the two employees and announced: “Okay, break time is over.
Now get the “f” off my boat.”
Torrens explained to Captain Woods, a supervisor, that hu-
man resources had sent the forms to the two employees to fill
out for the bumping layoff. Again, Woods ordered Torrens to:
“Get the “f” off my boat.” Torrens objected to what he viewed
as disrespect. He retrieved the documents from the two em-
ployees and began to leave the vessel. Woods again ordered
Torrens to: “Get the “f” off the boat.”
Torrens quickly complained to MOE ‘s acting manager, B. J.
Webb, who said he would investigate the incident. On October
7, SIU filed a grievance on Torrens’ behalf complaining about
Captain Woods’ conduct and asserting that by that conduct,
Woods had not allowed “the delegate to conduct union busi-
ness.” On October 28, Torrens found a reply to his grievance
in his box in the shop. The reply, from Webb, dated October
11, stated that neither Webb, nor LMSI condoned the use of
profanity and that Woods had been counseled “on this subject.”
Continuing, Webb reminded Torrens that union business should
not interfere with “normal operations or work.” Webb’s reply
also declared that: “Union business shall be conducted only
during break times and approved break area (sic).”
On November 14, Torrens learned that if he wanted to work
for ITT after it took over from LMSI, he should contact Lisa
Ramsey, who was involved in the hiring for ITT, and see if his
name was on the list. Ramsey’s normal workstation was at
ITT’s Colorado Springs, Colorado headquarters, where she was
the training manager. However, during the last 3 weeks of
November, Ramsey was stationed in the Mark 30 building at
the Naval Station.
That same day, Torrens visited Ramsey, identified himself and
asked if his name was on the list. Ramsey looked at a list and
said that Torrens’ name was not on it. He asked how that could
be, as he had been with the Company for 17 years and 7 months,
was the SIU delegate and chief engineer for TRB-3. Ramsey
replied that she was sorry but his name was not on the list.
Four days later, Torrens phoned Ramsey’s office and told the
woman, who answered, that he was Peter Torrens from MOE.
She left the phone for about 1 minute, returned, and announced
that he was not on the list. Torrens protested, asking how that
could be, as he had been working there “so many years.” Ram-
sey assured Torrens that if ITT had a future opening, it might
offer it to him. Torrens asked if ITT planned to honor the collec-
tive-bargaining agreement. Ramsey answered: “Yes, just wages,
not seniority.” Torrens objected to Ramsey’s answer. Ramsey
said: “Well, that’s the way it is.” He asked: “Who am I speaking
to?” She replied that it was Ms. Ramsey. Torrens asked to speak
to ITT’s project manager. Ramsey said he was not there, but she
would leave a message for him to call Torrens. Torrens never
received any call from ITT’s project manager.
At the time in November, when ITT selected LMSI employ-
ees for employment to begin on December 1, Torrens had not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
filed an application or a resume with ITT. However, I find
from LMSI’s witness Morales’ testimony that on October 28,
LMSI gave a list of its Roosevelt Roads employees to ITT.
Torrens’ name was on that list.
On November 19, Joseph R. Howell, acting manager of the
MOE Department, called Torrens to Howell’s office. When
Torrens arrived, Howell directed him to change the hours
shown on Torrens’ time and expense report to comply with
figures supplied by Torrens’ immediate supervisor. Torrens
suggested that Howell check the time and expense report in
question and see what was wrong. Torrens said he would
change the report if Howell found it to be erroneous. Howell
warned Torrens that he was insubordinate for not following his
immediate supervisor’s instruction and could be fired. Torrens
said they should not go into that. Howell fired Torrens.
Torrens left Howell’s office and went back to TRB-3 to re-
move his personal effects. On the way, Torrens telephoned
SIU and reported his firing to Steve Ruiz, an SIU official. Af-
ter Torrens was ready to leave TRB3, the ship’s captain notified
him that he was not fired and could continue working.
On November 25, Torrens was called to LMSI’s human re-
sources office at the Naval Base to fill out some layoff papers.
With the help of a secretary, Torrens completed the necessary
paper work. An exit form that Torrens signed showed that
November 30 would be his last day of day of work. The secre-
tary took the form to LMSI’s human resources director,
Morales, for completion and his signature. When the secretary
retrieved the form from Morales, he had written a large “N,”
meaning “no, next to “Eligible for Rehire.” Morales’ “N”
meant that LMSI would never rehire Torrens either in Puerto
Rico or anywhere else.
As of November 30, Torrens’ title on LMSI’s payroll was
unlicensed engineer. However he worked as a chief engineer
on the TRB-3. As of December 1, ITT employed Rafael
Agosto-Lopez, whose title on LMSI’s payroll was engineer
utility person, as chief engineer on TRB-3. ITT did not hire
Torrens’ assistant Carlos Molinaris. Instead, Agosto-Lopez’s
assistant, as of December 1, was Jose Lopez-Mendez.7
Richard Rhinehart worked for LMSI and its predecessors, at
the Roosevelt Roads Naval Base, from August 1988, until June
1996. He was a second officer on the USNS Hugo, which oper-
ated out of Roosevelt Roads. LMSI discharged Rhinehart on
June 21. However, the unfair labor practice charge concerning
Rhinehart’s discharge was not included in the instant proceeding.
Rhinehart was a union activist. He encouraged the SIU to
organize LMSI’s MOE employees, attended the Board hearings
regarding SIU’s petition for a representation election and as-
sisted in SIU’s organizing campaign at Roosevelt Roads. At
the hearing, he was a witness and a consultant for SIU. He
acted as an SIU observer at the election in 1994. After SIU
attained certification as the exclusive bargaining representative
of the MOE employees, Rhinehart became SIU’s main delegate
for that bargaining unit. He continued as SIU’s delegate until
his discharge. As delegate, he presented grievances to LMSI.

7 Except as noted above, my findings of fact regarding Torrens’ em-
ployment and his union activity are based upon his testimony, which
was uncontradicted
He also filed unfair labor practice charges with the Board,
against his employer.
On Tuesday, June 11, Rhinehart was working onboard USNS
Hugo. The ship was under way. That day, Rhinehart had
worked 16.5 hours and had entered that figure on his timesheet.
On the same day, he received word that he would be paid for
only 4.5 hours and should reduce the hours on his timesheet
accordingly. Rhinehart made the change on the bottom part of
the report.
On the following day, Joseph Howell, manager of underwa-
ter range services, which included MOE, called Rhinehart to his
office and directed him to correct the top portion of his T and E
report by changing 16.5 hours to 4.5 hours. Rhinehart com-
plained that this problem with his time and expense report (re-
ferred to as a “T and E report” showed how LMSI was forcing
employees to falsify their timesheets for payment.
Howell insisted that Rhinehart change the top portion of the
report. Rhinehart refused on the ground that the log showed he
worked 16.5 hours. He added that he had only changed the
daily total because Howell had insisted that Rhinehart do so if
he wanted to get paid.
Five days later, Rhinehart, as SIU delegate, filed a grievance
for himself and six other employees, including Harry Wessel,
alleging that LMSI was wrongfully refusing to pay them for the
16 hours they worked on June 11. At the time of the hearing
before me, this grievance was pending.
The dispute underlying Rhinehart’s refusal to change his T
and E report, and the grievance, arose from LMSI’s computa-
tion of overtime on his vessel, at sea, on June 11. Section 7.02
of the collective-bargaining agreement in effect on June 11
covered such computations. SIU’s position was that MOE
employees, sailing on the USNS Hugo or any other surface craft
crewed by MOE employees, were entitled to pay from the mo-
ment the craft left its berth until it returned. LMSI’s view was
that the MOE employees were entitled to be paid only for hours
actually on watch, when they were aboard a vessel at sea.
On June 21, Rhinehart went to LMSI’s headquarters at Roo-
sevelt Roads to attend a port committee meeting with Steve
Ruiz. However, LMSI’s human resources manager, Morales,
insisted on dealing with Rhinehart’s T and E issue. Morales
insisted that Rhinehart change his time and expense report, as
directed on June 11. Rhinehart refused saying that he would
not falsify his T and E reports anymore. Morales warned Rhi-
nehart that if he refused to change his T and E report he would
be fired. Morales asked Rhinehart if he understood that if he
refused to change the report, he faced discharge. When Rhi-
nehart said he understood, Morales fired him and asked an as-
sistant for Rhinehart’s check. The assistant brought the check
to Morales, who promptly issued it to Rhinehart. Morales left
his office and closed the door.
Rhinehart remained in Morales’ office as Minerva Donato,
an LMSI human resources representative filled out his exit
papers. Morales opened the door to his office and prohibited
Rhinehart from going anywhere, reminding him that he was
“still on the clock.” Morales threatened to call security and
have Rhinehart arrested if he left the office. Morales called the
MOE shop and asked Operations Coordinator Alexander De
Jesus to come to the human resources office and escort Rhi-
ITT FEDERAL SERVICES CORP. 1009
nehart back to his ship. Donato finished the form, gave it to
Rhinehart for his signature, submitted it for Morales’ signature,
and then gave it to Rhinehart. Rhinehart turned in his passes
and De Jesus escorted him to the USNS Hugo.
The exit form, which Donato prepared and Morales signed,
showed two reasons for Rhinehart’s exit, “Labor Dispute” and
“Termination.” Rhinehart checked the box marked “Labor
Dispute” before Morales signed the form. Donator checked the
box for “Termination” before Morales signed the form. In the
space marked “Involuntary Termination,” Donato checked off
“Violated Company Rules.” In a space marked “Eligible for
Rehire Y/N” there is an N with morales’ initials next to it.8
The payroll list, which LMSI furnished to ITT on October
28, did not contain Rhinehart’s name. Further, I find from the
parties’ stipulation that in November, at the time ITT had se-
lected employees for employment by it on and after December
1, Rhinehart had not submitted either an application or a re-
sume to ITT for its consideration. ITT did not hire Rhinehart
on and after December 1.
Harry Wessel’s employment in government services began
in the Bahamas in 1972, when he worked for RCA. He re-
mained with RCA in the Bahamas until its merger with GE in
1991. GE transferred Wessel to its Roosevelt Roads Naval
Station operations on March 29, 1991. From July 14, 1991,
until his last day of employment at the Naval Station, on No-
vember 30, when LMSI discharged him, Wessel was the chief
engineer on USNS Hugo. During that same period, he was em-
ployed by GE’s successors at Roosevelt Roads, Martin-
Marietta, and last by LMSI. When Wessel began working on
the Hugo, its captain was John Sokolski. At some point, Frank-
lin Woods replaced Sokolski.
Before his employment as chief engineer, Wessel had
worked as a deck hand, an oiler, and in both grades of assistant
engineer. As chief engineer, Wessel was basically a chief me-
chanic. He was responsible for his ship’s operational mainte-
nance to ensure that it was seaworthy and safe for its personnel.
Further, he was required to keep the ship’s captain and its
maintenance personnel informed of any problems, which might
arise. Wessel worked with two marine technicians, who acted
as assistant engineers.9
Harry Wessel actively supported SIU. In 1993, he was one
of [the] temployees who approached SIU’s port agent, Steve
Ruiz about organizing the employees at Roosevelt Roads.
When SIU began organizing the MOE employees, Wessel
helped by distributing authorization cards to his fellow employ-
ees. He attended SIU meetings. Wessel testified at the hearing,
which the Regional Director for Region 24 conducted on SIU’s
petition for a representation election in Case 24–RC–7569.
SIU filed its petition on June 15, 1993. The Regional Direc-
tor issued her Decision and Direction of Election on July 12,
1994. The Regional Director’s decision authorized chief engi-

8 My findings of fact regarding Rhinehart’s employment by LMSI
and his union activity are based upon his testimony, which was uncon-
tradicted.
9 My findings regarding Wessel’s duties and the marine technicians
function are based upon his uncontradicted testimony and the Regional
Director’s findings in her Decision and Clarification of Bargaining Unit
in Case 24–UC–159.
neers to vote challenged ballots in light of LM’s unresolved
contention that they were supervisors, within the meaning of
Section 2(11) of the Act. Wessel voted a challenged ballot.
On August 24, 1994, the Regional Director certified SIU as
the bargaining agent for a unit of LMSI’s MOE employees. In
August 1995, LMSI and SIU reached a collective-bargaining
agreement but did not agree on the unit placement of chief en-
gineers and chief officers. However, LMSI and SIU agreed
that the latter would seek a unit clarification from the Board.
On October 13, 1995, SIU filed a petition seeking clarification
of the unit placement of the disputed classifications. The Re-
gional Director held a hearing on the petition on January 23 and
24, and on February 8, 12, and 28.
Prior to the Regional Director’s determination that chief en-
gineers were unit employees, Wessel disputed his supervisors’
attempts to treat him as a supervisor. In the first week of Au-
gust 1995, Wessel asked the MOE manager, De Jesus, for a sea
time letter which Wessel needed to renew his chief engineer’s
license through the U.S. Coast Guard. De Jesus advised Wessel
that Human Relations Manager Morales was the only person
who could provide that letter to Wessel. De Jesus said he
would contact Morales. Wessel’s license was scheduled to
expire in October 1995. Hearing nothing about his letter, Wes-
sel asked De Jesus about it during the last week of August
1995. Wessel also suggested that he would seek help from the
SIU in obtaining the letter. Wessel asked Steve Ruiz, SIU’s
port agent, to get in touch with Morales. In a memorandum
dated September 25, 1995, Morales advised Ruiz that: “Chief
Engineer is not included in the bargaining unit.”
On September 25, 1995, Captain Harry Woods, master of the
Hugo, ordered Wessel to initial some weekly T and E reports
for two bargaining unit employees. Woods said he was acting at
De Jesus’ direction. Wessel went to De Jesus, challenged the
latter’s order and requested SIU representation. De Jesus re-
jected Wessel’s request, saying that Wessel was not a member
of the bargaining unit. Wessel returned to Hugo and initialed
the T and E reports for the two employees.
On October 16, 1995, Wessel wrote a memo to De Jesus ob-
jecting to the order requiring Wessel to initial T and E reports.
Wessel also told De Jesus that the order requiring Wessel to
initial T and E reports was an attempt to “create a paper trail”
to support LMSI’s claim in the pending clarification proceeding
that chief engineers were supervisors.
In October 1995, Richard Rhinehart, as SIU delegate, sought
to present a grievance to LMSI on Wessel’s behalf regarding
the initialing of T and E reports. In a memorandum to Rhi-
nehart, dated October 26, 1995, De Jesus stated that until the
unit clarification issues were decided, LMSI would not recog-
nize any grievances filed by SIU on behalf of either first offi-
cers or chief engineers.
On October 31, 1995, De Jesus issued a disciplinary memo
to Wessel warning him that his refusal to initial T and E reports
as required under the job description for chief engineers would
expose Wessel to “disciplinary action.” On that date, Wessel
refused to sign a form to have his signature approved for sign-
ing such reports. Wessel received a further disciplinary memo
from De Jesus on November 13, 1995, for refusing to initial T
and E reports for subordinate employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
On December 15, 1995, Wessel filed a charge in Case 24–
CA–7327, alleging that LMSI had violated Section 8(a)(1) of
the Act on October 31, 1995, by denying him union representa-
tion during a disciplinary interview, and on November 13,
1995, by threatening employees with discipline if they insisted
on union representation during a disciplinary interview. There-
after, on May 30, 1997, the Regional Director issued a consoli-
dated complaint including Case 24–CA–7327, which did not
include Wessel’s allegations. Instead, the complaint alleged
that LM and LMSI had violated Section 8(a)(3) and (1) of the
Act by unilaterally imposing supervisory duties on Wessel
because of his union activity. LM and LMSI issued an answer
to this complaint denying these allegations. These allegations
were among those remedied in the settlement referred to above
at page 2, in which LM and LMSI agreed to expunge from all
records the warning issued to Wessel on November 13, 1995.
Wessel received a subpoena to testify at a resumption of the
clarification proceeding on February 29. On February 26 or 27,
Wessel showed the subpoena to De Jesus, who telephoned Hu-
man Resources Manager Morales to advise him of the sub-
poena. Wessel joined the conversation on a third telephone. In
the course of the discussion, Morales warned that Wessel
would be fired if he attended the hearing. Wessel did not tes-
tify at the clarification hearing.
In October, Wessel attended a meeting at the MOE building.
Also present were Vice President Prisby of LM, Human Re-
sources Manager Jose Morales, Operations Coordinator Alex-
ander De Jesus, and Underwater Range Services Manager Jo-
seph Howell. The purpose of the meeting was to clarify the T
and E report problems and resulting complaints, which Prisby
had received from employees. The complaints were that em-
ployees, who wrote disagreements with figures in the reports,
had received threats of discharge. At the meeting, Prisby sym-
pathized with the employees and voiced approval of that prac-
tice. Wessel responded that it was ironic that LMSI had fired
Rhinehart in June for doing that very thing. During this meet-
ing, Prisby called Wessel a rabble-rouser and a troublemaker.
During the first week of November, Wessel attend a meeting
at the MOE building to introduce the ITT personnel to MOE.
An ITT representative10 told the employees that ITT was work-
ing on a benefit package to be made available to those whom
ITT would hire to work under its contract with the Navy. The
speaker assured the employees their boat operations would
continue without interruption during the transition period.
Following the meeting, Wessel and his ship, Hugo, put to sea
for a week or a week and a half. When the cruise ended, Wes-
sel learned from Captain Woods that there was list of personnel
to be interviewed by ITT, on the MOE bulletin board and Wes-
sel’s name was not on it. Wessel went to the bulletin board and
confirmed Woods’ report. Wessel did not file an application
for employment by ITT prior to December 1.
Wessel asked De Jesus why his name did not appear on the
interview list. De Jesus told Wessel to ask Minerva Donato, at

10 On direct examination, Wessel testified that ITT’s speaker at this
meeting was Bligh, who is John F. Bligh. However, on cross-
examination, after seeing Bligh at the hearing, Wessel changed his
testimony and admitted that he could not identify the speaker.
LMSI’s human resources office. Donato sent Wessel to ITT’s
temporary office in the Mark 30 building for an interview or to
find out why he was not on the list.
Wessel went to the Mark 30 building and encountered a
woman named Connie. He identified himself as Harry Wessel,
Chief Engineer of the Hugo, and said his name was not on the
interview list. He explained that he had a heavy schedule for
the rest of November and wanted to know if he would be inter-
viewed and, if so, when. Connie went to her office, looked
through a stack of papers, went to another office, spoke to
someone and returned to tell Wessel that his name was not
familiar. Connie told him to go back to Donato, as a supple-
mentary employee list was being made up.
Wessel returned to the MOE building, where he encountered
Bob Romine, maintenance coordinator, who stated that at Joe
Howell’s request he had run off an employee list and had given
it to Howell. Wessel also called Donato, who said that as they
were speaking, she was making up the supplementary list.
Wessel thanked her and hung up. He returned to USNS Hugo
to prepare the ship for departure.
USNS Hugo returned to its base on November 26. As Cap-
tain Woods was leaving the ship, he came upon Wessel and
told him “Harry, your not going to be rehired.” Wessel packed
up all his clothes, except for the clothes he would need for the
last operation before November 30.
On December 2, on instructions from LMSI’s human re-
sources manager, Jose Morales, Wessel reported to the Mark 30
building to receive a separation form. The form gave “lack of
work” as the reason for Wessel’s exit from LMSI’s employ and
gave November 30 as his last workday. Wessel asked why
there was an N in the space captioned: Eligible for Rehire.
Morales answered: “[B]ecause we don’t want you.” Wessel
asked again and Morales came back with essentially the same
answer.
Morales concluded his processing of Wessel by scraping the
base identification sticker of the bumper of Wessel’s truck.
When Wessel protested, Morales said he was going to do it
anyway inasmuch as LMSI had issued it to Wessel.
ITT employed Wessel’s assistant, Carlos Figueroa, as Chief
Engineer on the USNS Hugo after November 30. Figueroa oc-
cupied that same position at the time of hearing in these cases.11
ITT sent David Graham to Roosevelt Roads in November to
assist in the phase-in leading up to December 1 and to become
manager of MOE. Ultimately Graham decided to help in the
changeover and return to his job with ITT in Hawaii. However,
before his arrival at Roosevelt Roads, Graham had participated
in the preparation of ITT’s bid submitted to the Navy in compe-
tition with LM. Graham expected to employ fewer personnel
than LM had employed to perform the contract with the Navy.
ITT did not refine its intent to specific numbers. The Navy
required a crew of nine each for Hugo and Hunter. However,
the Navy did not specify the number of employees for MOE.
As of November 30, LMSI had a total of 272 employees at its
Roosevelt Roads operation. ITT hired approximately 180 of
11 My findings of fact regarding Wessel’s employment at LMSI and
his union activity are based upon his uncontradicted testimony.
ITT FEDERAL SERVICES CORP. 1011
that number. MOE had approximately 42 or 46 employees
under LMSI. Of that group, ITT hired 21 or 22.12
On October 28, LMSI’s human resources manager, Jose
Morales, sent a list of LMSI’s Roosevelt Roads employees to
Connie Accini of ITT’s Human Resources Department. Mi-
nerva Donato prepared the list from LMSI’s payroll record on
Morales’ instructions. Donato prepared the list, showing the
hourly wages of rank-and-file employees, and omitting the rates
of pay for managers and supervisors referred to as “exempt
employees” in her testimony. The names of employees Wessel
and Torrens appeared on the list. Rhinehart’s name was absent,
as LMSI had discharged him in June.
In a faxed message to Morales dated October 28, ITT’s Con-
nie Accini announced that ITT would announce the dates, times
and locations of informational meetings with LMSI employees
and that ITT would place an ad in a local newspaper, El Nuevo
Dia to advise employees of the meetings. The memo also re-
quested that LMSI post the attached notice. Finally, Accini
wrote that she was looking forward to meeting with Morales at
his office at 8 a.m., on the coming Friday. The “coming Fri-
day; was November 1.
The meeting at Morales’ office on Friday, November 1, was
for familiarization between Accini, and Morales and Donato.
Thereafter, during the transition, there were additional informal
meetings between Morales, and representatives of ITT, at
which information regarding W-2 forms, the facilities, housing
and similar topics were discussed. Donato and Morales helped
ITT’s transition team find a location on the naval base for in-
terviewing employees. ITT’s human relations representatives
made their own arrangements with individual LMSI employees
for interviews. Aside from the list taken from LMSI’s payroll,
the record shows no other transmission of information from
LMSI to ITT regarding MOE employees. Neither Donato nor
Morales gave any information to ITT regarding Torrens, Rhi-
nehart, or Wessel other than the payroll record. ITT did not ask
Donato or Morales any questions regarding the union activity
of the same three employees. Nor did anyone from LMSI ask
Donato or Morales to give any information to ITT about the
union activity of Torrens, Rhinehart, or Wessel.13
ITT assigned Graham the task of hiring for the MOE opera-
tion. He arrived in Puerto Rico in early or mid-November and
had completed his assignment in time to return to Hawaii for
Thanksgiving. Graham received a list of the positions to be
filled together with a stack of resumes and applications. Gra-
ham did not consider for employment by ITT anyone who did
not file an application. He matched names to positions and
interviewed all the applicants. He found more applicants than
there were job openings in MOE. After he had matched names
to positions, he gave the prospective employees’ applications to
ITT human resources personnel, who had come to Puerto Rico

12 My findings regarding Graham’s activity at Roosevelt Roads dur-
ing the transition period are based upon his uncontradicted testimony.
My findings regarding the numbers of employees employed by LM and
the numbers hired by ITT are based upon Donato’s uncontradicted
testimony.
13 My findings regarding meetings between ITT personnel and
Morales or Donato are based upon Morales and Donato’s uncontra-
dicted testimony.
to assist in the transition. The human resources personnel
would invite the applicants to be interviewed on ITT policies
and benefits and to sign an offer letter. ITT also posted lists of
selected applicants and their scheduled interviews. Graham
selected the employee for each MOE slot, including bargaining
unit and nonbargaining unit positions. He recruited approxi-
mately 200 employees.14 Graham did not consider Wessel,
Rhinehart, or Torrens for employment by ITT.
Graham received no input from LMSI supervisors in the
course of recruiting for ITT at Roosevelt Roads.15 No one from
LMSI told Graham not to hire certain applicants. However,
after he had selected the employees, Graham took the list to
Alexander De Jesus to verify that the selected employees were
qualified for their respective positions and capable of perform-
ing more than one job.16
b. Analysis and conclusions
According to the consolidated complaint, and the General
Counsel’s posthearing brief during the period between the last
week in October and December 1, LMSI blacklisted the three
employees or otherwise caused or attempted to cause ITT to
refuse to hire them because of their union activity and thereby
violated Section 8(a)(3) and (1) of the Act. The General Coun-
sel’s brief focuses on the possibility that LMSI’s supervisors
alerted ITT to the union activity of Torrens, Rhinehart, and
Wessel and thus blacklisted them. In his brief, the General
Counsel contends that LMSI violated Section 8(a)(3) and (1) of
the Act by providing ITT with information regarding the al-
leged discriminatees’ involvement with SIU, the representation
election, the clarification proceeding, and efforts to vindicate
the collective-bargaining agreement using the grievance proce-
dure. Further, the General Counsel argues that ITT heeded that
warning and refused to hire Torrens, Rhinehart and Wessel
because of their union activity and thereby violated Section
8(a)(3) and (1) of the Act.
The Board has recognized that an employer’s effort to black-
list an employee because of union activity or other activity
protected by Section 7 of the Act violates Section 8(a)(1) of the
Act. Truck & Trailer Service, 239 NLRB 967, 970 (1978).
14 My findings of fact regarding Graham’s recruiting of employees
for ITT at Roosevelt Roads, are based upon his testimony.
15 In a letter to SIU’s Steve Ruiz, ITT’s John Bligh explained that the
selection of applicants for employment by ITT at Roosevelt Roads
“was based upon the supervisors’ evaluation of the employees perform-
ance, attitude and ability to do the job.” Bligh did not testify in these
proceedings. On cross-examination, Graham attempted to explain that
Bligh was referring to ITT supervisors, including Graham. However,
on further cross-examination, Graham, testifying in a forthright man-
ner, asserted that he had no input from LM supervisors, nor from any-
one else, when he selected applicants for ITT. He firmly insisted that
he relied only upon the employees’ applications. I have credited Gra-
ham’s testimony regarding his role in the selection of the MOE em-
ployees for ITT.
16 According to De Jesus, Graham did not discuss anything about
employees with him. However, this denial came in quick response to a
leading question on direct examination. However, Graham testified in
candid manner regarding his consultation with De Jesus. As Graham
impressed me as a frank witness, I have credited him rather than De
Jesus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1012
Here, I find the record does not show any effort by LMSI to
provide any information regarding the union sentiment or union
activity of the three alleged discriminates during the November
transition period. The payroll list which Donato and Morales
prepared and delivered to ITT had no information regarding the
union activity or union sentiment of the employees listed.
There was no showing that ITT’s Graham or any other ITT
recruiter received any such information from LMSI manage-
ment about any of the applicants for employment by ITT. Ac-
cordingly, I find that the General Counsel has not shown that
LMSI blacklisted employees or otherwise attempted to cause
ITT to refuse to hire LMSI employees because of their union
activity or prounion sentiment. I shall recommend dismissal of
the allegations that LMSI engaged in such conduct
Under Board policy, where the record shows that an em-
ployer’s hostility toward union activity or other activity pro-
tected by the Act was a substantial or motivating factor in a
decision to refuse to hire or to take other adverse action against
an employee, the refusal to hire or other adverse action will be
found unlawful, unless the employer demonstrates, as an af-
firmative defense, that it would have refused to hire, or taken
the alleged adverse action against the employee even in the
absence of the protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 402–403 (1983), affg.
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996). Where it is
shown that the business reason or reasons advanced by the
employer for the refusal to hire, or other adverse action, were
pretextual—that is, that the reason or reasons either did not
exist or were not in fact relied upon—it necessarily follows that
the employer has not met its burden and the inquiry is logically
at an end. Wright Line, supra at 1084.
I find that the General Counsel has failed to show that Tor-
rens’, Rhinehart’s, or Wessel’s union activity as LMSI employ-
ees was a substantial or motivating factor in ITT’s failure to
select any of these three MOE employees for its surface craft
department, during the transition period leading up to Decem-
ber 1. Certainly, LMSI’s management was aware that these
three employees were leading SIU supporters. However, there
was no showing that ITT’s David Graham, who selected the
employees for ITT’s Surface Craft Department, knew anything
about Torrens’, Rhinehart’s, or Wessel’s union activity or pro-
union sentiment, when he made his choices. Graham had no
information from LMSI about these employees, when he went
over the applications presented to him by ITT personnel.
When Graham selected employees for ITT in November, he
had no opportunity to consider the three alleged discriminates
for employment. None of the three bothered to file an applica-
tion for employment by ITT. Graham did not look at the pay-
roll list that LMSI had furnished to ITT at the end of October.
He relied exclusively upon applications. Thus, there was no
showing that he even saw the names of the three in November.
Nor was there any showing that ITT’s decision to employ a
smaller employee complement than LMSI had, to administer its
contract with the Navy was motivated by a design to get rid of
SIU supporters.
In sum, I am not persuaded that the General Counsel has
shown that the three employees’ support for SIU motivated
ITT’s selection of employees in November for its surface craft
department operations beginning December 1. Accordingly, I
find that the General Counsel has failed to show by a prepon-
derance of the evidence that ITT violated Section 8(a)(3) and
(1) of the Act when it failed to hire Torrens, Rhinehart, and
Wessel in November for employment in its Roosevelt Roads
operations.
2. February 1997
a. The facts
In January 1997, ITT began to seek referrals from SIU to fill
positions in the Surface Craft Department. On January 14,
1997, Steve Ruiz and Jose Morrero, representing SIU, met with
Surface Craft Department Manager Cabral and Lisa Ramsey, an
ITT management representative. The SIU representatives came
to this meeting to find out why ITT was not hiring former
LMSI employees, including Rhinehart, Wessel, and Torrens.
Ruiz and Morrero asked if ITT would hire Rhinehart. Cabral
replied that he had no problem hiring Rhinehart, who, he said
was a good boat handler. Cabral also said he had a problem
with Torrens because of excessive absences from work. Ruiz
asked how Cabral knew about Torrens’ absences. Cabral said
he had previously worked with Torrens. Ruiz suggested that
perhaps Torrens had changed. Cabral said he would think
about Torrens.17
In January 1997, SIU invited Torrens to come to its hall with
his resume and fill out an application for a position at ITT’s
Roosevelt Roads operation. Torrens complied with SIU’s in-
structions. In February, SIU directed Torrens to report to the
main gate at Roosevelt Roads at 7:30 one morning, where Mi-
nerva Donato would meet him and conduct him to an interview
by ITT. Torrens reported as instructed.
Surface Craft Department Manager Cabral interviewed Tor-
rens. At the outset, Cabral asked Torrens for his license and his
resume. Cabral asked Torrens a few questions. Among them,
Cabral asked Torrens how he could help ITT. Torrens replied
that he could help ITT by helping the employees to do a better
job for the company. After this interview, Torrens never heard
from ITT again.18
On February 6, 1997, Donato sent an employment requisi-
tion to SIU announcing an opening for an unlicensed engineer.
LMSI had employed Torrens as an unlicensed engineer.
In February 1997, Ruiz advised Rhinehart that ITT was hir-
ing for Rhinehart’s old position. I find from Ruiz’s testimony
that at this time, he was seeking a second mate’s position for
Rhinehart. Ruiz told Rhinehart to fill out an application for
employment at ITT and get it to Ruiz. Rhinehart followed

17 My findings regarding the meeting between SIU representatives
and ITT’s representatives are based upon the testimony of Ruiz and
Ramsey. Ruiz testified that he believed this meeting occurred on Janu-
ary 13. Ramsey testified that her notes showed that it took place on
January 14. As she seemed more certain about the date than Ruiz did, I
credited Ramsey in this regard.
18 My findings regarding Torrens’ referral to ITT and his encounter
with Cabral are based upon his uncontradicted testimony. Cabral did
not testify.
ITT FEDERAL SERVICES CORP. 1013
Ruiz’s instructions. On February 10, 1997, Rhinehart and sev-
eral other applicants, including Torrens, reported to gate #1 at
Roosevelt Roads.
Cabral interviewed Rhinehart and asked him some questions.
Cabral said he knew where Rhinehart had worked last, how
long he had worked there and why he had left. Cabral asked
what Rhinehart had liked about his last job. Rhinehart replied
that he had liked the men he worked with. Cabral asked him
what he did not like about his last job. Rhinehart answered that
he did not like the way management had lied to the employees
and cheated them out of their pay.
Cabral asked what Rhinehart would do if Cabral told him
that things have not changed? Rhinehart answered that he
wanted to work and get paid, and that he would get along with
his fellow employees as he had in the past. Rhinehart asked
Cabral what positions were opened. Cabral answered that he
had two deck positions, engine positions, and two mate slots.
The interview concluded after about 10 minutes. Following
this interview, ITT never called Rhinehart back or otherwise
contacted him about employment.
Later in February 1997, Ruiz invited Rhinehart to sit with
SIU’s side during contract negotiations with ITT. On February
26, 1997, Rhinehart sat with Ruiz and Jose Morero at the bar-
gaining table. ITT’s negotiators were Employee Relations
Manager John F. Bligh, Lisa Ramsey, Minerva Donato,19 and
Cabral. When the SIU group came into the meeting, Bligh
challenged Rhinehart’s entitlement to represent the bargaining
unit, as he was no longer a unit employee. Bligh waived a fin-
ger close to Rhinehart’s face, asked what he was doing there
and threatened to pull out of the negotiations. Ruiz replied that
SIU wanted Rhinehart present because of his expertise on the
contract project. Bligh withdrew his objection and negotiations
proceeded peacefully.
On the following day, Ruiz approached Cabral about getting
Rhinehart into a second mate’s job. Cabral answered that he
didn’t “get a warm fuzzy feeling” from Rhinehart. Ruiz
pressed Cabral for a further explanation. Cabral replied: “Right
now, that is the only answer that I am going to give you, be-
cause Richard [Rhinehart] is sitting there.”
SIU filed a grievance regarding Rhinehart, complaining that
ITT was discriminating against him. In addition, Ruiz asked
for an explanation from ITT for its treatment of Rhinehart. In a
letter dated March 11, 1997, ITT refused to give any reason for
not hiring him. Instead, Bligh, the letter’s author, simply de-
nied that ITT had discriminated against Rhinehart.
I find from Donato’s testimony that after December 1, ITT
hired a second mate in the mainland United States for work at
Roosevelt Roads, without going through SIU or offering the job
to Rhinehart.
There was no showing that SIU referred Wessel for a posi-
tion at ITT after December 1. Nor was there any showing that
Wessel made any effort to find employment at ITT’s Roosevelt
Roads operations. Accordingly, I shall recommend dismissal

19 Since December 1, Donato has been ITT’s human resources ad-
ministrator and an admitted supervisor within the meaning of Sec.
2(11) of the Act.
of the complaint allegations regarding ITT’s failure to consider
Wessel for employment or hire him in February 1997.
b. Analysis and conclusions
The General Counsel contends that ITT violated Section
8(a)(3) and (1) in February 1997, by refusing to consider for
employment or hire Torrens and Rhinehart. ITT denied these
allegations and offered economic reasons for refusing to hire
Torrens and Rhinehart. Applying the Board’s Wright Line test
to the evidence regarding ITT’s conduct toward Torrens and
Rhinehart in February 1997, I find merit in the General Coun-
sel’s contentions.
The record shows that Minerva Donato was part of LMSI’s
management when Torrens and Rhinehart were actively sup-
porting SIU. She was aware of the representation election and
the clarification proceedings. I also find it likely that as a
LMSI senior human resources representative in 1996, she was
aware of the warning issued to Torrens on February 1 and the
circumstances surrounding Rhinehart’s discharge on June 21. I
find that her close association with Jose Morales, who was
LMSI’s director of human resources at Roosevelt Roads
throughout 1996, provided her with knowledge of Torrens and
Rhinehart’s support for SIU’s opposition to LMSI’s policies
regarding the T and E reports and wages for MOE employees
while at sea. Thus, when Donato became a member of ITT’s
management on December 1, she knew of Torrens’ and Rhi-
nehart’s pro-SIU activities and sentiment.
The record also shows the strong likelihood that when Cabral
became ITT’s manager of MOE in December, he was aware of
Torrens’ and Rhinehart’s reputations as active and outspoken
SIU supporters. Prior to his employment by ITT on December
1, Cabral had worked for LMSI’s predecessor, GE and was
familiar with Morales. I find from De Jesus’ testimony, that for
some time prior to December 1, Cabral visited Morales in the
human resources office. During these visits, Cabral had ample
opportunity to learn from Morales that Rhinehart had been
SIU’s chief delegate until discharged on June 21, and that the
discharge had something to do with a dispute between SIU and
LMSI over a collective-bargaining issue. Morales would be
likely to brief ITT’s incoming MOE Manager on Torrens’ ac-
tivity as Rhinehart’s successor as SIU’s chief delegate.
Another supervisor, Franklin Woods, Captain of Hugo, was
well acquainted with Torrens’ SIU activity. Indeed, Woods
assumed that Torrens was engaged in union activity on October
4, when he harshly ordered Torrens to leave Hugo. On Decem-
ber 1, Woods became part of ITT’s management at Roosevelt
Roads, and continued as Hugo’s captain. He brought his
knowledge and hostility with him.
The Board has recognized that: “Activities, statements, and
knowledge of a supervisor are properly attributable to the em-
ployer.” Pinkerton’s Inc., 295 NLRB 538 (1989). Here, I find
that when SIU referred Rhinehart and Torrens for employment
in February 1997, ITT was well aware of their union activity
and sentiments.
Under Board policy, LMSI’s presettlement conduct can be
used to shed light on ITT’s refusal to hire Torrens and Rhi-
nehart in February 1997. Special Mine Services, 308 NLRB
711, 720 (1992). There is ample evidence that LMSI’s man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1014
agement was hostile to employees who engaged in activity on
behalf of SIU. The settlement in Cases 24–CA–7303, 24–CA–
7327, 7404, and 7546 sought to remedy allegations that LMSI
“issued warnings, assigned supervisory duties, harass[ed] or
otherwise discriminate[d]” against employees because they
supported SIU. The record shows that De Jesus issued one of
those warnings to Torrens on February 1. Minerva Donato as a
member of LMSI’s management was no doubt aware of this
conduct, as an assistant manager of its human resources. Given
her position with LMSI, Donato may have assisted in formulat-
ing the conduct recited in the settlement agreement. ITT hired
Cabral as its MOE manager in mid-November. His weekly
visits with Human Relations Manager Morales provided oppor-
tunity for the incoming MOE manager to learn of LMSI’s hos-
tility toward Torrens and Rhinehart, and share that sentiment.
The hostility toward SIU activists, which surfaced under
LMSI’s management at Roosevelt Roads, appeared again under
ITT’s management. Thus, on February 26, 1997, John Bligh,
ITT’s employee relations manager, found Rhinehart’s presence
with the SIU at negotiations objectionable. On the following
day, when Ruiz raised the possibility of ITT hiring Rhinehart.
Cabral replied that he did not get a warm fuzzy feeling from
Rhinehart. Cabral’s antiunion sentiment surfaced in May 1997,
when he threatened an unspecified reprisal against the em-
ployee or employees who had posted SIU signs near the Naval
station, asserting that ITT was unfair. In this incident, Cabral
revealed that he was willing to impose unlawful economic pun-
ishment upon SIU supporters. Finally, ITT’s resort to the
mainland United States to hire a second mate rather than offer
the position to Rhinehart is further evidence of the union ani-
mus which ITT’s management harbored when he sought his
former position in February 1997. In sum, I find that the Gen-
eral Counsel has shown that Torrens’ and Rhinehart’s active
support of SIU was a motivating factor in ITT’s refusal to hire
them on February 10, 1997.
I find ITT’s proffered defense inadequate to rebut the Gen-
eral Counsel’s evidence of unlawful motive. In its posthearing
brief, ITT suggests that Torrens and Rhinehart were not quali-
fied for employment by ITT. I note that Cabral and ITT did not
raise qualifications or the lack thereof as a reason for rejecting
either Torrens or Rhinehart. Indeed, both Cabral and Bligh
refused to give any reason for Cabral’s refusal to hire Rhi-
nehart. All Cabral would say was that Rhinehart was a good
boat handler, but did not give him a “warm fuzzy feeling.”
Thus, ITT’s newly expressed concern about qualifications is an
afterthought, which played no role in Cabral’s decision to re-
fuse employment to Torrens and Rhinehart.
In any event, the record shows that Rhinehart and Torrens
were amply qualified. Thus, the record shows that LMSI, and
its predecessors employed Torrens for 17 years and that he was
an unlicensed engineer serving as the chief engineer on a tor-
pedo retrieval craft. Rhinehart was the second mate on Hugo.
LMSI and its predecessors, RCA and GE, employed Rhinehart
for almost 18 years. In sum, the record shows that Torrens and
Rhinehart were well experienced in their respective jobs at
LMSI.
ITT raises Torrens’ absences from work as the reason for re-
jecting him for employment in February 1997. As found
above, on February 1, LMSI issued a second disciplinary warn-
ing to Torrens for excessive absences. However, under the
settlement referred to earlier, LMSI agreed to expunge that
warning from Torrens’ record. Further, ITT did not introduce
any other evidence regarding Torrens’ absences during his
employment at LMSI. Nor did Cabral testify. Thus, ITT did
not substantiate its claim that Torrens was excessively absent
from work prior to the arrival of ITT at Roosevelt Roads. Fi-
nally, I find from Ruiz’s testimony that ITT had retained LMSI
employees Angel Acosta and Victor Guttierez, notwithstanding
each had received a written warning for absenteeism from
LMSI. Thus, far from assisting ITT’s defense, the evidence
regarding ITT treatment of absenteeism, strongly suggests that
Torrens was the victim of disparate treatment at Cabral’s hands.
I find from the foregoing that ITT’s explanation of its refusal
to hire Torrens and Rhinehart on February 10, 1997, was
wholly pretextual. I also find, therefore, that ITT, by its refusal
to hire these two employees because they supported SIU, vio-
lated Section 8(a)(3) and (1) of the Act. Pepsi Cola Bottling
Co., 301 NLRB 1008, 1030 (1991).
CONCLUSIONS OF LAW
1. Lockheed Martin Services, Inc. and ITT Federal Services
Corporation are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Seafarers International Union, Atlantic, Gulf, Lakes and
Inland Waters District, a/w Seafarers International Union of
North America, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Lockheed Martin Services, Inc. has not violated Section
8(a)(3) and (1) of the Act by blacklisting or attempting to cause
or causing ITT Federal Services Corporation (ITT) to discrimi-
nate against employees Peter Torrens, Harry Wessel, and Rich-
ard Rhinehart by failing or refusing to hire these employees
because they supported SIU or any other labor organization.
4. ITT did not violate Section 8(a)(3) and (1) of the Act in
November 1996 by refusing to consider or refusing to employ
employees Peter Torrens, Harry Wessel, and Richard Rhinehart
5. By failing and refusing to hire employees Peter Torrens
and Richard Rhinehart on February 10, 1997, because of their
union activity, ITT violated Section 8(a)(3) and (1) of the Act.
6. ITT did not violate Section 8(3) and (1) of the Act by fail-
ing and refusing to consider or hire employee Harry Wessel on
or about February 10, 1997.
7. ITT violated Section 8(a)(1) of the Act in May 1997, by
threatening an employee with unspecified reprisals for engag-
ing in union activity.
REMEDY
Having found that the Respondent ITT has engaged in cer-
tain unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, ITT, having discriminatorily refused to
employ employees Peter Torrens and Richard Rhinehart, must
offer them employment at its Roosevelt Roads operation and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of the refusals to hire
ITT FEDERAL SERVICES CORP. 1015
to date of proper offer of employment, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]