Levingston Shipbuilding Co.

National Labor Relations Board - Board Decisions

Apr 3, 1978

235 N.L.R.B. 578 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Levingston Shipbuilding Company and David Scott
and James C. Collins. Cases 23-CA-6506-1 and
23-CA-6506-2
April 3, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 8, 1977, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and counsel for the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
below.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Levingston Shipbuilding Company, Orange,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as modified below:
1. Substitute the following for paragraph 2(a):
"(a) Offer to David Scott and James Collins
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered by
reason of the unlawful discharges and refusal to
reinstate, with backpay as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and positions of the parties.
2 The Administrative Law Judge inadvertently specified interest to be
paid at 7 percent; however, the Board has stated that interest on backpay
shall be computed at the "adjusted prime rate" used by the U.S. Internal
Revenue Service. Accordingly, we hereby modify the remedy, notice, and
Order to correct that error.
235 NLRB No. 79
interest thereon computed as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977). See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
abide by the following.
WE WILL NOT discharge or refuse to reinstate
any employee for refusing to cross a picket line to
come to work during a lawful strike at our
shipyard.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any employee in
the exercise of his rights, guaranteed under the
National Labor Relations Act, to assist a labor
organization.
WE WILL offer to David Scott and James
Collins immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to any seniority or other rights and
privileges previously enjoyed by them, and WE
WILL make them whole for any loss of pay which
they may have suffered by reason of the dis-
charges, plus interest.
LEVINGSTON
SHIPBUILDING COMPANY
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held at Orange, Texas, on October
20, 1977, on two separate complaints by the General
Counsel against Levingston Shipbuilding Company, here
called the Respondent, or the Company. The first com-
plaint (Case 23-CA-6506-2) issued on July 19, 1977, on a
charge filed on May 6, 1977, by James C. Collins, an
individual. The second complaint (Case 23-CA-6506-1)
issued on August 29, 1977, on a charge filed on May 6 by
David Scott, also an individual. The complaints were
consolidated for single hearing. The issue presented is
whether, as alleged in the complaints, the Respondent
discharged both Collins and Scott in violation of Section
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LEVINGSTON SHIPBUILDING COMPANY
8(a)(1) of the statute. Briefs were received from the General
Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Levingston Shipbuilding Company, a State of Delaware
corporation, has its principal office and place of business in
Orange, Texas, where it is engaged in the manufacture of
offshore drilling rigs and related equipment. During the
past 12 months, a representative period, it purchased and
received at its Texas location goods and materials valued in
excess of $50,000 directly from suppliers located outside
the State of Texas. I find that the Respondent is an
employer engaged in commerce within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
On February 1, 1977, a substantial number of employees
in the Respondent's shipyard - boilermakers, pipefitters,
electricians, and others - all union-represented, went on
strike. There were at the time about 25 employees in the
warehouse; these were not represented by any union. At
the start of the strike, management asked them whether or
not they intended to work during the strike, and at least
seven said no, they would not cross the picket lines.
Murphy Burch, their supervisor, told each of them that
whatever they decided to do "wouldn't be held against
you." Throughout February, March, and into April, these
seven withheld their services because of the strike by their
fellow employees. Among them were James Collins and
David Scott, the Charging Parties herein.
On April 15, with the strike and the picketing still going
on, Schriltz, the personnel manager, called both Collins
and Scott and passed a message to them that there was
work to be done for which the Company needed them, and
that they were to return to work no later than Monday,
April 18. Scott called back to remind Schriltz of what
Burch had said, and Schriltz responded that, while he knew
that, "certain rules and regulations have changed for the
warehousemen, requiring them to be to work ... ." The
next day Scott called the Company again, this time telling
Marvin Russell, manager of employee relations, what
Burch had told the men in the beginning. Russell too said
he knew about that, but, again, "rules and regulations have
changed . . . You are supposed to be at work right now."
Although Scott told both Schriltz and Russell he would
come in to work, he did not and, instead, continued to
honor the picket line.
Collins, although receiving Schriltz' message that he had
to return, did not call back at all. On April 19 he received a
letter from Schriltz telling him, "This is to advise you that
Levingston has work for you, and you are to report back to
work by Wednesday, April 20, 1977." He, too, did not
come back.
The strike ended on May 2, but because of some kind of
power failure, the yard did not resume work until May 5.
That day Collins and Scott reported for work. Scott was
told by personnel he had been "terminated . . . because
you didn't report for work." The personnel officer told
Collins the same thing: "You were terminated because you
didn't report for work." The next day Collins telephoned
Schriltz, to remind him again of the assurance Burch had
given. All Schriltz said was "that the letter was sufficient."
B. Violations of Section 8(a)(1)
The complaint alleges these two men were discharged for
refusing to cross a perfectly proper strike picket line to do
their regularly assigned work, and that thereby the Respon-
dent violated Section 8(a)(l) of the Act. That under
established Board law the discharge of an employee for
refusing to cross a picket line is an unfair labor practice is
not disputed by the Respondent. Southern Greyhound Lines,
Division of Greyhound Lines, Inc., 169 NLRB 627 (1968);
Texas Foundries, Inc., 101 NLRB 1642 (1952). And this is
precisely what happened in this case, as shown without
question by the literal evidence. When the two men failed
to present themselves for work by the date fixed by the
Company, records of termination were made in their files.
One of these was received in evidence, that of Scott, and it
reads: "Explanation of termination: . . . Failure to report
for work." This is also what both men were told when they
arrived for work immediately upon termination of the
strike. The entries of their "termination" having been made
on May 25, that is the day the two men were discharged.
Matters of substance are not changed depending upon the
use of this or that word when an employer removes a man
from the payroll. In very plain language what the Company
was saying to these men, in April, was: Strike or no strike,
picketing or no picketing, when we want you to come to
work you must come, and if you do not we will fire you.
The defense to the positive allegation of discharge is an
affirmative one, and it rests entirely on the contention that
the men were not fired at all, but that they voluntarily
resigned their jobs, that they chose just to quit. The
evidence does not support the contention. In fact there is
no probative proof at all even indicating that after
withholding their services for 2-1/2 months because of the
picket line, they thereafter stayed away for any other
reason. The personnel manager testified that, when consid-
ering how many days to give the men as a deadline within
which they would have to return to their jobs, management
discussed "what our actions would be if they did not return
to work." He continued it was decided that in the event the
men did not comply with the ultimatum "they would be
assumed to have quit." And this is precisely what the
Respondent's management witnesses were saying at the
hearing - that because the men did not return, they - the
company men - assumed, absent any facts to support the
assumption, that the men now had a different reason for
not coming to work. It will not do as a defense to an
absolutely convincingprimafacie case of discharge.
What the Respondent did know is that Scott and Collins
were staying away because of the strike. Collins did not
respond to the telephone message that he had 5 days to
come back. He even ignored the letter giving him an
additional few days. Scott knuckled under the fiat that he
had so many days and no more to make up his mind, and
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he would return. He changed his mind. His momen-
tary acquiescence to the Company's demand is under-
standable; after all, up to that moment he had had the
assurance by Burch that there would be no retaliation
against him for exercising a statutory right. Scott is not a
labor lawyer, but just an unskilled workman, normally
sensitive to the iron fist in the gloved hand. It is the statute
which protects a man's right to act in concert with fellow
workers, not the good grace of the employer. Scott and
Collins could have been replaced during their absence;
they were withholding services for economic reasons, not in
protest against any improper conduct of the Company. But
there is neither proof nor claim that they were ever
replaced. Rather, there is evidence the Company had much
work for them to do, some not even in the warehouse but
on some kind of a ship being refitted.
I find on this total record that Scott and Collins were
discharged on April 25, 1977, in violation in Section 8(a)(1)
of the Act.
III. THE REMEDY
At the hearing the Respondent advanced the argument
that even assuming unfair labor practices were committed,
there is no occasion for ordering reinstatement of these
men because after the strike ended no identifiable employ-
ees were hired to fill precisely the jobs they had held at the
start of the strike. In the words of company counsel:
"[E]ven if the contentions of the General Counsel are true,
which contentions the Company disputes, there is in fact
no job vacancy into which reinstatement can be ordered
and the only remedy available to these claimants would be
preferential listing for future vacancies as those vacancies
might arise."
This issue injected into the hearing by the Respondent
really relates to the question of appropriate remedy for the
illegal discharges, or eventual compliance with a Board
order. It has nothing to do with the fact of the discharges.
But to the extent that the Respondent chose to raise the
question now, there is no reason for not considering it to
the extent that it offered purported evidence in support.
Burch, the warehouse manager, said that at the start of the
strike, 25 men were assigned to the warehouse, which the
Company designates as "department 22." He also said that
the total group handled both steel and general warehouse
materials, and that while all the men "are classified ... as
22 ... we operated them sort of separate from one another
even though they were one department." It was a nebulous
phrase and indicated no more than a matter of bookkeep-
ing entries. He said that in January 8 men did steel work
and 17 men did general warehouse work. Of the total group
seven refused to cross the picket line, all then handling
general materials. The Respondent ordered all back to
work in April, on the "or else" basis, and four did return.
The third man who, like Scott and Collins, ignored the
demands, is not involved in this case.
Burch also said that during the strike warehouse employ-
ees were assigned to do work other than what normally was
done there. "We performed other work in addition to the
This means, parenthetically, that the work for which Scott and Collins
were ordered back to the yard in April, was not their regular work and may
very well have been "struck work."
warehouse work. At that time 718, which is a hull number,
was being outfitted and finished. Some of us worked out
there. And then we kept a few in the warehouse. Very
few."' When things settled down, after the strike, still
according to Burch, there was less work in the "warehouse"
than there had been before, because of a general improve-
ment in efficiency methods. He said that thereafter only 14
men worked as "warehousemen," in contrast to the 17
before the strike. He then added no additional warehouse-
men had been hired there since. It is on the basis of this
testimony that the Respondent now asks the Board to
forget about any reinstatement or make whole remedy in
this case.
There is an ambiguity in the man's testimony. Did the
Respondent hire any new men to handle steel in the
warehouse, if not to handle what he called general
warehouse materials? He used the word warehouse in more
than one sense, suggesting there was a separation between
the two groups - steel warehouse against general ware-
house. Where warehouse work is concerned, no significant
difference appears between the two on this record. Further,
he also said that sometimes help is brought from outside
the warehouse when additional labor is needed there. He
even mentioned one man who was transferred into the
house permanently, because he was very old.
But I think the answer to the Respondent's general
argument here involves something broader than the pin-
pointed question whether a precise job is or is not vacant
after an unfair labor practice has been committed, indeed
even whether or not it continues to exist at all. Once it has
been found an unfair labor practice has been committed,
the burden shifts to the Respondent to undo the effects of
its illegal conduct. See N.LR.B. v. Brown & Root, Inc., 311
F.2d 447 (C.A. 8, 1963). I do not believe this record proves
that absolutely there was no work in this overall warehouse
after the strike for Scott and Collins to do. But, even
assuming there was not, the Respondent could well have
returned them to work elsewhere throughout its very large
shipyard. In fact, this case is perfect illustration of why the
Board has always ruled that where the job that is illegally
taken from a man no longer exists, the wrongdoing
employer is obligated to offer him, in remedy, a substan-
tially equivalent position.
Whatever changes may have taken place in the ware-
house, it is clear that the total number of the Respondent's
employees is the same now as it was when the strike started
- about 1,500 persons. Scott and Collins were essentially
laborers in the warehouse; there is nothing to indicate they
were qualified only for a particular type of work. Scott used
to be an electrician's helper before going into the ware-
house. He can certainly be a helper somewhere again.
Collins spent 9 years with the Company. It is virtually
inconceivable that he could not perform some kind of
necessary work, albeit unskilled, in another assignment.
The Respondent having discharged the two men in
violation of the statute, it must be ordered to reinstate
them, either to their old positions, or to substantially
equivalent ones, and make them whole for the loss of
earnings which each has sustained. The men were dis-
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LEVINGSTON SHIPBUILDING COMPANY
charged on April 25; they continued to exercise their
statutory right to withhold their services throughout the
strike until May 5. The backpay period accordingly will
start from May 5, 1977.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of
Respondent described in section I, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. By discharging and thereafter refusing to reinstate
David Scott and James Collins because they engaged in the
protected activity of assisting a labor organization, Re-
spondent has interfered with, restrained, and coerced them
in the exercise of their rights guaranteed by Section 7 of the
Act and has engaged and is engaging in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Levingston Shipbuilding Company,
Orange, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions. and Order. and all objections thereto shall be
deemed waived for all purposes.
(a) Discharging or refusing to reinstate any employee
because he has assisted a labor organization by refusing to
cross a lawful picket line at his place of work.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to David Scott and James Collins immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of pay suffered by reason of the unlawful discharges
and refusal to reinstate, with interest at 7 percent.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Orange, Texas, shipyard copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
3 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
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."
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