Maryland Shipbuilding and Dry Dock Co.

National Labor Relations Board - Board Decisions

Jun 5, 1981

256 N.L.R.B. 410 (N.L.R.B. 1981)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maryland Shipbuilding and Dry Dock Co. and Leon
Miller. Case 5-CA-12065
June 5, 1981
DECISION AND ORDER
On January 22, 1981, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Maryland Ship-
building and Dry Dock Co., Baltimore, Maryland,
its officers, agents successors, and assigns, shall
take the action set forth in said recommended
Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
The Administrative Law Judge's Decision contains inadvertent errors:
The record indicates Gil Abramson, Esq., is counsel for the Respondent,
not for the Charging Party as set forth in the caption. The correct cita-
tion to Interboro Contractors, Inc.. is 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967).
We note that the Administrative Law Judge cited NL.R.B. v. Wash-
ington Aluminum Co., 370 US. 9 (1962), for the proposition that, even
when an employee's interpretation of the contract is wrong, his efforts in
enforcing the agreement are nonetheless protected We do not rely on
Washington Aluminum for this proposition and instead rely solely on
Firch Baking Company, 232 NLRB 772 (1977).
The Administrative Law Judge found that as a matter of contract con-
struction the term "isolated spaces" in art. XIX of the collective-bargain-
ing agreement does not refer solely to the tanks identified in that article.
We do not adopt this finding as it is unnecessary to the resolution of this
case. As the Administrative Law Judge properly concluded, the correct-
ness of Miller's contractual interpretation notwithstanding, his efforts in
enforcing the agreement are protected.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon a
charge filed by Leon Miller, the General Counsel of the
National Labor Relations Board (hereinafter the Board)
issued a complaint on May 9, 1980, alleging that Re-
spondent suspended Miller for protesting an alleged in-
fraction of the collective-bargaining agreement and
thereby violated Section 8(a)(l) of the National Labor
256 NLRB No. 69
Relations Act, as amended (hereinafter the Act). Re-
spondent filed a timely answer denying the commission
of the alleged unfair labor practice. A hearing was held
in this proceeding on November 12 and 13, 1980, in Bal-
timore, Maryland, at which time all parties were given
full opportunity to participate, to introduce relevant evi-
dence, and to examine witnesses. Subsequent to the hear-
ing, the General Counsel and Respondent submitted
briefs which have been carefully considered.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is engaged in the construction and repair
of oceangoing vessels at its Baltimore, Maryland, facility.
During the preceding year, a representative period, Re-
spondent purchased and received products valued in
excess of $50,000 from points directly outside the State
of Maryland.
Accordingly, I find that Respondent is, and at all times
material herein has been, an employer engaged in and af-
fecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE AL.EGED UNFAIR LABOR PRACTICES
A. The Alleged Protected Activity
The Charging Party, Leon Miller, has been employed
by Respondent as a painter since 1971, and for the past
several years has served as the 12 p.m. shift shop steward
for Local 31, Industrial Union of Marine and Shipbuild-
ing Workers.
At midnight on March 25, 1980,' Miller reported to
the paint shop at Respondent's yard where he and four
other painters were assigned by the crew leader, Norman
Benjamin, to perform needlegunning 2 work on foam
tanks, more precisely designated aircraft firefighting
foam systems, on a navy vessel, U.S.S. Raleigh.
After gathering his equipment, Miller and his fellow
workers boarded the ship at approximately 12:20 a.m.,
where they waited for Benjamin to direct them to the
particular tanks on which they would be working. 3
Some 20 minutes later, Benjamin rejoined the crew
and assigned Miller to the forward port tank; coworker
Albertus Martin was directed to the port tank, and the
remaining painters were assigned to the forward star-
board tank. Upon receiving his assignment, Miller told
Benjamin that he was acting improperly by failing to
Unless otherwise specified, all relevant events occurred in 1980.
2 Needlegunning refers to the process of removing paint from surfaces
with a pneumatic blank hammer, prior to the application of fresh paint
3 There were four such tanks used for firefighting purposes, located
approximately 100 feet apart on the forward and aft side of the ship's
quarterdeck and 80 feet apart from port to starboard. Each tank, cylindri-
cal in shape, was approximately 10 feet long, 3-1/2 to 4 feet deep and 3
feet wide and was affixed to the wall of a passageway approximately 5
feet above the deck floor. The tanks were entered through a central cov-
ered hole.
MARYLAND SHIPBUILDING AND DRY DOCK CO. 411
assign two men to each foam tank.4 In raising this objec-
tion, Miller was relying on his understanding that the
collective-bargaining agreement provided that, as a
safety precaution, two men were to be stationed together
when their work was in an isolated area. 5 Benjamin re-
plied before departing that Miller should take his com-
plaint to Respondent's general foreman, Don Huey, in
the morning.
Established practice required that when complaining
about a possible safety infraction, the shop steward ini-
tially was to discuss the matter with the crew leader. If
the complaint was not resolved at that level, the next
step was to consult with the Union's safety committee-
man, and then with the Company's chief security officer
on duty. In accordance with this procedure, Miller asked
a passing employee to have the Union's safetyman,
Howard Sprouse, contact him. Miller emerged from his
tank when Sprouse arrived and asked him to terminate
the job because of the alleged safety violation. Sprouse,
replying that he had no authority to call a halt to the
work, suggested that they next contact Lieutenant Bryan
Smith, the plant security officer. Miller then called
Smith.
On receiving Miller's phone call, Smith, accompanied
by Leo Egan, a company fireman, met with Miller and
Sprouse on the ship shortly before 2 a.m. After Miller
presented his complaint, specifically referring to article
XIX of the collective-bargaining agreement, Smith paged
Benjamin. While waiting for Benjamin, Smith, Miller,
and Sprouse inspected the other foam tanks, finding only
two of the three painters assigned to the forward star-
board tank working there and one man working on each
of the other two rear tanks. Albertus Martin emerged
from the rear port tank when one of the group knocked,
was present during the ensuing discussion, and returned
to work some 10 minutes later after the matter had been
resolved.
Benjamin arrived 5 minutes after Smith's call, together
with the production supervisor, Charles Cox. When Cox
asserted that foam tanks were not within the scope of ar-
ticle XIX of the collective-bargaining agreement,
Sprouse commented that the tanks were in an isolated
place considering the small number of personnel working
on the vessel during the midnight shift. Smith then asked
Benjamin whether he had directed any member of the
crew to patrol the tanks. Benjamin responded that he
had.
To quickly resolve the dispute, Smith suggested that
Benjamin circulate around the foam tanks every 15 min-
utes. Instead, Benjamin proposed that Reginald Holden,
a painter who arrived late to work, stand watch outside
the tank to which Miller was assigned. Benjamin also re-
moved two painters from another assignment on the ves-
4 Benjamin denied that Miller protested at this time.
s Art. XIX. the relevant provision of the collective-bargaining agree-
ment states:
Employees will not be required to work alone in remote or isolated
spaces such as double bottoms, forepeak tanks, copper dams and
cargo tanks of tankers. . . . An employee will not be considered as
working alone when there is another employee assigned to work
with him who is working on the tank top.
sel's well deck and positioned them outside the two aft
tanks.
Holden remained outside Miller's tank and testified
that with the exception of a few breaks, he heard Miller
needlegunning consistently for the balance of the shift.
Although Holden was not aware of how much needle-
gunning had been accomplished on this tank prior to the
start of the midnight shift, when he glanced into the tank
before leaving the vessel that morning, it appeared to
him that half of the tank had been completed.
Benjamin stated, however, that he passed Miller's tank
six or seven times during that shift and that, on four or
five of these occasions, he did not hear any needlegun-
ning noise. When he looked into the tank during the 4
a.m. break, he found that Miller had completed only 1
square foot.6 Although Benjamin had authority to alter
assignments, he explained that he failed to substitute
Holden or any other painter for Miller at this time, be-
lieving he was obliged to keep Miller inside the tank pur-
suant to the agreement reached earlier with Smith and
Cox. When he checked the foam tank at the end of the
shift, Benjamin maintained that Miller had prepared no
more than a 3-square-foot area. Several of Respondent's
witnesses testified that a diligent worker could be expect-
ed to needlegun 15 to 20 square feet of the 150 to 200
square feet comprising the interior surface of such tanks.
At the conclusion of the midnight shift, Smith and
Benjamin submitted written reports of this incident to
Raymond Neall, assistant foreman for the paint and labor
department. Benjamin began discussing the situation with
Neall and Miller who attempted to present his version of
the incident. With Smith, Howard Sprouse, and James
Jones, the day-shift steward, also present in Neall's
office, an argument ensued as to whether Miller was cor-
rect in protesting the alleged safety infraction. The argu-
ment terminated with Neall ordering Miller out of his
office.
Shortly thereafter at Miller's request, Jones boarded
the Raleigh with Miller to observe the foam tank in ques-
tion. He noted that approximately half of the needlegun
work in the tank had been completed.
B. The Suspension
To familiarize himself with the foam tanks on the Ra-
leigh, Neall examined several of the tanks later that same
day. Then, after reading Benjamin's report and review-
ing Miller's personnel file which contained two prior
warnings, 7 Neall decided that a 3-day suspension was
warranted for this latest offense. He prepared a written
notice charging Miller with having failed to carry out his
job assignment, wasting time during working hours, and
interfering with the supervisor's carrying out his assign-
ment. Although he did not designate the violations by
number, each one related to a work rule designated in
6 Benjamin testified that prior to the start of the shift, he looked into
the forward starboard foam tank and thus was in a position to know how
much additional needlegunning could be attributed to Miller's efforts
7 Miller received a warning on November 20. 1979, for failing to wear
safety glasses, and another for leaviig work early No disciplinary action
beyond the written warnings was imposed on either occasion
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's employee handbook.8 Neall explained
that by "failing to carry out job assignment," he was re-
ferring to Miller's wasting 2 hours before beginning to
work on the tank; and that by causing Albertus Martin
to abandon his job temporarily, Miller was wasting time
and interfering with Benjamin's ability to carry out his
supervisory functions.
Miller received the written notice prior to the start of
his shift on March 27. Later that day he again attempted,
without success, to discuss the matter with Neall who
dismissed him by stating that he was relying on Benja-
min's assessment of the controversy. On the same day,
Miller filed and then withdrew written grievances pro-
testing both the alleged safety violation and also what he
considered to be management's harassment of him for
complaining about the matter.9
In his written response to Miller's protest, Neall con-
tended that there was no safety violation since the tanks
were consistently surveyed by the paint department su-
pervisor and other craftsmen working in the area. At the
hearing, Neall stated that 40 to 50 employees were work-
ing at various locations throughout the Raleigh during
the midnight shift while some 400 ordinarily work on the
vessel during the daytime. Benjamin estimated that on
the March 25 midnight shift as many as 50 to 60 crafts-
men were working in the engine room, which is on the
deck below the foam tanks. Access to the engine room is
by way of a ladder, descending from an entrance 10 feet
further down the passageway in which the tank was situ-
ated.
Ill. DISCUSSION AND CONCLUSIONS
A. Issues
The General Counsel contends that the Charging
Party was suspended because he complained about what
he considered to be a violation of the contractual safety
provisions. Respondent counters that Miller invoked the
safety clause of the contract to camouflage his desire to
evade a difficult work assignment; that the foam tanks
did not come within the meaning of article XIX of the
operative agreement, and that Miller's protest did not
constitute protected concerted activity. Respondent fur-
ther submits that, even apart from Miller's complaint, the
suspension was warranted by Miller's failure to carry out
his assigned tasks. Based on a consideration of the record
as a whole, I find merit in the General Counsel's posi-
tion.
B. Miller's Protest Was Protected Concerted Activity
A resolution of this dispute starts with the threshold
determination that Miller's protest was based on his
good-faith belief that the assignment of painters to work
alone within foam tanks during the midnight shift was
A Neall referred to company rule 8, "Refusal to or failure to do job
assignment"; and rule 11, "wasting time or loitering during working
hours, coercing or interfering with employees or supervision at any
time." The handbook states that commission of these violations may con-
stitute grounds for disciplinary action ranging from reprimands through
discharge.
9 The collective-bargaining agreement contains no mandatory require-
ment that complaints be processed through the grievance procedure
potentially unsafe and violated article XIX of the collec-
tive-bargaining agreement.
Respondent argues that "isolated spaces" is limited ex-
clusively to the tanks enumerated in article XIX and that
Miller, as an experienced shop steward, knew this. As a
matter of contract construction, however, the use of the
words "such as" in the relevant clause makes it plain that
isolated spaces does not refer solely to the identified
tanks.
Further, although Neall and Huey testified that it was
customary practice to assign only one painter to a foam
tank, they apparently were referring to day-shift assign-
ment practices, for the midnight shift employees had not
within the recent past worked on foam tanks.' t More-
over, since Miller's last experience with such tanks oc-
curred some 5 years earlier, it cannot be assumed that he
was aware of current practice. Thus, as Sprouse suggest-
ed, and as Neall and Huey conceded, what is an isolated
place can vary depending on such factors as the time of
day, the number of men in the immediate area, and the
surrounding noise levels. The evidence presented sup-
ports the conclusion that while the foam tanks ought not
to be regarded as isolated places during the day shifts
when some 400 employees are working on the Raleigh,
the same tanks may indeed be isolated places during the
midnight shift when only 50 employees were working
out the entire ship.
Benjamin at first claimed that there were 50 to 60 dif-
ferent craftsmen working in the engine room alone, the
door to which was approximately 10 feet away from the
foam tank." Even assuming that this exaggerated esti-
mate is accurate, it does not follow that any of those
workers were in a position to attend to a painter within
the foam tank. Benjamin admitted that the engine room
was a floor below the deck on which the foam tank was
situated, and the employees working there were using
noisy pneumatic equipment. Further, although several of
Respondent's witnesses suggested that the forward port
foam tank was located on a passageway frequently trav-
eled in the daytime, not one person testified with certi-
tude or from direct observation that passers-by in fact
traversed that corridor during the midnight shift on
March 25.1 2
Knowing that a relatively small number of employees
were distributed throughout the Raleigh during the mid-
night shift and that few of them might be close enough
to a painter within the cramped confines of the foam
10 Huey testified that past repairs made to another naval vessel did not
involve needlegunning foam tanks by the midnight shift. In addition,
daily assignment sheets which Respondent introduced into evidence
showed that needlegunning on the Raleigh 's foam tanks was done by day-
shift crews. In other respects, I find these records inaccurate and unreli-
able. For example, Huey explained that the number 589 was assigned to
work performed on the two forward tanks while 588 was the number al-
loted to the two starboard tanks Yet, the daily assignment sheets showed
that only one of these numbers frequently was used to refer to all four
tanks.
II Benjamin subsequently revised his estimate and testified that there
were perhaps 50 to 60 employees working throughout the Raleigh. His
latter figure is, of course, consistent with the count offered by Neall.
1 Smith mentioned that several sailors were nearby during his discus-
sion with Miller, Sprouse, and Benjamin on board the ship, but conceded
that they had been attracted by the argument and were not regularly sta-
tioned in positions which permitted their observation of Miller's tank.
MARYLAND SHIPBUILDING AND DRY DOCK CO. 413
tank to assist him if necessary, it was not unreasonable
for Miller to perceive the foam tanks as unsafe, isolated
spaces. 13
If, as Respondent suggests, Miller was engaged in an
elaborate ruse to avoid working, he chose an unlikely
means to accomplish that end. The easiest course for a
malingerer would be to feign illness or work slowly
without attracting attention. Instead, Miller followed es-
tablished procedures which entailed contacting a succes-
sion of Respondent's agents, with no assurance that the
matter would be resolved in his favor.
Respondent argues that Miller ignored proper com-
plaint procedures and, in support of this, points out that
he failed to mention the contractual violation to Benja-
min at the start of the shift. However, Benjamin's denial
that Miller broached the matter to him was unconvincing
and contradicted both by Martin's testimony and by
Smith's report which stated that when he was first tele-
phoned, Miller advised him the problem involved a dis-
pute with Benjamin. Clearly, there would have been no
such dispute reported if Miller had not previously raised
the contractual violation with the crew leader. Respond-
ent further points out that it was Sprouse not Miller who
suggested contacting Smith. However, Miller responded
immediately to Sprouse's suggestion by telephoning
Smith and informing him of the problem. Miller's adher-
ence to proper procedures in pursuing the complaint is a
telling demonstration that his concern about the foam
tanks was genuine.
Further, the manner in which a number of Respond-
ent's agents initially reacted to Miller's protest suggests
that they did not regard it as frivolous. Thus, although
Smith did not consider the tank to be isolated and asked
Benjamin to patrol the area to bring an end to the con-
troversy, neither he nor Cox treated the complaint as so
farfetched as to be undeserving of any attention. More-
over, the record reveals that at the meeting in Neall's
office different views were expressed but, for the most
part, the argument went to the merits of Miller's com-
plaint, not whether it was or was not made in good faith.
In the final analysis, whether Miller was correct in his
interpretation of the contract is immaterial for even
when an employee's construction of a contract is wrong,
his efforts in enforcing the agreement are nonetheless
protected. N.L.R.B. v. Washington Aluminum Company,
Inc., 370 U.S. 9, 16 (1962); Firch Baking Company, 232
NLRB 772 (1977).
Miller may have acted alone, but the complaint was
not registered solely in his own behalf for Martin was
present during the discussion of the problem and was af-
I3 Respondent argues that Gateway Coal Co. v. United Coal W'orker of
America, el a., 414 U.S. 368 (1974), controls in the instant case The Su-
preme Court held in Gateway that a strike protesting an allegedly unsafe
working condition in violation of a no-strike clause is unprotected unless
it is objectively determined that there was an abnormally dangerous
working condition within the meaning of Section 502 of the Act Thai
precedent is inapplicable to the circumstances of the present case since
unlike the coalminers in Gateway, Miller was not engaged in a strike nor
did he ignore mandatory grievance mechanisms. Rather, he merely tem-
porarily halted his work in an effort to resolve a dispute peacefully
through resort to established complaint procedures. Therefore, it is un-
necessary to decide whether the foam tanks were, by objective standards.
abnormally dangerous places, in order to find that Miller held a genuine
belief that they were unsafe.
fected by its resolution as were the painters in the other
foam tanks. 4 In the absence of any evidence that Martin
or other crew members disavowed Miller's actions, their
assent to Miller's representation will be implied. Alleluia
Cushion Co., Inc., 221 NLRB 999, 1000 (1975).
Even if Miller had acted alone, it is firmly settled that
individual efforts to obtain compliance with a collective-
bargaining agreement will be considered as serving a
concerted purpose in the interest of all employees and,
therefore, within the protections of the Act. N.L.R.B. v.
Interboro Contractors, Inc., 217 NLRB 278, 279 (1975),
enfd. 388 F.2d 495 (2d Cir. 1967); Key City Mechanical
Contractors, Inc., 227 NLRB 1884, 1857 (1977); Roadway
Express, Inc., 217 NLRB 278, 279 (1975), enfd. 532 F.2d
751 (4th Cir. 1976). This is particularly true where, as
here, Miller was acting in his capacity as shop steward,
was following proper procedures, and had expressly in-
voked the collective-bargaining agreement as the source
of a claimed right.
There can be little doubt that Miller's complaint, and
the time he spent in pursuing it, was a significant factor
in Respondent's decision to suspend him. Thus, Neall
candidly explained that one of the primary reasons moti-
vating his decision to discipline Miller was the fact that
he was unproductive for the first 2 hours of his shift and
also interfered with Martin's performance during this
time. However, since Miller devoted most of this time to
resolving his complaint, management was in fact penaliz-
ing him for engaging in protected concerted activity.
C. Respondent's Defense
Respondent argues that even assuming Miller's protest
was protected activity, it would have disciplined him in
any event for unrelated dilatory and unproductive con-
duct.
In this regard, Respondent claims that Miller wasted
time at the outset of his shift. However, it was uncontro-
verted that Benjamin did not direct the painters to spe-
cific foam tanks until 12:40 a.m. Therefore, the loss of 40
minutes working time cannot be attributed to Miller's al-
leged malingering. Further, Sprouse testified that when
he boarded the Raleigh he found Miller emerging from
his foam tank, thereby indicating that Miller had com-
menced his job.
Respondent also claims, in reliance on Benjamin's
report and testimony at the hearing, that even after the
dispute about the safety matter was resolved Miller con-
tinued to engage in dilatory behavior, needlegunning no
more than 3 square feet during the balance of the shift.
Benjamin's assessment of Miller's productivity is con-
tradicted not only by Miller, but by Holden and Jones,
each of whom estimated that roughly half of the foam
tank was completed by the end of the shift. Although
neither Holden nor Jones knew precisely how much
needlegunning had been completed at the outset of the
shift, nevertheless it was possible for them to gauge how
"1 Respondent charged Miller with impeding the progress of the job
by summoning Martin from his foam tank Whether it was in fact Miller
who knocked on Martin's tank is irrelevanl for, even assuming he did
summon Martin to the discussion, that must be regarded as an extension
of his oncerted actiity, as was Martin's attendance
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much work could be attributed to Miller since his work
was on the lower section of the tank whereas the painter
on the previous shift had worked on the top portion.
Moreover, Holden testified credibly that he heard Mill-
er's needlegun operating consistently throughout the
shift. 5 1 find Jones' observations equally trustworthy for
it is unlikely that Miller would have asked him to inspect
the tank unless he was confident that Jones would regard
his progress as satisfactory. 16
Benjamin's assertion that he failed to substitute another
painter to needlegun the foam tank when he found that
Miller had needlegunned only 1 square foot by 4 a.m. is
totally unconvincing. The essence of his agreement with
Smith, Cox, and Miller was to have someone stationed
outside the foam tank. Holden was assigned to this task
at Benjamin's suggestion and he clearly had the authority
to alter the arrangement. If Miller was malingering, as
Benjamin contended, then Miller should have been more
than willing to exchange places and assume Holden's less
taxing job. There was, of course, ample reason why Ben-
jamin might wish to minimize the amount of work which
Miller performed. There apparently was an ongoing con-
flict between Miller and Benjamin as Smith mentioned in
his report. Further, Benjamin's remarks during the hear-
ing that Miller was "always getting into something," that
he was an instigator who was "always stirring the men
up" reveals that he regarded Miller as a thorn in his side
and a troublemaker who continually challenged his au-
thority. It takes little insight to recognize that the crew
leader's irritation stemmed from Miller's interfering with
his work schedule and questioning his judgment before
many of Benjamin's superiors.
Further, no corroboration of Benjamin's estimate that
Miller had needlegunned only 3 square feet was offered.
Respondent failed to produce as a witness the crew
leader for the 4:30 p.m. shift who, according to Benja-
min, was with him when he inspected the foam tanks
prior to the start of the midnight shift and therefore was
in a position to verify the amount of work that had been
accomplished by that time. Neall testified that he exam-
ined several foam tanks but he had not seen them prior
to the midnight shift, and never specifically stated that
among the tanks he inspected was the one on the for-
ward port side. In fact, when Neall explained the causes
for Miller's suspension as set forth in the disciplinary
notice, he focused exclusively on the painter's lack of
productivity during the first 2 hours, not his failure to
perform during the balance of the shift.
Neall also maintained that his review of Miller's prior
disciplinary warnings figured into his decision to impose
a 3-day suspension. However, there was no reference to
Is Although apparently made nervous by his appearance in the court-
room, I found Holden to be an essentially honest witness who, as a re-
cently retired worker, had no particular motive to slant his testimony He
may have forgotten who worked with him, but he, and not Respondent,
correctly recalled that he was assigned to needlegun foam tanks on the
Raleigh several days after the incident i question.
16 Jones also impressed me as a candid witness who did not permit his
status as a shop steward to interfere with his good judgment. His reason-
ableness was demonstrated by the comment made in Neall's office that,
since the controversy had ended, the parties should put it behind them.
This strikes me as a sensible position and not a cavalier statement as Re-
spondent suggests.
these warnings in the disciplinary notice of March 27,
suggesting that if they played any part in Neall's deci-
sion, it had to do primarily with the length of the suspen-
sion.
From all of the above, I conclude that Respondent has
failed to sustain its burden of proving that it would have
disciplined Miller even had he not protested a perceived
safety violation. See Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980). To the contrary, I
find that Miller's protest was at the root of his 3-day sus-
pension. It follows that, by suspending Leon Miller from
March 27 to 31, Respondent violated Section 8(a)(l) of
the Act.
CONCLUSIONS OF LAW
1. Maryland Shipbuilding and Dry Dock Company is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By issuing a disciplinary notice to and suspending
Leon Miller because he engaged in protected concerted
activity, Respondent has interfered with, restrained, or
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, and is thereby engaged in an unfair
labor practice within the meaning of Section 8(a)(l) of
the Act.
3. The aforesaid conduct is an unfair labor practice
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Secton 8(a)(l)
of the Act by issuing a disciplinary notice to and sus-
pending employee Leon Miller because he engaged in
protected concerted activity, Respondent shall be or-
dered to make Miller whole for any loss of earnings suf-
fered by reason of the unlawful action taken against him
by payment of a sum of money equal to what he would
have earned during the period of his suspension from
March 27 through March 31, 1980, less net earnings
during such period, with backpay and interest thereon to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). Respondent shall
also be required to remove any recordation of the sus-
pension notice from Miller's personnel file and deliver
such entries to him. See Certain-Teed Insulation Compa-
ny, et al., 251 NLRB 1561 (1980).
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' 7
The Respondent, Maryland Shipbuilding and Dry
Dock Company, Baltimore, Maryland, its officers,
agents, successors, and assigns, shall:
'7 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 12.48 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 fr all purposcs
MARYLAND SHIPBUILDING AND DRY DOCK CO. 415
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees
by warning, suspending, or in any other manner discrimi-
nating against employees for protesting suspected safety
violations or engaging otherwise in concerted protected
activity.
(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.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Make whole Leon Miller for any loss of earnings
he may have incurred by reason of the unlawful action
against him in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Expunge any recordation of the suspension notice
issued to Leon Miller on March 27, 1980, and deliver
such documentation to him.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its premises in Baltimore, Maryland, copies
of the attached notice marked "Appendix."' 8 Copies of
said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Respondent's
l' In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
employees by warning or suspending them, or dis-
criminating against them in any other manner for
protesting suspected safety violations or for engag-
ing in otherwise concerted protected activities.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILI. make Leon Miller whole for any loss
of earnings he has incurred with interest, because of
the unlawful suspension we imposed on him
MARYI AND SHIPBUILDING AND DRY
DOCK CO.