Newport News Shipbuilding & Dry Dock Co.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 375 (N.L.R.B. 1981)

NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
Newport News Shipbuilding & Dry Dock Company
and United Steelworkers of America, AFL-
CIO-CLC. Cases 5-CA-11337, 5-CA-11414,
and 5-CA-11415
January 14, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On August 27, 1980, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
I 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 his findings.
I2 n affirming the conclusion that Respondent violated Sec. 8(a)3) and
(I) by suspending and later discharging employee Michael Saunders. and
by discharging employee Ralph Sawyer, we wish to clarify any possible
ambiguity created by the Administrative Law Judge's statements that Re-
spondent violated the Act because "a substantial and motivating" ground
for its actions in each instance was the employee's protected activities.
Subsequent to the issuance of the Administrative Law Judge's Decision,
the Board issued Wright Line, A Division of Wright Line, Inc., 251 NLRB
1083 (1980), which sets forth a two-step mode of analysis for examining
causation in cases alleging violations of Sec. 8(aX3) or (1) and turning on
issues of employer motivation. The Administrative Law Judge did not,
and indeed could not, apply the precise Wright Line analysis in making
his motivational findings. We nevertheless find that Wright Line has not
rendered his analysis defective. The Administrative Law Judge correctly
found that credited record evidence constituted a prima facie showing
sufficient to support the inference that Saunders' and Sawyer's union and
other protected activities were motivating factors in Respondent's deci-
sions to take certain actions against them. In addition, the Administrative
Law Judge found after a thorough review of Respondent's proffered mo-
tivational rationale that Respondent had failed to prove it would have
taken the same actions even in the absence of the employees' protected
activities. Accordingly, although the Administrative Law Judge utilized
certain causation terminology which the Board in Wright Line has dis-
couraged for future use, we conclude that his analysis is in harmony with
the analytical objectives of Wright Line and we affirm the conclusions
based on that analysis.
We further note, in response to Respondent's exceptions, that other
factors cited by the Administrative Law Judge in his analysis of the evi-
dence with respect to Saunders' suspension and discharge are sufficient to
establish Respondent's union animus independent of any reliance on the
Board's finding of a "technical" 8(aX5) violation by Respondent in New-
port News Shipbuilding & Dry Dock Co., 239 NLRB 1028 (1978). As addi-
tional background evidence of Respondent's animus toward the Union
herein, we take official notice of the 8(a)(3), (2), and (1) violations found
in Newport News Shipbuilding & Dry Dock Co., 236 NLRB 1499 (1978).
254 NLRB No. 43
Judge and to adopt his recommended Order,3 as
modified herein.4
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, as modi-
fied below, and hereby orders that the Respondent,
Newport News Shipbuilding & Dry Dock Compa-
ny, Newport News, Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order,5 as so modi-
fied:
1. Substitute the following for paragraph l(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of any right guaranteed them by Section 7 of
the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
3 In the absence of exceptions, we adopt, pro forma, the Administrative
Law Judge's recommendation that complaint allegations with respect to
Respondent's former employee Melanie Luckadoo be dismissed.
4 In par. (b) of the recommended Order, the Administrative Law
Judge uses the broad cease-and-desist language, "in any other manner."
We have considered this case in light of the standard set forth in Hick-
mot Foods. Inc., 242 NLRB 1357 (1979), however, and have concluded
that a broad remedial order is inappropriate inasmuch as it has not been
shown that Respondent has a proclivity to violate the Act or has en-
gaged in such egregious or widespread misconduct as to demonstrate a
general disregard for the employees' fundamental statutory rights. Ac-
cordingly, we shall modify the recommended Order so as to use the
narrow injunctive language, "in any like or related manner."
5 Member Jenkins would compute interest on Respondent's backpay
obligation in accordance with his dissent in Olympic Medical Corporation,
250 NLRB 146 (1980).
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 all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or suspend any em-
ployee because the employee engages in union
activities or other activities protected by the
National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act and summarized
above.
WE WILL offer Michael B. Saunders and
Ralph S. Sawyer immediate and full reinstate-
ment to their former jobs with us, without loss
of seniority or other rights and benefits previ-
ously enjoyed or, if those jobs no longer exist,
then we will offer each of them employment
to a substantially equivalent position; and WE
WILL make each of them whole, with interest,
for all loss of pay and other benefits each may
have suffered as a result of the discrimination
against them on and after August 8 and 15,
1979, respectively.
WE WILL immediately remove from our of-
ficial records any and all references to the sus-
pension of Michael B. Saunders on August 8,
1979, and WE WILL inform him and the Re-
gional Director for Region 5 of the National
Labor Relations Board, in writing, that we
have removed such references.
NEWPORT NEWS SHIPBUILDING &
DRY DOCK COMPANY
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me on June 2 and 3, 1980, at
Hampton, Virginia.
On August 24, 1979,' United Steelworkers of Amer-
ica, AFL-CIO-CLC (hereinafter called the Union), filed
the charge in Case 5-CA- 11337. On September 6, the
Union filed the charges in Cases 5-CA-11414 and 5-
CA-11415. All three charges allege that Newport News
Shipbuilding & Dry Dock Company (hereinafter called
Respondent) violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended (hereinafter
called the Act).
On January 4, 1980, an order consolidating cases and
complaint and notice of hearing was issued by the Re-
gional Director for Region 5 of the National Labor Rela-
tions Board (hereinafter called the Board). 2
I All dates hereinafter are 1979 unless otherwise indicated.
2 The above-captioned cases had originally been consolidated with
Cases 5-CA-11094, 5-CA-11104, 5-CA-11123, 5-CA-11146, 5-CA-
11156, 5-CA-11250, and 5-CA-11309. The seven enumerated cases were
severed at the instant hearing upon settlement.
In salient part, the complaint (as amended at hearing)
alleges that Respondent interfered with, restrained, and
coerced its employees and discriminated against them by
discriminatorily discharging its employees Michael B.
Saunders and Ralph S. Sawyer because they engaged in
union and protected concerted activities; unlawfully re-
fused Melanie R. Luckadoo's request to be represented at
disciplinary interviews; and unlawfully discharged Luck-
adoo because she requested such representation.3 In its
present amended form, the complaint contains no allega-
tion of so-called independent 8(a)(1) conduct.
Respondent filed a timely answer to the complaint.
The answer admitted certain matters but denied the sub-
stantive allegations that Respondent has committed any
unfair labor practices.
All parties appeared at the hearing. Each was repre-
sented by counsel and was afforded full opportunity to
be heard, to introduce and to meet material evidence, to
examine and cross-examine witnesses, to present oral ar-
gument, and to file briefs. I have carefully considered the
contents of the briefs filed on behalf of the General
Counsel and Respondent.
Upon consideration of the entire record and the briefs,
and my observation of the witnesses and their demeanor,
I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
A. In General
Respondent, a Virginia corporation, is engaged in con-
struction and repair of oceangoing vessels at its Newport
News, Virginia, location. During the 12 months immedi-
ately preceding issuance of the consolidated complaint, a
representative period, Respondent purchased and re-
ceived, in interstate commerce, materials and supplies in
excess of $50,000 in value directly from and to points
outside Virginia. Respondent admits, the parties agree,
the record reflects, and I find it is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
The parties agree, the record reflects, and I find the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
B. Concurrent Proceedings
Throughout the instant proceedings Respondent has
claimed the Board should not assert jurisdiction over the
terminations of Saunders (Case 5-CA-11415) and
Sawyer (Case 5-CA-11337). Respondent asserts the
Board must defer to concurrent proceedings pending
before the U.S. Department of Labor, Occupational
Safety and Health Administration (OSHA), pursuant to
the Occupational Safety and Health Act, 29 U.S.C §651,
et seq.
3 Luckadoo's discharge was alleged as an unfair labor practice by
amendment to the complaint at the hearing.
376
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
The General Counsel contends the Board appropriate-
ly may pursue litigation and resolution of those dis-
charges in the cases at bar.
Before any witness testified before me, Respondent
moved "to defer consideration in hearing the evidence"
relating to Saunders' and Sawyer's discharges. The
motion was founded upon the pendency of an action ini-
tiated by authority of section I 1(c), 29 U.S.C. §660(c), of
the OSHA legislation. 4
During oral argument upon the motion, the following
undisputed facts were established. Prior to convening the
instant hearing, OSHA complaints had been filed at the
Labor Department. In salient part, those charges asserted
Saunders and Sawyer had been discriminatorily terminat-
ed because they made complaints that Respondent had
committed safety violations. Apparently, OSHA con-
ducted an investigation.
After the original consolidated complaint issued herein
(January 4, 1980), Respondent was advised the U.S. Sec-
retary of Labor would defer further action upon the
OSHA complaints until the Board decided the issues re-
lating to Saunders and Sawyer. Apparently, such deferral
was based on the Board's allegation that the discharges
were caused, in whole or in part, by Saunders and
Sawyer "complaining about safety conditions" (par. 12,
original consolidated complaint; renumbered to par. 8 at
the hearing). 5
Thereafter, Respondent instituted an action in the U.S.
District Court for the Eastern District of Virginia, New-
port News Division (Civil Action 79-134-NN). That
action sought to overrule OSHA's decision to defer to
the Board and to require OSHA to file suit alleging a
discriminatory discharge of Saunders and Sawyer. In
May, before the instant hearing opened, U.S. District
Court Judge Richard B. Kellam issued an opinion.6
Respondent contended, before me, that Judge Kellam
declared the matter of the subject discharges was within
the exclusive jurisdiction of the Secretary of Labor. Ac-
cordingly, Respondent's counsel had submitted a pro-
posed order to Judge Kellam. It was asserted that order,
4 The relevant statutory provisions are:
(c)(l) No person shall discharge or in any manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under or relat-
ed to this chapter ....
(2) Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of this
subsection may, within thirty days after such violation occurs, file a
complaint with the secretary alleging such discrimination. Upon re-
ceipt of such complaint, the secretary shall cause such investigation
to be made as he deems appropriate. If upon such investigation, the
secretary determines that the provisions of this subsection have been
violated, he shall bring an action in any appropriate United States
district court against such person. In any such action the United
States district courts shall have jurisdiction, for cause shown to re-
strain violations of paragraph (1) of this subsection and order all ap-
propriate relief including rehiring or reinstatement of the employee
to his former position with back pay.
(3) Within 90 days of the receipt of a complaint filed under this
subsection the secretary shall notify the complainant of his determi-
nation under paragraph (2) of this subsection.
s See Alleluia Cushion Co., 221 NLRB 999 (1975), for underlying
theory.
6 Judge Kellam's opinion was submitted by Respondent as an appendix
to its post-trial brief I have marked it ALJ Exh. I and hereby receive the
document in evidence. This is done to make a complete record.
then not yet signed by Judge Kellam, contained language
which, in relevant part, effectively enjoined the Board
from resolution of Saunders' and Sawyer's discharges.
The General Counsel contends the Board was not pre-
cluded from such litigation. In any event, it was ob-
served the proposed order had not been signed by Judge
Kellam, nor had any injunction been served on the
Board.
Although I recognized and respect Judge Kellam's au-
thority, I denied Respondent's motion. I particularly
noted the absence of an injunction. Accordingly, the
merits of the discharges were litigated.
Respondent has renewed its argument that jurisdiction
over Saunders' and Sawyer's discharges should not be
asserted by the Board. Thus, the above-mentioned argu-
ments reappear in Respondent's post-trial brief. New
matter, not orally presented during the hearing, was
argued. Respondent annexed a copy of a complaint filed
on behalf of U.S. Department of Labor Secretary Ray
Marshall in the U.S. District Court for the Eastern Dis-
trict of Virginia, Newport News Division (Civil Action
80-139-NN). 7 That complaint was filed on July 7, 1980,
after the close of the instant hearing. By that complaint,
filed pursuant to the Occupational Safety and Health
Act, cited supra, redress is sought for the discharge of
Saunders and Sawyer. It is alleged their discharges vio-
lated section 11(c)(l) of the Occupational Safety and
Health Act. The relief sought is reinstatement of, and fi-
nancial reimbursement to, the alleged discriminatees.
In its brief, Respondent contended the combination of
its earlier propounded arguments and the Labor Secre-
tary's initiative in filing suit warrants the Board to de-
cline to assert jurisdiction over the subject discharges.
I consider Respondent's renewed argument and docu-
mentary submission an effective renewal of its oral
motion to me to defer further consideration of the
Saunders and Sawyer discharges. Thus, on July 16, 1980,
I dispatched a telegraphic order to the General Counsel
and Charging Party to show cause why I should not
defer a decision upon those discharges in light of the
filing of the OSHA complaint. The General Counsel re-
sponded to the show cause order. He contended deferral
is inappropriate. Thereafter, I granted Respondent's re-
quest to reply. Respondent did so. Respondent maintains
its position that resolution of such matters is vested ex-
clusively in OSHA.8
By letter to me dated August 4, 1980, a copy of which
apparently had been dispatched to counsel for the Gen-
eral Counsel and for Respondent, I was administratively
advised by the Office of the Solicitor, U.S. Department
of Labor, that the Secretary of Labor maintained the
propriety of the original action to defer to the Board.
Moreover, the Solicitor's office informed me that the
Labor Secretary is actively contending before Judge
Kellam (in Civil Action 79-134-NN) that it is inappro-
priate to command the Secretary of Labor not to defer
7 To complete the instant record, I have marked a copy of this com-
plaint ALI Exh. 2. It is hereby received in evidence.
8 The General Counsel's response to my show cause order and Re-
spondent's reply have been marked ALJ Exhs. 3 and 4. respectively, and
are hereby received in evidence.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Board. The Labor Secretary's further position is
that the July 1980 OSHA complaint was filed as a pro-
tective measure against potential contempt citation.
I have considered all arguments presented and con-
clude there is no impediment to the Board's assertion of
jurisdiction of Saunders' and Sawyer's discharges.
In Brown & Root, Inc., 246 NLRB 33 (1979), the Board
ruled on the merits of a dissimilar, but analogous, unfair
labor practice complaint. There, the respondent urged
the Board to dismiss the proceedings or defer them to
OSHA. Brown & Root was alleged to have unlawfully
discharged employees for having engaged in a concerted
refusal to work in protest of hazardous working condi-
tions. The employees had not complained to OSHA until
after their discharges.
Administrative Law Judge Robert C. Batson declined
to defer. He noted the existence of an agreement of June
16, 1975, between the Board's General Counsel and the
Department of Labor. That agreement, in relevant part,
provides that the Board's General Counsel will dismiss
or defer unfair labor practice charges in cases involving
issues covered by section I I(c) of the Occupational
Safety and Health Act where those issues emanate from
the same facts. Administrative Law Judge Batson con-
cluded the work stoppage was safety related but the
thrust of the unfair labor practice allegations did not di-
rectly evolve from filing OSHA charges. Because of this,
Administrative Law Judge Batson apparently concluded
the Board need not defer to OSHA all charges for activi-
ties involving safety conditions. In affirming Administra-
tive Law Judge Batson's rulings, findings, and conclu-
sions, the Board did not explicitly address his analysis of
the jurisdictional problem.
Viewing Brown & Root, in its totality, persuades me
that it is inappropriate to defer to OSHA where the alle-
gations before the Board extend to employee activity
beyond the resort to OSHA procedures. Any other
result effectively deprives employees of the full scope of
protection under the Act.
Herein, the 8(a)(1) allegations parallel OSHA allega-
tions in only one respect. Thus, both cases involve alleg-
edly unlawful terminations as retaliation for having used
OSHA procedures. As to both Saunders and Sawyer,
however, there are additional allegations that their termi-
nations were discriminatory in violation of Section
8(a)(3) of the Act. Additionally, one aspect of Sawyer's
case is identical to that of Brown & Root. Specifically, the
General Counsel contends that Sawyer's chairmanship
and membership in the Union's safety committee, togeth-
er with making frequent safety complaints to his supervi-
sor, caused his termination. This theory coincides with
the basis of the Brown & Root violation. It is obvious that
the instant matter transcends the employees' compara-
tively limited recourse provided by the Occupational
Safety and Health Act. In these circumstances, I consid-
er it contrary to legislative intent to curtail employees'
rights by limiting the forum for resolution of their rights.
In this connection, it has been argued to me that the
remedies provided through both statutes are the same. I
disagree. I conclude the reinstatement and reimburse-
ment remedies are similar. However, the language of a
notice in vindication of the rights litigated may well be
different. This is especially true herein. I shall find below
that Saunders' and Sawyer's discharges, in part, were
motivated by antiunion considerations. Accordingly, the
notice will contain language advising all interested em-
ployees of their right freely to engage in such union ac-
tivity if they choose. Such language would not attend a
remedial notice in the OSHA case.
Also, as I shall find Saunders had been discriminatorily
suspended, my order will call for that suspension to be
expunged and reimbursement to Saunders as a result.
There is no comparable relief prayed for in the OSHA
suit.9 Upon the foregoing, I conclude the legislative
intent would be at least thwarted, and possibly negated,
if the Board did not assert jurisdiction over Saunders'
and Sawyer's cases.
The Board's exercise of discretion should not be con-
trolled simply at the request of a private party to the ne-
glect of the public interest. N.L.R.B. v. Guistina Bros.
Lumber Co., 253 F.2d 371 (9th Cir. 1958). This public
policy found expression by the Supreme Court. In
N.L.R.B. v. Express Publishing Co., 312 U.S. 426 (1941),
the Court confirmed the requirement that notices be
posted by violators of the Act. The Court stated, "We
have often held that the posting of notices advising the
employees of the Board's order . . . is within the author-
ity conferred on the Board by . . . the Act." (312 U.S. at
438.) It is clear Congress intended the posting of notices
an integral part of the Board's remedial authority. The
Report of the House Committee on Labor, H.R. 1147,
74th Cong., Ist sess., pp. 18 and 24, addresses this sub-
ject. "The orders [of the Board] will of course be adapt-
ed to the need of the individual case; they may include
such matters as . . . posting of appropriate bulletins."
Clearly, to defer to OSHA would divest the Board of
the full extent of its mandated authority and the employ-
ees of their entitlement to the breadth of the Act's pro-
tection. I conclude such a result was not intended. The
circumstances herein do not warrant such a result and no
evidence of such legislative intent has been adduced or
cited.
There is a practical reason deferral is not appropriate.
Of the two available choices of forum, the Board's pro-
cesses provide the most expedient mechanism for resolu-
tion of the discharge issues. Trial on the merits has been
concluded. Briefs have been filed by the parties. Even
the jurisdictional (deferral) issue has been briefed. My
analysis of the record is complete. The conclusions are
contained, infra. Meanwhile, the concurrent proceedings
are pending on appeal. No date for trial on the merits of
the OSHA case yet has been scheduled. Thus, after issu-
ance of the instant decision, the case is ripe for compli-
ance or exceptions. In either case, the rights of the re-
spective parties are considerably closer to final determi-
nation through the Board, rather than through OSHA,
procedures.
Each of the opposing litigants benefits from this pos-
ture. The employees may be recalled to work at a rela-
tively early date. The employer may mitigate or termi-
nate its financial obligations. Ultimately, the entire indus-
9 Sec. 10(c) of the Act, in relevant part, provides the Board may "take
such affirmative action . .. as will effectuate the policies of the Act."
378
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
trial relations relationship involved is susceptible of early
stabilization. Congress declared the efficacy of this
goal.' ° Moreover, continuation of the Board's proceed-
ings has palpable effects of conservation of governmental
resources. Concluding the parties' rights and obligations
at the earliest date without multiple litigation assuredly
promotes juridical efficiency and cost-effectiveness.
I have accorded due consideration to the General
Counsel's 1975 agreement to defer to OSHA." In my
view, its preamble strongly suggests application to situa-
tions of precise confluence between the OSHA and
Board proceedings. As earlier observed, such condition
does not prevail herein. Furthermore, a stated purpose of
that agreement "is to avoid duplicate litigation." The
Board's hearing is complete. To require the parties to
further pursue litigation in the district court tends to
defeat the agreement's purpose. Respondent argues (ALJ
Exh. 4, p. 3) that "if the Board does not defer or dismiss
. . .it is possible that certain credibility determinations
or factual findings made may directly conflict with those
of the [D]istrict [C]ourt." My conclusion that deferral is
inappropriate avoids this potential.
I respect the judgment of the participants to the 1975
deferral agreement. Nonetheless, I cannot conclude their
agreement was designed to affect the progress of the
Board's processes in the particular circumstances herein.
The consistent position of the Labor Department in the
concurrent court proceedings supports this conclusion.
At the least, the Department's claim it properly ceded
jurisdiction to the Board is tantamount to a modification
or explication of the real intent of the 1975 agreement.
Upon all the foregoing, I reaffirm my earlier denial of
Respondent's motion to defer. Accordingly, I shall pro-
ceed to resolve all pending substantive issues.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Board certified the Union as collective-bargaining
representative of Respondent's production and mainte-
nance employees in October 1978. 2 Saunders and
Sawyer served as volunteer employee organizers during
the Union's preelection campaign. Each solicited em-
ployee signatures upon authorization cards. Saunders ob-
tained 200-300 signatures. Sawyer signed up approxi-
mately 100 employees. On January 26, Saunders received
a warning, reduced to writing, for "solicitation." The
written warning observes Saunders made a "ruckuss" at
one of Respondent's gates and said "we are going to shut
the yard down!" Approximately 5 days later the unit em-
ployees began a strike which continued until April 26.
Saunders and Sawyer were on strike throughout that
time.
Saunders and Sawyer regularly wore union insignia. In
addition, at Saunders' discharge in August, he was a can-
didate for election to vice president of the Union. Thus,
Saunders also wore insignia encouraging votes for that
position. Sawyer was a shop steward. He wore a badge
signifying that position. Additionally, Sawyer was active
'o Sec. I, Labor Management Relations Act, 1947, as amended.
I The text of the agreement is annexed to ALJ Exh. 4.
12 239 NLRB 82 (1978). I have taken official notice of said decision.
in the Union's safety committee. In July, Sawyer became
that committee's vice chairman. On August 10, Sawyer
ascended to the position of union secretary.
There is no evidence that Luckadoo was prominent in
union activities.
B. Michael B. Saunders
I. The facts
Saunders was hired as a welder in April 1977. He re-
tained that position until his discharge which is the sub-
ject of the unfair labor practice allegations herein.
In December 1976 Saunders sustained injuries to his
face. Three separate surgeries were required to restruc-
ture his cheekbones and sinus cavities. Saunders under-
went a preemployment medical examination at Respon-
dent's shipyard clinic. Respondent's in-house physician
found Saunders medically qualified for employment.
In July 1977, Saunders was welding in a confined area.
It was necessary he wear a respirator. Thus, for several
hours, Saunders wore a so-called quarter-face respirator
mask. 3 Apparently, until that date, Saunders performed
his welding duties with milder steels. Those activities
produced little noxious gas. Also, he had avoided use of
a respirator mask by working in open areas.
Saunders suffered severe swelling, internal bleeding in
the area of his sinuses and cheekbones, and discoloration
of his face from wearing the quarter-face mask in July
1977. He received medical attention at Respondent's
clinic. Respondent's physician imposed a written medical
restriction on Saunders. It prevented Saunders from
"work in areas requiring use of respirators." The physi-
cian signified this restriction was effective "permanent-
ly." The physician's medical qualification status form
bears the notation to Saunders' foreman: "Please find job
with this restriction." Thereafter, Saunders continued to
work as a welder without incident until August 6, 1979.
Near the end of 1978, OSHA investigated the adequa-
cy of Respondent's respiratory protection. As a result,
Respondent revised its procedure for selection, use, and
maintenance of respirators. These procedures, issued on
April 30, provide for training and fit-testing of all Re-
spondent's employees "who may be required to wear res-
piratory protection." Welders fall within this grouping.
Specifically, use of respirators is mandated when work-
ing in close quarters.
In August, welders were required to attend respirator
school. There they were fit-tested and instructed in the
selection and use of respirators. Thus, on August 6,
Saunders' supervisor, V. A. Wall, sent him to the respira-
tor school. Saunders arrived after the class had begun.
He was instructed to return another day. On the way
back to his job, Saunders visited the personnel office. He
spoke with Personnel Supervisor David B. Schnake.
Saunders asked Schnake to determine whether Saunders'
respirator restriction was still on record. Schnake exam-
3 Several types of respirator masks were available. Two are relevant
herein. The quarter-face mask imposes pressure on the area of the nose
and across the cheeks of the wearer. The full-face mask produces pres-
sure around the wearer's forehead, behind the cheek bones and across the
chin.
379
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ined Saunders' personnel file. He confirmed the presence
of the restriction. Schnake observed the restriction was 2
years old. He suggested Saunders should undergo the fit-
test to determine whether a problem still existed. Mean-
while, Schnake said he would hold out Saunders' file to
await results.
Saunders returned to his department. He told Wall he
arrived late at the respirator school and had spoken with
Schnake about his medical problem. According to
Saunders, who was uncontradicted on this point, the su-
perintendent of the department where respirators are
stored entered the conversation. Saunders explained his
medical problem to the superintendent. Saunders asked
"if there was any respirator that I [Saunders] could wear
that would take the pressure [off] the cheek and sinus
areas." Saunders credibly testified the superintendent
(who was identified only by helmet markings) responded
affirmatively. The superintendent said the full-face respi-
rator and air line respirator would qualify.
On August 8, Saunders returned to the respirator
school. The instructor declined to fit Saunders because
of his medical restriction. Saunders then reported to
Schnake. He told Schnake of his inability to be fit-tested.
Schnake left the personnel office and walked toward the
office of a superintendent. Saunders waited. A few min-
utes elapsed before Schnake returned. He told Saunders
he was relieved from his welder's duties due to the medi-
cal restriction. Saunders asked whether he could see Re-
spondent's physician to remove the restriction. Schnake
suggested Saunders use his personal physician for that
purpose. Saunders asked whether he could use a different
respirator and whether he might be transferred to an-
other job. Schnake replied transfers were not working
well from the welding department. The record does not
reflect what, if anything, Schnake said about other respi-
rators.
Saunders returned to Wall and told him of his medical
suspension.14 Saunders went home.15 He could not
weld. At that time Respondent's revised policy provided
only "qualified respirator wearers" could be issued respi-
ratory protection. Additionally, the policy provided
"employees who have not been qualified shall not be al-
lowed to work jobs requiring the use of respiratory pro-
tection."
Later that day, Wall conducted a regularly scheduled
safety meeting. Employees in his welding department at-
tended. Welder Coleman described what occurred. Wall
said welders are required to wear respirators except
when welding in open air. Coleman testified he asked
Wall what happened to Saunders. According to Cole-
14 I find, in agreement with Respondent, that Saunders was not termi-
nated on August 8. Documentary evidence (Resp. Exhs. I and 2) reflects
Saunders' understanding that he was merely suspended. Thus, those doc-
uments show Saunders' intention to file a grievance, and to undergo an
examination by his personal physician in order to remove the restriction.
1' There is evidence that Saunders spoke with Wall and Respondent's
construction superintendent. The substance of those conversations is
omitted. The recitation of the facts relevant to the allegations pertaining
to the three alleged discriminatees are a composite of factual stipulations,
unrefuted oral testimony, supporting documents, and other undisputed
evidence. For brevity's sake, only those facts deemed material are set
forth. Not every bit of evidence is discussed. Nonetheless, I have consid-
ered all of it, together with all arguments of counsel. Omitted matter is
considered irrelevant or superfluous.
man, Wall answered that "he had fired Saunders and he
could fire us, too." Employee Bowers testified he also at-
tended the August 8 safety meeting. Bowers claimed he
heard Coleman inquire about Saunders' absence. Bowers
corroborated Coleman's testimony that Wall responded
he had fired Saunders and "that he [Wall] would do the
same for him [Coleman] if he didn't act right." Former
employee Hart testified he also attended the safety meet-
ing. Hart recalled Coleman asked Wall "what had hap-
pened to Saunders . . . and Wall replied that he had
fired him."
In relevant part, Wall recounted that "someone" asked
him what happened to Saunders. According to Wall, he
responded that Saunders had been "passed out, went to
see a specialist, went to get a restriction lifted on wear-
ing a respirator." Wall said he told the employees that
wearing respirators was mandatory. Wall recalled he said
"it's possible that you could lose your job if you refuse
to wear a respirator."
I credit Coleman's account of what Wall said during
the safety meeting. Coleman and Bowers remained in
Respondent's employ when they testified. Testimony of
current employees is entitled to considerable weight be-
cause it is not likely to be false. Such testimony is ad-
verse to an employee's pecuniary interest. Shop-Rite Su-
permarket, Inc., 231 NLRB 500 (1977); Georgia Rug Mill,
131 NLRB 1304, 1305 (1961), modified on other grounds
308 F.2d 89 (5th Cir. 1962). Moreover, Hart, in part, cor-
roborated Coleman and Bowers. Additionally, I note
Wall was vague in his description of the remaining
events of that meeting. Thus, Wall testified he did not re-
member who asked him what the consequences were of
not wearing respirators. Also, when Wall was asked by
Respondent's counsel whether there were subsequent
questions during the meeting, Wall responded "there
probably were, but I don't recall exactly what they
were." As to the balance of the safety meeting, Wall
simply testified a discussion was held regarding "safety
in general."
Upon the foregoing credibility resolution, I find that
Wall told the employees at the safety meeting that he
had fired Saunders.
On October 2 or 3, Schnake telephoned Saunders.
They arranged for Saunders to visit the personnel office
to discuss his status. On October 4, Saunders appeared in
Schnake's office. Schnake asked Saunders about his cur-
rent medical status. Saunders said he had been examined
by his personal physician. Saunders said he was told fur-
ther surgery was necessary. He said he was currently
under a doctor's care. Schnake suggested Saunders com-
plete a transfer request form. He did so. Schnake told
Saunders he should assume he was terminated for medi-
cal reasons if he did not hear from the employment
office within 5 days.
On October 15 Saunders called Schnake. Saunders in-
quired about his transfer request. Schnake told him no
transfers were available.
2. Analysis
The General Counsel contends that Saunders was dis-
charged on August 8 in violation of Section 8(a)(3) and
380
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
(I) of the Act. Respondent submits Saunders was not ter-
minated until October 11 and that termination was solely
for the reason Saunders was medically unfit to perform
his welder's duties.
The General Counsel must prove certain elements to
establish a prima facie case of discrimination. Those ele-
ments are (I) that the affected employee had engaged in
activity protected by the Act, (2) the employer had
knowledge of that activity, (3) the adverse personnel
action imposed upon the employee was motivated by an-
tiunion animus, and (4) that the discipline had the effect
of encouraging or discouraging membership in a labor
organization. The General Counsel has the burden of
proving his case by a preponderance of the evidence.
Gonic Manufacturing Company, Div. of Hampshire Woolen
Company, 141 NLRB 201, 209 (1963).
The 8(a)(1) violations support findings of unlawful mo-
tivation. I have noted that, herein, there is no separate
allegation that Respondent interfered with, restrained,
and coerced its employees in violation of Section 8(a)(l).
Nevertheless, such violations are not necessary to an
8(a)(3) finding. "Actual motive, a state of mind, being
the question, it is seldom that direct evidence will be
available that is not also self-serving. In such case . . .
the trier of fact may infer motive from the total circum-
stances proved .... If he finds that the stated motive
for a discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-at
least where . . . the surrounding facts tend to reinforce
that inference." Shattuck Denn Mining Corporation (Iron
King Branch) v. NL.R.B., 362 F.2d 466, 470 (9th Cir.
1966). The Shattuck Denn principle was quoted with ap-
proval by the Board in Best Products Company, Inc., 236
NLRB 1024, 1025 (1978).
The instant allegation requires me to determine, from
the totality of evidence, whether the asserted reason for
Saunders' discharge actually motivated it. Signal Delivery
Service. Inc., 226 NLRB 843 (1976).
There is ample record evidence Saunders had been en-
gaged in protected activity. The number of employees'
signatures he solicited upon authorization cards attests to
the vigor of that activity. He openly wore union insignia
at work. Saunders was a candidate for vice president of
the Union at the time of his August 8 medical suspen-
sion. He wore insignia revealing his aspiration in that
regard.
I conclude Respondent was aware Saunders was a
union proponent. Wall acknowledged having seen
Saunders wearing union insignia at work. In this context,
I discredit Wall's denial that, on August 8, he knew
Saunders was running for vice president. Wall was
Saunders' immediate superior. Apparently, the two of
them had daily contact. It simply is implausible to be-
lieve that the badge Saunders wore to proclaim his ef-
forts to become vice president escaped Wall's attention.
There is other evidence tending to prove Respondent
was aware of Saunders' union activities. The January
warning given to Saunders was issued explicitly for "so-
licitation." Thus, it is clear Respondent knew of
Saunders' union activities at an early date. Saunders'
warning was placed into his personnel file. Also,
Schnake, who suspended and later discharged Saunders,
admitted examining that personnel folder on August 6
when searching for the 1977 medical restriction form.
Schnake, however, denied he knew Saunders was active
for the Union when Saunders was suspended 2 days
later. Saunders' testimony reflects he wore his union and
campaign insignia during his conversation with Schnake
in August.
The totality of the above-described circumstances
leads me to conclude (I) that the record contains direct
evidence of Respondent's knowledge of Saunders' pro-
tected activities as early as January, and (2) an inference
of such knowledge is warranted through Schnake's
August conduct. The Circle K Corporation, 173 NLRB
713, 714-715 (1968); Sam Tanksley Trucking, Inc., 198
NLRB 312, 316 (1972). Accordingly, I am persuaded the
record as a whole contains substantial evidence from
which I conclude that at all relevant times Respondent
was aware of Saunders' union activity.
Of course, the mere fact an employee is or was partici-
pating in union activities does not insulate him from dis-
charge. N.L.R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 49
(9th Cir. 1970). The Board repeatedly has held that, if an
employee provides an employer with sufficient cause for
discharge for which he would have been terminated in
any event, the discharge will not be held unlawful
merely by showing the employee engaged in union activ-
ity. Golden Nugget, Inc., 215 NLRB 50 (1974); Klate Holt
Company, 161 NLRB 1606 (1966).
It is well established that an employer may discharge
an employee for good reason, bad reason, or no reason at
all. Borin Packing Co., Inc., 208 NLRB 280 (1974); Associ-
ated Press v. N.L.R.B., 301 U.S. 103 (1937); Edward G.
Budd Mfg. Co. v. N.L.R.B., 138 F.2d 86, 90 (3d Cir.
1943), cert. denied 321 U.S. 773 (1944). As noted, it is
the General Counsel's burden to establish discriminatory
motivation. Support for a finding of unlawful motivation
"is augmented [when] the explanation of the [discharge]
offered by the Respondent [does] not stand up under
scrutiny." N.LR.B. v. Bird Machine Company, 161 F.2d
589, 592 (Ist Cir. 1947).
I conclude the record contains the quantum of evi-
dence necessary to establish the required prima facie ele-
ment of union animus. It is true that not all evidence of
animus supports a finding of an unlawful motive. Van
Nuys Publishing Company, 167 NLRB 415 (1967). None-
theless, the following indicia of hostility persuade me
that the instant record supports a conclusion that the
action against Saunders was motivated by unlawful con-
siderations. That evidence is:
(a) Saunders was given a warning for "solicitation." It
is noteworthy that the description of Saunders' infraction
relates he made a "ruckuss" and threatened to shut the
yard down. Thus, the description suggests Saunders was
engaged in misconduct. Yet, he was cited for solicitation.
I consider such a citation revealing of Respondent's sub-
jective condition regarding union activities.
(b) A Board decision (239 NLRB 1028), enfd. Newport
News Shipbuilding and Dry Dock Company v. N.L.R.B.,
607 F.2d 1002 (4th Cir. 1979), demonstrates, I conclude,
Respondent's antipathy toward the Union. In that case,
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board found the Union requested Respondent to
engage in collective bargaining with it as representative
of the certified production and maintenance unit within 5
days after the certification. The Board further found that
Respondent did not honor the Union's bargaining re-
quest. Accordingly, Respondent was held to have en-
gaged in an 8(a)(5) and (1) violation beginning the day
after the Union's demand for bargaining, and continuing
thereafter. In assessing Respondent's motivation it is ap-
propriate to consider Respondent's previous unfair labor
practices. Tarnma Meal Packing Corp., 230 NLRB 116,
126-127 (1977). Though not dispositive of the issue of
Respondent's motivation, I consider the cited Board de-
cision some evidence of Respondent's general hostility
toward the Union.
(c) Respondent's reason for removing Saunders from
his welding job is unconvincing. Employee Turner credi-
bly testified that only 3-4 percent of welders wore respi-
rators since promulgation of the new safety policies. Em-
ployee Coleman similarly testified. He said he had not
worn a respirator since the August 8 safety meeting.
(Coleman, however, conceded that, during that time
period, he observed welders using respirators more fre-
quently than before the safety meeting.) Saunders' un-
controverted testimony is to the effect he worked with-
out a respirator throughout the vast majority of his em-
ployment without incident.
This evidence shows two things. First, that an over-
whelming amount of welding work was performed with-
out employees using respirators. As earlier observed,
Saunders' medical restriction form contains the instruc-
tion to his foreman to attempt to find a job consistent
with this restriction. The quoted phrase is a clear expres-
sion of Respondent's effort to accommodate Saunders'
work duties to his medical limitations. The directive to
do so was inserted on the medical restriction from that at
a time when there was no ostensible union activity.
The testimony of Turner, Coleman, and Saunders indi-
cates the availability of welding jobs not requiring use of
respirators. Indeed, during his cross-examination, Wall
admitted "there are places they [welders] can weld with-
out them [respirators]." Wall also said welding without
respirators actually is done. Also, Respondent's manager
of industrial hygiene, Thornton, testified welding jobs
not requiring the use of respirators have existed since
August 1979.
In these circumstances, I find Respondent's handling
of Saunders' medical restriction critically different be-
tween 1977 and 1979. The question is: Why Respondent
did not pursue its earlier practice of trying to assign
Saunders to work for which his medical restriction
would be no impediment? A fair assessment of all evi-
dence relevant to this question convinces me Respondent
has not satisfactorily responded to this interogatory.
Schnake could have instructed Saunders to return to the
respirator school on or after August 8. There, Saunders
could have been test-fitted for use of the full-faced mask.
This would have eliminated facial pressure on Saunders
which was the cause of his earlier difficulties. I find the
failure to have even suggested this procedure emphasizes
the precipitous manner in which Respondent intended to
deal with Saunders. It also punctuates the difference in
the way Respondent treated Saunders before its aware-
ness of his union activities (1977) and after those activi-
ties became known (1979). The absence of reasonable ex-
planations for unlawful discrimination supports an infer-
ence of unlawful motivation. See Paramount Metal &
Finishing Co., 225 NLRB 464 (1976).
Second, Respondent's reliance on the need for use of
respirator requirement is exaggerated. Thornton present-
ed voluminous and extensive evidence regarding the gen-
esis of the safety policies promulgated in 1979. The
thrust of that evidence shows there are, as Respondent
"contends, numerous jobs which welders must perform
that require the use of a respirator." In effect, the new
rules mandate use of that equipment when performing
those jobs. However, as shown above, it is equally estab-
lished that many welding jobs require no respirator. In
effect, Respondent seeks to translate the requirement that
respirators be worn when performing certain jobs into a
requirement that all welders must wear respirators. I
conclude the evidence contradicts such logic. Indeed,
Respondent's policies virtually belie the existence of the
asserted policy. Thus, the new rules state "the purpose
. . [of the policy] . . . is to establish a system whereby
respirators will be properly selected, used, and main-
tained in a manner which will afford employees maxi-
mum protection from exposure to airborne contaminants
and oxygen-deficient environments." (Resp. Exh. 5, p. 1,
sec. 8.) The policies do not explicitly make wearing res-
pirators a job requirement for welders. Those policies
only describe the circumstances commanding use of res-
pirators. Still another document supports my conclusion.
Thus, a memorandum dated June 6 (Resp. Exh. 6) was
issued specifically "to identify specific welding questions
or situations that require the use of respiratory protec-
tion." Following the quoted language, the memorandum
lists specific welding functions where respirators are to
be worn. That memorandum contains no mention that all
welders were required to wear respirators. Upon the
foregoing, I conclude Respondent's defense is based on
factual distortion. This conclusion supports the General
Counsel's cause.
(d) Wall, by implication, exhibited union animus. I
have found Wall told a group of employees, on August
8, that he discharged Saunders. The General Counsel
presented this evidence to demonstrate the existence of
unlawful motivation. I agree it accomplishes this pur-
pose.
Conceivably, Wall's discharge reference may be inter-
preted as a permissible warning of the consequences of
failure to follow the new safety regulations. However,
the factual predicate for such an interpretation is missing.
Saunders had not refused to comply with the regulations.
He went to school as directed. It was the respirator in-
structor who declined to test-fit Saunders. Moreover,
Saunders actually had not been discharged. Viewed in
this context, Wall's words became irrelevant to the stated
purpose of discussing safety and the new rules. I con-
clude Wall's words had no legitimate purpose.
Why, then, did Wall make the discharge comment? As
there was no apparent basis for Wall's words, it is not
unreasonable to presume he harbored an undisclosed
382
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
reason to make them. Given the entire context of Re-
spondent's prior history of dealing with Saunders' medi-
cal restriction and the advent of his union activity which
reached a crescendo with his vice presidential candidacy,
I conclude it reasonable to infer the true motive for
Wall's comment was to impliedly signal the other em-
ployees that union activity could place their jobs in jeop-
ardy. Thus, I conclude the record as a whole demon-
strates the reference to Saunders' "discharge" is further
evidence of unlawful motivation.
(e) The timing of Saunders' August 8 suspension is co-
incidental with his increased union activity. Coincidence
in protected activity and discipline of employees is a
strong factor supporting an inference of unlawful motiva-
tion. McGraw-Edison v. N.L.R.B., 419 F.2d 67 (8th Cir.
1969); N.L.R.B. v. Harry F. Berggen & Sons, Inc., 406
F.2d 239, 245 (9th Cir. 1969), cert. denied 396 U.S. 823.
As noted, Saunders was actively engaged in seeking a
union vice presidency on August 8.
In other circumstances, Respondent might well take
comfort from the fact that no adverse personnel action
was imposed upon Saunders during the approximately 6
months it knew of his union activities as evidenced by
the January warning. Resolution of an employer's
motive, especially by inference, is a difficult task. It re-
quires a trier of fact to disentangle truly subjective fac-
tors. To do so, requires a search for objective manifesta-
tions and conduct.
The time elapsed from Respondent's first knowledge
of Saunders' union activity to his suspension is one foun-
dation for motivational resolution. Thus, the 6-month
delay in acting against Saunders militates in favor of Re-
spondent. However, a significant event intervened.
Saunders sought to be union vice president. In all the in-
stant circumstances, particularly Respondent's general
opposition to the Union demonstrated by its refusal to
bargain, it is not unreasonable that Respondent was af-
fected by Saunders' candidacy. On the state of this
record, it is not unreasonable that Respondent became
disturbed at this event. Such disturbance logically ex-
plains the precipitous change in coping with Saunders'
medical limitations. Accordingly, I conclude the suspen-
sion on August 8 and Saunders' attempt to be elected a
union officer is more than sheer coincidence and evi-
dence of unlawful motivation. 6
Upon all the foregoing discussion of animus, I con-
clude Saunders' August 8 suspension and October 11 dis-
charge were motivated by unlawful considerations.
I now turn to the General Counsel's contention that
Respondent's defense is a pretext. As noted, Respondent
asserts Saunders was terminated only because his medical
restriction prevented his compliance with "a mandatory
job requirement for all welders at the Company after the
new procedures were implemented." Thus, Respondent
contends the August 8 suspension was imposed as soon
as Schnake learned of Saunders' inability to meet the
new requirements by information that the respirator in-
structor declined to test-fit Saunders. Respondent further
urges the October I I discharge resulted from the infor-
16 This conclusion is buttressed by the finding which I shall make ifru
that Respondent acted discriminatorily against Sawyer soon after he
became a union officer.
mation that Saunders continued to be restricted and, as a
result of Saunders' August medical examination by pri-
vate physician, he would require additional surgery.
I acknowledge the efficacy of Respondent's effort to
establish more stringent respirator safety requirements.
Respondent had a right and, indeed, an obligation to
revise its policies. They emanated from the investigation
by OSHA begun in late 1978. The General Counsel does
not challenge the institution of the new rules.
However, the following factors tend to negate applica-
tion of those rules as a cause for the actions taken against
Saunders:
First, Respondent altered its practice of dealing with
Saunders' medical deficiencies. It is uncontested
Saunders had been a capable employee for approximately
2 years. There is no evidence Saunders had difficulty
performing the general scope of welding activities. The
failure to afford Saunders an opportunity to perform
welder's work which required no respirator is unex-
plained. Contrary to Respondent's contentions, I have
found the new policies do not establish wearing a respi-
rator as a job requirement for welders. Thus, I conclude
Respondent's reliance on the existence of the new rules
shallow, at best:
Second, alternate equipment was available for
Saunders' use. Material Supply Clerk Holland described
various types of available respirators. His testimony
shows the full-face mask was capable of avoiding pres-
sure upon the damaged portions of Saunders' face. Simi-
lar equipment is identified, also, in the new safety regula-
tions. As earlier suggested, the evidence reveals no effort
whatsoever by Respondent to fit Saunders with another
type respirator to avoid recurrence of facial damage. The
failure to attempt such an accommodation, in my opin-
ion, is reflective of an effort to grasp the existence of the
new regulations as a subterfuge to disguise Respondent's
true intent. The failure to seek alternative means to
retain Saunders while concurrently relying on the exis-
tence of the new regulations, the import of which has
been distorted, diminishes the validity of Respondent's
asserted reason for its actions relating to Saunders.
In sum, I conclude the record sufficiently demon-
strates the asserted defense is pretextual. It follows that
the reason ascribed by Respondent for its actions as to
Saunders is unlawful. Keller Manufacturing Company, 237
NLRB 712, 717 (1978) (Alice Meyers).
Assuming arguendo I would conclude there are justifi-
able causes for Saunders' suspension and discharge, I
nonetheless conclude the totality of the record demon-
strates a substantial and motivating ground was his pro-
tected activity. Dilene Answering Service, Inc., 222 NLRB
462 (1976); K B M Electronics. Inc., 218 NLRB 1352,
1358 (1975).
Upon all the foregoing, I find Saunders' suspension
and discharge reasonably have the effect of discouraging
or encouraging membership in a labor organization.
Saunders' perception of what occurred to him surely
must contain an impression of futility in pursuing his stat-
utory rights. First, he was warned for solicitation. Com-
paratively speaking, this warning constitutes a mild ad-
monition in opposition to protected activities. His em-
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's response to the increased activity (running for
union vice president) was met with an apparent depar-
ture from prior practice and the more severe penalty
under consideration herein. I can think of no other em-
ployer conduct than that visited upon Saunders in the in-
stant circumstances which would tend to have a more
chilling effect upon the free exercise of employee rights
guaranteed in the Act.
Additionally, as noted above, Wall's August 8 remark
concerning Saunders' "discharge" comprises a signal to
other employees that they should be wary of engaging in
protected activities. I conclude such a signal evinces the
proscribed effect.
There remains for consideration the nature of the dis-
cipline imposed on Saunders and their dates. The com-
plaint (par. 8 as amended at the hearing) alleges
Saunders' employment was discriminatorily terminated
on August 8. In his brief, counsel for the General Coun-
sel avers that he "believes that August 8 was the effec-
tive date of termination" because Saunders "never re-
turned to work after August 8." The brief, however,
concedes Saunders was not formally terminated until Oc-
tober 11. All other evidence on this subject, as related by
Saunders and Schnake, reflects the latter fact.
In earlier places in this Decision, I have referred to the
August 8 incidents relative to Saunders as a suspension.
This formulation is derived from Schnake's uncontested
testimony that he relieved Saunders from his welding
duties on that date. In the context of this case, it is argu-
able that Saunders was effectively discharged on August
8. However, I conclude the interests of precision are best
served by characterizing the August 8 personnel action
imposed on Saunders as a suspension. Further, I con-
clude the allegations of complaint paragraph 8 are suffi-
ciently broad to encompass a suspension. Whether called
a discharge or suspension, I find the issue has been fully
litigated. In any event, a characterization of the August 8
event does not alter the remedy which I shall recom-
mend.
Upon all the foregoing, I find that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by suspending
Saunders on August 8 and also find those sections of the
Act were violated by Respondent discharging Saunders
on October 1.
C. Ralph S. Sawyer
I. The facts
Sawyer was a pipefitter from September 1969 until his
discharge on August 15. At all relevant times his super-
visor was Daryl C. Rickmond.
In addition to Sawyer's union activities described her-
einabove, he was named as the union official to receive a
response from Respondent to a letter dated August 14 re-
questing employee access to an OSHA form on which
Respondent was required to record all occupational in-
juries and illinesses. The record shows the Union's re-
quest for production of the OSHA form was received by
Respondent on August 15.
The General Counsel contends "Sawyer's substantial
union activity and the safety activity" caused his dis-
charge. Respondent asserts Sawyer was discharged be-
cause he "blatantly failed to follow a direct order by his
foreman, Rickmond, that his equipment was to be dis-
connected and put away properly before Sawyer left the
shipyard."
Credibility of the respective witnesses for the opposing
litigants is critical to determination of Sawyer's case.
Specifically, resolution of credibility determines whether
I should adopt the General Counsel's or Respondent's
version of the nature of the instruction given by Rick-
mond to Sawyer.
The ultimate choice in making findings of fact as to
Sawyer's (and also Saunders') case is based on my obser-
vation of witness demeanor, unrefuted testimony, the
weight of the respective evidence, established or ad-
mitted facts, inherent probabilities and reasonable infer-
ences which may be drawn from the record as a whole.
Northridge Knitting Mills, Inc., 223 NLRB 230, 235
(1976); Warren L. Rose Casting, Inc., d/b/a V & W Cast-
ings, 231 NLRB 912, 913 (1977); Gold Standard Enter-
prises, Inc., 234 NLRB 618 (1978).
As to Sawyer, the operative facts essentially are undis-
puted. However, as noted, there remains a critical con-
troversy concerning the nature of the order Rickmond
gave to Sawyer. In the credibility contest between the
witnesses presented by the General Counsel and those on
behalf of Respondent on this issue, a fair assessment of
the testimony presented by each persuades me that the
versions presented by the General Counsel witnesses are
the most reliable. I found Sawyer direct, forthright, and
internally consistent. He was unshaken in material mat-
ters during cross-examination. His testimony comports
with past practice. In some respects, he was corroborat-
ed by Respondent's witnesses. 7
In contrast, Rickmond's testimony, particularly regard-
ing the nature of the order given by him to Sawyer, was
considerably more generalized. In general, Rickmond's
testimony was less precise. As will be shown below, I
conclude Rickmond tended to exaggerate the specificity
of his directive to Sawyer. In that connection, it will be
shown that Rickmond sought to convert a generalized
instruction to Sawyer into one which would be consid-
ered specific. Finally, Rickmond's version of the order
which Sawyer is supposed to have ignored is at variance
from the description of the same event provided by Re-
spondent's supervisor, Williams.
There is substantial agreement upon the factual back-
ground of the "order." Thus, on August 9, Sawyer told
Rickmond he was ill and might leave work early. The
conversation occurred when the workday began. By ap-
proximately 9:30 a.m., Sawyer's condition had not im-
proved. He felt compelled to go home. That morning,
Sawyer worked with a helper, Clark Little.
Approximately 10:30 a.m., Rickmond appeared at the
jobsite. Sawyer told Rickmond he was not feeling better
and wanted to go home. They discussed the work Little
should do during Sawyer's absence. Sawyer had been
'7 I have observed certain discrepancies in Sawyer's description of
events. I find none of them relate to crucial issues hus. I conclude they
do not detract from his overall credibility. A trier of fact is not required
to believe the entirety of a witness' testimony. Muximum Precision Metal
Products, Inc.. Renault Slumping Ltd.. 236 NLRB 1417 (1978).
384
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
using a torch to perform his work. Gas is provided the
torch through two hoses connected to a manifold. The
manifold is the source of gas and oxygen. If a pipefitter
disconnects the hose during working hours, or fails to
hook to the manifold within a few minutes from the start
of his shift, other employees may use the hose. Apparent-
ly, employees jealously guard their hoses because they
are in short supply.
To assure its availability on Sawyer's next workday,
Sawyer told Rickmond he would leave his brazing torch
hooked up. Rickmond said he did not want Little work-
ing with the torch. It is disputed whether Sawyer said he
would get employee Foster, a more qualified employee,
to disconnect the torch later in the day or whether Rick-
mond himself volunteered to instruct Foster to do so.
For the reasons previously noted I credit Sawyer's ver-
sion that Rickmond said "he himself' (Rickmond) would
ask Foster to disconnect the lines. This finding is consis-
tent with Rickmond's effort, later that day, to get Foster
to disconnect the hose lines. Rickmond told Sawyer to
report to the office for his timecard.
Sawyer stopped working. He left his gas line and
torch at the jobsite. He closed off the flow of gas at the
manifold. Sawyer then went to the office to punch out.
Rickmond and Sawyer conversed in the office. Vary-
ing versions of this discussion were presented. A credi-
bility issue results.
Sawyer testified in relevant part: Rickmond asked
"What have you done about your torch line?" Sawyer
claims he said, "We just discussed the torch line not 10
minutes ago." Rickmond responded, "Oh, okay." Rick-
mond repeated he did not want Little to make the dis-
connection. Sawyer assured Rickmond that Little would
not do so. Sawyer said, "Mr. Foster's going to take the
gauges off." Rickmond retorted, "Well, you know, if
Foster doesn't take the gauges off you'll be held respon-
sible." Sawyer said he understood that and trusted
Foster. Sawyer ended, "He's [Foster] done it for me
before, he'll take care of it. "1 8
Rickmond agreed with Sawyer's narration up to, and
including, the point where Rickmond asked Sawyer
what he did with the torch line. Then, Rickmond's testi-
mony varies. Thus, Rickmond testified Sawyer said the
torch lines had not yet been pulled up. Rickmond
claimed Sawyer then said Foster would disconnect the
lines. Rickmond then asserted he told Sawyer he
"wanted that torch line loose and pulled back before he
[Sawyer] left. And he said he had it taken care of, and
that was all that was said at that time." (Emphasis sup-
plied.)'9
Supervisor Williams' version substantially differs from
that of Rickmond. Thus, Williams testified Sawyer in-
formed Rickmond the torch remained at the jobsite. Wil-
liams' testimony then conforms to Sawyer's. Specifically,
Williams recalled Sawyer said Foster would make the
18 Rickmond acknowledged that Foster had perfirmed that task fior
Sawyer approximately 2 weeks before August 9.
19 During his direct testimony, Rickmond twice restated his direcive
in somewhat different terms. Contrary to the General Counsel, I do not
consider such restatements change the import (lf Rickmond's "order."
Accordingly. I find Rickmond's "order" fairly represented b the quoted
testimony
disconnection. Then, Williams' testimony differs from
both Sawyer's and Rickmond's. Thus, as to the disputed
"order," Williams testified, "Mr. Rickmond told him
[Sawyer] that he wanted that-wanted the torch discon-
nected by him, by Sawyer, that he [Rickmond] didn't
want . .. Clark] Little messing with it because he was'
not qualified, that the torch was the responsibility of the
man that it was checked out to and he wanted it put up
before he (Sawyer] left." (Emphasis supplied.) 20 In my
opinion, the emphasized words contained in the above-
quoted testimony of Rickmond and Williams reveal a
critical inconsistency in Respondent's evidence. This in-
consistency adversely impacts upon reliability of the
named Respondent's witnesses.
As already noted, Sawyer's version was undisputed
during his cross-examination. Accordingly, I adopt Saw-
yer's testimony regarding the August 9 conversation in
the office as my findings of fact of that incident. 2 l
Sawyer went home. Shortly afterward, Rickmond re-
turned to the place where Sawyer had been working. He
found Sawyer's torch hung up but the gauges still con-
nected to the manifold. Little was in the process of pull-
ing back the lines. When questioned by counsel for the
General Counsel concerning whether he found the gas
source had been turned off, Rickmond's response was
evasive. The following colloquy between counsel for the
General Counsel and Rickmond demonstrates this point:
[By Mr. Glynn] Is it also not correct that you
found . . . the gas at the source had been turned
off?
A. I can't remember whether it was turned off or
not . . . .
Q. You didn't bother to check?
A. I tried to get Mr. Foster to take it [the
gauges] loose.
Q. You didn't bother to check to see if it was
turned off or not?
A. I didn't do it, no.
Q. You didn't check, correct?
A. It was cut off at the torch, not at the mani-
fold.
Q. You know it was cut off at the torch, you
don't know whether it was cut off at the manifold?
A. No, I know it was cut off at the torch.
Q. You don't know whether it was turned off at
the manifold? You don't know?
A. Right.
Q. And you did not check?
A. Correct.
The above testimony is also confusing. In sum, I find it
demonstrates Rickmond exaggerated to his benefit. The
colloquy also shows Rickmond's effort to shade his testi-
mony in a light most favorable to Respondent. Clearly,
Rickmond attempted to contradict Sawyer's testimony
"' Personnel Supervisor Tabb also presented a version of the "order"
Tabh's testimony is based solely on a self-serving report of the incident
by Rickmond to 'abhh. I find this hearsay testimony of little probative
value in niaking my factual ad credibility resolutions
zl This is especiall) appropriate because much of Sawyer's narration
was corrobolralcd b Rickmond and Williams
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had turned off the gas at its source, the manifold.
The above-cited testimonial abstract indicates Rick-
mond's willingness to contradict Sawyer. That effort
fails. Rickmond finally acknowledged he actually was in
no position to make such a contradiction because he had
, not investigated whether the gas had been cut off at the
manifold. This testimony of Rickmond diminishes his re-
liability as a witness.
Later, Foster disconnected the gauges at Rickmond's
request. Rickmond then conferred with his general fore-
man and also Tabb. There is no description of the con-
versation with the general foreman. I shall not recount
the conversation between Rickmond and Tabb because I
find it totally self-serving.
Sawyer returned to work August 15. Rickmond asked
him how he was feeling. Later that morning, at approxi-
mately 9:30 a.m., Rickmond summoned Sawyer to the
personnel office. There, they met with Tabb and
Foster. 22 Tabb charged Sawyer with having committed
a safety violation. Discussion ensued. Sawyer protested
he had not violated safety regulations on August 9. Ap-
parently, Tabb could not be explicit concerning the al-
leged safety violation. Tabb then declared, "Well, there's
this thing about you not doing what Rickmond [instruct-
ed]." Sawyer asked whether he was being interviewed
for a safety violation or not carrying out an order. Tabb
declared, "I am going to discipline you for one of them."
Foster and Sawyer were asked to leave the room. As
they left, Sawyer observed Tabb making a telephone
call. They were asked to return. Tabb announced
Sawyer was "going to be disciplined for failure to follow
a supervisor's instructions." Sawyer asked Tabb to de-
scribe the instructions. Tabb said, "Mr. Rickmond told
you to pull torch line up before leaving the job and you
refused to do this." Sawyer disclaimed he refused to
follow Rickmond's instructions. Tabb said Williams was
a witness to the instruction. Tabb asked Rickmond for
his recommendation for discipline. Rickmond recom-
mended Sawyer be discharged. Tabb told Sawyer he was
discharged.
Yard rule 4 provides the discipline of discharge for a
"refusal to follow directions or instructions." Disciplin-
ary report forms for all employees discharged by Re-
spondent since January 1, 1979, are in evidence. Analysis
of those records shows the existence of direct and explic-
it supervisory instructions. Moreover, in many instances
the noncompliance with those instructions was attended
by acrimony and harsh language. Also, the supervisory
directives had been ignored after being reiterated by the
supervisors.
2. Analysis
Sawyer's protected activity was substantial. He ob-
tained a multitude (approximately 100) of employee sig-
natures on union authorization cards. He wore union in-
22 Foster did not appear as a witness. I draw no adverse inference
from this situation. Near the hearing's close, I attempted, without success.
to ascertain Foster's current status. Respondent's counsel announced he
was not familiar with Foster's current status. If Foster were still em-
ployed by Respondent. he was equally available to both parties. See
Local 259, United Automobile, Aerospace and Agricultural Implement
Workers of America (Atherton Cadillac. Inc.), 225 NLRB 421, fn. 3 (1976).
signia at work in the presence of supervisors. Evidence
not heretofore discussed shows Sawyer frequently
voiced complaints regarding safety to his supervisor.
Sawyer was a member of the Union's safety committee
and became its chairman. On August 10, Sawyer became
union secretary. Finally, Sawyer was named in the
Union's August 14 letter as the responsible union official
to receive Respondent's OSHA log.2 3
From all the foregoing, including the adverse infer-
ence to which I have referred in the immediately preced-
ing footnote, I conclude the record evidence proves Re-
spondent, at all material times, had direct knowledge of
Sawyer's activities.
As previously noted, the record demonstrates the exis-
tence of Respondent's antiunion hostility. Some of the
supporting evidence and analysis is contained supra,
within the discussion of Saunders' case. There is such
evidence particularly relating to Sawyer.
Specifically, the timing of Sawyer's discharge provides
the basis of a showing of hostility. In its brief, Respon-
dent argues "the decision to discipline Sawyer was made
on August 9." The facts do not support this argument.
According to Rickmond, he discovered Sawyer's derelic-
tion on August 9. On that date, he reported his findings
to Tabb. Tabb purportedly investigated. On that date,
Tabb spoke with both Rickmond and Williams. Thus, it
was on August 9 that the immediate discharge autho-
rized by yard rule 4 could have been imposed.
Respondent asserts the delay in taking action against
Sawyer was due to a request by Tabb of Rickmond and
Williams to reduce the Sawyer incident to writing. Other
such memoranda are in evidence pertaining to nine other
employees who had been discharged for violation of
yard rule 4. Curiously, no party introduced a similar dis-
ciplinary report form, nor any other memorandum, re-
garding the Sawyer incident. If such memoranda ever
existed, it reasonably may be presumed such was avail-
able on the dates of the instant hearing. Also, it may be
presumed those documents would have been in Respon-
dent's possession. Respondent's failure to produce such
evidence casts doubt upon its very existence. Moreover,
if such memoranda were in existence, Respondent's fail-
ure to produce them gives rise to an inference that their
contents would be adverse to Respondent. Penn Indus-
tries, Inc., 233 NLRB 928 (1977). Accordingly, I reject
Respondent's contention that the decision to discharge
Sawyer had been made on August 9.24
2' It is conceded the letter was received on August 15. I shall find.
infra, no merit to Respondent's claim the decision to discharge Sawyer
was made before that date. Respondent offered no evidence to show the
Union's letter had not been received before the termination decision. I
conclude the General Counsel's introduction of the postal return receipts
which show delivery on August 15 shifts the burden to Respondent to
demonstrate the letter had been received after it made the decision to dis-
charge Sawyer. The failure to produce such evidence permits the adverse
inference, which I make, that Respondent knew of Sawyer's part in the
request for the OSHA log before the discharge.
24 Additionally, it is noted Tabb started the August 15 discussion by
advising Sawyer he was there to discuss safety violations. It was only
after Sawyer requested specifications that Tabb shifted to the topic of in-
subordination. This sequence belies the claim the discharge decision was
made earlier than August 15
386
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
I find other factors more cogent evidence of Respon-
dent's animus and motivation. First is the fact Sawyer
became union secretary on August 10. Second is the fact
that the Union's request for the OSHA log was received
on the very day of discharge. Respondent argues there is
no proof the personnel who actually terminated Sawyer
were aware of tne so-called OSHA letter before the dis-
charge. Respondent urges it was the General Counsel's
burden to adduce such evidence. I agree, and find he
met his burden. Thus, as noted above, the General Coun-
sel introduced the return postal receipts. In the circum-
stances, I have concluded the burden of proof then shift-
ed to Respondent to prove the precise time of receipt.
Tabb denied knowledge of the letter until late August
or September. Rickmond was asked no questions about
the letter. It is interesting to note that Sawyer testified
Tabb made a telephone call to an unidentified individual
at the time he and Foster were excused from the person-
nel office on August 15. Though I will not speculate
upon the identity of the individual Tabb phoned, the to-
tality of the circumstances leads me to discredit Tabb's
denial of knowledge. Indeed, the circumstances herein
warrant an inference that the call was made regarding
the subject matter of the conference among Tabb, Rick-
mond, Sawyer, and Foster. I find it unlikely that the
conference would have been interrupted, and the em-
ployees temporarily excused, for irrelevant consider-
ations.
Upon the foregoing, I find the credited evidence sup-
ports a conclusion that a moving cause of Sawyer's dis-
charge was his election to Union office and increased ac-
tivity regarding safety conditions.
There is other evidence which I conclude tends to
prove the proffered defense is pretextual. This evidence
is outlined below.
(a) Sawyer was treated in a disparate manner. As
noted, the record contains documentary evidence show-
ing that other employees were discharged for failure to
comply with supervisory orders. That evidence, in part,
supports Respondent's claim that discharge was the cus-
tomary discipline for such derelictions. However, my ex-
amination of those documents persuades me there are
crucial differences in Sawyer's situation. In each other
case, the order disobeyed by the affected employee was
clear, concise, and unambiguous. Additionally, many of
those other cases involved such things as acrimonious
confrontations between employee and supervisor.
Sawyer's case is different. The instant record shows
Rickmond's order rather undefined. It was imprecise.
Indeed, as noted, the verbalization of the order as testi-
fied by Rickmond and Williams provide different param-
eters. Rickmond's account shows he requested the dis-
connection to be made before Sawyer left the ship. Wil-
liams' version shows it was Sawyer who personally was
to have disconnected the hoses. Rickmond did not so tes-
tify. Rickmond and Williams did agree that the hoses
were to be disconnected.
There is no dispute, as Respondent emphasizes, that
Sawyer did not disconnect the hoses. I agree the record
shows Sawyer made no arrangements for the disconnec-
tion. However, faced with the confused state of events, I
find it plausible that Sawyer could have relied on Rick-
mond's original statement that he (Rickmond) would get
Foster to make the disconnection.
It is true, as Respondent claims, that a personal con-
frontation was virtually impossible until Sawyer returned
to work 6 days after the incident. Nonetheless, upon
Sawyer's return he engaged in no such misconduct
toward Rickmond as apparently attended the discharges
of the other employees whose cases appear in the record.
Indeed, there is evidence that Rickmond sought to
avoid a confrontation. Thus, when Sawyer reported to
work on August 15, Rickmond greeted him by casually
inquiring as to the state of Sawyer's health.
If, as Respondent contends, Sawyer was disciplined
with the uniformity it claimed, it is likely (I) more imme-
diate summary action would have been imposed, and (2)
Rickmond would have raised the issue in some way with
Sawyer early upon his return to work.
I consider the failure to call Sawyer's attention to his
neglect to have the hoses disconnected a sufficient di-
gression from past practice to constitute it evidence of
disparate treatment, especially when coupled with the
other indicia of unlawful motivation and pretext con-
tained in the record.
(b) The decision to discharge Sawyer was made and
imposed in a precipitous and suspicious manner. The ter-
minal interview began by Tabb attempting to cite
Sawyer for a safety violation. To subscribe to Respon-
dent's assertions makes it reasonable that Tabb would
have immediately confronted Sawyer with a charge of
insubordination. The discharge and insubordination final-
ly congealed after the intervening phone call made by
Tabb when Sawyer and Foster were asked to leave the
office. I have already rejected the claim the discharge
had been made on a date earlier than August 15. In toto,
these events support a conclusion the defense was con-
trived to absolve Respondent in the instant proceedings.
I am sympathetic to Respondent's need to maintain
discipline. However, that need must be balanced against
employees' statutory rights. On the state of this record, I
cannot conclude Sawyer's actions amounted to such in-
subordination as warranted the severe disciplinary action
imposed upon him.
First, Respondent vacillates in setting forth the
"order" allegedly violated. Thus it is difficult to deter-
mine, with certainty, whether Sawyer had been punished
for (a) leaving before the hoses were disconnected, (b)
not disconnecting the hoses himself, (c) not asking Foster
to disconnect the hoses, or (d) falsely telling his supervi-
sors he arranged for Foster to make the disconnection.2s
Second, there is a real doubt that any order claimed
by Respondent actually was given. The credited testimo-
ny shows Rickmond, at first, volunteered to have Foster
disconnect the hoses. I have scrutinized the various ver-
sions of the August 9 confrontation in the office. I con-
clude whatever narration is adopted is not materially in-
consistent with Sawyer's claim Rickmond said he would
arrange matters with Foster. Nowhere in Rickmond's
narration of the office dialogue did he expressly claim he
argued with Sawyer's statement that Foster would dis-
12 I discount rcason (d) because it surfaced after the August 15 dis-
charge
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connect the line. Thus, Rickmond implicitly agreed
Foster could do the work. Rickmond's claim he cau-
tioned the disconnection should be made before Sawyer
left the yard does not, itself, eliminate Foster from doing
that job. At most, Rickmond's statement, imposes a time
limitation. It does not impose the task on a particular
person. Of course, Williams' testimony attributes words
to Rickmond which explicitly directed Sawyer to make
the disconnection. I simply cannot rely on Williams' ac-
count. It patently is at variance with Rickmond's own
version.
Third, when initially confronted on August 15,
Sawyer was not immediately charged with insubordina-
tion.
These factors support a conclusion that Sawyer's dis-
charge was motivated by a reason other than mainte-
nance of discipline. In this connection, Sawyer's work
history has been considered. He was an employee of
long tenure. No evidence was adduced to show he had
been other than an exemplary employee. Even the
August 9 and 15 activities show Sawyer had not been
disorderly or extraordinarily disrespectful to his superi-
ors. In this context, the interjection of Sawyer's in-
creased union and other protected activities looms as a
substantial and motivating cause for his discharge.
Upon all the foregoing, I find that the preponderance
of credited evidence supports the allegation that Respon-
dent discriminatorily discharged Sawyer on August 15 in
violation of Section 8(a)(l) and (3) of the Act.
D. Melanie R. Luckadoo
I. The facts
As to Luckadoo, the facts are largely undisputed.
Luckadoo was employed as a welder for 26 months
prior to July. Before July 26, she had been disciplined
numerous times.26 In January, Luckadoo received a 5-
day suspension for absenteeism.
The personnel office conducted recurring reviews of
employee attendance. Such a review revealed continuing
absences by Luckadoo since January. Schnake requested
Luckadoo's supervisor, William Wallace, to summon
Luckadoo to the personnel office.
On July 26, Wallace asked Luckadoo to go to the per-
sonnel office with him. He told her they would discuss
her attendance. Luckadoo testified she asked that an-
other employee, Caldwell, accompany her as her repre-
sentative, but Wallace denied that request.2 7 According
to Luckadoo, Wallace claimed Caldwell was not in
Luckadoo's immediate work area. Luckadoo and Wal-
lace agreed that Luckadoo then asked that employee
Turner accompany her to the personnel office. Wallace
denied this request. He claimed either that Turner was
not in Luckadoo's work area or he did not know Turn-
er's work location. Instead, Wallace suggested Luckadoo
26 Respondent maintained a system of progressive discipline for viola-
tion of yard rule 22 (excessive absenteeism and tardiness). That discipline
involved, in successive order, oral warning, written arning, 3-day sus-
pension, 5-day suspension and, finally, discharge.
27 Wallace testified he did not remember whether Luckadoo asked for
Caldwell. I shall comment regarding this matter infra.
be accompanied by Bowman, another welder in Lucka-
doo's area. Bowman agreed to accompany Luckadoo.
Luckadoo, Bowman, and Wallace went to Schnake's
office. Bowman acknowledged his union affiliation. 28
Schnake confronted Luckadoo with a series of absences
in May and June. He questioned her regarding them.
Luckadoo provided explanations. Schnake listened. He
agreed to conduct a further investigation. Schnake testi-
fied he "postponed" the meeting. 29 Schnake said he
would be in contact with Luckadoo in the future. There
is no evidence that Bowman said anything regarding the
subject matter of the meeting. 3 0
Schnake examined some records and interviewed indi-
viduals who had been Luckadoo's supervisors during the
absences in question. Schnake engaged in this activity
after he met with Luckadoo on July 26.
The next day, Friday, July 27, Schnake called Wallace
and asked him to return Luckadoo to the personnel
office. Luckadoo was on vacation that day. The meeting
with Luckadoo was arranged for July 30.
On July 30, Wallace asked Luckadoo to accompany
him to Schnake's office. Luckadoo asked Wallace to pro-
vide Turner as her representative. She made the request
several times. Wallace consistently denied it. Wallace
suggested that Bowman again act as Luckadoo's repre-
sentative. However, Bowman declined. 3 ' Luckadoo re-
peated her request for Turner. Wallace continued his
denial of that request. Wallace asked Luckadoo to waive
the presence of a representative in writing. Luckadoo re-
fused to waive.
Wallace took Luckadoo, without a representative, to
Schnake's office. Schnake's uncontradicted testimony re-
flects he spoke privately with Wallace before addressing
Luckadoo. According to Schnake, whom I credit in this
regard, he reviewed the result of his investigation of
Luckadoo's July 26 assertions. In essence, Schnake told
Wallace he had not been satisfied. They agreed Lucka-
doo should be discharged.
Schnake then spoke with Luckadoo. Wallace was pre-
sent. Schnake reported the result of his investigation to
Luckadoo. He told her he considered her absenteeism to
be excessive. Luckadoo attempted to offer additional ex-
planation. Schnake cut her off. Luckadoo testified, in rel-
evant part, "Mr. Schnake just submitted his evidence and
he really didn't care what I had to say." Schnake asked
Wallace for a disciplinary recommendation.3 2 Schnake
and Wallace testified that Schnake asked Wallace for his
recommendation. Wallace testified he recommended dis-
charge. Luckadoo acknowledged Schnake asked for the
recommendation but that Wallace said he preferred not
to give one because he had been Luckadoo's supervisor
Zs It is noted Luckadoo had not explicitly requested union representa-
tion at this conference.
29 Wallace testified Schnake "suspended" the meeting. This distinction
is not critical.
3o Bowman did not testify at the instant hearing.
31 Bowman was concerned his attendance in an apprentice school
might be jeopardized if he represented Luckadoo.
12 Apparently, Respondent's managerial officials customarily engaged
in this perfunctory procedure. Sawyer was treated in a similar manner.
388
NEWI'ORT NEWS SHIPBUILDING & DRY DOCK CO.
for only a brief period of time. 3 Schnake told Luckadoo
she was discharged, effective immediately.
2. Analysis
The General Counsel contends that Respondent un-
lawfully failed to provide Luckadoo with the representa-
tional rights conferred by the Supreme Court in
N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), on
July 26 and again on July 30. Additionally, Luckadoo's
July 30 discharge is ascribed to her request for such rep-
resentation.
The Weingarten theory is predicated upon the failure
of Respondent to have provided Luckadoo with the rep-
resentative of her own choosing at the two conferences
with Schnake. Specifically, the General Counsel claims
that the failure to provide Turner as Luckadoo's repre-
sentative effectively deprived her of her representational
rights.
Respondent claims it complied with its legal obliga-
tions to provide Luckadoo with a representative during
an investigatory interview involving discipline. As to
July 26, Respondent claims that Bowman's presence ful-
fills the Weingarten requirement. Also, Respondent as-
serts the July 30 conference was held merely to inform
Luckadoo of the discipline and, under the rule of Baton
Rouge Water Works Co., 246 NLRB 995 (1979), there
was no requirement for the presence of a representative.
Upon these contentions, I perceive the issues, as fol-
lows:
(a) Were Luckadoo's rights violated by providing
Bowman instead of Turner on July 26?
(b) Was the July 30 conference of such character as
required application of Weingarten?
Luckadoo's situation is different from that of Saunders
and Sawyer. The allegations pertaining to Luckadoo do
not involve a determination of Respondent's motives.
Thus, if it is shown that Respondent failed to provide the
representation rights established by Weingarten and its
progeny, the General Counsel should prevail.
Weingarten and its progeny articulate a Section 7 right
applicable to all meetings between employers and em-
ployees whenever the latter have a reasonable expectan-
cy that disciplinary action may result. Clearly, Luckadoo
had such an expectancy on July 26. She had formerly
been subjected to Respondent's progressive discipline for
absenteeism. Wallace told her that her attendance was to
be the subject of the July 26 meeting.
As noted, Luckadoo made no explicit request for
union representation on July 26. Nonetheless, I conclude
her request on that date entitled her to the protections of
Weingarten. "The employer has no duty to bargain with
the union representative at an investigatory interview."
420 U.S. at 260. Consequently, it is apparent that the
"representation" contemplated by the Weingarten doc-
trine is less than that accorded a statutory bargaining
representative under Section 9 of the Act. Both the Su-
preme Court in Weingarten and the Board in subsequent
cases have advanced examples of the role that could be
played by that "representative." "Indeed, the union rep-
resentative's role is limited to assisting the employee and
33 This testimonial conflict is not important.
possibly attempting to clarify the facts or suggest other
employees who may have knowledge of them." Anchor-
tank, Inc., 239 NLRB 430 (1978). At no point has either
the Board or the Supreme Court precluded the "repre-
sentative" from serving as a witness during the meeting
with the employer. To the contrary, in his dissenting
opinion, with which Justice Stewart joined, Justice
Powell specifically referred to such a role as being one
which the Weingarten "representative" might perform.
"The new right thus appears restricted to the privilege
to insist on the mute and inactive presence of a fellow
employee or a union representative: a witness to the in-
terview, perhaps." 420 U.S. at 273.
Similarly, the Board left undisturbed the proposition
that "no particular title need be held by the representa-
tive; he may be no more than a witness, in a proper
case." Crown Zellerbach, Inc., Flexible Packaging Division,
239 NLRB 1124. Accordingly, I find Luckadoo's request
for representation on July 26 was in appropriate form.
Additionally, I conclude the cited authorities reflect
upon Bowman's apparent silence on substantive issues
during the July 26 meeting. Thus, I find that Bowman's
attendance, though passive, satisfies the requirement of
the presence of a representative.
It is undeniable Bowman attended the conference at
Luckadoo's request. What is challenged is Respondent's
failure to provide Turner. Wallace told Luckadoo he
was unaware of Turner's work location that day. There
is no record evidence to show where Turner worked
that date.34
What is first called to question herein is Respondent's
practice of providing representatives from the "immedi-
ate work area" of an employee who is about to be sub-
jected to an investigatory interview. The record shows
that "immediate work area" is equivalent to a group of
employees under the supervision of the supervisor in-
volved in the discipline. Apparently, neither Caldwell
nor Turner was under Wallace's supervision. Approxi-
mately 22.000 employees work at Respondent's facility
involved herein. Their physical work locations are sub-
ject to frequent change. Wallace's uncontradicted testi-
mony shows that to locate a particular employee it is
necessary to know his name, social security number, and
department in which he is working. That department
must be contacted to determine whether the employee is
at work. Then, that employee's supervisor must be
reached in order to authorize direct contact with the em-
ployee. From Wallace's description, Respondent argues
"that allowing an employee . .. to choose any employee
as his representative would cause great disruption to
work schedules, would be time consuming, and would
result in undue delay in holding investigatory interviews
relating to discipline." Arguably, Respondent exagger-
ates its position.
I must balance Respondent's right to conduct such in-
terviews with minimal delay and confusion against the
very important employee rights granted by Weingarten.
:4 In its brief. Respondent claims its records show that Turner sas not
at work at all on July 26. I do not rely on this assertion. The relevant
records are not in evidence. Apparently. such fact was uncovered after
the hearing closed.
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is a delicate task. The instant facts present a close
case. On the state of this record, I am constrained to
conclude Respondent should prevail. The factors under-
lying this conclusion are:
(a) On July 26, Bowman apparently was a willing par-
ticipant. The General Counsel argues Bowman was in-
timidated from participating in the July 30 interview by
fear of jeopardizing his apprentice school activities. He
expressed this apprehension on July 30. However cogent
that argument may be, I cannot infer, on this record,
such intimidation existed on July 26. Bowman well may
have developed his fears after having participated in the
July 26 conference. As will be seen, infra, I conclude
Weingarten does not require that Bowman must have
demonstrated his competency.
(b) Luckadoo did not repudiate Bowman as a repre-
sentative. Though clearly not her prime choice, Lucka-
doo voiced no protest over Bowman's attendance as her
representative at the July 26 meeting. Further, Luckadoo
did not signify displeasure with Bowman when it was
suggested he accompany her to the July 30 interview.
(c) The uncontradicted and credible evidence shows it
would have been difficult to locate Turner. Thus, Wal-
lace credibly testified, without contradiction, that all he
knew of Turner was that he was a welder. However,
Wallace denied knowing the identity of Turner's supervi-
sor. There is no evidence that Luckadoo tried to advise
Wallace of any information by which Wallace readily
could have located Turner. Also, Schnake testified with-
out contradiction that the area in which Turner might
have been working measured "thirty-some [city] blocks
long and several blocks deep."
The General Counsel argues "no effort was made by
[Respondent] . . . to locate . . . [Turner] . . . despite
the fact that employees are easily located for purposes of
discipline through the personnel office using the tele-
phone system available in the yard." Literally, this is
true. Luckadoo's July 26 and 30 conferences were ar-
ranged by telephone. This purpose easily is accom-
plished. The personnel office surely was aware of Lucka-
doo's name, department, and social security number.
There is, however, no evidence to show that a Weingar-
ten representative ever was selected by telephone. Even
if such means of communication were utilized for that
purpose, it appears difficult to locate such an individual
without possessing the noted identifying features.
Of course, the location of a specific employee is not an
insurmountable task. Whether or not Respondent herein
was required to make an effort to locate Turner is criti-
cal. The Weingarten doctrine if founded upon a philos-
ophy which seeks to preclude management from over-
powering "a lone employee" in a disciplinary meeting.
Herein, Bowman was furnished. There is nothing in the
record to reflect that Turner could have done more for
Luckadoo than did Bowman. There is no evidence that
Turner would have been a more active participant. The
discourse between Schnake and Luckadoo creates an ap-
pearance of free dialogue. Luckadoo freely was able to,
and did, provide her version of the circumstances sur-
rounding the absences in question. Only Luckadoo,
among those present, knew the facts. In this context, it is
likely no other representative would have served any
other purpose except as a mute witness to the July 26
conference.
In Coca-Cola Bottling Co. of Los Angeles, 227 NLRB
1276 (1977), the Board noted the Supreme Court was
careful to point out that the exercise by employees of the
right to representation at an interview may not interfere
with legitimate employer prerogatives. "Certainly the
right to hold interviews of this type without delay is a
legitimate employer prerogative." (227 NLRB at 1276). 1
consider it a prerogative of Respondent to conduct an in-
terview relative to employee absences. Attendance un-
questionably impacts directly upon production. If ab-
sences are unexcused, an employer has a legitimate inter-
est in meting out swift and appropriate discipline. It is
imminently clear Respondent attempted to do just that.
Thus, Schnake's investigation of Luckadoo's July 26 oral
assertions was made the very same day. The very next
day, Schnake attempted to meet again with Luckadoo.
She was absent. The July 30 conference was set for
Luckadoo's next scheduled workday. In these circum-
stances, I conclude the mere availability of telephones is
immaterial. Without the identifying information relative
to Turner, the facts reveal the July 26 conference would
have been delayed for an indeterminate period of time.
In my view, Weingarten contemplated no such result.
The next question is: to what extent does Weingarten
express, if at all, assurances that the representational pro-
tection must be effective. No decisional authority has
been cited or uncovered which utilizes effectiveness as a
measure of compliance with Weingarten principles. In
fact there are contrary indicators. Thus, in Coca-Cola
Bottling Co. of Los Angeles, supra, the Board observed
there "is nothing in . . . Weingarten which indicates that
an employer must postpone interviews with its employ-
ees because a particular union representative . . . is un-
available . . . where another representative is available
whose presence could have been requested by the em-
ployee." (227 NLRB at 1276). In Crown Zellerbach, Inc.,
supra, Administrative Law Judge Russell L. Stevens ob-
served, "It is not necessary that the employer provide
for the employee the best representative possible." Ad-
ministrative Law Judge Stevens found, with Board ap-
proval, the employer did not violate an employee's Wein-
garten rights when it provided the employee with a rep-
resentative at a disciplinary interview other than the
union representative the employee desired. In his deci-
sion, Administrative Law Judge Stevens found that the
nearest other representative was 60 miles away, had no
relationship with the employer, the employee involved
asked for no one else, the representative actually chosen
actively participated in the meeting in the employee's
behalf, the employee was aware that no other representa-
tive was available at the employer's plant, and the repre-
sentative provided by the employer generally was com-
petent to serve in that capacity. Thus, in some respects,
Crown Zellerbach is distinguishable.
Nevertheless, there are factors herein which make
Crown Zellerbach apposite. These elements are (1) many
thousands of employees (22,000) work at the subject fa-
cility, (2) geographically, the physical plant involved ex-
tends 30-some city blocks long and several city blocks
390
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
deep, and (3) certain identifying information (name,
social security number, and assigned department) is re-
quired to locate a particular employee. Moreover, the af-
fected employee in Crown Zellerbach attended the inves-
tigatory meeting with a representative suggested by his
employer. No objection had been raised until it was clear
that discipline would be imposed. Herein, Luckadoo ex-
pressed no objection to Bowman on July 26. Even on
July 30, Luckadoo would have accepted him as her rep-
resentative. In any event I conclude the totality of the
instant record shows an effort by Respondent to search
for Turner would have entailed unwarranted delay.3 5
To this point, the focus of analysis has been upon Re-
spondent's failure to accede to Luckadoo's request that
Turner be her representative on July 26. However, as
noted, Luckadoo testified she first asked for employee
Caldwell to accompany her, but Wallace testified he
could not recall whether the request for Caldwell was
made. Thus, Luckadoo's account stands uncontradicted.
I adopt her assertion she asked for Caldwell. I also credit
Luckadoo's testimony that Wallace told her Caldwell
was not in Luckadoo's job area. Such a response is
wholly consistent with Respondent's historical method of
providing employee representatives and with Wallace's
responses to Luckadoo's requests for Turner.
No party has urged the failure to provide Caldwell
constitued an unlawful deprivation of Luckadoo's Wein-
garten rights. I conclude the record as a whole permits
me to make findings as to Caldwell based on the credited
evidence. Vic Tanny International Inc., 232 NLRB 353,
354 (1977), enfd. 622 F.2d 237 (6th Cir. 1980); Great
Plains Beef Co., 241 NLRB 948, fn. 55 (1979). However,
I also conclude it would serve no useful purpose to re-
solve the Caldwell issue. The request for Caldwell or
Turner does not present a situation in which Luckadoo
was subjected to being a lone employee without a repre-
sentative at the July 26 interview. Cf. Good Samaritan
Nursing Home, Inc., 250 NLRB 207 (1980).
The Board held, in Good Samaritan that an employer
unlawfully required the participation of an employee in a
Weingarten interview without an employee witness. Good
Samaritan, in one respect, is similar to the instant case.
There, as herein, the affected employee requested the
presence of a witness of her own choosing. The employ-
er denied that request, in part, because a witness selected
by the employer was already present in the room in
which the interview was conducted.
Other facts in Good Samaritan, however, comprise
critically distinguishable characteristics. Thus, the
Board's conclusion that a violation existed was predicat-
ed on the theory that the employer had exceeded the
bounds of "legitimate employer prerogatives." In effect,
the Board concluded the affected employee had been
denied the choice of not participating in the interview as
a lone employee without a representative. The evidence
showed the employer explicitly threatened the employee
with suspension if she refused to participate in the inter-
view without her requested witness. The interview then
proceeded. No such threat is present in the case at bar.
3' If, in fact, Respondent's post-hearing assertion that Turner was not
working on July 26 is true, that fact supports this conclusion.
Luckadoo accepted the services of Bowman, albeit reluc-
tantly. No evidence has been adduced herein that Re-
spondent would have proceeded with Luckadoo's July
26 interview had Luckadoo remained steadfast in her re-
quest for Turner as her representative. Also, there is no
evidence that Luckadoo was threatened with reprisal for
refusing to participate in the July 26 conference except
upon her own terms.
In sum, I am persuaded the record demonstrates the
existence of legitimate employer prerogatives to justify
its failure to search for, and provide, Turner at the July
26 interview. Accordingly, I find Respondent satisfied its
Weingarten obligation by providing Bowman as Lucka-
doo's representative.
I now turn to consideration of the July 30 events. Res-
olution of the issue raised by Schnake's meeting with
Luckadoo on this date depends upon how the conference
fairly may be characterized.
The General Counsel perceives the July 30 meeting as
an investigatory interview within the purview of Wein-
garten. This is so whether this interview is considered a
continuation of, or distinctly separate from, the July 26
conference.
In Respondent's view, the July 30 meeting was con-
vened simply for Schnake to explain the results of his in-
vestigation into Luckadoo's assertions made on July 26
and to impose the discipline arranged between Schnake
and Wallace before they met with Luckadoo.3 6
I agree with Respondent that Weingarten precepts do
not govern the July 30 interview. This conclusion is
reached upon an application of the Board's pronounce-
ment in Baton Rouge Water Works Company, supra, as in-
terpreted by its subsequent application in Texaco, Inc.,
246 NLRB 1021 (1979), and Texaco, Inc., 247 NLRB No.
56 (1980).
In Baton Rouge, the Board held an employee has no
Section 7 rights to representation at a meeting with his
or her employer convened solely for informing the em-
ployee of, and acting upon, a previously made disciplin-
ary decision. However, in Baton Rouge, the Board also
cautioned that, where an employer engages in conduct
which goes beyond that required to inform an employee
of a previously made disciplinary decision, the full pano-
poly of protection accorded employees under Weingarten
may be applicable.
Subsequently, in the first cited Texaco decision, the
Board observed that in each case where a disciplinary in-
terview is under scrutiny, the pivotal question is wheth-
er, on the one hand, an employer in summoning an em-
ployee to appear before management, is concerned solely
with the administration of discipline or, on the other
hand, seeks additionally to obtain facts, evidence, or an
admission in support of the disciplinary action taken.
In the first Texaco case, the Board concluded there
was no warrant in the record for finding that the em-
3 I have already credited the mutually corroborative accounts of
Schnake and Wallace that they agreed to discharge Luckadoo a few mo-
ments before the three of them met. The existence of the progressive dis-
ciplinary procedure also supports the conclusion the discharge decision
preceded the meeting with Luckadoo on July 30. It is uncontroverted
that discharge was the customary penalty following a 5-day suspension
for absenteeism. Thus. in effect, the procedure dictated the result.
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer had transgressed the limits established in Baton
Rouge. In so concluding, the Board noted that prior to
the meeting in question, the employer had decided to
take specific disciplinary action against the affected em-
ployees. Also, the Board concluded the evidence demon-
strated that no defense offered by the employees, or by
any representative speaking on their behalf, would have
deterred the employer from its disciplinary decisions;
that the record did not demonstrate the employer needed
or desired to obtain admissions of misconduct from the
employees being disciplined; and that although the em-
ployees were offered an opportunity to explain or defend
themselves, this offer was not designed to obtain infor-
mation to support the employer's disciplinary action.
Rather, the Board found that procedure constituted an
essential part of the communication process during
which an effort was made by the Company to determine
whether the employees understood the reasons for disci-
plinary action.
Later, in the second cited Texaco case, the Board
found the employer had not violated Section 8(a)(1) of
the Act by denying an employee's request for union rep-
resentation at his disciplinary interview. The Board con-
cluded the record revealed the employer had reached a
final decision to discipline the employee prior to the
meeting at which the employee had been informed of his
discipline; and that the employer had reached that deci-
sion based on the facts and evidence which it had ob-
tained prior to the meeting. Accordingly, the Board con-
cluded the sole purpose of the meeting was to inform the
employee of his discipline.
Herein, the undisputed facts show Luckadoo asked for
a representative to attend the July 30 meeting; that re-
quest was denied; she participated in the session as a
"lone employee" and she was discharged.
The following factors impel the conclusion that Re-
spondent was guilty of no wrongdoing to Luckadoo on
July 30:
(a) The decision to discharge Luckadoo was made
before Respondent's officials confronted her. The cred-
ited evidence shows Schnake met with Wallace before
they met together with Luckadoo. Schnake reported to
Wallace the results of his investigation into Luckadoo's
July 26 assertions. There is no evidence that either of
them had any questions about Schnake's findings or that
either said anything to indicate they needed additional
information. They agreed to discharge Luckadoo. That
conclusion was based upon the facts in their possession
at that time.
(b) The discharge decision was dictated by, and consis-
tent with, Respondent's system of progressive discipline.
As earlier noted, discharge for absenteeism normally fol-
lowed a 5-day suspension for that offense. Luckadoo re-
ceived the requisite suspension in January. Though
Schnake asked Wallace for his recommendations, I con-
sider that to be a perfunctory and superfluous act. The
existing disciplinary system literally mandated Wallace's
response. Thus, I conclude the record shows Respondent
would have discharged Luckadoo even if she had attend-
ed the July 30 interview with a representative.
(c) The discharge decision was final before Schnake
and Wallace met with Luckadoo. As earlier indicated,
Luckadoo acknowledged, through her testimony, that
Schnake was unwilling to listen to any explanations prof-
fered by her on July 30. He peremptorily cut her off
from her proffer of further explanation of her absences.
It is clear Schnake was unwilling to listen. Accordingly,
I conclude that any discourse which occurred between
Schnake and Wallace on the one hand, and Luckadoo on
the other, comprised an essential part of the communica-
tion process by which Luckadoo was advised of the dis-
cipline. I find such discussion did not assume the nature
of further investigation. No evidence has been presented
that shows Schnake or Wallace said anything designed to
elicit new information.
Upon all the foregoing, I conclude the sole purpose of
the July 30 confrontation with Luckadoo was to inform
her Schnake's investigation was complete and she was
discharged. It follows that Weingarten rights did not
attach to the July 30 interview. Accordingly, I find the
record fails to establish, by a preponderance of the credi-
ble evidence,37 that the failure to provide Luckadoo a
representative during the July 30 interview constituted a
violation of Section 8(a)(1) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By suspending and discharging Michael B. Saunders
on August 8 and October 11, 1979, respectively, Respon-
dent discriminated against its employees in violation of
Section 8(a)(3) and (1) of the Act.
4. By discharging Ralph S. Sawyer on August 15,
1979, Respondent discriminated against its employees in
violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not violate the Act when it failed to
provide Melanie R. Luckadoo with a representative to
accompany her during the July 26 and 30, 1979 confer-
ences with Respondent's officials; nor did Respondent
violate the Act, as alleged in the complaint, when it dis-
charged Luckadoo on July 30.
THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and () of the Act in certain respects, I shall recommend
it cease and desist from engaging in such conduct in the
future and affirmatively take such action as will dissipate
the effects of its unfair labor practices.
Because the discharges of Saunders and Sawyer have
been found unlawful my recommended Order shall re-
quire Respondent to offer each of them full and immedi-
ate reinstatement to his former and substantially equiv-
alent job, without prejudice to his seniority or other
: I also find the evidence insufficient to prove Luckadoo's discharge
violated any provision of the Act.
392
NEWPORT NEWS SHIPBUILDING & DRY DOCK CO.
rights and privileges; and to make each whole for any
loss of earnings he may have suffered as a result of the
discrimination by payment of a sum equal to that which
each would have earned, absent the discrimination, to
the date of Respondent's offer of reinstatement. Loss of
earnings shall be computed as prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), plus interest as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
Because Saunders' suspension has been found unlawful,
my recommended Order shall require Respondent to
physically expunge all references to that suspension from
its official records and to notify Saunders and the Re-
gional Director for Region 5, in writing, that the suspen-
sion has been so expunged. Also, Respondent shall be or-
dered to reimburse Saunders for any loss of earnings,
computed in accordance with the formula described
above, which he may have suffered as a result of the un-
lawful suspension.
As previously noted, the Board (239 NLRB 1028) held
Respondent unlawfully refused to bargain with the in-
stant Union when it ignored a bargaining request after
certification. Herein, I have found Respondent discrimin-
atorily suspended and discharged employees. In my
view, the totality of events indicates a purpose to thwart
the employees' statutory rights. The repetitious character
of the instant unfair labor practices shows they are relat-
ed to other unfair labor practices proscribed by the Act
and demonstrates a potential for further violation. In my
judgment, the recommended Order herein should be co-
extensive with the threat. Thus, I conclude the circum-
stances presented warrant the issuance of a broad pro-
scriptive order. Cf Hickmott Foods, Inc., 242 NLRB 1357
(1979). Accordingly, the recommended Order shall re-
quire Respondent to refrain from, in any other manner,
interfering with, restraining, and coercing its employees
in the exercise of their statutory rights.
Upon the above findings of fact, conclusions of law,
the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mend:
ORDER3 8
The Respondent, Newport News Shipbuilding & Dry
Dock Company, Newport News, Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
38 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 of the National Labor Rela-
tions Board, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived for
all purposes.
(a) Discriminating against its employees for engaging
in union or other activity protected by the Act.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent
that such rights might be affected by a lawful union- se-
curity agreement in accord with Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer Michael B. Saunders and Ralph S. Sawyer
immediate and full reinstatement to his former job, or, if
that position no longer exists, to a substantially equiv-
alent position of employment, without prejudice to his
seniority or other rights and privileges; and make each
whole in the manner described above in the section enti-
tled "The Remedy" for any loss of pay or other benefits
suffered by reason of Respondent's conduct found un-
lawful herein.
(b) Immediately physically expunge all references to
the suspension of Michael B. Saunders on August 8,
1979, which may be contained in its official records and,
immediately thereafter, notify Saunders and the Regional
Director for Region 5, in writing, that any and all such
references have been expunged; and make whole Michael
B. Saunders for any loss of earnings he may have suf-
fered as a result of said suspension.
(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 and
interest due under the terms of this Order.
(d) Post at its Newport News, Virginia, shipyard
copies of the attached notice marked "Appendix." 3 9
Copies of the notice, on forms provided by the Regional
Director for Region 5, after being duly signed by an au-
thorized representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, 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.
IT IS FURTHER ORDERED that Case 5-CA-11414 (Me-
lanie R. Luckadoo) is hereby severed from these pro-
ceedings and that all complaint allegations pertaining to
Melanie R. Luckadoo are dismissed in their entirety.
39 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."
393