Offshore Shipbuilding, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 539 (N.L.R.B. 1985)

OFFSHORE SHIPBUILDING
Offshore Shipbuilding , Inc. and International Broth-
erhood of Boilermakers , Iron Shipbuilders,
Blacksmiths, Forgers and Helpers , AFL-CIO.
Cases 12-CA-10513 (1-7), 12-CA-10529 (1-2),
12-CA-10544 (1, 3 & 4), 12-CA-10680, 12-
CA-10773, and 12-RC-6349
28 February 1985
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 19 April 1984 Administrative Law Judge
William A. Gershuny issued the attached decision.
The Charging Party and the General Counsel filed
exceptions and supporting briefs and the Respond-
ent filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions2 only to the extent consistent with this
Decision and Order.
The complaint alleges, inter alia , that about 21
December 1982 the Respondent, acting through
Foreman Turk, unlawfully interrogated an employ-
ee about his union activities.
Turk admitted asking employee Caro, at Vice
President Tenore's request, whether Caro favored
a union , but denied threatening him. Turk also tes-
tified that Caro responded that he did not favor a
union and that Turk reported this to Tenore. Cred-
iting Turk's testimony, the judge found that an in-
terrogation occurred in September-October 1982.
However, the judge dismissed the allegation, con-
cluding that "an interrogation, otherwise unlawful,
occurred in September-October 1982 of a single
i The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings , except as directed herein
In sec II,B,3 of his decision the judge discredits employee G Thomas'
testimony based on his observation of the witness' demeanor The judge
further rejects Thomas' testimony in its entirety, concluding that he gave
false testimony concerning the handwriting on his employment applica-
tion We disavow reliance on this latter basis for discrediting Thomas'
testimony
2 We find that the General Counsel's and the Charging Party's allega-
tions of bias and prejudice on the part of the judge are totally without
merit Upon our full consideration of the record and the judge's decision,
we perceive no evidence that the judge prejudged the case, made preju-
dicial rulings , or acted as an advocate rather than as an impartial trier of
fact . There is no basis for finding that bias and partiality existed merely
because the judge resolved important factual conflicts in favor of the Re-
spondent 's witnesses Furthermore , it is the duty of the judge under the
Board 's Rules and Regulations (Sec 102 35 ) to inquire into the facts by
examining and cross-examining witnesses Accordingly, we find no basis
for granting the Charging Party's request for a trial de novo
539
employee as to his union sympathies generally; that
it was a remote and isolated incident; and that it is
not fairly encompassed within the scope . . . of the
complaint." The General Counsel and the Charg-
ing Party excepted to the judge's failure to remedy
the interrogation admitted by Turk, contending
that, although the interrogation was not specifically
alleged in the complaint, it was closely related to
other allegations in the complaint and was fully liti-
gated.3 We find merit to the exceptions and con-
clude that Turk's statement was not an innocuous
casual remark, but reasonably tended to interfere
with employees' Section 7 rights. Furthermore,
particularly in view of our finding below that the
Respondent also unlawfully threatened to discharge
union supporters, we conclude, contrary to the
judge, that Turk's interrogation of Caro was not
isolated. Accordingly, we find that Turk's conduct
constituted an unlawful interrogation in violation
of Section 8(a)(1) of the Act.4
The General Counsel and the Charging Party
also excepted to the judge's dismissal of the portion
of complaint alleging that about 5 January 1983
Foreman Drew unlawfully threatened a group of
employees with discharge for union activities and
singled out an employee as having engaged in
union activities.
Employee Story testified, and the judge so cred-
ited him, that Foreman Drew about 5 January as-
sembled his crew and told them that employees
would be discharged and sent to Jacksonville to
join the Union if they thought the Union could do
anything for them, and that employees talking
about a union would be discharged. Story testified
that Drew singled out three employees by name.
Story's testimony was corroborated by employee
Prime and in part by employees Tomlinson and
Cox. Foreman Drew, whom the judge had previ-
ously found to be a credible witness, testified that
he warned employees about passing out union
cards on company time and that when employee
Prime snickered he added, "Got that Al?" The
record reveals that Drew did not actually deny
making the statement concerning Jacksonville, but
said he did not remember making such a remark.
The judge found that he was faced with conflict-
ing testimony of two credible witnesses, namely,
Story and Drew, and proceeded to assess the
"probabilities that such a statement would have
been made" by Drew. The judge concluded that
the threats attributed to Drew did not make sense:
s Inland Steel Co, 259 NLRB 191, 194 at fn 7 (1981)
4 Chairman Dotson would not find this conversation violative of Sec
8(a)(1) for the reasons stated by the judge
274 NLRB No. 77
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The mere existence of a sympathy, unex-
pressed, would hardly cause a foreman to dis-
charge an employee; to ask an employee to
reveal his sympathy so as to invite discharge is
unlikely; to threaten to send a sympathizer to
Jacksonville to join the Union is unintelligible;
and to threaten discharge conflicts with the
testimony of some employees that some pins
and insignias were already on display at work.
[ALJD, sec. II,E,5.]
A reading of the record shows that Drew was
not asking the employees to reveal their support
for the Union, but rather was making an open
threat to discharge union supporters. Moreover,
the threat to send union sympathizers to Jackson-
ville is not "unintelligible," as the union hall where
the organizing drive originated is located in Jack-
sonville. Nor is it clear how testimony that pins
and insignias were on display at the shipyard
would conflict with the allegation of discharge
threats.
Based on our examination of the record evi-
dence, particularly the mutually corroborative tes-
timony of Story and Prime, we reverse the judge's
dismissal of the allegations pertaining to the 5 Janu-
ary 1983 Drew incident and find that the state-
ments attributed to Foreman Drew violated Sec-
tion 8(a)(1) of the Act.5
CONCLUSIONS OF LAW
1. Offshore Shipbuilding, Inc. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Help-
ers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating an employee about his union
activities and sentiments the Respondent engaged
in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
4. By threatening to discharge employees be-
cause of their union activities and sentiments in
order to discourage employees from engaging in
activities on behalf of, or supporting, the Union,
the Respondent has violated Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(1) of the Act we shall order it to cease
5 See generally J N Ceazan Co, 246 NLRB 637, 638 fn 6 (1979)
and desist therefrom and to take certain affirmative
action in order to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Offshore Shipbuilding, Inc., Pa-
latka, Florida, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union ac-
tivities and sentiments.
(b) Threatening to discharge or otherwise disci-
pline employees because of their union activities
and sentiments in order to discourage employees
from engaging in activities on behalf of, or support-
ing, the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Palatka, Florida facility copies of
the attached notice marked "Appendix."6 Copies
of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspic-
uous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the objections be
overruled.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for International Brother-
hood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO and that it
is not the exclusive representative of the bargaining
unit employees.
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
OFFSHORE SHIPBUILDING 541
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees about
their union activities and sentiments.
WE WILL NOT threaten to discharge or otherwise
discipline employees because of their union activi-
ties and sentiments in order to discourage employ-
ees from engaging in activities on behalf of, or sup-
porting, the Union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
OFFSHORE SHIPBUILDING, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge
A hearing was conducted in Palatka, Florida, on Novem-
ber 8-16 and December 5-9, 1983, based on a consolidat-
ed complaint issued on October 28, 1983, as amended at
the hearing, alleging a number of violations of Section
8(a)(1), (3), and (4) of the National Labor Relations Act,
including the unlawful discharge of six employees in Jan-
uary 1983, 2 months prior to a representation election
and the unlawful layoff and refusal to recall 82 employ-
ees on May 27, June 10 and 28, and July 8, 1983, several
months after the election. Consolidated with the com-
plaint are numerous union objections to employer con-
duct prior to the election and issues as to the voting eli-
gibility of 28 employees
On the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
The complaint alleges, the answer admits, and I find
that the Respondent is an employer subject to the Act
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
it also constructed the large, 280-foot auto-passenger
ferry Grand Republic, which was launched on May 25,
1983, and delivered to its owner in New York on July 8,
and started construction of a smaller 130-foot ferry for
the State of North Carolina. As discussed below in sec-
tion II,C, "The Layoffs," the yard's level of business is
reflective generally of the economy of the offshore oil
production industry.
Union organization efforts at the yard commenced in
late December 1982, with concentrated card signing ac-
tivities beginning in early January, at which time many
employees began wearing union pins and insignia to
work. By letters dated January 12 and 20, 1983, the
Union gave notice to the Respondent of the names of 33
employees it claimed were on an organizing committee.
Accordingly, for the most part, there is no issue of com-
pany knowledge of union activity
A representation petition was filed on January 31,
1983, for a unit of production and maintenance employ-
ees at the yard. An election was conducted on March 18,
1983, with 113 votes cast for the Company, 88 votes for
the Union, and 28 ballots challenged
Five employees were discharged in January 1983 (2
months before the election) for allegedly unlawful rea-
sons and another employee was discharged on April 14,
1983 (1 month after the election) At the hearing, the
General Counsel withdrew an allegation of unlawful dis-
charge of another employee on December 31, 1982. Fol-
lowing the launch of the Grand Republic, 82 employees
were laid off on May 27, June 10 and 28 , and July 8 al-
legedly for unlawful reasons By the time this hearing
commenced on November 8, 1983, 12-13 employees had
been recalled and another 12-13 new employees had
been hired.
In April 1983, about a month after the election, a
major management change occurred with four top level
officials at the yard being replaced. Thus, the events pre-
ceding the election occurred during the administration of
Vice President and General Manager Tenore and Per-
sonnel Manager Stewart, while the events thereafter (in-
cluding the layoffs) occurred during the administration
of Vice President and General Manager Carman
The campaign, I find, was a "quiet" one, in the words
of Tenore. Solicitation and distribution were not imped-
ed; there was no surveillance; few supervisors are in-
volved in the case; and, interestingly, of all the shipyard
trades, mainly welders are involved. From first notice
from the Union, the Company was counseled by experi-
enced labor counsel, stressing mainly the depressed state
of the shipyard industry and the need to remain competi-
tive. Supervisors were given the well-known "tips": Do
not threaten, interrogate, promise, or spy. Company
policy, I find, was "business as usual."
II. UNFAIR LABOR PRACTICES AND OBJECTIONS
A. Background
The Respondent operates a shipyard on the St. John's
River in Palatka, Florida, where it constructs offshore
oil-producing supply ships primarily for its parent com-
pany and sister subsidiaries. During the relevant period,
B. The Discharges
The complaint originally contained allegations of eight
unlawful discharges based on union activities . All but
one were alleged to have occurred during the first 4
weeks of organizing activities.
At the hearing, the General Counsel withdrew one
(Modlin, December 31, 1982) and amended another
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Prime; January 21, 1983) to allege a discharge reduced
to a 3-day suspension.
To place these allegations in perspective, I note that
uncontroverted evidence establishes that, in the last half
of 1982, the work force grew from less than 50 to more
than 225; that, in the 12-month period preceding January
31, 1983, 65 employees were terminated (30 for excessive
absenteeism, 22 for unsatisfactory work/nonproduction,
13 for other reasons); and that, in January 1983, 3 em-
ployees, in addition to the 6 presently involved in this
case, were terminated for excessive absenteeism or lack
of production.
1. Welder E. Caro
Caro was discharged on January 11, 1983, when he re-
turned to work following the hunting season after having
"obtained permission" to be off on January 10 to take
care of three flat tires he had on Sunday and three flat
tires he had on Monday. He testified that his foreman,
Turk, disclaimed knowledge of the discharge, but wrote
"absenteeism" on the termination papers after visiting the
office. On cross-examination, he admitted having re-
ceived a prior 30-day suspension for absenteeism, adding
that he had no attendance problem and that 11 days ab-
sence is "not bad " Coworker Kronz, whose election
month (March) discharge for absenteeism is not alleged
to be unlawful, substantially corroborated this testimony.
Personnel Manager Stewart testified that, in accord-
ance with routine procedures, he met with Vice Presi-
dent Tenore on January 10 (following Tenore's 1-week
absence from the office) to discuss the daily absentee
report; that, with knowledge of a pending police investi-
gation concerning Caro's automobile and his suspended
license and based on Caro's history of "transport prob-
lems" resulting in frequent absences, he and Tenore de-
cided to fire him for excessive absenteeism; and that the
Union's initial telegram informing the Company of its or-
ganizing effort (but without informing it of the names of
members of the organizing committee) had been received
on Saturday, but was not discussed by them until after
the Monday morning meeting on absentees. Tenore cor-
roborated this testimony, adding that he was disappoint-
ed because Caro had been a good, older worker. Weld-
ing Foreman Turk confirmed that he spoke with Caro
and Kronz on January 10 about a tire problem ("girl
friend or wife stranded with truck on highway"), that he
told them to take off if they had to, that Kronz and Caro
were expected to return, and that neither did.
The single issue presented here-and in almost each of
the other allegations-is one of credibility. As to each
material witness, the credibility findings in this decision
are based principally on observation and comparison of
demeanor during testimony, as reflected in contempora-
neous trial notes. As to certain of the witnesses, a sec-
ondary, yet independent, basis is identified-conflict and
inconsistency of testimony, as reflected by record evi-
dence
I credit the testimony of then Personnel Manager
Stewart and then Vice President Tenore based on my
observation of witness demeanor. Both were convincing
and their testimony was clear. Moreover, the element of
partisan bias was wholly absent, each having been sum-
marily dismissed by the parent corporation in New York,
for unrelated reasons, during an April 1983 overhaul of
top management at the Palatka shipyard. In addition,
their testimony was consistent with personnel records re-
flecting a longstanding concern with growing absentee-
ism during the rapid buildup of the work force since
mid-1982. Finally, the stated cause for the termination
was not pretextual-Caro's opinion notwithstanding, 11
absences and a 30-day suspension for absenteeism is a de-
plorable attendance record and one which the Respond-
ent reasonably need not tolerate.
At the same time, I am unable to credit Caro. He was
not a convincing witness, based on my demeanor obser-
vations, and it took persistent and aggressive cross-exam-
ination to extract from him the complete version of rele-
vant events.
Assuming without deciding that Caro engaged in
union activities and that his activities were known to the
Respondent, I find and conclude that the sole and exclu-
sive reason for Caro's discharge was his record of ab-
sences and that the termination decision would have
been made regardless of any protected concerted activity
on his part. The allegation is dismissed.
2. Welder W. Davis
Davis was discharged with Caro on January 11. He
had been out the day before due to the flu and, because
he had no telephone, had asked Caro to call in for him.
He testified, like Caro, that Turk said he knew nothing
of the discharge, but wrote "absenteeism" across the
paper after he returned from the office. On cross-exami-
nation, he admitted that he had received two prior warn-
ings (one with a 3-day suspension), that Foreman Turk
had orally warned him "to start being here on a regular
basis . . . missing too much time," that other foremen
talked to him about his attendance, and that he knew he
was in trouble due to his attendance record.
Former Personnel Manager Stewart testified that, at a
regular meeting on absentees with Tenore on January 10,
he and Tenore decided they could not put up with
Davis' record (30 absences in the past year) and his ig-
noring warnings of supervisors, and that the first union
communication with the Company was not discussed
with Tenore until that afternoon. Tenore corroborated
this testimony. Former Superintendent Cook testified as
to numerous warnings given Davis in the past concern-
ing attendance and that the discharge was solely because
of poor attendance, adding that, at the time, there was
no way of knowing Davis was a union supporter. Fore-
man Turk confirmed that Davis had been spoken to a
number of times concerning his poor attendance ("I need
a man at work every day").
For the reasons set forth above in section II,B,1, I
credit the testimony of Tenore and Stewart over that of
Davis Like Caro, Davis was willing to reveal the com-
plete version of relevant events only after aggressive
cross-examination. Based on their demeanor on the stand,
I credit throughout the testimony of former Superintend-
ent Cook and Foreman Turk. Cook, like Tenore and
Stewart, was a victim of the sudden April 1983 manage-
ment housecleaning and thus lacked the usual partisan
OFFSHORE SHIPBUILDING
bias. Moreover , his testimony was consistent with per-
sonnel data concerning Davis and others and the realities
of the production activities at the yard in late 1982 and
early 1983. Turk I found to be a particularly convincing
witness I have the definite feeling that his heavy in-
volvement in this case stems not from any antiunion sen-
timent on his part , but rather from the fact that he was a
supervisor who expected an 8-hour day from his crew
and was dedicated to maximizing production, goals
shared by few of the General Counsel 's witnesses . Final-
ly, the stated reason for the discharge-absenteeism-
was not pretextual and a record of 30 absences in 1 year
is one which the Respondent reasonably need not toler-
ate.
Assuming without deciding that Caro engaged in
union activities and that his activities were known to the
Respondent , I find and conclude that the sole and exclu-
sive reason for Davis ' discharge was his record of ab-
sences and that the termination would have taken place
regardless of any protected concerted activity on his
part. Accordingly , this allegation is dismissed.
3. Welder G. Thomas
Thomas was discharged on January 10 and paragraph
15(d) of the complaint alleges the unlawful issuance of a
written warning to him at the same time. Thomas, on
direct , testified that he began to quarrel with Foreman
Turk about the latter 's expressed concern as to lack of
production on Thomas' part ; that Turk kept repeating,
"[T]ighten up"; that , after quarreling a while, he was
taken to the office where Superintendent Cook spoke
about Thomas ' "threats" and gave him a 3-day suspen-
sion for lack of production ; that , when he refused to sign
the warning slip, Personnel Manager Stewart was called
in, giving Thomas the option to quit or be fired; that,
when Thomas refused to quit , Stewart terminated him
for, as set forth in a January 12 letter to him, low pro-
duction , tardiness , and failure to call in . On cross-exami-
nation , he admitted receiving a prior warning for tardi-
ness, but denied having written "no" in response to an
employment application question relating to prior con-
victions , despite the fact that the handwritten "no" is
identical to other "no 's" admittedly written on the appli-
cation form by him.
Cook testified as to personal observations of Thomas'
failure to perform work ; that he instructed Turk to ob-
serve and talk with Thomas; that Thomas became bellig-
erent , calling Cook and others "turkeys" and challenging
Cook to discharge him ("I know the law "); and that
Thomas was fired by Stewart (after being calmed down)
for what occurred during the meeting.
Assuming without deciding that Thomas engaged in
union activities of which the Respondent was aware, I
nevertheless find and conclude that the sole and exclu-
sive reasons for the termination were those stated to
Thomas in writing by the Respondent and that he would
have been terminated regardless of any such activities on
his part.
In making these findings , I credit the testimony of
Cook (for reasons set forth in sec II,B,2 above) over
that of Thomas Moreover , I am unable to credit
Thomas' testimony based on my observation of his de-
543
meanor . He, too, was evasive and reluctant to relate the
whole truth . Finally, I reject his testimony in its entirety
because he gave false testimony at the hearing concern-
ing the handwriting on his employment application.
Thomas' belligerent and hostile conduct on the job was
evidently mirrored by his conduct away from the yard.
On two occasions , at a social dinner party at the Holiday
Inn and at city hall , Thomas followed and harassed Vice
President Tenore with a camera , requiring , in the first
case, the motel manager to call the police.
These two allegations are dismissed.
4. Welder J . Thomas
Thomas, a night -shift employee, was discharged on
January 4. He testified that he needed additional lighting
to complete his assignment ; that , after failing to locate
another floodlight and because his coemployee was
unable to assist him in moving the light he was using be-
cause of an injured back , he cut off the steel base of the
15-foot light with his torch so as to enable it to be placed
inside the hull where he was working; and that he had
obtained a union card at his home on December 31,
signed it and kept it there, and turned it in to the union
representative at his motel room on the morning of Janu-
ary 5 "after I was fired ." After some inadvertent collo-
quy between counsel and the court in the presence of the
witness as to employer knowledge of union activity,
Thomas changed his testimony , stating that his union
card was turned in on January 4 (before he was dis-
charged). Coemployee Peterson testified that it took him
and two others only a few minutes to reweld the light.
Night Superintendent Crowel testified that Thomas ad-
mitted cutting off the light base; that Thomas offered no
explanation and did not mention his helper having a
"sore back" and being unable to assist in carrying the
light ; that Thomas himself could have carried the porta-
ble light he had been using on one side of the hull
around to the other side and used it in exactly the same
manner as before; that Thomas had a history of refusing
to conform to regulations (show ID tag to guard; use
tool tags), and that he discharged Thomas for these rea-
sons alone . Leadman Smith testified that he gave
Thomas the powerful portable light to use at the start of
the night shift and showed him how he and others had
previously inserted it between the ribs of the hull to light
up the work area , that, in his experience , the light was
adequate for the job and portable enough to be carried
by one person ; that Thomas admitted cutting the steel
base off the lamp when he moved to the other side of
the hull, adding that he did not think to walk the light
around and use it in the same way; that Thomas made no
mention of his coworker's inability to help him lift the
lamp; that others were available , as is common , to assist;
that it took three workers 45 minutes to repair the light;
and that he saw Thomas wearing a union sticker at work
before he was fired. As to the sticker , it should be noted
that Thomas testified that his union activity was limited
to discussions with other employees and signing a card
and that , while other witnesses had been asked and gave
testimony concerning their wearing of union pins, stick-
ers, and insignia , Thomas neither was asked nor did he
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volunteer anything concerning the wearing of a union
sticker, pin, or insignia before he was fired.
Based on my observation of their demeanor on the
stand , I credit the testimony of Crowel and Smith. Each
was a superb witness in terms of clarity and each was
particularly convincing. Smith, I believe, was mistaken in
testifying that Thomas wore a union sticker on the day
of his discharge because Thomas himself did not say he
was wearing any such thing.
Thomas, on the other hand, was an evasive witness,
lacking in candor and willing to alter his testimony when
he considered it to be to his benefit. I believe he testified
falsely, in this regard, when he "corrected" himself to
say his card was turned in the morning of January 4,
rather than the morning of January 5. While memories as
to dates may be vague and require refreshing, a dis-
charged employee is unlikely to be confused as to wheth-
er the card was turned in before or after the discharge.
Accordingly, I find and conclude that Thomas en-
gaged in no observable or known union activity until
after his discharge on January 4; that the sole and exclu-
sive reason for his discharge was his bizarre conduct that
shift in damaging a floodlight ; and that , in any event, he
would have been discharged regardless of any known
protected concerted activity on his part. This allegation
is dismissed.
5. Fitter-welder D. Pugh
Pugh was discharged on April 14 and paragraphs 16(b)
and (c) of the complaint allege his unlawful transfer on
March 29 (after the election ) and the issuance of an un-
lawful warning on April 8.
Pugh, on direct, testified that Superintendent Cook
tranferred him to the welding department because of a
shortage of welders; that on April 8 he received a warn-
ing from Foreman Turk for "bad mouth, smart mouth
and lack of production" and was sent back to the prefab
department; and that Foreman Kaczmarek Senior dis-
charged him for lack of production on April 4 without
specifying his deficiencies. On cross-examination, he ad-
mitted that, when he was transferred to the welding de-
partment with others, there was no reference to the
Union; that he had been warned previously about his
work performance; that on another assignment he was
told that he "took too long" to perform the work, and
that on April 7, the day prior to his written warning, he
responded to his foreman's question as to when he would
be finished with an assignment, "I'll get the job done
when I get the job done."
Other employees called by the General Counsel con-
firmed that Pugh was a poor worker. Laid-off welder
Miller acknowledged that Pugh had not done his assign-
ment on three separate occasions. Kaczmarek 's son testi-
fied that his father told him Pugh was discharged for
lack of production and that, if there had been any other
reason for the discharge, his father would have said so.
Kaczmarek's son-in-law also testified that Pugh was dis-
charged for lack of production; that Kaczmarek Senior.
never mentioned Pugh's union activity; and that he and
Pugh were removed from a job once because they were
"too slow" and took "too long" to complete the work.
The Respondent's witnesses gave even more detailed
testimony concerning Pugh's poor work habits Quarter-
man Vermeulen testified that he observed Pugh in April
"piddlin' around" (i.e., working at a leisurely pace); that
Pugh failed to complete assigned work in the expected
time, that Foreman Turk was asked to speak to him
about his performance; that, after Pugh gave Turk a
"smart" answer, Pugh was reassigned to the fab shop,
and that Pugh's known support for the Union was not
considered. Leadman Fine confirmed that Pugh was a
"mediocre" welder while working on assignment to the
welding department, taking longer than others to per-
form tasks and not working up to the standards of a first-
class welder. Leadman Keith, who directed Pugh in the
fab shop for 6-8 months, also confirmed that Pugh took
longer than others to perform work despite the fact he
had a helper as often as others; that he botched the fit-
ting of a stern roller cone, causing a costly piece of fabri-
cated steel to be scrapped; that he was idle when work
had been assigned him; and that 30 percent of his work
had to be redone. Coworker Crews similarly confirmed
Pugh's poor work habits (wandering around; slower than
others). Fab department leadman Werkheiser testified
that Pugh, a first-class welder, did less production work
than third-class welders and was repeatedly warned and
that, in his opinion, Pugh did not have the right attitude
to do any job at the yard
Fab Shop Foreman Kaczmarek Senior testified that,
while Pugh once was one of his top men, in late 1982 he
changed, becoming a "poor" worker with "no initiative,
no enthusiasm"; that coemployees complained about
Pugh and leadmen did not want him on their crews; that
he took much longer than others to perform like work;
and that numerous meetings were held with Pugh to dis-
cuss his poor work performance. As to Pugh's transfer in
March to the welding department, Kaczmarek Senior
testified that Pugh originally had worked in that depart-
ment, that welders were needed in the welding depart-
ment (whose work increases as the fab shop work winds
down), that Pugh and another welder (whose transfer is
not alleged to be unlawful) were transferred to the day
shift in the welding department, that several days later
Pugh was returned with complaints of slow work which
was "eating up" the welding department's budget; that,
again, complaints were received of poor workmanship
and attitude in the fab shop; that he recommended the
discharge of Pugh and affirmative action on that request
was delayed due to a change in management at the yard;
and that Pugh's union activity never was a consideration
because "the man was useless to me" as a welder.
Welding Foreman Turk testified that he hired Pugh
originally as a welder in the welding department; that
Pugh had asked for a transfer to the fab shop; that he
was temporarily assigned to the welding department to
assist on the ferry boat which was behind schedule; that
Pugh then was not the same quality welder he had been
before, sitting around, producing no work, and refusing
to tell his supervisors when he would be finished with an
assignment ("done when I'm done"); that, as each job
was budgeted by department, Turk considered Pugh to
OFFSHORE SHIPBUILDING
be "killing my budget ", and that he was returned to the
fab shop for those reasons.
Based on my observation of his demeanor on the wit-
ness stand , I am unable to credit Pugh . He was totally
unconvincing and lacking in candor, his testimony was
contradictory , and he admitted falsely stating on his ap-
plication for unemployment compensation that he never
had received a warning about his job performance at the
yard.
On the other hand , my observation of the demeanor of
Vermeulen and Kaczmarek Senior compels me to credit
their testimony fully. Vermeulen 's testimony , without
embellishment or exaggeration , was convincing; Kacz-
marek Senior was a particularly convincing witness, with
no work interest other than the building of quality ships
and no antiunion motives Noteworthy is the fact that
both his son and son-in -law, called by the General Coun-
sel, testified that he was a man to be trusted and be-
lieved . And, for the reasons set forth in section II,B,2, I
credit the testimony of Foreman Turk.
There simply is no evidence or suggestion of an un-
lawful motive behind the transfer and subsequent disci-
pline of Pugh in late March and April . The campaign
was over and the election had been held , there was a le-
gitimate need for welders in the welding department,
Pugh had originally worked there, there is no allegation
that the transfer of his coworker at the same time was
unlawful , and Pugh 's membership on an employee orga-
nizing committee was public knowledge for 3 months.
Accordingly , I find and conclude that the transfer,
warning, and discharge of Pugh, as alleged, were moti-
vated solely and exclusively by Pugh 's unacceptable
work performance and attitude and that , in any event,
the Respondent would have taken the same action re-
gardless of any protected concerted activity on his part.
These allegations also must be dismissed
6. Welder M . Adkins
Adkins was discharged on January 7. He testified that,
after attending a union meeting at the Holiday Inn, at
which leadman Smith also was present , he reported to
work and was fired by Quarterman Vermeulen for lack
of production; and that , in October 1982, he had re-
ceived two written warnings for lack of production. On
cross-examination , he admitted that Vermeulen had dis-
cussed his poor performance on a number of occasions.
Vermeulen elaborated on Adkins ' prior discipline in
October 1982, long before any union activity , noting that
welds were sloppy , with pinholes ; that he "goofed off,"
telling his helper one day to "make the work last"; that
other first-class welders did four times the amount of
work; and that warnings had a positive effect on Adkins'
performance only for a few days. As to the discharge,
Vermeulen testified that he assigned six welds to Adkins
for completion that shift ; that another crew took 2 hours
to complete identical work , but Adkins failed to com-
plete one-half of the work; that work performance was
the only reason for his decision to fire Adkins; that he
was not aware of union activity at the time and did not
consider it; and that he had recommended the discharge
of other low producers
545
Night Superintendent Crowe] confirmed Vermeulen's
account of the 1982 discipline , emphasizing the repeated
warnings and poor job evaluation in December 1982.
Leadman Smith , on whose crew Adkins was working,
testified that Adkins was always a slow worker and was
told frequently that he had to get the job "done faster";
and that he was the slowest welder on the crew and pro-
duced rough welds. Smith testified , and Vermeulen con-
firmed , that Vermeulen did not learn of Smith 's attend-
ance of the union meeting until after Adkins had been
discharged . It should be noted that , despite the Union's
present contention here that leadmen are supervisors and
ineligible to vote in the representation election , the Gen-
eral Counsel does not so contend and union officials per-`
mitted Smith to attend early organization meetings.
For the reasons set forth in sections II,B,4 and 5,
above, I credit the testimony of Vermeulen and Smith.
Adkins, on the other hand , was not a credible witness.
Apart from the fact he was unconvincing and lacking in
candor , his testimony was contradictory , indicating a
negligent approach to the truth . He testified he signed a:
union card on the evening of January 6 , 1 day before' his'
discharge , but the card itself was dated January 7. In his
Board affidavit , he stated he first heard of the union or-
ganizing drive on January 5, while he testified he had
heard of it long before January 5
Assuming without deciding , however , that Adkins did
engage in observable and known union activity, I find
and conclude nevertheless that the discharge was moti-
vated solely and exclusively by Adkins' poor job per-
formance and that the discharge decision would have
been made regardless of any such activity on his part.
This allegation is dismissed.
C The Layoffs
Paragraphs 16(e), (f), (g), and (h ) allege the unlawful
layoff of approximately 30 employees on May 27, 1983,
24 on June 10, 4 on June 28, and 35 on July 8.
Relying principally on the testimony of a number of
hourly employees that there were unfinished hulls in the
yard , admissions that certain skilled employees were
hired during the period of layoff, and evidence of other
unfair labor practices involving threats of discipline and
closure, the General Counsel and the Charging Party
contend that these layoffs, which occurred after the
March 18 election and at a time when the results of that
election were under attack by the Union, were unlawful-
ly motivated. They have ignored , however , what should
have been obvious to all, particularly the Union which
represents large numbers of shipyard employees else-
where-the demand for offshore supply vessels disap-
peared in 1983 and the shipbuilding industry was experi-
encing a deep recession
Vice President Carman , whose testimony I credit as
clear, convincing , candid , and consistent with other doc-
umentary evidence , was appointed to the position as
head of the Palatka yard on April 14, after the election
and after the termination of Tenore and other top offi-
cials. He had considerable experience in the shipbuilding
business and I accept his testimony as to the state of the
industry in 1983: that there had been a dramatic down-
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turn in offshore drilling and the need for vessels which
already were in a state of oversupply. The yard obtained
no new contracts in 1983 and work on unfinished supply
vessels was canceled. Work on the large Grand Republic
commenced in late 1982 with a delivery date in late May
to meet the needs of the summer season. The work force
increased to 285; as the steel and fitting work was com-
pleted, electrical and carpentry work increased and em-
ployees were given the opportunity to transfer to those
departments. The extent and the timing of the layoffs
were dictated solely by estimates of need There is no
evidence or suggestion that the Respondent intentionally
refused new contracts or canceled old ones.
The layoffs were conducted on the basis of objective
criteria: The personnel department assigned points on the
basis of attendance, discipline, and length of service; su-
pervisors completed job evaluations without knowledge
of their use; and, by department, employees with the
lowest points were laid off.
Following the first layoff, approximately 20 first-class
electricians and 7 skilled finish carpenters were hired
under contract to work on the ferry. None worked
beyond the July 6 delivery date and none of the laid-off
employees possessed their skill.
Both union adherents and others whose sympathies
were unknown were laid off.
Assuming without deciding that Carman, who made
the layoff decisions, knew of the sympathies of each em-
ployee, I find and conclude that each of the layoff deci-
sions was made solely and exclusively for legitimate busi-
ness reasons; that union activities at the yard in general
and the activities of individual employees played no role
whatever in those decisions, and that, in any event, the
same decisions would have been made regardless of
union activity. There is no evidence of union animus
and, as found below, there are no unfair labor practices
or other objectionable conduct. The industry was de-
pressed and no new work was contracted. Existing work
was canceled. And, finally, the layoff procedure was a
nondiscriminatory one.
D The Failure to Recall
On the first day of the hearing, the General Counsel
amended the complaint to allege an unlawful failure to
recall laid-off employees . No evidence of discriminatory
recall procedures was offered and the General Counsel
argues only that those procedures do not constitute valid
offers of recall , addressing only 1-1/2 pages to this alle-
gation . This allegation must be dismissed because the lay-
offs were not unlawful . It must be dismissed also for a
substantive reason : The recall procedures were nondis-
criminatory , providing for written and telephonic con-
tact to these laid-off employees and for their evaluation
along with other applicants on an equal experience/equal
comparability basis Some have been reemployed , others
have - refused reemployment, and the process is continu-
ing.
E. Other Unfair Labor Practices and Objections
1. December 1982 discharge threat of Serna and
Burgett
Paragraph 6(a) of the complaint alleges that in Decem-
ber 1982 (before any union organizing activity) Painting
Foreman Burgett and Carpentry Foreman Serna threat-
ened employees with discharge if any engaged in union
activity.
Welder Davis (discharged January 11) and his wife
testified that the two foremen regularly visited their
home after work; that Burgett said that Vice President
Tenore had instructed them to fire an employee if the
Union was mentioned; and that, during the conversation,
they had consumed beer and had smoked marijuana.
Burgett, who was not Davis' supervisor, testified that
the meeting occurred in early or mid-December; that
Davis initiated a discussion of unions, noting that he had
lost his last job because of union activity; that he replied
only that, if an employee does his job, there is no need
to worry; that Davis had beer and marijuana, which Bur-
gett smoked; and that he said nothing about Tenore,
since Tenore had not given any instructions as to how to
deal with union supporters. Foreman Serna, who did not
supervise Davis, testified that social visits to Davis' home
were common; that Davis raised the issue of a union;
that nothing was said about Tenore; and that all four
were high on drugs and alcohol.
I find and conclude, based on the admissions of Davis
and his wife and the testimony of Serna, which I credit
as convincing based on my observation of his demeanor
on the witness stand, that all participants to this social
gathering were consuming beer and smoking marijuana
and that their recollections therefore are so impaired by
reason of alcohol and drugs as to render their testimony
unreliable
This allegation is dismissed for want of credible evi-
dence.
2. The December 1982 actions of Foreman Turk
Paragraphs 7(a), (b), and (c) of the complaint allege
that Welding Foreman Turk, on December 21, 1982
(prior to any organizational activity), unlawfully interro-
gated and threatened employees concerning their union
activities.
Welder Caro (discharged January 11) testified on
direct that the only time his foreman, Turk, discussed the
Union was I week before any union was even ap-
proached and that Turk inquired whether Caro was in-
volved in union activity, noting that his name and those
of two crane operators were "brought up" and that such
activities "had better cease."
Turk admitted asking Caro, at Tenore' s request,
whether he favored a union ; that Caro said, "No"; and
that this was reported to Tenore He testified, however,
that neither he nor Tenore referred to Caro as a ring-
leader or to any other employees; that no threats were
made; and that this conversation occurred possibly 2-3
months before any union campaign , which would place
the activity in the period of September-October 1982.
OFFSHORE SHIPBUILDING
For the reasons set forth in section II , B,I and 2 above,
I credit the testimony of Turk over that of Caro. Organi-
zational activity began on December 26, when employee
Danforth visited the union offices in Jacksonville; card
signing and the wearing of insignia did not begin until
after January 1, the Company first had notice from the
Union on January 10; membership of the employees' or-
ganizing committee was not disclosed until after January
12; there is no evidence other employees were aware of
this interrogation , the first charge was filed on January
11, less than 6 months from the date of the incident; and
at no time did the General Counsel move to amend the
complaint.
I find and conclude that an interrogation , otherwise
unlawful, occurred in September-October 1982 of a
single employee as to his union sympathies generally;
that it was a remote and isolated incident ; and that it is
not fairly encompassed within the scope of paragraph 7
of the complaint.
The allegations of paragraph 7 are dismissed.
3. The "no-return-to-automobile" rule
Paragraph 8(a) alleges the unlawful promulgation of a
rule prohibiting employees from returning to their auto-
mobiles during lunch or other breaks . Fitter-welder Pugh
(discharged April 14) and welder Adkins (discharged
January 7) testified that the rule was issued for the stated
reason that employees were getting drunk and cars were
being damaged . Night Superintendent Crowe] testified
that the rule was imposed because of evidence , in the fall
of 1982 , of drug and alcohol use in the parking lot, vehi-
cle damage , and theft of parts.
For the reasons set forth in section II,B,4 above, I
credit the testimony of Crowel . There simply is no evi-
dence to suggest that the rule was designed to, or had
the effect of, interfering with the Section 7 rights of em-
ployees. On the contrary, the evidence is undisputed that
vehicles were damaged and employees were consuming
intoxicants during lunch. Union literature had been, and
continued to be, distributed outside the gate without re-
striction by the Company and without complaint by the
Union or the employees . I find and conclude that the
rule was promulgated solely and exclusively for the pur-
poses of plant safety and automobile security and that
such a rule would have been promulgated, given the ex-
periences of 1982, regardless of union activity at the
yard
Paragraph 8(a) of the complaint is dismissed.
Paragraph 15(e) alleges the unlawful issuance of a
warning to welder Peterson (laid off May 27) on January
11. The no-return -to-automobile rule had been modified
for the night crews, because , unlike the day crews, there
was no lunch truck in the yard for the benefit of the em-
ployees working at night There was one proviso: Time-
cards had to be left with the foreman to provide for
some accountability of the comings and goings of night-
shift employees . Admittedly, the rule and its proviso
were known to all employees and this allegation involves
only the enforcement of the proviso against a single,
black employee
Peterson testified that he had obtained permission from
his foreman to go to the store during his lunch break, but
547
forgot to comply with the timecard proviso. He was
given a written warning , which was reduced to a verbal
warning when he refused to sign it . On cross-examina-
tion, he admitted that two other employees also were
warned for violating the proviso.
Quarterman Vermeulen testified that Peterson accused
his foreman of racial prejudice , stating that he was being
warned only because he was black . Superintendent
Crowel confirmed that the timecard rule had been ap-
plied to all night -shift employees ; that others had been
warned for its violation ; that Peterson was not given a
written warning ; and that Peterson cried "racial discrimi-
nation" and made no reference to the Union.
For the reasons set forth in sections 11,13,4 and 5
above, I credit the testimony of Vermeulen and Crowel.
Peterson , on the other hand , was a hostile, unconvincing
witness, who, together with J Thomas , gave false testi-
mony concerning his "hurt back" which prevented him
from helping Thomas carry the portable floodlight (sec
II,B,4 above) Peterson never reported an injury and,
indeed , held the pole erect later that night while it was
being rewelded.
Assuming without deciding that Peterson (who never
was identified by the Union to the Company as a union
supporter , as it did for 33 other employees ) did engage in
known or observable protected concerted activity, I find
that this rule, otherwise valid , was not disparately en-
forced against Peterson because of his union activity and
that the Respondent would have warned him regardless
of any such activity.
Paragraph 15(e) of the complaint is dismissed.
4. January 4 threat of Foreman Drew
Paragraph 9(a) alleges that Foreman Drew , on Janu-
ary 4 or 5, threatened employees with discharge if they
engaged in union activity.
Pipefitter Cox (laid off June 10) testified that Drew
stated , on January 4, that he had attended a meeting and,
if he heard any discussion of the Union or saw any union
pins, employees would be fired Drew denied making
any such statement , admitting that he warned employees
about passing out union cards on "company time."
I am unable to credit Cox, who is involved in a
number of incidents in this case . He clearly was an eva-
sive witness, willing to relate the entire story only after
aggressive cross-examination . Moreover, his testimony
was contradicted by his affidavit as to whether he initiat-
ed the conversation by asking Drew how he felt about
the Union. And, lastly, two of the threats which Cox at-
tributes to Drew were not even mentioned in his Board
affidavit, given only weeks after the incidents. Drew, on
the other hand , was a convincing witness, one who
stated the facts with candor As with Turk, I have the
clear feeling that his heavy involvement in this case
stems from his more traditional work ethic, a view
shared by few of the hourly employees who testified in
the case
I find and conclude that employees were told by
Drew only that they were not to distribute union cards
on "company time" and that such directions are not un-
lawful. Our Way, Inc., 268 NLRB 394 (1983).
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 9(a) of the complaint is dismissed.
5. The January 5 threats of Foreman Drew
Paragraph 9(b) alleges that , on January 5, Foreman
Drew unlawfully threatened employees with discharge
for union activities and singled out an employee as
having engaged in union activities
Pipefitter Story testified that Drew , at a preshift meet-
ing with 12 employees , stated that employees would be
discharged and sent "to Jacksonville to loin the Union"
if they thought the Union could do anything for them;
that employees talking about a union would be dis-
charged ; and that , singling out three employees by name
(including A Prime), he asked , "Have you got that?"
Pipefitter and welder Prime corroborated this testimony.
I have previously credited the testimony of Drew (sec.
II,E,4). Similarly, I credit the testimony of Story, which
was straightforward and convincing . Faced with the
conflicting testimony of credible witnesses , I must never-
theless resolve that conflict by looking to the probabil-
ities . that such a statement would have been made by this
foreman , at this early point in the campaign , and in this
kind of a campaign . I conclude that Story must have mi-
sheard or misinterpreted Drew 's instructions about not
signing cards on company time. Story 's version was cor-
roborated only in part by Tomlinson . But, most impor-
tantly, the threats attributed to Drew do not make sense.
The mere existence of a sympathy , unexpressed, would
hardly cause a foreman to discharge an employee; to ask
an employee to reveal his sympathy so as to invite dis-
charge is unlikely; to threaten to send a sympathizer to
Jacksonville to join the Union is unintelligible; and to
threaten discharge conflicts with the testimony of some
employees that some pins and insignia were already on
display,at work The tenor of the record as a whole, as it
relates to the Company 's posture in the campaign , simply
conflicts with Story 's recollection of the meeting.
I therefore credit Drew's version : that he warned em-
ployees about passing out union cards on company time
and that, ' when Prime snickered , he added , "Got that,
Al?"
Paragraph 9(b) of the complaint is dismissed.
6. The January 7 threats of Foreman Drew
Paragraphs 9(c) and (d) allege threats of discharge and
reprisals on January 7 by Drew.
Welder Davis testified that, on January 7, he over-
heard Drew tell a leadman, "If you see him [Prime] stop
and talk with anyone, fire him." Prime testified that the
leadman was told to watch him for violations, that the
leadman said he had "orders" from Drew to fire him;
and that brew told another pipefitter not to sign a union
card "or you'll be in trouble " Drew denied making any
such statements.
For the reasons set forth in section 11,E,4, I credit
Drew's denials. Davis' testimony already has been found
to lack credibility (sec. II,B,2). And Prime, whose testi-
mony is inconsistent in part with that of Davis, is found
below, in section 11,E,16, to be lacking in credibility In
addition, such alleged threats conflict with the tenor of
the whole campaign, from Tenore down, which was
"business as usual."
Paragraphs 9(c) and (d) are dismissed.
7 The January 10 interrogation of Foreman Drew
Paragraph 9(e) of the complaint alleges an unlawful in-
terrogation of an employee on January 10. Cox (laid off
June 10) testified that Drew asked him what the employ-
ees were "talking about" and what he "thought" of the
Union , and that Drew also repeated an earlier statement
that employees were not to discuss the Union. Foreman
Drew denied making any such statement
For the reasons set forth in section II,E,4 above, I
credit Drew's denials; the testimony of Cox is not cred-
ited for the reasons set forth in section 11,E,4 above.
Accordingly, paragraph 9(e) is dismissed.
8. The January threats of Assistant General
Manager Childress
Paragraph 9(f), as amended at the hearing, alleges that
Assistant General Manager Childress informed employ-
ees of the futility of supporting the Union; threatened to
reduce wages; and informed employees of the inevitabil-
ity of a strike. Welder McDougal (laid off June 10) testi-
fied that Childress told him and other employees at a
meeting that the Union had a "30% chance of coming
in"; that negotiations would begin at the minimum wage;
and that, under Florida law, the Company had the right
to hire replacements.
Childress testified that employees at the meetings were
told the Company would bargain in good faith "up or
down," but would not yield anything on economics, that
nothing was said about minimum wages, the outcome of
bargaining, or reduction of wages; that employees were
told that, under Florida law, economic strikers could be
replaced after an impasse in bargaining ; and that employ-
ees were told the Company would be required to bargain
exclusively with the Union as to wages and working
conditions, but would still talk with its employees.
I found Childress to be a credible witness. His testimo-
ny was clear and convincing and, as a top management
official terminated by the parent company in April 1983,
he lacked the usual partisan bias. McDougal, on the
other hand, was wholly lacking in credibility. His testi-
mony on direct (as to this and other allegations discussed
below) bore no resemblance to that on cross-examina-
tion, and he contradicted himself continually and was
evasive. In short, McDougal did not come to the witness
stand prepared to heed his oath to tell the "whole truth."
Paragraph 9(f) is dismissed for want of credible evi-
dence.
9. January 15 threats and interrogation of Foreman
Drew
Paragraph 9(g) alleges an unlawful threat of physical
harm, threat of discharge, and interrogation at a bar on
January 15.
Cox (laid off June 10) testified on direct that, shortly
after his "leave of absence" (see sec. 11,E,17 below), he
was drinking in a bar when his friend Drew (with
others) entered, stating that he wanted to "whip some
OFFSHORE SHIPBUILDING
union people asses"; that the Company would close the
gates before letting the Union in, and that Cox could
keep his job only if he stated in writing his opposition to
the Union. On cross-examination, Cox admitted being a
tough, experienced barroom fighter, having knocked a
man unconscious in such a fight only 2 weeks prior (re-
sulting in his injured hand), that he asked Drew what he
thought of the Union; and that, in his affidavit of Janu-
ary 1983, he did not mention any threat to close the
yard.
Foreman Drew testified that he had started celebrating
his birthday that night at another bar; that Cox ap-
proached him to talk ("just between you and me") about
the Union and his inability to get light duty for a self-
inflicted hand injury; that no threats or interrogations
were made by him; and that both he and Cox were by
that time "high" due to alcohol consumption
As in section II,E,1 above, I find and conclude that
the recollections of Cox and Drew are so impaired due
to the consumption of alcohol at a bar as to render their
testimony unreliable Accordingly, this allegation is dis-
missed for want of credible evidence.
10. The January threats of Quarterman Turner
Paragraphs 10(a) and (b) allege an unlawful surveil-
lance and threat of discharge in early January.
Welder Prime testified on direct that Turner said that
Foreman Drew was under pressure from Vice President
Tenore to "get rid of a lot of people" and Drew told
Turner "I know" Prime is behind the union activity.
Both Turk and Turner denied making any such state-
ments
For the reasons set forth in section II,E,16 below, I am
unable to credit the testimony of Prime. Turk's testimony
has been credited above in section II,B,2 and I found
Turner to be a straightforward and convincing witness
whose denials were consistent with what I find to be the
tenor of this quiet campaign at the shipyard.
These allegations are dismissed.
11 The January 17 job transfer of Knowles
Paragraphs 12(a) and 15(c), as amended shortly before
the testimony of Knowles, allege an unlawful job trans-
fer of mechanic Knowles.
On direct, Knowles testified that, on January 17, he
was told by Crane Foreman McRae that he was being
reassigned to forklift operator because his name appeared
on the "union list." On cross-examination, however,
Knowles admitted that his affidavit of January 26 stated
that the conversation occurred on January 10 (2 days
before the Union sent such a list of employee participants
to the Company); that he changed his mind as to the
date only after discussions with counsel for the General
Counsel several weeks before his testimony; that he did
not receive a wage reduction with the transfer; and, re-
markably, that he had asked McRae at least 3-4 times to
be transferred to the forklift. Comechanic White testified
that Knowles violated instructions while he was a me-
chanic, operating a piece of machinery and causing
severe damage. McRae denied ever mentioning the
Union to Knowles, let alone referring to any union list,
549
and confirmed Knowles' repeated requests to be a fork-
lift operator and his poor performance as a mechanic.
Knowles' testimony is rejected in its entirety as un-
worthy of belief. He admitted, on cross-examination, re-
questing the very transfer which is alleged to be unlaw-
ful. And, most importantly, his correction of his original
affidavit, after realizing (after discussions with counsel
for the General Counsel) that McRae could not have re-
ferred to a union list which had not yet been sent by the
Union, raises grave questions as to whether the 'incident
was manufactured for purposes of the charges filed
against the Company.
These allegations are dismissed.
12. The March 1 threat of Personnel Manager
Stewart
Paragraph 12(c) alleges an unlawful threat by Person-
nel Manager Stewart to close the plant. Fitter helper R.
Caro (laid off July 8) testified on direct that, at a man-
agement meeting with employees a couple of weeks
prior to the March 18 election, Stewart, after showing
news stories of other companies which had gone out of
business, stated, "[I]f the Union comes in, we'd lose-most
of our business." On cross-examination, Caro admitted
that the Stewart statement was not all that was said and
that employees were told that other yards, union or non-
union, were shutting down because of a downturn in the
oil industry; that the yard had to remain competitive;
that job security was determined by good business, and
that the Company was "not saying the Union would
close the yard down, but that it had to be competitive."
On redirect, Caro testified that Vice President Tenore, 'at
other meetings prior to the election, said "the Company
would close the yard if the Union came in; we would
not have the Union in this yard " This latter statement, if
made, is not alleged in the complaint as a violation.
Stewart testified that he and Assistant General Manag-
er Childress conducted roundtable meetings with em-
ployees to discuss job security because union literature
said the Union could guarantee job security at the yard;
that they said job security depends on contracts and
quality of work; that there was a sharp downturn in the
shipyard industry, resulting in 23 yards that were bank-
rupt or had layoffs; and that at no time were employees
told the yard would be closed or that other yards were
closed due to union activity or that there would be no
contracts if the Union prevailed.
This allegation must be dismissed if for no other
reason than the aunission of Caro that no such threat
was made. Moreover, a threat of closure could not rea-
sonably be inferred from the statements made. And, in
any event, for the reasons set forth in section II,B,1
above, I credit the testimony of Stewart that no such
threat was made or suggested.
13. The January threats of Vice President Tenore
Paragraphs 13(a) and (c) allege the unlawful distribu-
tion of a document on January 12 which warned em-
ployees that they forfeit the right of self -representation if
they sign a union card and an unlawful threat on January
29 to close the plant.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the former, received as General Counsel's Ex-
hibit 10 (a notice distributed to all employees on Janu-
ary 12 with their payroll checks), the notice advises em-
ployees, in part, not to sign cards unless they are sure
they understand "what it means" and its effect on them
and states that, after Board certification of the Union, the
Company must deal only with the Union concerning the
wages, hours, and working conditions of all employees,
regardless of whether an employee has signed a card or
joined the Union. This allegation must be dismissed for
the reason that the statements made concerning self-rep-
resentation were nothing more than a lawful reminder of
the principle of majority rule which is central to the na-
tional policy of fostering collective bargaining. Empori-
um Capwell Co. v. Western Addition Community Organiza-
tion , 420 U.S. 50 (1975). Board precedent is clear that
such statements are lawful. NLRB v. Sacramento Clinical
Laboratory, 623 F.2d 110 (9th Cir. 1980); WHLI Radio,
224 NLRB 1540 (1976).
As to the latter, welder McGuire (laid off May 27,
1983) testified that, on January 29, Tenore said at a yard
meeting he would close the plant first, before a Union
came in. Pipefitter Tomlinson, leadman Fine, leadman
Keith, and welder Crews testified that Tenore spoke not
of closure, but of a promise to do everything "legally
possible" or "in my power" to keep the Union out of the
yard. Personnel Manager Stewart, who wrote the
Tenore speech, testified that it was delivered against a
backdrop of an NLRB publication concerning employee
rights; that Tenore told employees he did not want a
union and he would do everything "legally possible" to
keep it out, and that Tenore said nothing about closure,
saying only that "I've worked too hard to make this
yard to close the doors; we're here to build ships." Chil-
dress and Tenore corroborated this testimony, with
Tenore adding that he would not close the yard, "not
with nine members in my family." This allegation also
must be dismissed . For the reasons set forth above in sec-
tions II,B,1, and 8 , I credit the testimony of Stewart,
Tenore, and Childress. Their testimony was also cor-
roborated by a number of hourly employees who attend-
ed the meeting
14. Tenore's January promise of improved parking
areas
Paragraph 13(b) alleges that, on January 14, Tenore
made a promise of improved parking areas. Fitter Pugh
(discharged April 14, 1983) testified that Tenore, at a
yard meeting in mid-January, told employees he would
build a second parking lot for employees and would
have guards watch the car. Night Superintendent
Crowel testified that staff discussions as to relocation of
the parking lot began in the fall of 1982 as a result of an
increase in the work force and an increase of vandalism
of parked vehicles and that land was leased for a sepa-
rate lot for employees next to the security building.
Tenore testified that, because of a rapid growth of the
yard in the second half of 1982 and anticipated future
growth, additional land was leased in 1982 for construc-
tion of a parking lot away from the dangers of produc-
tion work (spray paint, etc.) and nearer the security
building.
This allegation must be dismissed. The evidence is
clear and uncontroverted that the Respondent had made
plans for the improved parking areas long before the
Union made an appearance at the yard and that there ex-
isted a lawful business reason for making such improve-
ments. There simply is no credited evidence (see sec.
II,B,5 above re the noncredibility of Pugh) to suggest
that this conduct was motivated in any respect by a
desire to unlawfully influence the employees in the exer-
cise of their Section 7 rights.
15. The January threatened transfer of Pugh
Paragraph 14 alleges an unlawful implied threat on
January 13 to transfer Pugh because of union activities.
Fitter Pugh (discharged April 14) testified that, on
January 13, Foreman Kaczmarek Senior interrupted his
lunchtime discussion of the Union to tell him to report
after lunch to the office; that there he told Pugh of a de-
cision to transfer him to the night shift because of a need
for welders; and that, after Pugh advised Superintendent
Cook of his need to remain with his pregnant wife, the
transfer was rescinded on the vice president's "personal
orders." Pugh admitted that no reference was made to
his union activities. Kaczmarek Junior, a machinist who
rode back and forth to work with his father, testified
that, in late January or early February, his father told him
that the Company was making hardships for union sup-
porters and that Pugh was transferred to the night shift
"because of union activities"; and that, in February, his
father said they were transferring an unproductive em-
ployee (Pugh) to an undesirable shift. He acknowledged,
on cross, that his father frequently complained of Pugh's
lack of production; that his father said Pugh was dis-
charged for lack of production; and that, if there had
been any other reason for the discharge, his father would
have said so to his son.
Kaczmarek's son-in-law, fitter Walden (who also car-
pooled with The Kaczmareks), testified that, long before
any union activity at the yard, Kaczmarek Senior said, if
any employee were transferred to the paint crew, the
employee would quit because of the hard work involved;
that Kaczmarek said he was told to transfer Pugh to
welding, that Kaczmarek said a number of times he was
not pleased with Pugh's production and work habits;
that, when he, Walden, was working with Pugh, they
were removed from an assignment because they were
too slow and took "too long" to do the job; and that
Kaczmarek never said anything about Pugh's union ac-
tivity. McDonald, the fourth member of the carpool (and
a future son-in-law), testified that Kaczmarek said the
best way to get rid of an employee was to transfer him
to the paint crew; that Kaczmarek said Pugh would be
transferred to another shift (where welders were needed)
because he did not like Pugh talking about the Union on
company time, and that Kaczmarek told employees "nu-
merous times" he did not care if they talked about the
Union on their own time, but they were to work on
company time.
Kaczmarek Senior testified that he chose Pugh for
transfer to the night shift because a welder was needed
and only Pugh was a qualified air arc welder It should
OFFSHORE SHIPBUILDING
be noted at this point that this testimony was not refuted.
He also testified that Pugh's known union support was
not a factor in his decision, adding that he "couldn't care
less about the Union." Cook corroborated this testimony,
adding that Pugh had been originally hired as a welder
and that the night shift needed a welder temporarily.
This allegation must be dismissed because the decision
(later rescinded) to transfer Pugh was not related in any
way to Pugh' s union activities, but rather was to provide
the night shift with the services of an experienced arc
welder. I have previously credited the testimony of
Kaczmarek Senior and Cook in sections 11,B,5 and 2,
above, and, in section II,B,5, found Pugh's testimony to
lack credibility. At the same time, I find, based on de-
meanor observations, that all members of the Kaczmarek
carpool (Kaczmarek Senior's extended family) were
honest and trustworthy witnesses . Their testimony, how-
ever, was not consistent as to dates and as to the sub-
stance of Kaczmarek Senior' s remarks This is to be ex-
pected, since they consumed a couple of six-packs of
beer driving home from work when their conversations
occurred. Reconstructing those conversations (as I must)
as they relate to Pugh, I find that Kaczmarek Senior
voiced displeasure as to Pugh's work performance and
Pugh's discussions of the Union with other employees
when they should have been performing their work, but
gave no indication that any transfer of Pugh was for the
unlawful purpose of interfering with Pugh's union activi-
ties. Any testimony of carpool members to the contrary
represents, I believe, mistaken impressions on their part.
As indicated in section II,B,5 above, Kaczmarek Senior
was a particularly credible witness and I came away
from the hearing with the clear and unmistakable impres-
sion that he truly could not have cared less about the
union campaign and that his sole interest at the yard was
a professional one-to build quality ships.
16. The January warning and suspension of Prime
Paragraphs 15(a) and 16(a) allege the unlawful issu-
ance of a warning to welder Prime on January 7 and a 3-
day suspension of January 21.
As to the January 7 warning, Prime, a known union
adherent, testified that he arrived late at work on Janu-
ary 7; that nothing was said to him at the time and he
gave no excuse; that later during lunch he received a
written warning for being tardy; and that nothing was
said about his union activity at the time.
This allegation must be dismissed for want of credible
evidence (see below for findings on credibility of Prime's
testimony) and for failure to make out a prima facie case
of unlawful discipline. Admitting that Prime was late and
that discipline for tardiness was company practice, the
General Counsel relies, for the inference of illegality, on
the atmosphere at the yard. His position is untenable.
This record is replete with credible, uncontroverted evi-
dence as to the Respondent's concern over tardiness and
absenteeism and its issuance of discipline for those rea-
sons. It was company practice to review attendance
records with Tenore each morning before issuing disci-
pline (thus refuting the time lag argument of the General
Counsel) The credible evidence throughout this lengthy
record simply reflects a "business as usual" attitude on
551
the part of the Respondent, its officers, and supervisors
and a total absence of union animosity. Here again the
General Counsel and the Charging Party mistakenly
have assumed, without proof, that all discipline of union
adherents is unlawfully motivated.
As to the January 21 suspension, Prime testified that,
after work was rained out on the morning of January 21,
he returned to the yard that afternoon, parking in a spot
reserved for a leadman; that Quarterman Turner gave
him a 3-day suspension for insubordination that he
threatened to go to the Board or the Union to "get your
job"; that Personnel Manager Stewart orally discharged
him for the threat; that he was told the next day that he
was only suspended because, as he was an employee
hired on a work-release program with the county jail,
the Company cared about making him a productive
person; that Stewart said he did not care if the Union
came in or not, only that the Company could build
boats, and that, after the 3-day suspension , he was re-
turned to duty. In his Board affidavit, he admitted that
on other occasions other employees had lost parking
privileges for parking in a reserved space. On cross, he
admitted saying, "I'll get Drew fired," as Drew was
scraping the parking permit from Prime's vehicle.
Night Superintendent Crowe] testified that, in January,
his wife was receiving threatening calls; and that, one
night in his office, he received a call from an inebriated
man (whose New England accent he identified as
Prime's) and was asked, "Do you know where your wife
and children are?" Cook, who was told to listen in, also
identified Prime as the caller, saying, "Al, sober up and
go home." Stewart testified that he was called to meet
with Prime concerning the parking incident ; that, be-
cause Prime was incoherent (probably intoxicated) and
abusive, he was terminated by Stewart, that, after consid-
ering that Prime was a work-release employee and
should be given another chance, Stewart met again with
Prime, advising him that he was suspended, not terminat-
ed, and that, on his return to work, they would discuss
his future; that Prime said , "The Union will get you
anyway"; that he replied, "We're talking of your future;
I don't care about the Union"; and that, after the 3-day
suspension , Prime apologized for having been drunk and
was returned to work.
Foreman Drew, a close friend of Prime who picked
him up daily at the jail to drive him to work, confirmed
that Prime was intoxicated and abusive ("I'll have your
job; f- the company"); that he prevailed upon Stewart
to reconsider the termination; and that others were disci-
plined for illegal parking. Quarterman Turner confirmed
Prime's state of intoxication and his threat to have Drew
"punished for that and have your job." He testified that
other employees were disciplined for the identical infrac-
tion.
This allegation likewise must be dismissed . The credi-
ble testimony of Stewart, Crowel, Drew, and Turner
(see secs. II,B,I and 4 and E,4 and 10), as well as the ad-
missions of Prime, demonstrate that Prime, like others
before him, was disciplined for parking illegally; that his
conduct and demeanor at the meetings (brought on by
alcohol and possibly drugs) was the aggravating factor;
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that his known union activity played absolutely no
role in the decision to discipline him Moreover, it
should be noted that Prime's testimony must be rejected
for reasons other than his demonstrated vindictiveness
and his inability to observe due to his consumption of al-
cohol and possibly drugs-as a witness, Prime was a
thoroughly unconvincing witness, demonstrating a con-
venient loss of memory on cross-examination and refus-
ing even to acknowledge the truth of statements previ-
ously given to the Board.
17 The January 10 temporary layoff of Cox
Paragraph 15(b) alleges an unlawful temporary layoff
of 14 days of pipefitter Cox. Cox, on direct, testified that
he requested light duty due to a hand injury; that his
foreman said none was available in that department, but
to see Superintendent Cook; that Cook assigned him to
light duty in the toolroom for 1 week, at which time
there was no further need for him, that Drew, who had
no such light duty available, again suggested he see
Cook, which he did not do; that Carpentry Foreman
Serna said he could use Cox for light duty, adding,
"You're one of those Union f--, ain't you"; and that
he asked for a leave of absence without pursuing the
Serna offer and without seeing Cook about other light-
duty work.
On cross-examination, Cox admitted that his hand
injury was not work related, but resulted from his
knocking a man unconscious in a barroom fight in Janu-
ary; that he had been discharged by the Company two
times before and had threatened Cook's life with a
hammer, that his friend Drew had gotten him rehired
and had always tried to protect his job; and that he had
received a warning and had been talked to many times
before regarding attendance.
Supply Room Foreman Willis testified that Cox and
other employees were assigned light duty in the ware-
house if that work was available; that Cox was returned
to his department when the warehouse ran out of light-
duty work, and that Cox's union activity played no role
"whatsoever" in the decision.
Personnel Manager Stewart testified that company
policy was not to make work for employees injured off
the job and that others, apart from Cox, similarly were
not provided with light duty.
This allegation is dismissed. For reasons set forth in
section 11,E,4, the testimony of Cox, particularly that re-
garding the Serna reference to Cox's union sympathies,
cannot be credited On the other hand, Stewart, for rea-
sons set forth in section II,B,l above, is credited. Willis
appeared to be a candid witness and his testimony was
consistent with other credited evidence relating to work
in the supply room and company policy. The fact of the
matter is that the Company appeared to go out of its
way to find work for an employee with a poor work
record and nonwork-related injury and that Cox volun-
tarily took a leave of absence rather than pursue other
avenues of light-duty work. Assuming the fact of union
activity and company knowledge, I nevertheless find that
the Company's actions in this regard were not related, in
whole or in part, to that protected activity.
18. Assignment of "onerous" duties to McDougal
Paragraph 15(f) of the complaint, as amended and
clarified, alleges the unlawful assignment of bathroom
cleaning duties to welder McDougal on June 2. McDou-
gal testified on direct that Quarterman Vermuelen made
the assignment; that, when he refused, it was counter-
manded immediately by Foreman Turk; that thereafter
he and other welders were temporarily assigned to other
trades in which employees were shorthanded and were
required to work overtime to complete the Grand Re-
public; that he and others also had been assigned non-
welding duties such as scraping grease and hauling tim-
bers; and that he told his superiors he would rather be
laid off than do any such nonwelding work.
On cross-examination, he admitted that other trades-
men had cleaned bathrooms before; that, when he re-
fused, it was performed by another welder; that he told
the Company he would rather be laid off than clean
grease and haul timbers; and that, despite a recent call
from the personnel office to return and fill out an appli-
cation, he "couldn't make it."
Vermuelen, Turk, and Superintendent Crowel each
testified, without contradiction, that all tradesmen in the
production area were periodically assigned bathroom
cleaning duties on a rotating basis
This allegation must be dismissed. The rotating assign-
ments had been the company practice and were made in
a nondiscriminatory manner. It should be noted that the
General Counsel specifically limited the allegation to
bathroom cleaning duties; there is no allegation that the
assignment of degreasing or timber hauling duties or the
requirement of overtime were unlawful as applied to
McDougal. This allegation simply is without any founda-
tion in fact or in law.
19. Policy of monitoring productivity
Paragraph 15(g) alleges that the Company, in mid-Jan-
uary, instituted an unlawful, ad hoc policy of monitoring
welders' productivity.
Welder Danforth (laid off May 27, 1983) testified, on
direct, that in January, after he and Supervisor Turk had
had an argument, Turk marked the point where Dan-
forth and others started welding that day, stating he
would return in a couple of days to see how far the
work had progressed; that Turk had never done that
before; that Turk did not return to observe the progress;
that no discipline was given, and that Turk made no ref-
erence to the Union.
Foreman Turk testified credibly (see sec. II,B,2) that
marking a job to see how much work a welder per-
formed was a longstanding practice of his when he felt a
welder was not producing, and that union considerations
were not involved.
This allegation is wholly without foundation in fact or
in law. Throughout this record there is uncontroverted
evidence of comparisons made in the productivity of em-
ployees and of discipline taken against certain employees
whose productivity was not on a par with the "norm."
Yet the General Counsel does not allege or suggest that
such practices (common in every employment situation
in every industry) are unlawfully motivated . It strains
OFFSHORE SHIPBUILDING
credulity to suggest that this chalk-marking practice is
somehow unlawfully motivated The existence of an or-
ganizing drive does not serve to strip an employer of his
right to conduct his business and to direct his work
force.
20. Objection I-Stewart's preelection statements
Union Objection 1 alleges that, at three employee yard
meetings conducted in the 3-week period prior to the
election, Stewart told employees they "would have to
strike" if they chose the Union and showed a film to the
same effect.'
Fitter Pugh (discharged April 14, 1983) testified that,
at the second of the three meetings, Stewart distributed
and posted literature regarding strikes at other yards and
said that if a union came in "you go on strike" and that
if there were no union there would be no strikes; and
that, at the third meeting, a film showed scenes of strike
violence and employees stating they would not vote for
the union again. On cross-examination, he testified that
Stewart, at the second meeting, did not say "if the Union
came in, you could go on strike." Pipefitter Cox and
fitter helper R. Caro gave similar testimony.
Personnel Manager Stewart credibly (see sec. II,B,1
above) testified that the film was a CBS documentary,
"Strike Town USA," which aired both sides of a labor
dispute by filming discussions at the union hall and inter-
viewing company officials, that a question-and-answer
period followed the film; that Stewart said that no one
wanted that kind of a situation and that he hoped good
judgment would prevail; and that the possibility of a
strike at the yard if the Union were selected was never
discussed Assistant General Manager Childress corrobo-
rated this testimony (see sec. 11,E,8 for credibility find-
ings re Childress).
The scope of this objection, as specified by counsel for
the Petitioner at the hearing (see fn. 1 above) is limited
to a prediction of a strike made verbally by Stewart and
emphasized through the documentary film. Argument of
counsel which goes beyond that scope is disregarded.
Objection 1 is overruled as unsupported by the credi-
ble evidence The testimony of Cox and Pugh is not
credited for the reasons set forth in sections II,E,4 and
II,B,5. I therefore find and conclude that no such threat
or prediction was made, that calls for the exercise of
good judgment and the use of films depicting, impartial-
ly, the anatomy of a labor dispute are privileged employ-
er conduct under Section 8(c) of the Act, and that the
possibility of free employee choice was not negated.
I Because the Petitioner's objections were couched in general, nonspe-
cific terms, the Petitioner was asked at the hearing to give specifications
of those objections not already encompassed by the unfair labor practice
allegations Those unfair labor practice allegations have been considered
in secs 1I,B,C,D, and E(l)-(19) and will not be considered further Secs
II,E(20)-(25) consider only that objectionable conduct not included in the
unfair labor practice allegations Postheanng brief arguments of the Peti-
tioner which go beyond the scope of the objections as clarified are disre-
garded The Respondent's "Motion to Reopen Hearing of April 10,
1984," requesting that the hearing be reopened to meet one of the Peti-
tioner's "new" contentions in connection with its Objections 5 and 7, ac-
cordingly is denied
21. Objection 2-Childress' warnings of no orders
and closure
553
Objection 2, as clarified at the hearing, alleges that As-
sistant Manager Childress, at three employee meetings,
warned that the Company could get no orders if the
Union came in and that the yard "probably" would have
to close if the Union came in
Fitter Pugh (discharged April 14, 1983) testified about
Childress' remarks at the first of the three meetings prior
to the election. other yards have closed or laid off em-
ployees; a union not needed at this yard; and good for
management to wake up and make improvements He
did not testify as to probable loss of orders or closure.
Pipefitter Cox gave similar testimony. Their testimony is
not credited for the reasons set forth in sections II,B,5
and II,E,4, above.
Personnel Manager Stewart's credible testimony (see
sec. 11,B,1) concerning the meetings which he and Chil-
dress conducted is set forth in section II,E,12 above and
is incorporated herein. Childress gave similar testimony.
that employees were advised of the depressed state of
the industry and the market glut and that job security
depends on a quality product at competitive prices; that
he did not warn of or predict closures, layoffs, or loss of
contracts if the Union were voted in; and that he said the
Company would "attempt to continue operations and at-
tempt to negotiate contracts and continue to build ships."
His testimony is credited for the reasons set forth in sec-
tion 11,E,8 above.
Objection 2, as clarified at the hearing to allege only
loss of orders and probable closure, is overruled for want
of credible evidence. That job security depends on a
continuation of this highly competitive business is self-
evident and employer reminders to this effect are pro-
tected under Section 8(c) of the Act. W & F Building
Maintenance Co., 268 NLRB 849 (1984).
22. Objection 3-The February 1983 pay raises
Union Objection 3 alleges that Superintendent Cook,
in late February 1983, gave McDougal and R. Caro a
raise for the purpose of influencing their votes in the
March 18 election. Reference in the Petitioner's brief to
pay raises to two other hourly employees is disregarded
as outside the scope of the objection and as representing
issues which were not litigated.
McDougal testified that he was given a 50-cent-an-
hour raise in late February and, 2 weeks later just prior
to the election, another 35-cent raise. Caro gave similar
testimony, adding that Cook said at the time, "You de-
serve more, I don't give a damn about the Union."
Superintendent Cook testified that McDougal and
others were given raises in accordance with usual proce-
dures which were developed by the Company as it grew
"from a sandbox." He testified that paperwork delays
often resulted in the raises taking effect as long as a
month after they were granted; that the Union was not
considered ("no way of knowing if McDougal was in the
Union"); that Caro's raise was in keeping with a policy
of providing an incentive to procure better attendance;
and that McDougal, who had been hired originally at a
second-class level, was given the raise when he proved
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
himself during a probationary period . His testimony was
uncontrovei ted
Generally speaking , the granting of benefits by an em-
ployer during a union campaign may constitute an 8(a)(1)
violation warranting a rerun election . NLRB v. Exchange
Parts Co., 375 U.S 405 (1964). However , it is not , per se,
grounds for setting aside the election ; the inquiry is to
determine if the wage increase was governed by factors
other than the pendency of an election . Performance
Measurements Co., 148 NLRB 1657 ( 1964). In granting-
and withholding-benefits , an employer is bound to act
as though the union were not in the picture Essex Inter-
national, 216 NLRB 575 (1975).
The credible and uncontroverted evidence here estab-
lishes that this shipyard , whose work force more than
quadrupled in a 6-month period, had not yet established
a rigid policy or practice concerning pay raises . A great
amount of discretion was vested in supervisory person-
nel, who were trying to build a reliable force of qualified
workers by giving wage inducements to reduce absentee-
ism and to reward productivity In addition , the evidence
is clear that , as a result of the yard's rapid growth, pa-
perwork was unable to keep up with decision making.
Thus, individual wage increases lagged far behind super-
visors' decisions to grant them In this case, the increases
to two hourly employees came during the critical period
following the filing of the petition on January 31, 1983.
There is no suggestion that these two individual in-
creases were pretexual or not warranted. Indeed, neither
employee testified that their increase was unexpected.
Nor were the increases of the across -the-board variety
which more likely would be expected to influence the
more than 200 unit employees . Considering the total ab-
sence of unfair labor practice violations before or after
the petition , the "business as usual" attitude of manage-
ment at the yard, and the absence of evidence that other
employees knew of the raises, I find and conclude that
the granting of small wage increases to two hourly em-
ployees was not motivated , in whole or in part, by a
desire on the part of the Respondent to influence the
vote; that it was in accordance with company "practice",
and that , viewed objectively , it could not have created
an atmosphere which could prevent or impede free em-
ployee choice Sewell Mfg. Co, 138 NLRB 66 (1962)
23 Objections 4 and 8-Other promises of benefits
Objections 4 and 8 allege promises of benefits by com-
pany officials
Pugh testified that, at the first employee meeting, Chil-
dress hinted at improved conditions and new lights in the
shipyard; that Tenore urged employees to voice com-
plaints and agreed to the relocation of a timecloc.c, bo-
nuses, and training for supervisors and leadmen, and that
the company president, at a ship-launching party, prom-
ised to treat employees better "because we don't want to
go through this Union shit every year." Pipefitter Cox
also testified about promises of improved working condi-
tions. They gave no testimony concerning a promised
bonus and, in any event, for reasons set forth in sections
II,B,5, and 11,E,4, I am unable to rely on their testimony.
This, of course, completely disposes of the allegations as
to statements of the company president (whose name was
unknown, who worked out of New York, and who did
not have any involvement in the day-to-day work of the
hourly employees) while drinking beer with several em-
ployees.
Night Superintendent Crowel testified that these im-
provements, necessitated by the rapid increase of the
work force and the poor conditions of the yard which
the Respondent had acquired, were discussed as early as
May 1982; that lighting for the night shift was ordered in
1982, but not installed until March 1983 ; that vending
machines and picnic tables were planned in 1982, and
that these future improvements probably were mentioned
to employees because Vice President Tenore liked to
keep employees informed of future plans. Tenore con-
firmed that lights were ordered in 1982 as a part of the
yard's development and that picnic tables(which he in-
stalled in other yards which he directed) were discussed
and planned for also in 1982. Assistant General Manager
Childress testified that, since the Company was a new
yard with growing pains, there were plans for superviso-
ry training regardless of whether the Union came in.
Their testimony is credited for the reasons set forth in
sections 11,B,4 and 1, and II,E,8.
I find and conclude that the improvements (new park-
ing lot with security, lighting for the new night shift,
picnic tables, etc.) were planned in 1982 and, in the
normal course of things (planning, purchasing, construc-
tion , and installation), were not in place until 1983; that,
given the rapid growth of this new yard in 1982, supervi-
sory training was contemplated in 1982, and that these
improvements and training plans were not motivated by
a desire to influence the employee vote. In this respect,
the Petitioner confuses natural new company growth and
development with vote purchasing and a strong employ-
er desire to remain nonunion with union animus.
Objections 4 and 8 are overruled
24. Objection 5-"Deduction" of union dues
Objection 5, as clarified at the hearing, alleges that
"the last paycheck received by the employees prior to
the election, the Company deducted what was allegedly
union dues from that paycheck; gave the employees two
paychecks with a note implying that what they had de-
ducted would be required if they voted for the union."
Posthearing argument of the Petitioner as to "misstate-
ments" and "misrepresentations " are disregarded as out-
side the scope of the objection.
There is no factual dispute and the Respondent con-
cedes that two checks were issued, one representing the
cost of union dues, the other for the balance of the total
earnings due for that pay period. No moneys were de-
ducted.
Board law is clear that employer reminders to employ-
ees that acquiring union membership necessarily involves
monetary considerations are unobjectionable Patchett's
Bus Transpnrtation, 253 NLRB 996 (1981).
Objection 5 is overruled.
25. Objection 7-Speech denouncing the Union
Objection 7, as clarified at the hearing , alleges the un-
lawfulness of speeches given by the Company' s president
OFFSHORE SHIPBUILDING
and personnel manager Stewart to the employees during
a ship-launching ceremony denouncing the Union as no
good and stating that there was no need for a union in
the yard Original allegations of a premature ship launch
and the serving of beer to influence the vote were aban-
doned.
Employees Pugh and Cox, whose testimony I am
unable to rely on for the reasons set forth in sections
II,B,5 and 11,E,4 above, testified that the ship was
launched prematurely (i.e., not finished) immediately
prior to the election; that free beer was served, and that
company officials said they did not need a union "to tell
us how to run our business" and urged the employees to
vote "right" and to "vote NO tomorrow "
The undisputed evidence is that all ships are launched
70-75 percent completed because certain work can be
done only after the ship is in the water
Objection 7 is overruled for want of credible evidence
relating to the subject matter of the employer speeches at
the launch In any event, Section 8(c) of the Act makes
privileged such expressions of opinion, unaccompanied
by threats or promises, as to the value of unions to the
work force W & F Building Maintenance Co, supra.
Iii. ELIGIBLE VOTERS
The 28 challenged ballots fall into 3 categories. 3 em-
ployees whose January 1983 discharges are alleged to be
unlawful, 21 leadmen, and 4 other employees claimed not
to be in the unit.
As to the three discharged employees, counsel agree
that their eligibility is dependent on the ultimate findings
concerning the lawfulness of their discharges, discussed
in section II,B above Their discharges having been
found to be lawful, they are ineligible to vote in the
March' 18, 1983 election.
As to leadmen, there is no factual dispute as to their
responsibility and authority, except as to the issuance of
discipline. Work at the shipyard is performed essentially
by a number of traditional craftsmen. electricians, pipefit-
ters, shipfitters, painters, welders, fabricators, and car-
penters Directing the work of those employees, from the
lowest level upward, are leadmen, quartermen, and fore-
men, the last two of which admittedly are supervisors
Their benefit and vacation plans are identical to those of
the hourly employees, they are hourly employees and
punch the clock, they do not attend meetings of supervi-
sors or staff social functions; and they wear hardhats of
the same color as other hourly employees They issue
daily work assignments and monitor performance. They
do not work with the tools and have no authority to
hire, fire, lay off, promote, evaluate, or excuse absences
As to discipline, they make recommendations but have
no authoirty to impose discipline unilaterally In this con-
555
nection, it is important to note that the General Counsel
does not allege leadmen to be supervisors (par 12(b) of
the complaint was voluntarily dismissed by the General
Counsel when it became apparent that the alleged threat
was made not by a quarterman as alleged, but by a lead-
man) and that union International representatives permit-
ted leadmen to attend organizational meetings There is
evidence of a warning slip signed by a leadman. That in-
dividual was terminated prior to the start of union activi-
ty; he lacked authority to issue the warning, according to
the credible testimony of his then supervisor; and, on this
record, the incident was a unique and isolated one. For
the reasons set forth in section II,B,2, I am unable to
credit the testimony of Davis that a foreman instructed a
leadman to discharge an employee That allegation was
encompassed in paragraph 9 and is dismissed above. I am
also unable to credit the testimony of Kronz (involved in
the events which led to the discharges of Caro and
Davis (sec. II,B,1 and 2 above)) that a leadman told him
he was instructed by the night superintendent to fire
union supporters . He was an unconvincing witness and
his testimony was in conflict with other credible evi-
dence as to a leadman's lack of authority to issue disci-
pline. Possessing none of the traditional authority of su-
pervisors, lacking authority to independently direct the
work force, being themselves under the direct supervi-
sion of quartermen and foremen in the assignment of
daily tasks, and being categorized by management with
hourly employees in terms of hourly rates of pay, bene-
fits, and vacations, leadmen at this shipyard, I find and
conclude, are not supervisors within the meaning of Sec-
tion 2(11) of the Act and, thus, are eligible voters in the
March 18 election.
As to the four remaining employees, I find and con-
clude that they do not share a community of interest
with other unit members and are not entitled to vote in
the March 18 election. Kalamazoo Paper Box Corp., 136
NLRB 134 (1962). Parts department clerk Raso checks
out parts to employees and travels outside the yard; he
does not work with the tools; he wears a hardhat of su-
pervisors' colors, and his skills are unrelated to those of
other unit employees. Quality control man Roberts in-
spects welds and directs faulty welds to be redone; his
hardhat is the color of supervisors'; and he does not
work with the tools. Office clerk Phillips works in the
main office, picks up parts, and takes employees to the
doctor. She does not work with the tools. Sharp, a
draftsman in the lofting department, similarly does not
work with the tools.
In view of the fact that 88 votes were cast for the Pe-
titioner and 113 against, the 21 ballots cast by leadmen
are not determinative of the outcome of the election.
[Recommended Order for dismissal omitted from pub-
lication.]