Queen Mary

National Labor Relations Board - Board Decisions

Jul 27, 1995

317 N.L.R.B. 1303 (N.L.R.B. 1995)

1303
317 NLRB No. 184
QUEEN MARY
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We adopt the judge’ findings and conclusion that the Respondent
violated Sec. 8(a)(1) and (3) of the Act by refusing to hire Eugene
Quental. Our decision is reinforced by the fact that the decision not
to hire Quental was made by the Respondent’s facilities director,
Jorge Gonzalez, who we find, infra, was also involved in the unlaw-
ful failure to hire Gerald Ray Viano.
3 The Respondent (RMS) has excepted to what it has characterized
as ‘‘the ALJ improperly inferr[ing] that RMS is related to Disney,
the former management company of the Queen Mary, and that RMS
was thereby obligated to ‘rehire’ Disney’s former employees.’’ The
complaint does not allege that the Respondent is related to Disney.
We do not construe the judge’s decision to have made that infer-
ence; nor do we make such an inference.
4 Although the judge credited Gonzalez’ testimony that he made
the final decision not to hire Viano based on recommendations from
both Jackson and Ludwig, Ludwig’s involvement in the hiring proc-
ess does not affect our finding that Jackson is a statutory supervisor.
5 In finding that Jackson did not make effective hiring rec-
ommendations, the judge relied on the fact that Jackson rec-
ommended that two applicants be hired, ‘‘but they weren’t.’’ The
record indicates, however, that on these occasions, which occurred
between March and May 1993, Gonzalez did not disagree with Jack-
son’s specific recommendations about whom to hire, but stated in-
stead that he did not want to hire any more employees. We therefore
find that these incidents concern staffing level decisions and are not
inconsistent with our finding that Jackson made effective hiring rec-
ommendations.
6 In finding Jackson to be a supervisor, Member Cohen also relies
on Jackson’s authority to schedule employees and to assign work.
RMS Foundation, Inc., d/b/a Queen Mary and Juan
J. Vaca and International Union of Operating
Engineers, Local Union No. 501. Cases 21–CA–
29292 and 21–CA–29433
July 27, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On March 31, 1994, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
General Counsel and the Respondent each filed excep-
tions and a supporting brief, the Charging party filed
a brief in opposition to the Respondent’s exceptions,
and the Respondent filed a brief in opposition to ex-
ceptions and a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s ruling, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order and to adopt the recommended Order
as modified.3
We find, for the reasons set forth below and con-
trary to the judge, that Chief Engineer Ivy Jackson is
a statutory supervisor. Thus, Jackson’s statement to
Gerald Ray Viano that Viano was not hired because of
his union and protected concerted activities is attrib-
utable to the Respondent. The judge found that, if
Jackson were a supervisor, the Respondent violated
Section 8(a)(1) and (3) when it failed to hire Viano.
We agree with this finding.
According to Section 2(11) of the Act,
The term ‘‘supervisor’’ means any individual hav-
ing authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the ex-
ercise of such authority is not of a merely routine
or clerical nature, but requires the use of inde-
pendent judgment.
Section 2(11) is phrased in the disjunctive. Thus, the
exercise of authority (requiring independent judgment)
with respect to any one of the actions specified is suf-
ficient to confer statutory supervisory status.
In February 1993, when the Respondent acquired the
lease to operate the Queen Mary, Ivy Jackson made ef-
fective recommendations to hire, or not to hire, em-
ployees. According to Jackson’s unrebutted testimony,
he effectively recommended to his supervisor, Facili-
ties Director Jorge Gonzalez, that the Respondent hire
Vispi Shroff. In fact, Jackson had recommended hiring
every employee who was working at the power plant
at the time of the hearing in this case. Further, as
noted by the judge, Jackson effectively recommended
that the Respondent not hire Viano. Gonzalez admitted
that he decided not to hire Viano based on Jackson’s
recommendation.4 These effective hiring recommenda-
tions by Jackson are alone sufficient to confer statutory
supervisor status on Jackson.5
However, we need not base our finding solely on
Jackson’s ability to effectively recommend hiring.
Jackson’s unrebutted testimony shows that he effec-
tively recommended that certain employees be dis-
charged or disciplined. Thus, he recommended that
employee Everett Smith be discharged because Smith
‘‘wasn’t working out’’ and that ‘‘Gonzalez took care
of it.’’ He also reported to Gonzalez a rule infraction
by employee Jimi Kirkland and recommended that
Kirkland be given an oral warning. Gonzalez issued
the recommended discipline. Contrary to the judge, we
find that Jackson’s role in these actions was more than
‘‘merely reportorial.’’
We find that Ivy Jackson’s authority to make effec-
tive recommendations regarding hiring, discipline, and
discharge render him a statutory supervisor.6 Accord-
ingly, his statement to Viano sometime around January
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 This was a reference to Viano’s activities as union steward under
a prior lessee of the Queen Mary, for whom Jackson also had
worked.
8 Because of Jackson’s role in the initial hiring process, his state-
ment to Viano, which is evidence of the Respondent’s union animus,
also strengthens the General Counsel’s prima facie case concerning
the Respondent’s refusal to hire Quental.
1993—that ‘‘we don’t want you back because of prob-
lems you caused with the Union and [grievants] Gary
Handlin and Dave Metcalff’’7—is attributable to the
Respondent and is evidence of an unlawful motive for
not hiring Viano.
We find that the General Counsel has established a
prima facie case that the Respondent’s failure to hire
Viano was unlawful. Thus, Viano, who had been the
shop steward, was the only one of five power plant
employees who had worked for the former lessee (Dis-
ney) who was not hired by the Respondent. While
Viano’s application for employment was still pending,
the Respondent hired two employees who had never
worked at the power plant before. Jackson’s January
statement to Viano explained, at least prima facie, why
this was so.8
Turning to the Respondent’s defense, we note that
the judge credited Gonzalez’ testimony that he decided
not to hire Viano based on recommendations from
Jackson and also from Ludwig, who was in charge of
the power plant in 1991 and 1992 and claimed that
Viano did not agree with a new system of giving engi-
neers work orders while they were on watch in the
power plant. Nevertheless, we find unpersuasive and
pretextual the Respondent’s contention that it did not
hire Viano because he had been a marginal employee
whose job performance at the Queen Mary historically
had been inadequate. Ludwig was not called to testify.
There is no evidence that Viano ever failed to follow
the work order system or was ever disciplined or re-
ceived a performance evaluation reflecting inadequate
work performance. Moreover, the Respondent’s con-
tention is inconsistent with the evidence that, in 1992
while Ludwig was plant manager, Jackson appointed
Viano to act as chief engineer during Jackson’s ab-
sence.
We find, therefore, that the Respondent violated
Section 8(a)(1) and (3) by refusing to hire job appli-
cant Gerald Ray Viano because of his union and pro-
tected concerted activities as a union steward under
Queen Mary’s prior management. We shall modify the
Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, RMS
Foundation, Inc., d/b/a Queen Mary, Los Angeles,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Offer Eugene Quental a position as a journey-
man carpenter and Gerald Ray Viano a position as a
maintenance engineer or, if those jobs no longer exist,
substantially equivalent positions.
‘‘(b) Make whole Eugene Quental and Gerald Ray
Viano for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to hire job applicants because
they previously served as union stewards or engaged in
other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Eugene Quental a job as a journey-
man carpenter and Gerald Ray Viano a job as a main-
tenance engineer or, if those jobs no longer exist, we
will offer them substantially equivalent positions.
WE WILL make Eugene Quental and Gerald Ray
Viano whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
RMS FOUNDATION, INC., D/B/A QUEEN
MARY
Robert J. DeBonis, Esq., for the General Counsel.
Alan M. Brunswick & Marc D. Mootchnik, Esq. (Rintala,
Smoot, Jaenicke & Brunswick), of Los Angeles, California,
for the Respondent.
Adam N. Stern, Esq. (Levy, Goldman & Levy), of Los Ange-
les, California, for the Charging Party.
1305QUEEN MARY
1 All dates herein refer to 1993 unless otherwise indicated.
2 By order of August 17, the Regional Director for Region 21 con-
solidated the two complaints for hearing.
3 The General Counsel announced in his opening statement that
Vargas had been located within the last few days before hearing and
that he was not expected to testify due to his employment as an agri-
cultural worker in the State of Washington. (Tr. 9.)
4 The ‘‘Spruce Goose’’ is no longer a part of the Queen Mary at-
traction.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at Los Angeles, California, on Oc-
tober 5 and 6,1 pursuant to two complaints2 issued by the
Regional Director for Region 21 of the National Labor Rela-
tions Board on April 30 (Case 21–CA–29292) and July 21
(Case 21–CA–29433) and which are based on charges filed
by Juan J. Vaca (Case 21–CA–29292) and International
Union of Operating Engineers, Local Union No. 501 (Vaca
and the Union, respectively) on March 29 (Case 21–CA–
29292) and on June 7. The complaint alleges that RMS
Foundation, Inc., d/b/a Queen Mary (Respondent) has en-
gaged in certain violations of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
Issues
(1) Whether Respondent failed and refused to hire job ap-
plicants Jose Luis Vargas and Vaca because they were mem-
bers of the Teamsters Union and had previously engaged in
union and other concerted activities on behalf of the Team-
sters Union, and to discourage employees from engaging in
these activities and whether, acting through a supervisor, Re-
spondent told Vargas and Vaca that Respondent would not
hire them because they had previously worked as members
of the Teamsters, and Respondent was only hiring persons
affiliated with a different union.
(2) Whether Respondent failed and refused to hire job ap-
plicants Eugene Quental and Gerald Viano because they were
members of the Union, had previously occupied the positions
of shop steward, and had previously engaged in Union and
other concerted activities on behalf of the Union and to dis-
courage employees from engaging in these activities.
(3) Whether Respondent acting through a supervisor told
an employee that he had not been hired because of the prob-
lems he had caused with the Union, because he had been
shop steward and because of the grievances he had filed in
the past.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of the Gen-
eral Counsel, the Charging Party, Operating Engineers Local
501, and Respondent.
On the entire record of the case, and from my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that it is a California corporation,
which operates a tourist attraction including a hotel and res-
taurant with an office and place of business located in Long
Beach, California. If further admits that based on a projec-
tion of its operations since about January 1, at which time
Respondent commenced its operations, Respondent, in con-
ducting its operations described above, will annually derive
gross revenues in excess of $500,000, and will annually pur-
chase and receive at its Long Beach facility goods valued in
excess of $50,000 directly from points outside the State of
California. Accordingly, it admits and I find that it is an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that both Teamsters Local
911 and Operating Engineers Local 501 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Overview
On or about December 31, 1992, the Disney Corporation,
then the lessee of the Queen Mary, laid off the last of its
employees while Respondent continued to negotiate with the
lessor, the city of Long Beach, California, for leasing rights
to operate the Queen Mary. In February, Respondent became
the new lessee of the property and began immediately to hire
new employees. Many of those who desired employment had
previously worked for the Queen Mary under Disney and
they reapplied for their former jobs or any jobs that might
be available. Included among the group of former employees
seeking employment were the four alleged discriminatees in
this case, Gerald Ray Viano, Eugene Quental, Juan Vaca,
and Jose Luis Vargas. All save Vargas testified as General
Counsel’s witnesses.3 None of the four were rehired, for rea-
sons which the General Counsel claims to be unlawful. Re-
spondent denies its employment decisions for these four were
unlawfully motivated. To explore this case further and decide
the issues, background is required.
2. The Queen Mary
The Queen Mary is a large cruise ship which once sailed
the oceans of the world. In the 1970’s, its sailing days over,
the Queen Mary came to be permanently moored at docks
in the city of Long Beach and was transformed into a hotel.
Eventually the Queen Mary was joined by a second tourist
attraction, the ‘‘Spruce Goose’’ an oversized aircraft once
owned by Howard Hughes.4 In addition, various shops, bou-
tiques, restaurants, and even a small amusement attraction
sprang up in and around the Queen Mary.
During its 4-year involvement with the Queen Mary, the
Disney Corporation employed up to 1200 employees. By De-
cember 31, 1992, the number of employees had dwindled to
about 400, a figure which included the 4 alleged discrim-
inatees. By the time of the hearing, the employee com-
plement had grown to about 575 employees.
On December 31, 1992, Respondent witness Stephanie
Wright went to the Queen Mary and distributed employment
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Wright testified that Respondent’s policy was to give ‘‘not spe-
cial consideration, but consideration’’ to employees who had worked
at the Queen Mary in the past. (Tr. 287.)
applications to Disney employees then being laid off. Wright
had worked at the Queen Mary, under Disney and its prede-
cessor between June 1981 and October 1989, as an executive
in the human relations department. When she left, Wright
took a position with a Riverside, California hotel owned by
a man named Prevatil, who was later to become a principal
in Respondent. According to Wright, at Prevatil’s request,
she distributed the employment applications to the laid-off
workers so as to give them hope for reemployment (as
Wright put it) and to give Respondent a ready pool of expe-
rienced employees to draw on when and if their negotiations
with the city of Long Beach proved successful.5
Wright distributed about 400 employment applications and
instructed recipients to fill them out later and mail them back
to her at a Riverside, California P.O. box. She also explained
to each recipient that there was no guarantee of future em-
ployment, given the facts that negotiations with the city of
Long Beach had not been concluded and that Respondent did
not even then exist.
3. Queen Mary employees
Under Disney’s management, three unions represented var-
ious units of employees. These three unions were reduced to
one under Respondent and, as I understand it, currently there
are no unions representing employees. Here are the details.
Operating Engineers Local 501 and the Seafarers Union both
represented certain units of employees working in the power
plant and related maintenance classifications Teamsters Local
911 represented certain employees working in the custodial
department. When Respondent leased the Queen Mary, the
Seafarers presented to management union authorization cards
signed by a majority of an appropriate unit consisting of ele-
ments both from the Operating Engineers and the Teamsters
former units. Then Respondent recognized the Seafarers and
signed a collective-bargaining agreement with the Seafarers,
the result of which was to reduce by approximately 50 per-
cent the wages of some or all unit employees compared to
wages being paid under union contracts with Disney. Then,
according to Wright, a few weeks before hearing, at the re-
quest of Operating Engineers, the Seafarers Union abandoned
the unit it formerly represented.
None of this is directly germane to the instant case except
to note that under Disney, Viano and Quental had been shop
stewards for the Operating Engineers and Vaca had been a
shop steward for the Teamsters. In fact the General Counsel
and counsel for the Operating Engineers contend that the
three applicants were not rehired by Respondent for these
very reasons.
4. Gerald Ray Viano
Between September 1976 and December 31, 1992, Viano
worked in the power plant as a maintenance engineer. The
power plant building is located a short distance from the
Queen Mary and is responsible for providing power to the
Queen Mary and its satellite operations. As such it must op-
erate and be staffed 24 hours per day, 7 days per week. As
of December 31, 1992, five employees were employed in the
power plant including Viano.
The chief engineer and Viano’s supervisor was Ivy Jack-
son who like all other Disney employees had been laid off
on December 31, 1992; Jackson was then rehired in Feb-
ruary. I will consider below whether Jackson is a statutory
supervisor as claimed by the General Counsel and counsel
for the Operating Engineers but denied by Respondent. For
now, I note that Jackson had been a member of the Operat-
ing Engineers bargaining unit and was even a shop steward
for the unit for a period of time before Viano took over the
job in the mid-1980’s and served through 1992.
Under Disney, Viano and Jackson never worked the same
shift. And yet Viano felt he had a poor relationship with
Jackson. Witness this exchange between Viano and Respond-
ent’s attorney on cross-examination:
Q. Okay, now let’s go to the trip you took to the
Queen Mary. You testified that you asked [friend]
Larry Carrera to accompany you as a witness ‘‘in case
they discriminated against me.’’
A. Yes
Q. What led you to believe that you might be dis-
criminated against?
A. Because I wasn’t hired back, and I knew how Ivy
was.
Q. What does that mean?
A. That means I know how me and the Chief didn’t
see eye to eye.
Q. On what?
A. On several things.
Q. Like?
A. Like the way he talked to you. You couldn’t dis-
cuss nothing with him. He, you know, he just had some
kind of attitude deal.
Q. All right. so you and he had a personality con-
flict.
A. We did, but we never really pushed it with each
other. I mean, I respected him as the Chief Engineer,
and I imagine he did the same. We never got in any
big quarrels or problems. [Tr. 49–50.]
The source of this ill will may have been intraunion charges
filed by Viano against Jackson for discriminating against a
fellow union member. Jackson elected not to contest the
charges and he claims not to know the result. The record
does not show when all this happened, but apparently the fil-
ing of charges predated the Disney layoffs.
In any event, on December 31, 1992, Viano received an
employment application from Wright which he filled out and
mailed back to her (G.C. Exh. 2). During January, Viano re-
ceived one or more calls from an unidentified female caller
who asked if he were still interested in employment at the
Queen Mary. He assured the caller he was. Then Viano
learned that two of his coworkers named Schroff and Perdue,
neither of whom testified, had been rehired by Respondent.
Later, Viano learned a third coworker named Smith had also
been rehired. So Viano rounded up an unemployed friend
named Larry Carrera to accompany him as a witness and
both men drove to the Queen Mary power plant, where they
encountered Jackson.
There is a conflict about exactly what was said. According
to Viano, he asked Jackson why he had not been called back
to work. At first Jackson made no answer, but when pressed
by Viano, Jackson stated, ‘‘We don’t want you back because
1307QUEEN MARY
6 Neither Handlin nor Metcalf testified, but according to Viano,
they were former Disney unit employees who had filed several
grievances, mostly over pay. On cross-examination, Viano recalled
that among other grievances filed, Handlin had filed a grievance
against Jackson who had taken a leadman position away from
Handlin and given it to another employee. Metcalff filed one or
more grievances over pay-related issues. How any of these griev-
ances were resolved does not appear in the record.
of problems you caused with the Union and Gary Handlin
and Dave Metcalff.’’ To this Viano replied that he was just
doing his job as shop steward.6 In his account of the con-
versation, Viano was corroborated by his friend and General
Counsel witness Larry Carrera, although Carrera could not
recall the two names Jackson mentioned. Jackson admitted
meeting with Viano and a friend in the power plant on the
day in question and having a conversation with Viano at the
time. Jackson however denied making the statement in ques-
tion; instead, according to his testimony, Jackson told Viano
that it was not his position to rehire but that it was being
done by Jorge Gonzalez, also a witness in this case. After
Viano said the Company was not supposed to discriminate
against minorities and that he was a shop steward, Jackson
responded, ‘‘We are non union.’’ Then at Viano’s request,
Jackson attempted to reach Gonzalez, but the telephones
were not yet hooked up.
I find that Jackson made the disputed statement. Carrera’s
testimony tipped the balance for me because he recalled just
enough of the conversation to be convincing, yet not so
much as to indicate he was working from a script.
Jackson testified that he did indeed recommend to Gon-
zalez that Viano not be rehired because Viano had always
been a marginal employee, doing at work only what he had
to do, except for the final 6 weeks before layoffs, when like
everyone else, his work improved in the hopes of being re-
hired. Jackson explained further that Viano’s file contained
no record of corrective action as a marginal employee, be-
cause it was Disney policy not to be strict with employees
and to avoid discipline, except for serious matters.
Of the five employees working in the power plant on De-
cember 31, 1992, Jackson, Perdue, Schroff, Smith, and
Viano, only Viano, the shop steward was not rehired. Smith
was later fired by Gonzalez for poor work. Two new em-
ployees, Dudley and Kirkland, who had never worked for
Disney, responded to a newspaper ‘‘help wanted’’ ad run by
the Company in the spring, and were hired to work in the
power plant.
5. Eugene Quental
Between October 1980 and December 31, 1992, Quental
worked for the Queen Mary primarily as a carpenter. Two
months before his layoff, Quental became lead carpenter for
which his responsibilities included, making work assignments
for other employees, making periodic checks that the work
was done correctly and, of course, performing his own work
as well. Quental was a member of a unit represented by the
Teamsters and for the 40 or so members of the unit, he
served as a shop steward for a period of 6 to 8 years until
his layoff in December.
On December 31, 1992, Quental received an employment
application from Wright which he subsequently filled out and
returned (G.C. Exh. 5). In January, Quental talked by tele-
phone with Gonzalez who told him the Company was not
hiring carpenters, only electricians. Subsequently, Quental
made several additional calls to the Company, trying to reach
Gonzalez, but was unable to contact him. A former fellow
worker named Bob Carroll, who had worked for Disney as
a gardener told Quental at some point that Respondent was
hiring carpenters. Caroll, who was not rehired, did not tes-
tify.
By late March, Quental went to the Queen Mary to see
if he could find Gonzalez. While there, Quental went to the
carpenter shop, where he observed three brothers named
Padilla doing carpenter work. Two of the three, Miguel and
Francisco, had worked for Quental when he was lead car-
penter. None of the brothers testified. Then Gonzalez hap-
pened by and Quental attempted to discuss with him his job
prospects, but Gonzalez said he was too busy. Quental told
him that he knew Gonzalez would not hire him, but he asked
at least for a letter of recommendation. Gonzalez told his
secretary to prepare such a letter when she had time. No let-
ter of recommendation however was ever sent.
As its first witness, Respondent called Jorge Gonzalez, Re-
spondent’s facilities director. Gonzalez oversees all mainte-
nance operations, including the power plant. He supervises
32 employees at the Queen Mary and the 5 employees at the
power plant already discussed. Gonzalez began employment
at the Queen Mary in 1980 and like all other employees was
laid off on December 31, 1992. Before he was rehired on
February 3, Gonzalez spent the month of January on unpaid
maintenance duty looking after the Queen Mary.
Gonzalez testified that he received five applications for
carpenters, but he needed only two. He hired Miguel and
Francisco Padilla, as carpenters because he was familiar with
their work which was excellent. The third Padilla brother
was hired not as a carpenter, but as a laborer. Gonzalez also
made the decision not to hire Quental whom he described as
a marginal employee performing work of average quality at
a slow pace. In addition, Gonzalez testified he had observed
Quental talking to employees daily, when Quental was sup-
posed to be working. Some of the employees, talking to
Quental, Gonzalez admitted, however were talking to him in
his role as shop steward about their grievances.
On cross-examination, Gonzalez provided additional testi-
mony. In 1986, Gonzalez and Quental worked together to re-
roof a house owned by Gonzalez and leased to tenants. Fran-
cisco Padilla had worked primarily in the banquet department
under Disney and had performed carpentry work only on a
supplemental basis. About 2 months before the hearing, Gon-
zalez had hired two additional carpenters who had not
worked for Disney before, Tim Little and Donald San Pedro
neither of whom testified. They had responded to a want ad
placed by Gonzalez in a local paper although Quental’s ap-
plication for reemployment was still on file.
As to why Gonzalez never sent Quental a letter of rec-
ommendation as promised, Gonzalez explained that sometime
after Gonzalez had promised to send the letter, Quental’s
wife called Gonzalez at his home and told Gonzalez that he
was going ‘‘to pay big time’’ for not hiring Gene. Quental’s
wife also told Gonzalez that she would go to a television sta-
tion and tell them that the Queen Mary had asbestos. She
added that what Gonzalez did to Gene was really dirty and
he was going to pay for it. Because Gonzalez resented the
threats and held Quental responsible for his wife’s call, he
never sent the letter.
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Disney employed approximately 70 custodians, while Respondent
currently employs about half that number.
6. Juan Vaca
Between 1984 and December 31, 1992, Vaca worked at
the Queen Mary, the last 4 years as custodial lead in the
housekeeping department. Approximately 10 other employees
worked under Vaca. Before his layoff, Vaca worked on the
graveyard shift doing generally the same work as his subor-
dinates. This included stripping and waxing floors, mopping
floors, and shampooing carpets.
In addition to his work at the Queen Mary, between 1989–
1992, Vaca was a shop steward for the 250–300 employees
who were represented by the Teamsters. Vaca handled a
number of grievances during the 3-year period. Although
only 3 to 4 grievances were actually filed, a total of about
10 were discussed by Vaca with his immediate supervisor,
Ramiro Cedano, a witness for Respondent.
Cedano began working at the Queen Mary in September
1985 and continued until December 31, 1992. On February
5, Cedano was rehired and currently does the same work as
he did before, which is that of supervisor in the Queen
Mary’s custodian department, with eight to nine employees
working under him. As a supervisor, Cedano does no bar-
gaining unit work and instead of work clothes he dresses in
a dress shirt and tie.
On December 31, 1992, Vaca received an employment ap-
plication from Wright, and filled it out, and mailed it back
to her later (G.C. Exh. 6). According to Vaca, on March 25,
1993, he and another former Disney employee at the Queen
Mary, Jose Luis Vargas, went to the Queen Mary where they
met and spoke in Spanish with Cedano. Cedano asked the
two men whom he knew from the time he was their super-
visor under Disney, what they were doing there. Vaca ex-
plained they were looking for a job. Vaca testified that
Cedano responded, ‘‘No ‘gallos’ because you was working
under the Teamsters contract and this new company is not
planning to hire any more Teamsters.’’ The word ‘‘gallos,’’
according to Vaca, literally ‘‘roosters,’’ is a nonoffensive
slang term used by Cedano to refer to employees. In fact,
Vaca testified he got along with Cedano when the two
worked the graveyard shift. Cedano worked as Vaca’s super-
visor when he replaced Vaca’s regular supervisor named
Roger Avery
Cedano denied meeting with or speaking to Vaca and
Vargas. Instead, he testified he last saw both on December
31, 1992. Cedano first learned that Vaca desired to return to
work at the Queen Mary. when Cedano and two other super-
visors, Avery and Arthur Jackson were assigned by their su-
perior, Tony Amato, manager of the property services depart-
ment, to work as a ‘‘team,’’ and to review the approximately
100 employment applications pending in February. Because
at first, only five persons were to be hired, Amato told
Cedano and the other supervisors to select from the applica-
tions the best people. To facilitate the selection process, ap-
plications were sorted into three piles, ‘‘good,’’ ‘‘mediocre,’’
and ‘‘do not hire.’’
According to Cedano, he and the other supervisors felt that
Vaca was a slow worker who didn’t do as good a job as the
other employees. In addition, Vaca was said to be a com-
plainer about Disney’s grooming standards. Moreover, Vaca
insisted on wearing a mustache in violation of Disney’s
grooming standards requiring employees to be clean shaven.
Like Vaca, Vargas also submitted an employment applica-
tion to Respondent (G.C. Exh. 7). For Vargas, only his job
performance was considered by Cedano and the others. It
was found to be lacking when compared to the background
and qualifications of other applicants. For both Vaca and
Vargas, Cedano and Amato both denied that union affiliation
played any role in their review of the applications.
Ultimately 5 were selected from the first group of 25 to
30 applications and Cedano and his teammates recommended
to Amato that he hire them which he did. Among the five
was a person named Saul Espinosa, a former member of the
Teamsters bargaining unit and Gustavo Chavez, a former
member of the Seafarers bargaining unit. The remaining
three had worked for Amato at the Queen Mary under the
prior lessees and were known to Amato to do good work.
Between February and March, Amato hired 25 to 30 addi-
tional employees as custodians.7 Among this group was an
employee named Fernando Pantoja a former member of the
Teamsters bargaining unit. Amato selected this larger group
of new hires on his own without Cedano and the other super-
visors making any recommendations.
In his testimony as a Respondent witness, Amato essen-
tially corroborated Cedano’s account of how new employees
came to be hired and added some additional details. Amato
worked at the Queen Mary between November 1984 and No-
vember 1990. Then he was rehired by Respondent on Feb-
ruary 5, 1993. Before Leaving his job under Disney, Amato
knew both Vaca and Vargas, as he had been their supervisor.
Amato recalled Vargas as a complainer about the amount of
work that had to be done.
While Amato was considering the employment applica-
tions of persons seeking jobs, Amato never spoke to Vargas.
Amato however did speak to Vaca by telephone about Feb-
ruary 23. Vaca asked Amato if he remembered Vaca. Amato
told Vaca he did and Vaca said he had put in an employment
application. Amato replied he had seen it already, but that
only a few had been hired so far. Vaca asked to be consid-
ered and Amato agreed, saying Vaca would be considered
with all other applicants. Amato added that anyone hired
would have to join the Seafarers and that the hourly rates of
pay were lower than under the Teamsters contract ($10/hr
Teamsters; $5.50/hr Seafarers). To this, Vaca made no re-
sponse.
Amato further testified that while he was certain that
Vaca’s and Vargas’ employment applications were not in the
‘‘good’’ file, he could not recall if they were in the ‘‘medio-
cre’’ or ‘‘do not hire’’ files. Amato also could not recall if
he hired anyone from the ‘‘mediocre’’ file. Finally, Amato
testified that of the initial 30 hires, only about 6 to 8 persons
had not worked at the Queen Mary previously.
B. Analysis and Conclusions
1. Applicable legal principles—Supervisors
At the outset, it is important to determine the supervisory
status of Cedano and Ivy Jackson because they are alleged
to have made certain statements, which if credited, would
support the General Counsel’s and the Charging Party’s theo-
ries.
A supervisor is defined in Section 2(11) of the Act as:
1309QUEEN MARY
8 Unlike Respondent’s argument on brief in opposition to Ivy Jack-
son’s designation as a statutory supervisor (Br. 6–10), Respondent
does not contend at all on brief that Cedano is not a statutory super-
visor. Instead, Respondent’s argument opposes the General Coun-
sel’s witness Vaca strictly on credibility grounds. (Br. 12–13.)
[A]ny individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the forgoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
The law on the subject is well summarized by Administra-
tive Law Judge Itkin in the case of Amperage Electric, 301
NLRB 5 (1991), of the judge’s decision:
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rule book au-
thority. It is well established that a rank-and-file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
tions.’’ NLRB v. Southern Bleachery & Print Works,
257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359 US
911 (1959). What is relevant is the actual authority pos-
sessed and not the conclusory assertions of witnesses.
And while the enumerated powers listed in Section
2(11) of the Act are to be read in the disjunctive, Sec-
tion 2(11) also ‘‘states the requirement of independence
of judgment in the conjunctive with what goes before.’’
Poultry Enterprises v. NLRB, 216 F.2d 798, 802 (5th
Cir. 1954). Thus, the individual must consistently dis-
play true independent judgment in performing one or
more of the enumerated functions in Section 2(11) of
the Act. The performance of some supervisory tasks in
a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘perfunctory’’ or
‘‘sporadic’’ manner does not elevate a rank-and-file
employee into the supervisory ranks. NLRB v. Security
Guard Service, 384 F.2d 143, 146–149 (5th Cir. 1967).
Nor will the existence of independent judgment alone
suffice; for ‘‘the decisive question is whether [the indi-
vidual involved] has been found to posses authority to
use [his or her] independent judgment with respect to
the exercise [by him or her] of some one or more of
the specific authorities listed in Section 2(11) of the
Act.’’ See, NLRB v. Brown & Sharpe Mfg. Co., 169
F.2d 331, 334 (1st Cir. 1948). In short, ‘‘some kinship
to management, some empathetic relationship between
[supervisor] and employee, must exist before the latter
becomes a supervisor of the former.’’ NLRB v. Security
Guard Service, supra.
As the Board and the Seventh Circuit have noted, the
Board owes a duty to employees not to construe supervisory
status too broadly, for if the individual is deemed a super-
visor, he loses the Section 7 rights Congress intended to be
protected by the Act. Phelps Community Medical Center,
295 NLRB 486 at 492 (1989); Westinghouse Electric v.
NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970). For that reason,
the party contending that a person is a supervisor carries the
burden of persuasion on that issue. Adco Electric, 307 NLRB
1113 fn. 3 (1992); Biewer Wisconsin Sawmill, 312 NLRB
506 (1993).
In determining whether someone is a supervisor, job titles
reveal very little, if anything. See NLRB v. Dickerson-Chap-
man, Inc., 964 F.2d 493, 497 (5th Cir. 1992). Actual duties,
not job titles determine status. An employee cannot be trans-
formed into a supervisor merely by the vesting of a title and
theoretical power to perform one or more of the enumerated
functions in Section 2(11) of the Act. Advanced Mining
Group, 260 NLRB 486 (1982); Hallandale Rehabilitation
Center, 313 NLRB 835 (1994).
a. Cedano
As noted above, Cedano is a ‘‘supervisor’’ of eight to nine
employees on the swing shift. The General Counsel correctly
points out (Br. 11) that Cedano does no bargaining unit work
and dresses in a shirt and tie instead of a uniform. In addi-
tion Cedano receives a salary rather that hourly wages and
works out of an office which he shares with other super-
visors. All of this is indicia of supervisory status. Wilson Tire
Co., 312 NLRB 883 (1993), and judge’s decision.
On the one hand, I find the evidence showing that Cedano
had authority to act independently with some kinship to man-
agement is meager. Compare Polynesian Hospital Tours, 297
NLRB 228 (1989). On the other hand, Amato testified that
as to his hiring of Espinosa and Chavez, he relied on the rec-
ommendations of Cedano and the two other supervisors be-
cause Espinosa and Chavez had not worked for Amato (Tr.
347). Based primarily on that evidence, I find that for all
times material to this case, Cedano is a statutory supervisor.
See Wilson Tree Co., supra, fn. 9.8
b. Ivy Jackson
Both the General Counsel and the Charging Party contend
that Jackson is a supervisor while Respondent argues that
Jackson is equivalent to a leadman. As noted above, Jackson
has the title of ‘‘chief engineer.’’ The work Jackson currently
is doing and was doing when he allegedly made a certain
statement to Viano is the same work as he did under Disney.
Although Jackson was in the unit represented by the Operat-
ing Engineers, the membership in the unit is not necessarily
inconsistent with supervisory status. See Gratiot Community
Hospital, 312 NLRB 1075 fn. 2 (1993).
Jackson assigns work for each shift and posts it. He also
does some evaluating of employees but spends most of his
time performing bargaining unit work. Jackson’s evaluation
and recommended discipline of Viano and perhaps other em-
ployees as well were subject to independent review and
changed on occasion. In the case of Viano, Jackson’s evalua-
tions were often changed to make Viano look better than
Jackson had rated him (Tr. 107–109). When employees
wanted time off or sick leave they went through Jackson,
who was responsible for finding someone else to cover for
the absent employee. When Viano discussed or delivered
grievances to Jackson, the latter had only limited authority
to settle issues. Jackson and Viano never worked the same
shift so it is difficult to see how Jackson effectively super-
vised Viano. Moreover, ‘‘the Act does not state or fairly
imply that the highest ranking employee on a shift is nec-
essarily a supervisor . . . .’’ Northcrest Nursing Home, 313
NLRB 491, 500 (1993).
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Although not asked to do so by the General Counsel or the
Charging Party, I have examined the record to determine whether
Ivy Jackson could possibly be designated a 2(13) agent of Respond-
ent. I find no evidence to show that under all the circumstances, em-
ployees ‘‘would reasonably believe that the employee in question
[Ivy Jackson] was reflecting company policy and speaking and act-
ing for management.’’ Great American Products, supra, 312 NLRB
at 962. See also Bio-Medical of Puerto Rico, 269 NLRB 827, 828
(1984).
It is true that Jackson recommended that Viano not be
hired and he wasn’t. It is however also true that Jackson rec-
ommended that two other applicants be hired, but they
weren’t. Accordingly I cannot find that Jackson’s rec-
ommendations were effective. I find no evidence that Jack-
son interviewed employees for jobs. This was the task of
Gonzalez who made all final employment decisions.
An employee does not become a supervisor merely be-
cause he gives some instructions or minor orders to other
employees. NLRB v. Wilson-Crissman Cadillac, 659 F.2d
728 (6th Cir. 1981). Nor does an employee become a super-
visor because he has greater skills and job responsibilities or
more duties than fellow employees.
So far as I can tell, any discipline or warnings given by
Jackson are merely reportorial and not an indicum of super-
visor authority. See Northcrest Nursing Home, supra, 313
NLRB at 491–492 and cases cited at fn. 30.
Based on all the evidence, I find that Ivy Jackson is not
a statutory supervisor because I cannot find the independent
judgment coupled with the necessary ‘‘kinship to manage-
ment.’’ Instead I find that Gonzalez is the appropriate statu-
tory supervisor of the power plant employees. See Great
American Products, 312 NLRB 962 (1993).
2. Applicable legal principles—Failure to hire
The General Counsel has the initial burden of establishing
a prima facie case sufficient to support an inference that
union or other activity which is protected by the Act was a
motivating factor in Respondent’s action alleged to constitute
discrimination in violation of Section 8(a)(3). Once this is es-
tablished, the burden shifts to Respondent to demonstrate that
the alleged discriminatory conduct would have taken place
even in the absence of the protected activity. If Respondent
goes forward with such evidence, the General Counsel ‘‘is
further required to rebut the employer’s asserted defense by
demonstrating that the [alleged discrimination] would not
have taken place in the absence of the employee[’s] protected
activities.’’ Wright Line, 251 NLRB 1983 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). The test applies regardless of whether the
case involves pretextual reasons or dual motivation. Frank
Black Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
‘‘[A] finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not
in fact relied on, thereby leaving intact the inference of
wrongful motive established by the General Counsel.’’ Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). See also Handy Andy Inc. v. NLRB, 943
F.2d 1354, 1359 (D.C. Cir. 1991).
In Aces Mechanical Corp., 282 NLRB 928, 930 (1987),
the Board stated,
. . . the right to hold union office clearly is protected
by Section 7 [of the Act] and an employer violated Sec-
tion 8(a)(3) by refusing to employ an individual be-
cause he has been designated as union steward. John P.
Bell & Sons, 266 NLRB 607 (1983); see generally Met-
ropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983).
In the instant case three of the four alleged discriminatees
had been shop stewards. The fourth, Vargas, had been a
member of a Teamsters bargaining unit.
a. Vaca and Vargas
Both Vaca and Vargas filed applications to work for the
Queen Mary under Respondent (G.C. Exhs. 6 and 7), but
were not hired. I begin my analysis by crediting Cedano that
he never even met with Vaca and Vargas, not to mention
that he never made the statements attributed to him by Vaca.
The General Counsel represented in his opening statement,
that it knew where Vargas was working and therefore could
have insisted that he come to the hearing to testify, particu-
larly because Vargas was a party and particularly because his
testimony was crucial for the rebuttal phase of the case. The
mere fact that Vargas was working out of State does not ex-
cuse the failure to present critical rebuttal evidence.
Without the evidence relating to Cedano’s alleged state-
ment to Vaca, the General Counsel has little evidence even
to establish a prima facie case, not to mention prevailing on
the merits. I find that the General Counsel had failed to es-
tablish the violations charged and I will recommend that they
be dismissed. Compare Service Operations Systems of Ne-
braska, 272 NLRB 1033 (1984).
b. Viano
In this case, I have found that Ivy Jackson made the state-
ment attributed to him by Viano and Carrera, but that Jack-
son was not a statutory supervisor at the time. Accordingly,
the statement in question is not binding on Respondent.9 I
have also found that in Viano’s opinion, there was a person-
ality conflict between Jackson and him. The Board has found
an alleged ‘‘personality conflict’’ to be an insufficient reason
for not hiring a job applicant where the evidence otherwise
shows unlawful discrimination. See Brownsville Garment
Co., 298 NLRB 507, 508 (1990).
Notwithstanding this alleged ‘‘personality conflict,’’ Jack-
son apparently selected Viano in 1992 to serve as acting
chief steward, while Jackson went on vacation (Tr. 188).
This appointment, as the Charging Party argues (Br. 5), is in-
consistent with Jackson’s testimony that Viano was not re-
hired because he had always been a marginal employee and
one who didn’t follow company policy. Of course, the tem-
porary appointment is also inconsistent with Jackson’s state-
ment to Viano that he wasn’t rehired because of problems he
caused with the Union, Handlin, and Metcalff. And it is also
inconsistent with Viano’s testimony about a personality con-
flict between the two men. I don’t know what to make of
it, but it surely is not the key to the case.
The Board has taken the position that where a prima facie
case has been established, I should consider whether an em-
ployer gives a credible explanation of its reasons for refusing
1311QUEEN MARY
10 To avoid the necessity of remand, I make the following alter-
native findings: If on appeal, Ivy Jackson is found by the Board to
be a statutory supervisor, I would find that his statement to Viano
violates the Act and constitutes sufficient evidence of unlawful moti-
vation by Respondent. Accordingly, I would find the failure to rehire
Viano violated Sec. 8(a)(1) and (3) of the Act.
11 I also note that in 1986, Quental helped Gonzales work on the
roof of a house owned by Gonzales and leased to tenants.
to hire or rehire union-affiliated applicants. See Holo-Krome
Co., 293 NLRB 594, 596 (1989), enf. denied 907 F.2d 1343
(2d Cir. 1990), and GSX Corp. of Missouri, 295 NLRB 529,
531 (1989). To decide whether a prima facie case has been
established here, I note that of the five power plant employ-
ees working under Disney only Viano, the shop steward was
not rehired. And with Viano’s application still pending, Re-
spondent fired Smith who had worked under Disney and
hired two employees for the power plant who had never
worked there before. See NLRB v. Foodway of El Paso, 496
F.2d 117, 119–120 (5th Cir. 1974). Based on the above fac-
tors, I will assume without finding that the General Counsel
has established a prima facie case that Viano was not hired
in violation of Section 8(a)(1) and (3) of the Act. See Weco
Cleaning Specialists, 308 NLRB 310 (1992).
Turning to Respondent’s evidence to see whether Viano
still would not have been hired absent his status as union
steward, I begin with Gonzalez. Gonzalez testified that he
made the final decision not to hire Viano, based on talking
not only to Ivy Jackson, but also to another supervisor who
was in charge of the power plant in 1991–1992, Mike Lud-
wig, who never testified. According to Gonzalez, Ludwig
told him that Viano did not agree with a new system of giv-
ing engineers work orders while they were on watch in the
power plants, which system began in 1991–1992 (Tr. 198–
199). Gonzalez also testified that Viano’s being a shop stew-
ard had nothing to do with Gonzalez’ decision not to hire
him. I credit this testimony of Gonzalez for the following
reasons.
(1) On behalf of Respondent, Gonzalez hired Ivy Jackson
who had been a shop steward himself 6 or 7 years before.
(2) There is no evidence that Viano performed the job of
shop steward differently than Jackson did.
(3) The job of shop steward for both men was more like
that of a messenger rather than an advocate. I agree with Re-
spondent that Viano didn’t cause trouble or otherwise per-
form his job in a way which would cause Gonzalez not to
want to hire him because he had been a shop steward.
(4) There is no evidence of animus by Respondent or Gon-
zalez against the Operating Engineers, the Teamsters, or the
Seafarers.
(5) When Everett Smith, a former member of the Operat-
ing Engineers bargaining unit, did not perform in accord with
Gonzalez’ expectations, he was fired immediately, sometime
in 1993.
For the reasons stated above, I will recommend to the
Board that this allegation be dismissed.10
c. Quental
Unlike Viano, the General Counsel produced no credible
statements by alleged supervisors which would tend to show
unlawful motive. Instead the General Counsel relies on cir-
cumstantial evidence which can be persuasive As noted
above, Gonzalez had five applications from Carpenters, but
he needed only two. Accordingly, Gonzalez hired the Padilla
brothers whom Gonzalez allegedly judged to be better quali-
fied than Quental. The latter described by Gonzalez as a
‘‘marginal’’ employee that is, an employee whose work was
‘‘just average’’ (Tr. 215). Assuming for the sake of argu-
ment, that Gonzalez could accurately measure the work of
Quental against the work of the Padilla brothers, there is no
showing on this record how Gonzalez measured the work of
Quental against the work of Little and San Pedro, who had
never worked for the Queen Mary before and were hired
after responding to a newspaper ad.
In this case, I find that the General Counsel has estab-
lished a prima facie case. In support of my conclusion, I note
those factors listed in support of an assumed prima facie case
for Viano. To those factors, I note that 6 months before his
layoff, Quental was promoted to lead carpenter, apparently
by his then Supervisor Mike Ludwig, who did not testify. As
lead carpenter, Quental was responsible for the work of six
employees. This fact is inconsistent with an employee who
did only average or marginal work.11
Another factor which compels a prima facie case concerns
certain conversations between Quental and other employees
while the former was supposed to be working. Gonzalez con-
ceded that some of these conversations may have dealt with
the filing of grievances and contributed to Gonzalez’ percep-
tion of Quental as a marginal or average employee (Tr. 237).
In deciding whether Respondent has rebutted the General
Counsel’s prima facie case, I count those five factors listed
above which caused me to recommend dismissal of Viano’s
case. In addition, I note the list of names prepared by Re-
spondent reflecting those new hires who formerly worked at
the Queen Mary in the employee unit represented by the
Teamsters (52 employees) (Respondent Exhibit). A second
list for Respondent’s engineering department reflects the
names of new hires who formerly worked at the Queen Mary
in the unit represented by the Operating Engineers (15 out
of 37) (R. Exh. 2). This evidence proves nothing with respect
to shop stewards, and I find it is entitled to little weight.
Based on all the evidence with respect to Quental, I find
that Respondent has failed to rebut the General Counsel’s
prima facie case. Accordingly, I find that the failure to hire
Quental violates Section 8(a)(1) and (3) of the Act. See
Crafts Precision Industries, 305 NLRB 894, 895–896, enfd.
in relevant part 16 F.3d 24 (1st Cir. 1994).
CONCLUSIONS OF LAW
1. Respondent RMS Foundation, Inc., d/b/a Queen Mary
is an employer engaged in unfair labor practices affecting
commerce within the meaning Section 2(6) and (7) of the
Act.
2. Operating Engineers, Local Union No. 501 is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by refusing to hire job applicant Eugene Quental because of
his activities as a union steward under Queen Mary’s prior
management or for other protected concerted activities.
4. For all time material to this case, Ivy Jackson was not
a statutory supervisor.
5. Other than specifically found here, Respondent has
committed no other unfair labor practices.
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be required
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
I shall recommend that Respondent offer Eugene Quental
a job as journeyman carpenter. Further, Respondent shall be
directed to make Quental whole for any and all loss of earn-
ings and other rights, benefits, and emoluments of employ-
ment he may have suffered by reason of Respondent’s dis-
crimination against him with interest. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987); See also
Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumb-
ing Co., 138 NLRB 716 (1962).
Respondent shall also be required to preserve and, on re-
quest, make available to the Board or its agents for examina-
tion and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay
due under the terms of this Order and to otherwise determine
that the Order has been fully complied with.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, RMS Foundation, Inc., d/b/a Queen
Mary, Long Beach, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire job applicants because they previously
served as union stewards or engaged in union or other pro-
tected concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Eugene Quental a position as a journeyman car-
penter or, if that position no longer exists, to a substantially
equivalent position without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(b) Make whole Eugene Quental for any loss of pay he
may have suffered as a result of the unlawful discrimination
against him in the manner set forth in the remedy section.
(c) Preserve and, on request, make available to the Na-
tional Labor Relations Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to effectuate the backpay provision
of this Order.
(d) Post at its main office in Long Beach, California. a
copy of the attached notice marked ‘‘Appendix.’’13 Copies of
the notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.