Riverboat Services of Indiana

National Labor Relations Board - Board Decisions

Nov 30, 2005

345 N.L.R.B. 1286 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 116
1286
Riverboat Services of Indiana, Inc. and Thomas
Trundy and Thomas Goodridge and Adam Don-
cet and Robert Palmer Jr. Cases 13–CA–36708,
13–CA–36735, 13–CA–36758, and 13–CA–36764
November 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 23, 1999, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a brief in response to the General Counsel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
In its exceptions to the judge’s finding that it violated
Section 8(a)(1) of the Act by discharging the Charging
Parties, the Respondent argues, inter alia, that the com-
plaint should be dismissed because the Charging Parties,
who were employed as assistant chief engineers on the
Respondent’s motor vessel, Showboat Mardi Gras, were
supervisors under Section 2(11) of the Act. We disagree.
On May 29, 2001, the Supreme Court issued NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706, in
which, inter alia, it upheld the Board’s rule that the bur-
den of proving 2(11) supervisory status rests with the
party asserting it. Id. at 711–712. We agree with the
judge that the Respondent has failed to meet this burden.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In excepting to the judge’s finding that the August 11 and October
10, 1997 letters to the Coast Guard signed by the Charging Parties
constituted protected concerted activity, the Respondent notes, inter
alia, that the consolidated complaint refers only to the October 10 letter.
We find that the August 11 letter was an integral part of the appeal to
the Coast Guard to restore the requirement that engineers on the vessel
have unlimited licenses, and that this issue was fully litigated at the
hearing.
Chairman Battista does not pass on whether both letters can be
found protected where, as here, only one of them is alleged as protected
in the General Counsel’s complaint. However, Chairman Battista
agrees that the discharge would be unlawful without regard to the Au-
gust 11 letter.
2 We will modify the judge’s recommended Order in accordance
with our decision in Ferguson Electric Co., 335 NLRB 142 (2001).
We will substitute a new notice in accordance with Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001).
In support of its contention that the assistant chief en-
gineers were statutory supervisors, the Respondent relies
on the description of their duties as set forth in its hand-
book. According to the handbook, these duties included
being “responsible to the Chief Engineer for the training
and discipline of his unlicensed crew [and] direct[ing]
and manag[ing] unlicensed crew in their duties.”3 How-
ever, this handbook description, by itself, is not sufficient
to establish that these individuals were in fact statutory
supervisors. Rather, the Respondent has the burden to
prove that the assistant chief engineers exercised inde-
pendent judgment in carrying out such duties. See Capri
Sun, Inc., 330 NLRB 1124, 1132 (2000). We find that
the Respondent has failed to adduce any evidence that
the assistant chief engineers exercised independent
judgment in disciplining, managing, or directing the
work of unlicensed crew or in standing watch.
To the contrary, the record shows that their authority
was limited and circumscribed. Indeed, as to discipline,
the record contains no probative evidence that their in-
volvement in discipline went beyond referring any prob-
lems to their superiors.
Moreover, although the Charging Parties (the assistant
chief engineers at issue) testified that unlicensed engine
room employees would be expected to follow their in-
structions, the record shows that such employees’ duties
were limited to routine maintenance and repair and were
directly supervised by the chief engineer. As the judge
noted, when the Charging Parties were discharged, only
one such employee was assigned to each shift, so that the
Respondent’s contention that the assistant chief engi-
neers were supervisors depends on a finding that each
unlicensed engine room employee has two supervisors.
In addition, as the judge noted, the Respondent has
failed to specify, through documentary evidence or pro-
bative testimony, any directions an assistant chief engi-
neer would give an unlicensed employee involving a
deviation from well-established routine. Without evi-
dence that direction of the work of unlicensed employees
involved independent judgment and responsibility, the
Respondent’s argument that the assistant chief engineers’
direction of crew members demonstrates supervisory
authority must fail. Chevron Shipping Co., 317 NLRB
379, 381–382 (1995) (cited with approval in Kentucky

3 In rejecting the Respondent’s reliance on the employee handbook,
the judge noted, among other things, that the duties and responsibilities
set forth therein do not overlap the supervisory functions set out in Sec.
2(11). Assuming that the duties and responsibilities listed in the em-
ployee handbook do overlap the supervisory functions listed in Sec.
2(11), the judge’s finding to the contrary does not affect our decision,
as we agree that the Respondent has failed to show that the assistant
chief engineers exercised independent judgment in dealing with unli-
censed engine room employees.
RIVERBOAT SERVICES OF INDIANA, INC. 1287
River, supra, 532 U.S. at 714) (junior officers’ supervi-
sory status was not established, as the employer failed to
provide details supporting assertions that they responsi-
bly directed unlicensed personnel).
Finally, although assistant chief engineers were ex-
pected to take charge of the engine room when the chief
engineer was absent, they did not regularly stand watch
without a chief engineer, and the chief engineer on watch
was rarely absent from the vessel and was accessible by
telephone or radio at all times. Such limited authority
does not establish supervisory status. Chevron Shipping
Co., supra, 317 NLRB at 381 (junior licensed officers are
not supervisors, where, inter alia, superior officers are
constantly present or available).4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, River-
boat Services of Indiana, Inc., East Chicago, Indiana, its
officers, agents, successors, and assigns, shall take the
action in the recommended Order as modified.
1. Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

4 The Respondent argues that the judge erred by “fail[ing] to con-
sider” the testimony of Rolle DuCote, the Respondent’s port captain,
that an assistant chief engineer can be in sole charge of the engine room
when the vessel sails out and can handle disciplinary problems with a
crew member on his own. We disagree. With respect to the first point,
DuCote testified that the vessel cannot sail without a chief engineer.
Thus, his testimony was consistent with the judge’s findings. With
respect to the latter point, DuCote’s testimony regarding the purported
authority of assistant chief engineers to discipline unlicensed crew-
members was devoid of detail as to whether such authority involved the
exercise of independent judgment. Chevron Shipping Co., supra, 317
NLRB at 381.
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten our employees by telling them
that other employees have been discharged for engaging
in activities that are protected by Section 7 of the Act.
WE WILL NOT discharge our employees for engaging in
activities that are protected by Section 7 of the Act.
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, within 14 days of this Order, offer Adam
Doncet, Thomas Trundy, Thomas Goodridge, and Robert
Palmer immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to a substantially
equivalent position, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Adam Doncet, Thomas Trundy, Tho-
mas Goodridge, and Robert Palmer whole for any loss of
earnings or other benefits that they have suffered as a
result of their unlawful discharges, with interest.
WE WILL, within 14 days from the date of this Order,
expunge from our files any reference to the discharges of
Adam Doncet, Thomas Trundy, Thomas Goodridge, and
Robert Palmer, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
evidence of the unlawful discharges will not be used as a
basis for future personnel actions against them.
RIVERBOAT SERVICES OF INDIANA, INC.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1288
Richard D. Andrews, Esq., for the General Counsel.
Julia D. Mannix, Esq., of Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Relations Act (the Act) was tried
before me in Chicago, Illinois, on July 26 and 27, 1999. On
January 14, 21, 23, and 29, 1998, the charges in Cases 13–CA–
36708, 13–CA–36735, 13–CA–36758, and 13–CA–36764 were
filed by individuals Thomas Trundy, Thomas Goodridge, Adam
Doncet, and Robert A. Palmer Jr., respectively, alleging that
Riverboat Services of Indiana, Inc. (the Respondent) had vio-
lated Section 8(a)(1) of the Act by discharging the Charging
Parties in January 1998, because they had engaged in certain
concerted activities that are protected by Section 7 of the Act;
to wit: contacting a governmental agency in an attempt to better
their terms and conditions of employment. Based on those
charges, the General Counsel issued a complaint on October 23,
1998. The Respondent filed an answer admitting that this mat-
ter is properly before the National Labor Relations Board (the
Board), but denying the commission of any unfair labor prac-
tices.
Upon the testimony and exhibits entered at trial,1 and upon
my observations of the demeanor of the witnesses,2 and after
consideration of the briefs that have been filed, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
As it admits, at all material times the Respondent, an Indiana
corporation, with an office and place of business in East Chi-
cago, Indiana (the Respondent’s facility), has been engaged in
the business of providing management services to the casino
gambling vessel Showboat Mardis Gras by providing personnel
to operate the vessel. During the 12-month period ending Sep-
tember 30, 1998, the Respondent, in conducting the business
operations, performed services valued in excess of $50,000 in
states of the United States other than Indiana. The Respondent
is therefore an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Showboat Mardis Gras is a casino boat that docks in
East Chicago and occasionally sails on to Lake Michigan. The
vessel carries up to 4250 persons at a time. The supervisors
and employees of the Respondent are not involved in the opera-
tion of the casino that is on the vessel; supervisors and employ-

1 Certain passages of the transcript have been electronically repro-
duced. Some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate redundant words; e.g., “Doe said, he men-
tioned that . . .” becomes “Doe mentioned that . . . .” In my quotations
of the exhibits, I sometimes simply correct meaningless grammatical
errors rather than use “[sic].” Some extraneous usages of “you know”
are omitted.
2 Credibility resolutions are based on the demeanor of the witnesses
and any other factors that I may mention.
ees of another employer operate the casino. The Respondent’s
supervisors and employees are involved only in the mainte-
nance and operation of the vessel. Although the casino is not
operated between the hours of 5 and 9 a.m., the vessel itself is
in operation 24 hours a day, 7 days a week. The Respondent’s
operation is staffed by crews that work 8 hours a day; therefore,
each day’s operations requires three crews. The Respondent
maintains a total of six crews at a time to perform the operation
of the vessel. (The vessel itself is sometimes referred to as the
“M/V Showboat Mardis Gras” to indicate its Coast Guard des-
ignation as a motor vessel, as opposed to a sail vessel.)
Overall responsibility for the daily operation of the vessel is
that of the captain (or master). The operation under the captain
is divided into two departments, the deck department and the
engine department. The deck department operates under a mate
(not “first mate,” because there is no “second mate” in the Re-
spondent’s operation). The engine department consists of the
engine room and electrical and mechanical facilities of the ves-
sel, and it is headed by the chief engineer (who is essentially
autonomous, but who ultimately reports to the captain). Imme-
diately subordinate to the chief engineer in the engine depart-
ment is the assistant chief engineer. (The four Charging Parties
in this case were assistant chief engineers at the times of their
discharges.) The captain, the mate, the chief engineer, and the
assistant chief engineer are the only ship’s personnel who are
licensed by the United States Coast Guard, and those four offi-
cers are collectively referred to as the “licensed officers” of the
vessel. Until December 1997, each of the Respondent’s six
crews consisted of 20 nonlicensed personnel in addition to the 4
licensed officers. Until December, the nonlicensed personnel
included 18-able-bodied and ordinary seamen in the deck de-
partment and an oiler and a wiper in the engine department. In
December, however, the Respondent discontinued the employ-
ment of employees in the classification of wiper. Therefore, in
January, the month in which the Charging Parties were dis-
charged, the Respondent employed six crews, each consisting
of 4 licensed officers and 19 nonlicensed personnel.
During 1997, several of the licensed officers of the Showboat
Mardis Gras engaged in concerted activity. In January 1998,
several of those licensed officers, including the four Charging
Parties, were discharged.3 Charges under Section 8(a)(1) of the
Act were filed on behalf of some of the licensed officers who
engaged in the concerted activities, including the four Charging
Parties. On the ground that they were supervisors within Sec-
tion 2(11) of the Act, the General Counsel declined to issue
complaints on behalf of the discharged captains, mates, and
chief engineers who had engaged in the protected activities and
were discharged; the General Counsel did, however, issue the
instant complaint on behalf of the Charging Parties who, again,
were assistant chief engineers. The complaint herein alleges
that the Charging Parties were employees whose concerted
activities were protected by the Act, that they were discharged
because of those protected concerted activities, and that by
those discharges the Respondent violated Section 8(a)(1). For
purposes of this case only, the parties stipulated that the Re-

3 Unless otherwise indicated, all dates subsequently mentioned are
between February 1, 1997, and January 31, 1998.
RIVERBOAT SERVICES OF INDIANA, INC. 1289
spondent’s captains, mates, and chief engineers are supervisors.
The Respondent admits that it discharged the Charging Parties,
but it contends that they were supervisors at the times of those
discharges; it contends, therefore, that the activities of the
Charging Parties could not have been protected by the Act and
that their discharges could not have been a violation of it. Al-
ternatively, the Respondent contends that the Charging Parties
were discharged for reasons other than their concerted activi-
ties. The Respondent further contends that, even if the assistant
chief engineers were employees, and even if they were dis-
charged for engaging in concerted activities, it did not violate
Section 8(a)(1) by discharging them because their activities
were not protected by Section 7; the Respondent contends that
the concerted activities of the Charging Parties were not pro-
tected because they did not give it notice of their grievances
before they engaged in their concerted activities over those
grievances. Finally, the Respondent denies knowledge of one
of the Charging Parties’ concerted activity at the time that it
discharged him.
A. Evidence Presented by the General Counsel
As a United States motor vessel that carries passengers
commercially, the Showboat Mardis Gras is required to possess
a certificate of inspection by the Coast Guard. A certificate of
inspection details, inter alia, the minimum number of crew
members and their Coast Guard license qualifications. For
captains, mates, and engineers (chief and assistant chief), the
highest license qualification status is “unlimited.” With an
unlimited license, a captain, a mate, or an engineer may law-
fully work on vessels without restrictions according to vessel
tonnage, horsepower, or passenger capacity and without restric-
tion to certain waters in Coast Guard jurisdiction. An officer
who has not received an unlimited license from the Coast
Guard may receive a “limited license” which restricts the indi-
vidual to working on ships with stated restrictions on tonnage,
horsepower or passenger capacity, or restrictions on the waters
in which the officer may work. When the Showboat Mardis
Gras first sailed in late 1996 or early 1997, its certificate of
inspection required that all captains, mates, and engineers have
unlimited licenses. At some time in the spring of 1997, how-
ever, the Coast Guard changed the certificate of inspection of
the Showboat Mardis Gras to allow its owners to employ and
utilize engineers who held only limited licenses.4 The Charg-
ing Parties credibly testified that the lowering of the license
requirements concerned them because they feared that the
change could affect both safety and their future earnings. It is
undisputed that engineers who have unlimited licenses gener-
ally make greater wages than engineers who have only limited
licenses.
Until January 6, Michael Gaffney was a chief engineer (and
therefore a supervisor) on the Showboat Mardis Gras. During
1997, Gaffney, who did not testify, circulated among certain of
the Respondent’s captains, mates, and engineers two letters that
requested the Coast Guard to reinstate the requirement of the

4 Just why the Coast Guard made this change was not proved. As
discussed infra, the Respondent favored the change, whether it re-
quested it or not.
original certificate of inspection that all engineers (chief and
assistant chief) have unlimited licenses. The first letter, dated
August 11, states, inter alia: “We feel that the lowering of li-
censing standards substantially reduces passenger safety by not
requiring experienced personnel to crew the vessel.” The letter
asks for detailed information of how the Coast Guard could
have come to lower the licensing requirement for Showboat
Mardis Gras. The August 11 letter was signed by 12 of the
Respondent’s captains, mates, and engineers, including Gaffney
and Charging Parties Goodridge, Doncet, and Palmer (but not
Trundy). Headquarters of the Coast Guard treated the August
11 letter as a request to change the certificate of inspection back
to requiring unlimited licenses, and it referred the request to a
Chicago-based marine inspection officer. That officer denied
the request by letter dated August 26.
Gaffney’s second letter to the Coast Guard requesting rein-
statement of the unlimited-license requirement for engineers on
the Showboat Mardis Gras was dated October 10. Four pages
long, the letter appeals the inspection officer’s August 26 denial
of the August 11 request. The October 10 appeal concludes
that granting the appeal, and again requiring the Showboat
Mardis Gras to have only engineers who possessed unlimited
licenses: “. . . would ensure that any future engineers would
have a minimum level of experience to operate this vessel
safely.” The appeal was signed by 16 captains, mates, and
engineers including Gaffney and Charging Parties Goodridge,
Palmer, and Trundy (but not Doncet). The Coast Guard’s Chi-
cago-area officer-in-charge of marine inspections, by letter
dated October 31, denied the October 10 appeal. On November
17, Gaffney filed an appeal of that denial to the Coast Guard’s
district commander. (Only Gaffney signed the November 17
appeal.) On December 19 the Coast Guard’s district com-
mander granted Gaffney’s appeal. The above documents do
not show that copies were sent to the Respondent, but by letter
dated December 31, the Coast Guard’s officer-in-charge of
marine inspections notified the Respondent:
Currently a clause in the Certificate of Inspection
(COI) for the M/V SHOWBOAT permits an individual
holding a license as Chief Engineer Limited or Assistant
Engineer Limited to serve as Chief Engineer or Assistant
Chief Engineer, respectively. As a result of a recent ap-
peal regarding this manning level, this endorsement must
be removed from your COI.
Therefore, the M/V SHOWBOAT is required to carry
only engineers with unlimited licenses. An amended COI
is enclosed with the clause in question removed. In order
that you may adjust to this new arrangement, I will allow
you to delay compliance with this new manning scale until
March 15, 1998.
During January 1998, the Respondent discharged 12 of the
18 captains, mates, and engineers who signed either or both of
Gaffney’s August 11 and October 10 letters to the Coast Guard.
In alphabetical order, the captains, mates, and engineers who
signed either or both of the letters, and the dates that any of
them were discharged, are:
(1) Mate Ed Anderson signed only the October 10 let-
ter and was discharged on January 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1290
(2) Mate Robert Bearden signed only the October 10
letter and was discharged on January 6.
(3) Captain Thomas Bell signed only the October 10
letter and was discharged on January 6.
(4) Assistant Chief Engineer Adam Doncet (a Charg-
ing Party) signed only the August 11 letter and was dis-
charged on January 22.
(5) Chief Engineer Michael Gaffney signed both let-
ters and was discharged on January 6.
(6) Assistant Chief Engineer Thomas Goodridge (a
Charging Party) signed both letters and was discharged on
January 14.
(7) Captain Steve Habelmehl signed both letters but
was not discharged.
(8) Mate Dean Horton signed only the August 11 let-
ter and was discharged on January 15.
(9) Chief Engineer Dwane Hunt signed both letters
but was not discharged.
(10) Mate Eric James signed both letters but was not
discharged.
(11) Mate Mark LaValley signed both letters but was
not discharged.
(12) Assistant Chief Engineer Derek Melanson signed
only the October 11 letter but was not discharged.
(13) Captain Dennis Myatt signed both letters and was
discharged in January, but the exact day was not estab-
lished.
(14) Assistant Chief Engineer Robert Palmer (a
Charging Party) signed both letters and was discharged on
January 23.
(15) Chief Engineer Neil Reilly signed both letters but
was not discharged.
(16) Captain James A. Stemwedel signed both letters
and was discharged in January, but the exact day was not
established.
(17) Assistant Chief Engineer Thomas Trundy (a
Charging Party) signed only the October 11 letter and was
discharged on January 8.
(18) Chief Engineer Robert Wood signed only the Oc-
tober 11 letter and was discharged on January 28.
That is, in January, of the Respondent’s 24 licensed officers
(again, 4 per crew on 6 crews), the Respondent discharged 12.
Each of those 12 discharged licensed officers had signed either
Gaffney’s August 11 letter or Gaffney’s October 10 letter to the
Coast Guard requesting reinstatement of the unlimited-license
requirement for engineers on the Showboat Mardis Gras. Six
of the 18 licensed officers who signed either of Gaffney’s let-
ters to the Coast Guard were not discharged. Of the five assis-
tant chief engineers who signed either letter, only Melanson
was not discharged.
Bobby Heitmeier is the Respondent’s president. Thomas
Gourguechon is the Respondent’s director of marine opera-
tions. Gaffney was notified of his January 6 discharge by a
letter of that date from Gourguechon and Heitmeier stating:
You are hereby notified upon receipt of this notice that
your employment as chief engineer on the M/V Showboat
is terminated. This termination is effective immediately.
The reasons given for this termination are as follows:
Unauthorized communication and correspondence
with regulatory bodies having jurisdiction over the opera-
tion of the vessel. Unauthorized correspondence and the
regulator’s response has had a material adverse effect on
the company’s ability to efficiently run its business.
Charging Party Goodridge testified that on January 10 or 11,
after Trundy and several others had been discharged (as listed
above), he encountered Chief Engineer (and admitted supervi-
sor) Robert Gates as Gates was leaving work and Goodridge
was coming on duty. According to Goodridge:
He [Gates] said that he didn’t want to see anybody else
get fired, and then he turned and he walked out the door,
and he said, “but Trundy . . . signed the Coast Guard let-
ter.”
Based on this testimony by Goodridge, the complaint alleges
that, in violation of Section 8(a)(1), the Respondent, by Gates,
impliedly threatened its employees with discharge because they
had engaged in protected concerted activities. The Respondent
did not call Gates to deny this testimony by Goodridge, and I
found the testimony credible.
Gourguechon discharged each of the four Charging Parties,
or he had one of the captains to do it. Each of the four Charg-
ing Parties was given a memorandum from Gourguechon and
Heitmeier (the Gourguechon-Heitmeier memorandum) stating:
You are hereby notified upon receipt of this notice that
your employment as assistant chief engineer on the M/V
Showboat is terminated. This termination is effective im-
mediately.
Unlike the Respondent’s memorandum to Gaffney, none of the
memoranda to the Charging Parties stated reasons for the dis-
charges that they announced. About their individual discharge
interviews: (1) Goodridge testified that Gourguechon ap-
proached him at the start of his shift and told him: “You’ve
won the lottery.” Gourguechon handed Goodridge the Gour-
guechon-Heitmeier memorandum and asked Goodridge for his
employee identification badge. (2) Palmer testified that one
Captain Scully only told him not to punch in and gave him the
Gourguechon-Heitmeier memorandum without further com-
ment. (3) Doncet testified that Gourguechon approached him at
the start of his first shift after having been off for 21 days;
Gourguechon asked Doncet if he was “Adam,” and Doncet
replied that he was. Gourguechon then handed Doncet the
Gourguechon-Heitmeier memorandum; when Doncet asked
why he had gotten no warning of his impending discharge,
Gourguechon replied that he had learned that Doncet was to be
discharged only that morning. Doncet asked Gourguechon if
Gourguechon would give him a recommendation to another
employer, and Gourguechon replied that he would and gave
Doncet his business card. (4) Trundy testified that when he
arrived at work he was met by Gourguechon; Chief Engineer
(and supervisor) Neil Reilly was also present. Gourguechon
handed Trundy the Gourguechon-Heitmeier memorandum in an
envelope; according to Trundy:
RIVERBOAT SERVICES OF INDIANA, INC. 1291
Well, I just asked him [Gourguechon] if I could take a
look at the letter.
And he said, “Sure. But you won’t find any reason
that you [are] fired in there.” . . .
I read the letter and, well, the chief [Reilly] asked,
“You mean, there’s no reason you’re firing him?”
And he [Gourguechon] said, “No.”
And then so I left. I just left after that.
Gourguechon testified, but he denied none of this testimony,
and I found all of it credible. It is therefore undisputed that
none of the four Charging Parties were given reasons for their
discharges. The Charging Parties also testified credibly that
they were not told in advance that there were any work-related
problems with their employment and that they had no reason to
believe that they might be discharged for any work-related
reason. The General Counsel subpoenaed the personnel files of
the four Charging Parties; none contained any indication that
the Respondent had had any problems with their work perform-
ances before they were discharged.
Gourguechon was first called to testify by the General Coun-
sel as an adverse witness. Gourguechon testified that he saw a
copy of Gaffney’s October 10 letter to the Coast Guard “a cou-
ple of weeks after it went out.” (Gourguechon explained:
“Yeah, actually, I think there was a copy laying around some-
where that I did look at.”)
Gourguechon further testified when examined by the General
Counsel that the decisions to discharge Gaffney and the four
Charging Parties were made by several individuals that in-
cluded himself and Heitmeier. Gourguechon testified that
Gaffney was discharged for “violation in the chain of com-
mand, how things worked on a vessel.” When asked if that
answer meant what was expressed in the above-quoted dis-
charge notice to Gaffney, Gourguechon replied that it was.
When asked what the reason for Trundy’s discharge was,
Gourguechon replied: “I think the consensus was that it was
really time to get some, you know, different, new blood into the
engine room.” When asked why Doncet was discharged, Gour-
guechon replied: “I think for the same reason.” When asked
why Goodridge was discharged, Gourguechon replied: “I think
it was the same reason. That we felt that it was just time to
make a change in the crew.” When asked why Palmer was
discharged, Gourguechon replied: “I honestly don’t recall.”
Gourguechon testified that he decided that “new blood” was
needed in the engine department of the Showboat Mardis Gras
because there had been several instances of poor work that had
cost the Respondent a great deal of money, but he attributed
none of the poor work to Gaffney or the four Charging Parties;
in fact, Gourguechon admitted that he could remember no em-
ployment faults with any of the four Charging Parties.
B. Evidence Presented by the Respondent
On the issue of the supervisory status of the Charging Par-
ties, Gourguechon testified that he created an employee hand-
book at some unspecified point during the summer of 1997.
Included in the handbook is:
DUTIES AND RESPONSIBILITIES OF THE ASSISTANT
ENGINEER
The Assistant Engineer reports directly to the Chief
Engineer and is responsible to the Chief Engineer for the
proper and efficient standing of his watch. He is the sen-
ior officer in the engine room when the Chief Engineer is
absent. He is responsible to the Chief Engineer for the
training and discipline of his unlicensed crew. The basic
duties and responsibilities of the Assistant Engineer, when
carried [out] are:
1. To take charge of the engine room watch as di-
rected by the Chief Engineer.
2. To assist the Chief Engineer as directed.
3. To direct and manage unlicensed engineering crew
in their duties.
4. To develop work schedules for engineering crew.
5. To inspect work performed by engineering crew.
6. To be capable of assuming the duties of Chief En-
gineer, should he become incapacitated.
7. To keep engine room logs and records.
8. To ensure compliance of USCG regulations.
9. To direct fire fighting and damage control efforts in
machinery spaces.
(The Respondent produced no other documentary evidence in
support of its contention that the assistant chief engineers were
supervisors.) Gourguechon testified that the assistant chief
engineers are required to be able to assume and perform all of the
listed duties. All of the Charging Parties were hired before the
summer of 1997, and on cross-examination Gourguechon
acknowledged that he did not know whether any of them ever
received the handbook. Each of the Charging Parties credibly
denied receiving the handbook. Gourguechon further testified that
the Showboat Mardis Gras always carries a more comprehensive
manual on board and that that manual includes the above-quoted
responsibilities of the assistant chief engineers, but there is no
evidence that any of the Charging Parties ever saw that manual.
On brief, the Respondent relies on certain testimony that the
Charging Parties gave on cross-examination as proof that the
assistant chief engineers were supervisors at the times of their
discharges. The Charging Parties admitted that they were in
charge of the engine room when the chief engineer was not
present. The vessel, however, cannot sail without the chief
engineer on board; also, when the vessel is in port (which is the
great majority of the time), the chief engineer may leave the
vessel to take lunch on the dock, but even then, according to the
unchallenged testimonies of the Charging Parties, he is in im-
mediate radio contact with the captain and assistant chief engi-
neer. The Charging Parties admitted that the oilers on their
shifts would be expected to follow any instruction that they
might give and that it would be insubordination if they failed to
do so; they further admitted that, in extreme circumstances
(such as the boat’s sinking) a deck hand would also be expected
to follow their instructions. When asked what they would do if
an unlicensed crew member (such as an oiler, deck hand, or
(when they existed) a wiper) failed to follow their instructions,
the Charging Parties replied that they would report the matter to
the chief engineer or the captain who would take the matter
from there. The Respondent introduced no evidence that the
assistant chief engineers could do anything more in the way of
discipline of other employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1292
Scott Funke was hired by the Respondent as an assistant
chief engineer on January 23. Funke testified that he possessed
and executed many responsibilities that the Charging Parties
denied possessing or executing. Because Funke was hired after
Trundy, Doncet, and Goodridge were discharged, and because
Funke was hired only on the same day that Palmer was dis-
charged, his testimony was not probative on any point, and I
shall not detail it.
On the issue of why the four Charging Parties were dis-
charged, Gourguechon testified on direct examination that at
some point before the January discharges, the Respondent had
several wiring problems that could have been caused by the
work of the Charging Parties and that after the discharges the
Respondent experienced fewer of such problems. Gour-
guechon testified that he did not discharge the Charging Parties
because of their complaints to the Coast Guard; he further testi-
fied that, before Gaffney’s letters were sent to the Coast Guard,
none of the Charging Parties complained to him about safety.
Gourguechon further testified that, at the time that he dis-
charged the Charging Parties, the Respondent had no plans to
lower the wages of the assistant chief engineers or any other
classification. Gourguechon did, however, admit that, with a
requirement of only limited licenses for the chief engineers and
assistant chief engineers, the Respondent would have a “vastly
larger pool of potential [engineer] candidates to draw from.”
Finally, Gourguechon was asked and he testified:
Q. Are there people that signed these [Gaffney’s Au-
gust 11 and October 10] letters still serving aboard the
Showboat in the capacity of a licensed officer?
A. Yes.
Q. Did you fire at the same time that you fired some
of the people whose names appeared on those letters in
January of 1998, did you fire anybody else?
A. Yes.
Q. Did you fire a whole bunch of people or one or two
others?
A. It went on for a while, yes.
Q. Is that the “cleaning house” that you talked about
. . . in your [Section 611(c) examination]?
A. Yes.
(In fact, Gourguechon had not testified at any previous point
that he had engaged in “cleaning house”; as quoted above,
Gourguechon only testified that he discharged Trundy, Good-
ridge, and Doncet because the Respondent wanted “new blood”
in the engine department.) Gourguechon never did testify as to
who, if anyone, he discharged in addition to the letter-signers as
a part of his “cleaning house.” Gourguechon testified that the
Respondent discharged Captain Myatt for rifling the personnel
file of another captain, but he did not give any reasons for firing
the other licensed officers who had signed Gaffney’s August 11
or October 10 letters to the Coast Guard, other than that he
discharged Trundy, Goodridge, and Doncet (but not Palmer,
whom he could not remember) in order to secure “new blood”
for the engine department, as quoted above.
C. Analysis and Conclusions
The Respondent’s first defense to this action is that, as assis-
tant chief engineers, the Charging Parties were supervisors
within Section 2(11) at the times of their discharges and that
their concerted activities were therefore not protected by Sec-
tion 7 of the Act. Section 2(11) defines “supervisor” as:
. . . any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
As stated in NLRB v. Bakers of Paris, Inc., 929 F.2d 1427,
1445 (9th Cir. 1991): “[T]he burden of proving supervisory
status rests on the party asserting it.” The first issue in this case
is whether the Respondent has met that burden in regard to the
Charging Parties. I find that it has not.
On brief, the Respondent first argues that the Board should
make the factual finding that the Charging Parties had the same
authorities as Funke (who, again, was hired after three of the
four Charging Parties were discharged) because: “There is a
complete absence of evidence that Scott Funke’s duties and
responsibilities were any different than [sic] the assistant engi-
neers before him.” Such argument completely misapprehends
the law of NLRB v. Bakers of Paris, Inc., supra, that the party
advancing the proposition that an individual is a supervisor has
the burden of proving it. The Respondent had the burden of
proving that the Charging Parties had the same authorities as
Funke; the General Counsel did not have the burden of proving
that Funke’s authorities were different from those of the Charg-
ing Parties.
Also on brief, the Respondent cites Crest Tankers, Inc., 287
NLRB 628 (1987), as specific authority the proposition that
assistant engineers should be held to be statutory supervisors.
The Respondent does not recite any of the facts involved in
Crest Tankers, and it is apparently asking for a conclusion that
that case establishes that assistant chief engineers are to be held
statutory supervisors as a matter of genre. Each case, of course,
stands on its own facts. Crest Tankers, for example, involved a
fleet of ocean-going oil tankers, not a single casino boat that is
ordinarily tied up at a dock. Moreover, in Crest Tankers, the
chief engineer was in the engine room only one-half hour per
day; assistant engineers regularly stood two 4-hour watches per
day at which times they were solely in charge of the tankers’
engine rooms (which were necessarily of greater size and com-
plexity than the engine room involved here). In this case, only
the chief engineers are scheduled to take engine room watches;
for each 8-hour shift, a chief engineer is scheduled to be on
watch 8 hours a day, and, according to Coast Guard regulations,
the boat cannot sail without him. The Respondent’s assistant
chief engineers do not regularly stand watch alone in the engine
room; they are in the engine room without the presence of the
chief engineers only at irregular times, such as when the chief
engineers might take lunch on the dock or when the chief engi-
neers visit other areas of the boat as the needs arise. At all such
RIVERBOAT SERVICES OF INDIANA, INC. 1293
irregular times, the chief engineers are in close proximity to the
engine room, and they are immediately reachable by radio or
internal telephone system. Crest Tankers, therefore, is readily
distinguishable on its facts.
On brief, the Respondent argues that, at the times of the dis-
charges of the Charging Parties, each assistant chief engineer
on each 8-hour shift supervised two employees, one oiler and
one wiper.5 In so arguing, however, the Respondent ignores the
fact that, at the time of the discharges of the Charging Parties,
the Respondent had discontinued employing any employees in
the classification of wiper. (Again, the Charging Parties were
discharged in January; the Respondent had abolished wiper
classification in December.) Therefore, the Respondent’s posi-
tion is immediately reduced to the proposition that it employed
one assistant chief engineer to supervise one oiler on each shift.
More than that, because the Respondent contends that the chief
engineers were also the supervisors of the oilers, it is in a posi-
tion of contending that on each shift it employed two supervi-
sors in the engine department (the chief engineer and the assis-
tant chief engineer) to supervise one employee (the oiler). An
oiler is strictly unskilled labor; oilers do no more than routine
maintenance and repair work; oilers are not licensed by the
Coast Guard; and there are no prehire requirements for oilers.
The Respondent’s express position that, after the wiper position
was discontinued in December, there was in the engine depart-
ment a supervisory ratio of two supervisors (the chief engineer
and the assistant chief engineer) to one unskilled employee (the
oiler) defies logic and demands incredulity. Finally on the
point of supervisory ratios, mates are stipulated supervisors,
and, on brief, the Respondent attempts to equate mates and
assistant chief engineers solely because assistant chief engi-
neers are paid the same as mates. That argument ignores, how-
ever, the fact that each mate has 18-able-bodied and ordinary
seamen reporting directly to him.
There is no record evidence that would tend to demonstrate
that any of the assistant chief engineers, particularly the Charg-
ing Parties, ever exercised any of the authorities enumerated by
Section 2(11). The Respondent is therefore reduced to argu-
ments that the oiler (and, in emergencies, unlicensed personnel
who are not assigned to the engine department) would be ex-
pected to follow directions of the assistant chief engineer. The
Respondent can cite, however, no direction that an assistant
chief engineer might give an oiler (or others) that might require
the exercise of independent judgment, a prerequisite to finding
that an individual is a supervisor under Section 2(11). The
Respondent also argues that it would be insubordination for an
oiler (or other employee in emergencies) to refuse a direction of
the assistant chief engineer. There is no evidence that an oiler
(or anyone else) has ever been cited for insubordination be-
cause he has not followed a directive of an assistant chief engi-
neer. Moreover, the Charging Parties testified that if such an
occasion ever arose, they would not discipline the employee
themselves; rather, they would report the matter to the chief
engineer or captain who would handle the matter. Such “repor-

5 For example, one topic line in the Respondent’s brief is: “The As-
sistant Engineers’ Duties with Regard to Wipers and Oilers are Super-
visory.”
torial” functions are not the equivalent of any authority enu-
merated by Section 2(11), especially where there is no evidence
that any such reports have ever been made or, if made, they
affected any employee’s employment status. See Hausner
Hard-Chrome of KY, Inc., 326 NLRB 426 (1998).
Ultimately, of course, the Respondent is not required to
demonstrate that the Charging Parties, as assistant chief engi-
neers, ever exercised any authority listed by Section 2(11); the
Respondent successfully proves that the Charging Parties were
supervisors if it proves that they possessed any one of those
authorities, whether they exercised any one of the statutorily
listed authorities or not.6 The issue is whether the Respondent
proved that the Charging Parties did possess any one of the
authorities listed by Section 2(11). For such proof, the Re-
spondent relies heavily on the wording of his employee hand-
book as quoted above. The handbook lists 9 duties, or authori-
ties, of the assistant chief engineers. If any one of the authori-
ties that are listed by the handbook was also listed by Section
2(11), and if the Respondent showed that exercises of such
authority required independent judgment, then the Respondent
would have proved the supervisory status of the assistant chief
engineers. The handbook’s listing of the duties (or authorities)
of the assistant chief engineers, however, includes none of the
authorities that are listed by the statute. (Moreover, the Re-
spondent did not prove that the handbook had even been pub-
lished to the Charging Parties because they credibly denied that
they had ever seen the handbook.)
The Respondent further cites a statement in the handbook
that “[i]nsubordination, including the refusal to follow an offi-
cer’s or supervisor’s instruction . . . could lead to discipline up
to and including termination.” It is true that the assistant chief
engineers are licensed “officers,” but the handbook neverthe-
less does not tell any employees, such as the oiler, that the offi-
cer whose instruction he might disobey would be the officer
who effectuates discipline for disobedience. Certainly, the
handbook does not prove the conclusion that assistant chief
engineers could dispense discipline without an independent
investigation by the chief engineer or the captain. Finally on
the point of the handbook, the Respondent on brief says that
Trundy agreed that a duty of an assistant chief engineer was to
develop work schedules; Trundy, however, agreed only that the
handbook (which he had never seen before) did indicate such,
but he credibly denied that he had ever developed a schedule
for any other employees.
For all of the above reasons, I find and conclude that the Re-
spondent has failed to prove that any of the Charging Parties
were supervisors within Section 2(11) at the times of their dis-
charges. The next issue therefore is whether the Respondent
discharged the Charging Parties for their protected concerted
activities in violation of Section 8(a)(1).
The law is that the General Counsel has the initial burden of
establishing a prima facie case sufficient to support an infer-
ence that protected concerted activity was a motivating factor in
an employer’s action that is alleged to constitute violative dis-
crimination. A prima facie case of discrimination is established
where it is found that: (1) the subject employee has engaged in

6 Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1294
protected concerted activities; (2) the employer possessed
knowledge (or a suspicion) of that protected activity; (3) the
employer has imposed discharge or other adverse action upon
the employee; and (4) the employer had possessed some ani-
mus, or hostility, toward the employee’s protected activity.
Once a prima facie case is established, the burden shifts to the
employer to come forward with evidence that the alleged dis-
criminatory conduct would have taken place even in the ab-
sence of the protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). To meet its burden under
Wright Line, it is not enough for an employer to show that an
employee for whom General Counsel has presented a prima
facie case of discrimination engaged in misconduct for which
the employee could have been discharged, or otherwise disci-
plined. The Respondent must show that it “would have” dis-
charged, or otherwise disciplined, the employee for the mis-
conduct in question. Structural Composites Industries, 304
NLRB 729, 730 (1991); emphasis is original. Moreover, such
evidentiary demonstration must be by a preponderance of the
evidence, and, if it is not, a violation will be found.7 Therefore,
the first inquiry is whether the record contains a prima facie
case of discrimination, or credible evidence that the Respondent
knew or suspected that the Charging Parties had engaged in
protected concerted activity, and that the Respondent’s decision
to discharge the employees was motivated, at least in part, by
animus toward that activity. Chelsea Homes, 298 NLRB 813
(1990).
The Respondent contends that the activities of the Charging
Parties in signing Gaffney’s letters to the Coast Guard were not
protected by Section 7 because it actually had no plans to lower
the wages of the assistant chief engineers (or anyone else), and
because the employees did not first give it a chance to remedy
any safety complaints that they had. The Supreme Court has
held that concerted appeals to Governmental bodies are pro-
tected by Section 7 of the Act when they have the object of
improving employees’ terms and conditions of employment.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); see also Electrical
Workers Local 769, 327 NLRB 13 (1998) (employees peti-
tioned a municipal court for injunction against harassment for
making safety complaints), and Walls Mfg. Co. v. NLRB, 321
F.2d 752 (D.C. Cir. 1963), enfg. 137 NLRB 1317 (1962) (em-
ployees wrote a letter to a State agency complaining about un-
sanitary conditions). When the Charging Parties signed Gaff-
ney’s letters to the Coast Guard requesting that the Respondent
again be required to employ only engineers with unlimited
licenses, they had the object of securing at least a theoretical
floor under their wages as assistant chief engineers. Gour-
guechon admitted that he realized the obvious supply-and-
demand effect of the Charging Parties’ objective when he ad-
mitted that, with the right to hire engineers with only limited
licenses, the Respondent had a “vastly larger pool of potential
[engineer] candidates to draw from.” The fact that the Respon-
dent had no current intention of reducing the then-current

7 Wright Line, supra at 1087; Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984).
wages of the engineers did not detract from the nature of the
employees’ intention of acting concertedly in an attempt to
reduce the Respondent’s ability to do so in the future (which
attempts proved successful). The Charging Parties also had as
an object of their concerted activities insuring their safety, as
well as the safety of the passengers of the Showboat Mardis
Gras, when they asked the Coast Guard to upgrade the re-
quirements for engineers on the vessel. Moreover, the fact that
the Charging Parties failed to give the Respondent an opportu-
nity to respond to their safety concerns before sending their
letters did not detract from the statutorily protected nature of
their endeavors. It is well established that Section 7 of the Act
protects concerted activities “whether they take place before,
after, or at the same time” that a concerted demand is made.
NLRB v. Washington Aluminum Co., 370 U.S. 9, 14 (1962)
(unannounced strike over having to work in bad weather).
Therefore, it must be concluded that the activity of the
Charging Parties in writing to the Coast Guard, both on August
11 and October 10, was concerted activity that was protected by
the Act.
The issue becomes whether the Respondent knew that each
of the Charging Parties had engaged in the protected activity of
writing to the Coast Guard. As evidence of relevant knowl-
edge, the General Counsel placed into evidence two of Gaff-
ney’s letters to the Coast Guard. The first letter, dated August
11, was signed by Doncet (as well as by Goodridge and
Palmer). The second letter, dated October 10, was not signed
by Doncet (although it was signed by Trundy, Goodridge, and
Palmer). The Respondent admits timely knowledge of the Oc-
tober 10 letter which Doncet did not sign, but it denies knowl-
edge of the August 11 letter which Doncet did sign. The issue
is whether the Respondent may be charged with knowledge of
Doncet’s involvement in the concerted attempt to have the
Coast Guard again require the Respondent to use only engineer-
ing officers with unlimited licenses, even though Doncet did
not sign the Gaffney letter of which the Respondent admits
knowledge. Ultimately, I find that it can, but first I shall ad-
dress the General Counsel’s case that the Respondent violated
Section 8(a)(1) by discharging Trundy, Goodridge, and Palmer.
The first issue is whether the Respondent harbored animus
toward the admittedly known protected activities of Trundy,
Goodridge, and Palmer. The Respondent agues first that it
could not have had any animus toward the concerted activities
that caused its certificate of inspection for the Showboat Mardis
Gras to be reverted to requiring engineering personnel who had
only unlimited licenses because it had no plans to cut wages of
the engineers at the time that the appeal was granted. I reject
this contention. As Gourguechon admitted, by reducing the
“pool” of potential employees to those who had unlimited li-
censes, the action of the Coast Guard in response to Gaffney’s
appeals increased the Respondent’s potential labor costs.
Moreover, Gourguechon’s discharge letter to Gaffney stated
that “the regulator’s response has had a material adverse effect
on the company’s ability to efficiently run its business”; this
was a plain indication that the increased labor costs were con-
sidered actual, not just potential, by the Respondent.
The discharges began on January 6, or immediately after the
Coast Guard’s letter would have been received by the Respon-
RIVERBOAT SERVICES OF INDIANA, INC. 1295
dent (given that a weekend and a holiday ensued immediately
after the Coast Guard’s December 30 letter to the Respondent
announcing the success of the protected concerted activities).
This timing, alone, is evidence of animus toward the concerted
activities that resulted in the Coast Guard’s letter. Deduction
based on the element of timing, however, is not necessary to
find that the element of animus exists. Again, Gourguechon
stated in his letter discharging Gaffney that his discharge was
caused by his contacting “regulatory bodies having jurisdiction
over the operation of the vessel.” At trial, Gourguechon admit-
ted that this reference was to Gaffney’s appeals to the Coast
Guard. Also, it is undenied that Chief Engineer Gates plainly
told Goodridge that Trundy had been discharged because he
signed the Coast Guard letter. Telling an employee that another
employee had been discharged because of his protected con-
certed activities is a violation of Section 8(a)(1), as I find and
conclude.8 Gates’ statement to Goodridge further is an admis-
sion that at least Trundy was discharged for his protected ac-
tivities.
That is, Gourguechon told Gaffney (in writing) that he was
discharged because of his part in the concerted activity of con-
tacting the Coast Guard. Gaffney’s part in the concerted activi-
ties was not protected because he was a supervisor within Sec-
tion 2(11). The concerted activities of the Charging Parties
were, however, protected, and Gates told Goodridge that
Trundy had been discharged because of his part in those pro-
tected activities. There is no reason to believe that the Respon-
dent’s animus was confined to the parts that Gaffney and
Trundy played in the concerted activities, especially in view of
the timing of the discharges that immediately followed the
Coast Guard’s announcement of the success of the concerted
activities. Plainly that animus would have extended to any
licensed officer whom the Respondent knew had signed the
concerted appeals to the Coast Guard. In view of the proven
animus, and in view of the Respondent’s admissions that it
knew that Trundy, Goodridge, and Palmer had signed Gaff-
ney’s October 10 appeal, I find and conclude that General
Counsel has presented prima facie cases that the Respondent
discharged Trundy, Goodridge, and Palmer because of their
protected concerted activities in violation of Section 8(a)(1).
The Respondent’s defense for those three discharges therefore
must be examined. (Again, the lawfulness of Doncet’s dis-
charge will be considered separately below.)
When the General Counsel asked Gourguechon why he dis-
charged Palmer, Gourguechon replied: “I honestly don’t re-
call.” This was hardly a statement of a defense, much less a
presentation of a preponderance of the evidence, as required by
Wright Line. Rather, Gourguechon’s answer was an admission
that the Respondent had no reason for Palmer’s discharge. As
stated by the Fourth Circuit Court of Appeals in Neptune Water
Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir. 1977), albeit in
a context of employer resistance to union activities, as opposed
to this case’s context of protected concerted activities:
The rule is that if the employee has behaved badly it won’t
help him to adhere to the Union, and his employer’s

8 Bestway Trucking, 310 NLRB 651, enfd. 22 F.3d 177 (7th Cir.
1994); JEL Painting & Decorating, 303 NLRB 1029 (1991).
anti-union animus is not of controlling importance. But if the
employee is a good worker and his breach of the work rules
trivial, the more rational explanation for discharge may be in-
vidious motivation. Such motivation can be found from the
absence of any good cause for discharge. This must be so
unless we are willing to assume something we know to be
false: that businessmen hire and fire without any reason at all.
In view of its demonstrated animus, the Respondent’s failure to
state or prove any defense for the discharge of Palmer compels
the conclusion that Palmer’s discharge was the product of the
Respondent’s invidious motivation of opposition to the em-
ployees’ protected concerted activities, and Palmer’s discharge
was therefore a violation of Section 8(a)(1).
Similarly, Gourguechon testified that he discharged Trundy
and Goodridge only because the Respondent wanted “new
blood” in the engine room. Gourguechon, however, suggested
no reason why the Respondent sought “new blood” for the
engine room only after it received the Coast Guard’s December
30 letter announcing the success of the protected concerted
activities. At one point, Gourguechon testified that he had
found some improper wiring on the vessel, implying that the
Charging Parties had done it. On cross-examination, however,
Gourguechon admitted that the improper wiring could have
been done before the Respondent accepted delivery of the ves-
sel. Gourguechon further testified that some expensive circuit
breakers had been improperly wired and had been ruined;
Gourguechon first testified that he researched and found that
the Charging Parties had done the faulty wiring; then he testi-
fied only that the circuit breakers had failed on the Charging
Parties watches (although, as assistant chief engineers, the
Charging Parties did not have regularly scheduled watches, as
discussed above); then Gourguechon admitted that he did not
know if the Charging Parties had anything to do with the fail-
ures of the circuit breakers; and then Gourguechon admitted
that he did not find out about the faulty wiring that the Charg-
ing Parties may have done until after their discharges. Faulty
wiring on the part of the Charging Parties, therefore, could not
have been a reason for their discharges.
Trundy and Goodridge (and Palmer) had perfect employment
records; although subpoenaed, the Respondent could produce
no negative memoranda from any of their personnel files. Nei-
ther Trundy or Goodridge (nor Palmer) was given any reason to
believe that his job were in peril because of any work-related
problem. Gourguechon could recall no problem that he had
ever had with any of the Charging Parties. Gourguechon fur-
ther did not deny Trundy’s testimony that he (Gourguechon)
told Chief Engineer Riley that he had “no reason” to discharge
Trundy. In summary, the “new blood” defense, unsupported as
it is by any claim of fault on the part of Trundy or Goodridge
(or Doncet), is no defense whatsoever. Rather, the Respon-
dent’s “new blood” defense is one of those subjective, self-
serving, tell-them-anything types of defenses that the trier of
fact is not required to accept,9 and I do not.

9 The Board is not required to accept self-serving declarations of mo-
tive. Shattuck Denn Mining Corp., 151 NLRB 1329 (1965), enfd. 362
F.2d 466 (9th Cir. 1966). See also Taylor Machine Products, 317
NLRB 1187, 1213, enfd. 136 F.3d 507 (6th Cir. 1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1296
I therefore find and conclude that the Respondent violated
Section 8(a)(1) by discharging Trundy and Goodridge, as well
as Palmer, because of their admittedly known protected con-
certed activities.
The more difficult problem arises in the consideration of
Doncet’s case. Again, Doncet signed Gaffney’s August 11
letter to the Coast Guard, but he did not sign Gaffney’s October
10 letter. Gourguechon, however, admitted only to knowledge
of the October 10 letter. The Respondent contends that, even if
the Board agrees with my conclusion that Trundy, Goodridge,
and Palmer were unlawfully discharged, no violation as to
Doncet can be found because there is no direct evidence that it
knew that Doncet had participated in the protected concerted
activities that were initiated by Gaffney and which resulted in
the Coast Guard’s reestablishment of the requirement that it
employ only engineers with unlimited licenses. The issue,
therefore, is whether the Respondent can be charged with
knowledge of Doncet’s participation in the protected activities,
even absent direct evidence of such knowledge. I find that it
can.
As the Board stated in Montgomery Ward & Co., 316 NLRB
1248 (1995):
Initially, we agree with the judge that a prerequisite to
establishing that [two named alleged discriminatees] were
wrongfully discharged is finding that the Respondent
knew of their union activities. Mack’s Supermarkets, 288
NLRB 1082, 1101 (1988). This “knowledge” need not be
established directly, however, but may rest on circumstan-
tial evidence from which a reasonable inference of knowl-
edge may be drawn. Greco & Haines, Inc., 306 NLRB
634 (1992); Dr. Frederick Davidowitz, D.D.S., 277 NLRB
1046 (1985); Coca-Cola Bottling Co. of Miami, 237
NLRB 936, 944 (1978). Indeed, the Board has inferred
knowledge based on such circumstantial evidence as: (1)
the timing of the allegedly discriminatory action; (2) the
respondent’s general knowledge of union activities; (3)
animus; and (4) disparate treatment. Greco & Haines, su-
pra; E. Mishan & Sons, 242 NLRB 1344, 1345 (1979);
General Iron Corp., 218 NLRB 770, 778 (1975). The
Board additionally has relied on factors including the de-
lay between the conduct cited by the respondent as the ba-
sis for the discipline and the actual discharge, and—in the
case of multiple discriminates—that the discriminatees
were simultaneously discharged. See, e.g., Darbar Indian
Restaurant, 288 NLRB 545 (1988); Abbey’s Transporta-
tion Services, supra [284 NLRB 698 (1987), enfd. 837
F.2d 575 (2d Cir. 1988)].
Finally, the Board has inferred knowledge where the
reason given for the discipline is so baseless, unreason-
able, or contrived as to itself raise a presumption of
wrongful motive. Whitesville Mill Service Co., supra [307
NLRB 937 (1992)]; De Jana Industries, 305 NLRB at
849; Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966). Even where the employer’s rationale
is not patently contrived, the Board has held that the
“weakness of an employer’s reasons for adverse personnel
action can be a factor raising a suspicion of unlawful mo-
tivation.” See generally General Films [Inc.], 307 NLRB
465, 468 (1992).
The factors on which the Board relies when inferring
knowledge do not exist in isolation, but frequently coexist.
[Footnote omitted.] For example, in BMD Sportswear
Corp., 283 NLRB 142, 142–143 (1987), enfd. 847 F.2d
835 (2d Cir. 1988), the Board reversed the judge and
found that the General Counsel had established that al-
leged discriminatees were unlawfully laid off, even in the
absence of direct evidence that the employer knew of their
union activities. There the respondent had demonstrated
antiunion animus, discriminated against other employees,
proffered unsubstantiated reasons for the layoffs, and the
layoffs were proximate to the start of the union organizing
campaign. See also Active Transportation, 296 NLRB
431, 432 (1989), enfd. 924 F.2d 1057 (6th Cir. 1991).
Of course, the Board’s references to union activities in Mont-
gomery Ward would apply to protected concerted activities as
well.
In this case, the General Counsel showed that the Respon-
dent discharged 12 of the 18 licensed officers who had signed
either Gaffney’s August 11 or October 10 letter to the Coast
Guard. As quoted above, when the Respondent’s counsel asked
Gourguechon at trial if he had fired anybody who had not
signed one of those letters during his house-cleaning, Gour-
guechon evasively replied, “It went on for a while, yes.” Gour-
guechon was not asked to elaborate, and the Respondent did not
otherwise present any evidence that it discharged any licensed
officer who had not signed one of Gaffney’s letters. Based on
this failure of evidence, I find that the Respondent discharged
only licensed officers who had signed one of Gaffney’s letters
to the Coast Guard. This, of course, would include Doncet. It
is further too much for this trier of fact to believe, and I do not
believe, that it was by simple coincident that only those who
had signed one of Gaffney’s letters to the Coast Guard were
selected for expurgation during the Respondent’s January exer-
cise of “cleaning house” (or search for “new blood,” as Gour-
guechon characterized the discharges before being led by coun-
sel to call them “cleaning house,” as quoted above). I find that,
except where the Respondent demonstrated some other reason,
those who fell victim of the “cleaning house” exercise were
selected because the Respondent knew that they had signed one
of Gaffney’s letters. The one exception was Myatt whom
Gourguechon testified he discharged because he found Myatt
rifling the file of another captain. (Moreover, the Respondent’s
introduction of this evidence about Myatt was an obvious ad-
mission that it needed an explanation for its discharges of those
who had signed one of Gaffney’s letters.) I therefore find that
the Respondent knew, or at least suspected, that Doncet was
engaged in the protected activities that resulted in the dis-
charges of 11 of the 12 signers of Gaffney’s letters to the Coast
Guard. The pretextual nature of the “new blood” defense of-
fered for Doncet’s discharge fortifies my conclusion that the
Respondent knew, or suspected, that Doncet was engaged in the
same course of protected activities that was engaged in by
Trundy, Goodridge, and Palmer, all of whom it unlawfully
discharged.
RIVERBOAT SERVICES OF INDIANA, INC. 1297
In summary, in this case there exist: (1) the fact that only
those who signed one of Gaffney’s concerted letters to the
Coast Guard were discharged; (2) the fact that Doncet signed
one of those letters; (3) the fact of the suspicious and otherwise
unexplained timing of Doncet’s discharge (again, coming as it
did almost immediately after the Respondent received notice of
the success of the licensed officers’ appeal to the Coast Guard
and coming essentially simultaneously with the discharges of
Trundy, Goodridge, and Palmer that I have found above to be
unlawful); and (4) the sham nature of the “new blood” defense
that the Respondent offered for Doncet’s discharge.10 Given
these facts, and upon the above-cited authorities, I find that
Respondent knew of Doncet’s participation in the employees’
protected concerted activities of contacting the Coast Guard in
an attempt to better their terms and conditions of employment.
Because the Respondent has only offered sham defenses to
the General Counsel’s prima facie case that it unlawfully dis-
charged Doncet, I find and conclude that it discharged Doncet,
as well as Trundy, Goodridge, and Palmer, in violation of Sec-
tion 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce or
in an industry affecting commerce within Section 2(2), (6), and
(7) of the Act.
2. The Respondent has violated Section 8(a)(1) by threaten-
ing employees that other employees had been discharged be-
cause they had engaged in activities that are protected by Sec-
tion 7 of the Act.
3. The Respondent has violated Section 8(a)(1) by discharg-
ing Adam Doncet, Thomas Trundy, Thomas Goodridge, and
Robert Palmer because they had engaged in activities that were
protected by Section 7 of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended11
ORDER
The Respondent, Riverboat Services of Indiana, Inc., East
Chicago, Indiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening its employees by telling them that other em-
ployees had been discharged for engaging in activities that are
protected by Section 7 of the Act.
(b) Discharging its employees because they have engaged in
activities that are protected by Section 7 of the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.

10 The sham nature of the defenses is further reflected by: (1) Gour-
guechon’s telling Goodridge “You’ve won the lottery” to announce his
discharge; and (2) Gourguechon’s agreement to give Doncet a positive
employment recommendation.
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Adam
Doncet, Thomas Trundy, Thomas Goodridge, and Robert
Palmer full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges that
they previously enjoyed.
(b) Make Adam Doncet, Thomas Trundy, Thomas Good-
ridge, and Robert Palmer whole for any loss of earnings or
other benefits that they have suffered as a result of the dis-
crimination against them, computed on a quarterly basis from
the date of their discharges to the date of proper offers of rein-
statements, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) Within 14 days from the date of this Order, remove from
its files any references to the unlawful discharges of Adam
Doncet, Thomas Trundy, Thomas Goodridge, and Robert
Palmer, and within 3 days thereafter notify Adam Doncet,
Thomas Trundy, Thomas Goodridge, and Robert Palmer in
writing that this has been done and that their discharges will not
be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amounts of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in East Chicago, Indiana, copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director for Region 13 after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to each current employee and former em-
ployee employed by the Respondent at any time since January
8, 1998, the date of the first unfair labor practice found herein.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification by a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

12 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”