Steigerwald, J. E., Co., Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1982

263 N.L.R.B. 483 (N.L.R.B. 1982)

J. E. STEIGERWALD CO., INC.
J. E. Steigerwald Co., Inc. and International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO. Cases 15-CA-7741 and 15-CA-
7752
August 17, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On July 8, 1981, Administrative Law Judge
Philip P. McLeod issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel refiled with the Board his brief to the Ad-
ministrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, J. E. Steiger-
wald Co., Inc., Pascagoula, Mississippi, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge: Upon
charges filed on June 11 and July 9, 1980,1 by Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO (herein called the Union) against J. E. Stei-
gerwald Co., Inc. (herein called Respondent), the Gener-
al Counsel of the National Labor Relations Board, by the
Regional Director for Region 15, issued a complaint
dated July 15, 1980, alleging violations by Respondent of
Section 8(a)(X), (3), and (5) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein
I All dates refer to 1980 unless otherwise indicated.
263 NLRB No. 68
called the Act. Respondent, by its answer, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Pascagoula, Mississippi, on January 14 and 15 and Febru-
ary 3 and 4, 1981, at which the General Counsel and Re-
spondent were represented by counsel and all parties
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.
Thereafter, the General Counsel and Respondent filed
briefs which have been duly considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Maryland corporation, is engaged in the
business of installing marine decking on ships. Respond-
ent operates in several States and is currently performing
subcontracting work for Ingalls Shipbuilding Corpora-
tion (herein called Ingalls) in Pascagoula, Mississippi.
During the past 12 months, a representative period, Re-
spondent, in the course and conduct of its business activi-
ties, purchased and received goods and materials valued
in excess of $50,000 which were shipped directly to it
from points located outside the State of Mississippi. Re-
spondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Allegations and Issues
Counsel for the General Counsel, by the complaint, al-
leges, inter alia, that on May 28 striking employees John
Clark, Noble Mann, Joseph Cooper, Edward Graves,
Alexis Joseph Tardy, George Lee, and Kenneth Sellers
(herein individually called Clark, Mann, Cooper, Graves,
Tardy, Lee, and Sellers) made unconditional offers to
return to their former positions of employment but were
denied reinstatement by Respondent in violation of Sec-
tion 8(a)(1) and (3) of the Act. The complaint further al-
leges the discriminatory termination of employees
Dwight Nelson and J. Keith Broadus (herein called
Nelson and Broadus respectively) on June 6 because of
their activities in support of the Union and seeks a bar-
gaining order based upon the Union's status as the major-
ity representative of Respondent's unit employees which
status was unlawfully dissipated by Respondent's dis-
charge and refusal to reinstate the above-named employ-
ees, thereby precluding the holding of a fair election and
violating Section 8(aX)) and (5) of the Act.
The complaint does not specifically allege the dis-
charge or termination of the seven strikers named above.
At the hearing, counsel for the General Counsel advised
the court and Respondent that he was taking the position
that these individuals were terminated for having en-
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in the strike discussed herein. Further, at the hear-
ing, counsel for the General Counsel amended the com-
plaint by alleging additional discriminatory discharges of
Sellers on August 15 following his recall and of Broadus
on August 21 following his reinstatement; the discrimina-
tory recall of Tardy on September 8 to the position of
laborer rather than his previous position as an apprentice
tile mechanic; and the commission of certain independent
8(a)(l) conduct by Supervisors Wayne Stinson and Joe
Dragunas involving the issuance of oral warnings and
threats of discharge to employees because of their union
activities. Each of these contentions was fully litigated at
the hearing, was addressed by both the General Counsel
and Respondent in their post-hearing briefs, and is there-
fore fully considered herein.
In its answer and during the hearing, Respondent ad-
mitted the appropriateness of the unit as alleged in the
complaint; 2 the supervisory status of certain people dis-
cussed below; and its refusal to reinstate the strikers on
May 28 because, Respondent contends, they were perma-
nently replaced in a lawful manner. Respondent also ad-
mitted recalling Broadus and Nelson on July 24 and Sell-
ers on July 31, and thereafter laying off Sellers on
August 15 and discharging Broadus on August 21, but
denied the commission of any unfair labor practices.
B. Respondent's Supervisory Structure
It will be helpful to a fuller understanding of various
events detailed below to explain Respondent's
managerial/supervisory hierarchy at its Pascagoula oper-
ation. Ultimate responsibility for that operation lies with
Malcolm E. Steigerwald (herein called Steigerwald), ex-
ecutive vice president of Respondent, whose office and
daily workplace is at Respondent's corporate headquar-
ters in Baltimore, Maryland. J. E. Steigerwald, for whom
Respondent is apparently named and senior in corporate
authority to Steigerwald, appears to have little or noth-
ing to do with the day-to-day operations in Pascagoula,
for his name is mentioned only rarely in this proceeding.
Joseph J. Dragunas (herein called Dragunas) is a senior
marine superintendent with Respondent at its Baltimore
facility. Dragunas has assisted Steigerwald in overseeing
production, labor relations, and other day-to-day matters
relating to the Pascagoula operation. Herbert W. Stinson
(herein called Stinson), also classified as a marine super-
The unit as set forth in the complaint reads as follows:
All production and maintenance employees employed by Respondent
at its Pascagoula, Mississippi, operations, including laborers, trowel
mechanics, tile mechanics, terrazzo grinders; excluding all office
clerical employees, professional employees, guards, watchmen and
supervisors as defined in the Act.
Counsel for the General Counsel and Respondent stipulated that the ap-
propriate unit consisted of 23 unit employees of which 21 employees
were properly classified as follows: (tile mechanics) Broadus, Kenny
Broadus, Wayne Hartness, William Holland, Dwight Nelson, Austin R.
Nowell; (trowell mechanics) Clark, Cooper, Mann, Henry Colley, Wayne
Michael Davis; (terrazzo grinders) Jimmy Wilson, Kenneth Wilks; (labor-
ers) Graves, Lee, John Michon, James Dumas, Mike L. Everhart, Darryl
Pugh, Al Wright; and (quality assurance) Charles W. Wilson. The parties
also stipulated that Sellers and Tardy were in the unit but disagreed as to
their classification. Counsel for the General Counsel contends that Sellers
was a first class terrazzo grinder and Tardy was a tile mechanic. Re-
spondent agreed that Sellers was a terrazzo grinder but contended that he
was a second class grinder and that Tardy was only a laborer.
intendent, is the person of highest authority permanently
stationed at the Pascagoula operation. s Below Stinson
are a number of work-leadermen, including Henry
Colley, who act as firstline supervisors.
C. The Card Majority and Demand for Recognition
On May 14, 1980, several employees of Respondent,
including Lee, Graves, Mann, and Clark, met with Rus-
sell R. Kelley, a business agent of the Union, who gave
these employees union authorization cards to be signed
by them and their fellow employees. 4 Lee, Graves,
Mann, and Clark each filled out, signed, and dated au-
thorization cards in Kelley's presence. On May 15, em-
ployees Broadus, Cooper, John Michon, Kenneth Broa-
dus, Austin Nowell, Albert Wright, Mike Everhart, and
William Holland signed identical cards. On May 16, em-
ployees Sellers and Kenny Wilks signed cards. Employee
Tardy signed a card on May 18. Employee Nelson,
whose card is undated, testified he signed the card ap-
proximately May 15 or about I week before the strike.
Thus by May 20, 16 out of 23, i.e., a majority of Re-
spondent's employees in the unit stipulated to be appro-
priate, had signed authorization cards.
On May 19, the Union sent a certified letter to Re-
spondent claiming majority status and requesting recog-
nition. On May 21, Kelley followed up the letter with a
telephone call to Steigerwald. Steigerwald refused to
recognize the Union and suggested Kelley file a petition
with the Board. By letter dated May 28, Respondent's at-
torney reaffirmed Respondent's position to decline rec-
ognition until such time as the Union may be certified by
the Board.
D. The Strike and Replacement of Strikers
The threat of a strike was made known to Ingalls and
Respondent about May 22. At that time, Ingalls estab-
lished a "separate gate" for the exclusive use of Steiger-
wald employees on the east bank of the shipyard. On
May 26, Ingalls established a "separate gate" for the ex-
clusive use of Steigerwald employees on the west bank
of the shipyard. On both the east and west banks, Ingalls
also had various other "gates" for use by employees of
Ingalls and other subcontractors. Some of these other
"gates" were staffed by security guards whereas others
were mere openings in a fence which were neither
manned nor marked as exclusively for the use of employ-
ees of Ingalls or subcontractors besides Respondent.
These "gates" remained in use, in the condition de-
scribed, through the time of the hearing herein.
On May 26, while on an informal break aboard a ship,
employee Sellers complained to other employees about
Respondent not paying him the wage rate paid to other
s Respondent admits, and I find, that Steigerwald, Dragunas, and Stin-
son are supervisors within the meaning of the Act.
' The authorization cards read in pertinent part as follows:
I, the undersigned employee of [J. E. Steigerwald Co., Inc.,] au-
thorize the International Association of Machinists and Aerospace
Workers (IAM) to act as my collective bargaining agent for wages,
hours and working conditions. I agree that this card may be used
either to support a demand for recognition or an NLRB election, at
the discretion of the Union.
484
J. E. STEIGERWALD CO., INC.
terrazzo grinders. While employees were participating in
this conversation, Marine Superintendent Stinson walked
into the area and asked what the problem was. Sellers re-
sponded that he had not been paid the proper wage rate,
whereupon Stinson directed all present to report to Re-
spondent's offices to attempt to iron out the problems.
The employees met with Stinson and Dragunas, who had
gone to Pascagoula upon hearing of the potential strike
situation. Employees voiced various complaints concern-
ing rates of pay, vacation, and holiday benefits. During
this meeting, Stinson accused Sellers of holding a union
meeting aboard the ship. Dragunas stated that he would
attempt to take care of the problem regarding pay but
would not grant the requested holidays and vacation pay
because it was not in accord with Respondent's practice
at its corporate headquarters in Baltimore.
On the evening of May 26 Respondent's employees
met and voted to strike the following morning.
On the morning of May 27, starting at approximately
5:30 a.m., the Union placed pickets at various entrances
to the shipyard used by employees of Respondent and
Ingalls. Seven employees of Respondent picketed on
May 27 at the Steigerwald "gates" on the east and west
banks. These pickets were trowel mechanics Clark,
Mann, and Cooper; laborers Graves and Lee; and Sellers
and Tardy, whose status are in dispute and will be dis-
cussed more fully below. Certain other employees, in-
cluding Keith Broadus and Dwight Nelson, honored the
picket line and did not report to work, but did not them-
selves picket. Still other employees crossed the picket
line and reported to work.
Employee Kenneth Wilks, who crossed the picket line
and reported to work, testified that he was in Respond-
ent's office shortly after 7 a.m. on the morning of the
strike in order to punch in at the timeclock and go to
work. In the office with Wilks were the secretary, Alice
Goff, and Marine Superintendent Stinson, Wilks testified
that he overheard Stinson make the statement that
people wearing the picket signs would be fired. Both
Goff and Stinson were called as witnesses by Respond-
ent, but neither was asked about this incident, and Wilks'
testimony is uncontradicted.
Respondent denies that it fired those seven employees
who picketed on May 27. It admits, however, that
during the day on May 27 Steigerwald, in consultation
with both Dragunas and Stinson, made a decision specifi-
cally to replace only those seven employees who were
observed carrying picket signs that day and not to re-
place other individuals who did not report to work.
In furtherance of this decision, on May 27 Stinson con-
tacted Tony Pierce whose name was given to Stinson by
another employee. Pierce came to Respondent's worksite
on that same day and filled out an application for em-
ployment, which reflected 7 months prior work experi-
ence as a carpenter. Pierce was hired by Stinson, accord-
ing to Stinson, as a laborer to replace Kenneth Sellers.
Pierce began work immediately on May 27.
According to Henry Colley, a first-line supervisor,
during the day on May 27, J. E. Steigerwald himself
spoke to him by telephone and asked Colley if he knew
anyone he could get to come to work. Colley replied he
did, and Steigerwald asked Colley if he would bring
them in. Colley replied yes, that he would contact the
people.
During the day on May 27, it came to employee
Wilks' attention, either through rumor or from Marine
Superintendent Stinson, that Respondent would be hiring
new people to take the place of the picketers. Wilks ap-
proached Stinson and mentioned a friend, Frank Urban,
who had an application on file and who might be availa-
ble for work. Stinson informed Wilks to tell Urban to be
at a nearby Rebel store at 6 a.m. the following day, May
28. 5 On the evening of the 27th, Wilks spoke to Urban,
and on the following morning Urban reported to the
Rebel store as instructed.
According to both Union Business Agent Kelley and
Joseph Hayes, director of labor relations for Ingalls, the
Union removed its pickets and terminated the strike at
approximately 4 p.m. on May 27. At that time, Kelley
also met with Respondent's employees and told them to
return to work the next morning. Kelley further testified
that at approximately 4:30 p.m. he telephoned Hayes to
tell him the strike had been terminated. Kelley testified
he told Hayes that the picket lines were down and that
the employees were going to return to work on their
normal shifts the next morning. Hayes responded that he
appreciated Kelley calling. On cross-examination by Re-
spondent, Kelley clarified his earlier testimony by adding
that in the conversation with Hayes he told Hayes not
only that picketing had ceased but also specifically that
the Steigerwald picket signs were down. Hayes, who tes-
tified after Kelley, did not deny this, and I credit Kelley.
Hayes, whose testimony generally corroborates that of
Kelley, testified that Kelley called and stated he had
taken the pickets down and they would not be put back
up in the near future. Hayes added that immediately after
the conversation with Kelley, Ed Lowe, president of the
local building trades council which had also picketed on
May 27 in conjunction with the Union, telephoned and
stated that Kelley had left Steigerwald and had pulled
the pickets down. It is clear from Hayes' testimony that
as a result of the telephone calls from Kelley and Lowe,
Hayes clearly understood that picketing not only of In-
galls but also of Steigerwald had terminated. Hayes then
notified Ingalls Personnel the pickets were down and the
shipyard would be in operation the next day.
Hayes testified he then telephoned Dragunas, as Hayes
put it, to find out what Kelley and Steigerwald had dis-
cussed. Hayes apparently was under the impression or
belief they had met or probably had had a discussion
which resulted in Kelley's decision to remove the pick-
ets. It is not clear whether Hayes' misimpression or belief
was clarified by Dragunas, but it is clear, according to
Hayes' testimony, that he informed Dragunas the pickets
were already down and everybody would be back to work
the next morning. Dragunas denied Hayes' testimony,
claiming Hayes informed him only that the pickets
"would be coming off the Ingalls gate" and that he had
' Prior to the morning of the strike on May 27, employees were in-
structed not to report to Respondent's facility but to meet at a nearby
Rebel store so that they could be transported across the picket line in
company trucks. During the day on the 27th, instructions were issued to
continue with this procedure the following morning.
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no indication the pickets would be coming down as far
as Steigerwald was concerned. In this regard I discredit
Dragunas. It is both improbable and illogical to believe
that Hayes would have telephoned Dragunas to tell him
only that pickets were coming off the Ingalls' gates.
Indeed, the very purpose of the call, according to Hayes,
was to find out what Kelley and Steigerwald had dis-
cussed. Rather, I credit Hayes whose testimony is more
probable and who is himself an uninterested party to this
proceeding. I find that Hayes informed Dragunas the
pickets were already down and that everybody, not just
Ingalls' or other subconcractors' employees, would be
back to work the next morning. Based on this, I find that
Respondent took the actions discussed hereinafter know-
ing, as of 5:30 p.m., May 27, that its striking employees
would return to work the following morning.
On the evening of May 27, in furtherance of the tele-
phone conversation earlier that day with J. E. Steiger-
wald, Henry Colley contacted his son Mickey Colley,
Robert Martin, David Stallworth, Sammie Williams, and
Roy Thomas to ask them if they would be interested in
coming to work for Respondent. When they stated they
would, Colley told Martin and Williams to meet Colley
at his house the next morning at 6 a.m. Colley testified
he told Thomas to meet him at Respondent's workyard
the following morning at 6 a.m. When Colley contacted
Stallworth, Stallworth informed Colley he had a job to
finish Thursday but that he could definitely report to
work on Friday, May 29. Colley told Martin and Wil-
liams to meet him at his house the following morning in
order to transport them himself to the Rebel store. No
explanation was offered why Colley told Thomas to
meet him at Respondent's workyard. According to
Colley, his son Mickey Colley and Williams both accom-
panied him to the Rebel store the next morning. Martin
did not show up and did not report to work at all on
May 28. Colley, called by Respondent, testified very em-
phatically twice that Thomas also arrived at the Rebel
store and rode the rest of the way to work with other
employees. This testimony is contradicted by Stinson
who, for reasons explained below, I credit on this point.
After meetimg at the Rebel store, Urban, Williams, and
Mickey Colley accompanied Stinson, Dragunas, and the
other employees, including Tony Pierce, to Respondent's
workyard in two company-owned trucks.
The employees went into the shipyard through the
Steigerwald "gate." There were no pickets at the gate.
Urban, Williams, and Mickey Colley then received tem-
porary security badges, and the two trucks proceeded to
the Steigerwald office inside the yard. As soon as they
got to the office, Stinson saw the employees who had
been picketing the prior day sitting outside of the office.
Rather than approach these employees, Stinson took
Urban, Williams, and Mickey Colley into the office, had
them fill necessary forms, and issued them work assign-
ments. 6 Stinson then went out to the striking employees
According to Respondent, Urban replaced laborer Edgar Graves;
Williams replaced trowel mechanic John Clark; and Mickey Colley, hired
as a laborer, replaced Alexis J. Tardy, whose job status is in dispute. Re-
spondent permitted other employees, including Broadus and Nelson, who
had merely honored the picket line, to return to work on May 28.
and told all of them that they had been permanently re-
placed. When asked to explain the difference between
permanent replacement and termination, Stinson refused
to answer. The strikers requested that they be paid, and
Stinson telephoned Steigerwald to determine whether
they could receive their pay. Steigerwald and Dragunas
came into the yard at approximately 9-9:30 a.m., and
gave the strikers their pay, again indicating to all of them
that they were permanently replaced.
According to Darryl Pugh,7 after Marine Superintend-
ent Stinson had been outside talking to the employees
who had picketed the preceding day, Stinson came into
Respondent's office where he, secretary Alice Goff,
other employees, and perhaps quality assurance inspector
Charles G. Wilson were present. According to Pugh,
Stinson began talking about the strike; stated that he had
spoken to Steigerwald by phone; and then stated that he
had fired all the people that were on strike, referring to
the picketers. On cross-examination, Pugh testified very
specifically that Stinson did not use the word "replaced"
but rather said "fired." Respondent argues that Pugh
should be discredited because of personal animosity re-
sulting from his being fired and because Pugh's assertion
is contradicted by Stinson, Goff, Wilson, and fellow em-
ployee Kenneth D. Broadus. For the following reasons,
however, I credit Pugh. Careful examination of the
record reveals that only Stinson and Wilson contradict
Pugh. Goff stated only that she could not recall such a
statement.
Broadus testified that on that same morning, also while
in Respondent's office, he asked Stinson why he had
fired the strikers. Stinson replied, "we did not fire them.
We replaced them. We have got a job and we have got
to get it done, and we have to get the people to do it."
Careful analysis of the record reveals that Broadus' testi-
mony was about a different conversation from Pugh's.
Broadus' testimony reveals that Respondent's office is di-
vided into two parts, one where clerical work is per-
formed by Alice Goff and the other which is used for
storage and where the timeclock is located. Broadus'
conversation with Stinson occurred in the latter part
where the timeclock is located while Pugh's testimony
relates to a statement made by Stinson in that portion of
the building where secretary Alice Goff worked. The
question of the probability of Stinson making one state-
ment to Pugh and Goff and a much different statement
to Broadus is discussed below.
As noted, Stinson and Wilson directly contradict
Pugh. Both deny that Stinson made the statement attrib-
uted to him by Pugh. Neither, however, was asked to
clarify what, if anything, Stinson did say. Further, there
is as much reason to question Wilson's personal bias as
there is Pugh's for having been fired inasmuch as Wilson
received a recent promotion from Respondent to the po-
sition of marine superintendent. Thus, my credibility res-
olution on this issue relies on the following factors. First,
it is undenied that on the morning of the strike, May 27,
employee Wilks overheard Stinson make the statement
that people wearing the picket signs would be fired.
I Pugh was an employee at the time of the strike, but was fired for
absenteeism in October 1980.
486
J. E. STEIGERWALD CO., INC.
Thus, it is not implausible that Stinson would make the
same statement the next day. Second, the record estab-
lishes that on the same day as Stinson's statement to
Pugh, secretary Alice Goff made the following notation
on the personnel files of each of the seven picketers: "5-
28-80 Terminated Reason: While walking the picket line
they were replaced." While Respondent argues that Goff
made these entries on her own and without direction
from anyone, Respondent did not ask Goff to provide
any explanation why she made these entries. Her entry
that the employees were "terminated" is similar to
Pugh's testimony that Stinson said they were "fired."
Her additional entry that they were replaced is similar to
Broadus' testimony in which Stinson said they were "re-
placed." It seems more than purely coincidental that
Pugh's testimony and Broadus' testimony should contain
the same discrepancy as the entry made by Goff, Stin-
son's secretary, on the personnel folders of these employ-
ees. Rather, it appears more probable that Stinson him-
self made the arguably inconsistent statements on the
morning of May 28. Last, and most importantly, my
finding is based on careful reflection and analysis of
Pugh's demeanor in testifying. Pugh testified in a very
straightforward and impressive manner, taking much
care to be as specific as possible and not to be led in his
testimony either by counsel for the General Counsel or
Respondent. Consequently, I find that Stinson made the
statement to Pugh and other employees on the morning
of May 28 that he had fired the strikers/picketers.
Sometime during the morning on May 28, Roy
Thomas reported directly to the Ingalls shipyard and, for
a reason which was not explained, was not able to obtain
security clearance to enter the facility until sometime
after noon. Stinson then told Thomas not to bother to
report that day but to report the next day. Thomas then
reported for work for the first time on May 29. Accord-
ing to Respondent, Thomas replaced George Lee, a la-
borer.
As indicated previously, Robert Martin did not show
up at the Rebel store on the morning of May 28 and did
not report to work at all that day, nor the following day,
May 29. Martin appeared at the home of Colley on the
evening of May 29 and inquired if the job was still avail-
able. Colley indicated it was. Martin came to Respond-
ent's facility for the first time on May 30. Martin, who is
apparently uneducated, had an employment application
filled out for him for the first time on May 30 by Stin-
son's secretary. It reflects no prior experience. Neverthe-
less, Martin was put to work by Respondent. According
to Respondent, Martin replaced trowel mechanic Joe
Cooper.
Also on May 30, David Stallworth reported to work
for the first time. According to Respondent, Stallworth
replaced trowel mechanic Noble Mann.
E. The Termination of Broadus and Nelson
Following the strike on May 27, Respondent contin-
ued through June 5 the practice of having employees
meet at the Rebel store in order to be transported to the
worksite in company trucks. On June 5, Stinson told em-
ployees, including Broadus and Nelson, that beginning
the following day they would no longer be driven to the
shipyard in company trucks but instead should resume
driving themselves.8
On the morning of June 6, after parking in a nearby
parking lot, Broadus and Nelson walked through one of
the unmarked and unmanned "gates," i.e., a fence open-
ing, located near an Ingalls security guard shack. They
then proceeded to work by walking across a supervisor
parking lot, over a bridge, through a security guard post,
and on to Respondent's office. At approximately 11:30
a.m., 15 to 20 minutes before the scheduled lunch break,
a fire drill was held aboard the ship on which Broadus
and Nelson were supposed to be working. In such a fire
drill situation it is necessary for Respondent to be able to
certify to Ingalls that all employees aboard the ship have
exited and are accounted for. When the fire drill oc-
curred, Broadus and Nelson did not exit the ship with
other employees, and Stinson was not able to locate
them or account for their whereabouts.
Stinson and Gerry Wilson, plus two other employees,
then got into the Company truck in order to leave the
facility for lunch. They first went to the Ingalls main
gate, inquiring if the guard had opened the Steigerwald
gate for any of Respondent's employees. The guard indi-
cated he had not. They then drove to Respondent's gate.
While waiting at the gate for an Ingalls guard, who had
been summoned to open the gate, Stinson spotted Nelson
and Broadus, lunches in hand, coming across the parking
lot outside the fence. He went inside the fence near them
and talked to the two employees, asking them where
they had been. He informed them that they had left the
ship early, and that they had no business doing that. In
addition, he indicated to them that they had gone out
through the wrong gate. Stinson then told them to go
back to the ship.
As Stinson went back to the truck, Broadus and
Nelson again walked through the unmarked-unmanned
opening in the fence, across the supervisor parking lot
and towards the bridge gate. At that point, the Ingalls
guard came to open the Steigerwald gate, and Stinson
told the guard that two of his employees had used the
wrong gate and that they should be stopped. The Ingalls'
guard used a walkie-talkie to contact another guard at
the bridge gate, and the two employees were stopped by
the guard at the bridge gate. 'hey were then taken to
the Ingalls security guard office, where their security
badges were taken from them. The next day Broadus and
Nelson were allowed to come to Respondent's office
inside the yard, to pick up their tools. Stinson told the
employees that there was nothing that he could do, since
Ingalls had picked up their badges. He indicated that he
would try to bring them back at a later date. Conse-
quently, Broadus and Nelson's employment was termi-
nated effective June 6.
Subsequently, two additional employees, Tony Pierce,
who had been hired to replace one of the picketers, and
I Broadus and Nelson had both honored the picket line on May 27 and
refused to go to work. Both individuals had been observed by Steiger-
wald. Dragunas. and Stinson engaged in conversations with picketers at
the picket line on that day. Nevertheless. both individuals, like all indi-
viduals who did not work on the day of the strike except the picketers
themscelves. were allowed to return to work on May 28.
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mike Everhart also came in through the wrong gate and
had their badges taken from them by Ingalls security.
These employees also were not allowed to come back
into the shipyard. When Broadus, Nelson, Pierce, and
Everhart were terminated as a result of having their se-
curity badges taken from them by Ingalls, none of the
picketers were offered the opportunity to fill the vacan-
cy created by these four people. Also, Marine Superin-
tendent Stinson admitted that after Pierce and Everhart
were terminated, they were later rehired to work for Re-
spondent in a warehouse located off Ingalls' shipyard
premises where security badges were not necessary. Nei-
ther picketers nor Broadus and Nelson were offered the
opportunity for warehouse work.
F. Subcontracting of Work
Counsel for the General Counsel contends that Re-
spondent subcontracted certain work-the preparation
for and application of nonskid coating in Hull No.
4601-in June 1980 in order to avoid having to recall
picketers. Respondent denies this allegation.9 The record
reflects that as early as March 1979 Respondent was con-
sidering the possibility of subcontracting this and other
work and received a price quotation for it from a Doug-
las Call Co., Inc. Respondent, however, did nothing
more regarding the subcontracting of this work for more
than a year. Sometime during early to mid-May 1980,
Respondent met with L. E. Wilks, Jr. d/b/a Jackman
Construction Company (herein called Wilks) and again
discussed the possibility of subcontracting this work. At
a second meeting, the date of which is unknown, Wilks
quoted Respondent a price for this work which was to
include all labor and equipment.
On June 6, Respondent gave Wilks a verbal commit-
ment to perform the work. '° By letter of that same day,
Respondent requested the necessary permission from In-
galls to subcontract this work as required by its contract.
On June 15, Marine Superintendent Stinson telephoned
picketer George Lee, a laborer, to offer him the opportu-
nity to return to work. Lee was not home, however, and
Stinson left a message with Lee's wife for Lee to tele-
phone him. On June 16, Lee returned the call to Stinson.
As is admitted by Respondent, Stinson told Lee he could
not recall Lee after all; that on the preceding day, after
Stinson spoke to Lee's wife, Stinson had spoken to Stei-
gerwald, and Steigerwald had instructed Stinson not to
hire anyone because of the pending unfair labor practice
charges.
* During the hearing, Respondent stipulated with counsel for the Gen-
eral Counsel that at a later date G.C. Exhs. 28 and 29, copies of June 5
and July 6, 1980, letters from Respondent to Ingalls, might be introduced
into the record. This agreement was reached because the documents
were not available at hearing. The documents are discussed in the briefs
of both parties. Therefore, pursuant to the General Counsel's motion,
G.C. Exhs. 28 and 29 are received into evidence. These exhibits, and
Reap. Exhs. 12 and 13, are relied on extensively in describing below facts
regarding the subcontracting of this work.
10 No written contract was ever signed between Respondent and
Wilks, something that Respondent admitted was highly unusual.
On June 17, Ingalls granted Respondent permission to
subcontract the nonskid coating referred to above. ]"
Thereafter, sometime prior to June 27, Wilks informed
Respondent that Wheelabrator-Frye corporation would
not agree to rent him a sophisticated piece of machinery
necessary to perform the nonskid work, but would be
willing to rent the equipment only to Respondent direct-
ly. Respondent then rented the machine itself, which was
shipped on June 27 and placed on board the ship on June
30. On July 1, work was begun by Wilks with a July 3
completion deadline on the helicopter hanger deck and
the flight deck. On July 2 Stinson phoned Steigerwald to
report that Wilks was not working. Steigerwald told
Stinson that he and Respondent's own employees were
to take over the job themselves. In Respondent's July 16
letter to Ingalls explaining its relationshop with Wilks,
Steigerwald states:
[W]e were cutting much too close to July 3rd and
at that rate would have to blast and coat all night
Wednesday and straight through until Thursday
night and even then there was very little chance for
meeting the completion deadline. I told Wayne
Stinson to do whatever was necessary to get the job
done.
In spite of Stinson and Respondent's employees taking
over and performing this work, with the additional help
of Wilks, it still was not completed until July 7, 3 days
past the deadline. Throughout this period, Respondent
did not attempt to recall any of the picketers.
With the hanger deck and flight deck work completed
on July 7, Respondent then faced a deadline of July 16
for completion of outside nonskid material. Steigerwald
instructed Dragunas to stay on the job in Pascagoula to
oversee completion of this work. On July 9, Steigerwald
made the decision to remove Wilks from the job and
have Respondent take over all remaining work with its
own employees. Although Respondent did so, and thus
had to divert its employees from work they would other-
wise have been assigned, Respondent again made no
effort to recall any of the picketers. In Respondent's July
16 letter to Ingalls, quoted above, Steigerwald stated in
significant part:
Several days before starting the job, I discussed the
possibility of not using Mr. Wilks, but rather use
our own men. This would have led to several prob-
lems, the greatest of which was our union negotiations.
[Emphasis supplied.]
Respondent's entire operation at the Ingalls shipyard is
nonunion, and I find this to be a clear and unmistakable
reference to the Union's organizational campaign which
is the subject of this case.
Prior to July 22, Respondent interceded with Ingalls
on behalf of Nelson, Broadus, Pierce, and Everhart, the
four individuals who had been terminated as a result of
going through the wrong "gate" and having their secu-
" Permission was granted by Ingalls with the express understanding
that Respondent was not relieved of its own liability for completion of
the work in a timely manner pursuant to its contract with Ingalls.
488
J. E. STEIGERWALD CO., INC.
rity badges taken from them. Ingalls agreed with Re-
spondent that it could rehire these four individuals, and
on July 22 each was offered employment. Although it is
thus apparent that there was sufficient work for at least
four additional people, Respondent failed to offer any of
the positions to any of the picketers.
G. The Layoff of Sellers
On July 31, Respondent recalled/reinstated its first
picketer. On that date, Kenneth Sellers was returned to
his former position as a terrazzo grinder, even though his
replacement, Tony Pierce, was still working and re-
mained employed as of the hearing herein. It is thus ap-
parent that whatever Respondent's reason may have
been for recalling Sellers, it was not occasioned by his
prior position having become vacated.
Sellers testified that on the first day of his return to
work, he and employee Kenneth Wilks were in Respond-
ent's office when they overheard a conversation between
Marine Superintendent Stinson and a supervisor of In-
galls whose name they did not know but who they rec-
ognized to be from Department 17. Sellers testified that
the conversation was initiated by the Ingalls supervisor
asking Stinson if he had any jobs, that he knew some-
body who needed a job. Stinson replied that he did need
people, but that he could not hire anyone because of the
seven picketers that were laid off. Stinson added he
would see the seven picketers that were laid off sitting
on the street corner starving before he would bring them
back to work. Stinson denied making the statements at-
tributed to him by Sellers. Although Wilks' version
varies slightly from Sellers, this variation is only in
minor details which no two individuals are likely to
recall in exactly the same way. In significant respects,
Wilks' testimony corroborates Sellers that Stinson made
the statement he would let the seven picketers stay out
and starve before he would hire them back. The fact that
one of the seven picketers-Sellers himself-had just
been reinstated reflects more on Stinson's memory, if not
his credibility, than on the credibility of Sellers and
Wilks. The issue before me is whether Stinson made the
remarks in question and their significance to this case,
not whether Stinson's comment might be taken issue
within fact. I credit Sellers, whose testimony is substan-
tially corroborated by Wilks.
Employees Broadus and Nelson testified that about a
week after their recall, Stinson called them into the
office in the presence of Kenny Broadus and said he had
heard that they had been "talking about the Union on
the job." According to both employees, Stinson said that
they were not to do so in the future. On cross-examina-
tion, Broadus was very specific that Stinson did not pro-
hibit talk about the Union only while he and others were
"working" but rather prohibited it "on the job."
Broadus, however, testified he personally understood this
to mean while on the ship working.
Employee Sellers testified that during this same time
period, and specifically between August 11 and 14, Stin-
son approached him while at work in one of the ship gal-
leys. Stinson told Sellers he had heard Sellers had at-
tempted to get other employees to join the Union. Ac-
cording to Sellers, Stinson then stated he did not want
Sellers "to talk about the Union on the job." Stinson ad-
mitted that he had conversations with Broadus and
Nelson, and with Sellers, shortly after their return to
work. According to Stinson, however, who admits
saying the same thing to all three, he told them "they
could solicit for the Union all they wanted to but not to
do it on my working time." Stinson also testified, and
Broadus admitted, that prior to the conversation each
employee had been given a copy of company rules and
regulations, one of which provides:
Solicitation or the circulation of patitions [sic] or
distribution of written material for any reason not
related to company business, on company property
during working time, will result in discharge.
Stinson, however, makes so assertion that in the conver-
sations with Broadus and Nelson, or in the conversation
with Sellers, he referred them to this rule, and counsel
for the General Counsel does not attack the validity of
the rule itself. Rather, he argues that Stinson's statement
to Broadus and Nelson, and to Sellers, itself constitutes
an overly broad rule or the unlawful enforcement of a
lawful rule. As between the versions given by Broadus
and Nelson, and by Sellers, and that given by Stinson, I
credit the mutually consistent testimony of Broadus,
Nelson, and Sellers that Stinson cautioned them against
"talking about the Union on the job."
On or about August 13, Marine Superintendent Stinson
and Sellers got into an argument concerning the need to
work overtime. Sellers concedes that during this argu-
ment Stinson told Sellers he could give Sellers a warning
for refusing to work overtime. Sellers replied that he had
previously talked with Union Business Agent Kelley and
knew that he could be assigned to work overtime. Sellers
nevertheless declined to work overtime which Stinson
had asked him to work. Stinson did not inmediately press
the issue.
On August 15, as Sellers was installing a terrazzo floor
in a ship, Stinson approached him and took him off to
the side. There Stinson handed Sellers a layoff slip. This
slip read in pertinent part as follows: "You are hereby
advised of being laid-off as of 8/15/80 due to lack of
work. We regret we can no longer keep you employed.
Should work pick up, we will be in contact." On Sep-
tember 15, Respondent hired a new terrazzo grinder, Joe
Robertson without first calling Sellers. Several days
later, while at the timeclock adjacent to Stinson's office,
employee Kenneth Wilks heard Stinson remark that he
was tired of Sellers bringing up Kelly's name every time
he told Sellers what to do. Stinson did not deny that he
made this statement about Sellers. In fact, he admitted
that he made an almost identical statement to Sellers
himself. Stinson testified that it had been reported to him
by Supervisor Colley that Sellers had refused to carry
out various minor work assignments, threatening to go to
business agent Kelley if he was required to do them.
Stinson went directly to Sellers. Stinson told Sellers that
he was tired of hearing Kelley's name brought up as a
threat every time management asked Sellers to do some-
thing and that Stinson did not want to hear it anymore.
It was shortly after this that Stinson and Sellers got into
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an argument on August 13 when Sellers refused to work
overtime.
H. The Discharge of Broadus
On August 31, Ingalls' representatives were conduct-
ing a final inspection of a ship prior to delivering the
ship to the Navy. As part of this inspection, Ingalls test
engineers Michael Hinkle and Ronald Waldrup were
going through the ship compartment by compartment to
inspect the plumbing facilities. Broadus and some other
employees were doing touchup work in various berthing
areas aboard the ship. Hinkle and Waldrup testified that
as they entered the wash area where Broadus was work-
ing, they observed him urinating in a sink. Waldrup
asked Broadus what he was doing urinating in the sink,
and Broadus replied that he had weak kidneys.
Broadus testified that in fact he had not urinated in the
sink, claiming instead that he was only tucking in his
shirt. Broadus, however, admitted the conversation be-
tween him and Waldrup as described above. Broadus tes-
tified he responded as he did because he thought Wal-
drup was kidding.
Even though Broadus denies urinating in the sink, it is
clear, by his actions and his response to Waldrup, that
Broadus left the clear impression he admitted urinating in
the sink. Moreover, I credit Waldrup, who is an uninter-
ested party to this proceeding, that Broadus in fact urin-
ated in the sink.
Waldrup notified Ingalls' ship superintendent, Brad-
ston, about the incident and Bradston notified Stinson.
What occurred next is the subject of some doubt. Stinson
testified he went to the berthing area in question and
asked the group of employees, including Broadus and
Nelson, which employee had been caught urinating in
the sink, to which Broadus replied, "I did." Broadus
denied that this conversation occurred. Nelson testified
he could not recall such a conversation. Bradston testi-
fied that it had been reported to him the employee had
urinated in an inoperable urinal, not a sink; that he di-
rected Stinson to meet him in the berthing area; and that
he and Stinson met Waldrup who showed them the
urinal in question. Bradston's testimony is so different
from any other of Respondent's witnesses that one's ini-
tial response is to wonder whether the entire incident is
fiction. Closer analysis, however, reveals that Bradston is
simply in error about the matter involving a urinal rather
than a sink. Even Broadus admits that the incident oc-
curred in a sink. Bradston's confusion can be explained in
part by his testimony that even if the employee had used
a urinal this would still call for discharge because there
is an absolute prohibition against using toilet facilities on
board any ship. Thus, while it is impossible to determine
precisely what occurred after Bradston reported the inci-
dent to Stinson, it is clear that at some point it came to
Stinson's attention that Broadus was the employee in-
volved in the incident-a fact Broadus does not deny.
Stinson took no action at the time, but later checked
with the Industrial Relations Department at Ingalls as to
what action should be taken. Ingalls indicated that if it
had been one of their employees, the individual would
have been fired. The following day, August 22, Broadus
was told to report to the west bank of the shipyard
where Stinson was working. When Broadus arrived,
Stinson told Broadus he was discharged because he had
been caught urinating in the sink. When Broadus denied
that he had urinated in the sink, Stinson replied that an
Ingalls representative had seen him do it and that he
would have to let him go. Broadus testified that Stinson
then told him not to run to the Union and stir up a
bunch of trouble over his discharge and that in 30 days
he would recall Broadus. Stinson denied this latter state-
ment. On August 26, a new tile mechanic was hired to
take Broadus' place. Respondent did not attempt to offer
this position to any of the picketers.
I. The Recall of Tardy
On September 8, picketer Joseph Tardy was reinstated
by Respondent. Upon his recall, Tardy was assigned
work as a laborer. Counsel for the General Counsel al-
leges that Respondent violated the Act by recalling
Tardy as a laborer rather than the previous position
which he occupied as "apprentice tile mechanic." Re-
spondent argues that Tardy was a laborer prior to the
strike and was properly recalled to that position.
Tardy concedes that when he was hired by Respond-
ent on February 12, 1980, it was to the position of a "la-
borer." Tardy asserts that at the time he was hired, he
expressed an interest in laying tile. However, there was
no tilework available at the time. Tardy claims he was
promised such work when the need arose. Dragunas
admits that at the time he hired Tardy, Dragunas prom-
ised Tardy he "would try him out in different fields."
For approximately the first month, Tardy performed var-
ious odd jobs for Respondent, including building a small
building used to store tools and materials. During this
time Tardy received $6.04 per hour.
According to Tardy, after the first month, and con-
tinuing thereafter for a month to 6 weeks, Tardy per-
formed tilework on a regular basis. At the time of his as-
signment to tilework, Tardy received a raise of $1 per
hour to $7.04. After approximately 3 weeks to a month,
Dragunas promoted Tardy to a position as supervisor
over other tile mechanics. Although Dragunas admits
promoting Tardy, he also claims that Tardy's tile laying
ability was never satisfactory. I discredit Dragunas in
this respect for his claim is belied by the fact that Tardy
received such accelerated advancement to a position of
supervisor over other tile mechanics.
Tardy continued to function as a supervisor for ap-
proximately 3 weeks to a month. It is clear that during
this time Tardy was not a popular supervisor, and Re-
spondent received complaints from several more experi-
enced tile mechanics about Tardy's approach to supervi-
sion. Therefore, by mutual agreement between Dragunas
and Tardy, Tardy gave up this supervisory function.
Tardy claims, and Dragunas concedes, that from then
until the time of the strike, except for a few days when
Tardy was laid off for lack of work, Tardy continued to
repair unsatisfactory work of other tile mechanics by re-
moving those tiles and replacing them with different
tiles. When Tardy was recalled to work on September 8
after the strike, he was not assigned such work although
Respondent does not deny that it was available. Rather,
490
J. E. STEIGERWALD CO., INC.
Tardy was assigned the more onerous work of a laborer,
the position into which he was initially hired.
Tardy testified that approximately 2 to 3 weeks after
his recall in September, Tardy had a conversation with
Dragunas in Respondent's office. According to Tardy,
Dragunas accused Tardy of instigating the strike. When
Tardy denied any leadership role in the strike, Dragunas
told Tardy to shut up or he (Dragunas) would fire Tardy
again. Dragunas denied that any such conversation ever
took place. In support of Dragunas' claim that the con-
versation never occurred, Respondent introduced
records showing that on almost every workday (Monday
through Friday) in September Dragunas was present at
the Maryland Shipbuilding and Drydock Company in
Baltimore, Maryland. These records reflect, however,
that Dragunas was absent on Friday, September 19 and
on Saturdays in September. Therefore, I must conclude
that these records themselves do not establish, as Re-
spondent argues, that the conversation could not have
occurred. As between Tardy and Dragunas, I credit
Tardy. In doing so, I particularly note that his testimony
regarding this incident is corroborated by employee
Darryl Pugh, whose demeanor I have already comment-
ed upon above.
On September 15, October 16 and 17, and November 4
and 17, Respondent hired five new employees, all to po-
sitions as laborers. On December 15, Respondent hired a
new employee to the position of tile mechanic. Respond-
ent did not offer any of these positions to any of the re-
maining picketers, and none of them have been offered
reinstatement since then.
IV. ANALYSIS AND CONCLUSIONS
A. The Discharge of Picketers
One of the primary issues, and perhaps the most diffi-
cult issue, is whether Respondent discharged or other-
wise terminated the seven individuals who picketed Re-
spondent on May 27 because of that activity. It is not
possible to look at any one act or event in order to de-
termine whether Respondent accorded the picketers the
necessary recognition of their continued employment
status. Instead, one must consider a number of incidents
in perspective to determine whether picketers were in
fact terminated. Upon careful examination of the entire
record, I conclude that the individuals who picketed Re-
spondent on May 27 in reality had their employment
status severed by Respondent for engaging in such activ-
ity. In reaching this conclusion, I rely on the following
factors-not alone but in combination with one another:
(1) On the morning of May 27, the day of the strike,
Stinson threatened employees that people wearing picket
signs would be fired. This statement is, of course, itself a
threat of discharge in violation of Section 8(a)(l) of the
Act. (2) Respondent admittedly decided on May 27 to
take some action only against those seven employees
who were observed carrying picket signs and not against
any other employees who did not report to work. Re-
spondent asserts in effect that it had a legal obligation to
replace only those who picketed because, it claims, those
are the only employees who Respondent objectively
knew supported the strike. In support of its argument
Respondent cites E. L. Weigand Division, Emerson Elec-
tric Co., 246 NLRB 1143 (1979), for the proposition that
before an employer may take lawful action, including
permanent replacement, against a striker, the employer
must first have objective evidence that the particular em-
ployee is participating in the strike. Assuming Respond-
ent's interpretation of Emerson Electric is correct, its ar-
gument nevertheless overlooks the fact that it chose to
take action only against picketers even though other em-
ployees also objectively demonstrated their participation
in the strike and Respondent was aware of this. Re-
spondent witnesses admitted that during the day on May
27 they observed numerous employees approach the
picket line, converse with the picketers, and leave with-
out reporting to work. Respondent witnesses also admit
that they observed employees Keith Broadus and
Dwight Nelson at the picket line on several occasions on
May 27 conversing with picketers. There is no evidence
whatever, and Respondent does not even argue, that any
of these employees were prevented from reporting to
work as a result of threats or other misconduct by pick-
eters. There simply is no basis in this case for Respond-
ent to conclude that only picketers were participating in
the strike. Nevertheless, Respondent consciously chose
to single out only picketers as the individuals against
whom it would take action. Although the singling out of
picketers is not itself evidence that they were discharged,
it is evidence of animus and a discriminatory motive har-
bored against picketers for engaging in this activity. (3)
On the morning of May 28, the day after the strike, Stin-
son observed the picketers present at the jobsite ready
for work. However, he proceeded to first hire Urban,
Williams, and Mickey Colley before approaching the
picketers to tell them they had been permanently re-
placed. Unable or unwilling to explain the difference to
them between being discharged and permanently re-
placed, Stinson then returned to the office where he an-
nounced to assembled employees that he had just fired
all the people that were on strike. This too is an inde-
pendent violation of Section 8(a)(1) of the Act. (4) Also
on May 28, Stinson's own secretary made the following
entry on the personnel files of each of the seven picket-
ers: "Terminated. Reason: While walking the picket line
they were replaced." Although Respondent argues that
the entries were made by Stinson's secretary totally on
her own, and although Respondent called the secretary
to testify, Respondent failed to have the secretary ex-
plain these entries. Stinson's statement to employees and
his secretary's entry on the personnel files of picketers
provide further support for the conclusion that the pick-
eters were discharged or terminated. (5) Replacement
Robert Martin did not report to work at all on May 28
or May 29. When Martin appeared at Colley's home on
the evening of May 29, he was told the job was still
open. Martin was not hired by Respondent until May 30.
This fact also suggests that Respondent considered the
picketers' jobs vacated and the picketers terminated as of
the time of the strike. (6) At least two other replace-
ments are demonstrably inadequate to substitute for the
employees who Respondent contends they replaced. Re-
spondent asserts that Tony Pierce replaced Sellers and
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Mickey Colley replaced Tardy. Although Respond-
ent claims that Sellers' work as a terrazzo grinder was
less than adequate, the record is absolutely clear that
prior to the strike Sellers was utilized exclusively as a
terrazzo grinder. Pierce's application for employment,
however, reflects sporadic employment in a 7-month
period for three different employers and that his only
employment was as a carpenter. Further, although Re-
spondent contends that Tardy was a laborer, the record
reflects that Tardy performed such work for only about
the first month of his employment. Thereafter, he was
utilized to lay the tile and was even accorded an oppor.
tunity, albeit aborted, to supervise. At the time of the
strike, Tardy was laying tile. Mickey Colley's application
for employment reflects that Colley had only recently
graduated from high school and had absolutely no prior
employment history. The evidence is clear that neither
Pierce nor Colley had the experience or qualifications to
replace Sellers or Tardy. This fact suggests that Re-
spondent was primarily interested in ridding itself of the
picketers rather than in hiring other employees capable
of replacing them and supports a conclusion that the
picketers were discharged or terminated. (7) On June 15,
Steigerwald instructed Stinson not to hire anyone be-
cause of the pending unfair labor practice charges. As a
result, Stinson informed Lee of Steigerwald's decision
and withdrew the offer of reemployment. Stinson's state-
ment to Lee and its withdrawal of the offer also consti-
tute separate and independent violations of Section
8(a)(l) of the Act. The O'Hare Hilton, 248 NLRB 255
(1980); W. H. Scott d/b/a Scott's Wood Products, 242
NLRB 1183 (1979); Welsbach Electric Corporation, 236
NLRB 503 (1978). They also evidence a more far-reach-
ing effort on Respondent's part to rid itself of the picket-
ers. (8) Prior to having subcontractor Wilks begin work
on July 1, Respondent considered using its own employ-
ees to perform the work, but decided not to do so be-
cause, as Respondent's July 16 letter to Ingalls states,
"This would have led to several problems, the greatest
of which was our union negotiations." (9) On July 31,
Marine Superintendent Stinson was overheard to say that
he could not hire anyone because of the seven picketers,
and he would see them sitting on the street corner starv-
ing before he would bring them back to work. (10) In
late September, when reinstated picketer Tardy denied
the accusation of Marine Superintendent Dragunas that
he had been a leader in the strike, Dragunas told Tardy
to shut up or he would fire Tardy "again." In addition to
evidencing that Tardy and other picketers in reality had
been fired, such a statement also constitutes an unlawful
threat of discharge in violation of Section 8(a)(1) of the
Act. (11) The numerous times that job openings occurred
after May 28, as detailed below, and Respondent refused
to recall any of the picketers.
Each of the 11 factors enumerated and discussed
above, considered in conjunction with one another, con-
tribute to my conclusion that the picketers were dis-
charged. This conclusion is strengthened even more
when these factors are considered in conjunction with
the fact that as of approximately 5:30 p.m. on May 27,
the day of the strike, Respondent knew that the strike
had been terminated and that its striking employees
would return to work the following morning. In spite of
knowing this, Respondent proceeded to hire "replace-
ments" for the picketers. From all of these factors I con-
clude, much as the entry on their personnel rccords, that
the picketers were in reality "terminated ... while
walking the picket line."
B. The Replacement of Picketers
The General Counsel alleges, and Respondent denies,
that even if the picketers were not discharged for engag-
ing in such activity, nevertheless picketers were discrimi-
nated against by Respondent in the manner in which
they were replaced. I find merit to the General Counsel's
position.
The first "replacement," Tony Pierce, was hired on
May 27 while the picketing was still in progress. Ac-
cording to Respondent, Pierce replaced Sellers. The
business justification of replacing strikers is an affirma-
tive defense, and the burden of establishing that replace-
ments were bona fide is upon Respondent. Fitzgerald
Mills Corporation, 133 NLRB 877 (1961); Leon Ferenbach,
Inc., 212 NLRB 896 (1974). As discussed at length
above, however, Pierce is demonstrably inadequate and
incapable of performing the work of Sellers, a terrazzo
grinder. Respondent does not point to any other replace-
ment who was capable of or hired to perform such
work, and there is no independent evidence to establish
this. Consequently, I conclude that when Sellers attempt-
ed to return to work on the morning of May 28, such
work was still available, and Respondent was obligated
to reinstate Sellers for such work. By failing to do so,
Respondent unlawfully discriminated against Sellers in
violation of Section 8(a)(3) of the Act. W. C. McQuaide,
Inc., 237 NLRB 177 (1978).
Counsel for the General Counsel also contends that
before any replacements were hired, the picketers first
terminated their strike and/or made an unconditional
offer of reinstatement to Respondent. Respondent con-
versely argues that Sellers was hired while the picketing
was still in progress; that it appointed Supervisor Henry
Colley to act as its agent in finding replacements for the
strikers; and that Colley had hired such replacements
before any picketers made any unconditional offer to
return by reporting to work on the morning of May 28.
The issue with respect to Pierce and Sellers is disposed
of above. I agree with Respondent that it appointed
Colley its agent to seek replacements for the strikers.
However, from Colley's testimony it is clear that the
extent of his authority was to recruit potential replace-
ments; he had no authority to hire or offer employment
to such people. Only Stinson, Dragunas, or Steigerwald
had the authority to hire individuals recruited by Colley.
In fact, such recruits were not hired or made job com-
mitments until hired by Stinson at Respondent's office on
the morning of May 28. Before any of such recruits were
hired, Respondent had already been notified on the pre-
vious evening by Joseph Hayes, Ingalls' director of labor
relations, that the strike against Steigerwald had termi-
nated and that its employees would be back to work the
next morning. Further, before any recruits were hired,
the picketers themselves had shown their desire to return
492
J. E. STEIGERWALD CO., INC.
by reporting to work on the morning of May 28 where
they were observed by Stinson. Consequently, by going
ahead and hiring replacements, Respondent effectively
discharged the picketers in violation of Section 8(aX3) of
the Act. Richard C. Knight Insurance Agency Inc., 243
NLRB 604 (1979); W C. McQuaide, Inc., supra. More-
over, even if I were to find that Colley had the authority
to hire or make job commitments to potential replace-
ments, I would nevertheless find that Respondent dis-
criminated against the picketers. The telephone call from
Hayes to Dragunas was itself sufficient to put Respond-
ent on notice that its striking employees, both picketers
and nonpicketers, had terminated the strike and would
return to work the following morning. All of the re-
placements recruited by Colley were contacted on the
evening of May 27, after Hayes' call to Dragunas. Dra-
gunas could easily have notified Colley to suspend his
search for replacements, but chose instead not to do so.
Therefore, by going ahead with its decision to replace
the picketers, Respondent unlawfully discriminated
against them in violation of Section 8 (a) 3) of the Act.
C. The Discharge of Broadus and Nelson
Counsel for the General Counsel alleges, and Respond-
ent denies, that Keith Broadus and Dwight Nelson were
discharged on June 6 because of their support for the
Union.
Broadus' and Nelson's support for the Union was
openly demonstrated and made known to Respondent on
May 27. During the strike, they were observed by Re-
spondent at the picket line on several occasions talking
and visiting with picketers. Respondent, however, made
no effort to replace them. On the following day, May 28,
they were allowed to return to work without incident.
After May 28, Broadus and Nelson continued to work
each day until their discharge on June 6. From May 28
through June 6, Broadus and Nelson along with other
employees were transported to the jobsite on a daily
basis in trucks owned by Respondent. There is no evi-
dence that between May 28 and June 6 Respondent
threatened, intimidated, or coerced Broadus or Nelson in
violation of Section 8(a)(1) of the Act. Further, although
there is considerable evidence of animus on Respondent's
part toward the picketers, there is no evidence that Re-
spondent exhibited any animus toward other employees
who remained away from work on May 27, including
Broadus or Nelson.
On June 6, as described in detail above, Broadus and
Nelson left their work stations without the knowledge or
permission of Respondent. While they were gone, a fire
drill took place, resulting in a potentially critical situa-
tion because Respondent was unable to account for their
whereabouts. Several minutes later, as Stinson and other
employees were leaving for lunch, Broadus and Nelson
were observed returning to the jobsite. After a brief con-
versation with them at the fence, Stinson told Broadus
and Nelson to go back to the jobsite, which they imme-
diately did by using one of the "gates" which Ingalls
prohibited Respondent's employees from using. At that
moment an Ingalls' security guard arrived in the area to
open the proper gate for Stinson. Stinson then notified
the guard that Broadus and Nelson had used an improper
"gate." As a result, Broadus and Nelson had their secu-
rity passes taken from them by Ingalls which resulted in
their termination by Respondent. There is no question
that Broadus and Nelson were victimized to a significant
extent by Stinson, who told them to return to the jobsite
immediately and then caused their discharge for using an
improper "gate" which at the time was the only means
possible of carrying out Stinson's direction. Nevertheless,
the incident would never have occurred had it not been
for Broadus and Nelson leaving their job posts without
permission at a potentially critical time. Further, the
entire incident at the fence and with the guard occurred
so quickly that it is highly improbable Stinson could
have acted with any premeditation or forethought.
Rather, it is much more likely, and I conclude, that Stin-
son acted out of self-preservation, feeling that if the
guard noticed Broadus and Nelson using an improper
"gate" with Stinson present and condoning their actions,
he might get himself in trouble.
The conclusion that Broadus and Nelson were not dis-
criminated against by Stinson because of their union sen-
timents is also supported by the manner and timeliness in
which they were recalled, particularly in comparison to
the picketers. After Broadus and Nelson were terminat-
ed, two other employees, Everhart and (replacement)
Pierce, were also terminated as a result of using the
wrong "gate" and having their badges taken away by In-
galls' security personnel. Respondent later interceded
with Ingalls on behalf of all four individuals. Respondent
was given permission to rehire them, which it did on
July 22. Respondent's action in interceding on their
behalf runs counter to a conclusion that it caused their
discharge for a discriminatory motive. For all of these
reasons, I conclude that Respondent's (constructive) dis-
charge of Broadus and Nelson on June 6 was not the
result of any unlawful motive, and I shall dismiss that
portion of the complaint.
D. The Layoff of Sellers on August 15
On August 15, Respondent laid off or terminated Ken-
neth Sellers. Counsel for the General Counsel alleges
Sellers was terminated, while Respondent contends Sell-
ers was laid off and still has an expectancy of being re-
called. I find it unnecessary to determine whether Sellers
was terminated or laid off inasmuch as the remedy
would be the same in either case if the motive for Re-
spondent letting Sellers go was unlawful. Therefore, the
only issue before me is Respondent's motivation for ceas-
ing Sellers' active employment on August 15.
In assessing Respondent's motivation for laying off
Sellers, I am guided by the test recently enunciated by
the Board in Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980). In doing so, I conclude that the
evidence adequately supports the inference that Sellers'
protected activity was a motivating factor in Respond-
ent's decision to lay off Sellers and that Respondent has
failed to carry its burden to demonstrate that the layoff
would have taken place even in the absence of Sellers'
protected activity.
There is considerable evidence that Respondent, and
particularly Stinson, harbored considerable animus
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward Sellers and the other picketers for having en-
gaged in protected strike activity on May 27. This is evi-
denced by several violations of Section 8(a)(1) cited
above. It is also evidenced particularly by Stinson's state-
ment as late as July 31 that he would see the seven pick-
eters sitting on the street corner starving before he
would bring them back to work. Moreover, Stinson had
reason to harbor such animosity particularly against Sell-
ers since, as indicated above, it was his complaints which
caused Stinson to hold a meeting with employees on the
day before the strike and which served as an immediate
catalyst for the strike.
Also just a few days before Stinson laid off Sellers on
August 15, i.e., sometime between August 11 and 14,
Stinson told Sellers he had heard Sellers had attempted
to get other employees to join the Union. Stinson then
warned Sellers not "to talk about the Union on the job."
I find this warning by Stinson, and the similar earlier
warning to Broadus and Nelson, to be the imposition of
an unlawful no-solicitation rule in that it prohibits union
activity other than on "working times" in "working
areas." Republic Aviation Corporation v. N.L.R.B., 324
U.S. 793 (1945); Essex International, Inc., 211 NLRB 749
(1974).
Based on all the above, I conclude that Stinson's layoff
of Sellers on August 15 was substantially motivated by
Stinson's animosity toward Sellers for engaging in pro-
tected activity. I therefore necessarily reject Respond-
ent's argument that Sellers' protected activity played no
part in his layoff. While Respondent does not argue that
the layoff would have taken place in any event, even if
part of Stinson's motive was unlawful, and I might con-
clude, ipso facto, that it has failed to carry its burden in
that regard, I shall nevertheless consider the merit of
that position. Not to do so would, I believe, provide less
than full consideration to the substance of Respondent's
position.
Both before the strike and after Sellers' reinstatement,
Respondent remained steadfast in its response to Sellers
that before it would give him the demanded raise, he
would first have to prove his ability to perform superior
work by "selling" a room to Ingalls (i.e., completing a
room such that it passed Ingalls' inspection and was ac-
cepted by them). Sellers felt very strongly that he had
already done so, and testified accordingly. Whether he
had or not is unnecessary for me to decide for it would
make no difference to the issue before me. Neither party
contends that Sellers' ability played any part in the
layoff. There is some evidence to suggest that, when Re-
spondent refused Sellers' persistent requests for a raise,
Sellers responded by refusing to perform various minor
jobs assigned to him by Colley and on August 13 by re-
fusing to work overtime.
Sellers was reprimanded by Stinson on two occasions
for refusing to perform the assigned work. Sellers was
not recalled by counsel for the General Counsel to deny
that he refused to perform minor jobs assigned by Colley
or that he was reprimanded by Stinson for doing so. Sell-
ers admits that when he refused to work overtime, Stin-
son told him he could be given a warning slip.
Respondent, through Stinson, asserted that it laid off
Sellers on August 12 (1) because of Sellers' prior refusals
to perform work and (2) work had slackened to such a
level that it could justify a layoff. For reasons expressed
above, I have rejected Respondent's argument that Sell-
ers' protected activity played no part in his layoff. For
the following reasons I also conclude Respondent has
failed to demonstrate the layoff would have taken place
even in the absence of Sellers' protected activity. While
Stinson reprimanded Sellers for refusing to perform cer-
tain minor work tasks and refusing to work overtime,
Stinson never warned Sellers that these might lead to his
layoff or termination. Indeed, Respondent asserts that
Sellers was only laid off and not terminated, a position
which itself minimizes the severity of Sellers' actions. I
also find it significant that Sellers' refusal to perform
work was not advanced, relied on in any way, or even
mentioned by Respondent in its layoff notice to Sellers. I
also note that the reason given Sellers for his layoff was
factually untrue and that Stinson's position at the hearing
represents a shifting position from that advanced in the
layoff notice. Sellers was told unequivocally his layoff
was due to a "lack of work." At the hearing Stinson did
not assert any "lack of work" but only that work had
slacked such that he could justify a layoff. Further, Re-
spondent introduced no business records or reports of
any kind to substantiate Stinson's claim that work had
slacked. Respondent did not even provide corroborative
testimony from Steigerwald, Dragunas, or any other wit-
ness that work had slacked. Without this, I reject Stin-
son's claim that work had slacked. I do so because of
Stinson's demeanor, the shift which this position takes
from that advanced in the layoff notice, and the fact that
only 2 days before the layoff, work was at such a high
level that it was necessary to assign employees to work
overtime. The use of false and shifting reasons for Sell-
ers' layoff not only undercuts any claim that Sellers
would have been laid off even in the absence of protect-
ed activity, but itself suggests that Respondent was
trying to mask its real reason and gives rise to the infer-
ence that the real motive was an unlawful one. For all of
these reasons, I find that Sellers was laid off/terminated
on August 15 in violation of Section 8(a)(1) and (3) of
the Act.
E. The Discharge of Broadus on August 22
On August 21, representatives of Ingalls caught Broad-
us urinating in a sink on board a ship. Ingalls in turn no-
tified Respondent. When Respondent asked Ingalls what
action should be taken, Ingalls responded that if it had
been one of their employees, the individual would have
been fired. The next day Broadus was discharged.
I conclude that Broadus' discharge had nothing what-
ever to do with his union sentiments. Contrary to the
General Counsel's argument that Respondent seized
upon an "unsubstantiated allegation" to discharge Broad-
us, the evidence reflects that Respondent took its action
based on an eyewitness account to Broadus' act. Further,
it was Ingalls who reported the incident to Respondent
and it was Ingalls who suggested that the appropriate re-
sponse was discharge. I conclude that by responding as it
did to a matter of obvious significance to Ingalls, Re-
spondent was motivated not by any unlawful animus
494
J. E. STEIGERWALD CO., INC.
toward Broadus but by a desire to maintain good rela-
tions with Ingalls by emulating its own disciplinary poli-
cies.
In reaching this conclusion, I also note significant dif-
ferences between Broadus' discharge and the layoff of
Sellers a week earlier. First, Broadus was not one of the
picketers against whom Stinson had expressed specific
animus. Second, unlike Sellers, there was no element of
deceit on Respondent's part in masking the reason for
discharging Broadus, thereby eliminating the inference
that his discharge was for an unlawful motive. Third,
also unlike Sellers, Stinson encouraged Broadus not to
run to the Union about his discharge and that he (Stin-
son) would recall Broadus in 30 days. This evidence is
but one more example of the fact that Respondent, and
particularly Stinson, bore unswerving and unrelenting
animosity toward the picketers for causing a work stop-
page on May 27 but otherwise expressed little hostility
against other employees.
F. The Failure To Reinstate Tardy to His Former
Position
When Tardy was reinstated on September 8, he was
assigned to the position of a laborer. While Respondent
argues that Tardy was a laborer prior to the strike, I
have rejected that argument for reasons detailed above.
Dragunas himself concedes, in agreement with Tardy,
that at the time of the strike Tardy was utilized to lay
tile, work which Respondent classifies as a tile mechanic.
Respondent does not deny that such work was available
when it reinstated Tardy.
Respondent also introduced much testimony to the
effect that it was less than satisfied with Tardy's work in
laying tile prior to the strike. Dragunas, however, effec-
tively concedes that Tardy was never removed from
such work or reprimanded for its quality prior to the
strike. Respondent is simply not at liberty to reassess the
quality of an employee's work because that employee has
engaged in protected strike activity and therefore recall
the employee to a lesser position when his former work
is still available. To do so necessarily implies a discrimi-
natory or retaliatory act for the employee having en-
gaged in protected activity. Consequently, I find that by
reinstating Tardy as a laborer rather than to his former
work in laying tile, Respondent discriminated against
Tardy in violation of Section 8(a)(l) and (3) of the Act.
G. Respondent's Failure To Recall Picketers
The General Counsel alleges, and Respondent denies,
that even if the picketers were not discharged nor unlaw-
fully replaced, they were nevertheless discriminated
against individually by Respondent failing to recall them
at various times when positions became available. For
the reasons indicated, I find merit to the General Coun-
sel's position in the following respects.
On June 6, Broadus and Nelson, both tile mechanics,
were terminated as a result of having their security
passes taken from them by Ingalls' security personnel.
Their termination created vacancies for two tile mechan-
ics. Respondent, however, did not offer either of these
positions to Tardy, the only picketer with experience
laying tile.
After Broadus and Nelson were terminated, two other
employees, laborer Mike Everhart and replacement Tony
Pierce, were also terminated as a result of having their
security badges taken from them by Ingalls' security per-
sonnel. Their terminations created two additional vacan-
cies. Pierce had been the designated replacement for
Sellers and so it can be said with certainty that Sellers
should have been offered that position. Among the pick-
eters there were two laborers, George Lee and Edgar
Graves. The evidence reflects that on June 15, Lee
would have been reinstated but for Steigerwald's unlaw-
ful and discriminatory decision not to hire anyone be-
cause of the pending unfair labor practice charges.
Therefore, it can also be determined that the position
made available by Everhart's termination should have
been offered to Graves, the only other laborer among
the picketers. By failing to offer these positions to Tardy,
Sellers, and Graves, Respondent discriminated against
them in violation of Section 8(aXl) and (3) of the Act. '2
Decker Foundry Company Inc., 237 NLRB 636 (1978).
With respect to the subcontracting of work in June
1980, the evidence shows that Respondent first consid-
ered that possibility as early as March 1979. In mid-May
1980, Respondent met with Wilks and discussed the pos-
sibility of his performing the work. Since both of these
events predated the strike or any other significant union
activity, I would reject any argument of counsel for the
General Counsel that Respondent precipitously con-
ceived of a plan to subcontract work in order to displace
strikers. However,. that does not answer the question
whether Respondent in fact carried through with using a
subcontractor to perform the work in order to avoid
having to recall strikers.
Respondent did not give Wilks a verbal commitment
to perform the work until June 6, 10 days after the
strike. Respondent did not even request the necessary
permission from Ingalls to subcontract the work until
June 6, and permission was not granted until June 17.
Two days prior, on June 15, Stinson had offered rein-
statement to picketer George Lee. On June 16, however,
he had to withdraw that offer on instructions from Stei-
gerwald not to hire anyone because of the pending unfair
labor practice charges. It is clearly unlawful for an em-
ployer to discriminate against employees because a
charge has been filed on their behalf with the Board.
The agreement between Respondent and Wilks to per-
form the work was never reduced to writing, something
which Respondent itself admits was very unusual. It was
purely an oral agreement-terminable at will-as shown
by Respondent's later action in actually terminating the
agreement and by Steigerwald's July 16 letter to Ingalls
in which he states: "Several days before starting the job,
I discussed the possibility of not using Mr. Wilks, but
rather use our own men."
"' Respondent's rehiring of Broadus. Nelson, Everhart, and Pierce on
July 22 is part and parcel of Respondent failing to offer those vacant po-
sitions to picketers and therefore does not call for a separate finding of
Respondent having violated the Act.
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question why Respondent carried through with
using a subcontractor rather than its own employees is
answered unequivocally in the next line of Steigerwald's
July 16 letter: "This would have led to several problems,
the greatest of which was our union negotiations." This
statement, which I have heretofore found to be a clear
and unmistakable reference to the Union's organizational
campaign which is the subject of this case, evidences
without room for any doubt that Respondent carried
through with using a subcontractor rather than its own
employees primarily in order to avoid having to recall
picketers and thereby prevent the Union from again ob-
taining the support of a majority of its employees. It is
not surprising, therefore, that when Respondent has no
choice but to take over the work of Wilks on July 2 and
again on July 9, Respondent still chose to perform the
work with employees then on the payroll, even though
they had to be diverted from other work, rather than
recall the picketers. Based on the above, I find that com-
mencing on July 1, 1980, and continuing thereafter Re-
spondent utilized a subcontractor to perform certain
work in order to avoid having to recall picketers. Fur-
ther, on July 2 and July 9, 1980, Respondent failed to
recall picketers to available work because they had en-
gaged in protected strike activity on May 27.'3 By each
of these acts, Respondent discriminated against employ-
ees in violation of Section 8(a)(1) and (3) of the Act.
H. The Request for a Bargaining Order
By May 20, no less than 16 of 23 employees in the unit
which the parties stipulate would be appropriate had
signed authorization cards designating the Union to be
their agent for purposes of collective bargaining.
On May 21 and by letter dated May 28, Respondent
declined the Union's requests for bargaining.
Commencing on May 27, and continuing steadily for a
4-month period through September, Respondent engaged
in numerous unfair labor practices. The evidence is far
too strong to leave room for any claim that these were
isolated or unrelated acts. Rather, analysis of these acts
leads me to an inescapable conclusion that they reflect a
pattern of predesigned conduct, which includes the fol-
lowing: (1) on May 27, threats to fire the picketers; (2)
on May 28, statements that picketers had been fired; (3)
on May 27 and/or 28, the discharge or unlawful replace-
ment of picketers; (4) on June 15, the decision not to hire
anyone because of pending unfair labor practice charges;
(5) on June 16, the withdrawal of an offer of reinstate-
ment to Lee; (6) on July 1, the use of a subcontractor
rather than Respondent's own employees in order to
avoid recalling picketers; (7) on July 2 and 9 the failure
' It becomes unnecessary to consider whether Respondent further
violated the Act by failing to recall picketers on August 22, when a va-
cancy was created by Keith Broadus' discharge, or on August 26, Sep-
tember 15, October 16 and 17, November 4 and 17, and December 15,
when Respondent hired new employees rather than recall picketers. It is
apparent that by July 2 and 9, there was sufficient work available to re-
quire Respondent to have recalled all of the picketers. I reject Respond-
ent's claim that it was obligated to offer reinstatement to picketers only if
work became available which was the exact nature they had performed
prior to the strike. Respondent was obligated to offer them work in any
job which they were capable of performing. Decker Foundry Company,
supram at 640.
to recall picketers for available work even when it
became necessary to take over the work of the subcon-
tractor; (8) on August I through 14, the imposition of an
unlawful no-solicitation rule; (9) on August 15, the dis-
criminatory layoff of Sellers; (10) on September 8, recall-
ing a picketer to a lesser position than he occupied prior
to the strike even though the latter work was available;
(11) in late September, threatening employees that be-
cause of their union activity they might be fired again.
This pattern of predesigned conduct was embarked upon
by Respondent for the sole purpose of eradicating sup-
port for the Union among its employees. The picketers
and other employees alike are unlikely to forget Re-
spondent's conduct. In a small unit, the impact of such
conduct, particularly discharges, has a far more perva-
sive effect than in a large unit and practically makes a
fair election impossible. Pay 'n Save Corporation, 247
NLRB 1346 (1980). In a case such as this, the unfair
labor practices may not be remedied merely by use of
the traditional remedies usually granted by the Board. I
find that a bargaining order is fully warranted in this
case effective from May 27, 1980, when Respondent
commenced its pattern of unfair labor practices designed
to destroy the Union's support among its employees. I
also find, as a result of the pervasive nature of Respond-
ent's unfair labor practices, continuing over such an ex-
tended period, that a broad order is warranted prohibit-
ing Respondent from interfering with employees' Section
7 rights "in any other manner." Hickmott Foods, Inc., 242
NLRB 1357 (1979).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in sections III
and IV, above, occurring in connection with its oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent, J. E. Steigerwald Co., Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening employees that people wearing
picket signs would be fired; telling employees that people
on strike (i.e. picketers) had been fired; telling employees
that an offer of reinstatement was being withdrawn be-
cause of the pending unfair labor practice charges; telling
employees that because of their protected union activities
496
J. E. STEIGERWALD CO., INC.
they might be fired again; telling employees they were
not permitted to talk about the Union on the job, Re-
spondent has restrained and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the
Act, and thereby engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By discharging and/or unlawfully replacing John
Clark, Noble Mann, Joseph Cooper, Edward Graves,
Alexis Joseph Tardy, George Lee, and Kenneth Sellers;
by refusing to reinstate employees and withdrawing an
offer of reinstatement from George Lee because of pend-
ing unfair labor practice charges; by using a subcontrac-
tor to perform work in order to avoid having to recall
picketers; by failing to recall picketers to available posi-
tions; by laying off Kenneth Sellers following his rein-
statement; and by reinstating Alexis Joseph Tardy to a
lesser position than that which he occupied prior to the
strike, all because of their protected strike activity and
support for the Union, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
5. All production and maintenance employees em-
ployed by Respondent at its Pascagoula, Mississippi, op-
erations, including laborers, trowel mechanics, tile me-
chanics, terrazzo grinders; excluding all office clerical
employees, professional employees, guards, watchmen
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since May 20, 1980, the Union has been, and is, the
exclusive collective-bargaining representative of the em-
ployees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
7. By failing and refusing to bargain in good faith with
the Union as collective-bargaining representative of its
employees in the unit described above, with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, Respondent has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(aX5) of the Act.
8. Respondent did not violate the Act by its termina-
tion of Keith Broadus or Dwight Nelson on June 6 or by
its discharge of Keith Broadus on August 22, 1980.
9. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 4
The Respondent, J. E. Steigerwald Co., Inc., Pasca-
goula, Mississippi, its officers, agents, successors, and as-
signs, shall:
14 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto
shall be deemed waived for all purposes.
I. Cease and desist from:
(a) Threatening employees with being fired for picket-
ing; telling employees that people on strike (i.e., picket-
ers) have been fired; telling employees that an offer of
reinstatement is being withdrawn because of pending
unfair labor practice charges; telling employees that be-
cause of their protected union activities they might be
fired again; telling employees they are not permitted to
talk about the Union on the job.
(b) Discharging or unlawfully replacing employees; re-
fusing to reinstate employees and withdrawing offers of
reinstatement from employees because of pending unfair
labor practice charges; using subcontractors to perform
work in order to avoid having to recall picketers; failing
to recall picketers to available positions; laying off em-
ployees; reinstating employees to lesser positions than
they occupied prior to a strike, because employees
engage in protected strike activity and support a union.
(c) Refusing to bargain collectively with International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of its employ-
ees in the unit described above.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Offer John Clark, Noble Mann, Joseph Cooper,
Edward Graves, Alexis Joseph Tardy, George Lee, and
Kenneth Sellers immediate and full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges.
(b) Make John Clark, Noble Mann, Joseph Cooper,
Edward Graves, Alexis Joseph Tardy, George Lee, and
Kenneth Sellers whole for any loss of earnings or bene-
fits they may have suffered by reason of the discrimina-
tion against them by payment to them of a sum of money
equal to the amount they normally would have earned
from the dates of said discrimination to the date of Re-
spondent's offer of reinstatement, less net interim earn-
ings, with backpay to be computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977); see, generally, Isis Plumbing d Heat-
ing Co., 138 NLRB 716 (1962).
(c) Upon request, bargain collectively with Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit de-
scribed above concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, and, if an agreement is reached, embody it in a
signed contract.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its facility located in Pascagoula, Mississip-
pi, copies of the attached notice marked "Appendix."' 5
Copies of said notice, on forms provided by the Regional
Director for Region 15, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1i In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities
except to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become union
members.
WE WILL NOT threaten employees with being
fired for picketing; tell employees that people on
strike (i.e., picketers) have been fired; nor tell em-
ployees that because of their protected union activi-
ties they might be fired again.
WE WILL NC'l tell employees that an offer of re-
instatement is being withdrawn because of pending
unfair labor practice charges.
WE WILL NOT tell employees they are not per-
mitted to talk about the Union on the job.
WE WILL NOT discharge or unlawfully replace
employees, nor lay off employees, because they
engage in protected strike activity and support a
union.
WE WILL NOT fail to recall picketers to available
positions; refuse to reinstate employees or withdraw
offers of reinstatement from employees because of
pending unfair labor practice charges; use subcon-
tractors to perform work in order to avoid having
to recall picketers; nor reinstate employees to lesser
positions than they occupied prior to a strike, be-
cause employees engage in protected strike activity
and support a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights under Section 7 of the Act.
WE WILL offer immediate and full reinstatement
to employees John Clark, Noble Mann, Joseph
Cooper, Edward Graves, Alexis Joseph Tardy,
George Lee, and Kenneth Sellers to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights or privileges previ-
ously enjoyed, and make them whole for any loss of
earnings they may have suffered as a result of our
discrimination against them, with interest.
WE WILL, upon request, bargain with Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative
of all our employees in the appropriate bargaining
unit described above with respect to rates of pay,
wages, hours of employment, and and other terms
and conditions of employment, and, if an agreement
is reached, embody it in a signed contract.
J. E. STEIGERWALD CO., INC.
498