NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Austal
USA, L.L.C. and
Sheet Metal Workers International Association Union, Local 441. Cases 15–CA–16552,
15–CA–16578, 15–CA–16596, 15–CA–16642, 15–CA–16677, 15–CA–16721, and 15–RC–8394
March 21, 2007
DECISION AND ORDER
By Chairman Battista and Members Liebman
and Schaumber
On April 7, 2003, Administrative Law Judge George Carson II issued the attached decision. The Respondent filed exceptions, a supporting brief, a reply brief, and an answering brief. The Charging Party/Petitioner filed an answering brief, a cross-exception, and a supporting brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended order as modified.
More specifically, we adopt the judge’s findings that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct by: coercively questioning employees about their union sentiments; threatening plant closure, job loss, stricter discipline, and other unspecified reprisals if the employees voted for the Union;3 promising or impliedly promising benefits if the employees rejected the Union;4 giving informal evaluations to three employees because of their union activity; and instructing employees not to read or discuss union material during working time.5 We also adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by: terminating team leader Charles Gates because he would not support the Respondent’s position on unionization;6 refusing to allow Gates to return to the Respondent’s premises as an employee of a contractor the day after he was terminated; terminating eight employees on May 9, 2002;7 suspending employee Tony Causey and terminating him; giving employee Darrell Spencer a 3-day suspension;8 and, giving employee Hank Williams a verbal warning.9
ORDER
The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Austal USA, L.L.C., Mobile, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.
1. Delete paragraph 1(d) and reletter the subsequent paragraphs accordingly.
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Chairman Battista, dissenting in part
I agree with my colleagues in all respects except the following
1. Contrary to my colleagues, I do not find that the Respondent violated Section 8(a)(3) by suspending employee Darrell Spencer. I conclude that the Respondent suspended Spencer for making an improper weld.
Before making the weld, Spencer told Welding Supervisor John Calhoun that he wanted to use a smaller wire than called for by the customer’s job specification. Calhoun denied the request, citing the specification. Following Calhoun’s instruction, Spencer made the weld. He acknowledged that the weld was defective. The suspension notice issued to Spencer cited “lack of quality work.”
The judge found that the discipline was unlawful. I do not agree. I find that the Respondent has effectively rebutted the General Counsel’s prima facie case of a violation. It is uncontested that the customer specification called for wire of a specific width. There is no probative evidence that the specification was faulty or was otherwise generally incapable of being performed satisfactorily. It is clear that the Respondent believed that the weld could be done under these specifications. It is also clear that Spencer held a contrary belief. Obviously it is not necessary for the Board to resolve this technical issue regarding welds. Suffice it to say that the Respondent discharged Spencer because, in its view, the defective weld was Spencer’s fault.
Contrary to the contention of my colleagues, there is no record evidence that Supervisor Calhoun had ever authorized Spencer to ignore a customer’s specifications. Nor is there an allegation that Calhoun’s instruction here (i.e., to follow the customer’s specifications) was discriminatorily motivated. Finally, there is no record evidence to support the notion that the work could not possibly be done under the customer’s specifications. Indeed, it would strain credulity to believe that Calhoun would direct an action which was bound to result in failure. In short, Spencer’s work was defective, and he was disciplined for that action. I find, therefore, that the Respondent has rebutted the General Counsel’s prima facie case. Accordingly, I find that the Respondent’s discipline of Spencer was lawful.
2. I do not adopt the judge’s finding that the Respondent unlawfully terminated eight employees.1 I reach this conclusion solely because the judge’s finding was based on a theory that was neither alleged in the complaint nor litigated at the hearing.
The complaint alleges that the Respondent terminated the employees on May 9, 2002, thereby “discriminating in regard to the hire or tenure or terms and conditions of employment of its employees” and “discouraging membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act.” The General Counsel’s theory of the case, as alleged in the complaint and explained in his opening statement, is that “[t]he employees were told that they were being laid off, but they would not have any recall rights. So, our position is that they were effectively terminated.” The judge found the violation based on a different theory, i.e., that the Respondent temporarily laid off the employees but later, realizing that temporarily laid-off employees would be eligible to vote in a Board election, changed the layoff to a discharge. In sum the complaint alleged a discharge based on union activity. The violation found by the judge and my colleagues is deficient in two respects. It is that a layoff was converted to a discharge in order to render employees ineligible to vote. Because this theory was not alleged in the complaint nor litigated at the hearing, the Respondent was not on notice of the need to litigate such an allegation.2 Therefore, I would reverse the judge’s unfair labor practice finding.
Dated,
Robert J. Battista, Chairman
National Labor
Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not coercively interrogate you regarding your union sympathies and activities.
We will not threaten you with unspecified reprisals because of your union support.
We
will not threaten you with termination because you support the
We will not discriminatorily restrict you from discussing unions.
We will not threaten you with plant closure if you select a union as your collective bargaining representative.
We
will not harass you because of your support of the
We will not
solicit your grievances and promise to remedy them in an effort to dissuade you
from supporting the
We will not threaten you with discipline pursuant to more stringent enforcement of our rules because of your union activity.
We will not interfere with other employment opportunities of former employees because of their union sympathies.
We will not warn, suspend, discharge, or otherwise discriminate against any of you for supporting Sheet Metal Workers International Association Union, Local 441 or any other union.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days of the Board’s Order, rescind the warning issued to Hank Williams and the suspensions issued to Tony Causey and Darrell Spencer.
We will within 14 days of the Board’s Order, offer Charles Gates, Tony Causey, Warren Gatwood, Curtis Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia Powell, and Dirk Spencer full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Charles Gates, Tony Causey, Warren Gatwood, Curtis Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love, Zolia Powell, Dirk Spencer, and Darrell Spencer whole for any loss of earnings and other benefits suffered as a result of the discrimination against them with interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful warning, suspension, and discharges, and within 3 days thereafter notify the affected employees in writing that this has been done and that those actions will not be used against them in any way.
Austal USA, L.L.C.
Charles R. Rogers, Esq., for the General Counsel.
William C. Tidwell III, and Amy Lassiter St. Pe, Esqs. for the Respondent.
Kimberly C. Walker and Cecil Gardner, Esq., for the
Charging Party.
DECISION
Statement of the Case
George Carson
II, Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by all parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent, Austal
The Respondent admits, and I find and conclude, that Sheet
Metal Workers International Association Union, Local 441, the
ii. alleged unfair labor practices
A. Background
The Company, a subsidiary of Austal Limited, an Australian
corporation, began operations at its
In April, the
The Company responded to the
The vast majority of the alleged violations herein occurred during the critical period between April 12 and May 24.
B. The 8(a)(1) Allegations
1. Welding Supervisor John Calhoun
During the following week following the handbilling of
April 3, prior to when some employees began wearing union t-shirts and displaying
union stickers, Welding Supervisor John Calhoun spoke with employee Wayne
Jenkins in the tool room. Calhoun called Jenkins aside, told him that he wanted
to talk to him, “friend to
friend,” and asked if Jenkins had signed “any papers to be in the
Jenkins
recalled that Calhoun also said, if the employees selected the Union as their
collective bargaining representative, “the Union would call a strike . . .
[and] that he [presumably referring to
Calhoun
denied having any conversation with Jenkins in the toolroom and specifically
denied questioning him regarding signing anything or threatening that there
would be “hell to pay.” I do not credit that denial. The conversation with
Jenkins occurred at the inception of the
The foregoing evidence establishes that Calhoun’s initial conversation with Jenkins occurred prior to employees wearing union paraphernalia, thus it occurred prior to the initial union meeting on April 11 rather than on April 19 as alleged in the complaint, which would have placed the conversation within the critical period. I find that Calhoun’s’ questioning Jenkins regarding whether he had signed any “papers,” coupled with the statement that employees could get their union authorization cards back, followed by the reference to Thornton seeing the cards, that there would be “hell to pay” and that the Respondent would get rid of card signers if the Union did not succeed in becoming the employees’ collective bargaining representative constituted a coercive interrogation. I find, as alleged in subparagraphs 7(c), (f), and (g) of the complaint, that the Respondent coercively interrogated an employee, threatened unspecified reprisals, and threatened job loss in violation of Section 8(a)(1) of the Act.
There is no evidence of surveillance. Since Jenkins denied having signed any papers, the factual statement that employees could get cards back did not constitute a solicitation to revoke anything. I shall therefore recommend that subparagraphs 7(d) and (e) be dismissed.
After
April 11, employees who supported the
It
appears that most employees were requested to remove the stickers on the morning
of a workday in the week following the union meeting on April 11, but the date
is not established. In most cases, the request was rescinded about a half hour
to an hour after it was made. Growden explained that, after he agreed with
Calhoun that employees should not be permitted to place stickers on Austal
property, he “double-checked with my boss Simon [
In some
cases, the request was not rescinded for a full day. Employee Nathaniel Haywood
was in a group of employees receiving welding training from Calhoun at a class
conducted in the training trailer. Calhoun asked everyone in the class to remove
any stickers that were not issued by Austal. Haywood, who had a union sticker
on his hardhat, removed it. It was not until the following day, when Haywood
reported to the class in the training trailer, that Calhoun told him that
employees could wear the stickers.
The Respondent argues that the prompt recession of this instruction obviates any violation. I disagree. Unlike Atlantic Forest Products, 282 NLRB 855 (1987), in which the unlawful direction was given to only two employees, the direction in this case was made throughout the facility by Reed and Calhoun, who admits speaking to every employee he observed wearing union stickers. In the case of Haywood, it was not rescinded until he reported for his training class, a day after he received the initial instruction. See Mr. Z’s Food Mart, 325 NLRB 871, 891 (1998). The rescission did not occur in a context free from other unlawful conduct. Although the Respondent, in its brief, characterizes the action as a “fleeting incident,” the unlawful instruction was not isolated. The rescission was communicated as an absence of objection by management. Employees were told, in Calhoun’s words, that they could “feel free,” if they wished, to wear the stickers. The rescission, stated as a management decision, did not acknowledge that employees had a Section 7 right to wear the stickers or that the Respondent had infringed upon that right. Furthermore, it did not unambiguously and specifically repudiate that infringement, and it did not assure employees against future interference by the Employer in the exercise of their Section 7 rights. Community Action Commission, 338 NLRB 664, slip op. at 667–668 (2002). The Respondent, by directing employees to remove union stickers, violated Section 8(a)(1) as alleged in subparagraphs 7(b) and 9(j) of the complaint.
Subparagraph 7(a) of the complaint alleges that Calhoun
threatened unspecified reprisals. The evidence relating to this allegation is
employee Robert Skelton’s
testimony. Skelton began wearing a union t-shirt after the union meeting on
April 11. A few days after this, he encountered Supervisor Calhoun and employee
Glen French outside the break room. Skelton recalls that, when Calhoun observed
him, he asked where he got the t-shirt and how much he had paid for it. Skelton
responded that the
The Respondent, in its brief, argues that Calhoun’s admitted comment, that the shirt cost “probably more than you know,” was a legitimate comment that referred to “fees, dues, fines, and assessments.” That argument might have merit if Calhoun had referred to dues or fees, but he did not. I credit Skelton. I find that Calhoun’s reference to the unspecified “costs” that Skelton did not realize, like the reference to “hell to pay” that Calhoun stated when interrogating Jenkins, threatened unspecified reprisals in violation of Section 8(a)(1) of the Act.
Among
the employees requested to remove stickers was Jenkins. When the request was
rescinded, Jenkins did not have a standard sticker to replace the one that he
had removed and, therefore, he placed a small bumper sticker on his hardhat. Thereafter,
outside the pontoon boat at which Jenkins was working, Calhoun approached Jenkins
and asked why he wanted the
In early April, the Company began responding to the
The General Counsel and the Charging Party argue that Calhoun’s asking
Jenkins at the pontoon boat why he supported the
Counsel for the General Counsel argues that Calhoun’s asking Powell whether she knew who had thrown away the company fliers coupled with a threat to terminate the individual responsible constituted interrogation and a threat of discharge and violated the Act as alleged in subparagraphs 7(h) and (i) of the complaint. The destruction of Company property, even if it is in the form of antiunion propaganda, is not protected activity. Calhoun’s inquiry was not coercive and the threat of termination for destroying company property did not violate the Act. I shall recommend that subparagraphs 7(h) and (i) of the complaint be dismissed.
Following the discovery of the fliers in the garbage can,
the Company printed another set of fliers. At a safety meeting, Powell recalls
that Calhoun referred to the fliers, urging employees to “get the facts.”
Contemporaneously with his urging employees to “get the facts,” he threatened
that employees would be terminated if they were “caught discussing the fliers
that the
Calhoun did not deny urging employees to “get the facts” from the Company fliers while at the same time prohibiting any discussion of the union fliers during working time. There is no evidence of any prohibition against all talking, such as talking while working or waiting for a supervisor to come solve a problem. Calhoun acknowledged that talking is not an issue unless the nonwork conversation takes away from production, that is, when they are “standing chit-chatting” about something other than the job. Prior to the union organizational effort, notes from safety meetings reflect that Calhoun admonished employees for “too much talking.”
The
complaint, in subparagraph 7(j), alleges that the Respondent, through Calhoun,
promulgated a discriminatory no talking rule. The record establishes that,
prior to the effort of the
2.
Welding Team Leader Joe Reed
Although
hourly paid, welding Team Leader Joe Reed issued discipline. He was a supervisor,
and the Respondent so admits. Reed attended the first union meeting on April
11. The complaint, in subparagraph 9(m), alleges that Reed engaged in surveillance
by attending that meeting. On April 11, the unit had not been defined. The
In
mid-April, employee Darrell Spencer, a welder, engaged in discussions with Reed
regarding the
In
mid-April, the Respondent, for the first time, filled out assessment sheets
relating to welders. Wayne Jenkins recalls that Team Leader Reed evaluated him,
stating that he was performing a job assessment and then placing letter grades
on a sheet. Employee Hank Williams, who like Jenkins wore a union sticker and
t-shirt, testified that Reed also came to where he was working, told him to
stop, and, in his presence, filled out an assessment sheet writing down grades,
“like A, B, or C.” Williams had been working at the Company since August 2001,
and this was the first time that he had received such an evaluation. Employee
Donnell Hill was hired in March. He too wore union paraphernalia. Shortly after
Calhoun rescinded his direction that employees remove their union stickers,
Reed came to where Hill was working and said that there was a “new policy that
we are going to start evaluating each and every employee.” He then filled out a
sheet, grading Hill with letter grades.
Counsel for the Respondent, in his opening statement, indicated that the assessments were for supervisors and were performed by Calhoun. Counsel corrected the identification of the supervisor performing the assessments to Team Leader Reed in the Respondent’s brief. In his opening statement, Counsel represented that, when it was learned that two employees had been assessed, “we made him stop.” Notwithstanding that representation, Team Leader Reed did not acknowledge that the evaluation of the employees was performed in error or that he was made to stop. Reed testified that, when Hill questioned what the form was for, he told him that “the assessment form was to improve him in areas to prepare him for evaluation.” There was no testimony relating to how the assessment related to improvement. Reed did not put the forms in the employees’ files and believed that he threw them away.
The
Respondent’s unprecedented assessments, giving letter grades to Jenkins,
Williams, and Hill, three open union advocates, suggests an implicit threat to
their employment and constituted harassment. There is no evidence that any
employee who did not support the
3.
Production Coordinator David Growden
In mid-April, employee Tony Causey
complained to Growden about a warning he had received from Calhoun. Calhoun was
not Causey’s supervisor. That warning is not alleged as a violation. In their
discussion, Growden asked why the employees needed a union. Causey, focusing on
the warning, responded that “nothing was being done” when they came to him with
a problem, such as the manner in which Calhoun supervised, noting that the employees
were “getting threatened every time they go to a safety meeting.” Growden took
out a yellow tablet and Causey continued, noting various problems. Growden,
although not specifically addressing the matters that Causey raised, stated
that the employees “were not going to have a union, that he was “going to do
whatever it takes to keep the
According
to employee Hank Williams, in April or early May prior to the layoffs that
occurred on May 9, he was approached by Production Coordinator Growden who
asked him to come to his office. Only Growden and Williams were present.
Growden asked Williams how he thought the
In early May, employee Zolia Powell, having heard that
management “wanted to talk” with employees about their problems, sought to meet
with Growden with another employee. Growden dismissed that employee from the
meeting and then asked Powell what problems she was having. Powell spoke about
the manner in which Calhoun supervised employees, “always threatening,” as well
as various other complaints. In the course of the conversation, Growden asked
Powell for her opinion regarding “why the employees wanted the
The complaint, in subparagraphs 8(a) and (b), alleges that
Production Coordinator Growden interrogated employees and solicited their
grievances with an implied promise to remedy them. Growden, in asking Causey,
Williams, and Powell for their opinion regarding why the employees wanted the
The Board addressed conduct similar to that in which Growden engaged in Reliance Electric Co., 191 NLRB 44, 46 (1971), stating:
Where, as here, an employer, who has not previously had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational campaigns seeking to represent employees, we think there is a compelling inference that he is implicitly promising to correct those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unnecessary. [Footnote omitted.]
The foregoing three one-on-one meetings with Growden must
be viewed in perspective. Following the institution of the union organizational
campaign, the Respondent began meeting in small groups with employees. Bender's
vice president of Support Services Danny Sellers, who had never before provided
any services to Austal, spoke at these meetings and began talking “to everybody
in the shipyard” individually. There is no evidence that similar meetings had
ever been held. The Respondent’s managers and Sellers sought to determine “why
the employees wanted the
When employees Causey and Powell approached Growden, he
took the opportunity to seek their opinion regarding the impetus for the union
campaign. Although Williams had not sought to speak to Growden, Growden sought
to speak to him. The Respondent argues that no violation should be found as a
result of these discussions because Growden “never promised anything.” Growden
admitted stating to Causey that the Company was going to do everything “legally
possible” to keep the
4. CEO Alan Lerchbacker
Employee
Darrell Spencer, like all employees, attended a small group meeting in the
trailer in which Production Coordinator Growden’s office is located. CEO
Lerchbacker was present at the meeting Spencer attended. He recalled that Lerchbacker
stated that he “needed some feedback, “he wanted to know “what was the Company’s
problems with the employees.” Lerchbacker stated that “he wanted to make it
known that . . . the Company was going to help the employees,” and he specifically
mentioned improved insurance and raises.
Employee
Andre Love also attended a meeting at which CEO Lerchbacker, Sellers, and Growden
were present. I do not credit his assertion that Lerchbacker affirmatively
stated that he was a “union buster,” although that may well be the impression
that Love formed. Love recalled that Lerchbacker stated that he “would make a
change,” that within 6 months “there will be a difference.” Lerchbacker
mentioned working with supervisors and paving the driveway. Love recalls that,
as soon as Lerchbacker mentioned those specifics, Sellers interrupted him and
told Lerchbacker that he “can’t promise us that,” that he could not make
promises “to get us to go against the
CEO
Lerchbacker denied making any promises or adopting any statement relating to
sending employees out the gate. Lerchbacker was, by agreement of the parties,
presented before the General Counsel and the Charging Party rested their cases
because he was going out of town. I shall not speculate whether his mind was
preoccupied. Suffice it to say that his shifting recollections give me no
confidence in his testimony. Referring to his work history, Lerchbacker
initially testified that he had worked in both union and nonunion situations,
and that “it didn’t matter to me.” He then amended this testimony stating that
“it did matter.” When asked, regarding employee Clifford Rayford, “Do you
remember him or know him,” Lerchbacker answered “No.” He thereafter attributed
the comments regarding an employee’s experiences with a union at a pervious employer
to an employee he identified as
Lerchbacker’s
request for feedback constituted solicitation. His generalized assertion that
“there will be a difference” within 6 months constituted a promise of benefits,
as did his references to improving insurance, paving the driveway, and assuring
that he would “put a stop” to whatever caused employees to have to go between
their supervisor and their supervisor’s supervisor. The foregoing solicitation
of grievances and promises to remedy them violated Section 8(a)(1) of the Act
as alleged in subparagraph 9(l) of the complaint. The endorsement of Rayford’s
suggestion that prounion employees be kicked out the gate threatened
termination as alleged in paragraph 10 of the complaint and violated Section
8(a)(1) of the Act.
5.
Bender’s Vice President Danny Sellers
Employee
Hank Williams recalled that, shortly before the election, Sellers approached
him and “wanted to know if I was going to vote right.” Williams was an
outspoken prounion employee and acknowledged that it was obvious how he felt.
He did not specifically recall the exact words used by Sellers who credibly
denied asking any employee how he was going to vote but urged all employees to
vote for the Company. I shall recommend that subparagraph 9(a) of the complaint
be dismissed.
At a small group meeting that included employees Causey, Jenkins, Powell, and Warren Gatwood, Causey recalls that Bender’s vice president Sellers, who spoke at all of these meetings, referred to Lerchbacker, stating that he was the new CEO, that he had spoken with him, and that “we ought to give Alan [Lerchbacker] a chance,” that if the employees gave him a chance, they would “see better things happen at the Company.” I have found that Lerchbacker himself assured employees that he would be responsive to their complaints. Although Sellers denied making any promises, he did not specifically deny the foregoing comment. I credit Causey. Sellers’ assurance that if they gave Lerchbacker a chance they would “see better things happen at the Company” constituted a promise of benefit if the employees rejected the Union and, as alleged in subparagraph 9(i) of the complaint, violated Section 8(a)(1) of the Act.
In the course of the meeting, Sellers mentioned discipline. Jenkins recalls that Sellers stated that he was “looking at everybody’s time cards” and if employees had excessive absences or tardies, “they would be disciplined.” Gatwood recalls Sellers stating that the Company was going to have to start going by the disciplinary guidelines in the handbook. Causey recalls that Sellers specifically addressed him, stating that he had “looked at everyone’s attendance,” that “he was the one at fault for getting me wrote up.” Sellers admitted reviewing the attendance of all employees “prior to them taking disciplinary action.” His undenied acknowledgement to Causey that he was responsible for him being disciplined together with his undenied comment that employees with excessive absences “would be disciplined,” confirm Gatwood’s undenied testimony that the Respondent was going to start going by the handbook. Sellers’ presence at the facility was in response to the organizational campaign. The Respondent threatened discipline pursuant to more stringent enforcement of its rules as alleged in subparagraphs 9(b) and (c) of the complaint in violation of Section 8(a(1) of the Act.
The complaint, in subparagraph 9(d), alleges that Sellers “impliedly threatened” plant closure. Sellers acknowledged discussing a situation at an International Paper Company plant in a small group meeting with employee Ronnie Murphy. Both were familiar with the situation. Murphy did not testify. Employee Andre Love, who was in the meeting, recalls Sellers making a statement about the union at that plant being “too greedy,” but did not place that statement in context, stating that “it was just so much going back and forth.” The evidence does not establish an implied threat of closure. I shall recommend that this allegation be dismissed.
C. The Discharge of Charles Gates
Charles Gates, an experienced welder, began his employment in engineering at the Company on January 8, 2001. In October 2001, he was promoted to team leader under Supervisor Mickey Slade and received a $1-an-hour raise in pay. Engineering employees perform welding and pipefitting.
It is undisputed that Gates was terminated because he
refused to support the Company’s position of opposition to the
Although the
It is undisputed that Reed issued discipline. Gates did not, although he did serve as a witness when Supervisor Slade issued discipline. Gates did not have authority to authorize overtime, but he would ask for volunteers for overtime after Slade approved it. There is no evidence that Gates either had authority to grant, or ever granted, time off. Supervisor Slade handled all matters relating to time. The only documents signed by Gates were requisitions for material from the tool room. Although the Company argues that two documents signed by Gates titled, Purchase Requisition, constituted orders from outside vendors, no vendor is shown on either document. Gates explained that these simply reflected a change in the internal form used by the Company. Gates’ testimony in this regard is uncontradicted, and the small amount of material involved, one 2-inch fitting and one 2-inch coupler and 8 1-inch fittings and two 1-inch couplers, is consistent with his testimony that these were too room requisititons, not orders from outside vendors. There is no evidence that Gates’ approval of these requests for materials from the tool room was other than routine.
On a typical workday, employees in engineering would
gather. “Mickey [Slade] would
come out . . . and basically [conduct] a roll call . . . .” Slade would have a
sheet that would have “pressing items or pressing systems that we needed to pay
certain attention to, . . . highlighted, or he would request certain people to
be put on.” Gates would then make the work assignments and assure that the work
was kept flowing. As employees finished one task, it was up to Gates to get
them “headed in the direction of a secondary job for the day,” subject always
to Slade’s oversight; “Mickey [Slade] let me know what, if we had other things
[that] . . . he wanted done.”
As team leader, Gate answered employees’ questions to the best of
his ability. If he could not answer a question, he “would go find him
[Supervisor Slade] to get a question answered, or have him [Slade] come look at
it.”
Gates’ testimony
that he spent 90 percent of his workday working with his tools is uncontradicted.
In SDI Operating
Partners, L.P., 321 NLRB 111 (1996), the Board determined that a leadman
who “gave the other glaziers their assignments, distributing the work based in
part on his past observations concerning the employees’ qualifications . . . [and]
instructed other employees as needed in accomplishing the work, relying on his
own experience and expertise, as well as the instruction manuals provided by
the suppliers of the products being installed” was not a supervisor. The Board
noted that the leadman did not have the authority to grant overtime or require
employees to work overtime, or “generally to grant time off,” but that he had
permitted an employee to leave once in an emergency situation. In the instant
case, Gates had no authority relating to time. I find that Gates’ duties “with
respect to the assignment and direction of employees do not demonstrate the
exercise of independent judgment, but rather involve routine decisions typical
of leadman positions that are found by the Board not to be statutory
supervisors.” Ibid [citations omitted].
The Stipulated
Election Agreement excludes team leaders and supervisors as defined in the Act
from the unit. Although the Respondent argues that supervisory status was the
basis for the exclusion, the agreement does not stipulate that team leaders are
supervisors. There is no evidence whatsoever regarding the discussions relating
to the Stipulated Election Agreement. In imposing upon Gates the requirement
that he adopt an antiunion stance, the Respondent “made a calculated decision
that
. . . [team] leaders were supervisors within the
meaning of the Act. An error in that assessment does not excuse unlawful conduct.”
Lampi, L.L.C., 322 NLRB 502, 505 (1996).
Sellers never asked
Gates about his union sympathies. The conversation confirms that Sellers was
aware of Gates’ sympathies and that Gates voluntarily confirmed them when he explained
that his family was third generation union. In requesting Gates’ opinion of why
the Union was seeking to organize, Sellers did not demand that Gates divulge
the names or activities of employees whom he knew supported the
Following Gates’
termination, a foreman with MEI, an electrical contractor that performed work
at the Austal facility, called Gates and asked if he was interested in working
with that company. Gates replied that he was. The foreman stated that he needed
to check with Austal. The following day, he called Gates and told him that he
could not hire him because he was barred from Austal’s property. Production
Coordinator Growden confirms that he advised MEI that Austal “would rather not
have Gates on the property.” Even if I had found that Gates was a supervisor
with the Respondent, he would have been an employee, not a supervisor, with
MEI. The Respondent’s interference in Gates’ employment opportunity because of
his failure to support the Company’s opposition to the
D. The Suspension and Discharge of Tony Causey
Tony Causey was a
fabricator who began his employment with the Company on May 14, 2001. Causey
acknowledged that he had been counseled regarding his attendance by his supervisor
Dennis Sigur prior to the advent of the
On April 24, Causey
sought and received permission from Supervisor Sigur to be off on April 25, the
date of his 10th wedding anniversary. Upon reporting to work on April 26, Sigur
issued a suspension to Causey for missing the 25th. The suspension document
referred to “past tardies and absentees” and stated “you will be given a three
day suspension . . . upon your return.” Causey protested that he had received
permission to be off on April 25 and Sigur replied that he was “not supposed to
be off.” Thereafter Causey met with Production Coordinator Growden. Causey
recalls that Sigur was present. Growden does not place Sigur at their meeting.
Growden explained to Causey that he was not supposed to be off because of his
attendance problems. Causey responded that Sigur had approved his absence and
asked why Sigur had “okay[ed] it if I couldn’t be off.” Causey was asked to
wait in the breakroom. Vice president Sellers observed Causey waiting in the
breakroom and spoke to him. Causey complained to Sellers that it was not right
for him to be written up after his supervisor “okays me to be off.” Shortly
thereafter, Causey was called into a small group meeting that was being
conducted by Growden and Sellers. In the course of the meeting, the same
meeting noted above, Sellers addressed Causey’s suspension, stating that he was
responsible for Causey having been written up, that he had “looked at
everyone’s attendance,” that “he was the one at fault for getting me wrote up.”
Following this meeting, Sellers told Causey to go home that day and that he
would take care of it. As Causey was leaving, Sellers approached him and told
him that he had learned that Causey had already talked with Growden and that he
would have to serve the 3-day suspension.
On May 7, Causey
called into the Company prior to 9 a.m., between 8 and 8:30 a.m. and reported
to the receptionist that he was experiencing pain from a prior injury and was
going to the doctor. He did so and obtained a doctor’s slip. Upon reporting to
work the following day, Causey brought with him the doctor’s slip. Before he
saw Supervisor Sigur, Causey spoke with his leadman who suggested that Causey
see the company doctor. Following this conversation, Causey was approached by
Supervisor Sigur who told him to get his tools, that he was being let go.
Causey responded that he had his doctor’s slip, that he was out because of his
injury, and that he wanted to see the company doctor. He gave the doctor’s slip
to Supervisor Sigur. Supervisor Sigur told Causey to wait. After an hour and a
half, Supervisor Sigur returned with Growden. Causey repeated what he had previously
said. Both then left. Supervisor Sigur returned and escorted Causey outside
where he encountered “Bender’s personnel guy,” identified in the record as
Bobby Woods, to whom he explained his injury and his desire to see a company
doctor and “to check the record.” Woods responded that someone would contact
him in 2 or 3 days. On the same day, about 1:30 p.m., Woods called Causey and
told him he was being let go. Causey repeated that it “wasn’t right” that he
was being let go and that he had done what he was supposed to as far as calling
in and bringing the doctor’s slip.
Causey was never
told that he was being terminated for absenteeism. He was simply told he was
being let go. Absenteeism and tardiness is reflected as the reason for the termination
on Causey’s Personnel Clearance Report.
Sellers
acknowledges reviewing the attendance of employees and speaking with Causey
regarding his suspension. He did not deny stating that he was responsible for
the suspension. He testified that, when he spoke with Causey, Causey was “quite
convincing,” that he then spoke with Growden. According to Sellers, Growden
told him, “This is what he [Causey] probably said to you.” Sellers
acknowledged that it was and asked Growden how he knew that, and Growden
replied, “The time before when he was disciplined, he used the exact same
reasons.” The foregoing testimony by Sellers reveals no substantive information
regarding the conversation with Causey or the “reasons” purportedly stated by
Growden. Causey stated only one reason for the unfairness of the warning: he
had permission from Sigur to be off.
Growden testified that he checked with Sigur who, he says, told
him that he had not given Causey permission to be off. I do not credit that
testimony. Sigur did not testify. Growden never stated the purported denial of
permission to Causey, nor did Growden assert making such a report to Sellers.
Sellers did not testify that he received such a report. If he had, Sellers
would certainly have informed Causey that Supervisor Sigur disputed the claim
that permission for the absence had been given. Growden did not address the
termination of Causey.
Sigur, who continues to be employed by the Company as established
by the testimony of employee Nathaniel Haywood that Sigur is his supervisor,
did not testify. I have credited Causey’s testimony regarding his receipt of permission
to be off on April 25. His testimony regarding calling in on May 7 and his
bringing a doctor’s slip on May 8 is uncontradicted.
The analytical
framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), is applicable in dual or mixed
motive cases after the General Counsel has established employee union activity,
employer knowledge of that activity, animus towards such activity, and adverse
action taken against those involved in that activity. All of the foregoing
elements were established with regard to the suspension and termination of
Causey. When the reason given for an action is either false, or does not exist,
General Counsel’s prima facie case is unrebutted, thus there is no need for
further analysis. Limestone Apparel Corp., 255 NLRB 722 (1981). The
Respondent’s suspension of Causey on April 26, after Sigur had given him
permission to be off, was totally unjustified. Causey properly reported his absence on May 7. Sigur
told Causey that he was being let go, with no further explanation, before
Causey gave him the doctor’s slip. It appears that, even though unstated by
Sigur, the Respondent had intended to seize upon Causey’s absence on May 7 to
justify his termination. Causey’s presentation of the doctor’s slip complicated
matters. Sigur told Causey to wait, which Causey did for over an hour. The
failure of Sigur, upon his return, to state to Causey the reason for his termination confirms that the
absence of May 7 was not the reason, although absenteeism is what the
Respondent recorded on Causey’s personnel clearance report. Sigur did not
testify. Growden did not address Causey’s termination. I find that absenteeism
and tardiness, the reasons for the discharge stated on Causey’s personnel
clearance report, were false and a pretext for terminating Causey because of
his union activity. Respondent, by suspending and terminating Tony Causey
because of his union activity, violated Section 8(a)(3) of the Act.
E.
The Discharge of Joe Wooten
Employee Joe Wooten
was hired as welder trainee on May 7, 2001. Thereafter he was assigned as a
janitor. There is no evidence that he attended in any union meetings or wore
any paraphernalia identifying himself as a supporter of the
On January 29,
2003, the third day of the hearing, immediately prior to calling Wooten as his
next to last witness, Counsel for the General Counsel moved to amend the
complaint to allege Dunn as a supervisor. I reserved ruling upon the motion at
that time. Dunn voted in the election without challenge. He is not classified
as a team leader. Wooten’s testimony established that his supervisor was
Pauline Nobles, who had testified on
the previous day, January 28. Counsel for General Counsel did not move to
allege Dunn as a supervisor at that time, thus Nobles was not questioned
regarding Dunn because there was no issue relating to Dunn at the time she
testified. The charge alleging Wooten as a discriminatee was filed on May 9,
thus the General Counsel had more than sufficient time to determine what allegations
were needed in order to establish a prima facie case. In these circumstances I
determined that an amendment at the eleventh hour was not timely, and I denied
the motion to amend.
Wooten was
discharged on May 8. He was unable to punch in at the timeclock that day
because he had taken his timecard home and forgotten it. He testified that he
began taking his timecard home because some unidentified person was “playing
monkey business with my timecard.” There is no evidence that Wooten brought this to the attention of any supervisor. The
memorandum accompanying Wooten’s personnel clearance report states that Wooten was terminated for
excessive absenteeism. The personnel clearance report does not have an entry
for absenteeism. The work performance block on that document is checked.
More than a month
before the union organizational effort and prior to a final warning that Wooten
received on March 18, Wooten began keeping notes documenting various incidents
of alleged discrimination and harassment that he encountered. At the top of the
document is the notation, “Attn. EEOC.” There is no evidence that Wooten filed
any charge with the Equal Employment Opportunity Commission.
The record
establishes a litany of offenses by Wooten prior to the union organizational
effort. On March 18, Wooten met with Growden and Supervisor Mickey Slade regarding
his absences, work performance, and attitude. The document memorializing that
meeting is signed by all three participants. Wooten testified that he signed
only because he was informed that he would be terminated on the spot if he did
not do so. The document states that it constitutes a final warning and that any
further “problems” would result in termination.
As already noted,
there is no evidence that the Respondent was aware of Wooten’s union sympathies.
He attended no meetings; he wore no union paraphernalia. The only evidence
relating to his union sympathies was his conversation with Dunn in which both
agreed that they would vote for the
F. The Layoffs/Terminations
1.
Facts
When Austal began operations, it did not have a contract for a
vessel. It began constructing a “spec boat,” a vessel of “a marketable size”
for which the Company hoped to find a buyer. When the Company obtained contracts
for two crew boats, vessels to ferry employees to oil rigs in the ocean, it
ceased work on the spec boat and concentrated on the boats for which it had
contracts. Although no dates were given, it appears that, while constructing
the two crew boats, Austal obtained a contract for the “spec boat,” which
became the New York Fast Ferry, and a contract for a boat referred to as the
Miami Dinner Boat. Vice president Thornton testified that, in May, the New York
Fast Ferry was almost complete and that the Miami Dinner Boat was 40 to 50 percent
compete but that the “aluminum
structure and the majority of the welding were almost completed” on the Miami
Dinner Boat. No spread sheets or other documentation establishing the actual
status of construction was offered into evidence.
The Company
contends that layoffs became necessary because of a lack of work caused by the
loss of a prospective contract to build a crew boat for Oceanic Fleet, Inc. The
Company was advised on April 17 that Oceanic had decided to have the boat built
by a different company. Austal had been in negotiations regarding the
prospective contract for several months. Pursuant to a “handshake agreement” it
had
begun design for the vessel.
Powell had heard
rumor of an impending layoff prior to being called to a small group meeting.
Near the end of the meeting that she attended, Powell raised the issue of
layoffs, stating that she had “heard rumors that there was going to be a
layoff.” She recalls that Sellers responded first stating, “[W]e don’t do layoff,” that, if anything,
employees would be terminated.[4]
Sellers recalls
Powell raising the issue of layoffs and testified that he stated that Austal
“follows the same principle that Bender Shipbuilding follows,” that employees
are not laid off, they are terminated. I do not credit that testimony. When informing
Powell, “[W]e don’t do layoff,”
he was stating Bender’s policy, not Austal’s. No Austal executive testified
that Austal followed Bender’s policy, and neither Growden nor
The memorandum
lists nine employees as being laid off, eight of whom are alleged as discriminates
herein.[5] The eight alleged discriminates are: Warren
Gatwood, Curtis Gleason, Donnell Hill, Wayne Jenkins, Micah Kidd, Andre Love,
Zolia Powell, and Dirk Spencer. No dissatisfaction with their work was cited as
a basis for their selection. All were informed individually by Growden and
“Bender’s personnel guy,” Bobby Woods, that their selection was not personal,
but that they were terminated. Typical of the remarks made at the separation interviews
was the testimony of Gatwood who was told that Company had lost a contract and that he
was being terminated. He was then assured that his termination “wasn't any
reflection on my work, [that he] showed up for work on time, [and] [t]hey didn’t
have any problems out of me.” Gatwood was told that he “ought to come back on a
later date and put an application in.” In a similar manner, Powell was told
that she was “a great worker.” Growden and Woods shook her hand and Woods told
her that in “three to four months, I should see an ad in the paper, that they
would be doing rehiring, and . . . for me to contact the Company . . . to come
back . . . .”
Six of these alleged discriminatees testified. All six supported
the
Wayne Jenkins was the only employee who followed up upon the
Company’s suggestion that they put in applications. In December, he saw an advertisement
that Austal was hiring in all crafts. On December 23, he went to the Company
office and filled out an application. While doing so he saw Production Coordinator
Growden enter the office. Growden noticed him, spoke, then entered the office
of Office Manager Mary Dwyer. Upon leaving her office, Growden opened the door
of Scott Reese, the individual who was interviewing applicants, and stated that
he needed to see him. When Reese completed the interview he was conducting,
Reese exited from his office. Jenkins did not see where he went. Shortly
thereafter, he returned. He obtained Jenkins’ application from the receptionist
and called Jenkins into the office. He noted that Jenkins had previously worked
for Austal and asked why he left. Jenkins replied that he was fired because of
the
Growden did not address the failure to the Respondent to offer
employment to Jenkins.
The same entry, “WOULD YOU REHIRE?” with the word “NO” circled
appears on the personnel clearance report of each of these alleged discriminatees.
Prior to employee union activity, on February 14, employee Patrick Lyons, simply left his employment. His personnel clearance report shows “abandonment of employment” with no further explanation. In response to the question “WOULD YOU REHIRE?” the word “YES” is circled. On August 20, employee Andrew Geoghagan, who was employed on April 9 and was not shown to have engaged in any union activity, left for an “unspecified leave of absence.” His personnel clearance report reflects that he would be reh