Austal USA

National Labor Relations Board - Board Decisions

Dec 30, 2010

356 N.L.R.B. 363 (N.L.R.B. 2010)

AUSTAL USA, LLC 363
Austal USA, LLC and Sheet Metal Workers Interna-
tional Association Union, Local 441. Cases 15–
CA–18547, 15–CA–18628, 15–CA–18676, 15–
CA–18702, 15–CA–18739, 15–CA–18781, and
15–RC–18394
December 30, 2010
DECISION, ORDER, AND DIRECTION OF THIRD
ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
On September 30, 2009, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answering
briefs.
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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
discussed and clarified below, to modify his remedy,3
and to adopt the recommended Order as modified.4
We agree with the judge, for the reasons he states, that
the Respondent committed numerous violations of Sec-
tion 8(a)(1) of the Act in the context of a union organiz-
ing drive. We also agree with the judge that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
employee Carolyn Slay. Our reasons are discussed be-
low. In addition, we agree with the judge that the April
9, 2008 election must be set aside and a new election
held. We adopt the judge’s rationale, except as discussed
below.
1. In concluding that the Respondent’s discharge of
union supporter Carolyn Slay was unlawful, the judge
determined that there was “no need to go through a
1 No exceptions were filed to the judge’s recommended dismissal of
complaint par. 12(c) alleging unlawful impression of surveillance, or to
the judge’s recommendations that Objections 7, 9, 10, and 17 be over-
ruled.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 In accordance with our decision in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010), we modify the judge’s recommended remedy
by requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis.
4 We shall modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010).
mixed motive analysis” under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), because the evidence relied
on by the Respondent in its attempt to justify Slay’s ter-
mination “was a fabrication from start to finish” and was
therefore pretextual. Although we agree with the judge
that the Respondent’s reasons for the discharge were
pretextual, we disagree with his statement that a mixed
motive analysis is unnecessary. The Board has specifi-
cally held that Wright Line is applicable in cases in
which there is a finding that a respondent’s purported
justification for its actions is pretextual. See, e.g., Team-
sters Local 657 (Texia Productions), 342 NLRB 637,
637 fn. 1 (2004); Taylor & Gaskin, Inc., 277 NLRB 563,
563 fn. 2 (1985). Applying that analysis here, we find
that Slay’s discharge violated Section 8(a)(3) and (1).
To begin, we find that the General Counsel has estab-
lished his initial burden under Wright Line to show that
Slay’s protected conduct was a motivating factor in her
discharge. The elements commonly required to support
such a showing are union or other protected activity by
the employee, employer knowledge of that activity, and
antiunion animus on the part of the employer. See, e.g.,
Willamette Industries, 341 NLRB 560, 562 (2004). The
following sequence of events culminating in Slay’s dis-
charge demonstrates that Slay was engaged in union ac-
tivities, that the Respondent had knowledge of those ac-
tivities, and that the Respondent harbored animus against
those activities: Slay’s wearing union stickers on her
hard hat, union T-shirts, and union pins beginning in
September 2007; Human Resource Director Jeff O’Dell’s
request to supervisors in November 2007 to immediately
report any prounion employees who were discussing the
Union; the incident in December 2007 when O’Dell told
Supervisor Chad Steele to write Slay up if she was not at
her workstation when the bell rang; O’Dell’s subsequent
statement to Steele that he did not care about the write-
ups and that he was going to move Slay from crew to
crew to make it appear as if Slay had a problem with
authority; then-Leadman (later Supervisor) Roderick
Jackson’s December 2007 comment to Slay that man-
agement had been badmouthing her; O’Dell’s statement
to Steele in January or February 2008 that Respondent
did not want to fire everybody, just those who were
pushing for the Union, and O’Dell’s naming of Slay as
one of those employees; O’Dell’s February 1, 2008 inter-
rogation of Slay and his termination threat concerning
Slay’s union T-shirt distribution; and Jackson’s com-
ments to Slay in March 2008 that management was after
her and he was trying to save her. This evidence easily
establishes that the Respondent was aware of Slay’s un-
ion activity, that the Respondent had animus against that
356 NLRB No. 65

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
activity, and that the Respondent was targeting Slay for
adverse action because of that activity. The Respond-
ent’s antiunion animus was also shown by the other
8(a)(1) violations found in this case, such as unlawful
restrictions on discussion of the Union, solicitation, and
distribution, as well as other unlawful threats and inter-
rogations.
Because the General Counsel met his initial Wright
Line burden, the burden then shifted to the Respondent to
show that it would have discharged Slay even in the ab-
sence of her protected activity. The judge found, and we
agree, that the Respondent’s proffered explanation for its
conduct—her alleged sleeping on the job—was pretextu-
al.5 Consequently, the Respondent necessarily failed to
show that it would have taken the same action even ab-
sent Slay’s protected conduct. See Golden State Foods,
340 NLRB 382, 385 (2003) (citing Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982)).
2. We agree with the judge that Objections 1, 2, 3, 4,
5, 8, 11, and 12 should be sustained, but we clarify the
rationale concerning Objection 11. Objection 11 alleged
that the Respondent engaged in objectionable conduct by
granting a mail order prescription drug benefit on April
5, 2008. In its exceptions, the Respondent argues that
the judge erred by citing Sun Mart Foods, 341 NLRB
161, 162 (2004), for the proposition that granting a new
benefit during the critical period will be presumed objec-
tionable. The Respondent asserts, instead, that Sun Mart
Foods established an inference rather than a presump-
tion.6
The Respondent is correct that in Sun Mart the Board
used the word “inference” rather than “presumption.”
The decision stated:

5 In finding that the Respondent’s explanation was pretextual, the
judge relied in part on what he believed was an intentional mischarac-
terization of the record in the Respondent’s posthearing brief. The
judge found that this intentional error supported a finding that Slay’s
termination was based on a fabrication and was pretextual. In its ex-
ceptions brief, the Respondent acknowledged that the judge was correct
that counsel had “inaccurately cited the record regarding a posting” but
stated that the error was not deliberate. The Respondent also filed with
the Board a Motion to Correct Error regarding this issue, requesting
that “the portion of the decision which states that the error was an in-
tentional and material misrepresentation of the record be modified or
stricken.” Motion at p. 3. Because we find that the record supports a
conclusion that the Respondent’s explanation for Slay’s discharge was
pretextual independent of the Respondent's briefing error, we find it
unnecessary to rely on the judge’s characterization of the Respondent’s
briefing error as intentional. As a result, we need not reach the merits
of the Respondent’s Motion to Correct Error.
6 The Respondent asserts that this distinction is material because a
legal presumption is stronger than an inference.
The Board will infer that an announcement or grant of
benefits during the critical period is objectionable;
however, the employer may rebut the inference by es-
tablishing an explanation other than the pending elec-
tion for the timing of the announcement or the bestowal
of the benefit. Star, Inc., 337 NLRB 962, 963 (2002).
The employer may rebut the inference by showing that
there was a legitimate business reason for the timing of
the announcement or for the grant of the benefit. [Em-
phasis added.]

The difference between “inference” and “presumption”
is of no moment here, however, because the Respondent
has failed to establish a legitimate business reason for the
timing of the benefit grant, as required under Sun Mart.
As the judge found, the timing of the Respondent's action
supports a finding that it engaged in objectionable con-
duct. The Respondent’s decision to consider the new
benefit, as well as its later announcement and implemen-
tation of the new benefit, all fell within the critical period
before the election.7 In addition, at the time the Re-
spondent decided to investigate the feasibility of a mail
order prescription benefit, in November or December of
2007, the Union’s campaign had already begun to heat
up following the reinstatement of the Austal I discrimi-
natees.8 Thus, when the Respondent made the decision
to move forward with the new benefit, the Respondent
was aware of the increased union activity and the distinct
possibility that another election would be scheduled.
Furthermore, it is noteworthy that the effective date of
the new benefit—February 1—did not coincide with the
Respondent’s usual December 1 effective date for Blue
Cross changes, and the Respondent did not establish a
legitimate business reason for that departure from past
practice. Finally, the fact that the Respondent specifical-
ly made note of this new benefit in its April 2008 news-
letter directed at convincing the employees to vote
against the Union demonstrates a link between the grant
of the benefit and the second election, held that month.
For these reasons, we find that the Respondent did not
establish a legitimate reason for the timing of the grant of
benefit unrelated to the employees’ union activity, and,
thus, failed to rebut the inference that the grant of bene-
fits during the critical period was objectionable.
3. The Respondent contends in its exceptions that the
judge improperly set aside the election based on preelec-
tion unfair labor practices, specifically complaint para-
graphs 8, 10, 16(b), and 20(a) and (b) that were not in-
cluded in the Union’s objections to the election. In sup-
7 The critical period began on the date of the first election in 2002.
Star Kist Caribe, Inc., 325 NLRB 304 (1998).
8 349 NLRB 561 (2007), enfd. 343 Fed. Appx. 448 (11th Cir. 2009).

AUSTAL USA, LLC 365
port of this contention, the Respondent relies on NLRB v.
Reliance Steel Products Co., 322 F.2d 49, 54–55 (5th
Cir. 1963), as well as Super Operating Corp., 133 NLRB
240, 241 fn. 4 (1961), for the proposition that unfair la-
bor practices not also alleged as election objections can-
not be the basis for overturning an election. The Re-
spondent acknowledges, however, that the Board has
held to the contrary in some cases, including Dawson
Metal Products, Inc., 183 NLRB 191, 200–201 (1970),
enf. denied on other grounds 450 F.2d 47 (8th Cir. 1971),
and Monroe Tube Co., 220 NLRB 302, 305 (1975), enf.
denied on other grounds 545 F.2d 1320 (2d Cir. 1976).
Both the General Counsel and the Union argue that the
Respondent’s contention has no merit because the judge
set aside the election solely on the basis of the Union’s
election objections. In our view, however, the judge’s
decision is ambiguous in this regard.9
We find, however, that even if the judge did rely on
the unobjected-to unfair labor practices in setting aside
the election, it was not error for him to do so. The Board
has recently held that in a consolidated hearing, “the in-
terests of employee free choice require that the unfair
labor practice allegations be considered as grounds for
setting aside the election even though not specified in the
election objections.” Community Medical Center, 355
NLRB 642 (2010) (incorporating by reference Communi-
ty Medical Center, 354 NLRB 232 at fn. 3 (2009) (citing
White Plains Lincoln Mercury, 288 NLRB 1133, 1137–
1138 (1988)); see also Fisher Island Holdings, 343
NLRB 189, 189 fn. 2 (2004) (citing White Plains Lincoln
Mercury as establishing that “in a combined unfair labor
practice/representation proceeding, the Board has author-
ity to set aside an election based on unfair labor practices
that were not specifically alleged as objectionable con-
duct”), enf. denied on other grounds 140 Fed.Appx. 857
(11th Cir. 2005).
The cases relied on by the Respondent do not warrant
a different result. Super Operating Corp., supra, appears
to be an anomaly. Although it has not been expressly
overruled, it has never been cited for the proposition at
issue here, and it is clearly contrary to the cases cited
above. Accordingly, we note that, to the extent that
9 At one point in the decision, the judge stated that the timely filed
objections “which have been sustained justify setting aside the second
election.” He then listed Objections 1, 2, 3, 4, 5, 8, 11, and 12. Later,
however, the judge stated, “[b]y the foregoing violations of the Act that
occurred during the critical period before the second election, and by
the conduct cited by Petitioner in its Objections numbered 1, 2, 3, 4, 5,
8, 11, and 12, Respondent has prevented the holding of a fair election,
and such conduct warrants setting aside the election.” Thus, it is un-
clear whether the judge relied in part on unfair labor practices not spe-
cifically encompassed within the numbered objections in setting aside
the election.
Super Operating Corp. is inconsistent with later cases
such as Community Medical Center, Fisher Island Hold-
ings, White Plains Lincoln Mercury, Dawson Metal
Products, and Monroe Tube, supra, it has been effective-
ly overruled.
NLRB v. Reliance Steel Products, also relied on by the
Respondent, is distinguishable. In that case, because no
objections had been timely filed, the court found that the
election was immune from attack under the objections
procedure. In those circumstances, the court found that
the Board could not use the unfair labor practices to
achieve indirectly that which it could not achieve direct-
ly, through the objections procedure. Here, because ob-
jections had been timely filed, the election was not im-
mune from attack. The Board cases cited above plainly
hold that in a consolidated unfair labor prac-
tice/representation case, unfair labor practices not specif-
ically included in the objections may be used to set aside
an election.
Accordingly, we find that if the judge did rely on un-
objected-to unfair labor practices in finding that the elec-
tion should be set aside, it was not error for him to do so.
In the alternative, we find that the conduct found to be
objectionable in the eight numbered objections sustained
by the judge is sufficient in itself to warrant setting aside
the election.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Austal
USA, LLC, Mobile, Alabama, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
recommended Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make Carolyn Slay whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the judge’s decision, plus daily compound
interest as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).”
2. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Mobile, Alabama facility copies of the attached notice
marked “Appendix.”52 Copies of the notice, on forms
provided by the Regional Director for Region 15, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since December 2007.”
IT IS FURTHER ORDERED that Case 15–RC–8394 is sev-
ered and remanded to the Regional Director for Region
15 for the purpose of conducting a third election as di-
rected below.
Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.
[Direction of Third Election omitted from publication.]

Kevin McClue, Esq. and Karen D. Brooks, Esq., for the General
Counsel.
Terry W. Dawson, Esq. and Nathan A. Baker, Esq. (Barnes &
Thornburg, L.L.P.), of Indianapolis, Indiana, for the Re-
spondent.
Kimberly C. Walker, Esq. and David C. Tufts, Esq. (The Gard-
ner Firm, P.C.), of Mobile, Alabama for the Petitioner.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Mobile, Alabama, on April 20–23, 2009. Beginning
February 4, 2008,1 numerous charges and amended charges
were filed by Sheet Metal Workers International Association
Union, Local 441 (the Union) against Austal USA, LLC (Re-
spondent). As here pertinent, a second order consolidating cas-
es, second consolidated complaint and notice of hearing (the
complaint) was issued on December 19, 2008. As amended at
the trial herein, it alleges that Respondent engaged in unfair
labor practices (a) within the meaning of Section 8(a)(1) of the
National Labor Relations Act (the Act) in that assertedly it (1)
told employees that they would not be promoted because of
their support for the Union; (2) told employees they could not
discuss the Union during working hours; (3) threatened em-
ployees with termination because of their activities and support
of the Union; (4) interrogated employees about their union
activities and the union activities of other employees; (5) gave
employees the impression that their union activities were under
surveillance; (6) selectively and disparately enforced a solicita-
tion rule by prohibiting union solicitations and distributions,
while permitting nonunion solicitations and distributions; (7)
impliedly threatened its employees that it would not hire union
supporters; (8) interrogated its employees about their support
1 All dates are in 2008, unless otherwise stated.
for or against the Union by soliciting employees to accept anti-
union shirts; (9) told employees who were talking about the
Union that they needed to pipe down on the union stuff; (10)
told employees who were talking about the Union to other em-
ployees that they should quit; and (11) promulgated and main-
tained a rule that “[e]mployees have the right to speak their
mind . . . [but they had to] make sure . . . [they were] doing so
during nonworking time rather than when . . . [they were] per-
forming . . . [their] job duties,” and (b) within the meaning of
Section 8(a)(1) and (3) of the Act, by terminating employee
Carolyn Slay allegedly because she assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in these activities. Respondent denies violating
the Act as alleged.
By Report on Objections, Order Directing Hearing on Objec-
tions and Consolidated Cases entered January 8, 2009, Case
15–RC–8394 was consolidated with the other above-entitled
proceedings. Case 15–RC–8394 involves objections filed by
the Union regarding alleged conduct which assertedly affected
the results of the rerun election held on April 9. According to
the Report on Objections (a) certain of the objections raise
substantial and material issues; (b) some of the alleged conduct
centers around conduct that has already been alleged in the
second consolidated complaint; and (c) the allegations in the
objections can best be resolved after a consolidated hearing.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent on June
26, 2009, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Alabama corporation, has been engaged in
the shipbuilding business at its facility in Mobile, Alabama,
where it annually purchases and receives goods valued in ex-
cess of $50,000 directly from points outside the State of Ala-
bama. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Regarding background, as pointed out in the January 8, 2009
Report on Objections (GC Exh. 1(aaa)), in 2002 a Board elec-
tion was held with 18 of 66 eligible voters voting for the Union,
and 45 of Austal’s employees voting against the Union. There
were 8 challenged ballots. In May 2002, the Union filed objec-
tions to the election. They were consolidated with pending
unfair labor practice charges for hearing before an administra-
2 At the outset of the trial, the General Counsel and the Respondent
stipulated, as here pertinent, that Roderick Jackson was a supervisor
from February 1 to April 9; that Steve Richerson was a supervisor from
January 1 to April 9; and that Supervisor Tim Clements, Supervisor
Yancy Allen, Supervisor Clinton Hayes, and Coordinator Claudel Mack
have been supervisors within the meaning of Sec. 2(11) of the Act and
agents of Respondent within the meaning of Sec. 2(13) of the Act as of
March 2008 and through the National Labor Relations Board (the
Board) election on April 9. (Tr. 24 and 25.)

AUSTAL USA, LLC 367
tive law judge who issued his decision in April 2003. By Deci-
sion and Order dated March 21, 2007 (GC Exh. 2), the Board
set aside the election and remanded the case, Case 15–RC–
8394, for a second election. As noted above, a rerun election
was conducted on April 9, with 171 of 801 eligible voters vot-
ing for the Union, and 528 of Austal’s employees voting
against the Union. There were 23 challenged ballots. On April
16, the Union filed Objections to the Conduct of the Election.
Subsequently certain of the objections (Objections 6, 13, 16,
and 18) were withdrawn with the approval of the Regional
Director.3
Carolyn Slay was hired by Austal in November 2004. She
testified that when she first started working for Austal she was
given an orientation booklet (GC Exh. 17); that she was hired
as a welder; and that Chad Steele was her supervisor when she
transferred to the electrical crew.
General Counsel’s Exhibit 31 is Respondent’s 2006
“HOURLY EMPLOYEE ORIENTATION BOOKLET.”
Jeffrey O’Dell was hired by Austal in February 2007 to be its
human resources (HR) director. He testified that among the
tasks given to him by COO Dan Spiegel was to build an HR
team, to build a senior management structure because he was
the first director hired in the organization; that he put together
an employee handbook for Austal since when he came to the
organization there was no handbook in place, there were only a
couple of sporadic policies and procedures; that General Coun-
sel’s Exhibit 31, the “HOURLY EMPLOYEE ORIENTATION
BOOKLET,” dated April 2006 was in place when he was hired
by Austal and it was given to all new hires; and that when he
started at Austal there were 1250 to 1300 people working for
Austal in Mobile and there were three people in the human
resources department.
Steele, who was a supervisor at Austal from October 2006 to
February 28, 2008, when he was terminated,4 testified that in
February 2007 he was run over by a Mobile Department of
Transportation truck when he was walking on the side of the
road from Austal’s big parking lot to work; that the lot was not
adequately lit, there was some gravel only where the vehicles
drove and not where they parked, and there were mud holes and
potholes; that to get to work from the parking lot employees
crossed a road and walked down the side of the road; and that
about 2 months after his accident Austal began constructing a
5-foot-wide cement walkway which was completed in July
2007.
Terri Lindley, who is presently a benefits coordinator in
Austal’s HR department and was a HR associate and benefits
administrator, testified that Respondent’s Exhibit 13 is a power
point presentation that was given at an all employee meeting
she attended on April 30, 2007; that such meetings were held
periodically to keep employees informed about new develop-
ments at Austal; that page 7 of Respondent’s Exhibit 13 shows
3 At the trial here, the Union also withdrew Objection 14, Tr. 12, and
Objection 15, T. 336.
4 On direct Steele testified, “[y]es,” he was terminated on February
28, 2008 (Tr. 83). On cross-examination, Steele testified that he left the
employ of Austal, he quit, before he was terminated for fighting with a
coworker (Tr. 100).
the planned expansion of Austal, showing the administrative
building, the new sheds, and the modular manufacturing facility
(MMF); and that a considerable amount of parking is shown
around the MMF.
O’Dell testified that page 19 of Respondent’s Exhibit 13 an-
nounced that the new employee handbook would be available
by June 1, 2007; that he did not finish the employee handbook
by June 1, 2007; that the employee handbook, which is dated
November 2007, was probably finished in late October 2007;
and that the timing of the employee handbook had nothing to
do with union activity in that he was tasked in February 2007 to
do a handbook and he knew nothing about the union activity at
that time.
General Counsel’s Exhibit 6 is a copy of an e-mail, dated
June 12, 2007, Austal’s director of HR, O’Dell, sent to Debra
Warner, the compliance officer in Region 15 of the Board. It
includes a copy of a June 12, 2007 newspaper ad of the Sheet
Metal Workers Local #441 which reads, in part, as follows:

SHEET METAL WORKERS LOCAL#441
CONGRATULATES
AUSTAL USA EMPLOYEES
In Your Fight to Win Better Wages,
Working Conditions, and Benefits
For You and Your Families!!!

The National Labor Relations Board (NLRB)
March 21, 2007 “DECISION AND ORDER “
helps you in this fight by issuing remedies
for unfair labor practices and ordering
a second representation election.

The copy of the ad refers to the notice that Austal was required
to post to employees, reiterates the prohibitions contained
therein, and advises employees what Federal law gives them
the right to do. Counsel for the General Counsel indicated that
the ad was introduced to show, among other things, that Austal
was aware that the Union had “kicked off their campaign . . . to
organize the employees.” (Tr. 31.) An original of the full-page
ad which appeared in the June 12, 2007 issue of the Press-
Register Mobile, Alabama was sponsored by Swan Cleveland,
who was an organizer for Local 441, and it was received as
General Counsel’s Exhibit 15. Cleveland testified that the Un-
ion took the ad out and June 12, 2007, was the start of the cam-
paign leading up to the April 9 rerun election; and that at first
four or five volunteers from the Union gave out union handouts
to incoming and outgoing employees at Austal’s gate about
once a month.
General Counsel’s Exhibit 37 is a June 20, 2007 memoran-
dum on Austal letterhead to all employees. It reads as follows:

I am sure by now that many of you have seen the paid
advertisements run in the local paper by the . . . Union,
and some of you may have even been approached by
salesmen from this union. These paid-for-ads and flyers
are all designed towards getting you to pay dues to the un-
ion, and they come with all sorts of promises. The same

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
promises they made over five years ago when they tried
the same thing.
According to recent newspaper articles, the union
claimed to have had over 70% of the employee’s “signed
up” on union cards. The actual vote was completely oppo-
site. The truth is that a secret ballot election was held in
May 2002 and the outcome was 70% of the employees
voted NO to the union. . . .
After the election, instead of respecting the choice
made by more than 70% of the employees, the union con-
tinued to press the issue by involving the Labor Board fil-
ing all sorts of complaints and charges. These claims have
been tied up in legal proceedings for five years and are
still ongoing.
You might wonder why a union would again try to get
into the Austal yard and the answer is simple: money. The
local chapter of the . . . [Union] only has about 800 mem-
bers. With Austal nearing 1,000 employees, the union sees
this as an opportunity to double their membership thus
doubling their income. Income for them, not you. They’ll
take your hard earned money by requiring you to pay
monthly dues. All for empty promises and no guarantees.
What has Austal done in the past five years? We have
grown our workforce from barely 100 employees to al-
most 1,000. We have improved our insurance benefits,
disability insurance and cancer insurance. We now give all
employees personal days. We have increased the number
of Austal recognized holidays and switched to vacation
accrual policy which allows you to take vacation before
being here a year. We have introduced funeral leave, a re-
ferral policy putting $100 in your pocket for referrals, and
now provide a PPE allowance for yard workers paid di-
rectly to you. In addition we have a Christmas Party, vari-
ous cook-outs and gatherings, and recently had a success-
ful Austal Family Day . . . all of this happened without the
involvement of a union.[5] [Emphasis in original.]
5 This message was repeated, with minor changes, 2 days later in GC
Exh. 38. The General Counsel also introduced an undated memoran-
dum on Austal letterhead, GC Exh. 34. It reads as follows:
Remember these facts:
1. Austal was created without a union, and the union didn’t
help you get your job.
2. Austal has made great progress in the last five years in the
size of the workforce, in pay and in benefits offered to our em-
ployees. You are the reason for this success; you are the success.
No union has been here and no union helped to bring about any of
these gains.
3. You have not had to pay a penny in “initiation” fees or un-
ion dues for any of this. If the union gets in they will take money
out of your pocket.
4. Did you know that it is against the law for a company to
pay even a dime to a union? This means that all of their operating
money (money used to pay the salaries of their sales people, mon-
ey for all of their staff and the union leaders, money for conven-
tions and even down to the money to print their flyers) comes
straight out of the wages of the union members.
Our yard is young and has a bright future. We believe the
way to keep it this way is to keep moving ahead and providing
more and better jobs by continuing to work together as a team.

John Wray, who was Austal’s Mobile facility manager, its
acting site service manager, and had responsibilities for
maintenance, testified that when he came from Austal in Perth,
Australia, to Austal in Mobile on November 4, 2006, there were
design plans for a sidewalk from the employees’ parking lot at
Addsco Road and Dunlap Drive to the facility; that at the time
Austal was seeking approval from the city to build a new work-
shop, there was a planned unit development plan created in
November 2006, and the involved sidewalk is on that plan,
Respondent’s Exhibit 36 which is dated “11/07/2006”; that the
installation of the one-half mile or more (approximately 1050-
feet long) sidewalk was a safety issue in that hundreds of Aus-
tal employees were walking down the middle of Dunlap Drive;
that Respondent’s Exhibit 30 is a capital expenditure request
for the sidewalk, which exhibit indicates an estimated comple-
tion date of July 10, 2007, and includes June 2007 bids for the
job; that, with respect to the employee parking lot itself, there
was a problem in that as Austal’s work force grew, the lot was
becoming inadequate in size; that the lot had been maintained
in that potholes in the driveway areas were filled in with gravel
but the employees parked on sand and grass; that Respondent’s
Exhibit 34, which is titled “AUSTAL USA EMPLOYEE CAR
PARK, EXTENSION OF TEMPORARY CAR PARK AND
MAINTENANCE OF EXISTION TEMPORARY PARKING,” is
a request for bids by July 25, 2007, to refurbish the existing lot
and expand the approximately 675 vehicle parking lot to ac-
commodate approximately 1000 vehicles; that Respondent’s
Exhibit 33 is a capital expenditure request for the involved
employee parking lot, which exhibit indicates an estimated
completion date of August 17, 2007, and includes the bids on
the project; that Respondent’s Exhibits 31 and 32 are purchase
orders, both dated “8/3/2007,” for the maintenance and expan-
sion of the employee parking lot; that he believed that this pro-
ject was completed later in August 2007; that the employee
parking lot had been an ongoing maintenance problem which
required refilling the driveways between the parking aisles with
rock and filling potholes; that Austal, at the time of the trial
herein, was building the first half of Austal’s MMF facility
which is 1067-feet long and 347-feet wide; that the MMF fa-
cility will have somewhere in the vicinity of 2300 marked hard
surface (paved) parking bays with filtered drainage; that the
plans for this were developed during 2007 and the project went
out for bids in the beginning of the winter 2007; and that Re-
spondent’s Exhibit 94 is an August 27, 2007 e-mail he was
carbon copied on which refers to some of the parking options
related to the MMF.
We believe you shouldn’t have to pay money out of your pocket
for empty promises.
We believe in out employees and we believe in our future.
Help protect what together we have built. If you have any ques-
tions, feel free to ask any of the management team. If we don’t
know the answer, we promise to find out and let you know.
Let’s continue to make Austal the most preferred team to
work with in Mobile and together exceed our customer’s expecta-
tions
Sincerely,
Daniel Spiegel
Chief Operating Officer [emphasis in original]

AUSTAL USA, LLC 369
On cross-examination, Wray testified that Respondent’s Ex-
hibit 33, the capital expenditure request for the existing em-
ployee parking lot, was signed by Spiegel on July 30, 2007; that
he did not share Respondent’s Exhibits 36 or 30 with any hour-
ly employee; that the request for bids for the extension and
maintenance of the temporary car park, Respondent’s Exhibit
34, was not put out for public bids but rather competent con-
tractors were contacted and provided with the plans; that Re-
spondent’s Exhibit 33, the capital expenditure request for the
expansion and maintenance of the temporary car park, did not
include paving the parking lot; that some maintenance on the
temporary car park had been done by site service employees,
i.e. ordering a truckload of gravel and hand-filling potholes
throughout the car park; and that none of the physical construc-
tion work reflected in Respondent’s Exhibit 94 was done prior
to the union election on April 9, 2008.
General Counsel’s Exhibit 28 is an “EMPLOYEE CHANGE
OF STATUS FORM” for Slay, which is dated August 9, 2007,
and which indicates that she changed departments from alumi-
num to electrical and changed supervisors from D. Herbert to
Steele because “Employee wants a change.”
Slay testified that in September 2007 she started wearing un-
ion stickers on her hardhat, union T-shirts, and union pins, i.e.,
(GC Exh. 18),6 on her clothing and on her tool bag; that when-
ever anyone asked her about the Union she tried to explain
what the benefits of being in the Union would be; and that she
would see her immediate supervisor all day in that the supervi-
sor was in and out all day, the whole 8 to 10 hours.
General Counsel’s Exhibit 8 is a letter dated September 14,
2007, from the compliance officer of Region 15 of the Board,
Warner, to Respondent’s counsel, Terry Dawson, referring to
Austal Case 15–CA–16552, et al. More specifically, the letter
refers to enforcement being temporarily postponed to afford the
opportunity to settle the matter, the need for Respondent to
submit to the Board additional payroll records of welding em-
ployees, which employees seek reinstatement, and the Board’s
position on reinstatement.
General Counsel’s Exhibit 9 is a letter dated September 20,
2007, from Dawson to Warner responding to her September 14,
2007 letter.
The following notice (R. Exh. 19) was posted, on Austal let-
terhead:

DATE: September 25, 2007
TO:All Austal Employees
FROM: Jeff O’Dell, Human Resources Director
RE: National Labor Relations Act
_________________________________________________

It has come to my attention that a supervisor asked an
employee to remove stickers or writing from their hard hat
or they could be disciplined. I further understand that the
hard hat contained a pro-union sticker. Please understand
that Austal repudiates this action and wants you to know
6 One of the pins reads “VOTE, VOTE, AFL CIO, SHEET METAL
WORKERS, INTERNATIONAL ASSOCIATION, VOTE.” As indi-
cated below, subsequently Slay testified that she started wearing the
union pins and union T-shirt around January 2008.
that the National Labor Relations Act gives all employees
the right to self-organization, to form, join, or assist labor
organizations, to bargain as a group of [sic] through a rep-
resentative of your own choosing, and to engage in other
protected concerted activities for collective bargaining or
other mutual aid or protection. The National Labor Rela-
tions Act also gives you the right to refrain from such ac-
tivities. Austal values free speech rights of all employees
(whether for or against the union) and wants you to know
that employees may wear stickers on their hats if they so
choose (whether the message is for or against the union).
Austal reaffirms its commitment to respecting employee
rights under the National Labor Relations Act and will not
interfere with those rights.
Hopefully, this will clear up any confusion and you are
encouraged to speak to your supervisor if you have any
questions.

O’Dell testified that the supervisor was Scott Pearson; that
Pearson disagreed with the decision to let employees place
stickers on their helmets; and that after a lengthy discussion
with Pearson, he sent Pearson back to Australia.
On cross-examination, O’Dell testified that Beverly Thomas
was the employee who Pearson told to take the union sticker
off; and that right after the incident he personally told Thomas
that she could wear a union sticker.
Cleveland testified that from June to November 2007 the
employee parking lot at Austal was in pretty bad shape with
potholes and mud holes when it rained. As noted below, Slay
testified that she believed that the crosswalk and the walkway
from the employee parking lot were finished in November
2007.
Steele supervised Slay up until November 11, 2007, accord-
ing to General Counsel’s Exhibit 3. Steele testified that techni-
cally he was Slay’s supervisor until December 24, 2007. Slay
testified that she worked for Steele up until November 11,
2007, she worked for William Ready from November 12 to
December 9, 2007, she worked for Steele between December 9
and 23, 2007, she then worked for William Dilley for about 3
weeks in the electrical department, and she was working for
Roderick Jackson when she was terminated on March 25, 2008.
General Counsel’s Exhibit 5 is Austal’s employee handbook
dated November 2007.
General Counsel’s Exhibit 11 is a letter dated November 21,
2007, from one of Respondent’s counsel, Nathan Baker, to
Warner enclosing copies of nine reinstatement letters provided
to the alleged discriminatees in Austal Cases 15–CA–16552, et
al.
Steele testified that a little bit before Thanksgiving in 2007
during a workday he and others were called into the production
room to watch a slide show and have O’Dell and Stephanie
Pate, who at the time was O’Dell’s assistant, introduce the em-
ployee handbook to them and give them a paper that they need-
ed to get signed by each one of the employees who was given
an employee handbook; that O’Dell told them “that he wanted
to know if we would—if we heard of any of the people on the
floors talking about the union . . . and that if we knew of any-
one that was in favor of the union and they were talking about

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
it, to let him know immediately.” (Tr. 70.) Steele also testified
that during this meeting the supervisors were told that if they
helped Austal out as supervisors, they would get some incen-
tives, namely an increase in pay and an additional personal day;
that conversations regarding nonwork topics continued and he
continued to participate in these conversations; and that his
conversations were about anything and everything, except the
Union.
With respect to the solicitation and distribution policy in the
employee handbook, Steel testified that before this handbook
he was injured, he had medical bills before his short-term disa-
bility kicked in, and employees took up a collection for him to
help him pay his medical bills.
Slay testified that she received a 17-page employee hand-
book in November 2007; that Ready handed her employee
handbook to her when she came into work; that before this
employee handbook came out (a) if she had to leave early and
had an excuse, it would not be an occurrence, and (b) if she
came in late and had an excuse, it would not be an occurrence;
that both before and after the employee handbook came out
employees talked about whatever they wanted to during work
hours as long as they were productive and doing their work;
that some of the topics employees would talk about included
football, their children’s sporting events, or just their children
in general; and that all of her supervisors participated in these
conversations.
Steele testified that he met with O’Dell four or five times
about the Union; that during one of these meetings O’Dell
asked him to keep his eyes on two employees, namely Slay and
Beverly Thomas; that O’Dell had asked him or told him to
write up employees; and that subsequently O’Dell told him that
they needed to worry about the union situation and he should
leave Slay and Thomas alone but there were two other people
O’Dell needed him to start watching a little bit.
During one of Steel’s meetings with O’Dell Slay’s name
came up. Steele testified that O’Dell asked him if Slay was
showing up for work on time and if he had any problems with
Slay’s attendance; that he told O’Dell that he did not have any
problems with Slay showing up for work and if she was late,
she had a good excuse; that O’Dell told him that he did not
want any more excuses and if Slay was not at her jobsite when
the bell rang, he wanted Slay written up, and it was just that
simple; and that he told O’Dell, “[Y]es sir.” (Tr. 76.)
O’Dell testified as follows regarding Steele:

Q. . . . . Did you ever tell Chad Steel to watch any
employee more carefully because they were involved in
union activity?
A. No, sir, I’d have no reason to tell him that.
Q. Or any supervisor, to watch someone more closely
because of their union activity?
A. No, sir, I’d have no reason to tell anybody that.
Q. Did you ever tell Chad Steele to treat Carolyn Slay
differently than any other employee?
A. No, sir I didn’t even know that Chad supervised
Carolyn Slay.

. . . .

Q. . . . . Did you ever tell Chad Steele to set up Car-
olyn Slay in any way?
A. Absolutely not.
Q. Or that you had a plan to do so?
A. Absolutely not.
Q. Did you ever tell any supervisor to target any em-
ployee—
A. Absolutely not.
Q. —because of their union activity?
A. Absolutely not. It made no difference to me wheth-
er that union came in there or not. I’ve worked with unions
for 20 years.
Q. Or did you tell Mr. Steele to watch your attendance
more closely than some other employees.
A. I wasn’t the attendance clerk so, no, sir. [Tr. 706
and 707, with emphasis added.]

The day following his conversation with O’Dell about Slay
showing up for work on time, Steele waited for 15 minutes for
Slay to show up at her jobsite after a break. Steele testified that
he did not allow Slay to give him an excuse and he told her that
she needed to be at her jobsite working when the bell rang; that
Slay:

was all upset, well, not everybody else is at their job site; you
ain’t writing them up—which was true. And—but I wasn’t—I
couldn’t tell her that my boss was making me do this, so I just
left that alone and said, look, we need to go down to our pro-
duction office and have a meeting because I can’t have you
arguing with me up here in front of bunch of people.
So I gave her a direct order to go down there to the
production office and specifically told her, do not come in-
to this office. And she followed me down there. She
stayed outside because we were told by the other bosses
that we don’t want any more hands [employees] inside of
our production office. There’s too many people. It’s too
small, it’s too crowded. Leave your hands outside.You
come in, take care of your business to get your hands back
up. . . .
So I went in there [the production office]. Well when I
went to get my manager to come outside . . . she’s [Slay]
inside the office. . . . So I write . . . her up for it, and I give
the write up to Claudel Mack . . . . [who] was one of the
coordinators. [Tr. 77 and 78.]

Steele further testified that subsequently he went to HR and
spoke with O’Dell who told him that

Claudel got rid of the writeup and that what he was doing was
setting Ms. Carolyn up for—he didn’t care about the writeups.
What he was wanting to make it look like Ms. Carolyn was
having a problem with was authority. And with him moving
her from the welding division to the electrical division, to my
crew, and then moving me from—moving her from my crew
to another crew, it’s making her look like she can’t deal with
authority.
And he was setting her up by getting her to move
crews instead of having her written up for not showing up
for something petty. He was just making it look like she
AUSTAL USA, LLC 371
couldn’t get—she couldn’t work with her management.
[Tr. 79.]

Steele testified that after this conversation with O’Dell, Slay
was immediately moved to Dilley’s crew that day.
Slay testified that the day before she went from Steele’s crew
to Dilley’s crew she stopped at the bathroom on the way back
from her break at 9:15 a.m.; that since there is only one toilet in
the bathroom for ladies she had to stand in line waiting to use
the bathroom; that it was after 9:15 a.m. when she got back to
her work area; that Steele was sitting on her welding machine
waiting for her; that Steele asked why she was late coming back
from break; that she told Steele that she went to the bathroom;
that Steele told her that she was not supposed to go to the bath-
room unless she was on her 9:15 a.m. break; that she told Steele
that he was harassing her and she could go to the bathroom
whenever she had to go; that Steele told her that she needed to
go to the trailer to see the coordinator because he was going to
write her up; that he told her to stay outside the trailer since
only coordinators and supervisors were supposed to be inside
the trailer; that she told Steele that employees go inside the
trailer during the day; that Steele told her to stay outside and
she said okay; that another supervisor told her to come into the
trailer; that at that time Steele and Mack were coming out; that
Steele wanted to write her up for being insubordinate and curs-
ing at him; that she told Mack that the real reason Steele want-
ed to write her up was for going to the bathroom; that Mack
told her to go back to work; and that at the end of the day Mack
told her that she would not have to worry about Steele because
she would be on another crew, Dilley’s, the next day.
General Counsel’s Exhibit 36 is an Austal organizational
chart for “Fit HVAC SFP” dated “11/19/2007.” As here perti-
nent, it lists Steve Jones and Gary Logan as coordinators, and
James Thomas, Terry Crawley, and Terry Westmorland as
supervisors.
Steele testified that sometime after the November 2007
meeting with O’Dell regarding the employee handbook he
overheard Austal employee Anthony Simon and some other of
Austal’s employees discussing the pros and cons of the Union;
that he told Simon, who was the oldest employee in the group,
that “whatever you all do . . . during company hours, y’all can-
not talk about the union” (Tr. 71); that Simon told him that the
employees talk about anything and everything else7 and that he
then told Simon

look, for me, don’t talk about the union no more, dude. Dur-
ing company time, during company hours, don’t talk about
the union, bro, and not around me. If anything, not around me.
And he kept on, kept on. And I was like, look, I said, I’m tell-
ing you this time, I’m walking out. You got to stop talking
about it. I don’t care what y’all do on breaks. I don’t care, just
7 Steele testified that while he was a supervisor at Austal employees
talked about nonwork-related matters while they were working, and the
topics included NASCAR, football, and girls, “we talked about any-
thing and everything.” (Tr. 85); that he made it a point to talk with
employees about their family and what was going on in their life so that
if the employee took time off for a family matter he would know that
the employee was not feeding him some line; and that he stopped and
talked to all of his employees.
not during working hours. And I rolled out. I rolled out and
went straight down to HR and went [and] told Jeff O’Dell.
[Id. at 72.]

Steele further testified that he told O’Dell that Simon was talk-
ing about the Union and he told Simon to stop.
Warren Gatwood Jr. testified that in late November 2007 he
returned to Austal from a 2002 layoff after the Union filed a
charge over the layoff, a decision in that matter was rendered,
and he was called back to work; that within a week of being
reinstated an issue came up about his vacation time in that he
took time off when his daughter had surgery and he had to
speak with O’Dell in HR; that O’Dell told him that he would be
made whole and he could take vacation time anytime he needed
it; that O’Dell asked him if he wanted to enroll in Austal’s in-
surance program and he told O’Dell no since he had insurance;
that O’Dell then said, “that he bet I was getting subsidized, too,
and that he knew what I was doing there, that he had had com-
plaints about me talking to other employees about the union,
and I needed to keep it on my time. His time was his time” (Tr.
292); that when he returned to Austal he talked to the employ-
ees about the Union; that he was wearing a union T-shirt when
he spoke with O’Dell on this occasion; and that the union T-
shirt indicated “America Works Best Union, Union Yes” and it
had a logo on the back. On cross-examination, Gatwood testi-
fied that he did not know who complained about him.
Tracy Watkins, who works as a materials clerk in Respond-
ent’s warehouse, testified that in November/December 2007
Manager Jerrod Bradford8 was selling Christmas gift boxes and
wrapping paper for his daughter’s school fundraiser; that she
was working at the window in the warehouse and Bradford
approached her and two other employees, Patrina Jones and
Gloria Sullivan; that she told Bradford that she was busy with
people at the window; and that Bradford left a brochure for
them to look at.
Cleveland testified that union organizing efforts were
stepped up in late November and early December 2007 after it
was determined that people who were fired with respect to the
first election were going back to work; and that the stepped up
efforts involved seven to eight union representatives wearing
union T-shirts handbilling incoming and outgoing employees at
the Austal gate once or twice a week.
Lindley testified that in November or December 2007 she
was asked by O’Dell to check on the availability of a mail-
order drug prescription program where the employees could
receive their prescriptions at home; that she contacted a market-
ing representative at Blue Cross/Blue Shield (BC/BS) to ask
about such a program; that Respondent’s Exhibit 29 is an e-
mail, dated December 19, 2007, she sent to the BC/BS repre-
sentative which reads: “I spoke with Jeff [O’Dell] about the
mail order drug option—can you put something together that I
can give to him? This is something that they are pushing”; that
O’Dell was pushing for this and “[i]t had come about from
employee meetings. It was asked by an employee” (Tr. 600);
and that a union election was not scheduled in December 2007.
8 GC Exh. 33 is an organizational chart for Austal’s warehouse. It
lists Bradford as warehouse coordinator.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
On cross-examination, Lindley testified that employees ask-
ing about a mail-order drug prescription program would have
occurred in a meeting similar to the April 30, 2007 meeting
where the aforementioned power point presentation, Respond-
ent’s Exhibit 13, was shown; that one was generally held once a
quarter in 2007 that the question of mail order came up in meet-
ings with smaller groups of employees; that she could not say
how many of these meeting there were; that O’Dell did not tell
her how many employees asked about this program; that the
meeting occurred in November 2007; that she did not recall an
NLRB notice being posted on the bulletin boards at Austal in
November 2007; that O’Dell or whoever he delegated the task
to in HR would have been responsible for posting governmental
notices; that in February 2008 and in 2007 Austal maintained a
self-funded health plan; that a self-funded health program is
different from a fully-insured program to the extent that with
self-funded programs, the employer pays the cost of the plan
and not the premiums; that with a self-funded program, in de-
signing the policy, the employer, to some extent, gets to choose
what benefits are included in the self-funded program; that
Austal’s self-funded health program used BC/BS as its claims
administrator; that BC/BS was Austal’s previous plan provider
when Austal was fully insured; that December 1 of each year is
when Austal renews with Blue Cross/Blue Shield the claims
administrator contract and that is when, generally the benefits
for the upcoming year become effective; that as indicated by
Petitioner’s Exhibit 4, Austal can add benefits at other times
during the year if Austal decides to do that; that various cost
changes are set on December 1 of each year; that Austal had its
normal annual renewal where it set benefits and set the costs for
the upcoming year on December 1, 2007; that Austal then made
the change that is reflected in Petitioner’s Exhibit 4 to be effec-
tive on February 1; that Petitioner’s Exhibit 7 is a benefits
comparison of Austal’s three medical plans which would have
gone into effect in December 2006, were in effect through the
year 2007, and were not changed at the December 2007 renew-
al; that Petitioner’s Exhibit 8 is the high option PPO plan
through Blue Cross/Blue Shield in effect January 1, 2007;9 and
that Petitioner’s Exhibit 9 is the information from Blue
Cross/Blue Shield on the prescription drug card which was in
effect until it changed on February 1.
General Counsel’s Exhibit 20 is a document which Slay
signed and gave to Pate. It reads as follows:

12/7/07

To Whom It May Concern;

I, Carolyn Slay am tired of people vandalizing my ma-
chine. I am currently working below B-9 (galley area), in
B-1. The Welding supervisors working in that area, should
make sure that their welders have everything that they
need. Someone had some welders working in B-1. Parts
were taken off my machine (feeder box). My gas bottle
was emptied or taken from my machine. Why are these so
called supervisors not keeping these guys from stealing off
9 Petitioner indicated that this document was introduced to show that
the mail-order prescription program, which became effective February
1, is not in P. Exh. 8.
of other people’s machine. Obviously they have got a lot
of time on their hands, because they can’t be working.
Now I’m not working because I’ve got to get another bot-
tle of gas. Wait on maintenance to come fix my machine.
The killing part about all this is that they purposely took
parts off my machine that they don’t need. So whoever
this person or persons is, they are purposely harassing me.
This is an ongoing problem, and I think something needs
to be done about it. Putting locks on the doors of the weld-
ing machines would be a good idea for the real working
people out here.

Slay testified that she complained about what was being done
to her welding machine to O’Dell, Pate, Harley Combs, her
supervisors, and whoever she was working under, i.e., Gerald
Ransom; and that sometimes the paperwork would disappear so
she started making copies so she would have a copy when she
made a complaint.
Slay became a member of Dilley’s crew on December 24,
2007. Slay testified that Jackson, who was a leadman at the
time, was in her crew; that Jackson gave her a welding test,
telling her that she had been “badmouthed”; and that after the
test, Jackson told her that “they lied on you” and he was going
to keep her on the crew.
Steele testified that sometime after Christmas 2007 he over-
heard Austal employee Utsetsi Nyanga and another employee
talking during the break; that when they continued to talk about
the Union after the break he approached them and said,
“Utsetsi, how many times I got to ask y’all not to talk about the
union during working hours—I meant during work schedule.
You cannot talk about them during your work schedule. When
you’re supposed to be at work, you cannot talk about the union.
And I got a yes sir from him. He shut up and went right back to
work.” (Tr. 83.)
According to the testimony of Cleveland, after the first of the
year 2008 the employee parking lot at Austal was regraded,
lighting was installed, and he believed that Austal also paved a
walkway from the parking lot to the gate. On cross-
examination, Cleveland testified that someone brought rock
into Austal’s employee parking lot around the first of the year
2008; and that he did not have any personal knowledge of how
often Austal brought in rock for the employee parking lot or
how often Austal did maintenance work to the parking lot.
Jerome Pettibone testified that Austal’s employee parking lot
was gravel, it held water when it rained, and people’s cars were
broken into and stolen; and that improvements were made to
parking lot in that the lot was regraded and blacktopped.
Slay testified that she started wearing union pins and the un-
ion T-shirt around January 2008.
Petitioner’s (Union’s) Exhibit 4 is a BC/BS of Alabama Self
Funded Health Change Agreement signed by the benefits coor-
dinator of Respondent on January 16, with an effective date of
February 1. The document indicates: “Please add Mail Order
Prescription Drug Benefits.” It goes on to indicate what this
benefit entails. Petitioner’s Exhibit 5 is the prescription drug
benefit insert summary plan description for Austal effective
February 1.

AUSTAL USA, LLC 373
Lindley testified that she signed Petitioner’s Exhibit 4 on
January 16; and that employees were notified of this change by
a posting in January or early February 2008 on the bulletin
boards, out in the sheds, and Austal also included it in the
newsletter that was circulated in April 2008.
In January and February 2008, the fact that Austal employ-
ees were lining up at the timeclock before the end of the day
became an issue. Steele testified that all of the supervisors were
called into a morning meeting and told that they needed to stop
employees, no matter who they worked for, from leaving the
jobsite early and getting to the timeclock early; that if the em-
ployees did not follow the Austal handbook they were to be
written up; that he wrote up 16 employees who did not work for
him for being at the timeclock early and refusing to go back to
their jobsite; that subsequently he was called to the HR office;
that O’Dell told him

Chad we don’t want to fire everybody at Austal; we [are] real-
ly only trying to get the people who’s pushing for the union. I
said, well, y’all do what y’all want to do with them writeups. I
did them. I did what y’all asked me to do. Y’all can do what
y’all want with the writeups.
And that’s when they was like, look Chad, it’s the un-
ion situation we’re after. You know, whoever helps us
out—he was talking about guys helping us out and stuff
like that, but he said, we don’t want to fire everybody. We
don’t want to write everybody up. We just want to attack
the ones that are going for the union. . . .
. . . .
He named about five people. He named Ms. Carolyn
Slay. He named Ms. Betty Thompson. He named this girl
named Jill. He named Anthony Simon. I think he named
four. I’m not quite sure. . . . [Tr. 81 and 82.]

Slay testified that when she came to work on February 1,
2008, she had some union T-shirts in a backpack; that she
picked up her tools and went to her jobsite; that she put the
backpack down on the floor next to her toolbag while she was
working by herself; that different people would come to her
work area and ask her for a union T-shirt and she would tell
them to get it out of the backpack; that during her 9 a.m. break
she passed out the union T-shirts out at the gate to people who
asked for the union T-shirt; that employees were at the gate
because they were buying breakfast at the breakfast trucks out-
side the Austal gate; that at the time she had on a union T-shirt
over her regular clothes; that at the end of the break “someone
hollered over the radio” (Tr. 137) for her to come to HR; that
she went to HR and saw Watkins, another unidentified man,
and O’Dell; and that she and O’Dell had the following conver-
sation:

. . . he said were you passing out union T-shirts? I said, yes, at
nine o’clock.
He said, well, I got ten witnesses say you was [sic]
passing them out during working hours. I said, well, they
lying. I wasn’t passing them out during working hours. I
was passing them out during my break. He said, well, how
did they get them? I said, they came in my work area and
asked for them, and I told them to reach down in that bag
and get them, and that’s what they did. I didn’t pass them
anything. And he said, well, I believe you’re lying.
And he said, well, did you tell Tracy Watkins to pass
out union shirts? I said, no. He said, well, how many did
you give her? I said, I don’t know. She said a couple of
guys came through, asked for shirts, and I gave her a cou-
ple shirts and told her to give them to them when they
come back. And—but I didn’t tell her to pass out union
shirts. He said, well, I believe you’re lying.
So he kept on trying to make me say what he wanted
me to say, and I wouldn’t. So he said, well, were not pay-
ing you to pass out union shirts, and if you’re going to
pass them out, you better keep them locked up and pass
them out on your break. I said, well, that’s what I was do-
ing, passing them out on my break. Again, he said, I be-
lieve you’re lying.
He said, but you know I could fire you for that. And I
just looked at him. He said, that what you want? I looked
at him, I said, well, no. He said, well, I just tell you about
it. We’re on the same page. And that’s when I walked out.
[Tr. 137 and 138.]

On cross-examination, Slay testified that the backpack in
which she had the T-shirts was made out of cloth; that she had
the backpack at her workstation; that she has to wear protection
when she is welding to avoid getting burned; that she has seen a
spark from a weld catch something on fire; that to her
knowledge the backpack was not fireproof; that she placed the
backpack next to her toolbag in her work area; that the toolbag
is made of a material that can catch on fire; that the day before
employees had asked her to bring in union T-shirts and they
came to her area to get a union T-shirt; that when they came to
her workstation she was on her worktime and she told them to
reach in the bag and get a T-shirt; that to access the hold that
she was working in that day she had to use a ladder; that even
though she received an employee handbook in November 2007
she was not really aware that the Company had a no-
solicitation, no-distribution policy because she had not read all
of the book and she did not know what all was in the book; that
she was given the employee handbook to keep in her posses-
sion; that the paper she signed regarding this incident indicated
that she would not solicit during work hours; that she did not
receive a disciplinary action over this incident; and that after
this incident she still made shirts available to employees and
she did it in compliance with the instructions she received from
O’Dell.
On redirect, Slay testified that the employees who came to
her to get a union T-shirt on the day in question were not on
break; that there is no requirement that the shirts employees
wear to work be fire retardant; that she saw employees wearing
the Austal Union Free Proud to Be T-shirt at work; and that the
label on that shirt does not indicate that it is fire retardant.
General Counsel’s Exhibit 39 is a print out of e-mails ex-
changed between O’Dell and Bob Browning, who is Austal’s
chief executive officer, on February 1. The first is from O’Dell
to Browning. It indicates as follows:

Not sure if you have heard, but I had an employee that was
handing out t-shirts (about 50) to employees on their time to-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
day on our time. I have since then delt with the situation and
want to post this message. [The one-page message to employ-
ees refers to the distribution of shirts and Respondent’s solici-
tation and distribution guidelines, and advises employees to
let their supervisor know if anyone tries to intimidate or
threaten them.] Now the postings are down from the NLRB I
guess that we will start seeing some activity from Local 441.
Let me know your thoughts about the posting.

Browning replied, “I’m fine with the general message. Have
you had our attorney look at it? We need to be squeaky clean in
dealing with there things.” O’Dell replied, “I will run it past
Terry before I post.”
O’Dell testified that when it came to his attention that Slay
was passing out T-shirts on worktime, he called the supervisor
over that area and asked him what was going on; that the su-
pervisor told him that Slay was down in the hull of the ship, she
had two large garbage bags of T-shirts, and Slay was handing
them out; that the supervisor told him that he saw Slay holding
shirts up sizing them up on people; that he met with Slay and
told her that she was passing out T-shirts, which she did not
deny, and the rules are she could hand the shirts out on her
lunch or breaks, before or after work, off of property but she
could not store them down in the working area; that he told
Slay that she could leave the shirts in the break rooms or put
them in her lock box; that he did not discipline Slay; that when
he set the ground rules of what Slay could or could not do Slay
said, “whatever” two or three times (Tr. 686); that he read Gen-
eral Counsel’s Exhibit 19 to Slay, he signed it, and he gave it to
Slay10; that after his discussion with Slay he had a similar doc-
ument to all employees posted11; and that there was a no-
solicitation, no-distribution policy in Austal’s handbook.
10 The memorandum is on Austal letterhead. It reads as follows:
DATE: 3 February 2008
TO: Carolyn Slay
SUBJ: Solicitation
___________________________________________________
Carolyn,
This note will remind you about our discussion today. As
mentioned, Austal does not allow employees to solicit each other
while on working time (yours and the employee you’re trying to
solicit). Neither do we allow employees to distribute materials in
working areas. I reminded you of this today and fully expect that
you will comply in the future. Failure to do so will cause discipli-
nary action.
I also want to remind you that you are free to solicit during
nonworking time (your breaks, lunch, etc.) so long as the person
whom you are soliciting is also not on working time. Austal has
no problem with employees speaking their mind, no matter
whether they are for or against a union. Austal does, however, ex-
pect its employees to be working when on the clock rather than
soliciting for any cause or distributing materials of any kind.
Jeff O’Dell
Human Resources Director
11
R. Exh. 4, which is on Austal letterhead and undated, reads as fol-
lows:
To all employees:
You have undoubtedly become aware that some employees
began handing out shirts during work time and in working areas.
We want to remind you that distribution is not allowed in working
areas. Additionally, employees may not solicit during working
On cross-examination, O’Dell testified that he did not re-
member which supervisor told him that Slay had two garbage
bags where she was welding and she was fitting employees;
that he called the manager over the group, Harley Combs; that
Combs subsequently called him and told him that Slay was
passing out shirts; that other employees were passing out T-
shirts, and buttons but he did not send Browning e-mails about
them; that as far as he knew, Slay was the only one doing it on
company time; that someone was disciplined for distributing
antiunion shirts and he did not send an e-mail to Browning
regarding that person; that “the first concern in any yard is safe-
ty” (Tr. 727) and he told the manager who looked into the situa-
tion to make sure the area was safe; and that when he called
Slay down to talk to her about the shirts he already had the
document he gave her typed up.
According to Slay’s testimony, the morning after her discus-
sion with O’Dell her coordinator called her to his office and
told her that he had something for her to sign and he guessed it
was a paper they forgot to have her sign at the meeting in
O’Dell’s office the day before.12
Petitioner’s (Union’s) Exhibit 3 is a February 25 e-mail from
Elizabeth Garl to David Tomlin which indicates as follows:

Subject: MMF paragraph for the Austal newsletter per Bob B
Hi David!

We’re putting together the HR submission for the Aus-
tal newsletter and Bob wanted to address the parking situa-
tion he hears so much about. He wanted some information
in the newsletter reviewing the MMF plans and how this
will relieve some of the parking problems.
Could you send me a paragraph about the plans as they
currently stand please? Michelle’s trying to work on the
newsletter right now so as soon as you can get me the in-
formation I can turn it over to her.

time (theirs and the employee they are trying to solicit). This is
true no matter the subject (girl scout cookies, little league candy,
union issues, raffle tickets, etc.). Employees are free to solicit
others during nonworking time. Please observe these guidelines
so we can avoid taking disciplinary action.
Some of you have told us that you don’t want to [be] bothered
by the latest effort to divide the company and employees. Be
aware that all employees—no matter your viewpoint—have the
right to speak your mind. If you’re being bothered by those who
want to force their views on you, simply tell them to leave you
alone or tell them what you think about their efforts to create an
“us versus them” atmosphere here.
You can expect more of this activity in the future. As you’ve
learned before, the union desperately needs new dues-paying
members. They’re hoping you’ll be willing to give them a cut
from your paycheck every month and they’ll say or do pretty
much anything to get it.
In the meantime, let your supervisor know if anyone tries to
intimidate or threaten you. We won’t allow such behavior, no
matter who it’s from.
Jeff O’Dell
Human Resources Director
12 GC Exh. 19, which is dated “3 February 2008” and is signed by
O’Dell, is set forth above.

AUSTAL USA, LLC 375
Carl Hudson, who was hired by Respondent in July 2007 as
a sheet metal mechanic and later became a surveyor/inspector,
testified that he wore union shirts and he talked to employees
about the Union encouraging them to vote the Union in; that in
March 2008 before the Board election his supervisor, James
Thomas, told him that if he wanted to be a supervisor he had to
shave, tuck his shirt in, don’t be a rebel, and quit wearing union
shirts and union paraphernalia; that he was wearing a union
shirt when Thomas told him this; that he was going to apply for
a supervisor’s position and Thomas found out about it; and that
this conversation occurred after a notice was posted on a bulle-
tin board at work regarding employees’ rights under the Act.
On cross-examination, Hudson testified that no one other than
him and Thomas was present during this conversation.
James Thomas testified that he worked at Austal for 6 or 8
months, he did not know “the dates exactly.” (Tr. 785.) One of
the Respondent’s attorneys then elicited the following testimo-
ny:

Q. If it were to be suggested that you worked—your
work ended at Austal in February of 2008, does that sound
right?
A. That’s exactly right.
Q. So you would have started some time in the sum-
mer of 2007?
A. About that. [Ibid.]

James Thomas further testified that he started out at Austal
working with his tools; that he was advanced to supervisor; that
he did not recall when he became supervisor; that he was a
supervisor when he left Austal in February 2008; that he has
worked in a union environment before; that the sheet metal
local telephoned him and asked him if he would take a job at
Austal and salt for the union; that he has worked with Hudson
on numerous jobs prior to Austal and Hudson worked for him
for a short period of time at Austal; and that he did not tell em-
ployees that they would not be promoted if they supported the
union. One of Respondent’s attorneys then elicited the follow-
ing testimony:

Q. Did you ever tell Mr. Hudson that he couldn’t be-
come a supervisor unless he stopped wearing union shirts?
A. No, I never made that allegation. It was a supervi-
sor’s job to not talk about the union in any way, shape or
form during—as a part of the—what we were told not to
do, and I didn’t do it. So I didn’t much bring up anything
pertaining to the union during working hours.
Q. So you never threatened any employees that they
wouldn’t be promoted if they supported the union?
A. No.
Q. In fact, you—Mr. Thomas, you resigned well over
a month before the union election:
A. Yes. [Tr. 787.]

In early March 2008, according to the testimony of Hudson,
Gary Logan, who was his coordinator over Supervisors James
Thomas, T.C., and Clinton Hayes, pulled him aside during his
toolbox talk and told him two or three times that he needed to
pipe down because the higher ups were saying that he was
causing chaos; and that Logan told him he could not say who
was saying this. On cross-examination, Hudson testified that no
one other than him and Logan was present during this conver-
sation.
Logan testified that Hudson was in his group; that he was at
Austal from March 2006 to June 2008; that when he was at
Austal he conducted morning meetings for about 15 minutes
every morning to go over the daily tasks and safety issues; that
several times Hudson raised an issue about the Union and one
morning he told Hudson, “[h]ey, this is— we [are] on the clock,
this is a start up meeting, let’s continue on with our start-up
meeting” (Tr. 776); that he did this because Hudson wanted to
talk about a nonwork-related topic and it did not matter what
the nonwork-related topic was, they were on company time;
that he did not tell employees to pipe down on the union stuff;
and that he did not tell Hudson that the higher ups at Austal
said that he needed to be quiet because he was causing trouble
with the union issues.
On or about March 10, 2008, according to the testimony of
Slay she got sick and she had to leave work early to go to the
doctor. Slay testified that Supervisor Jackson told her that if she
left early she was to make sure that she brought an excuse back
because they were after her and he was just trying to save her;
and that she had to leave early 1 day to pick her little girl up
from school and Jackson said the same thing, namely make sure
you bring me an excuse because they are after you and I’m just
trying to save you.
General Counsel’s Exhibit 13 is a March 12 letter from Re-
gion 15 to the law firms representing the Union and Respond-
ent, which letter (a) sets forth the specifics of the April 9 rerun
election, (b) describes the involved unit, and (c) specifies a date
by which the Excelsior list should be received by Region 15.
Steele testified that supervisors wore white hats and employ-
ees were expected to follow supervisor’s directions whether or
not the individual was their supervisor, unless it involved doing
something that was unsafe.
Pettibone, who worked as a welder for Austal from January
9, 2006, until April 20, 2009, testified that supervisors wore
white hard hats until some time in 2009; and that if a person
with a white hardhat gave him directions, he would follow the
directions because that person was his senior boss.
Slay testified that supervisors wore white hardhats; and that
if someone with a white hardhat gave her directions, she would
do what the supervisor told her to do.
Hudson testified that at the time material herein the supervi-
sors and coordinators wore white hardhats.
General Counsel’s Exhibit 35 is an Austal organizational
chart for the “Outfit,” dated March 17, 2008. It lists, as here
pertinent, Logan as a foreman, Terry Crawley as a supervisor,
Steve Jones as a foreman, and Terry Westmorland as a supervi-
sor.
On March 18 Hudson attended an Austal meeting at the con-
vention center in Mobile. Hudson testified that he spoke with
Jeff O’Dell who agreed to meet with him at work the next day;
and that he was not wearing a union shirt when he spoke with
O’Dell.
On March 19, according to his testimony, Hudson met with
O’Dell just after lunch. Hudson testified that he did not wear
any union clothing when he met with O’Dell on March 19; that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
at the outset of the meeting O’Dell asked him did he think Aus-
tal needed a union; that he responded, “Not really” (Tr. 245);
that after indicating that Austal was a great Company, O’Dell
said, “I see you’ve got seven occurrences here. A few more and
you’re out of here” (Id. at 246); that they discussed the fact that
employees have to use vacation days to go to the hospital, the
fact that Ingalls (apparently another shipyard in Mobile) did not
do it that way, and apparently how many sick days Austal em-
ployees should get; that O’Dell then said, “[t]he answer that
you gave me before, . . . to be honest with you, I wouldn’t hire
you” (Tr. 246); that O’Dell asked him why he came to see him,
and he told O’Dell that he hurt his leg, he was put on prescrip-
tion medication, his supervisor would not let him work while he
was on the medication, Lortabs, and consequently he lost 10
hours of pay which he wanted Austal to give him; and that his
Supervisor Crawley was at this meeting. On cross-examination,
Hudson testified that the subject of his becoming a supervisor
never came up in his discussion with O’Dell, and he has never
discussed this matter with O’Dell.
O’Dell gave the following testimony regarding Hudson:

Q. Was there ever a time during your employment
when you asked him—you thought Austal ever needed a
union?
A. No, I did not ask him that.
Q. Did you ever tell Mr. Hudson that you wouldn’t
hire him based on his answer about how he felt about a un-
ion?
A. Mr. Hudson was already an employee.
. . . .
A. So, no, I didn’t tell him that. [Tr. 701.]

Crawley testified that in March 2008 he was a HVAC super-
visor at Austal and he reported to coordinator Logan; that he
left Austal in September 2008; that he had 7 to 10 employees in
his crew; that he worked on the Littoral (along the shore) Com-
bat Ship (LCS) and the Hawaii Super Ferry (HSF) and in
March 2008 leading up to the election he was working on the
LCS; that employee Hudson worked for him; that “[n]o, sir” he
has never “heard Jeff O’Dell say . . . something like he would
not hire Hudson if he gave the wrong answer about the union”
(Tr. 765); that he was in a meeting with O’Dell and Hudson;
that he did not remember if O’Dell mentioned the word union
during that meeting; that “[t]he only thing I remember of that
meeting was that you cannot be a supervisor if you’ve been
written up” (Id. at 766); and that with respect to applying for a
supervisor job, this is on the postings themselves for the jobs
when they go up. On cross-examination, Crawley testified that
the O’Dell/Hudson meeting lasted for 15 to 20 minutes.
General Counsel’s Exhibits 44 through 65 are Austal organi-
zational charts, all of which are dated March 17, 2008.
Antiunion T-shirts were passed out to Austal employees on
March 19.
Pettibone testified that he received an antiunion T-shirt dis-
tributed at Austal during the union campaign (P. (Union’s) Exh.
2); that the shirt was blue and it had “AUSTAL UNION FREE
& PROUD TO BE” on it; that he received his T-shirt from
Supervisor David Herbert; that he knew that Herbert was a
supervisor because Herbert was one of his former supervisors;
that when Herbert gave him the T-shirt Herbert was not wear-
ing a hardhat; that he received the antiunion T-shirt at one of
the two turnstiles employees had to go through on their way out
of work; that there was more than one supervisor distributing
the antiunion T-shirts on this occasion and he thought the su-
pervisors had their hardhats off at the time; and that he ob-
served individuals passing out the “AUSTAL UNION FREE &
PROUD TO BE” T-shirts only once, and on that day he worked
overtime and went through the turnstile about 4:30 p.m.
Slay testified that she recalled a situation where individuals
were standing outside the gate passing out shirts that said “Aus-
tal Union—Free and Proud to be”; that Petitioner’s Exhibit 2 is
the T-shirt that was passed out as employees were leaving work
one evening; and that

one morning I came in, and all the supervisors and coordina-
tors had those shirts on with their white hats. And at the end
of the day, they was [sic] standing outside the gate. They had
some supervisors standing inside the gate, passing out papers,
hand-billing, antiunion. And they were standing on the out-
side of the gate passing out T-shirts. [Tr. 144.]

Slay testified further that she knew the individuals were super-
visors because she worked with some of them and they all had
on white hats; that when she left work that day the individuals
were wearing white hats and they were passing out T-shirts;
that she saw Coordinator Tim Clements passing out the shirts;
that she used to work for Clements when he was a supervisor
before becoming a coordinator; that she saw the T-shirts being
passed out about 2:30 p.m. that day; that about 80 percent of
the entire shift was leaving at this time because everybody did
not work overtime; and that employees could not enter or exit
the shipyard without passing through a gate where the antiunion
T-shirts were being distributed. On cross-examination, Slay
testified that while an administrative employee or a visitor
might wear a white hardhat, they would be plain white hats and
they would not have supervisor or their names on the hardhat.
And on redirect Slay testified that the day the antiunion T-shirts
were passed out as employees went through the gate she knew
that supervisors were passing out the antiunion T-shirts because
she worked with them before and they all had on white hats;
that their name and supervisor or coordinator was on the
hardhat; and that some of the individuals she saw that day wore
hard hats with supervisor on them.
Watkins testified that she wears an orange hardhat; that her
supervisor and her supervisor’s manager wear white hardhats;
that around March 2008 individuals were passing out antiunion
T-shirts to employees as they were leaving work and going
through the turnstile; that the T-shirts said Austal Union Free &
Proud To Be; that the first time was about 2:30 p.m. and there
were about five individuals wearing white hardhats, including
some supervisors and some employees from HR; and that one
of the individuals wearing a white hardhat was Lindley, who is
over the insurance department, and another was Robert Hall,
who is a fabrication supervisor.
Hudson testified that when he left work one day T-shirts
were being passed out near the turnstiles; that supervisors were
passing out the T-shirts and he knew this because they were
wearing white hardhats and all the supervisors and higher ups
AUSTAL USA, LLC 377
wore white hardhats; that one of the supervisors who was pass-
ing out T-shirts that day was Terry Westmorland; that the shirts
were blue with white lettering saying, “Union Free & Proud To
Be” (P. Exh. 2); that he took a shirt13; that T-shirts were offered
to all employees as they were leaving or coming to work; that
employees had to go through the turnstiles to get out or get in;
that most of the individuals passing out T-shirts had hardhats
with their names and position on them; and that he knew that
they were supervisors or “higher-ups” (Tr. 314) because they
wore white hats.
Gatwood testified that supervisors wore white hardhats; that
about 2 or 3 weeks before the April 9 Board election individu-
als were passing out T-shirts to employees as they came in and
left work at the turnstiles; that “there were supervision [sic] on
both sides of the turnstiles with an armload of tee shirts, pass-
ing out tee shirts and stickers” (Tr. 295); that the T-shirts indi-
cated “Austal Union Free, Proud to Be” (Ibid.); that the indi-
viduals who were handing out the T-shirts wore white hardhats
and khaki welding shirts with the Austal insignia embroidered
on the front; that he is not aware of anyone who is not a super-
visor wearing that khaki shirt; that he could not recall any su-
pervisor in particular that he saw handing out the shirts; that
this happened on two occasions and on both occasions the indi-
viduals handing out shirts had white hardhats and khaki shirts
on; that at the time he was leaving the shipyard at the end of his
shift, at 2:30 p.m., on both occasions; and that he did not recall
on either occasion if employees were coming into the shipyard
at the same time that he was leaving. On redirect, Gatwood
testified that is was common for supervisors to have their name
and position on their white hardhats; that the individuals who
he saw who he thought were supervisors had their positions on
their white hat; that he believed that those positions were su-
pervisory positions; and that those individuals had their names
on their hats.
Jeffrey Garl, who has worked for Respondent for 2 years as a
senior supply buyer, testified that he does not supervise any
employees: that he passed out T-shirts which indicated “Austal
Union Free”; that Carolyn Buckley who is with Respondent’s
HR department, asked him to pass out the T-shirts only to Aus-
tal employees,14 and she told him that he needed to make sure
that there were no supervisors in the area where the T-shirts
were passed out; that he started passing out the T-shirts at the
commercial (HFS) gate at 2 or 2:30 p.m. or at the end of the
first shift; that about 1 hour later he went to the LCS gate to
pass out T-shirts; that he was stationed inside the gate; that he
asked the individuals what size they needed and told them to be
sure to vote; that there were hundreds of people coming
13 Hudson testified as follows about what he did with the company
T-shirt:
Threw it in my car, used it for a grease rag sometimes. And
then they—and they was [sic] passing them two or three times.
And so I just started grabbing them, just say, hey, I just keep them
to wear around in, because I knew they was [sic] condemning me
for wearing shirts. And sometimes I’d put my Union Free shirts
on, that way to keep the peace with everybody. [Tr. 257 and 258.]
14 Jeffrey Garl explained that one could tell that the individual was
an Austal employee by their badge. Employees of contractors and any-
one with Bath Iron Works were not allowed to receive T-shirts.
through the gate; that he did not, and he was not asked to, keep
track of who took the shirt and who did not take the shirt, and
he did not report such information; that he did not see any su-
pervisors passing out T-shirts; and that he was not wearing a
hardhat when he passed out the T-shirts, and he did not believe
that others who were passing out the T-shirts were wearing
hardhats.
On cross-examination, Jeffrey Garl testified that he did not
recall whether he was instructed with respect to talking to em-
ployees when he passed out the T-shirts; that either Buckley or
Bria Connolly told him to go to the LCS gate; that he believed
that Buckley at the time was the administrative assistant for
operations and not with HR; that he and about five other indi-
viduals were passing out T-shirts on the HSF side; that he did
not remember who they were but most were employees from
fabrication or the different trades; that there were no supervi-
sors on the HFS side while he was there; that he was on the
HFS side for 1 to 1-1/2 hours; that the employees wear their
badges around their neck; that he was at the HFS gate for two
or three waves of clock outs; that he could not remember how
long he was at the LCS gate but it was not as long as he was at
the HFS gate; that he thought he finished at the LCS gate close
to 5 p.m.; that he passed out T-shirts only on this occasion, and
he did not know what occurred when the T-shirts were passed
out on another occasion; that he did not recall whether there
were any employees coming into work during the time he
handed out T-shirts; and that these two gates are generally how
employees come into or go out of the shipyard.
On redirect, Jeffrey Garl testified that he had a white hardhat
in March 2008; and that the people in administrative roles and
supervisors wear white hardhats. On recross, Garl testified that
in March 2008 his white hardhat had his name and his position
on it.
Rena Epperson, who has worked at Austal for a little over 1-
1/2 years at the time of the trial herein, testified that in March
2008 she was a site administrative assistant, and she did not
supervise any employees; that she volunteered to pass out union
free T-shirts; that Buckley and O’Dell asked her if she would
volunteer to pass out the shirts; that she was told not to pass out
the shirts to supervisors, contractors, or managers; that neither
supervisors nor managers could pass out the shirts; that she
passed the shirts out on the LCS side at the gate at 2:30, 3 or
3:30, and at 4:30 p.m.; that she was at the gate for the entire
timeframe; that employees get off at staggered times; that none
of the people who passed out shirts with her at the LCS gate
were supervisors; that the T-shirts said “Union Free” (Tr. 366);
that she told the employees to make sure to vote; that regarding
which employees took shirts and which did not, she did not
keep track of this, she was not asked to keep track of this, and
she was not asked to report this; that she did not see any super-
visors passing out T-shirts; that she was at the LCS gate both
times Austal passed out T-shirts; and that she has a white
hardhat.
On cross-examination, Epperson testified that Jeff Garl was
one of the individuals who passed out T-shirts the first day at
the LCS gate; that she believed that he was there the whole time
she passed out shirts but he was not there both days; that Tracy
Hughen was there the first day passing out shirts; that Buckley

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
told them what to do; that she took it upon herself to tell the
employees to vote; that the T-shirt indicated to vote no in that it
stated, “Union Free Proud to Be” (Tr. 372); that on the date she
passed out the shirts, she owned a white hardhat at the time;
that the hardhat had her name on it and Austal; that when su-
pervisors were leaving through the LCS gate they would be
shuffled on through; and that twice a day she would attend
meetings where supervisors and at least one other nonsupervi-
sor was present.
Subsequently, Epperson testified that she probably was not
wearing her white hardhat in that while she was supposed to
wear a hardhat inside the gate, her work location—the site ser-
vice trailer—was 10 steps from the gate, and if she had to go
out the gate, she never wore her hardhat; that if she had her
hard hat when she was passing out shirts in compliance with the
rule to have a hardhat on inside the gate, it was laying on the
table because it would fall off her head when she bent over to
get shirts out of the boxes; that she would have taken it off
when she distributed shirts on both occasions; that some of the
men who handed out shirts with her were wearing their
hardhats but she did not remember the colors; that there were
no supervisor hardhats among those handing out shirts; and that
she did not recall Garl wearing a hardhat when he handed out
shirts.
Hughen testified that she was hired by Austal in February
2008 (at the time her last name was Mathis) and was a senior
supply agent in March 2008; that as a senior supply agent she
did not supervise any employees; that she passed out Austal
Union Free T-shirts at the gate at the behest of her boss, Kirsten
Marks (now Bradford) who told her that supervisors could not
pass out the shirts; that supervisors could not be in the area
where the shirts were being handed out; that she passed out the
shirts at the LCS gate with Epperson, who told her just to ask
the employees if they wanted a free T-shirt; that she was at the
LCS gate from 2:30 to 5 p.m.; that several other people passed
out the shirts with her and Epperson; that she was only sup-
posed to give the shirts to Austal employees; and that she did
not keep track of, she was not asked to, and she did not report,
who took the shirts.
On cross-examination, Hughen testified that she handed out
shirts on one occasion; that Jeff Garl handed out T-shirts at a
different gate; that she never saw him at the gate where she was
handing out shirts; that she is a salaried employee; that she is a
purchasing agent and for purchases under $100,000 she can use
her best judgment to decide which vendor to use; that in March
2008 she was making the smaller buys; that there were about
eight laborers passing out shirts when she was at the gate; and
that “they had on hard hats at—or just work clothes. They
weren’t office staff.” (Tr. 408.)
Subsequently, Hughen testified that her office is outside the
gate and every time she goes inside the gate she has her
hardhat; that she did not believe that when she passed out the
shirts inside the gate that everybody that was passing out the
shirts had their hardhat on; that the rule is as soon as the indi-
vidual comes inside the gate they are supposed to have their
hardhat on; and that there was a picnic table at the gate and
those who were handing out shirts may have put their hardhats
on the table.
James McNair Jr. testified that he has worked at Austal for
about 3 years; that he is a ship fitter; that he went to HR, O’Dell
told him about the Austal T-shirts, and he volunteered to pass
out the shirts; that he passed out the shirts at the LCS gate at
2:30 and 3:30 p.m. after he was done with his shift; that there
were about 10 to 15 guys passing out the shirts at the gate; that
he did not see any supervisors passing out the shirts; that he did
not keep track of who took a shirt and who did not; and that he
was finished passing out shirts about 3:45 p.m.
On cross-examination, McNair testified that he got the shirts
from HR, which is outside the gate, at 2:30 p.m. before he had
clocked out; that he clocked out when he left at 3:45 p.m.; that
he passed the shirts out on company time; that after he brought
the shirts to the gate at 2:30 p.m. he went back to his work area
for 30 minutes to get his tools and clean up; that he saw super-
visors leaving work the same time as the employees; that he did
not give a shirt to any supervisor; that his supervisor left work
that day at 3:30 p.m. and he went through the turnstiles while
the shirts were being passed out; that he and Tom Godwin went
to HR to see about getting some T-shirts done up to respond to
the T-shirts handed out by the Union; that O’Dell told them,
“Just see what we can do” (Tr. 429); that the shirt he passed out
indicated “Union Free, Proud to Be”; that he passed out the
shirts 1 day; and that he did not pass out the gray T-shirts.
Subsequently, McNair testified that he did not have to put his
hard hat on until he entered the shed where the boat is being
built; that when he distributed the T-shirts the 10 to 15 other
guys who were distributing T-shirts with him may have had
their hardhats on; that he puts his hardhat on at his locker; that
some people take their hardhats home; and that the day they
passed out gray T-shirts he left work too late to get one.
Godwin testified that at the time of the trial herein he had
worked for Austal for 2-1/2 years and was a welder fitter; that
in March 2008 he was a fitter trades assistant; that he has only
worked on the LCS; that in March 2008 he did not supervise
employees; that in March 2008 he volunteered to and did pass
out Austal Union Free T-shirts; that he went to HR with
McNair to find out about getting some antiunion stuff and they
were told that such T-shirts would be made available; that he
passed out the Austal shirts at the LCS gate when he came in to
work on the night shift; that he did not know that the shirts
were going to be made available that day and he saw the boxes
when he got to work; that he did not think that he was on the
clock when he passed out Austal’s shirts; that he passed out the
shirts right around the shift change at 2:30 p.m.; that he never
saw a supervisor passing out shirts with him; that he did not
keep track of who took the shirt and who did not, and he was
not asked to report this; and that a supervisor told him that he
could not pass out buttons during his working time.
On cross-examination, Godwin testified that he thought that
he passed out the Austal shirts two times; that there was a gray
shirt and a blue shirt; that he passed out the shirts just inside the
turnstile; that he knew that there were no supervisors passing
out shirts because “there . . . [were] a lot of people out there
with their hard hats on” (Tr. 441); that he was on the clock
when he spoke with O’Dell about passing out some buttons;
that he asked his supervisor, Jeremy Johnson, to see O’Dell;
that he found out the shirts were being distributed when he
AUSTAL USA, LLC 379
came into work and he stopped and, without being asked, start-
ed handing out T-shirts; that supervisors could have been com-
ing on and off shift while he was handing out T-shirts but at the
time most of the supervisors, instead of going through the turn-
stile went through a midgate; that there were people from the
administrative office handing out shirts; that it took him and
McNair a total of 15 minutes to leave their workstation to talk
to O’Dell about the buttons; that he could not remember if any-
one, including himself, was wearing a hardhat when they were
passing out shirts; that he did not remember if anyone was
wearing a white hardhat; that they were instructed not to allow
supervisors in the area where shirts were distributed; that office
personnel wear white hardhats; that he did not remember seeing
anyone with a white hardhat; that he wore a button that said,
“Just Say No to Union” (Tr. 452); and that a supervisor, Joe
Hymel, told him that he could not leave flyers on break tables.
Connolly, who was hired by Austal in February 2008 as the
expatriate administrator in the HR department, testified that in
March 2008 she did not supervise any employees15; that she
agreed to and did pass out Austal Union Free T-shirts soon after
she started working at Austal; that to her knowledge no super-
visor passed out the shirts; that O’Dell told her that supervisors
were not to pass out the shirts; that O’Dell conducted several
supervisor meetings around that time where it was mentioned
directly to supervisors that they were not to pass out T-shirts;
that she passed out the shirts at the gate next to the commercial
or HFS shed at shift change which began around 2:30 p.m. and
ended at 4:30 or 5:30 p.m.; that she passed out shirts for about
20 minutes; that other people passed out shirts with her; that
she did not keep track of who did or did not take a shirt; and
that she was not asked to report back to anyone regarding those
shirts.
On cross-examination, Connolly testified that she knew that
O’Dell told supervisors at meetings that they were not to pass
out the shirts because she had access to O’Dell’s calendar and
from talking to O’Dell; that she was not at the meetings so she
could not say with certainty that supervisors were told by
O’Dell that they were not to be in the area when Austal’s shirts
were being passed out; that she believed that O’Dell did tell the
supervisors; that there were at least four people passing out
shirts with her and one of them was Susan Sime, who is a
member of HR; that she could not be certain that no supervisors
were present when she passed out shirts because she did not
know any supervisors; that she did not attend supervisory meet-
ings; that she was a salaried employee at the time; that she left
her position as the expatriate administrator in the HR in Sep-
tember 2008; and that this position was then dissolved, with the
HR manager, Sandra Koblas, dealing with any immigration
issues and the recruitment administrator, Jane Heath, dealing
15 Connelly testified that she was responsible for taking care of Aus-
tal’s expatriate employees that were at Austal from its shipyard in Hen-
derson, Australia, and that included their immigration paperwork, or-
ganizing their accommodations and vehicles and any other administra-
tion once they arrived on site in Mobile.
with any in-house issues that the expatriates still working at
Austal in Mobile have.16
Clements, who was a structural foreman in aluminum pro-
duction at Austal in March 2008, testified that he did not partic-
ipate in passing out Austal Union Free T-shirts at that time; that
the LCS is a stealth trimaran vessel, the first of its kind ever
built for the United States Navy; that the HSF is a high-speed
personal vehicle ferry, catamaran, used to cut down travel times
between the Hawaiian islands; that he was aware that he was
not allowed to pass out the Union Free T-shirts in that he and
others were addressed by a HR director and told that they could
hand these shirts out to supervisors and salary position employ-
ees but not to hourly employees; that he never participated in
the distribution of the Union Free shirts; that employees typi-
cally have their hardhats off when they are coming in and out
the gate; that in March 2008 his hardhat was white; and that
foremen, supervisors, coordinators, administrative employees,
quality inspectors, and visitors wore white hats.
On cross-examination, Clements testified that he did not
know what date O’Dell told him and others that they could not
pass out the Union Free shirts; that the meeting was held in a
meeting room in the production/human resources trailer near
O’Dell’s office; that if he saw a safety issue or problem he
would stop it or notify the person responsible for the issue; that
he testified that people going out the gate would not have their
hard hats on; and that he did not have an opportunity to observe
the T-shirt distribution at the gates.
Lindley testified that she was aware that sometime in March
2008 Union Free T-shirts were passed out at the gates; that she
did not pass out any of the shirts; and that she was told by
O’Dell that she could not pass out the shirts because she was a
supervisor. On cross-examination, Lindley testified that she
supervised Nick Robertson, who was her benefits administra-
tor; and that her office is in the same trailer as O’Dell and Con-
nolly.
O’Dell testified that union free T-shirts were distributed pri-
or to the Board election; that supervisors were absolutely not
involved in that distribution; that he had meetings with the
supervisors twice and made it very clear that they were not to
hand them out, they were not to be in the area during distribu-
tion, and they would be disciplined if they did; that he had two
administrative people on each side just to watch the shirts and
keep those types of incidents from happening; that not one time
did they come back and say a supervisor was there handing
shirts or even watching or looking at what was going on; that
Respondent’s Exhibit 5 is a notice he had administrative assis-
tant Robertson post; and that Austal has 8 to 10 bulletin boards
where notices to employees are posted. Respondent’s Exhibit 5,
which O’Dell sponsored, and which is on Austal letterhead,
reads as follows:

To all employees:

Austal will be making shirts available this afternoon as
part of our campaign asking you to vote “NO” on Election
16 Connolly explained that when O’Dell left Austal his position was
not filled. Rather, Austal has a vice president of HR and an HR manag-
er.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
Day. Accepting or wearing these shirts is strictly volun-
tary. You can accept or decline the shirts as you wish. Nei-
ther acceptance nor refusal will cause reprisals or rewards,
no supervisor will be involved in distributing the shirts,
and no records will be kept of who accepts or declines a
shirt. The same is true of buttons and stickers that will be
made available to employees.
Thanks for your consideration.
3-19-08
Jeff O’Dell
Human Resources Director

O’Dell signed Respondent’s Exhibit 5. He testified that he did
not know the names of the people who accepted the T-shirts;
that he did not ask; and that he did not keep any such records.
On cross-examination, O’Dell testified that employees and
supervisors coming in for the afternoon shift, which started at
3:30 p.m., on March 19 would not have seen the notice regard-
ing Austal’s T-shirts before they entered the facility; that Ad-
ministrative Assistant Buckley and Susan Sime were his ob-
servers, with one stationed at one site and the other stationed at
the other site to make sure that everything was proper with the
T-shirt distribution; that Buckley and Sime were instructed to
tell any supervisor to leave the T-shirt distribution area imme-
diately; that he did not want supervisors observing the passing
out of T-shirts and he was told that this did not happen; and that
Buckley was supposed to stay at the LCS gate the whole time
and if she left the LCS area to go to the super ferry area that
would have been a violation of his directions.
Westmorland testified that he is a supervisor over the outfit
department at Austal; that he was hired in 2005; that he recalled
that in March 2008 there were employees passing out “union
free and proud to be” (Tr. 758) T-shirts; and that he did not
ever pass out any of those T-shirts. On cross-examination,
Westmorland testified that he was aware that Austal was pass-
ing out T-shirts because the Company asked for volunteers
among the employees and a couple of guys on his crew volun-
teered; that his employees let him know that they were going
down to hand out the T-shirts; that it was in the afternoon and
he did not know if his employees clocked out when they left to
hand out the T-shirts; that he leaves work at 5 p.m.; that his
employees, including Amos Miller—who wore a gray hardhat,
came back to work after they passed out the shirts; that at the
time he wore a white hardhat; and that he did not attend any
meeting with O’Dell regarding the shirts before the shirts were
distributed.
Subsequently, Westmorland gave the following testimony:

JUDGE WEST: Did you have an understanding with re-
spect to whether you should or should not be present when
the “union free” T-shirts were distributed?
THE WITNESS: I personally, as a supervisor, I did not
want to get involved with what was going on because I did
not know enough about the situation, so I kind of stayed
away from it.
. . . .
JUDGE WEST: Did anyone in management tell you that
you should not be involved in any way?
THE WITNESS: With the union stuff?
JUDGE WEST: With the distribution of the “union free”
T-shirts.
THE WITNESS: I don’t remember that; I really don’t. I
just know I didn’t have anything to do with it, but they
did—I guess they put out a volunteer list because I had a
couple of guys that actually volunteered to go down and
do it.
JUDGE WEST: When you left the shed and go through
the gate, which gate do you normally go through?
THE WITNESS: I go out the one on the LCS side.
. . . .
THE WITNESS: Because I work in the LCS shed.
JUDGE WEST: That’s the turnstile gate?
THE WITNESS: You got . . . a turnstile and then you got
one that goes out to the main road and you got one that
goes over to the HFS side.
JUDGE WEST: Which one do you—
THE WITNESS: I go out the LCS side.

. . . .

MR. MCCLUE: Just for the record, is that the main road
sir?
THE WITNESS: That’s the main road. [Tr. 761 and
762.]

With respect to the distribution of the Austal union free T-
shirts, Crawley testified as follows:

JUDGE WEST: . . . . You worked for Austal as a super-
visor in March of 2008?
THE WITNESS: Yes, sir.
JUDGE WEST: . . . . Were you aware that at some point,
perhaps on two different occasions, “Austal union free” T-
shirts were distributed to employees?
THE WITNESS: Yes, sir.

. . . .

JUDGE WEST: . . . . Did you ever attend any meeting
with a member of management where you were advised as
to what you should or should not be doing when those T-
shirts were distributed?
THE WITNESS: I was at a meeting that they called all
of us, all the supervisors into, yes, sir.
JUDGE WEST: Who was in charge of the meeting, who
spoke?
THE WITNESS: Jeff O’Dell.
JUDGE WEST: What did O’Dell say?
THE WITNESS: I can’t remember everything he said
sir.
JUDGE WEST: Not everything, but in general what was
Mr. O’Dell speaking about?
THE WITNESS: He was generally talking about what
you can say and what you cannot say.
JUDGE WEST: Okay. What you can and cannot say.
This is with respect to union activity, or a union supporter?
THE WITNESS: I’m not sure.
JUDGE WEST: Okay. Let’s focus just on the distribu-
tion of the “Austal union free” T-shirts. Did Mr. O’Dell
say anything to you while you were in that meeting with
AUSTAL USA, LLC 381
the other supervisors with respect to what you could or
could not do regarding the distribution of the “union free”
T-shirts?
THE WITNESS: I can’t remember.
JUDGE WEST: Okay. Do you remember ever attending
a meeting with other supervisors where Mr. O’Dell spoke
about the distribution of the “Austal union free” T-shirts to
employees?
THE WITNESS: Yes.
JUDGE WEST: You do remember that?
THE WITNESS: Yes.
JUDGE WEST: But you don’t remember what was said?
THE WITNESS: No, sir. [Tr. 767 and 768.]

Logan testified that he was aware that in March 2008 there
were some employees passing out “Austal union free” T-shirts;
that he never passed out those shirts, “[t]hat was for employees
only to pass out, no supervisors was passing none out or per-
mitted” (Tr. 778); that supervisors were told by O’Dell that
they were not allowed to pass out the T-shirts; and that “we
went to a meeting and it was for employees, if employees
wished to pass out them T-shirts, they could pass them out, but
no supervision . . . was allowed to pass them out” (Ibid).
On cross-examination, Logan testified that to his knowledge
no supervisor passed out the union shirts; that he was not there
to see who was passing out the Austal T-shirts; that he did not
know if a supervisor came through the turnstiles while the
shirts were being passed out; that none of his supervisors hand-
ed out the T-shirts; that he supervised 3 or 4 out of the approx-
imately 100 supervisors; that he worked in the HVAC section;
and that to his knowledge the Austal T-shirts were passed out
one time.
Hall testified that he was a supervisor at Austal in March
2008; that he recalled around March 2008 there were employ-
ees passing out “Austal union free” T-shirts; that he never
passed out a “union free” T-shirt at Austal; that he never passed
out any shirt of any kind at Austal; that he was told by O’Dell
that he was not supposed to pass out T-shirts at meetings with
the supervisors and management team; that O’Dell said that
they were not supposed to pass out “any kind of union, or any
kind of paraphernalia at work, it didn’t matter what it was” (Tr.
790); and that “[c]orrect” (Ibid) O’Dell “specifically told you to
not—that supervisors couldn’t pass out T-shirts.” (Ibid.)
On cross-examination, Hall testified that in March 2008 he
had around 14 employees working for him in aluminum fabri-
cation; that he worked to 5 p.m.; that he did not know if any of
his employees passed out T-shirts; that shirts were passed out at
least twice; that people talked about the shirts; and that em-
ployees were supposed to talk about sports and the union on
their own time.
Subsequently, Hall testified that the meetings of supervisors
and the management team where he was told he was not sup-
posed to pass out T-shirts or any other kind of paraphernalia
were held basically every week; and that it was not a specific
meeting held on or about the time the “Austal union free” T-
shirts were passed out. Hall then testified as follows:

JUDGE WEST: Okay. Did you attend, on or about the
time that the “Austal union free” T-shirts were passed out,
did you attend a meeting where O’Dell spoke specifically
about the role you should not be playing regarding the dis-
tribution of those T-shirts?
THE WITNESS: I wouldn’t say it’d be anything specif-
ic, you know, a meeting specifically about that. It would
have basically been in general, like a union update—
JUDGE WEST: Okay.
THE WITNESS: —for that meeting.
JUDGE WEST: So in this general meeting on or about
that time, do you have any specific recall of Mr. O’Dell
saying anything specific about the distribution of the
“Austal union free” T-shirts?
THE WITNESS: Not specifically about the shirts.
. . . .
THE WITNESS: It was pretty understood that we
couldn’t, you know, distribute stuff like that—
. . . .
THE WITNESS: —as far as flyers or whatever. [Tr. 796.]

General Counsel’s Exhibit 14 is an Austal Record of Warn-
ing to Slay dated “3/21/08.” Under “Reason for warning” the
following is typed: “This notice serves as a documented verbal
warning for excessive absenteeism. Further absenteeism may
result in a written warning up to termination of employment.”
Jackson, who Respondent admits was a supervisor at the time,
signed the warning.
Slay testified that on March 21, 2008, she observed her su-
pervisor, Jackson, selling a CD to one of the employees in their
crew; that she, Jackson, and an employee named Sharon came
through the gate a little before 6 a.m. and they went to the
morning meeting room where employees meet to discuss safety
issues and get assigned to the different work areas; that the
other employees had not arrived yet; and that Jackson told Sha-
ron that he got the CD she wanted, Sharon gave him some
money, and Jackson gave her the CD. On cross-examination,
Slay testified that this transaction occurred before the beginning
of the 6 a.m. shift; and that this was the only time she saw Jack-
son sell a CD.
Hudson testified that a few days after his March 19 meeting
with O’Dell and Crawley, Crawley heard him talking to some
employees about the Union; that Crawley told him, “You know
what Jeff O’Dell said, you talk about the union and he wouldn’t
hire you, anyway.” (Tr. 248); and that there were four or five
other employees present when Crawley made this statement in
the break room. On cross-examination, Hudson testified that
there were a few other employees around when Crawley spoke
to him but he did not believe that they heard what Crawley said.
Crawley gave the following testimony:

Q. Now, let me just ask you flat out, you’ve been ac-
cused in this matter of impliedly threatening an employee
that you would not hire a union supporter. You ever done
that?
A. No, sir.
Q. Did you ever do that to Carl Hudson?
A. No, sir. [Tr. 765, with emphasis added.]

On March 25 Slay was terminated. General Counsel’s Exhib-
it 16 is a statement signed by Jeremy Eddins. It reads as fol-
lows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382

STATEMENT FORM
. . . .
Persons Present: Stephanie Pate, Claudel Mack, Carolyn Slay,
Jeremy Eddins
. . . .
SUBJECT: Termination of Carolyn Slay

At approx. 4:15 pm, I received a call from Stephanie
requesting that I bring Carolyn Slay to the H.R. trailer.
Once all three of us arrived (Carolyn, Claudel, and my-
self), Stephanie informed Carolyn that she was witnessed
(by a couple of personnel) sleeping during production
hours. Stephanie informed Carolyn that this was a severe
offense that has happened to other employees as well. This
offense has led to the termination of these employees and
has also led to Carolyn’s termination. Stephanie then told
Carolyn that as of today she is not longer employed by
Austal. Carolyn then said that she felt that his was a set-
up. Carolyn stated that Austal had been trying to fire her
for quite some time and finally done it. Stephanie then
asked for Carolyn’s side of the story but Carolyn said “you
already fired me.” Stephanie then said “I just wanted you
to be able to give your side of the story.” Carolyn refused
and said “you already fired me.” Carolyn asked who the
witnesses were but Stephanie said she could not give that
information out. Stephanie then left the room to get a
change of status form. During this time Carolyn made sev-
eral calls. Once Stephanie returned, she asked again for
Carolyn’s side. Carolyn said she was not asleep and was
watching the supervisor look at her. Carolyn said she did
not hear the supervisor because she was wearing earplugs.
Carolyn stated that she could not have been caught sleep-
ing because she was working with Dion Mixon the whole
time. Claudel Mack then escorted Carolyn to the vessel to
get her tools. He then escorted her to the gate.

With respect to her termination on March 25, Slay testified
that she came to work at 6 a.m. that day; that her welding ma-
chine was not working so her supervisor, Jackson, placed her
with Mixon, who is an electrician, pulling cable; that she was
working in block 14 of the LCS ship; that after they pulled the
wire into the unit, Mixon attached the wiring; that she held the
light for Mixon; that since the unit to which Mixon was attach-
ing the wire was so close to the floor, she had to sit on the floor
on a piece of fire cloth and Mixon sat next to her on a stool;
that it was cold that day so she had on a sweatshirt with a hood
on it; that she had the hood on her head and her hardhat, with
union stickers, on top of that; that she was wearing safety
glasses and earplugs; that she took her safety light off her hat
and she held it in her hand so that Mixon could see what he was
doing inside the unit; that she had her arm propped up on the
door of the unit which was located right in front of her; that
they pulled more cable and then Mixon would sit on the stool
and work inside the unit while she shinned her light inside the
unit; that she asked Mixon if he noticed how many supervisors
and Navy personnel had been walking in and out of their work
area all day; that she knew they were supervisors because they
all had on white hardhats; that one supervisor stood next to her
and Mixon for a long time watching them; that at the end of the
day her supervisor, Jackson, came to her worksite and told her
and Mixon to start cleaning up their hold so that they could go
into another hold and help the rest of the crew clean up their
hold; that she put her tools away and when she came back to go
into the other hold Eddins and Mack were standing there; that
Eddins told her that he had to take her to HR; that Mack did not
accompany them to HR; that in HR Pate came in and asked
where Mack was; that Pate said that they needed to wait for
Mack, and she left the room for 5 to 10 minutes; that Pate came
back into the room and when Mack arrived Pate talked about
the sleeping policy on the company job; that Pate said to her “I
have three witnesses say that you were sleeping on the job” (Tr.
151); that she told Pate that she had three witnesses that say
that Pate’s three witnesses are lying because she was not sleep-
ing on the job; that she asked for the names of Pate’s witnesses;
that Pate said that she could not divulge their names; that

she [Pate] said, I just want to get your side of the story. I said,
[w]ell why do you want to get my side of the story? You told
me I was terminated, so it don’t matter what my side of the
story is.
She said, [w]ell, we just want to understand what hap-
pened. And that’s when she starts in with, [y]ou was sit-
ting in a stool with your head in your hand. I said, No, I
was sitting on the floor with a light in my hand. And then
she kept saying that I was sitting on the floor [sic] with my
head in my hand. I kept saying, No, I was sitting on the
floor with my—with a light in my hand and a hood on my
head.
She said that—she went back to saying that the three
witnesses said I was sleeping, and she still wouldn’t tell
me who they were. She said, Well, you don’t remember
anybody putting their hand in your face? I said, No. They
couldn’t get close enough to put their hand in my face, be-
cause the unit was right in my face. She said, Well, you
don’t remember anybody shaking you or waking you up: I
said, Didn’t nobody touch me. She said, Well, didn’t any-
body say something to you? I said, If they did, I didn’t pay
them any attention, because it’d be so noisy in the hold
and we have on earplugs, so I don’t pay anybody no atten-
tion except for the person I’m working with. [Tr. 152.]

Slay further testified that other people from other crafts were
working in the hold and there was a lot of noise in there; that
during her meeting with Pate she told Pate that O’Dell was after
her (Slay’s) job, everybody knew that O’Dell was after her job,
she knew what was going on, this conversation is over, and she
walked out; that she and Mixon worked in the hold all day; that
at no time during the day did anybody wake her up and tell her
that she was sleeping and she had to go to HR; that during that
day no one could kneel in front of her face; that employee Jar-
vis Griffin was in and out of the hold and he tapped her on the
shoulder and spoke with her; that employee Rodger Williams
came down in the hold twice that morning and just before lunch
he asked her if she needed anything; that she was not aware that
people said that she was sleeping at 1:30 p.m.; that it was
strange that it is alleged that she was sleeping at 1:30 p.m., no
one woke her up, and they let her stay in the hold until the end
AUSTAL USA, LLC 383
of the workday, 4:30 p.m.; that sleeping on the job is a safety
hazard and she considered it part of her job that if she saw
somebody engaged in a safety hazard, she would bring it to
their attention; that she had a sticker with her name on it on her
hard hat; that her supervisor, Jackson, wrote in his book where
the employees were assigned to work; that she was not sleeping
on March 25; that she was not sitting on a box fan on March
25; and that the fans are used to blow air into a hold or pull
smoke out of a hold.
On cross-examination, Slay testified that on the day of her
discharge she was working in hold B-14 on the LCS; that to get
into the hold she had to climb down a ladder; that the employ-
ee’s ID badge is hung outside the hold so it can be determined
who is working in the hold; that she pulled cables and held a
light for Mixon on the day of her discharge; and that throughout
the day people passed through the area they were working in to
go below decks.
With respect to disciplinary action taken by Respondent in-
volving other employees sleeping on the job, the General
Counsel introduced a number of exhibits. General Counsel’s
Exhibit 21 is a position statement of Respondent dated April
21, 2008. As here pertinent, it indicates the following:

Ms. Slay is hardly the only employee to have been dis-
charged for sleeping, Indeed, Austal has discharged other
employees for sleeping, including several in the days and
months immediately preceding Slay’s discharge. For ex-
ample, Chris Arnold was discharged more than one year
before Slay (1/9/07); Curtis Williams was discharged more
than seven months before Slay (8/2/07); Marquise Parker
and Dustin Allen were discharged February 22, 2007;
Chinda Xayaphay was discharged February 26, 2007; and
Greg Nolte was discharged March 18, 2008. All were dis-
charged for sleeping on the job before Slay’s March 25,
2008 discharge. . . . . Consequently, Slay was treated ex-
actly the same as these employees who committed the
same offense . . . .

General Counsel’s Exhibit 22 is a “RECORD OF VERBAL
WARNING,” dated July 17, 2007, to employee Dustin Moore,
which indicates (a) that it is for sleeping and (b) “[a]s I was
instructing class yesterday Dustin continually fell asleep. Even
after I woke him up a few times he continued to fall asleep.
Finally, I just sent him home for the day. this is an attempt to
correct his attitude.” General Counsel’s Exhibit 23 is a
“RECORD OF WARNING,” dated August 30, 2007, to em-
ployee Reginald Malone which reads “[s]leeping during work
hours. Sent home for remainder of day and to report back to
work at 06:00 hours on 31 Aug, 2007.” General Counsel’s Ex-
hibit 24 is a “RECORD OF WARNING,” dated July 21, 2007,
to employee Sam Brown which indicates “Sam was caught
sleeping in Block 6 @ 9:50 am. . . . .” General Counsel’s Ex-
hibit 25 is a “LAST CHANCE AGREEMENT,” dated July 26,
2007, to, employee Samuel Brown which, as here pertinent,
indicates “[i]n order to continue your employment with Austal,
the following conditions must be met: You must be productive
while you are at work. This means no sleeping or loafing on the
job. . . . .” General Counsel’s Exhibit 26 is a “RECORD OF
WARNING,” dated June 25, 2007, to employee Kelly Yelder
which indicates “Kelly was found sleeping in BLK 17A. This is
not the first incident of this nature. . . . . Kelly is given a 3 day
layoff beginning today. Further offense will result in termina-
tion.”
General Counsel’s Exhibit 27 is a handwritten statement of
Pate, dated “3/25/08” which reads as follows:

After speaking to all the witnesses, I called Jeremy
Eddins to escort Carolyn Slay up to Human Resources.
Once Claudel Mack joined us in my office I told Carolyn
that we had received notice that she had been seen sleep-
ing in block 14 of the LCS around 1:30 that afternoon. I
told her there were three witnesses who all claimed to
have seen her. She said she was not sleeping and wanted
to know who was accusing her. I told her I could not dis-
close witness information. She said, “Yes you can and I
need to know who is accusing me of sleeping.” I told Car-
olyn that because we had three witnesses who all saw her
sleeping, her employment at Austal was ending as of to-
day. Carolyn said her employment was ending out of retal-
iation for her filing an EEOC and because she is for the
union. I told her I had no knowledge of her EEOC charge
and she was being disciplined in the same manner as other
employees who were caught sleeping. She said, “No, you
have always treated me differently.” I said, “No, you are
being treated exactly the same.” She said, “OK.”
Jeff O’Dell called me into his office to ask about an-
other employee situation while I was at the printer getting
a COS [change of status] form.
Upon returning to my office I asked Carolyn that if she
was not sleeping as she had stated, what was she doing.
She said she was sitting down with her head propped up
and she was cutting cable. She had stopped until Dion was
done and was waiting on him in order to continue work-
ing. Carolyn said that Dion was working directly next to
her. I told Carolyn that the witnesses had stated that Dion
was working on something else and could not see her with
the way her head was positioned. Carolyn stated the com-
pany was just waiting for her to do something so they
could fire her. She stated that Jeff O’Dell was after here
job and had supervisors following her just waiting for her
to do something. I said, “Carolyn you just said you
weren’t doing anything”. She said, “No I wasn’t doing an-
ything and you already said I was fired.” I told Carolyn I
was trying to understand from her point of view what had
happened. She said she saw the supervisors in there but
did not pay any attention to them and that she saw one of
them standing in front of her because she saw his dirty
boots. I told her that the supervisor stooped down in front
of her face. She said he could not have because she was
sitting on the floor and Dion was sitting next to her.
She said, “You said you have witnesses so go talk to
them.” I said OK, [and] asked Claudel Mack if he had the
paperwork he needed. He said, “Yes,” and everyone got
up and left the office.

Frank Christopher Tindle testified that on March 25 he was a
supervisor in Austal’s structural fire protection department
supervising 10 to 12 employees; that his department deals with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
any issue to protect against fire; that before March 25 he did
not have any contact with Slay; that on March 25 he was going
to block 14 to check on two of his workers, he climbed down a
ladder, and he saw an employee sitting on what he assumed to
be a 5-gallon bucket; that it could have been about 1:30 p.m.;
that the individual on sitting the bucket had “their face on their
hand, with the elbow on the knee” (Tr.514); that he “noticed
that there was the head bobbing, . . . [s]he was sleeping” (Ibid.);
that he watched for a few minutes and he knelt down to see if
he could see her face; that he could not see her face, and she
had a hoddie on; that she did not respond to him kneeling down
and looking at her face; that while he could not see her face
when he knelt down, it did not follow that she might not have
been able to see his face because “she would have been able to
see my face because mine wasn’t—hers was partially covered
with the hoodie (sweatshirt hood) on. . . . She had a hoodie on,
see, and I couldn’t—I mean, I couldn’t tell you what she looked
like” (Id. at 516); that he knelt down to tell if her eyes were
closed or not and he could not tell; and that he then “watched
for—I’m not sure how much longer it was, but then another
supervisor came up and asked me what was going on with that,
and I said, [i]t looks like they’re sleeping” (Id. at 516 and 517).
Respondent’s attorney then elicited the following testimony:

Q. All right. Let’s stop there for a moment then. When
you started to describe that you bent down or kneeled
down, did you bend down or kneel down into the employ-
ee’s line of vision?
A. Correct.
Q. Okay And so if I understand your testimony cor-
rectly was the witness—excuse me—the employee having
her head in her hand and her head bobbing. You leaned
down to see if you could make eye contact.
A. Correct.
Q. Did the employee react to you in any way?
A. No. [Tr. 517.]

Tindle then gave the following testimony:

JUDGE WEST: I’m sorry for interrupting, but it’s your
testimony that you could not see her eyes. Is that correct?
THE WITNESS: That’s correct. I couldn’t tell if they
were open or closed.
JUDGE WEST: Okay. But you couldn’t see them. I
mean, you couldn’t actually—
THE WITNESS: No, sir.
JUDGE WEST: No. All right. If you couldn’t see her
eyes, how was—how were you in her line of vision?
THE WITNESS: Well, would you like me to give you a
demonstration? I mean, it’s hard for me to describe. She’s
like this, and I was about two to three feet away, and I
knelt down to where I was—would consider it to be eye
level. I mean, I actually knelt down.
. . . .
And looked, to try to see the face. She did have safety
glasses on and the hoodie over, and I just couldn’t tell
whether they were actually open or not, but if—I believe
that if her eyes would have been open, then she would
have saw [sic] me, because I was right there, this far away.
JUDGE WEST: For the record, this far?
THE WITNESS: two to three feet. [Id. at 517 and 518.]

Tindle further testified, “I’ve done it before at the house. I
mean . . . you’re just nodding off, and you’re catching yourself”
(Id. at 519); that the other supervisor who came up was Steve
Richerson; that Richerson asked him, “[W]hat’s going on with
this person. And I said, I believe they’re sleeping. And he
agreed” (Ibid. with emphasis added); that they stood there and
talked and as they were leaving Chief Hartley, who is a chief in
the United States Navy and not employed by Austal, ap-
proached; that after a few minutes he left the area to talk to his
foreman to find out who the involved electrical foreman was;
that he found out it was Mack; that he did not know the em-
ployee’s name so he went back to the block and the person was
up and walking, “[s]he had her hoodie off, so—had the hard hat
back on. And then when I came back out, I saw the badge on
the board. I got her name, and I took it to Claudel Mack” (Id. at
521 and 522); and that when an employee works in a hold or
void, they leave their badge on a board outside the void so in
case of an accident, others would be able to determine who is in
the void. Tindle then gave the following testimony:

JUDGE WEST: . . . . You said when you went back, you
saw Carolyn [Slay].
THE WITNESS: Yes.
JUDGE WEST: And she had her hoodie off and her hard
hat back on.
THE WITNESS: Right.
JUDGE WEST: Okay. To me, that means that when you
saw her the first time, she had the hoodie but no hard hat?
THE WITNESS: Well, I don’t know if she actually had it
on. She could have had the hoodie pulled over the hard
hat, but when I came back, it was just a hard hat showing,
without the hoodie on
. . . .

So I wouldn’t want to say that she didn’t have it on. I
couldn’t see it the first time.
JUDGE WEST: The hard hat, doesn’t it have a brim or
something in front?
THE WITNESS: Yes. But like I said, the hoodie—

. . . .

. . . . was pulled all the way down.
. . . .

. . . so it would have covered it. [Id. at 522 and 523.]

Tindle further testified that when he saw Slay on the bucket
there was a gentleman present who he assumed was working
with Slay; that this man was down on his knees with his head in
a panel or power box where all the cables ran; that the man was
in front of Slay; that the man was talking on his cell phone with
his back toward Slay; that this man and Slay were 3- or 4-feet
apart; that he was asked to draft a statement regarding what
occurred; that no one told him what to write and no one tried to
influence him; that the person in the panel “[t]hey were actually
working . . . . [t]hey were on a cell phone” (Id. at 526); that he
overheard one side of the telephone conversation and the man
was asking someone questions; that the person on the bucket
was not holding a flashlight; that he signed the first page of
AUSTAL USA, LLC 385
Respondent’s Exhibit 6, namely an employee change of status
form for the termination of Allen on “2–22–08” for “Violating
company policy. Sleeping”; and that he believed [“I don’t actu-
ally recall this.” (Id. at 527)] that Allen was someone who he
caught sleeping in the past.
On cross-examination, Tindle testified that as a supervisor he
has the responsibility, if he saw a possible safety violation, to
stop it immediately; that while he saw an employee he believed
to be sleeping, he did not wake the employee up; that not only
did he not wake the employee up but he walked away from the
employee; that Slay was 8 to 10 feet from the ladder; that there
is a requirement that when one is on a ship one has to wear a
hardhat; that Slay was required to wear a hardhat in the area she
was working in on March 25; that he did not recall whether
Slay had a hardhat on; that he knelt down to see if he could see
her face; that he did not make any effort to move her to see if
he could see her face; that “I actually wasn’t watching them
sleep the whole time. I was trying to determine whether or not
she was sleeping. Once I determined that I thought she was
asleep, then I went to get her foreman/supervisor, so that he
could take care of the situation” (Id. at 534); that he watched
Slay for 3 to 5 minutes, then he knelt down to try to see her
face for another minute, and then he continued to watch Slay
for 1 to 1.5 minutes with Richerson; that he knew that the em-
ployee who was sleeping was in the electrical department be-
cause the guy sitting there with her had a green hat on and
green is the electrical department; that as he was getting ready
to go up the ladder Chief Hartley approached him from the
forward side of the void to his left and asked him if he saw the
same thing he saw; that Hartley approached from behind Slay;
that his talk with Hartley was very brief “[j]ust long enough
that basically he made that statement to me, and if I saw what
he saw and I said yes” (Id. at 538); that he talked with Hartley
for a minute or less; that he thought that the proper approach in
the situation he was faced with was to get the employee’s su-
pervisor; that after he finished talking with Hartley he, Tindle,
left and he believed that Richerson was still there; that it was
not necessary to wake her up; that he was pretty sure that the
employee was sitting on a five gallon bucket; that General
Counsel’s Exhibit 42 is the statement he wrote that day and in it
he wrote that the employee was sitting on a fan in front of a
pepco panel; that when a fan is turned up on end it is like a
cylinder; that the employee with his head in the panel was ask-
ing someone on the cell phone which cable hooked up to which
switch; that he was wearing earplugs when he saw Slay sleep-
ing; that when he saw Slay later she was wearing a green
hardhat; that some of the employees wear their hardhats back-
wards so the brim is toward their back; and that his conversa-
tion with Richerson was about 4 feet from Slay.
Richerson testified that on March 25 he was a step-up super-
visor on the night shift with the fitters and welders on the LCS;
that he had never had any interaction with Slay before March
25; that on March 25 Slay was sleeping in block 14 of the ship
about 1:30 p.m.; that he was on his way to check on what the
day shift had done regarding the installation of floor grate; that
when he climbed down the ladder into block 14 he saw Slay
sitting on a bucket sleeping; that “Chris was right ahead of me,
and he saw her, and then we walked over to see and looked at
her a couple of minutes, and I bent over, looked her in her eyes,
and she was sleeping” (Tr. 555); that “[s]he was sitting on a
bucket, had her arms crossed, had her head down, had a hood
over her hard hat” (Id. at 556); that her head was not moving in
any way; that he did not see her head bobbing up and down;
that he “near about got on my knees. I bent all the way over. I
could see her eyes. She had a set of, I believe, prescription safe-
ty glasses on, and her eyes were closed” (Ibid.); that he was
about 2 feet from her; that she did not react in any way to him,
and she did not say anything to him; that he asked Tindle what
he wanted to do and Tindle said, “[W]e’ll watch her a few
minutes” (Id. at 557); that they watched her for 5 or 6 minutes
and then Tindle said he was going to speak to his supervisor
and he told Tindle that he was going to speak to his supervisor;
that “we went up—went back up top to check her employee ID
badge [,which was on the board before you go down in the
tank,] to make sure who she is. I had no idea who she was. And
we got her name and all off her ID badge” (Ibid.); that a Navy
man, Chief Hartley, who walks the boat also saw Slay; that he
did not have a conversation with Hartley; that there was a guy
working on an electrical panel right dead in front of her, and the
guy was facing sideways to her; that the guy turned around
while he was there, looked at Slay, looked up at him and Tin-
dle, and then just continued working; that the guy was not hold-
ing any kind of flashlight or anything; that he talked to his su-
pervisor and later Tindle called him and said that they wanted
them to write out a statement; and that he wrote out a statement
about he occurrence.
On cross-examination, Richerson testified that Tindle went
down the ladder into the hold right ahead of him, we hit the
deck about the same time; that he and Tindle together got the
information off Slay’s badge before he went to his supervisor;
that he wrote her name down and he believed that Tindle did
the same; that they then went to their supervisors; that about 1
hour later Tindle called him to come write a statement; that
employees come in for the night shift about 3:30 p.m.; that he
was at Austal at 1:30 p.m. to get the turnover (what has been
done and what needs to be done) from the day-shift people; that
when he looked into Slay’s face Tindle was standing right be-
side him; that Tindle was looking at him when he was looking
at Slay; that he looked at Slay’s face just enough to tell that she
had her eyes closed; that when he got up he asked Tindle what
they should do; that he told Tindle that her eyes were closed;
that Tindle then said, “[w]ell, we’ll watch her for a minute or
two. And then he said, you go talk to your supervisor and I’ll
go talk to mine” (Tr. 564); that safety on the job is the most
important thing; that if he sees a safety violation he is supposed
to immediately stop it and correct the problem if he can; that
they could have corrected someone sleeping by waking them up
and taking them out of the hold; that the Navy guy was there
when he left the hold; that the Navy guy’s hardhat was white;
that he believed that Tindle’s hard hat was green but he was not
sure; that Tindle’s hat had supervisor on it; that at the time
there were about 25 people working in that space and it was
very noisy; that he was wearing earplugs that day; and that he
has been hard of hearing for 5 or 6 years.
Subsequently, Richerson testified, when asked what the guy
with Slay was doing, that “[h]e was working on an electrical
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
panel, like wiring up wires inside of an electrical panel.” (Tr.
567.)
Lindley testified that Respondent’s Exhibits 6(B) through
(K) are documents showing that Respondent terminated nine
employees between March 22, 2005, and April 2, 2008, for
sleeping.17 On cross-examination, Lindley testified that this
group of documents are all-inclusive of the terminations for
sleeping at Austal up until August 9; that those employees who
were caught sleeping and not terminated were not included in
this group of documents; that those situations where employees
were caught and were not terminated occurred “early on” (Tr.
612); that as indicated in General Counsel’s Exhibit 23, a warn-
ing was issued August 30, 2007, for sleeping during work
hours; that she would not consider August 30, 2007, “early on”;
and that at least as of August 30, 2007, someone was not termi-
nated for sleeping during work hours.
O’Dell testified that it was reported to him that Slay had
been sleeping in the ship hull; that he told the supervisor who
told him that he should put together their statements and he
wanted to know who all was in the room; that he got statements
from everyone in the room; that “[y]es he considered them”—
those statements in ultimately making the decision that he made
(Tr. 691); that Respondent’s Exhibit 73 is Tindle’s statement18;
that there was another statement, Richerson’s19; that he consid-
ered Tindle’s and Richerson’s statements in deciding what
action to take; that he was the ultimate decision maker on the
issue of termination or discharge for this incident; that he also
talked with Chief Hartley who also was an eye witness before
he decided to terminate Slay; that Hartley works for the U.S.
17 The April 2, 2008 termination was Mixon, who was the individual
who was working with Slay on Marcy 25 when she was terminated for
sleeping.
18 Tindle’s statement, R. Exh. 73 reads as follows:
Tues. 3–25–08
Somewhere around 1:30 pm I was entering into B-14 when I
turned around I saw a [sic] employee sitting on a fan in front of a
pepco panel. This person had a hoodie on and was not doing any-
thing. I stop[ped] and watched for 3–4 minutes. As I observed
[sic] this person the only movement was their head bobbing. I
neeld [sic] down to see if I could see their face. When I could not
I stood back up. At this point they still have not moved. I had an-
other supervisor come up to me & asked the employee [sic] work
for me. When I replied no he said he saw them sleeping as well
and Chief Hartley. I verified name by badge on void board Car-
olyn Slay.
Chris Tindle
Supervisor SFP/outrt
19 Richerson’s statement, R. Exh. 75, reads as follows:
I Steve Richerson fill in sup. on night shift. Went down lad-
der off of main deck to Block 14 tank top. I was behind Chris
Tindle. We both saw this lady sitting on a bucket sleeping. App.
1:30 p.m. I verified by her employee badge her name. Carolyn
Slay Elect. [Emphasis in original.]
Richerson signed the statement. Respondent’s attorney indicated that
he was not offering this statement and the statement of Tindle for the
truth of the matter asserted but rather to show what O’Dell’s was basing
his action, the termination of Slay, on.
Navy overseeing part of the construction of the LCS; and that
Hartley told him20 that

he was standing there behind who he did not know was a
male or a female because they had the hood over the top of
their head. He said that he stood there for two or three
minutes. The other two supervisors came down in the hull,
and he said that he put his arms up like this to the two super-
visors.
. . . .
A. Like what’s going on here?
. . . .
A. . . . . So he told me that he was saying—asked the
two supervisors, what’s up with this, and then I said, well,
what do you mean by that? And he said, well, for me is
this how Austal’s spending U.S. federal money, U.S. Navy
money? And I said, okay, well, what else did . . . did you
see going on. And he told me that . . . she stayed there for
about an additional three to four minutes after the other
supervisors arrived, and was there sleeping.
And they were talking very loudly. He said that he had
thrown a piece of steel or something on the ground [sic] to
try to get her to get up, and that—then I asked him, I
said—because at this point . . . through the whole Carolyn
Slay and the whole union ordeal, I mean I walked on egg
shells as to what to do with the people there—
. . . .
A. If I knew they were a union supporter, I knew that I
was going to have to deal with these types of repercus-
sions later down the road if actions were taken against an
employee, disciplinary, period.
. . . .
A. So I asked Chief, I said, Chief, are you 100 percent
certain, and will you testify, that that woman was sleeping
in that room? And he said, Yes I will, and, yes, she was.
Q. Now, did that information carry any particular
weight with you?
A. It was all the weight. I would not have fired her
based upon these two statements. [Tindle’s and Richer-
son’s.]
Q. Why not?
A. Because of just what has happened. I know that I
would have been chastised for terminating an employee
who was a union supporter, a heavy union supporter. And
the problem was that the policy had come down weeks be-
fore, a couple of months before, from Craig Percervelli
[who is Austal’ vice president of operations], that anyone
caught sleeping was to be terminated, because it was get-
ting to be an epidemic on the ship.
Q. Okay. . . . .So by your description you were cau-
tious with your approach here?
A. Absolutely.
Q. Now you’re aware, aren’t you, Mr. O’Dell, that
there have been other employees who have been terminat-
ed for sleeping?
20 Respondent’s attorney indicated that this was not offered for the
truth of the matter asserted but rather for O’Dell’s knowledge and his
decision making.

AUSTAL USA, LLC 387
A. Yes sir [as evidenced by Respondent’s Exhibits
6(A) through 6(K)]. [Tr. 696–698.]

O’Dell further testified that he was aware that there were some
employees who were not terminated from time to time for
sleeping; that employees sleeping was coming up at a lot of the
operations meetings and Percervelli told him, “[e]nough is
enough, if employees are caught sleeping, they’re terminated,
plain and simple. There’s no more second chances, there’s no
more . . . putting them out for two or three days. They’re just
gone” (Tr. 699–700); and that he could not remember when this
occurred.
On cross-examination, O’Dell testified that Hartley told him
that he grabbed a piece of steel and threw it on the ground to try
to get the person up; that just he and Percervelli were at the
meeting regarding employees sleeping at Austal; that he could
not recall when the meeting occurred; that the investigation
with Slay was done through Pate; that he talked to Hartley,
Tindle, and Richerson; that Pate spoke to Mixon as far as he
knew; and that “[Pate] talked to her [Slay] whenever she wrote
her up and got her side of the story, and then we—then she and
I had a caucus, we talked, she told me what she had to say to
her, and then we went ahead and made the decision.” (Tr. 755.)
Subsequently, O’Dell testified as follows:

JUDGE WEST: So its’ your testimony that a subordinate
to you, Ms. Pate, actually interviewed Carolyn Slay before
the decision was made to terminate Carolyn Slay?
THE WITNESS: I had pretty much made my mind up
after Chief Hartley told me what he told me, because we
had not at that point—anybody that had been sleeping,
we’d not given them any opportunity.
. . . .
THE WITNESS: So out of courtesy Stephanie [Pate]
brought her up, wanted to get her side of the story. Steph-
anie came back in and told me, but, no, I’d already made
the decision.
JUDGE WEST: All right. So Stephanie Pate was not on
notice before she interviewed Carolyn Slay that Carolyn
Slay was going to be terminated?
THE WITNESS: No. [Tr. 755–756.]

Pate was not called as a witness.
Antiunion T-shirts were passed out on March 28 to Austal
employees.
Watkins testified that the second time Respondent passed out
antiunion T-shirts, the shirts were gray (GC Exh. 32) and she
saw Supervisor Ladd Mallard there passing out T-shirts; that
the shirts have “AUSTAL WORKS BEST, AUSTAL, UNION
FREE” on the front and back; and that Mallard was wearing a
white hat and he had been a supervisor for about 2 months at
that time, and he worked on the Hawaii Super freighter side of
Austal.
Gatwood testified that individuals were passing out T-shirts
to employees as they came in and left work at the turnstiles on a
second occasion; that the individuals handing out shirts had
white hardhats and khaki shirts on; that he took a company T-
shirt this time; that the person who handed him the shirt did not
say anything to him; that he has seen the person who handed
him a T-shirt around the shipyard before wearing a white
hardhat; and that he thought that the person was a supervisor.
As noted above, Epperson testified that she was at the LCS
gate both times Austal passed out T-shirts. On cross-
examination, Epperson testified that the second day it was her
and a couple of guys from the welding department or piping
who passed out the shirts.
As noted above, Godwin distributed the gray Austal T-shirt
in addition to the blue one.
Cleveland testified that the Union increased its efforts to or-
ganize Austal’s employees in late March 2008 in that additional
organizers were brought in, a house-call campaign commenced
on March 24, and union representatives visited approximately
1200 people at their homes during that time period; that the
Union sent several general information letters to the employ-
ees’ homes; that after Wayne Jenkins and Gatwood were rein-
stated the Union formed an in-house committee and Slay was
on the committee; that Slay was terminated by Austal on March
25, the day after the Union’s home visits started; that after
March 24 union representatives went to Austal’s gate just about
every morning, whether or not the Union had a handbill to give
out, so that the union representatives could greet the employees
as they went in and out of work; that on March 25 the Union
had four teams of organizers handbilling at Austal’s gate with
12 to 16 people on each team; that Slay was with the union
representatives at Austal’s gate on March 25; and that prior to
this the Union had not had so many people handbilling at Aus-
tal’s gate.
Slay testified that after she was fired she passed out material
on behalf of the Union; and that she did not pass out union
material at the gate before she was fired.
Pettibone testified that a week or two before the Board elec-
tion, O’Dell talked to him about his union activities; that at the
time they were in O’Dell’s office; that O’Dell asked him why
he would pay the Union for something that was not good for
him; that he wore a union T-shirt given to him by Slay, he wore
union pins, and he wore union stickers on his helmet; and that
Slay wore union T-shirts.
The General Counsel and Respondent stipulated that General
Counsel’s Exhibit 30 was passed out to the employees in March
2008. They did not know how or exactly when it was passed
out. The 1-page document is to all employees. It refers to a
Board election to be held sometime in the future, it answers
three questions (about union dues, decertification, and the Un-
ion contacting employees at home), and it concludes with “say
NO to the union.” One of Austal’s answers to the questions it
poses is “[i]f you don’t want to pay dues to the union, encour-
age your coworkers to vote NO. Just do so during your non-
working time (breaks and lunches, etc.).”
Petitioner’s (Union’s) Exhibit 1 is an e-mail from Connolly
to Michelle Bowden, dated “3/31/08” regarding “Austal USA
Vehicle Sale.” It reads as follows:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
Tired of using Grandma’s Pinto to drive to work?
Do you feel the need for speed?
Austal cars are for sale this week!!
10 cars are displayed at the front of the
Admin Building for you[r] viewing pleasure.
Min Bid prices are in windows
Cash or Bank Checks only—no payroll deductions.
PLUS
that “new-car-freshly-detailed-scent”
comes free with the purchase!!!
See Bria in HR before Thursday afternoon to buy

Hudson testified that he saw a notice about bidding on vehi-
cles posted on a number of bulletin boards at Austal during the
union campaign; that he looked at the cars but did not place a
bid; and that before this he did not see any such notices and
there were not any car auctions at Austal. On cross-
examination, Hudson testified that nobody was given a car; that
the auction was open to everybody; and that there was a price
tag on the windshield.
Gatwood testified that he saw a notice of the car auction
posted on the bulletin board in the break room on the Hawaiian
ferry side and by the timeclock; that when he worked at Austal
up until he was laid off in 2002 there had never been any car
auctions at Austal; that he looked at the cars outside the admin-
istration building; that he did not see any minimum bid posted
on the cars; and that he did not bid on the cars and he did not
know of anyone who made a bid.
Connelly testified that one of her responsibilities regarding
expatriates was to provide them with an automobile under the
terms of an expatriate agreement while they were in the United
States; that Austal owned all of these vehicles; that in March
2008 there were at least 12 vehicles parked in the shipyard from
expatriates who had left the United States; that if the number of
Australians or expatriates had not been shrinking, there would
not have been a car sale; that these vehicles, which were at least
7 or 8 years old, were registered, and Austal was paying insur-
ance on them; that Austal did not need them anymore because
Austal did not anticipate ramping up its expatriate work force21;
that the HR decided to sell the vehicles; that she was asked to
sell these cars in conjunction with Austal’s accounting depart-
ment, which helped HR come up with the price of the vehicle;
that the vehicles were generally priced at their trade-in value
and it was decided that the vehicles would be offered to em-
ployees first; that the vehicles were moved to a central location
in the shipyard, the administration building, and they were left
there for about a week so that employees could look at them;
that the sale was advertised by flyers which were posted and e-
mails; that the price of the vehicle was placed on one of its
windows; that in one instance only did more than one person
express an interest in the same vehicle, and in that instance one
21 Connolly explained that Austal has military contracts with the
United Stated Government and there are limits on the number of people
that can work on certain projects who are not American citizens; and
that it was decided that unless expatriate employees were in a critical
position, most of them would have to return to Australia at the expira-
tion of their contract. Consequently, the expatriate work force was
being downsized.
of the two decided he did want the vehicle after all; that Re-
spondent’s Exhibit 83 is a vehicle matrix that she maintained;
that she recalled that in March 2008 vehicles were sold to
Melanie Bachelor, James McNair, James January, Dwain Mur-
phy, Ronnie Glen, Ralph Compton, and Jay Coleman; and that
she did not have a separate document showing the vehicles
which were sold in March 2008.
On cross-examination, Connolly testified that one of the ve-
hicles was purchased by Chris Moyle, who was the fabrication
manager at the time; that another vehicle was purchased by
Chad Lurie; that she was not sure whether Lurie was a supervi-
sor; and that the vehicles had been sitting in the shipyard be-
tween 3 and 9 months.
General Counsel’s Exhibit 12 is Austal’s spring 2008 news-
letter, “Aluminum Times” which was mailed to its employees
just prior to the rerun election. There is a picture of Bob
Browning, the president and CEO of Respondent, wearing a
white hard (GC Exh. 12(a) is a color copy of the first page of
the newsletter) hat on the first page of this newsletter with a
letter to “Dear Fellow Employees.” In the letter, Browning
indicates, among other things, as follows:

In the next few days many of you will be asked to decide
whether you want a union to represent you as it relates to your
employment at Austal USA. It is a very important decision
that you’re being asked to make. If a union is elected, the very
basis upon which the employer-employee relationship is
based will change. No longer will it be permissible for you, as
an individual, to deal directly with us and negotiate the terms
of your employment, your concerns, or your working condi-
tions. By law, your right will have been handed over to the
union to do your talking for you. As you’ve learned, no one
knows how that will turn out.
. . . .
In my opinion, the best yardstick you can use to determine
working conditions in the future is by looking at how far
we’ve come from the past. Actions speak far louder than
words! As far as promises made by others, outside the com-
pany . . . talk is cheap!

One of the articles on page 3 in the newsletter is titled “Union
Free and Proud to Be!” (by Joe Rella). It reads, in part, as fol-
lows:

Employees have the right to speak their mind, no mat-
ter whether you’re for or against the union. Just make sure
you are doing so during nonworking time rather than when
you’re performing your job duties. You don’t have to
stand by quietly while the union tries to divide the work-
force. Let your voice be heard.
While you’re speaking out, we’ll do the same. It’s no
secret that we believe we’re better off without 441. Why?
We’ve made great progress in the past several years,
growing from just a few employees to over a thousand.
We’ve been able to do it because we’ve worked together
with employees to bring great high paying jobs with out-
standing benefits to Mobile. Unlike other shipyards, we
don’t have strikes and we don’t fight against each other.
Maybe that’s why we’re now among the fastest growing
shipbuilders on the Gulf Coast and we’ve done it in just a

AUSTAL USA, LLC 389
few short years. And we’ve done it without any union ask-
ing employees to pay dues, especially a union that’s had
nothing to do with our success.
We’re all looking forward to having this process end
on April 9. We hope you’ll help it end by voting “NO” on
election day. In the meantime, let’s keep working together
to secure our future.

Another article on page 3 in this newsletter is titled “Improved
Employee Parking.” This article reads in part as follows:

. . . . The current parking area leaves little to be desired. How-
ever, our long-term plans include a complete revamping of
our parking areas that will include:

Paved parking areas for all employees
Sufficient lighting for improved safety
Landscaping
Multiple entrance/exit locations
Effective drainage (no more puddles to navigate)
Clearly marked parking spaces
Effective fencing for improved security

The current employee parking lot will be paved and
remain as the parking area for Shipyard employees. Em-
ployees working in the modular facility will be parking on
the South and East side of the new facility.
Our current plans include breaking ground mid-year
and finishing construction by July of 09. While this might
seem like a long time to wait, the results will be well
worth the wait. . . .

And on page 4 this newsletter also contains an article titled
“Door to Door Prescription Drugs,” which article reads as
follows:

Mail Order Prescription Drug Service includes
maintenance drugs which are generally used to treat
chronic conditions and are taken for a period of 30 days or
longer. You can order your prescriptions by calling the
supplier, mailing in a required form or by ordering online.
The benefits of using the Mail Order Service are cost and
convenience. For example, a 90 day supply of a mainte-
nance drug will cost you the same as a 60 day supply pur-
chased at the pharmacy. You also have the convenience of
home delivery which generally takes up to 14 days; how-
ever prescriptions can be shipped via an overnight carrier
for an additional charge.
To find out if the drugs you are taking are available for
this service, please contact the customer service number
on the back of your insurance card. For more information
about this benefit contact Terri Lindley or Nick Robertson
in Human Resources.

Slay testified that on April 5 she received a newsletter in the
mail from Austal (GC Exh. 12); that she had never received an
Austal newsletter in the mail before receiving this one; that the
newsletter refer erred to improvements to the employee parking
lot, which would have been a benefit to employees; that in the
past employees had complained about the parking lot, and
sometimes when it rained she would ask a security guard to get
her car out of the lot for her because the water would be so
deep; that she believed that in November 2007 Respondent
finished the crosswalk and the walkway from the parking lot;
and that prior to this newsletter she was not aware of a door-to-
door prescription drug benefit plan and such a plan would be a
benefit to employees. On cross-examination, Slay testified that
before the crosswalk and walkway were completed employees
crossed the street en masse and walked the 1- long block either
down the side of the road in high grass or in the middle of this
busy road; and that it was a safety issue for employees to cross
and to walk down that public road.
Hudson testified that he received General Counsel’s Exhibit
12 in the mail sometime in March or April 2008 before the
Board election; that during the union campaign the employee
parking lot was so muddy at times that cars had to be pulled
out; that employees made many complaints about the condition
of the parking lot; that the improvements to the parking lot
described in General Counsel’s Exhibit 12 would have been a
benefit to employees; that he had insurance through Austal and
before he received this newsletter in the mail and saw this door-
to-door prescription drug benefit this benefit was not, to his
knowledge, included in the insurance he had; and that the door-
to-door prescription drug program would be a benefit to em-
ployees.
Gatwood testified that he received General Counsel’s Exhibit
12 in the mail in late March 2008; that before this he had never
received any newsletters from Austal in the mail; that during
the union campaign the employee parking lot had a lot of pot-
holes and standing water when it rained; that there were a lot of
employee complaints; that the article in the newsletter seemed
to address some of the complaints of employees; that if Austal
completed the proposed improvements it would have been a
benefit to employees in that “[y]ou wouldn’t get your feet wet
in the morning getting out of your car, visible lines where you
could park your car, better lighting, security, wouldn’t worry
about your vehicle getting broke into” (Tr. 302); that before
April 9 the surface of the parking lot was graded to fill in the
potholes; and that since his return to Austal in November 2007
that had not been done prior to that time.
In April 2008, before the Board election, Hudson, according
to his testimony, was talking to employees about the Union
once or twice a week while he was wearing a union shirt. Hud-
son testified that Coordinator Logan approached him by the
toolboxes; that Logan told him that the higher ups were saying
that he was causing chaos; that he asked who and he started
giving Logan names; that Logan told him that it was higher up
than the names he gave; that Logan said, “[Y]ou’re trying to get
me run out of here.” (Tr. 250); that he was wearing a union
shirt at the time and this conversation occurred around the
toolboxes; that Logan told him that he could not say who and
he should pipe down a little bit; that Logan said, “[H]e heard
higher ups talking that I was talking about the union.” (Id. at
252); and that Logan approached him two times, and both times
Logan told him to pipe down about the Union.
Logan testified that he did not have discussions with Hudson
where he indicated to Hudson anything about the Union; that he
did not ever tell employees that were talking to any other em-
ployees about the Union that they should quit; and that he never
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
told a union supporter that they should quit their job because
they were supporting the Union.
Pettibone testified that prior to the Board election employees
talked about nonwork-related matters like problems at home
and women while they were working, and sometimes (maybe
once or twice a week) he talked to supervisors about these top-
ics while he was working; and that he was never told that he
could not talk about those things while he was working.
Hudson testified that prior to the Board election on April 9,
2008, employees talked about nonwork-related matters while
they were working; that such conversations included fishing
and hunting; that supervisors participated in these conversa-
tions; that employees have been told that they could not talk
about fishing and hunting while they were working but rather
they should do that on their breaks and at lunchtime; that not-
withstanding this directive, employees still talked about non-
work-related matters while they worked; that he observed su-
pervisors talking about topics like hunting and fishing during
worktime all of the time; and that the prohibition was not en-
forced but people from the head office did not want it to occur
and they were telling the coordinators and supervisors that too
much talking was going on and not enough work. On cross-
examination, Hudson testified that he was aware that employ-
ees have been disciplined for talking when they should have
been working and it did not matter what the subject matter of
the discussion was.
Gatwood testified that before April 9 he and other employees
talked about nonwork-related matters such as hunting, fishing,
and sporting events while they were working; that he had su-
pervisors talk to him about these items while he was working;
that he worked on crews with Pettibone; that prior to the Board
election in April 2008 he saw an offer of a travel agent program
on the employee bulletin board; that the substance of that offer
was travel discounts, hotel discounts, car rental, and assistance
from a travel agent; and that prior to seeing this notice he had
not seen or heard of any similar offers to employees. On cross-
examination, Gatwood testified that the travel agency notice
was posted on two bulletin boards; that he had no idea who
posted the flyer which referred to a specific travel agency; that
these were discounts offered by that travel agency; and that he
was not aware whether the discounts offered by the travel
agency were specific benefits offered by Austal.
Lindley testified that since she has been at Austal (since Sep-
tember 2004), there has never been a travel agent program,
there has never been a company sanctioned or sponsored dis-
counts for employees regarding travel, and no such program, to
her knowledge, was implemented in 2008 prior to the election.
Godwin testified that he discussed fishing, hunting, family,
and sports while he was working.
Lindley testified that employees have been disciplined for (a)
not doing their jobs while on working time, (b) for being un-
productive, and (c) for talking too much when they’re supposed
to be working (R. Exh. 7); that she pulled the documents in
Respondent’s Exhibit 7 herself, which is a sample for 2006,
2007, and 200822; that the disciplines in Respondent’s Exhibit 7
22 The exhibit includes one example for each of the years 2003,
2004, and 2005.
are examples of disciplines during that time period and it is not
intended to be all-inclusive; and that Respondent’s Exhibits
7(B), (M), (O), (R), (X), and (KK), involve disciplines to em-
ployees for talking instead of working [usually described in the
discipline in terms of standing around and talking (with one
referring to a cell phone) and not doing the work assigned].
As noted above, on April 9 the Board’s rerun election was
held. Slay voted in the election.
Pettibone testified that he was an observer for the Union dur-
ing the rerun election when Onie Barret could not be there.
General Counsel’s Exhibit 29 is a five-page position state-
ment of Respondent dated June 16, 2008. It refers to the alleged
rule against talking about unions during working time, the
“You won’t be promoted if you support the union” allegation,
the Carolyn Slay “I have the right to leave during working time
to go get my cell phone” allegation, and the company distribu-
tion of shirts and literature.
By letter dated September 5 (GC Exh. 3), referring to charge
Case 15–CA–18547 Respondent’s attorney, Terry Dawson,
advised counsel for General Counsel Kevin McClue, as here
pertinent, as follows:

. . . .
2. You requested the handbook in effect from January
1, 2007 to November 30, 2007. Austal’s November 1,
2007 handbook was Austal’s first published handbook.
3. You requested information concerning Slay’s duty
assignments. Slay’s third amended charge alleges that she
was ‘repeatedly transferred’ because of her union activi-
ties. This is simply false. Slay was classified as a welder in
the electrical department throughout the relevant time
frame. Slay worked for the following supervisors during
the requested timeframe:

a. Chad Steele until 11/11/07
b. William Ready 11/12/07–12/9/07
c. William Dilley 12/24/07–1/14/08
d. Roderick Jackson 1/15/08–discharge1

Working for several supervisors is hardly unusual. Fit-
ter Chris Bowdoin worked on the LCS (the same ship as
Slay) for five [emphasis in original] different supervisors
during the timeframe, as follows:

1. Lemuel Lewis 10/15/07–11/11/07
2. Richard Oliver 11/12/07–12/09/07
3. Chad Steele 12/10/07–4/13/08
4. Michael Vanhook 4/14/08–5/11/08
5. Ray Evans 5/12/08–present

Finally, you asked about any documents regarding
Slay’s discharge. Austal has previously provided Chief
Hartley’s affidavit, which reveals his discovery of Slay
sleeping. As previously mentioned, two other supervisors,
Chris ‘Frank’ Tindle, and Steve Richerson, also witnessed
Slay sleeping. Neither was her regular supervisor and both
witnessed her sleeping. Their brief statements are en-
closed. [Exh. 2.]
. . . .
________________

AUSTAL USA, LLC 391
1 Roderick Jackson filled in as supervisor while Wil-
liam Dilley was on leave of absence.

While the attached affidavit of Chief Hartley was included as
part of General Counsel’s Exhibit 3, it was not received for the
truth of the matters asserted therein.
By a letter also dated September 5 (GC Exh. 4), referring to
charge Case 15–CA–18676 Dawson, as here pertinent, advised
McClue as follows:

. . . .

2. Shirt Distribution

As described in Austal’s prior response, no supervisor
or manager was involved in handing out shirts during the
organizing drive. The employees who handed out shirts
were Aaron Jordan (Fitter), James McNair (Fitter), and
Jonathan Brooks (Welder). Jeff Garl (Subcontracts Buyer),
Tracy Mathis (Supply Commodity), Caryn Buckley (Ad-
ministrative Assistant), Rena Epperson (Administrative
Assistant), Bria Connoly (Expatriate Compliance Admin-
istrator, and Susan Sime (Recruiter) were also present to
assist and make sure that the process was conducted in an
orderly way. Austal objects to providing personnel files
for these persons, but has no objection to providing rele-
vant documents that establish that none are supervisors.
The employees were told the same thing as in the posting
that went up before any distribution (and which was pro-
vided in Austal’s initial response); i.e., that the company
wanted no report on who took such shirts or did not take
them. As described at great length in its prior submission,
NLRB case law establishes that Austal acted entirely with-
in the law in so doing.
Regular supervisors wear white hats. No supervisor,
including Yancy Allen, Clinton Hayes, and Gary Logan,
distributed shirts. Indeed, Austal forbade any supervisor
from being in the area at the time. There is no mandated
color of pants for supervisors.
Austal has never employed anyone named Jim Clem-
mons. Yancy Allen was a Fabrication supervisor; Clinton
Hayes was an HVAC Supervisor, and Gary Logan was an
HVAC foreman. Jeff O’Dell is Director of Human Re-
sources, Chad Steele was an Electrical Supervisor, and
James Thomas was an HVAC supervisor. Diane
Greathouse was a temporary employee until March 31,
2008 when she became a Payroll Clerk. She has never
been a manager or supervisor.

2. Miscellaneous

. . . .
Your letter mentions that the union also alleges that
supervisor James Thomas told employees they would not
be promoted because of union activity. The allegation
gives no details, but Thomas never said any such thing.
Indeed, Austal allowed a known pro-union employee, Da-
vid Gillett, to begin serving as a stepup supervisor in Janu-
ary of 2008 and promoted him to supervisor in March.
Significantly, Gillett made no secret that he was a former
union shop steward for the Sheet Metal Workers union and
that he supported the union, the same union that was at-
tempting to organize Austal. If Austal denied promotions
to employees due to union sympathy, one certainly has a
difficult time explaining Gillett’s promotion.
. . . .

Attachments to General Counsel’s Exhibit 4 include a record of
warning dated October 12, 2007, to an employee for showing
others a picture on his “P.D.A.” instead of doing the task as-
signed, a documented verbal warning dated March 18 to an
employee for distribution of antiunion propaganda during work
hours, and a copy of Austal’s cell phone policy.
By email dated September 15 (GC Exh. 7), McClue posed
the following questions to Dawson:

Thank you for your position statements dated Septem-
ber 5, 2008 in Case Nos. 15–CA–18547 and 15–CA–
18702.
Regarding 15–CA–18547, you indicated in the posi-
tion statement that the employee handbook was published
on November 1, 2007. What was the Employer’s solicita-
tion/distribution policy prior to the publication of the No-
vember 1, 2007 handbook? How was the policy dissemi-
nated to the employees?
Regarding 15–CA–18702, you indicated in the posi-
tion statement that on March 21, 2008, Slay received a
verbal warning for having accrued more than four occur-
rences. What are the dates she received the occurrences?
Why did she receive the occurrences?
. . . .

By letter dated September 19, Dawson responded, indicating as
follows:

. . . . Prior to the dissemination of its handbook in November
of 2007, Austal had no formal written policy. It nevertheless
expected employees to be working when on working time ra-
ther than performing non-work activities as demonstrated by
the information previously sent.
As to Ms. Slay’s March 21, 2008 verbal warning for
accruing more than 4 points, the following is her attend-
ance record to that point:

2/5 absent 1 point
2/8 absent 2 points
2/14 tardy 2-1/2 points
2/22 absent 3-1/2 points
3/6 tardy 4 points
3/7 tardy 4-1/2 points
3/11 absent 5-1/2 points
3/14 absent 6-1/2 points
3/18 tardy 7 points

This history dramatically undercuts Slay’s claim that
she was somehow being more closely scrutinized than
others. Indeed, Slay had truly accrued 7 points by March
21st, which meant she was nearly due a written warning
(called for at 8 points). If Austal was truly ‘more closely
supervising’ Slay, one would expect that the company
would have been ‘all over’ her attendance points. Instead,
it was lagging behind. Considering the complete lack of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
evidence (and credibility) of the allegations, it appears that
the union is simply filing any claim it can think of in an ef-
fort to harass Austal. Austal respectfully requests that the
charge be dismissed.

By letter dated November 14 (GC Exh. 10), Dawson advised
the Regional Director for Region 15, among other things, that
Austal posted the Board notices in accordance with the Board’s
Order of March 21, 2007, at multiple locations for 60 days
beginning on November 26, 2007.
O’Dell stopped working for Austal in early January 2009.
III. ANALYSIS
A. Alleged Unfair Labor Practices
Paragraph 8 of the complaint alleges that about December
2007, Respondent, by James Thomas, at its facility, told em-
ployees that they would not be promoted because of their sup-
port for the Union.
The General Counsel on brief contends that while it appears
that Austal is taking the position that Thomas could not have
made the statement to Hudson in March 2008 because Thomas
was not employed by Austal at the time, Respondent did not
introduce records that showed the exact date Thomas allegedly
resigned; and that a supervisor suggesting to an employee that
he would receive a promotion if he discontinued his union ac-
tivity violates Section 8(a)(1) of the Act, Leather Center, Inc.,
308 NLRB 16 (1992).
The Union on brief argues that Thomas’s denial of having
made the statement at issue was perfunctory and should not be
credited; that since Hudson is a current employee of Austal, he
is putting himself in jeopardy by testifying against the interest
of his current employer; and that this behavior is obviously
unlawful, Dayton Tire & Rubber Co., 216 NLRB 1003 (1975).
Respondent on brief contends that if Thomas had been dis-
posed to favor labor or management, he likely would have been
biased in favor of labor; that Thomas owed the Union for help-
ing him find work; and that the idea, therefore, that Thomas
would threaten someone due to their union support is suspect
and Thomas adamantly denied so doing.
In my opinion, James Thomas did tell Hudson that if he
wanted to be supervisor, he had to shave, tuck in his shirt, not
be a rebel, and quit wearing union shirts and union parapherna-
lia. Hudson impressed me as being a credible witness. James
Thomas worked his way up from being an employee to being a
supervisor in a short period of time at Austal. He had worked
on many jobs with Hudson before and it would be only natural
for him, once he became aware that Hudson wanted to be a
supervisor, to offer Hudson some friendly advice—without
realizing the legal ramifications of what he was doing since, at
the time, he was a supervisor. As far as the timing of the state-
ment is concerned, Hudson may have been mistaken when he
testified that this conversation occurred in March 2008 before
the Board election. As noted above, Hudson also testified that
the conversation occurred after a notice was posted on a bulle-
tin board at work regarding employees’ rights under the Act. It
appears that the Board notice to employees was posted for 60
days starting in late November 2007. The allegation in this
paragraph of the complaint speaks to December 2007. Thomas
could not remember when he became a supervisor. He did testi-
fy that he started at Austal in the summer of 2007 and was a
supervisor when he left Austal. Although Hudson did not pro-
vide the exact date when James Thomas made the statement, it
is clear that Thomas was a supervisor at Austal sometime be-
tween the posting of the Board notice to employees and the
April 2008 Board election, and that Hudson worked for him
while he was a supervisor at Austal.23 In my opinion, Austal
violated the Act as alleged in paragraph 8 of the complaint.
What might have seemed, to Thomas, like friendly advice to
Hudson was in fact a violation of the Act. A supervisor sug-
gesting to an employee that if he wanted to be a supervisor at
Austal, he would, among other things, have to quit wearing
union shirts and union paraphernalia violates the Act, Leather
Center, supra. No matter how well intentioned Thomas’s
statement might have been, it was the type of statement which
would have reasonably tended to interfere with, restrain, and
coerce Hudson from supporting the Union, and Austal thereby
violated Section 8(a)(1) of the Act.
Paragraph 9 of the complaint alleges that about the last week
of January 2008 or the first week of February 2008, Respond-
ent, by Chad Steele, told employees they could not discuss the
Union during working hours.
The General Counsel on brief contends that Respondent did
not introduce any evidence that since the Board issued its Deci-
sion and Order on March 21, 2007, that it (a) published a writ-
ten work rule prohibiting all nonwork-related talking or (b)
announced a verbal work rule prohibiting all nonwork-related
talking, such as talking while working or talking while waiting
for a supervisor to come to solve a problem; that Respondent
did not institute a work rule prohibiting all nonwork-related
talking; that the evidence of record clearly demonstrates that
numerous employees talked about nonwork-related matters
while working; that Connolly testified that employees in HR
routinely stood around and talked to each other about, among
other things, their social lives; that sometime between Christ-
mas 2007 and February 28, 2008, Steel prohibited Nyanga from
talking to other employees about the Union while he was work-
ing; that Steele’s talking prohibition was strictly aimed at pre-
venting employees from talking about the Union in that it did
not restrict all nonwork-related talking and it did not restrict
talking which interfered with production; and that as in Austal
USA, L.L.C., 349 NLRB 561 (2007), Respondent discriminato-
rily restricted employees from discussing the Union and violat-
ed Section 8(a)(1) of the Act when Steele prohibited Nyanga
from talking about the Union.24
23 The General Counsel’s request that an adverse inference be drawn
against Respondent based on its failure to produce the change of status
and/or personnel clearance report form of Supervisor Thomas to show
his last day of employment with Respondent is granted.
24 At p. 65, fn. 14 in its brief, the General Counsel submits that alt-
hough it is not alleged in the complaint, Respondent violated Sec.
8(a)(1) of the Act when in late November 2007 O’Dell told Gatwood he
could not discuss the Union during working time, when Steele told
Simon not to talk about the Union during working time, and when
Respondent posted GC Exh. 30 on its bulletin board in March 2008
telling employees they could only talk about the Union during non-
working time.

AUSTAL USA, LLC 393
The Union on brief argues that there is no reason to disbe-
lieve the testimony of admitted supervisor Steele on this point;
that what occurred must be viewed in the context of a
longstanding practice of allowing employees and supervisors to
talk about all manner of things during their work; and that it is
clearly unlawful to impose a no talking about the union rule
while there is no rule against talking about other nonwork-
related subjects, Sam’s Club, 349 NLRB 1007 (2007).
Respondent on brief argues that Steel is a disgruntled former
employee who was terminated for fighting and whose testimo-
ny is unreliable; that Steel’s testimony was full of inconsisten-
cies on a variety of topics; that even if one credits Steel’s sus-
pect testimony, Steele testified to nothing that established any
violation or disparate treatment regarding a talking prohibition;
that Steele mentioned only two isolated instances when he al-
legedly told employees to stop talking and get back to work;
that on both occasions, Steele stated that he noticed the em-
ployees were not working while on the clock, but rather were
standing around talking; that the Simon situation involved em-
ployees talking while they were supposed to be working, and
Steele told Simon that he did not care what Simon did on his
break; that on the other occasion Steele told Nyanga and anoth-
er unnamed employee who were talking and did not return to
their work station when breaktime ended; that in both situations
Steele required employees who were not working while on the
clock to get back to work; that even if Steele’s testimony is
believed, it establishes no violation because it is axiomatic that
employers may expect employees to work while on the clock;
that neither the General Counsel nor the Union presented Si-
mon or Nyanga—the only two employees specifically identi-
fied—to corroborate Steele’s story and, therefore, an adverse
inference against the General Counsel and the Union may be
drawn since they failed to call witnesses who may reasonably
be presumed to be favorably disposed to their position, Battle
Creek Health System, 341 NLRB 882, 884 (2004)25; and that
“[i]n contrast, other supervisors . . . testified that if they heard
any discussions that interfered with work, they would instruct
employees to get back to work—regardless of the topic.” (R.
18.)
In my opinion Austal through Steele violated the act as al-
leged. At the time of the violation Steele was an admitted su-
pervisor. While Respondent on brief wants to focus the spot-
light on what was happening when Steel had his conversation
with the employees, the real point of focus is what Steel told
the employees. Also, with respect to the last argument of Re-
spondent as quoted above, talking about the Union is not, ac-
cording to the dictate of Steele, judged on the basis of whether
it interferes with work. Rather, whether or not discussing the
Union interferes with work, during working hours it is prohibit-
ed according to Steele. With respect to Austal’s argument re-
garding an adverse inference, it has not been shown that it is
reasonable to presume that the employees involved are favora-
bly disposed toward the Union or the General Counsel. Re-
spondent could have called the involved employees. It did not.
In my opinion Steele is a credible witness. Additionally, long
25 Steel was an admitted supervisor. There is no need to corroborate
his admission that he engaged in unlawful conduct.
before Steele told employees that they could not discuss the
Union during working hours, Austal was found to have acted
unlawfully in that it discriminatorily restricted employees from
discussing the Union during working hours. Austal USA,
L.L.C., 349 NLRB at 566. As pointed out by the Board in
Sam’s Club, supra at 1009,

It is . . . well established that “an employer may forbid em-
ployees from talking about a union during periods when the
employees are supposed to be actively working, if that prohi-
bition also extends to other subjects not associated or con-
nected with the employees’ work tasks. However, an employ-
er violates the Act when employees are forbidden to discuss
unionization, but are free to discuss other subjects unrelated to
work.” Jensen Enterprises, 339 NLRB 877, 878 (2003).

As noted above, Steele testified that while he was a supervisor
at Austal employees talked about nonwork-related matters
while they were working, and the topics included NASCAR,
football, and girls, “we talked about anything and everything”
(Tr. 85). By telling employees that they could not talk about the
Union during working hours while allowing them to talk about
other nonwork matters, Austal through Steele violated the Act
as alleged in paragraph 9 of the complaint.26
Paragraph 10 of the complaint alleges that since about Feb-
ruary 1, 2008, Respondent, by Roderick Jackson, threatened
employees with termination because of their activities and sup-
port of the Union.
The General Counsel on brief contends that it should be not-
ed that at the beginning of the trial Austal stipulated that as of
February 1, Jackson was a supervisor; that when Slay became
sick at work and had to leave in early March 2008, Jackson told
her that if she left, to make sure she brought back an excuse
because they were after her, and he was trying to protect her;
that later in the month of March 2008 Slay had to leave work
early to pick up her daughter from school and Jackson again
told her to make sure she brought back an excuse because they
were after her and he was trying to save her; that Austal did not
call Jackson as a witness in this matter and, therefore, Slay’s
testimony is not refuted; that based on the fact that O’Dell pre-
viously told Steele he was setting Slay up by moving her from
one crew to another, and other instances of antiunion animus in
general and specifically against Slay, the only reasonable infer-
ence is that the “they” Jackson was referring to when he warned
Slay was O’Dell; and that threatening an employee with termi-
nation because of their support for a union would certainly chill
Section 7 activities and would, therefore, violate Section
8(a)(1) of the Act.
The Union on brief argues that admitted Supervisor Jackson
was not suggesting that he had this animus or goal himself but
26 As pointed out by the Board in fn. 2 of its decision in Austal USA,
L.L.C., supra, under certain circumstances, similar violations not al-
leged in the complaint could be found. Here, the other similar viola-
tions the General Counsel cites in fn. 14 of his brief serve to further
demonstrate Austal’s longstanding position with respect to employees
discussing the Union, vis-à-vis other nonwork-related matters during
working hours. I believe that in the circumstances extant here these
additional similar violations are cumulative and need not be specifically
addressed further.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394
rather he was passing along the knowledge that this was upper
management’s approach; that Slay’s testimony about what
Jackson told her is undisputed; that it is strong evidence of the
unlawfulness of Slay’s termination; that Jackson’s own person-
al motive was not evil, but the speaker’s motive is not the dis-
positive question in the Board’s analysis of whether a statement
is coercive; and that the information that Jackson passed on
about the desires of higher-up management would naturally
coerce and restrain employees in the exercise of Section 7
rights, thus, making this a violation of Section 8(a)(1) of the
Act.
Respondent on brief contends that the General Counsel and
the Union:

failed to present evidence regarding [p]aragraph 10 alleging
that supervisor Roderick Jackson threatened employees with
termination because of union activities and/or support for the
Union. Rather than present evidence that Jackson threatened
anyone, General Counsel actually presented evidence that
Jackson was cognizant of and sought to protect employee
rights. (Slay, 143, 176, 204.) [R. Br. 6.]

Austal’s approach on brief is “interesting, very interesting.”
Talk about taking a negative and, with spin, presenting it as a
positive. Austal did not call its supervisor in any attempt to
refute this allegation. It is undisputed. I find Slay to be a credi-
ble witness. The fact that Austal chose not to challenge Slay
with respect to what Jackson told her not only adds to her cred-
ibility but it leaves unchallenged this insight supplied by one of
its supervisors into Austal’s motivation with respect to its
treatment of Slay. As pointed out by the Union, while Jackson’s
own personal motive was not evil, the speaker’s motive is not
the dispositive question in the Board’s analysis of whether a
statement is coercive. Notwithstanding Austal’s spin, Austal,
for the reasons specified above (supplied by the General Coun-
sel and the Union on brief), violated paragraph 10 of the com-
plaint.27
Paragraph 12 of the complaint alleges that about February 1,
2008, Respondent, by Jeff O’Dell, at its facility (a) threatened
employees with termination because of their activities on behalf
of the Union; (b) interrogated employees about their union
activities and the union activities of other employees; and (c)
gave employees the impression their union activities were un-
der surveillance. And paragraphs 13 and 14 of the complaint
allege that at all material times, Respondent, at its facility, has
maintained a distribution and solicitation rule and by Jeff
O’Dell has selectively and disparately enforced the rule by
prohibiting union solicitations and distributions, while permit-
ting nonunion solicitations and distributions.
The General Counsel on brief points out that in its November
2007 employee handbook, at page 14 of General Counsel’s
Exhibit 5, Respondent published a no-solicitation/no-
distribution policy, namely, as here pertinent:

Austal has adopted rules about the solicitation for any cause
and distributing literature of any kind in the workplace in or-
27 The General Counsel’s requests for adverse inferences regarding
Austal’s failure to call Jackson to deny this testimony of Slay are grant-
ed.
der to prevent disruptions in business or interference with
work. Employees may not, therefore, distribute literature or
printed materials of any kind, sell merchandise, solicit finan-
cial contributions or solicit for any other cause during work-
ing time. Employees who are not on working time (for exam-
ple, those on lunch hour or breaks) may not solicit employees
who are on working time. Furthermore, employees may not
distribute literature or printed material of any kind in working
areas at any time.

The General Counsel contends that despite this work rule, the
undisputed evidence is that in December 2007 Coordinator
Bradford solicited Watkins to buy items for a school fundraiser
while Watkins was in her work area working; that it is undis-
puted that Supervisor Jackson sold a CD in a work area; that
there is no evidence that either Bradford or Jackson were disci-
plined; that employee McNair was allowed during his worktime
to leave his work area, walk to HR, pick up some boxes con-
taining antiunion shirts, and stage the boxes at Respondent’s
gate so that the antiunion shirts could be distributed to employ-
ees; that employees Miller, Garl, and Epperson passed out the
antiunion shirts during their working time and while they were
on the clock; that Respondent did not always follow its no-
solicitation/no-distribution policy; that Respondent disparately
enforced the policy to discourage activity that supported the
Union, and to encourage activity that was against the Union;
that Respondent enforced the no-solicitation/no-distribution
against Slay when she distributed union T-shirts on February 1
but not against Bradford, Jackson, or any of the employees who
assisted in the distribution of the antiunion T-shirts while they
were on the clock; that Respondent selectively and disparately
enforced its policy in violation of Section 8(a)(1) of the Act,
Waste Management of Arizona, 345 NLRB 1339 (2005) (the
discriminatory enforcement of a facially valid policy is a viola-
tion of the Act); that O’Dell’s questioning Slay about her union
activity of giving union shirts to employees and questioning her
regarding whether Watkins was passing out union shirts to
employees were unlawful interrogations in violation of Section
8(a)(1) of the Act; that by telling Slay that 10 witnesses said
that she was passing out shirts, O’Dell gave the impression her
union activity was under surveillance; that this implied impres-
sion of surveillance was also a violation of Section 8(a)(1); and
that by telling Slay that she could be terminated for passing out
the shirts to employees, O’Dell threatened Slay with termina-
tion in violation of Section 8(a)(1) of the Act.
The Union on brief argues that O’Dell, during his February 1
discussion with Slay, threatened employees with termination
because of their prounion activities and interrogated employees
about their union activities and the union activities of others;
that it is indisputable that prior to November 2007 Austal had
no formal written policy about solicitation at work; that the
adoption of this policy in the critical period and during the run-
up to the second election, was unlawful and objectionable; that
as the Board has recognized, even a facially valid no-solicita-
tion policy is unlawful if it is adopted in order to interfere with
the employees’ right to self-organization, Cannondale Corp.,
310 NLRB 845, 849 (1993); that the fact that a policy is newly
adopted and announced during the critical period makes out a

AUSTAL USA, LLC 395
prima facie case of a violation, Harry M. Stevens Services, 277
NLRB 276 (1985); that this is bolstered by the fact that the
policy is accompanied by an announcement of the Company’s
antiunion stance, and the fact that there is no evidence that
there was actually any other existing problem that the policy
was designed to deal with; that the policy was unlawful in its
motivation; that the reason that Austal adopted this new no-
solicitation policy when it did was because this case was com-
ing back for a new election; that Respondent selectively and
disparately enforced this rule by prohibiting union solicitation
and distributions while permitting other solicitations and distri-
bution; that Respondent’s Exhibit 4 demonstrates the enforce-
ment of this rule as to union related matters; that Respondent’s
targeted enforcement of the no-solicitation policy with respect
to Slay was a violation of the Act; and that the discriminatory
enforcement of a facially valid policy is a violation of the Act,
Waste Management of Arizona, supra.
Respondent on brief contends that Slay admits that O’Dell
merely asked questions regarding whether she passed out shirts
in working areas and whether she had instructed Watkins to do
so; that this was a lawful investigation; that O’Dell acknowl-
edged to Slay her Section 7 rights and explained that she could
exercise them while she was not working; that, with respect to
the impression of surveillance, no evidence other than Slay’s
discussion with O’Dell was presented in support of this allega-
tion; that Slay’s actions in passing out the union shirts from her
work area was admittedly, however, no secret in that numerous
persons, including supervisors, passed through, it is hardly
surprising that it became known Slay was engaging in distribu-
tion in violation of Austal’s policies; that the Board has long
ruled that an employer’s mere observation of open, public un-
ion activity on or near its property does not constitute unlawful
surveillance, Fred’k Wallace & Son, 331 NLRB 914, 915
(2000); that with respect to the alleged disparate enforcement of
Austal’s no-solicitation/no-distribution policy, Slay admitted
that while Jackson sold the CD at work it was before the offi-
cial start of the workday at 6 a.m.; that it is well settled that the
no-solicitation rules do not apply with equal force to the con-
duct of a supervisor, M.A.N. Truck & Bus Corp., 272 NLRB
1279, 1294–1295 (1984); that in March 2008 Godwin’s super-
visor told him to stop passing out antiunion buttons during
working time and “Godwin was disciplined for so doing
(Goodwin, 453, O’Dell, 722)” (R.Br. 30)28; and that Godwin
28 At Tr. 452 and 453 Godwin gave the following testimony:
Q. Just say No to Union? And had you been wearing that
button?
A. Yes.
Q. And then you were passing [them] out to coworkers. Is
that correct?
A. I would, but not during the work hours, as I was instructed
not to do.
. . . Okay. So at the time, I had a couple of flyers that I was
putting on break tables, and I was in his area, and he reminded
me, and I was like, Oh, I forgot, so—.
. . . .
Q. What was the supervisor’s name?
A. I’m just drawing a blank. He’s a friend of mine, and I just
drew a blank on his name.
Q. Was the supervisor’s name Joe Himel?
A. . . . . Yes.
. . . .
Q. Did you have any kind of meeting with Jeff O’Dell re-
garding you passing out these buttons?
A. No. I just asked him that one time about it. [The time he
and McNair went to O’Dell while they were on the clock to ask
O’Dell about passing out some antiunion buttons that he had got-
ten (Tr. 443) and what they could do to respond to the T-shirts
handed out by the Union. See testimony of McNair at Tr. 428 -
430.]
Q. But you didn’t go to him after Himel reminded you not to
pass out those buttons:
A. No.
Q. Did you receive any kind of reminder from Jeff O’Dell
about not passing out buttons?
A. No.
Also, at Tr. 440, Godwin gave the following testimony:
Q. Mr. Godwin, did you ever have a supervisor tell you that
you couldn’t pass out buttons during your working time?
A. Yes. It was kind of in passing, just to make sure that I
wasn’t doing it. He told me not to be passing out—I had a couple
of flyers and stuff, and I’d forgotten—at the time, it was still a lit-
tle sketchy, but they had—Austal had made a rule that you
couldn’t talk about union or nonunion stuff during work hours, so
I ceased at that time.
Q. Okay. So he told you not to pass anything out during
working time?
A. Correct, Right.
Q. And so you stopped.
A. Yes. [Emphasis added.]
As can be seen, it does not appear that Godwin was advised or was
even aware that he was being disciplined for passing out antiunion
buttons or flyers. At Tr. 722 O’Dell testified that he was aware of
someone being disciplined for passing out “antiunion shirts.” Contrary
to the testimony of the antiunion employee called as a witness by Re-
spondent, Godwin, O’Dell testified as follows:
Q. You testified earlier that there was an employee who was
also disciplined for passing out antiunion buttons. Is that correct?
A. Yes.
Q. Okay. In regards to that employee, did you call that em-
ployee into your office and read . . . [him] a notice like you read
to Ms. Slay that’s marked GC Exhibit 19?
A. I did speak to the employee, but I didn’t read him this no-
tice, no.
Q. Did you ask him to sign . . . .
. . . .
. . . any document like GC Exhibit 19?
A.. No.
Q. Thank you. Please look now at Respondent’s Exhibit
Number 4. After you met with the employee who you were disci-
plining and talking to about the distribution of the antiunion but-
tons, or other paraphernalia, did you post a notice like the one that
was posted marked Respondent’s Exhibit Number 4?
A. Well, first I didn’t discipline her. So what’s the rest of
your question?
Q. I’m sorry. Well, I’m sorry, you did not discipline the em-
ployee who was handing out buttons?
A. Are you talking about Carolyn?
Q. No, sir, I’m talking about the employee who was passing
out antiunion buttons.
A. Yes, he was disciplined.
Q. He was disciplined. Did you post a notice after that dis-
cussion with him like the notice that’s identified in Respondent’s
Exhibit 4?

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396
had been placed on notice, like other employees, regarding
soliciting in appropriate times and places after the Slay inci-
dent, by Austal’s posted notice, Respondent’s Exhibit 4, which
is referred to in Austal’s position statement to the Board (GC
Exh. 4).29
As indicated above, I find Slay to be a credible witness. Her
testimony about what occurred on February 1 is credited. I do
not find O’Dell to be a credible witness. On brief, the General
Counsel contends that O’Dell was a misleading, untruthful and
unreliable witness; that while O’Dell denied that he told Steele
to more closely watch Slay’s attendance or that he told Steele
that he was trying to set Slay up, O’Dell did not deny that
Steele prepared two write ups for Slay and O’Dell did not offer
any explanation as to why Slay was transferred to Dilley’s crew
and/or why she was not issued the two writeups; that while
O’Dell on February 1 told Slay that she could not distribute
union shirts during working time and she might be terminated
for doing this, O’Dell allowed McNair, Garl, Epperson, and
other Austal employees to distribute antiunion shirts while they
were on the clock and during working time; that initially
O’Dell testified that there was no handbook in place when he
arrived at Austal prior to the November 2007 employee hand-
book he drafted but he subsequently conceded that there was a
less comprehensive handbook that was distributed to employees
before he started at Austal; that O’Dell gave self serving testi-
mony regarding the creation of the work rule that all employees
caught sleeping were to be terminated in that he testified that
prior to Slay’s termination vice president of operations Per-
ciavalle verbally announced to him a new work rule that from
that point forward anyone caught sleeping would be terminated;
that Respondent did not call Perciavalle as a witness and Austal
did not present any evidence that Perciavalle’s rule was dissem-
A. Why repost the same notice? He knew that. He knew what
he was supposed to do; I’d already spoken to him once about it.
[So not only is O’Dell testifying that, contrary to the testimony of
Respondent’s witness Godwin, he had a disciplinary meeting with
Godwin but now O’Dell is testifying that there was a second (pri-
or) meeting with Godwin where he had already spoken to him
once about it. Slay’s meeting with O’Dell about her distribution
of union T-shirts was her first and only meeting with O’Dell
about this subject matter.]
Q. Was the incident with the employee who was distributing
the antiunion buttons before or after the incident with Ms. Slay?
A. It was after. That I recall it was after.
Q. Now, just to make the record clear, did you post another
notice like Respondent’s Exhibit 4 after you met with and disci-
plined the employee who was disciplined for distributing the anti-
union buttons?
. . . .
THE WITNESS: No, I didn’t because the notice was up. So
every time you disciplined somebody, I’m supposed to go in and
repost things? That doesn’t make sense. [Tr. 745–748.]
29 One of the attachments to this Austal position statement reads as
follows:
Documented Verbal Warning
Issued to: Tom Godwin Date: 28 [the 2 is written over with a 1]
Mar-08
Issued by: J Hymel Time: 4:15
This verbal warning was for the following:
Distribution of antiunion propaganda during work hours.
inated to any of Respondent’s employees, members of man-
agement, supervisors and/or HR, which demonstrates that
O’Dell’s testimony was a pretextual creation; that O’Dell’s
testimony about Hartley throwing a piece of steel on the ground
to try to get an employee up who was allegedly sleeping on
March 25 in one of the ships under construction was testimony
concocted by O’Dell on the spur of the moment while he testi-
fied at the trial herein; that no such occurrence is referred to
anywhere other than O’Dell’s testimony; and that O’Dell’s
testimony that Pate was not on notice before she interviewed
Slay that Slay was terminated is belied by the written statement
of Eddins (GC Exh. 16), who was at the meeting with Pate and
Slay and, indeed, by the written statement of Pate (GC Exh.
27), who Respondent did not call to testify about what hap-
pened and why with respect to the termination of Slay. For the
reasons specified below, the termination of Slay was based on a
pretext. O’Dell lost his credibility for, among other reasons,
testifying untruthfully about Slay’s termination. The General
Counsel gives good reasons for not treating O’Dell as a credi-
ble witness. There are additional reasons as set forth below. It
was a “nice touch” when O’Dell testified that the first time he
remembered dealing with Slay in any way was the issue of her
falling asleep, and he had to be “reminded” by one of Austal’s
counsel about his February 1 meeting with Slay when he
threatened to fire her, interrogated her, and which meeting oc-
casioned his email exchange with Browning and the posting of
a notice (R. Exh. 4), to all employees referring to, inter alia, the
passing out of T-shirts. I will not credit the evidence of O’Dell
unless it is corroborated by a reliable witness or a reliable doc-
ument.
In my opinion, Respondent violated the Act as alleged in
paragraphs 12, 13 (which sets forth the rule but is not in and of
itself an allegation of misconduct), and 14 of the complaint,
except to the extent noted below. To begin with, O’Dell lied
under oath when he concocted his testimony that when he met
with Slay about her distribution of union T-shirts while she was
working, Slay refused to sign the notification he showed her.
Respondent did not call Slay’s coordinator to explain why he
met with Slay the day after O’Dell met with Slay, and the coor-
dinator told her he had something for her to sign which he
guessed was a paper they forgot to have her sign at the meeting
in O’Dell’s office the day before. The General Counsel’s re-
quest for an adverse inference against Respondent from Aus-
tal’s failure to call the coordinator who would reasonably be
presumed to be favorably disposed toward it is granted. Also,
Respondent did not call Pate, who O’Dell testified he asked to
listen, from just outside the room, to his meeting with Slay and,
therefore, would have overheard O’Dell giving Slay General
Counsel’s Exhibit 19 to sign and Slay refusing to sign the noti-
fication he showed her when he met with her about her distribu-
tion of union T-shirts while she was working. The General
Counsel’s request for an adverse inference against Respondent
based on Austal’s failure to call Pate, who would reasonably be
assumed to be favorably disposed toward it is granted. With
respect to the General Counsel’s contention regarding the selec-
tive and disparate application of the no-solicitation/no-
distribution rule regarding supervisors Bradford and Jackson, as
correctly pointed out by Respondent on brief, it is well settled

AUSTAL USA, LLC 397
that the no-solicitation rules do not apply with equal force to
the conduct of a supervisor, M.A.N. Truck & Bus Corp., su-
pra.30 The General Counsel is correct in his contention that the
rule was applied selectively and disparately with respect to the
named employees who were involved in the distribution of
Austal’s union free T-shirts while the employees were on the
clock.31 O’Dell’s testimony that he disciplined Godwin, which
testimony is contradicted by Godwin, is yet another example of
O’Dell lying under oath. The fact that Austal did not call Su-
pervisor Hymel to clear up Godwin’s testimony that Hymel
only spoke to him in passing raises questions about whether the
documented verbal warning submitted by Austal with its one of
its position statements (GC Exh. 4), is a fabrication. Godwin
was not aware of it. An adverse inference is warranted against
Respondent with respect to Austal’s failure to call Supervisor
Hymel as a witness. Not only was the rule applied selectively
and disparately but, in my opinion, the Union is correct in its
objection that by implementing an employee handbook in No-
vember 2007, which handbook contained Austal’s first no-
solicitation/no-distribution rule, Austal engaged in an effort to
undermine the Union’s efforts during the revived union cam-
paign before the second election. O’Dell is not a credible wit-
ness. Notwithstanding, the many times O’Dell’s testimony is
contradicted by other witnesses or documents, including Re-
spondent’s own evidence, Austal did not call witnesses to cor-
roborate O’Dell with respect to material portions of its case.
One is when Respondent decided to put together an employee
handbook and what was the true motive for the handbook.
O’Dell’s testimony that it had nothing to do the union activity
is not credited.32 Austal did not call Spiegel to corroborate
O’Dell’s testimony that he instructed O’Dell to create a new
employee handbook prior to O’Dell’s first day of employment
on March 3, 2007. The General Counsel’s request for an ad-
verse inference against Respondent from Austal’s failure to call
Spiegel who reasonably would be assumed to be favorably
disposed toward it is granted. Both the General Counsel and the
Union objected to the receipt of Respondent’s Exhibit 18 which
was sponsored by O’Dell, and which is O’Dell’s draft of the
30 That being the case, the General Counsel’s request for an adverse
inference regarding Austal’s failure to call Jackson as a witness to
testify about selling a CD in a work area during working time is denied.
The same would apply with respect to Bradford’s solicitation of Wat-
kins to purchase items for his daughter’s school fundraiser.
31 The General Counsel’s request for an adverse inferences based on
Respondent’s failure to produce its records to show that these employ-
ees clocked out from work prior to assisting in the distribution of Aus-
tal antiunion shirts or they received an occurrence for leaving work
early is granted.
32 The following testimony of O’Dell is not credited:
Q. . . . . Did the timing of the handbook being distributed to
employees [in November 2007 after the March 21, 2007 Board
decision set aside the first election and remanded the case for a
second election] have anything to do with union activity?
A. I guess the question is, why would it?
Q. Okay.
A. No, I would have no reason to tie that—those two togeth-
er whatsoever. I was tasked in February of ‘07 to do a handbook
and have it completed within 90 days. And I knew nothing about
the union activity at that time. [Tr. 681.]
employee handbook which was not the one distributed to em-
ployees but has the date of March 30, 2007, on the cover. To
the extent that the date on the cover is meant to have any mean-
ing with respect to the timing of the process, it is given no
weight since O’Dell sponsored the exhibit and it was not shown
that anyone else, namely a reliable witness, had anything to do
with the dating of the document.
It is noted that the complaint does not specifically allege that
Austal unlawfully promulgated and maintained a no-solicita-
tion/no-distribution rule because of the upcoming second elec-
tion. From a timing standpoint, the employee handbook, with
Austal’s first no-solicitation/no-distribution rule was distributed
to employees in November 2007, 8 months after the Board
issued its March 21, 2007 decision (a) finding that Austal en-
gaged in unlawful conduct which invalidated the first election,
and (b) remanding the matter for a second election. As noted
above, the second election was held on April 9, 2008. In its
objections filed after the second election the Union asserts that

2. The Employer, through its agent(s), committed an
unfair labor practice by implementing an employee hand-
book in November 2007 for the first time since the facility
began operations. This institution of the employee hand-
book was virtually contemporaneous with the offers of re-
instatement of discriminatees terminated prior to the first
election. This employee handbook was an effort to threat-
en and intimidate employees, and rendered them unable to
exercise free choice of a bargaining unit agent in the elec-
tion.

I agree with the Union that Austal’s adoption of the no-
solicitation/no-distribution policy during the runup to the se-
cond election, was unlawful and objectionable in that as the
Board has recognized, even a facially valid no-solicitation poli-
cy is unlawful if it is adopted in order to interfere with the em-
ployees’ right to self-organization, Cannondale Corp., supra.
As noted above, the Union argues that the fact that a policy is
newly adopted and announced during the critical period makes
out a prima facie case of a violation, Harry M. Stevens Ser-
vices, supra, and that this is bolstered by the fact that the policy
is accompanied by an announcement of the Company’s anti-
union stance, and the fact that there is no evidence that there
was actually any other existing problem that the policy was
designed to deal with. When General Counsel’s Exhibit 39, the
February 1 e-mails between O’Dell and Browning, is read in
conjunction with Respondent’s Exhibit 4, O’Dell’s subsequent
notice to employees about employees handing out shirts, it
would not be unreasonable to reach the conclusion that the
motivation for this rule was the union campaign before the
second election. The notice to employees (R. Exh. 4), briefly
mentions in passing “girl scout cookies, little league candy,
union issues, raffle tickets, etc.” The reference to “girl scout
cookies . . .” occupies 1 of 18 lines of the notice. The 17 other
lines refer to the union campaign. Austal selectively and dis-
parately enforced this rule by prohibiting union solicitation and
distributions while permitting other solicitations and distribu-
tion.
Since it is not alleged in the complaint, I am not specifically
finding that Austal’s no-solicitation/no-distribution rule violates

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398
the Act because it was promulgated and maintained to interfere
with the employees’ right to self-organize rather than to main-
tain production and discipline.33 Rather, I am finding that that
Austal violated the Act by selectively and disparately enforcing
its no-solicitation/no-distribution rule, and, thereby, under-
mined the validity of the rule with respect to the application of
the rule to Slay.
Austal violated the Act by unlawfully utilizing its no-
solicitation/no-distribution to threaten Slay with termination.
Interestingly, O’Dell testified that he spoke with Godwin twice
about distributing antiunion buttons and at least one of these
discussions occurred after he had spoke with Slay. Presumably,
this would have been after the notice to employees (R. Exh. 4)
was posted shortly after O’Dell’s discussion with Slay. Yet,
O’Dell did not testify that he threatened Godwin with termina-
tion or, indeed, terminated Godwin during the second discus-
sion because he had already spoken to Godwin the first time
and, as with Slay, he threatened Godwin with termination at the
first meeting. As noted above, Respondent’s witness Godwin
testified that he did not have any disciplinary meetings with
O’Dell over the fact that he, Godwin, had distributed antiunion
buttons. O’Dell was lying under oath.
Austal violated the Act by unlawfully utilizing its no-solici-
tation/no-distribution policy to interrogate Slay about her union
activities and the union activities of other employees.
Austal is correct in its argument on brief that that the Board
has long ruled that an employer’s mere observation of open,
public union activity on or near its property does not constitute
unlawful surveillance, Fred’k Wallace & Son, supra. Here,
Austal went beyond mere observation. Here, O’Dell misusing
the no-solicitation/no-distribution rule unlawfully threatened to
fire Slay and unlawfully interrogated her not only about her
union activity but the union activity of another employee. Dur-
ing his meeting with Slay on February 1, he told her that he had
10 witnesses who said that she was passing out T-shirts during
working hours. As indicated in Flexsteel Industries, 311 NLRB
257 (1993):

The idea behind finding “an impression of surveil-
lance” as a violation of Section 8(a)(1) of the Act is that
employees should be free to participate in union organiz-
ing campaigns without the fear that members of manage-
ment are peering over their shoulders, taking note of who
is involved in union activities, and in what particular ways.
We have never required . . . evidence that management ac-
tually saw or knew of an employee’s union activity for a
fact, nor do we require evidence that the employee intend-
ed his involvement to be covert or that management is ac-
tively engaged in spying or surveillance. Rather an em-
ployer creates an impression of surveillance by indicating
that it is closely monitoring the degree of an employee’s
33 A violation not alleged in the complaint may be found but this
might occasion issues regarding whether the matter had been fully and
fairly litigated, and whether the absence of a specific complaint allega-
tion precluded Respondent from presenting exculpatory evidence or
altering its conduct of the case to address this allegation. Champion
International Corp., 339 NLRB 672 (2003). Any approach which might
cause a delay in the resolution of this proceeding should be avoided.
union involvement. Emerson Electric Co., 287 NLRB
1065 (1988).

It is one thing to observe. It is quite something else to unlawful
threaten and unlawfully interrogate an employee about her
union activities and the activities of another employee, utilizing
a rule that is selectively and disparately enforced, and as a part
of that unlawful conduct tell the employee that you have 10
witnesses to the fact she violated the disparately enforced rule.
Nonetheless, I do not believe that Austal unlawfully gave Slay
the impression that her union activities were under surveillance
simply because she engaged in the conduct at issue totally out
in the open at her workstation where any supervisor or manager
could see her. Accordingly, the allegation in 12(c) of the com-
plaint will be dismissed.
Paragraph 16 of the complaint alleges that Respondent, on
March 19 by Jeff O’Dell and in about the last week of March
2008 by Terry Crawley, impliedly threatened its employees that
it would not hire union supporters.
The General Counsel on brief contends that O’Dell is not
credible; that Crawley was present for the meeting between
Hudson and O’Dell and Crawley was not sure if O’Dell did not
mention the word “union” during the meeting; that O’Dell told
Hudson that based on what Hudson said earlier in their conver-
sation O’Dell would not have hired him; that O’Dell impliedly
threatened Hudson that Respondent would not hire union sup-
porters; that a few days later, after Crawley overheard Hudson
talking to some employees about the Union, Crawley told Hud-
son, “[Y]ou know what Jeff O’Dell said, you talk about the
union and he wouldn’t hire you, anyway”; that during his testi-
mony Crawley did not deny Hudson’s testimony; and that what
Crawley did was answer, “No, sir,” to the following question of
one of Austal’s attorneys: “. . . you’ve been accused in this
matter of impliedly threatening an employee that you would not
hire a union supporter. You ever done that?”
The Union on brief argues that Crawley’s purported recollec-
tion of the meeting with Hudson and O’Dell is laughably
vague.
Respondent on brief contends that Hudson’s story makes no
sense; that there would have been no reason for O’Dell to say
he would not have hired Hudson based on his response; that
Crawley adamantly denied telling Hudson, “You know what
Jeff O’Dell said, you talk about the union and he wouldn’t hire
you anyway”; and that even if Crawley made such a statement,
Hudson admits that he knows of no one else who heard the
comment.
The Respondent violated that Act as alleged in paragraph 16
of the complaint. Hudson is a credible witness. His detailed
testimony regarding his meeting with O’Dell and his subse-
quent conversation with Crawley is credited. O’Dell is not a
credible witness. As noted above, Crawley’s testimony about
the O’Dell/ Hudson meeting consists of (1) “No, sir” he has
never “heard Jeff O’Dell say . . . something like he would not
hire Hudson if he gave the wrong answer about the union” (Tr.
765), and (2) while he was in the 15- to 20-minute meeting with
O’Dell and Hudson, he did not remember if O’Dell mentioned
the word union during his meeting with Hudson, and “[t]he
only thing I remember of that meeting was that you cannot be a

AUSTAL USA, LLC 399
supervisor if you’ve been written up.” (Id at 766.) Regarding
Hudson’s testimony about what Crawley said to him Crawley
testified as follows:

Q. Now, let me just ask you flat out, you’ve been ac-
cused in this matter of impliedly threatening an employee
that you would not hire a union supporter. You ever done
that?
A. No, sir.
Q. Did you ever do that to Carl Hudson?
A. No, sir. [Tr. 765.]

Crawley did not specifically deny that at the outset of the meet-
ing O’Dell asked Hudson if he thought Austal needed a union.
Then Crawley got equivocal with his “never heard” and “if he
[Hudson] gave the wrong answer about the union.” The testi-
mony that Crawley was responding to was that O’Dell said,
“[t]he answer that you gave me before, . . . to be honest with
you, I wouldn’t hire you.” (Tr. 246.) O’Dell did not say any-
thing about “if you give the wrong answer.” Then Crawley
attempted to bail out by testifying that the only thing he re-
membered about the 15- to 20-minute meeting was that you
cannot be a supervisor if you’ve been written up. The problem
with the attempted bailout is that Hudson went to the meeting
to discuss the fact that he wanted Austal to give him 10 hours
of pay he lost when his supervisor would not let him work and
sent him home because he was on a prescription medication. As
Hudson testified, he never discussed becoming a supervisor
with O’Dell. Even O’Dell did not claim that he and Hudson
discussed becoming a supervisor. With respect to what Crawley
said to Hudson a few days later, as noted above, Crawley gave
the following testimony:

Q. Now, let me just ask you flat out, you’ve been ac-
cused in this matter of impliedly threatening an employee
that you would not hire a union supporter. You ever done
that?
A. No, sir.
Q. Did you ever do that to Carl Hudson?
A. No, sir. [Tr. 765 with emphasis added.]

As noted above, Hudson testified that Crawley told him, “You
know what Jeff O’Dell said, you talk about the union and he
wouldn’t hire you, anyway.” (Tr. 248.) As correctly pointed out
by the General Counsel on brief, Crawley did not specifically
deny the statement Hudson testified Crawley made about
O’Dell, and, therefore, Hudson’s testimony is undisputed.
Crawley’s testimony regarding the O’Dell/Hudson meeting was
not credible. It was not only equivocal, but Crawley’s testimo-
ny about Hudson becoming a supervisor was not corroborated
by either O’Dell or Hudson. Indeed, it was refuted by Hudson.
Hudson did not testify that Crawley subsequently told him that
he, Crawley, would not hire him. Rather, Hudson testified that
Crawley reminded him in the presence of other employees, who
may not have heard what Crawley said, what O’Dell said dur-
ing the O’Dell/Hudson March 19 meeting, thereby—as a su-
pervisor—unlawfully repeating the implied threat. Austal vio-
lated the Act as alleged in paragraph 16 of the complaint.34
Paragraph 18 of the complaint alleges that about March 19
and 28, 2008, Respondent, by David Bliss and other supervi-
sors and agents35 interrogated its employees about their support
for or against the Union by soliciting employees to accept anti-
union shirts.
The General Counsel on brief contends that the undisputed
evidence, Pettibone’s testimony, is that Supervisor Herbert
passed out Austal antiunion T-shirts to employees; that contrary
to Supervisor Clement’s denial, Slay did see him passing out
Austal antiunion T-shirts to employees; that contrary to the
denials of Supervisors Lindley and Hall, Watkins did see Lind-
ley and Hall passing out Austal antiunion T-shirts to employ-
ees; that that the undisputed evidence, Watkins’ testimony, is
that Supervisor Mallard passed out Austal antiunion T-shirts to
employees; that that contrary to Supervisor Westmoreland’s
denial, Hudson did see him passing out Austal antiunion T-
shirts to employees; that the testimony of Slay and Watkins that
they saw supervisors wearing white hardhats distributing Austal
antiunion T-shirts to employees should be credited; that the
testimony of Gatwood that he saw supervisors wearing white
hardhats with their name and supervisory position on the
hardhat distributing Austal antiunion T-shirts to employees
should be credited; that the denial of Respondent’s witnesses
that any of the individuals who distributed Austal antiunion T-
shirts wore supervisory hardhats is equivocal; that Respond-
ent’s distribution of the antiunion shirts constituted 8(a)(1)
coercion and a violation of the Act, A. O. Smith Automotive
Products Co., 315 NLRB 994 (1994) [supervisors directly dis-
tributing paraphernalia opposing a union to employees effec-
tively put employees in the position of having to accept or re-
ject the employer’s proffer and is a violation of Sec. 8(a)(1)];
that there is also evidence of supervisors openly observing em-
ployees receiving the Austal antiunion shirts in that Respond-
ent’s witness McNair testified that his supervisor walked
through the LCS gate while he was passing out shirts to em-
ployees and Respondent’s witness Epperson testified that two
or three supervisors came through the LCS gate while she was
passing out shirts to employees; and that the fact that these
supervisors were able to observe whether employees took the
Austal antiunion shirts was a violation of Section 8(a)(1) of the
Act.
The Union on brief argues that direct distribution of anti-
union shirts by supervisors has been recognized as coercive
interrogation in that it requires an employee to accept or reject a
shirt in a way that can be viewed by management as support or
rejection of the antiunion position, Circuit City Stores, 324
34 In view of the above, the request of the General Counsel to draw
an adverse inference with respect to Crawley’s failure to deny what he
told Hudson is denied.
35 At the outset of the trial herein, counsel for the General Counsel
was allowed to amend par. 7(a) of the complaint to include the follow-
ing as supervisors and agents: Supervisor Yancy Allen, Supervisor Tim
Clements, Supervisor Clinton Hayes, and Coordinator Claudel Mack.
Counsel for the General Counsel indicated that “there is evidence to be
presented that these individuals were individuals who were handing out
T-shirts . . . as supervisors to employees.” (Tr. 10.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400
NLRB 147 (1997); that Austal placed a great emphasis, in the
presentation of evidence, on the assertion that it did not keep
track of who accepted a shirt and who did not; that this factual
assertion, whether or not it is true, is irrelevant, Circuit City
Stores, supra at 147 fn. 2; that since the Austal shirts were dis-
tributed at the gates employees were faced with making a
choice whether to accept the Austal shirts; that neither Herbert
nor Mallard testified to deny the testimony that they distributed
the Austal antiunion shirts to employees; that the supervisors
were recognizable by their white hardhats with their superviso-
ry positions and names on them; and that this conduct was a
violation of the Act under Circuit City Stores, supra, and re-
quires a new election.
Respondent at page 49 of its brief contends that:

Austal management specifically forbade any supervisor from
passing out shirts. (O’Dell, 708–709, Logan, 778; Hall, 790;
Garl, 340; Hughen, 390; Connolly, 468–469; Epperson, 365–
366.) To ensure that supervisors were not involved, O’Dell
met with them on two separate occasions and forbade them
from distributing shirts or even being in the area. (O’Dell,
709.) Austal also posted a notice prior to making the shirts
available to employees. (O’Dell, 710–711); R 5.) The notice
notified employees that no supervisors would be involved in
the distribution of shirts and that employees were free to ac-
cept or reject the shirts without fear of reprisal.

Respondent further contends that the fact that some supervisors
on the afternoon shift did not have the opportunity to see the
notice36 was of no moment because O’Dell met with supervi-
sors on two occasions to instruct them in person that no super-
visor was allowed on pain of discipline to be involved in the
distributing Austal shirts; that the Austal shirts were distributed
by volunteer hourly employees as well as a group of non-
supervisory administrative employees; that there is no evidence
that Austal kept track of who accepted an Austal shirt or that
any employee reported such information to any supervisor or
manager; that the General Counsel failed to establish superviso-
ry participation; that no evidence was presented that Mallard
possessed supervisory authority beyond a mere conclusory
witness statement that he was a supervisor; that the burden of
proving supervisory status rests on the party asserting it; that
only Pettibone, who was a former employee and union observer
at the election, identified Supervisor Herbert as being a super-
visor who distributed Austal shirts, and so there is considerable
reason to doubt the veracity of his testimony; that the mere
possibility that a supervisor may have seen shirts being distrib-
uted is not enough, Washington Fruit & Produce Co., 343
NLRB 1215, 1259 (2004); that the General Counsel failed to
meet his burden of establishing agency status on the part of the
nonsupervisory employees involved in the distribution of the
Austal shirts; that even if the employees distributing the Austal
T-shirts in March 2008 were supervisors or agents of Austal,
their conduct was lawful since there was no evidence of coer-
cion or monitoring of employees, Philips Industries, 295 NLRB
36 The involved notice, which O’Dell testified that he would have
given to his administrative assistant, Robertson, to post opens with “To
all employees.”
717, 733 (1989) (supervisor distributed company shirts and
there was no evidence of coercion); Wm. T. Burnett & Co., 273
NLRB 1084, 1092—1093 (1984) (supervisor did not monitor
whether employees wore the procompany buttons he gave
them); and Daniel Construction Co., 266 NLRB 1090, 1100
(1983) (supervisors were not tracking employee union views
when they solicited employees to purchase procompany jack-
ets); and that “to establish an unlawful act, General Counsel
must establish the individuals distributing T-shirts were moni-
toring employee union sentiments (i.e., polling) or otherwise
coercing employees to accept shirts (in addition to establishing
that they were supervisors or agents)” R. Br. 62.
Did O’Dell meet with supervisors on two occasions and for-
bade supervisors from distributing shirts or even being in the
area? On brief, Austal cites the testimony of O’Dell to support
this assertion. But O’Dell has no credibility. Some of the testi-
mony elicited from the witnesses called by Austal supports
Austal’s position that at least some supervisors were told by
O’Dell at a meeting (he claims there were two) that they were
not allowed to pass out the Austal antiunion shirts to employ-
ees. But the supervisors called by Respondent’s did not testify
that they were also told by O’Dell that they could not even be
in the area when the Austal shirts were distributed. Some of the
testimony of Respondent’s witnesses does not support Austal’s
assertion that O’Dell held two meetings with supervisors before
the Austal antiunion shirts were distributed to tell the supervi-
sors that they could not distribute the Austal antiunion shirts to
employees and they could not be in the area. And some of the
testimony elicited from Respondent’s witnesses about the al-
leged two O’Dell supervisory meetings is at best equivocal.
Connolly’s attempt to corroborate O’Dell’s testimony falls
short in that on cross-examination she conceded that she was
not present at the alleged meetings. O’Dell also testified, “I
would have given it to Nick [Robertson] to post” (Tr. 711)
referring to Respondent’s Exhibit 5 which exhibit he sponsored
and which purports to be a notice to all employees regarding
the first distribution of the Austal shirts. It appears that O’Dell
asserts that it was posted the day of the first distribution of the
Austal shirts. When asked by one of the attorney’s for Austal
how many boards would things be posted on, O’Dell testified
that there were about 8 to 10 boards, and “[h]e’d [Robertson]
be able to tell you exactly.” (Tr. 711.) On cross-examination,
O’Dell testified that he did not know where Robertson posted
the document about Austal’s shirts that day, March 19, when
the Austal antiunion shirts were distributed. Nonetheless, Re-
spondent did not call Robertson, who was an administrative
assistant to O’Dell, as a witness. I draw an adverse inference
against Respondent from Austal’s failure to call Robertson as a
witness in that it is reasonably assumed that O’Dell’s adminis-
trative assistant in HR would be favorably disposed to Austal. I
do not believe that administrative assistant Robertson is a by-
stander employee. For some reason Austal did not further at-
tempt to clear up questions surrounding the asserted posting of
this document to employees notwithstanding the fact that there
was an obvious need to do just that. The testimony of O’Dell,
who is not credible, and a copy of the document (R. Exh. 5), are
the only evidence cited by Austal on brief to support the asser-
tion that employees were notified on the first day of distribution

AUSTAL USA, LLC 401
that no supervisors would be involved in the distribution of
shirts; that employees were free to accept or reject the shirts
without fear of reprisal; and that no records will be kept of who
accepts or declines a shirt.37 I do not credit O’Dell’s equivocal
testimony that Respondent’s Exhibit 5 was posted. O’Dell is
not a credible witness. Austal concedes that, even if such notice
was properly posted, those who worked on the afternoon shift
(employees and supervisors) would not have seen the notice
before coming to work and being faced with making an una-
voidable and open decision as to whether to accept or reject the
Austal antiunion T-shirt which was being handed out at the gate
on their way into work.38
At least one supervisor, Herbert, was not called to dispute a
witness’ testimony that he distributed Austal antiunion T-shirts
to employees. Another individual identified as a supervisor,
Mallard, by an employee, Watkins, was not called by Respond-
ent to dispute her testimony that he distributed Austal shirts to
employees.39 The record does not demonstrate, without equivo-
cation, that all supervisors were notified before the Austal anti-
union shirts were distributed that they should not distribute
them and they should not even be in the area. Regarding the
latter, there is evidence of record from Respondent’s own wit-
nesses that a number of supervisors were in the area when Aus-
tal’s shirts were distributed. There is also evidence of record,
some of it challenged, that a number of supervisors were in-
volved in distributing Austal antiunion shirts to employees.
The Board indicated in Circuit City Stores, supra at 147 that

Under established Board precedent, employers may
make antiunion paraphernalia available to employees at a
central location, provided that supervisors are absent from
the distribution process and there is no other coercive con-
37 If an employee of a company which engaged in unlawful conduct
in the past, including unlawfully terminating a number of employees,
reads a notice to employees that no records will be kept of who accepts
or declines a shirt, it is reasonable to conclude that that employee
would wonder if just the opposite was true because the Company had
acted unlawfully in the past. That being the case, that employee, realiz-
ing that there is a good chance that there will be a record, would be
coerced. But it has not been unequivocally established that this notice
was actually posted before the first distribution. Moreover, as noted
below (a) the wearing of the Austal antiunion shirt constitutes a perpet-
ual record, and (b) any issue regarding whether Austal kept a record of
who accepted or declined a shirt is irrelevant in that employees would
be well aware of the fact that Austal had the potential to do so. Circuit
City Stores, supra at 147 fn. 2.
38 Or in the case of a supervisor, helping out with the distribution or
watching it. In view of the testimony of some of the supervisors called
by Respondent, I do not believe that it can be concluded that all super-
visors were notified at the two meetings O’Dell allegedly indicated that
they should not be involved in the distribution or even be in the area.
39 The General Counsel requests adverse inferences in view of Aus-
tal’s failure to call Herbert and Mallard because they would reasonably
be assumed to be favorably disposed toward Austal. It is not alleged
that Mallard was a bystanding employee. He did not testify to deny that
he was handing out Austal’s antiunion T-shirts to its employees at a
gate as the employees either entered or exited Austal’s facility. An
employee who apparently is in a position to know identified him as a
supervisor. An adverse inference is granted both with respect to Mal-
lard and to admitted Supervisor Herbert.
duct in connection with the distribution. Barton Nelson,
Inc., 318 NLRB 712 (1995); Gonzales Packing Co., 304
NLRB 805, 815 (1991). However, employers are preclud-
ed from creating situations in which employees are forced
to disclose their union sentiments. Lott’s Electric Co., 293
NLRB 297, 303–304 (1989), enfd. mem. 891 F.2d 281
(3rd Cir. 1989). Thus, employers may not distribute cam-
paign paraphernalia in a manner pressuring employees to
make an observable choice that demonstrates their support
for or rejection of the union. A. O. Smith Automotive
Products Co., 315 NLRB 994 (1994). In A. O. Smith, the
Board found that by having its supervisors directly offer
employees antiunion paraphernalia, the employer effec-
tively put employees in a position of having to accept or
reject the employer’s proffer and thereby make an observ-
able choice that would reveal something about their union
sentiments.

In footnote 2 at 147 in its decision in Circuit City Stores, supra,
the Board indicated “we find irrelevant any issue of whether the
Employer actually kept track . . . . Employees would be well
aware of the fact that the Employer had the potential to do so.”
There is a vast difference in a union handing out union T-
shirts and an employer handing out antiunion T-shirts. If the
employee takes and wears a union shirt at work, it is totally
voluntary. That employee has decided to voluntarily declare
himself or herself in support of the involved union, notwith-
standing any possible ramifications. In my opinion, coercion is
implicit when an employer puts an employee in the position
that he or she has no choice but to reject or take and wear an
antiunion shirt. An employer does not know whether an em-
ployee who does not wear a union shirt will or will not support
the union. But an employer can take a reading on an employee
who does not accept and wear an antiunion shirt when the em-
ployer puts all of its employees in a position where they have to
reject or accept and wear the antiunion shirt. When the union
offers a shirt it is indicating that the union would like the em-
ployee to voluntarily declare his or her support for the union by
wearing the shirt, and perhaps he or she would thereby influ-
ence other employees to support the union. When an employer
offers an antiunion shirt in a situation where the employee has
to reject it or accept and wear it, the employer, who pays the
employee’s wages and benefits, is letting the employee know
that the employee is expected to declare involuntarily either (a)
by accepting and wearing the antiunion shirt, that he or she
ostensibly does not support the union or (b) by rejecting the
company shirt, that he or she does not support the company.
Obviously, an employee can accept and wear the antiunion shirt
and still vote for the union. But just as the union hopes that an
employee voluntarily wearing a union shirt will influence other
employees to support the union, the employer would employees
even involuntarily wearing antiunion shirts to influence other
employees not to support the union. The union has no leverage
over the employee. The employer has a great deal of leverage
over the employee. The union cannot, as a practical matter,
cause an employee to involuntarily wear its shirt. The possible
denial of the opportunity to earn a living at Austal could easily,
in and of itself—especially where, as here, the employer previ-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402
ously engaged in unlawful conduct, including unlawfully ter-
minating a number of employees—cause an employee, when he
believes that he has no choice, to involuntarily wear an anti-
union shirt. It is almost meaningless for an employer to declare
that they are not monitoring the situation when the shirts are
given out. The shirt is a walking billboard. The declaration,
which is constant while it is worn, can be noted at any time.
Indeed, the employer need only keep track of how many shirts
were purchased and how many shirts it had on hand after the
distribution to have a preliminary indication (poll) of how many
of its employees would most likely (because, as indicated
above, some employees may accept and wear the antiunion
shirt and still vote for the union) support the union.
O’Dell testified that Administrative Assistant Buckley and
Sime were his observers for the Austal antiunion T-shirt distri-
bution. Also, O’Dell testified that not one time did they come
back and say a supervisor was there handing out shirts or even
watching or looking at what was going on. O’Dell is not a cred-
ible witness. Other of Respondent’s witnesses testified that
supervisors were in the area when Austal antiunion shirts were
distributed. Employees testified that supervisors were handing
out the shirts, employees named a number of supervisors, and
two of the named supervisors did not testify at the trial herein.
The General Counsel’s request that an adverse inference be
drawn against Respondent for failing to call Administrative
Assistant Buckley to provide the names and duty positions, to
the extent she knew this information, of the employees who
passed out the antiunion shirts at the LCS gate is granted. Also,
an adverse inference is drawn against Respondent for its failure
to call Administrative Assistant Buckley to corroborate
O’Dell’s testimony that not one time did she come back and say
a supervisor was there handing out shirts or even watching or
looking at what was going on. O’Dell is not a credible witness.
Bliss was not specifically named by any witness. Otherwise,
Austal violated the Act as alleged in paragraph 18 of the com-
plaint.
Paragraph 20 of the complaint alleges that Respondent, by
Gary Logan, at its facility, (a) on or about late March 2008 or
early April 2008, told employees who were talking about the
Union that they needed to pipe down on the union stuff, and (b)
on or about the first week of April 2008, told employees who
were talking about the Union to other employees that they
should quit (changed below to delete “quit” and insert, in its
place, “pipe down”).
The General Counsel on brief contends that the Board in its
aforementioned March 21, 2007 decision involving Austal
found that Austal violated the Act when it instructed employees
not to read or discuss union material during working time; that
in accordance with this ruling Austal posted the notice to em-
ployees at its facility for 60 days starting on November 26,
2007; that Austal did not introduce any evidence that since the
Board’s March 21, 2007, decision Austal published a written
rule or announced a verbal rule prohibiting all nonwork-related
talking; that evidence of record clearly demonstrates that nu-
merous employees talked about nonwork matter while working;
that Logan, by telling Hudson on two occasions to pipe down,
prohibited Hudson from continuing to talk about the Union
while Hudson was working; that neither one of these incidents
involved the morning start up meeting; and that Logan did not
prohibit all nonwork-related talking, only talking about the
Union.
The Union on brief argues that Hudson’s testimony on this
matter was more credible than Logan’s denial; and that Logan
merely exhibited the common tendency to deny having done
something unlawful, and his denial should be rejected as a mat-
ter of credibility.
Respondent on brief contends that coordinator Logan was a
longtime member of the Union; that it would have been surpris-
ing, therefore, if he bore any animosity toward the Union; that
Logan denied the allegations; and that on the one hand, no one
was called to corroborate Hudson’s testimony, and, on the other
hand, even if the allegations could establish a violation, the
alleged conduct would not support a new election in that it is
undisputed that Logan’s alleged statements were directed only
to Hudson and there is no evidence that these statements were
ever communicated to any other employee.40
Logan was not taking an antiunion or a procompany stance.
What he was doing was trying to keep Hudson out of trouble
when he said pipe down. Contrary to (b) of paragraph 20 of the
complaint, there is no evidence of record that Logan told any-
one who was talking about the Union to other employees that
they should quit. True to his union background,41 Logan was
warning Hudson that management was aware of Hudson’s un-
ion activities, they were talking about him, they were not happy
with him, and he should pipe down a little bit (Hudson’s own
words). In his attempt to convey the gravity of the situation to
Hudson, Logan said, “[Y]ou’re trying to get me run out of
here” (Tr. 250) when Hudson tried to pin him down on who
was saying that he, Hudson, was causing chaos. To no avail to
its cause, Respondent is correct in its contention on brief that it
would be surprising that Logan bore any animosity toward the
Union. However, taking into consideration (1) what Logan said,
namely pipe down about the Union; (2) an environment where
Austal was unlawfully prohibiting employees from discussing
the Union while they were working even though Austal did not
implement a policy either verbally or in writing prohibiting the
discussion of other nonwork-related subjects; (3) the fact that
Logan was a coordinator over supervisors at the time and it is
reasonable to conclude that an employee would treat what he
was saying as coming from Austal; and (4) Logan’s intent or
motivation is not relevant, a finding that Austal violated the Act
through Logan when he told Hudson two times to pipe down is
warranted. I find Hudson to be a credible witness. Hudson’s
40 It is noted that on cross-examination one of Respondent’s attor-
neys elicited testimony, apparently to show that the violation was not
disseminated, from Hudson that no one other than he and Logan was
present during their first conversation. Also, it appears that Hudson was
alone when Logan approached him by the toolboxes for the second
“pipe down” conversation. That being the case, it is not clear who could
have been called to corroborate Hudson. Nonetheless, Respondent
makes its lack of corroboration argument while at the same time argu-
ing that no one other than Hudson and Logan were involved so the
election should not be set aside.
41 Logan was in Local 441 from September 9, 1990, to December 6,
1996, when he was laid off at Litton. Logan was not a member of the
Union when he worked for Austal.

AUSTAL USA, LLC 403
very specific testimony is credited. Logan’s general denial is
not credited. Logan did not specifically deny Hudson’s testi-
mony.
Austal violated the Act as alleged in paragraph 20 of the
complaint, with the modification of 20(b) to replace the word
“quit” with “pipe down.”
Paragraph 21 of the complaint alleges that about the first
week of April 2008, Respondent, by its newsletter promulgated
and since then has maintained a rule that “[e]mployees have the
right to speak their mind, no matter whether you’re for or
against the union. Just make sure you are doing so during non-
working time rather than when you’re performing your job
duties.”
The General Counsel on brief contends that as in Austal
USA, LLC, 349 NLRB 561 (2007), Austal discriminatorily
restricted employees from discussing the union and violated
Section 8(a)(1) of the Act when Austal published the newsletter
limiting talking about the Union to nonworking time.
The Union on brief argues that on page 3 of the newsletter it
sent to employees just before the election on April 9 Austal
indisputably promulgated a rule which, as here pertinent, reads,
“Employees have the right to speak their mind, no matter
whether you’re for or against the union. Just make sure you are
doing so during nonworking time rather than when you’re per-
forming your job duties”; that the ban on discussion of the
union, while working, was in marked contrast to the existing
practice with regard to discussion of other topics; that there was
no written or unwritten rule that prohibited talking about other
subjects while working; that many witnesses testified that talk-
ing about all manner of things while working was quite com-
mon, and it was accepted so long as the work got done; that
supervisors participated in such conversations; that there is no
evidence of anyone being disciplined for talking, so long at
they’re working too; that there is only evidence of people being
disciplined for talking instead of working, which is different;
and that by imposing a rule against talking about this one sub-
ject, Austal blatantly violated its employee Section 7 rights, and
interfered with the fairness of the election, Sam’s Club, 349
NLRB 1007, 1009 (2007) (unlawful to impose no-talking-
about-union rule while there is no rule against talking about
other subjects).
Respondent on brief contends that the General Counsel’s
own witness, Hudson, confirmed that supervisors counsel em-
ployees to refrain from talking about any subject when work-
ing; that Hudson testified that plenty of times he was told by a
supervisor that he was not to talk about topics that did not relate
to work, other than union matters; that Hudson later testified
“that the ‘no talking’ rule was not enforced, but gave no exam-
ples of when any specific supervisor was aware this was true,
other than when supervisors themselves engaged in the behav-
ior” (R. 15); that later Hudson testified that supervisors were
aware of individuals talking about nonwork-related matters but
identified no one; that employees have been disciplined for
being nonproductive and for talking instead of working, no
matter the subject; that the newsletter was consistent with past
practice and demonstrates that Austal was concerned only that
employees do their jobs when working, particularly due to the
LCS launch schedule; and that Austal required only that em-
ployees refrain from soliciting when working.
Its last contention speaks to Austal’s true intent. Not all dis-
cussions about the Union between employees would involve
solicitation. But Austal wanted to preclude any chance of so-
licitation while employees were working and it wanted to limit,
as much as possible, any discussion among employees about
the Union while they were working. It appears that Austal de-
cided that the best way to do that is to prohibit all communica-
tions about the Union while the employees are working. Gen-
erally, employees are allowed to and have discussed a broad
range of topics unless and until it interferes with their work.
Supervisors, i.e., Steel and others, engage in discussions with
employees regarding nonwork-related topics during working
time. Hudson testified that supervisors talk about nonwork-
related topics during worktime all the time. As pointed out by
the Union, employees are only disciplined if the discussion of
the nonwork-related topics interferes with their work perfor-
mance. Austal did not call a single manager or supervisor to
testify, and it did not introduce a single document to demon-
strate, that Austal has a written or verbal rule which has been
disseminated to its employees prohibiting the discussion of all
nonwork-related topics when employees are working.42 Re-
spondent has not shown that any employee has been disciplined
for talking about any nonwork-related topic when it did not
negatively impact his production or the production of others.
As pointed out by the Union, by imposing a rule against talking
about this one subject, Austal blatantly violated its employee
Section 7 rights, and interfered with the fairness of the election,
Sam’s Club, 349 NLRB 1007, 1009 (2007).
Austal violated the Act as alleged in paragraph 21 of the
complaint.
Paragraphs 22 and 23 of the complaint allege that on March
25, 2008, Respondent terminated employee Carolyn Slay be-
cause she assisted the Union and engaged in concerted activi-
ties, and to discourage employees from engaging in these activ-
ities.
The General Counsel on brief contends that, as found above,
Slay was unlawfully interrogated and threatened by O’Dell
when she brought union T-shirts to work to give to employees;
that on March 24 the Union significantly increased its organiz-
ing efforts by going to employees’ homes and talking to them
about the Union; that on the morning of March 25 the union
handbilled at Austal’s gate with the assistance of over 48 or-
ganizers; that it was no coincidence that when Slay arrived at
her work area on March 25, her welding machine was sabo-
taged; that Slay did not fall asleep while she was working with
Mixon and no one told her that she was accused of sleeping on
the job until the end of the day; that Pate terminated Slay before
even asking Slay for her side of the story; that Tindle and
Richerson’s testimony is replete with contradictions of each
other and lies; that Austal did not call Perciavalle to corroborate
O’Dell’s testimony that a couple of months before Slay was
42 The General Counsel’s request that an adverse inference be drawn
against Respondent based on its failure to produce a copy of a written
work rule notifying all employees that all nonwork-related talking was
prohibited is granted.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 404
terminated Perciavalle told him to terminate any employee
caught sleeping on the job43; that O’Dell’s testimony is not
reliable or believable; that there is no evidence that this alleged
new work rule regarding terminating an employee caught sleep-
ing was disseminated to supervisors, managers, HR personnel,
and/or employees; that there is no showing that this alleged
new work rule was posted on bulletin boards; that this alleged
new work never existed; and that Slay would not have been
terminated but for her protected conduct.
The Union on brief argues that Slay was an active and open
union supporter; that, as admitted by O’Dell, Austal knew of
her prounion stance and activity; that Slay was terminated be-
cause she was an active union supporter; that one of her former
Austal supervisors, Steele, testified that O’Dell was looking for
some way to get rid of Slay; that Austal did not conduct a good-
faith investigation of the alleged sleeping on the job incident;
that on February 1 O’Dell unlawfully threatened and interro-
gated Slay when she brought union T-shirts to work to pass out
to employees; that in March 2008 Austal Supervisor Jackson,
who did not testify at the trial herein, told Slay that manage-
ment was after her and he was trying to save her; that Slay did
not sleep on the job; that if Slay had been sleeping, it would
have been a safety issue of the type that should have been dealt
with immediately in order to avoid a dangerous situation; that
the people who testified that she was sleeping did not testify
that they tried to wake her up; that the reasonable inference is
that they knew that Slay was not sleeping for if they believed
that she was sleeping, they would have woken her up; that re-
markably, in deciding to terminate Slay, Austal did not even
ask Slay or the person she was working with, Mixon, what
evidence they could provide; that Slay’s testimony that she was
terminated even before being asked what happened is corrobo-
rated by the written statements of Eddins and Pate; that this was
a sham investigation designed to reach a predetermined conclu-
sion; that the reality was that this was a handy way to fire high-
profile union supporter Slay; that in its April 21, 2008 position
statement to the Board Austal did not claim that there had been
any new get tough policy about sleeping on the job; and that the
alleged new policy was not published to anyone other that al-
legedly to O’Dell.
Respondent on brief contends that with respect to the termi-
nation of Slay, O’Dell was particularly cautious because Slay
was an open and “heavy” union supporter and he knew there
would be “repercussions” if action was taken; that Pate inter-
viewed Slay44; that the General Counsel’s and the Union’s
failure to call Mixon warrants an adverse inference since it is
reasonably assumed that Mixon would be favorably disposed to
43 In this regard, the General Counsel’s request for an adverse infer-
ence in that Austal failed to call Perciavalle, who would reasonably be
assumed to be favorably disposed toward Austal, is granted.
44 Pate was not called by Respondent to clear up a number of ques-
tions. The General Counsel requests an adverse inference regarding,
among other things, her failure to testify to deny that she told Slay that
she was terminated before she asked Slay for her side of the story. Both
Pate’s written statement, GC Exh. 27, and Eddins’ statement, GC Exh.
16 indicate that Pate terminated Slay before was asked what happened.
In these circumstances, there is no purpose for an adverse inference.
O’Dell is not a credible witness.
the General Counsel’s position as a settled doctrine of law,
Battle Creek Health System, 341 NLRB 882, 884 (2004)45; that
Steel had no involvement in Slay’s discharge; that Austal’s
good-faith belief prevails even if it was mistaken; and that

Vice President of Operations Craig Perciavalle had instructed
O’Dell weeks before Slay’s termination that Austal could not
tolerate employees sleeping on the job any longer, hardly a
surprise considering that the launch deadline was looming
(O’Dell, 699–700). O’Dell further testified, without contra-
diction, that a notice was posted to so inform employees.
(O’Dell, 748) [R. 42 with emphasis added.]

From start to finish, Slay’s termination is based on a fabrica-
tion. The termination is a pretext. The start is the set up which
is testified about by Supervisor Steel. The testimony about
management’s intent is not denied by Supervisor Jackson in
that he was not called as a witness by Austal. The finish is Aus-
tal’s attorneys on brief palming off a further fabrication in Aus-
tal’s attempt to justify its unlawful conduct towards Slay.
The following is Transcript 748:

and repost things? That doesn’t make sense. [46]
Q. BY MS. WALKER: You testified about a verbal con-
versation between yourself and Mr. Percervelli regarding
an employee sleeping at Austal. Do you recall that testi-
mony?
A. Yes.
Q. Who all was at that meeting?
A. Just Craig and I.
Q. When did it occur?
A. I don’t remember.
Q. Let me point you to what’s been marked Respond-
ent’s Exhibit 19. I believe you testified that you posted, or
had someone post, this document on the bulletin boards at
Austal. Is that correct?
45 In the case Respondent cites the individual was a union steward.
Here, Mixon was a bystander employee. Bystander employees are not
presumed to be favorably disposed toward any party and no adverse
inference is drawn against a party for not calling a bystander employee.
Torbitt & Castleman, Inc., 320 NLRB 907, 910 fn. 6 (1996), affd. on
point 123 F.3d. 899, 907 (6th Cir. 1997). Respondent could have called
Mixon as a witness. It is noted that shortly after Slay’s termination,
O’Dell signed a termination document for Mixon for sleeping. The
General Counsel has not requested an adverse inference regarding Pate
to the extent she should have been called by Austal to clear up the
question of whether she acted on her own in terminating Slay in view
of O’Dell’s testimony that she was not on notice that Slay was being
terminated before she, Pate, met with Slay. If O’Dell did not tell her to
terminate Slay before she met with Slay, then the question is on what
basis was she proceeding. There is no evidence of record that she met
with Hartley. O’Dell testified that he would not have proceeded on the
basis of Tindle’s and Richerson’s observation alone. There would have
been a lot of questions to resolve with Pate. Austal choose not to call
her to resolve them. Since it is reasonable to assume that Pate is favora-
bly disposed to Austal, an adverse inference, namely that she would not
have corroborated O’Dell, is warranted with respect to Austal’s failure
to call her.
46 This is a reference by O’Dell to the failure to post a notice for the
handing out of antiunion buttons like R. Exh. 4, which as noted above,
referred to handing out shirts during worktime and in working areas.

AUSTAL USA, LLC 405
A. Yes.
Q. And were notices posted on the bulletin board be-
cause that was the primary and best way to communicate
with the hourly employees at Austal?
A. Yes. Sometimes letters went to their houses.
MS. WALKER: Your Honor, if we could just take a mi-
nute, please?
JUDGE WEST: Off the record.
MS WALKER: Thank you.
(Off the record.)
Q. BY MS. WALKER: Mr. O’Dell, you testified earlier
that you sent a Ms. Buckley to be present at the T-shirt
[The question continues on Tr. 749.]

As noted above, the following notice (R. Exh. 19) was post-
ed, on Austal letterhead:

DATE: September 25, 2007
TO: All Austal Employees
FROM: Jeff O’Dell, Human Resources Director
RE: National Labor Relations Act
_________________________________________________

It has come to my attention that a supervisor asked an
employee to remove stickers or writing from their hard hat
or they could be disciplined. I further understand that the
hard hat contained a pro-union sticker. Please understand
that Austal repudiates this action and wants you to know
that the National Labor Relations Act gives all employees
the right to self-organization, to form, join, or assist labor
organizations, to bargain as a group of [sic] through a rep-
resentative of your own choosing, and to engage in other
protected concerted activities for collective bargaining or
other mutual aid or protection. The National Labor Rela-
tions Act also gives you the right to refrain from such ac-
tivities. Austal values free speech rights of all employees
(whether for or against the union) and wants you to know
that employees may wear stickers on their hats if they so
choose (whether the message is for or against the union).
Austal reaffirms its commitment to respecting employee
rights under the National Labor Relations Act and will not
interfere with those rights.
Hopefully, this will clear up any confusion and you are
encouraged to speak to your supervisor if you have any
questions.

As can be seen, the notice referred to on page 748 of the
transcript in this case has nothing to do with a notice to inform
employees that “Austal could not tolerate employees sleeping
on the job any longer” or even “that the launch deadline was
looming.” This is not an innocent mistake in that Respondent’s
Exhibit 19 is exactly that; it is Respondent’s own exhibit. It is
not an exhibit of the General Counsel or the Union. In my opin-
ion, this amounts to an intentional material misrepresentation of
the record. This is not slanting. This is not an omission. This is
referring to something that has not been shown to exist. It high-
lights the approach taken in this proceeding, and it highlights
Austal’s realization regarding the ramifications of the nonexist-
ence of such a notice.
With respect to Slay’s termination, one expects minor incon-
sistencies in the testimony or statements of two witnesses to the
same event. As noted above and below, Tindle’s and Richer-
son’s renditions have some major inconsistencies.
Before getting into the specifics of March 25, it is helpful for
an understanding of what occurred to go back to former Austal
Supervisor Steele’s testimony. As noted above, I find Steele to
be a credible witness. Steele testified that he and others attend-
ed a meeting in the production room around Thanksgiving 2007
with O’Dell and his assistant, Pate; and that O’Dell told them
“that he wanted to know if we would—if we heard of any of the
people on the floors talking about the union . . . and that if we
knew of anyone that was in favor of the union and they were
talking about it, to let him know immediately.” (Tr. 70.)47
Steele also testified that on other occasions O’Dell (a) asked
him, as here pertinent, to keep his eyes on Slay; (b) told him
that if Slay was not at her jobsite when the bell rang, he wanted
Slay written up; and (c) told him, after he wrote Slay up—even
though she had a valid excuse, that

Claudel [Mack] got rid of the writeup and that what he was
doing was setting Ms. Carolyn up for—he didn’t care about
the writeups. What he was wanting to make it look like Ms.
Carolyn was having a problem with was authority. And with
him moving her from the welding division to the electrical di-
vision, to my crew, and then moving me from—moving her
from my crew to another crew, it’s making her look like she
can’t deal with authority.
And he was setting her up by getting her to move
crews instead of having her written up for not showing up
for something petty. He was just making it look like she
couldn’t get—she couldn’t work with her management.
[Tr. 79.]

The General Counsel requests an adverse inference against
Respondent in that Coordinator Mack was not called by Austal
to deny the existence or explain what he did with the two write-
ups Steele gave him for Slay and why they were not given to
her. The request is granted. The fact that Mack was not called
by Respondent lends further credence to Steele’s testimony.
Slay was moved to Dilley’s crew just after this.
In January or February 2008 when Steele wrote up 16 em-
ployees for being at the timeclock early, O’Dell told him

Chad we don’t want to fire everybody at Austal; we [are] real-
ly only trying to get the people who’s pushing for the union.

And that’s when they was like, look Chad, it’s the un-
ion situation we’re after. . . . We don’t want to write eve-
rybody up. We just want to attack the ones that are going
for the union. . . .
. . . .
47 The General Counsel’s request for an adverse inference regarding
the failure of Pate to testify and deny that O’Dell told supervisors to let
him know which employees were talking about the Union is granted.
Also, the General Counsel’s request for an adverse inference regarding
O’Dell’s failure to deny (a) that when he told the supervisors to report
to him if they knew anyone who was in favor of the Union and talking
about it, and (b) that Steele reported to him that Simon was talking
about the Union is granted.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
He named about five people. He named Ms. Carolyn
Slay. . . . I think he named four. I’m not quite sure. . . . [Tr.
81 and 82.]

The General Counsel requests an adverse inference against
Respondent based on O’Dell’s failure to deny he met with
Steele regarding some writeups prepared by Steele for employ-
ees who were lining up at the timeclock early and telling Steele
that he did not want to fire everybody; just the people pushing
for the Union. O’Dell, who is not a credible witness, did not
specifically deny this testimony of Steel. The General Coun-
sel’s request for this adverse inference against Respondent is
granted.
As noted above, on or about March 10, 2008, Slay got sick
and she had to leave work early to go to the doctor. Supervisor
Jackson told her that if she left early she was to make sure that
she brought an excuse back because they were after her and he
was just trying to save her. Also when Slay had to leave early
one day to pick her little girl up from school, Jackson again told
her to make sure you bring me an excuse because they are after
you and I’m just trying to save you. As noted above, Supervisor
Jackson was not called by Respondent to deny saying this, the
General Counsel’s requests for adverse inferences against Re-
spondent based on Austal’s failure to call Jackson to deny this
testimony are granted, and it is concluded that Austal violated
the Act by Jackson’s statements.
With respect to the inconsistencies between Tindle and
Richerson, it is noted that Tindle, on the one hand, testified that
that on March 25 he was going to block 14 to check on two of
his workers, he climbed down a ladder, and he saw an employ-
ee sitting on what he assumed to be a 5-gallon bucket; that it
could have been about 1:30 p.m.; that the individual on sitting
the bucket had “their face on their hand, with the elbow on the
knee” (transcript page 514); that he “noticed that there was
the head bobbing, . . . . [s]he was sleeping” (Ibid, with empha-
sis added); that he watched for a few minutes and he knelt
down to see if he could see her face; that he could not see her
face, and she had a hoddie on; that she did not respond to him
kneeling down and looking at her face; that while he could not
see her face when he knelt down, it did not follow that she
might not have been able to see his face because “she would
have been able to see my face because mine wasn’t—hers was
partially covered with the hoodie (sweatshirt hood) on. . . . She
had a hoodie on, see, and I couldn’t—I mean, I couldn’t tell
you what she looked like” (Id. at 516); that he knelt down to tell
if her eyes were closed or not and he could not tell; and that he
then “watched for—I’m not sure how much longer it was, but
then another supervisor [Richerson] came up and asked me
what was going on with that, and I said, [i]t looks like they’re
sleeping” (Id. at 516 and 517 with emphasis added); that a few
minutes later, after he spoke with Hartley, he left the area to
talk to his foreman to find out who the involved electrical
foreman was; that when he left he believed that Richerson was
still there; that he found out it was Mack; that he did not know
the employee’s name so he went back to the block and the per-
son was up and walking, “[s]he had her hoodie off, so—had
the hard hat back on. And then when I came back out, I saw the
badge on the board. I got her name, and I took it to Claudel
Mack” (Id. at 521 and 522 with emphasis added); that there is a
requirement that when one is on a ship one has to wear a
hardhat; that Slay was required to wear a hardhat in the area she
was working in on March 25; that he could not see Slay’s hard
hat the first time, “she could have had the hoodie pulled over
the hard hat . . .” (Tr. 522 with emphasis added) and “[s]o I
wouldn’t want to say that she didn’t have it on. I couldn’t see it
the first time.” (Tr. 523, with emphasis added); that he knelt
down to see if he could see her face; that he did not make any
effort to move her to see if he could see her face; that “I actual-
ly wasn’t watching them sleep the whole time. I was trying to
determine whether or not she was sleeping. Once I determined
that I thought she was asleep, then I went to get her fore-
man/supervisor, so that he could take care of the situation” (Id.
at 534); that he watched Slay for 3 to 5 minutes, then he knelt
down to try to see her face for another minute, and then he
continued to watch Slay for 1 to 1.5 minutes with Richerson;
that he knew that the employee who was sleeping was in the
electrical department because the guy sitting there with her had
a green hat on and green is the electrical department; that when
he saw Slay later she was wearing a green hardhat; and that
some of the employees wear their hardhats backwards so the
brim is toward their back.
Richerson, on the other hand, testified that when he climbed
down the ladder into block 14 he saw Slay sitting on a bucket
sleeping; that “Chris [Tindle] was right ahead of me, and he
saw her, and then we walked over to see and looked at her a
couple of minutes, and I bent over, looked her in her eyes, and
she was sleeping” (Tr. 555 with emphasis added); that “[s]he
was sitting on a bucket, had her arms crossed, had her head
down, had a hood over her hard hat” (Id. at 556 with emphasis
added); that her head was not moving in any way; that he did
not see her head bobbing up and down; that he “near about got
on my knees. I bent all the way over. I could see her eyes. She
had a set of, I believe, prescription safety glasses on, and her
eyes were closed” (Ibid. with emphasis added); that he was
about 2 feet from her; that she did not react in any way to him,
and she did not say anything to him; that he asked Tindle what
he wanted to do and Tindle said, “[W]e’ll watch her a few
minutes” (Id. at 557); that they watched her for 5 or 6 minutes
and then Tindle said he was going to speak to his supervisor
and he told Tindle that he was going to speak to his supervisor;
that “we went up—went back up top to check her employee ID
badge [,which was on the board before you go down in the
tank,] to make sure who she is. I had no idea who she was. And
we got her name and all off her ID badge” (Ibid. with emphasis
added); that Tindle went down the ladder into the hold right
ahead of him, we hit the deck about the same time; that he and
Tindle together got the information off Slay’s badge before he
went to his supervisor; that he wrote her name down and he
believed that Tindle did the same; that they then went to their
supervisors; that when he looked into Slay’s face Tindle was
standing right beside him; that Tindle was looking at him when
he was looking at Slay; that he looked at Slay’s face just
enough to tell that she had her eyes closed; that when he got up
he asked Tindle what they should do; that he told Tindle that
her eyes were closed; and that Tindle then said, “[w]ell, we’ll
AUSTAL USA, LLC 407
watch her for a minute or two. And then he said, you go talk to
your supervisor and I’ll go talk to mine” (Tr. 564).
As can be seen, the testimony of Tindle and Richerson differ
with respect to whether they both went into block 14 at the
same time, whether Slay was wearing a hardhat when they
allegedly saw her sleeping [First, Tindle testified that he did not
want to say Slay was not wearing a hardhat when he saw her
the first time because he could not see it.48 Then, Respondent
called Richerson, who testified that Slay had her hoodie over
her hardhat. (Slay testified that she was wearing her hardhat
over her hoodie. Her testimony is credited)], whether her head
was bobbing, whether it was Tindle, or Richerson ,or both who
knelt down or almost knelt down, whether Slay’s eyes were
closed, whether they discussed whether Slay’s eyes were
closed, whether they left block 14 together, and whether Tindle
first noted the name of the employee when he first left block 14
with Richerson, which would have meant that there was no
need for him to later return to the area just outside block 14 to
get the name of the employee. Since there was an obvious in-
consistency in the testimony of Tindle and Richerson on the
point of when Tindle first noted the name of the alleged “sleep-
er” from the badge located just outside block 14, one would
expect that to clear this question up Respondent would have
called Coordinator Mack to testify about whether Tindle did not
have the name of the alleged “sleeper” when he first ap-
proached Mack. Austal did not call Mack as a witness. In view
of the fact that it is reasonable to presume that Coordinator
Mack would be favorably disposed toward Respondent, an
adverse inference is drawn that Mack would not have corrobo-
rated the testimony of Tindle with respect to his conversation
with Mack. The testimony and statements of Tindle and
Richerson are not credited.
The inconsistencies became obvious during the trial. When
O’Dell testified after Tindle and Richerson, he attempted to
bolster the situation by giving some incredible testimony.
O’Dell twice testified that Hartley told him that he threw a
piece of steel on the “ground” to try to wake the employee up.49
This testimony is incredible for a number of reasons. First, a
navy man would never describe the surface he is standing on
while aboard ship as the ground. There is no ground aboard a
ship other than an electrical ground. The ground, to a navy
man, is that which he or she steps on when he or she leaves the
ship. O’Dell, being an infantryman, would describe what he is
standing on in terms of the ground. Second, if Hartley wanted
to wake the employee up who was allegedly sleeping all he had
to do was tap the employee on the shoulder or helmet. Third, no
one other than O’Dell even mentions the throwing of a piece of
steel on the ground. O’Dell is not credible. His testimony is not
credited.
There was no real investigation before Slay was terminated.
As demonstrated by the written statements of Eddins and Pate,
48 Tindle’s testimony is incredible in that (a) for safety reasons em-
ployees are required to wear a hard hat in the involved area, (b) Tindle
did not attempt to explain where Slay’s hard hat was if it was not on her
head, and (c) if a person is wearing a hoodie over a hardhat, it is obvi-
ous.
49 He was subsequently corrected in that on a ship it is not referred to
as the ground.
Slay was not asked about what happened until after she was
terminated. Since Slay was not really interviewed until after she
was terminated, O’Dell’s speculation that Pate interviewed
Mixon is just that. O’Dell is not credible. Austal did not call
Pate as a witness to explain the investigation process and
whether she even interviewed Mixon. Also Austal did not call
Pate to explain on what basis she terminated Slay since O’Dell
testified that Pate was not on notice that Slay was terminated
before Pate interviewed Slay. Indeed, O’Dell testified that
“[Pate] talked to her [Slay] whenever she wrote her up and got
her side of the story, and then we—THEN she and I had a cau-
cus, we talked, she told me what she had to say to her, and then
we went ahead and made the decision.” (Tr. 755, with emphasis
added.) According to the written statements of Eddins and Pate,
this is not what occurred. Pate terminated Slay before Pate “got
her [Slay’s] side of the story.” Since as already noted, it can
reasonably be presumed that Pate, who was O’Dell’s adminis-
trative assistant, would be favorably disposed toward Austal, an
adverse inference is drawn that if she had testified she would
not have corroborated the testimony of O’Dell with respect to
whether she interviewed Mixon before terminating Mixon, and
with respect to whether O’Dell told her even before she inter-
viewed Slay that Slay was terminated. O’Dell is not a credible
witness.
The termination of Slay was a pretext. The evidence relied
on by Austal in its attempt to justify this termination was a
fabrication from start to finish. That being the case there is no
need to go through a mixed motive analysis. Austal violated the
Act as alleged in paragraphs 22 and 23 of the complaint.
B. The Union’s Objections to the Election
1. The Employer, through its agent(s), committed an unfair
labor practice on or about February 1, 2008, by discriminatorily
applying its “no solicitation” policy so that management and
antiunion employees were allowed to discuss antiunion senti-
ments and distribute antiunion campaign insignia on the Em-
ployer’s property and during worktime, while union supporters,
including Carolyn Slay, Tracy Watkins, and Utsetsi Nyanga,
who verbally encouraged union support during worktime and
distributed prounion campaign insignia and materials, including
T-shirts and DVDs were disciplined and/or terminated. This
restraint and intimidation, which was known to all employees
and eligible voters, rendered them unable to exercise free
choice of a bargaining unit agent in the election.
Objection 1 is sustained. Austal promulgated its no-solici-
tation/no-distribution policy during the critical preelection peri-
od. Indeed, Respondent has not credibly demonstrated that this
policy was conceived before the Board’s March 21, 2007 deci-
sion setting aside the first election and remanding the case for a
second election. O’Dell is not a credible witness. An adverse
inference is drawn from Austal’s failure to call Spiegel to testi-
fy, namely that if called, Spiegel would not have corroborated
O’Dell. Consequently, there is no credible evidence of record
with respect to when the employee handbook was conceived.
The evidence demonstrates that it was disseminated to employ-
ees in November 2007, well after the March 21, 2007 Board
decision herein. Before this employee handbook, Austal did not
have a formal written policy regarding soliciting at work. Other

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
than the revival of the union campaign for the second election,
it is not shown that anything happened at the facility which
would explain why Austal adopted this new no-solicitation
policy at the time it did. Perhaps the fact that the employee
handbook which contains Austal’s first formal no-
solicitation/no-distribution policy also contains for the first time
a statement on unions, namely “Austal is a union free facility,”
provides the answer. (P. 1 of GC Exh. 5.) As concluded above,
Austal’s new no-solicitation/no-distribution policy was selec-
tively and disparately enforced in violation of the Act.50 As the
Board pointed out in Harry M. Stevens Services, 277 NLRB
276, 276 (1985) “an otherwise valid [no-solicitation/no-
distribution] rule violates the Act when it is promulgated to
interfere with the employee right to self organization rather
than to maintain production and discipline.” (Citations omit-
ted.)
2. The Employer, through its agent(s), committed an unfair
labor practice by implementing an employee handbook in No-
vember 2007 for the first time since the facility began opera-
tions. This institution of the employee handbook was virtually
contemporaneous with the offers of reinstatement of discrimi-
natees terminated prior to the first election. This employee
handbook was an effort to threaten and intimidate employees,
and rendered them unable to exercise free choice of a bargain-
ing unit agent in the election.
Objection 2 is sustained. The Union points out that Austal’s
“STATEMENT ON UNIONS,” namely that “Austal is a union-
free facility,” which appears on page 1 of the employee hand-
book disseminated to employees in November 2007 does not
appear in Austal’s preliminary draft of the employee handbook
(R. Exh. 18). For the reasons specified with respect to Objec-
tion 1, the one thing that has been established is that Austal’s
first real employee handbook came into being, as far as the
employees were concerned, during the critical preelection peri-
od. Also, what has been established is that Austal used its first
published employee handbook to engage in unlawful conduct,
as set forth above.
3. The Employer, through its agent(s), Jeff O’Dell committed
an unfair labor practice on or about March 19, 2008, by unlaw-
fully interrogating employees, including Carl Hudson, regard-
ing their union activities, sentiments, and affiliation. This inter-
rogation coerced and intimidated the employees rendering them
unable to exercise their free choice of a bargaining unit agent in
the election.
Objection 3 is sustained. Hudson is a credible witness.
O’Dell and Crawley are not. On March 19 Hudson was not
wearing a union shirt when he spoke with O’Dell in the pres-
50 I do not credit Austal’s claim that Godwin was disciplined. O’Dell
lied under oath about meeting with Godwin twice to tell him not to
distribute antiunion buttons during work time. Godwin, in effect, de-
nied that he was disciplined. Godwin testified that he did not meet with
O’Dell regarding the past distribution of antiunion buttons. Godwin
was not aware of any verbal warning. Notwithstanding this, Austal did
not call Supervisor Hymel to explain the situation. This drew an ad-
verse inference that if Hymel were called, he would not corroborate
O’Dell that Godwin was disciplined. This means that Austal has failed
to establish that Hymel’s alleged documentation of a verbal to Godwin
is not a fabrication.
ence of Crawley. Also, Hudson was not wearing a union shirt
on March 18 when he spoke with O’Dell. As concluded above,
Respondent violated the Act during their March 19 conversa-
tion by impliedly threatening Hudson that Austal would not
hire a union supporter. The prelude to the implied threat was
what, in my opinion, was an unlawful interrogation. Austal did
not show that O’Dell was aware that Hudson was an open and
active union supporter, which would be taken into considera-
tion in determining whether that interrogation was unlawful.
The interrogation was combined with the implied threat. Com-
ing from the HR director in the HR director’s office, this result-
ed in intimidation and coercion. Notwithstanding that this inter-
rogation is not alleged to be an unfair labor practice, it was
objectionable.
4. The Employer, through its agent(s), Jeff O’Dell committed
an unfair labor practice on or about February 1, 2008, by un-
lawfully threatening Carolyn Slay with termination in retalia-
tion for her union activities. This threat of termination coerced
and intimidated the employees rendering them unable to exer-
cise their free choice of a bargaining unit agent in the election.
Objection 4 is sustained. This objection is identical to para-
graph 12(a) of the complaint herein. As noted above, it is con-
cluded that Austal violated the Act as alleged in paragraph
12(a).
5. The Employer, through its agent(s), committed an unfair
labor practice on or about March 25, 2008, by terminating Car-
olyn Slay for her support of the union and exercise of Section 7
rights. Many employees and eligible voters had knowledge of
the termination of this vocal union supporter because of her
union activities which rendered them unable to exercise free
choice of a bargaining unit agent in the election.
Objection 5 is sustained. This objection is identical to para-
graphs 22 and 23 of the complaint herein. As noted above, it is
concluded that Austal violated the Act as alleged in paragraphs
22 and 23.
7. The Employer, by and through its agent(s), on or about
March 28, 2008, and continuing up through the election, of-
fered gifts, bribes, or other financial assistance to employees
and eligible voters by announcing upcoming employee-only car
auctions. This was the first such offer of car auctions since the
facility began operations. This gift, bribe, or other financial
assistance coerced the entire work force because it was offered
to all employees just weeks prior and up to the election. All
employees and eligible voters were offered these inducements
rendering them unable to exercise free choice of a bargaining
unit agent in the election.
Objection 7 is overruled. Contrary to the position taken by
the Union, while the timing of this event may be cause for
speculation, this was not a gift, bribe, or other financial assis-
tance to coerce employees. It was not shown that the sale of the
idled (in terms of activity and not value) vehicles was anything
other than an arm’s-length transaction with the vehicles being
sold at fair market value. Also, in my opinion, the timing of the
event (the decreasing expatriate staff) was adequately ex-
plained.
The remaining objections will be taken out of order so that
those objections dealing with Austal’s newsletter can be ana-
lyzed together.

AUSTAL USA, LLC 409
9. The Employer, by and through its agent(s) granted the
benefit of an improved physical working condition in Novem-
ber 2007 by providing a concrete walkway from the employee
parking lot to the shipyard. This grant of benefit before the
election coerced all employees and eligible voters rendering
them unable to exercise free choice of a bargaining unit agent
in the election.
Objection 9 is overruled. Austal’s planned unit development
plan created in November 2006 includes the 1150-foot long
involved sidewalk to Austal’s facility from the employees’
parking lot at Addsco Road and Dunlap Drive. (R. Exh. 36
which is dated “11/07/2006”.) The job was put out for bids in
June 2007 and the estimated completion date was July 2007.
The sidewalk had become a safety issue in that hundreds of
employees were walking either down the middle of Dunlap
Drive or in the grass at the side of the street. As indicated
above, Supervisor Steele testified that before the sidewalk was
installed, he was run over by a Mobile Department of Transpor-
tation truck when he was walking on the side of the road from
Austal’s big parking lot to work. It has been demonstrated that
the sidewalk was planned before the Board’s March 21, 2007
decision. The critical period in a second election is that period
between the first and second election, Star Kist Carbide, Inc.,
325 NLRB 304 (1998), citing Times Wire & Cable Co., 280
NLRB 19, 20 fn. 10 (1986), and Singer Co., 161 NLRB 956
(1966). But it would have been a disservice to employees and
anyone else walking between the involved parking lot and Aus-
tal’s facility to delay the installation of the sidewalk. Inasmuch
as a matter of safety was involved, I do not believe that it can
be concluded that the overriding purpose of this benefit or the
timing thereof was meant to influence the outcome of the se-
cond election.
10. The Employer, through its agent(s), granted the benefit
of a travel agent program within weeks of the election. Prior to
the re-initiation of the union organizing campaign, there had
not been any travel agent program. This program was estab-
lished to coerce all employees and eligible voters in and effort
to threaten and intimidate them, and rendered them unable to
exercise free choice of a bargaining unit agent in the election.
Objection 10 is overruled. The evidence proffered by the Un-
ion with respect to this objection is inconclusive.
12. The Employer, through its agent(s), Jason Clark and
Brandon Henderson, unlawfully interfered with the election and
interrogated and/or polled employees by having supervisors
distribute antiunion campaign insignia, including “Austal—
Union Free and Proud to Be” T-shirts. This conduct was coer-
cive to all employees and eligible voters and was an effort to
threaten and intimidate them, and rendered them unable to ex-
ercise free choice of a bargaining unit agent in the election.
Objection 12 is sustained. This objection is substantially
identical to paragraph 18 of the complaint herein. As noted
above, it is concluded—for the reasons specified above—that
Austal violated the Act as alleged in paragraph 18.
11. The Employer, through its agent(s), granted the benefit
of a mail order prescription drug service on or about April 5,
2008. Prior to the re-initiation of union organizing campaign,
there had not been any mail order prescription benefit service.
This program was established to coerce all employees and eli-
gible voters in and effort to threaten and intimidate them, and
rendered them unable to exercise free choice of a bargaining
unit agent in the election.
The Union on brief contends as follows regarding objection
11:

The law, as reflected in such cases as Sun Mart Foods,
341 NLRB 161 (2004), is that a new benefit granted dur-
ing the critical period will be presumed objectionable. An
employer can perhaps rebut that presumption, by proving
to the Board’s satisfaction that there was a legitimate rea-
son for the timing, other than a desire to sway the election.
But as explained in Sun Mart Foods, an employer cannot
prevail merely by showing that the timing of its decision
to grant the benefit was legitimate; even if the decision
was not timed to interfere with the election, still an an-
nouncement to employees about the new benefit is objec-
tionable unless the employer has evidence to explain a le-
gitimate reason for the timing of the announcement.
Here the evidence shows that both the decision and the
announcement came in the critical period. Indeed, the ini-
tial decision to talk with Blue Cross about possibly procur-
ing this benefit came as the Union was ramping up its
campaign. And the employer’s prominent announcement
of the new benefit came just days before the election, in a
newsletter sent to employees (e.g., Tr. 295, Tr. 173); and
that announcement was part of a newsletter that was di-
rected explicitly towards convincing employees not to vote
for the Union.2
___________________
2 Several employees testified to having received the
newsletter. Based on that testimony, and based on the very
nature of the newsletter itself, it is apparent that the news-
letter was intentionally disseminated by Austal itself to
most if not all of the voting-eligible employees. That was,
on the face of the newsletter, the purpose; to reach the em-
ployees before they voted. Therefore, it should be found
that the newsletter (including the various objectionable as-
pects of it) received very wide dissemination; and so these
grounds for objection easily warrant a new election in
themselves.

Austal’s Human Resources Director O’Dell asked
Human Resources employee Lindley to check on the pos-
sibility of a prescription drug mail order benefit in No-
vember or December of 2007. [Tr. 599.] This was trig-
gered by an employee request, made during a meeting of
employees. [Tr. 600, 614–615.] As we have noted, this
was when the Union’s campaign was picking up steam,
following the reinstatement of discriminatees. Lindley
contacted Blue Cross in December 2007 [GC Exh. 29].
Austal then negotiated with Blue Cross and reached an
agreement in January 2008. [Tr. 601.] The effective date
was February 1, 2008 [Tr. 602; U. Exh. 5]. This was an-
nounced to employees in the early April newsletter, and by
posting in January. [Tr. 603.]
The April newsletter, on the eve of the election, could
hardly have been clearer in its tying of this new benefit to
Austal’s plea for anti-union votes. The opening of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
newsletter [GC Exh. 12] had Austal President/CEO Bob
Browning telling employees, “In the next few days many
of you will be asked to decide whether you want a union
to represent you . . . .. In my opinion, the best yardstick
you can use to determine working conditions in the future
is by looking at how far we’ve come from the past. Ac-
tions speak far louder than words! As far as promises
made by others outside the company, talk is cheap!” Thus
Browning explicitly asked employees to consider the
change in working conditions that Austal had made, as a
reason to expect more in the future if the employees voted
against the Union. Page four of that very same newsletter
than had an “article” about the new mail order prescription
drug benefit, touting its benefit in terms of “cost” (re-
duced) and “convenience” (increased).
Thus Browning’s message was a perfect example of
the very reason why Board law has long recognized this
sort of new benefit as objectionable: it is the classic “iron
fist in the velvet glove” routine.
As to the timing of the decision to grant the new bene-
fit, Austal certainly has not rebutted the legal presumption
that this was an effort to sway the election. In fact, the tim-
ing was very much out of line with what would have been
the norm. That is, the annual renewal date for Austal’s
contract with Blue Cross is December 1; that date is gen-
erally when any contract changes in the benefits become
effective. [Tr. 619–620.] Austal had already just gone
through that date, and yet it soon thereafter decided to add
the prescription drug benefit. [Tr. 620.] Obviously Austal
was doing something out of the ordinary here, in terms of
the timing of its decision to add this benefit. The obvious
reason, unrebutted by any real evidence, is that the timing
reflects an intention to sway the election.
And as to the announcement of the benefit, the news-
letter on the eve of the election is crystal-clear. True, there
had been a posting of the new benefit earlier, but there is
no evidence to show that such a posting would have been
widely noted. There was, quite obviously, a reason why
Austal decided to put this article about the new benefit in
the newsletter that it distributed on the eve of the election.
One does not have to be a mind reader to see the reason. In
the context of the anti-union appeals in the newsletter, in-
cluding Browning’s plea that employees should consider
past improvements in working conditions as they think
about their vote, this was perfectly clear. The reason for
the timing of this announcement is that the election was
very close at hand:

For this reason, both the decision to grant the new ben-
efit, and the trumpeting of it in the election-eve news-
letter were objectionable conduct under Sun Mart
Foods and similar case law. The election should be set
aside on this basis. [P. Br. 4–8, with emphasis in origi-
nal.]

Respondent on brief argues that Austal’s actions were entire-
ly lawful; that Austal “explored the change in December
2007—almost 4 months before the election—not weeks before
the election as the union alleges” (R. Br. 70); that there is not
evidence that there was any discussion of the Union, the effect
such a program might have on an organizing attempt, or even if
a significant amount of employees would be interested in using
the option; that Lindley testified that the program had nothing
to do with the union election; that “no election had been sched-
uled when she announced the option in January; and that the
Union, therefore, failed in its burden to show that the mere
addition of a mail order option to an existing insurance plan
could somehow threaten and intimidate employees.
First, as can be seen above, the Union does not allege that
Austal explored the change “weeks before the election.” Se-
cond, unless Lindley is a mind reader, she could not know
whether the mail order drug option had anything to do with the
Union. Third, Austal’s attorneys appear to be laboring under a
misunderstanding of the law. As a matter of law, the critical
period for the second election is that period between the first
election and the second election. The critical period is not the
period between the date when the holding of the second elec-
tion was announced and the holding of the second election.
Fourth, the Union does not have any burden to show that the
mail order option threatens and/or intimidates employees. The
Union’s counsel has fully and correctly explained what is in-
volved. For the reasons she gives, Objection 11 is sustained.
8. The Employer, by and through its agent(s), on or about
April 5, 2008, promised to improve parking conditions by pav-
ing the parking area for all employees, installing sufficient
lighting for improved safety, landscaping, creating multiple
entrance/exit locations; providing effective drainage, clearly
marking parking spaces, fencing for improved security, and
building a covered walkway from the employee parking lot to
the shipyard. This promise before the election coerced all em-
ployees and eligible voters rendering them unable to exercise
free choice or a bargaining unit agent in the election. The Em-
ployer, by and through its agent(s) granted the benefit of lim-
ited parking lot improvements by grading the parking lot prior
to the election. This grant of benefit before the election coerced
all employees and eligible voters rendering them unable to
exercise free choice of a bargaining unit agent in the election.
The Union on brief contends that at the very least, the timing
of the announcement of the improved parking facility, in the
same election-eve newsletter that was used to announce the
mail order prescription benefit, was an objectionable effort to
sway the election, and was therefore, unlawful under the case
law described under Objection 11 above; that the employees
had been complaining about the parking lot for some time; that
an internal Austal e-mail (U. Exh. 3) reflects that as of late
February 2008, just about 6 weeks before the election, Austal
was preparing an article for the employee newsletter to discuss
the “parking situation” that management “hears so much
about”; that in context, this reflects a plan by management to
communicate to employees on the eve of the election that a new
benefit was coming to address a problem that employees had
been complaining about for some time; that the newsletter
which came out to all employees just days before the election
touted the improvements that were planned for the parking lot;
that the best inference from the evidence is that even the timing
of Austal’s decisions was, in substantial part, based on a desire
to defeat the union campaign; that all of the relevant decisions
AUSTAL USA, LLC 411
took place within the critical period, and indeed took place after
the Board’s decision setting aside the first election; that Aus-
tal’s decision took place at a time when Austal knew that it
would be facing another election; that Austal wanted to win,
and so it decided to use the age-old but patently objectionable
tactic of granting new benefits; that even if there were doubt
about whether the timing of the decision was objectionable, still
it is clear that the timing and nature of the newsletter an-
nouncement was objectionable; that an election should be set
aside when the announcement of a benefit is timed to affect the
election; and that under the authorities cited above, this objec-
tion requires a new election.
Respondent on brief argues that Austal’s parking lot had
nothing to do with the election; that the parking lot changes
were already known to employees for a considerable time prior
to the election; that, therefore, the brief section in the April
newsletter was simply included to provide an update as to the
status of the project; and that plans for the parking lot had pre-
viously been disclosed to employees in April 2007.
As noted above, the article in question, which appears on
page 3 of the newsletter disseminated in April 2008 just before
the election is titled “Improved Employee Parking.” This arti-
cle reads in part as follows:

. . . . The current parking area leaves little to be desired. How-
ever, our long-term plans include a complete revamping of
our parking areas that will include:

Paved parking areas for all employees
Sufficient lighting for improved safety
Landscaping
Multiple entrance/exit locations
Effective drainage (no more puddles to navigate)
Clearly marked parking spaces
Effective fencing for improved security

The current employee parking lot will be paved and
remain as the parking area for Shipyard employees. Em-
ployees working in the modular facility will be parking on
the South and East side of the new facility.
Our current plans include breaking ground mid-year
and finishing construction by July of 09. While this might
seem like a long time to wait, the results will be well
worth the wait. . . .

The timing of the planned improvements to the current parking
lot, and the timing of the announcement were meant to unlaw-
fully influence voters in the upcoming election. The critical
period here is from the first election to the second election. This
portion of the newsletter which was mailed to employees just
before the second Board election was an objectionable effort to
sway the election. The Union’s contentions are correct. Objec-
tion 8 is sustained.
17. The Employer, through its agent(s), Bob Browning, on or
abut April 5, 2008, unlawfully threatened all employees and
eligible voters with reprisals and or retaliation by stating in the
Aluminum Times newsletter that “If a union is elected, the very
basis upon which the employer-employee relationship is based
will change. No longer will it be permissible for you as an indi-
vidual, to deal directly with us and negotiate the terms of your
employment, your concerns, or your working conditions. By
law, your right will have been handed over to the union to do
your talking for you.”
The Union on brief contends that Austal told employees that
if they voted for the Union and the Union won the election
individual employees would no longer be permitted to bring
even their “concerns” to management on their own; that this
was in contrast to the situation as it existed before the election,
under which employees were told that they were welcome to
bring any of their concerns to management if they wished (see
Respondent’s open door policy in Austal’s employee hand-
book, GC Exh. 5, p. 1); that the statement was patently unlaw-
ful under Associated Roofing & Sheet Metal, 255 NLRB 1349
(1981); that as the Board recognized in Associated Roofing, in
assessing an extremely similar set of facts, this type of message
amounts to a threat that the employer will unilaterally withdraw
an existing benefit if the employees vote the union in; that as
recognized in Associated Roofing, even union-represented em-
ployees do have the legal right to deal with the employer direct-
ly, so long as their adjustment of their own grievances is not
inconsistent with the collective-bargaining agreement; that here
as in Associated Roofing, the employer threatened to take away
that right unilaterally; and that this threat, which Austal inten-
tionally disseminated to all employees on the eve of the elec-
tion, is enough in itself to require a new election. See Associat-
ed Roofing; Dent’s Poultry, 260 NLRB 1219 (1982); Greens-
boro News Co., 257 NLRB 701 (1981); and Mead Nursing
Home, Inc., 265 NLRB 1115 (1982).
The Respondent on brief argues that Austal’s newsletter law-
fully stated that its relationship with its employees would
change if the Union was elected; and that the Board has long
held that such language is perfectly legitimate, starting with
Tri-Cast, Inc., 274 NLRB 377 (1985), up through International
Baking Co. & Earthgrains, 348 NLRB 1133 (2006).
In Tri-Cast, Inc., supra, the Board, Chairman Dotson, and
Members Hunter and Dennis, was faced with a situation where
the employer distributed a letter to employees on the day of the
election indicating as follows:

We have been able to work on an informal and person-
to-person basis. If the union comes, in this will change.
We will have to run things by the book with a stranger,
and will not be able to handle personal requests as we have
been doing. [Emphasis added.]

The Regional Director concluded that these statements misrep-
resented employee rights under Section 9(a) of the Act; that
they amounted to a threat to take away existing rights since the
employer was implying, contrary to Section 9(a), that personal
requests would not be handled as before because of unioniza-
tion; and that, citing—among other cases—Greensboro News
Co., 257 NLRB 701 (1981), the statements were objectionable
and warranted setting aside the results of the election. The
Board indicated as follows:

We do not agree with the Regional Director’s finding
that the Employer threatened to withdraw rights preserved
by Section 9(a). The Employer’s statement, crafted in
layman’s terms, simply explicates one of the changes
which occur between employers and employees when a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
statutory representative is selected. There is no threat, ei-
ther explicit or implicit, in a statement which explains to
employees that, when they select a union to represent
them, the relationship that existed between the employees
and the employer will not be as before. This is especially
so, as implied in the Employer’s statement here, where a
collective-bargaining agreement is negotiated. [Footnote
omitted.] Section 9(a) thus contemplates a change in the
manner in which employer and employee deal with each
other. For an employer to tell its employees about this
change during the course of an election campaign cannot
be characterized as an objectionable retaliatory threat to
deprive employees of their tights, but rather is nothing
more or less than permissible campaign conduct.5
________________
5 Cf. Eagle Comtronics, Inc., 263 NLRB 515 (1982). To the
extent that the cases relied on by the Regional Director, cited
above, are to the contrary, they are overruled.

In International Baking Co. & Earthgrains, supra, the Board,
Chairman Battista and Members Liebman and Schaumber,
with, as here pertinent, Member Liebman dissenting, was faced
with a situation where the employer told the employees that in
the event they were even 5 minutes late getting to work “unfor-
tunately under a union contract if there is a disciplinary proce-
dure in that union contract we would not have the luxury of
deviating from it because we end up with union grievances as a
result of it.” At page 1135, the majority of the Board indicated
as follows:

Generally, an employer does not violate the Act by in-
forming employees that unionization will bring about “a
change in the manner in which employer and employee
deal with each other.” Tri-Cast, Inc., 274 NLRB 377
(1985). An employer may lawfully tell its employees that
its freedom to deal directly with them will be constrained
if they choose union representation. This is especially so,
where, as implied in . . . [the employer’s] statements, the
change would be as the result of a negotiated collective-
bargaining agreement. The fact that such a statement
might tend to discourage union support among employees
who prefer to deal with their employer on an individual
basis, does not render the statement unlawful. [Footnote
omitted.]

In the instant proceeding, Browning, as here pertinent, wrote
“No longer will it be permissible for you as an individual, to
deal directly with us and negotiate the terms of your employ-
ment, your concerns, or your working conditions.” (Emphasis
added.) In my opinion, current Board law dictates that this
statement is not unlawful. Consequently, Objection 17 is over-
ruled.
At the outset of the trial herein Respondent, citing Coastal
Lumber Co., 332 NLRB 1597 (2001), argued that alleged unfair
labor practices not mentioned in the objections should not be
considered with respect to whether the second election should
be set aside. The Union on brief points out that in Coastal
Lumber Co. there were no objections filed at all and that is why
the alleged misconduct which the employer belatedly raised in
test-of-certification case could not be considered as grounds for
setting an election aside; that here by contrast the Union did file
timely objections which cover nearly all of the matters ad-
dressed at the hearing; and that Austal’s contention has no real
force in this case. Respondent revisits this issue on brief. Here,
timely objections have been filed. Those which have been sus-
tained justify setting aside the second election.
Since Petitioner’s Objections 1, 2, 3, 4, 5, 8, 11, and 12 are
sustained, it is recommended that the results of the election held
on April 9 be set aside and that Case 15–RC–8394 be remanded
to the Regional Director for Region 15 for the purpose of con-
ducting a new election at such time as she deems the circum-
stances permit the free choice of a bargaining representative.
Upon the basis of the foregoing findings of fact, and upon
the entire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent com-
mitted unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) of the Act.
(a) About December 2007, Respondent, by James Thomas, at
its facility, told employees that they would not be promoted
because of their support for the Union.
(b) About the last week of January 2008 or the first week of
February 2008, Respondent, by Chad Steele, told employees
they could not discuss the Union during working hours.
(c) Since about February 1, 2008, Respondent, by Roderick
Jackson, threatened employees with termination because of
their activities and support of the Union.
(d) About February 1, 2008, Respondent, by Jeff O’Dell, at
its facility (1) threatened employees with termination because
of their activities on behalf of the Union, and (2) interrogated
employees about their union activities and the union activities
of other employees, and (3) has, at all material times, selective-
ly and disparately enforced Respondent’s distribution and solic-
itation rule by prohibiting union solicitations and distributions,
while permitting nonunion solicitations and distributions.
(e) On March 19, 2008, by Jeff O’Dell and in about the last
week of March 2008 by Terry Crawley, impliedly threatened its
employees that it would not hire union supporters.
(f) About March 19 and 28, 2008, Respondent interrogated
its employees about their support for or against the Union by
soliciting employees to accept antiunion shirts.
(g) Respondent, by Gary Logan, at its facility, (1) on or
about late March 2008 or early April 2008, told employees who
were talking about the Union that they needed to pipe down on
the union stuff, and (2) on or about the first week of April 2008,
told employees who were talking about the Union to other em-
ployees that they should pipe down.
(h) About the first week of April 2008, Respondent, by its
newsletter promulgated and since then has maintained a rule
that “[e]mployees have the right to speak their mind, no matter
whether you’re for or against the union. Just make sure you are
doing so during nonworking time rather than when you’re per-
forming your job duties.”
AUSTAL USA, LLC 413
4. By, on March 25, 2008, terminating the employment of its
employee Carolyn Slay because she assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in those activities, Respondent committed unfair
labor practices contrary to the provisions of Section 8(a)(1) and
(3) of the Act.
5. The unfair labor practices set forth above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Respondent has not violated the Act in any other manner.
6. By the foregoing violations of the Act that occurred during
the critical period before the second election, and by the con-
duct cited by Petitioner in its Objections 1, 2, 3, 4, 5, 8, 11, and
12, Respondent has prevented the holding of a fair election, and
such conduct warrants setting aside the election conducted on
April 9, 2008, in Case 15–RC–8394.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ee Carolyn Slay, it must offer her reinstatement and make her
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended51
ORDER
The Respondent, Austal USA, L.L.C., of Mobile, Alabama,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they would not be promoted be-
cause of their support for the Union.
(b) Telling employees they could not discuss the Union dur-
ing working hours.
(c) Threatening employees with termination because of their
activities and support of the Union.
(d) Threatening employees with termination because of their
activities on behalf of the Union, interrogating employees about
their union activities and the union activities of other employ-
ees, and selectively and disparately enforcing Respondent’s
distribution and solicitation rule by prohibiting union solicita-
tions and distributions, while permitting nonunion solicitations
and distributions.
(e) Impliedly threatening its employees that it would not hire
union supporters.
51 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(f) Interrogating its employees about their support for or
against the Union by soliciting employees to accept antiunion
shirts.
(g) Telling employees who were talking about the Union that
they needed to pipe down on the union stuff.
(h) Promulgating and maintaining a rule that “[e]mployees
have the right to speak their mind, no matter whether you’re for
or against the union. Just make sure you are doing so during
nonworking time rather than when you’re performing your job
duties.”
(i) Discharging or otherwise discriminating against any em-
ployee for supporting Sheet Metal Workers International Asso-
ciation Union, Local 441 or any other union.
(j) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Carolyn Slay full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Carolyn Slay whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify the employee in writing that this
has been done and that the discharge will not be used against
her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Mobile, Alabama, copies of the attached notice marked
“Appendix.”52 Copies of the notice, on forms provided by the
Regional Director for Region 15, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
52 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since December
2007.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that Petitioner’s Objections 1, 2, 3, 4,
5, 8, 11, and 12 to the election held by the Board in Case 15–
RC–8394 be sustained, the second election is set aside, and said
case is remanded to the Regional Director for Region 15 for the
purpose of conducting a third election at such time as she
deems the circumstances permit the free choice of a bargaining
representative, and with a notice of election consistent with the
findings here.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT tell you that you would not be promoted be-
cause of your support for Sheet Metal Workers International
Association Union, Local 441.
WE WILL NOT tell you that you can not discuss the Union dur-
ing working hours.
WE WILL NOT threaten you with termination because of your
activities and support of Sheet Metal Workers International
Association Union, Local 441.
WE WILL NOT threaten you with termination because of your
activities on behalf of Sheet Metal Workers International Asso-
ciation Union, Local 441.
WE WILL NOT interrogate you about your union activities and
the union activities of other employees.
WE WILL NOT selectively and disparately enforce our distri-
bution and solicitation rule by prohibiting union solicitations
and distributions, while permitting nonunion solicitations and
distributions.
WE WILL NOT impliedly threaten you that we would not hire
union supporters.
WE WILL NOT interrogate you about your support for or
against Sheet Metal Workers International Association Union,
Local 441 by soliciting you to accept antiunion shirts.
WE WILL NOT tell you when you are talking about Sheet Met-
al Workers International Association Union, Local 441 that you
need to pipe down on the union stuff.
WE WILL NOT promulgate and maintain a rule that
“[e]mployees have the right to speak their mind, no matter
whether you’re for or against the union. Just make sure you are
doing so during nonworking time rather than when you’re per-
forming your job duties.”
WE WILL NOT discharge or otherwise discriminate against
you for supporting Sheet Metal Workers International Associa-
tion Union, Local 441, or any other union.
WE WILL NOT in any like or related manner interfering with,
restraining, or coercing you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Carolyn Slay full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Carolyn Slay whole for any loss of earnings
and other benefits resulting from her discharge, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Car-
olyn Slay, and WE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the discharge will not
be used against her in any way.

AUSTAL USA, LLC