International Ship Repair & Marine Services, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1999

329 N.L.R.B. 213 (N.L.R.B. 1999)

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 213
International Ship Repair & Marine Services, Inc.
and Tampa Metal Trades Council, AFL–CIO.
Cases 12–CA–18879 and 12–RC–08105
September 23, 1999
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On February 17, 1999, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and an an-
swering brief. The General Counsel filed cross-
exceptions, a supporting brief, and an answering brief.
The Respondent filed a reply brief to the General Coun-
sel’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, International Ship Repair & Marine Ser-
vices, Inc., Tampa, Florida, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Assigning employees more onerous working condi-
tions because of their union activity.
(b) Suspending employees because of their union ac-
tivity.
(c) Laying off employees because of their union activ-
ity.

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings. In addition, some of
the Respondent’s exceptions imply that the judge’s rulings, findings,
and conclusions demonstrate bias and prejudice. On careful examina-
tion of the judge’s decision and the entire record, we are satisfied that
the Respondent’s contentions are without merit.
In adopting the judge’s findings regarding the Respondent’s selec-
tion of employee Arthur Davenport for layoff, Member Brame finds it
unnecessary to rely on the judge’s conclusion that Foreman Tyrone
Parker’s testimony was internally inconsistent; rather, he finds it suffi-
cient to rely on the inconsistency of Parker’s testimony in this regard
with that of Supervisor Jonathan Pollack.
2 The judge inadvertently omitted from his recommended Order and
notice reference to all the 8(a)(3) violations he found. We shall modify
the judge’s recommended Order and notice to conform to the violations
found. We shall also modify the judge’s recommended Order in accor-
dance with Excel Container, 325 NLRB 17 (1997).
(d) Refusing to recall employees because of their un-
ion activity.
(e) Threatening employees with plant closure and relo-
cation if they choose to be represented by the Union.
(f) Threatening employees with unspecified reprisals
because they have engaged in union activities.
(g) Threatening employees with discharge because
they have engaged in union activities.
(h) Warning employees that it would be futile for them
to choose to be represented by the Union.
(i) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Arthur Davenport full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Arthur Davenport whole for any loss of earn-
ings or other benefits suffered as a result of the discrimi-
nation against him, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the assignment of more
onerous working conditions to Arthur Davenport, as well
as the unlawful layoff, suspension, and refusal to recall
him, and within 3 days thereafter notify Davenport in
writing that this has been done and that the assignment of
more onerous working conditions, layoff, suspension,
and refusal to recall him will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Tampa, Florida, copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 12, 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. Reasonable steps shall be taken by the Respon-
dent 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
3 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.”
329 NLRB No. 27
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 214
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 17, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification by a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the election held on June
30, 1997, in Case 12–RC–08105 is set aside and that the
case is remanded to the Regional Director for Region 12
to conduct a new election when he deems the circum-
stances permit the free choice of a bargaining representa-
tive.
[Direction of Second Election omitted from publica-
tion.]

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT assign employees more onerous working
conditions because of their union activity.
WE WILL NOT suspend employees because of their un-
ion activity.
WE WILL NOT lay off employees because of their union
activity.
WE WILL NOT refuse to recall employees because of
their union activity.
WE WILL NOT threaten employees with plant closure
and relocation if they choose to be represented by the
union.
WE WILL NOT threaten employees with unspecified re-
prisals because they engaged in union activities.
WE WILL NOT threaten employees with discharge be-
cause they have engaged in union activities.
WE WILL NOT warn employees that it would be futile
for them to choose to be represented by the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Arthur Davenport full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights and privileges previously enjoyed.
WE WILL make Arthur Davenport whole for any loss of
earnings and other benefits resulting from the discrimina-
tion against him, less any net interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the as-
signment of more onerous working conditions to Arthur
Davenport, as well as the unlawful suspension, layoff,
and refusal to recall him, and WE WILL, within 3 days
thereafter, notify him in writing that this has been done
and that the suspension, layoff, refusal to recall, and as-
signment of more onerous working conditions will not be
used against him in any way.

INTERNATIONAL SHIP REPAIR & MARINE
SERVICES, INC.

Dallas Manuel II, Esq., for the General Counsel.
Peter W. Zinober and Shane T. Munoz, Esqs., for the Respon
dent.
Joseph Egan Jr., Esq., for the Charging Party.
DECISION
I. STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me on eight dates from March 5 through June 15, 1998. On
May 19, 1997,1 in Board Case 12–RC–08105, Tampa Metal
Trades Council, AFL–CIO (the Union) filed a petition for elec-
tion and certification as the collective-bargaining representative
of the production and maintenance employees of International
Ship Repair & Marine Services, Inc. (the Respondent or the
Employer). A Board election was conducted on June 30. The
tally of ballots showed that 103 employees had voted against
the Union, 50 had voted for the Union, and 1 ballot was chal-
lenged. On July 7, the Union filed objections to alleged em-
ployer conduct that had affected the results of the election (the
objections). Also on July 7, the Union filed an unfair labor
practice charge in Case 12–CA–18879. On December 31, the
Regional Director issued a complaint and notice of hearing (the
complaint), and by order dated January 21, 1998, the Regional
Director issued an order consolidating the cases for purposes of
hearing.
The unfair labor practice allegations include threats of dis-
charge, plant removal, and unspecified reprisals, all in violation
of Section 8(a)(1) of the Act. All such threats were allegedly
directed to one employee, Arthur Davenport. It is further al-
leged that, in violation of Section 8(a)(3), the Respondent dis-
criminated against Davenport by the following conduct: (1) on
or about May 18, and thereafter, imposing on Davenport more

1 All dates mentioned are in 1997, unless otherwise indicated.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 215
onerous working conditions; (2) on June 14, suspending Dav-
enport for a period of 2 days,2 and (3) on June 20, selecting
Davenport for layoff and thereafter refusing to recall him. The
complaint further alleges that, in violation of Section 8(a)(1),
the Respondent conducted surveillance, including photographic
surveillance, of its employees while they engaged in protected
activities. Finally, the complaint alleges that, in violation of
Section 8(a)(1), the Respondent also conducted surveillance of
employees who were approaching the area where the June 30
Board election was being conducted. The objections track the
unfair labor practice allegations, and they add the allegations
that the Respondent also interfered with the Board election by:
(1) assisting employees who campaigned against the Union,
and (2) promising and granting benefits in order to discourage
employees from voting for the Union.
On the testimony and exhibits entered at trial,3 and on my
observations of the demeanor of the witnesses,4 and after con-
sideration of the briefs that have been filed,5 I make the follow-
ing
FINDINGS OF FACT6
II. JURISDICTION
The Respondent admits that during the calendar year preced-
ing the issuance of the complaint it was engaged in the opera-
tion of a shipyard at Tampa, Florida, where it performed repairs
and conversions of ships. In conducting those business opera-
tions, the Respondent purchased and received at its Tampa
facility goods and materials valued in excess of $50,000 di-
rectly from suppliers located at points outside Florida. There-
fore, at all times material here the Respondent was an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. As the Respondent further admits, at all
material times the Union was a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE ALLEGED
OBJECTIONABLE CONDUCT
A. The Supervisory Status of Pollack
The Respondent is owned by brothers George and Carl Lor-
ton. William Russell is the Respondent’s president; reporting to
Russell are David Sessums, vice president in charge of opera-
tions, and Michael McMillan, vice president in charge of pro-
duction. Immediately reporting to McMillan is Michael Lack-
man, the general superintendent. The operations under McMil-
McMillan and Lackman are divided into departments which
include welding, pipefitting, and other such crafts. The Re-
spondent usually employs from 150 to 200 production and
maintenance employees, all of whom report to McMillan and
Lackman through various departmental supervisors. Some de-
partments are headed by superintendents; others are headed by
foremen. (No supervisor is classified as a general foreman.)

2 Actually, the complaint alleges that Davenport was “laid off,” not
suspended, on June 14. The fact is, however, that the Respondent’s
June 14 conduct was more akin to that of a suspension of an employee
rather than to a layoff of an employee.
3 Certain passages of the transcript have been electronically repro-
duced. Some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate redundant words; e.g., “Doe said, he men-
tioned that” becomes “Doe mentioned that” In my quotations of the
exhibits, I sometimes simply correct meaningless grammatical errors
rather than use “[sic].”
4 Credibility resolutions are based on the demeanor of the witnesses
and any other factors that I may mention.
5 The General Counsel and the Respondent filed briefs; the Union
did not.
6 On brief, the General Counsel moves for admission of a copy of
the third amended charge which was filed by the Union on October 31.
The motion is unopposed, and I receive the copy as GC Exh. 1(y).
The department about which most of the evidence is con-
cerned is the operations department.7 Employees in the opera-
tions department are classified as crane operators, riggers, fork-
lift operators, tug boat operators, deck hands, mechanics, fork-
lift operators, and yard cleanup personnel. The head of the op-
erations department is Foreman Tyrone Parker. At the time of
the events in question, one of Parker’s leadmen in the opera-
tions department was Jonathan Pollack. Whether Pollack was a
supervisor within Section 2(11) of the Act is an issue in this
case. I find that he was.8
On May 17 the Respondent transferred alleged discriminatee
Davenport from its welding department, where he had worked
as a welder, to its operations department, where he began work-
ing as a rigger. (This transfer is not alleged to have been a vio-
lation of the Act.) The idea for the transfer came not from Dav-
enport himself or any admitted supervisor; the idea came from
Pollack.
In their work, welders do some rigging; for example, they
may rig their own welding equipment to be lifted by a crane
from a dock onto a ship. At time of trial Pollack was no longer
employed by the Respondent; however, he was called by the
Respondent as a witness. On direct examination Pollack testi-
fied that he had seen Davenport doing some rigging while
working in his capacity as a welder. According to Pollack:

We needed help at the time as far as riggers went, and
he [Davenport] seemed to be a very good guy. You know,
[I] knew what he was doing in the rigging, so I spoke to
him about coming to work for us and he said yes, you
know, he wouldn’t mind doing it. And at that time I spoke
to his [then] immediate supervisor which, I believe, was
[Welding Department Foreman] Ray Overstreet, and Ray
said that there would be no problem. And then I spoke
with my supervisor, Tyrone Parker, to get the okay. And
he said that would be fine, we could use him. So we trans-
ferred him to our department.

Parker testified consistently with Pollack on this point. That is,
Parker relied entirely on Pollack’s recommendation, rather than
interviewing Davenport or testing his abilities as a rigger before
the transfer was effectuated.
The Respondent’s upper level supervision and its personnel
department are notified of interdepartmental transfers, or other
personnel actions, on certain forms, each of which is entitled
“Status/Payroll Change Report.” Pollack, not Parker, signed the
Status/Payroll Change Report that documented Davenport’s
transfer for upper management. Parker testified that he told
Pollack to sign Davenport’s transfer report because Parker had
been too busy at the time. Pollack did not offer such testimony
(although Pollack did offer such testimony about other
status/payroll change reports that he had signed, as discussed
7 Although the subject department was called other things by other
witnesses, this is the departmental name that was used by Nancy De-
Vega, the assistant to the Respondent’s personnel director.
8 There is no contention that another of Parker’s leadmen, one
Jimmy Hayes, is also a supervisor.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 216
infra). Pollack was not a clerical employee; if he had been act-
ing as such, he would have signed Parker’s name, not his own,
to the documentation of Davenport’s transfer. Because of this
factor, and the factor of the lack of corroboration on the point
by Pollack, I discredit Parker’s testimony that he directed Pol-
lack to sign the paperwork that was necessary to transfer Dav-
enport from the position of a welder in the welding department
to the position of rigger in the operations department.
Status/payroll change reports are also used to effectuate lay-
offs. Each such form concludes with spaces designated for
“Authorized by” and “Approved by.” The Respondent con-
ducted layoffs on both May 30 and June 20. The General Coun-
sel placed in evidence five status/payroll change reports for
operations department employees who were laid off on May 30,
or June 20, or both. These were: (1) alleged discriminatee Dav-
enport (June 20); (2 and 3) Carlos Ordonez (May 30 and June
20); (3) Otis Nix (June 20); and (4 and 5) Ray Hamilton (May
30 and June 20). For each of these layoffs, Pollack signed the
relevant status/payroll change report in the “Authorized by”
space. The Respondent’s vice president, Sessums, signed each
of these layoff reports in the space designated for “Approved
by.” Both Pollack and Parker testified that Pollack signed the
forms only because Parker told Pollack to do so because Parker
was too busy. Again, Pollack was not a clerical employee, and
Pollack signed his name, not Parker’s. I do not believe the tes-
timonies of Pollack and Parker that Pollack signed the forms
only because Parker was too busy; I find that Pollack signed the
forms because he selected the employees for layoff. (Pollack’s
selection of Davenport for the June 20 layoff is detailed infra
where I consider the 8(a)(3) allegations.)
The Respondent utilizes two forms to effectuate the hiring of
new employees. One form is entitled “Hire In and Reporting
Form.” The boilerplate of the form concludes “Foreman to sign
off and return this form to personnel department.” The General
Counsel placed in evidence such forms that were utilized by the
Respondent for the hirings of operations department employees
William Hart and Carlos Ordonez; the forms were dated Janu-
ary 15 and May 19, respectively; both were signed by Pollack.
The other form that the Respondent uses in the hiring processes
is one entitled “Employee Approval Form.” That form con-
cludes with spaces for “Employee Signature” and “Supervisor
Approval.” The General Counsel placed in evidence such forms
that were utilized by the Respondent for the hirings of opera-
tions department employees Raymond Hamilton and David
Anderson; the forms were dated February 8 and May 19, re-
spectively; both were signed by Pollack. When Pollack was
called by the Respondent and asked about the hiring processes
in the operations department, he testified: “I will go up and get
the application and I will interview. And then I speak to Tyrone
[Parker], and I tell him about the interview, and I show him the
application, and he ultimately says okay or not.” When Pollack
was on cross-examination, the General Counsel asked him spe-
cifically about the hiring of Hart:

Q. What questions did Mr. Parker ask you?
A. What I thought of him.
Q. And what were your thoughts?
A. Well, based on his application and his interview, I
thought he was a good guy for the job.
Q. And then Mr. Parker didn’t ask you any more ques-
tions, correct?
A. No, not really.
Q. Based on your recommendation, he agreed to hire
him, correct?
A. Yes.

When Parker was called as a witness by the Respondent, he did
not dispute this testimony. Parker, again, testified that Pollack
signed the hiring forms only because he had told Pollack to do
so. I do not believe that testimony either.
Section 2(11) of the Act defines “supervisor” as:

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

Section 2(11) is couched in the alternative; therefore, a presen-
tation of proof that an individual possessed any one of the listed
indicia requires the conclusion that that individual was a super-
visor under the Act.
According to Pollack’s own account, with which Parker did
not differ, he initiated the idea that Davenport be transferred
from the classification of welder in the welding department to
the classification of rigger in the operations department. Then
Pollack went to the foreman of the welding department (Over-
street) and recommended that he cut his complement of welders
by one and transfer Davenport to the operations department.
Pollack also went to the foreman of the operations department
(Parker) and recommended that he increase his complement of
riggers by one. Without further investigating the matter, both
foremen accepted Pollack’s recommendations and the transfer
was thereby effectuated. The Respondent makes a distinction
between “loans” and “transfers” of employees between depart-
ments. Transfers are supposedly a permanent matter, while
loans are supposedly not. Transfers require notification to upper
management and the personnel office; loans do not. In this
case, upper management was notified of the transfer of
Davenport, not by admitted Supervisor Parker, but by Pollack.
Upper management accepted Pollack’s signature as the neces-
sary documentation to accomplish the transfer, and upper man-
agement and the personnel office thereafter considered
Davenport to be a permanent part of the operations depart-
ment.9 That is, Pollack actually transferred Davenport from
one classification in one department to another classification in
another department. Even if Pollack did not himself transfer
Davenport, it is more than perfectly certain that Pollack effec-
tively recommended such action because his recommendation
was accepted without independent investigation by either
Parker, Overstreet, upper management, or the personnel office.
The General Counsel has therefore proved that Pollack trans-
ferred Davenport, or that Pollack at least effectively recom-
mended the transfer of Davenport, from the classification of
welder in the welding department to the classification of rigger
in the operations department. Accordingly, without more I
would find that Pollack was a supervisor under the Act. There
is, however, more.

9 Indeed, as will be seen, the Respondent contends that Davenport
was not recalled as a welder from the June 20 layoff because its per-
sonnel records listed him as an operations department employee.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 217
Pollack reviewed applications and interviewed applicants.
When he did so, Parker accepted his recommendations without
further interviews or investigations. On some occasions, upper
management and the personnel office were then notified that an
employee had been hired by status/payroll change reports that
were completed and signed by Pollack, not Parker.10 Within
the terms of the Act, therefore, Pollack effectively recom-
mended the hiring of employees. Finally, as noted above, Pol-
lack selected employees for layoffs and upper management
accepted his documentation that he had done so. I therefore find
and conclude that, at all relevant times, Pollack was a supervi-
sor within Section 2(11) of the Act.
B. Alleged Discrimination Against Davenport
1. The General Counsel’s evidence and contentions
about Davenport
a. Background and notice of union activities
Davenport is a member of the International Brotherhood of
Boilermakers Union and a graduate of that organization’s 4-
year welders’ apprenticeship program (which is where he got
his rigging experience that Pollack admired). Davenport is well
versed in all phases of welding that are utilized by the Respon-
dent. Davenport was originally employed by the Respondent in
January 1993 as a ship fitter,11 a job that also requires substan-
tial welding skills. He then worked for 3 months when, accord-
ing to the Respondent’s records, he was laid off for “lack of
work” (according to the Respondent’s records); a month later
Davenport was called back to work, but 1 month after that he
was again laid off for “lack of work.” Davenport was hired
again as a new employee in January 1996, again as a ship fitter,
but he quit 3 months later. Finally, on December 23, 1996,
Davenport was again hired as a new employee, that time as a
welder in the Respondent’s welding department. Davenport
worked as a welder until on or about May 18 when, as men-
tioned, the Respondent transferred him to the position of rigger
in the operations department. Davenport thereafter continued in
the Respondent’s employ until the layoff of June 20. It is un-
disputed that, during all periods of his employment with the
Respondent, Davenport was an excellent worker.12 It is further
undisputed that, throughout Davenport’s periods of employ-
ment, the Respondent’s supervisors knew that he was a member
of the Boilermakers Union. (In fact, Davenport admitted on
cross-examination that during his previous periods of employ-
ment with the Respondent, he and Lackman had an agreement
that, when he could find more lucrative work through the Boil-
ermakers Union, he would be treated as being laid off for “lack
of work.”) The Respondent, however, has never recognized any
labor organization as the representative of any of its employees.

10 Again, I discredit the testimonies of Pollack and Parker that Pol-
lack completed and signed the forms only because Parker was too busy.
In addition to the factors mentioned above, Parker gave his testimony in
this regard in answer to leading questions. Indeed, Parker was so eager
to follow the leading that he once identified the hire-in form of em-
ployee Ordonez as the hire-in form of employee Nix.
11 The record, p. 1060, L. 10, is corrected to change “Critter” to “fit-
ter.”
12 In a March 3, 1996 status/payroll change report, General Superin-
tendent Lackman recommended an upgrade for Davenport; Lackman
wrote that Davenport: “Is a combination man—burn, fit, weld, [does]
air arc, mig, [and] tig [welding]. Welds boiler tubes (certified). The
type of person we need. Does not miss work. A+ in all.”
Gary Meredith is the recording secretary of the Union.
Meredith testified that on May 15 several of the Respondent’s
employees met with him and formed an organizing committee;
those employees elected Davenport as the committee’s chair-
man. On May 16, further according to Meredith, he watched as
Jimmy Connatser, president of the Union, composed, signed,
and faxed a letter to owner George Lorton. Connatser’s letter,
which was undated, stated that the Respondent’s production
and maintenance employees were engaged in an organizational
attempt. The letter concludes: “[T]he below-listed employees
wish to be identified as members of the organizing committee.”
Then follow the names of 22 of the Respondent’s employees;
Davenport’s name was the first listed. The list is not in alpha-
betical order; Meredith testified that Davenport’s name was
listed first because the members of the organizing committee
had elected him as chairman, but there is no indication of Dav-
enport’s chairmanship in the letter. Although Connatser’s letter
to the Respondent is undated, the General Counsel seeks a find-
ing that it was sent by Connatser, and that it was received by
the Respondent, on May 16. The General Counsel seeks such
findings to support his contention that the Respondent had spe-
cific knowledge of Davenport’s lead in the organizational at-
tempt before it began unlawfully imposing onerous working
conditions upon Davenport on May 17 or 18. The Respondent
does not deny receipt of Connatser’s faxed letter, but it would
stipulate only that it received it “on or before May 21.”
Davenport testified that, also on May 16, he began wearing
at work three prounion buttons on his clothing. A large button
said, “Boilermakers Organizing Committee.” A smaller button
had the Boilermakers’ Union’s full name on it. A second
smaller button said, “Don’t Whine, Organize.” Davenport testi-
fied: “I wore them every day that I was employed at Interna-
tional Ship, up until the day I was laid off.” (On cross-
examination, Davenport admitted that, during his prior periods
of employment with the Respondent, he had always worn a
single Boilermakers Union sticker on his hardhat.)
b. The May 18, et seq., alleged onerous assignments
to Davenport
The General Counsel contends that, after he was transferred
to the operations department, Davenport was subjected to more
onerous assignments by being isolated in two different ways:
(1) by being assigned to an isolated work area, and (2) by being
assigned to work hours that inhibited his contact with other
employees.
Although it was not until May 20 that Pollack put through
the papers to document Davenport’s transfer to the operations
department, Davenport began working there on May 18 (or
possibly May 17). Davenport confirmed Pollack’s testimony
that he agreed to the transfer.13 Davenport testified that Pollack
showed him how to operate the forklift; after successfully per-
forming some operations with the forklift, Pollack told him that
he would certify that Davenport could operate the forklift
safely. Davenport further testified that on May 18 or 19 Pollack
assigned him to work on the Respondent’s barge crane and that
he thereafter worked on the barge crane “about 70 percent” of
the time; the remainder of his time he did rigging on ships or
operated a forklift.
13 Rigging is easier, cleaner work than welding, and the pay is the
same for top journeymen, as was Davenport. Again, the transfer of
Davenport to rigging is not alleged to be a violation of the Act. All acts
of alleged discrimination against Davenport occurred after the transfer.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 218
A barge crane is a crane that is situated on a barge, rather
than on a ship or on the land. The barge crane works only in the
port; the barge crane is pushed around the port by one of the
Respondent’s two tugboats. As a rigger on the barge crane,
Davenport rigged loads that were to be transferred between the
barge and a land location or between the barge and ships.14
When a tugboat is in operation, it is staffed by a captain and a
deck hand (or “line-handler”). Davenport testified that, before
he was assigned to the barge crane, the deck hand (who was
also classified as a “rigger”) did any rigging that the barge
crane required. After he was assigned to the barge crane, Dav-
enport testified, the deck hand would do nothing but sit and
watch as he performed whatever rigging that the barge crane’s
cargo required. (As will be seen, the deck hand who continued
to be assigned to the tugboat after Davenport was assigned to
the barge crane was one David Anderson; the theory of the
General Counsel’s case is, inter alia, that the Respondent un-
lawfully passed over Anderson to lay off Davenport.)
The normal work hours for the Respondent’s day-shift em-
ployees are from 7:30 a.m. until 4 p.m., and those were the
hours that Davenport had usually worked when he was classi-
fied as a welder. Davenport testified that after being transferred
to the operations department as a rigger he was assigned to start
work at either 4 or 6 a.m., and his quitting times would be from
4:30 p.m. and thereafter. Davenport testified: “And when the
rest of the employees were going home after a normal time, I
was working extended hours. I was asked to work over, stay
over for fifteen minutes, stay over for an hour.” When working
on the barge crane, Davenport further testified, he often could
not go to the lunch room, as did other employees and as he had
done as a welder; instead, he had to eat his lunches on the barge
or tug boat that was pushing it. Davenport testified that his
having different starting, quitting and lunchtimes greatly dimin-
ished his opportunities for contacts with other employees. Dav-
enport testified that when he was assigned to the barge crane,
he had opportunity for contact only with the operator of the
crane. Riggers on land or on ships had opportunity for contact
with many other employees as they worked or took breaks.
c. The alleged threats to Davenport before the June 20 layoff
Davenport testified that early on May 18, while he was
working in the operations department, a spill of paint thinner
occurred. Davenport went to the office of the Respondent’s
safety director, James Martin (an admitted supervisor). Accord-
ing to Davenport:

I had went into his office to report a paint spill. The
conversation went me speaking, “Jim, I come in here to let
you know there was a paint spill on the dock out there
close to the water.”
And at that time, he had looked up at my organizing
button, and he said “Well, what are we trying to organize
out here, a party?”
And I said, “Jim, I can’t discuss this at this time.”
I said, “I can discuss it with you at lunch time or when
I get off work.”
He said, “Well, what are we organizing, a party?”

14 For example, if a ship was longer than a dock, and land-situated
material was needed at the end of that ship that extended beyond the
dock, a barge crane would lift the material from the land, move it to the
end of the ship, and then lift the material onto the ship.
And I said, “Yes, Jim, we’re organizing a labor party,
but I can’t discuss it at this time with you.”
And he said, “Well, yeah, we can, tell me about it, tell
me about the Union.”
And I said, “No, Jim, I can’t discuss it at this time. I
could be fired for discussing the Union activities during
my normal work hours.”
And he said, “Well, you don’t have to worry about it,
the only one that’s going to fire you in here is me, and I’m
not going to fire you. Let me hear about it.”
I said, still insisted that I didn’t want to discuss it at the
time and couldn’t discuss it. Then he had made the state-
ment to me as, “Well, Art, what makes you think the Un-
ion’s even going to come in here? You know, all George
and Carl [Lorton, the owners] have to do is lock that gate
out there, and the Union won’t be able to come in. They’ll
just go to the Bahamas, and you won’t even have to worry
about going through all of this stuff.”
My reply was: “I don’t want to discuss it. I’ll discuss it
at lunch time or after work.”

Based on this testimony by Davenport, the complaint, at para-
graph 8, alleges that by Martin’s conduct the Respondent
threatened employees with plant closure and removal in viola-
tion of Section 8(a)(1).15 During the presentation of the Re-
spondent’s case, Martin denied this threat that Davenport at-
tributed to him.
Davenport further testified that, later on May 18, he had an
encounter with Mark Branson, the Respondent’s superintendent
of the welding department; according to Davenport:

This was at lunch time, and it was at the wash trough
inside the main shop area where all the employees wash
up for lunch. And he [Branson] had noticed me there and
he says, “Art, look, what makes you think the Union is go-
ing to be allowed in here?”
And he said, “Well, look, they’re not going to come in
here; the Union’s not going to make it. They’re [the mem-
bers of management are] going to close the doors, they’re
going to lock it up. They’re going to back the floating dry-
docks up to the dock there. Everything in this shop can be
put on the dry-docks and float it down to the Bahamas and
be in business down there. Are you going to go down there
and work in the Bahamas for International Ship at a sub-
standard wage?” My response was no.

Based on this testimony by Davenport, the complaint, at para-
graph 9, alleges that by Branson’s conduct the Respondent
threatened its employees with plant closure and removal in
violation of Section 8(a)(1). During the presentation of the
Respondent’s case, Branson denied this threat that Davenport
attributed to him.
Davenport further testified that on May 20 he went to the
deck of a ship to retrieve his personal welding equipment; there
he met Kirk Suchier, superintendent of the Respondent’s ship-
fitting department. According to Davenport:

When I had retrieved my bucket, Kirk Suchier had
walked up to me on the deck and he flipped my Boiler-
makers organizing campaign button and he’d asked me,
15 The complaint does not further allege that by Martin’s conduct the
Respondent interrogated employees in violation of Sec. 8(a)(1). The
matter was, however, made a subject of the Union’s objections to the
June 30 Board election.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 219
“What do you expect to gain with that? All you’re going to
do is lose.”
And I asked him, “Kirk, what do you expect me to
lose?”
And he had started to say something, but he had
walked off kind of mumbling under his breath, nothing
that I could make out.

Based on this testimony by Davenport, the complaint, at para-
graph 10, alleges that by Suchier’s conduct the Respondent
threatened its employees with unspecified reprisals in violation
of Section 8(a)(1). Davenport further testified that after this
incident Suchier would not return greetings as Suchier had
previously done. Davenport testified that he once asked
Suchier what he may have done to cause Suchier’s incivility.
Suchier replied that it was because of a “Union-Yes” button
that Davenport was then wearing. During the presentation of
the Respondent’s case, Suchier denied ever making a comment
to Davenport about “union buttons” that Davenport was wear-
ing. Suchier further testified that he could not recall speaking
with Davenport about the Union, and he testified that he could
not recall if Davenport ever asked him what he had done to
upset him. Suchier did not, however, deny telling Davenport
that he could only “lose” if the employees selected the Union as
their collective-bargaining representative.
Davenport testified that, also on May 20, he had a confronta-
tion with Parker. According to Davenport:

Tyrone had come out of the supervisor’s office and he
come up to me and he said, “Art, what’s this shit on your
shirt right here?”
And I said, “Tyrone, we don’t need to discuss this at
this time.”
And he said, “Well, what is this shit?”
He [reading one of the buttons] goes, “‘Union Boiler-
makers,’ you need to get out of it, Art.”
I said, “Tyrone, let’s not discuss this now, the first of
the day. We’ll talk about it lunch time.”
And he said, “The Union’s a piece of crap, they’re no
good. The best thing for you to do, Art, is to get out of the
Union, to get those buttons off you and stop the campaign,
because all you’re going to do is upset upper management,
and you’re going to get fired; you’re going to lose your
job. You’re starting a ruckus.”

Based on this testimony by Davenport, the complaint, at para-
graph 11(a), alleges that by Parker’s conduct the Respondent
threatened its employees with discharge in violation of Section
8(a)(1). At paragraph 11(b), the complaint also alleges that by
the statements of Parker to Davenport the Respondent also
warned its employees that their efforts to secure a collective-
bargaining representative would be futile, again in violation of
Section 8(a)(1). During the presentation of the Respondent’s
case, Parker denied these threats that Davenport attributed to
him.
d. The June 14, 1997 suspension of Davenport
Davenport testified that on Thursday, June 12, Parker called
him to his office and:

He [Parker] said, “Look, this isn’t coming from me,
this is coming from the Safety Department. Jim Martin’s
got the safety deal now that if you work over twenty-one
days straight, you have to have two days off. And we run
your name through the computer and it was flagged, but
understand, this isn’t from me, this is from the Safety De-
partment, but you got to take two days off.”

Davenport testified that this was the first that he had ever
heard of any such safety policy (the days-off policy). Daven-
port worked Friday, June 13, but he took off June 14 and 15 as
Parker had told him to do. It is undisputed that there was work
for Davenport on June 14 and 15, and it is further undisputed
that Davenport would have worked those dates but for Parker’s
instructions. (It is for this reason that I refer to Davenport’s lost
time as a suspension, rather than as a layoff, as mentioned
above.)
The Respondent has computerized timeclocks which record
the starting time, ending time, and total hours worked each day
by each employee. For each employee, the Respondent also
maintains a record entitled “Employee Calendar.” Each of such
calendars is a display of a full year with a square for each day.
Using the timeclock records, employees in Respondent’s per-
sonnel department hand-enter on the calendars the total hours
worked each day by a given employee. The Respondent’s pro-
duction and maintenance operations continue seven days a
week, as several employee Calendars that are in evidence re-
flect. As Davenport’s employee calendar demonstrates, by June
12, the day that Parker ordered him to take 2 days off (starting
June 14), he had been working for 39 consecutive days; as
mentioned, Davenport also worked on June 13 which was his
40th consecutive day of working without a day off.
The General Counsel contends that the days-off policy that
Parker announced to Davenport as the basis for the suspension
did not actually exist. For that position, the General Counsel
relies on employee calendars that reflect that other employees
worked in excess of 21 days without taking any days off. The
General Counsel further points out that, even when those other
employees did take time off (mostly well after 21 days), they
only took off 1 day, not 2 days as Davenport was required to
do. The General Counsel contends that those employee calen-
dars prove disparate treatment of Davenport and that they are
evidence of unlawful discrimination against him.
As discussed infra, the Respondent contends that it adopted
its days-off policy during April. The General Counsel intro-
duced the 1997 employee calendars of 15 other employees
who, through and after April, worked 21 or more consecutive
days without taking 2 days off, as Davenport was required to
do: (1) Erbil Engin, a crane operator in the operations depart-
ment, worked 27 consecutive days from April 7 until May 4
when he took 1 day off. Engin returned to work on May 5, and
he then worked another 27 consecutive days (including the May
26 Memorial Day holiday) until June 1 when he took 1 day off.
Engin returned to work on June 2, and he then worked 26 con-
secutive days until June 28 when he took 1 day off. (2) Walter
Mott, also a crane operator in the operations department,
worked 28 consecutive days from April 28 until the May 26
Memorial Day holiday when he took 1 day off. Mott returned
to work on May 27, and he then worked 32 consecutive days
until June 28 when he took 2 days off. (3) Edward Fuller, a
mechanic in the operations department, worked 26 consecutive
days from May 5 to 31 when he took 2 days off. (4) Franklin
Galan, a welder, worked 49 consecutive days from April 7 until
May 26 (again, Memorial Day) when he took 1 day off. (5)
Wilfredo Guido, a machinist, worked 75 consecutive days from
February 10 until April 26 when he took 1 day off. Guido also
worked 91 consecutive days from May 27 until August 26
when he took 1 day off. Guido also worked 27 consecutive

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 220
days from October 6 until November 2 when he took 1 day off.
(6) Kent Misner, a welder, worked 33 consecutive days from
April 7 until May 10 when he took 1 day off. (7) Jose Morales,
a ship fitter, worked 33 consecutive days from April 28 until
May 31 when he took 1 day off. (8) Jerome (Keith) Parker, an
electrician, worked 32 consecutive days from April 21 until
May 23 when he took 5 days off. Parker returned to work on
May 28, and he then worked 29 consecutive days until June 21
when he took 1 day off. (9) Travis Satcher, a toolroom em-
ployee, worked 46 consecutive days from April 7 until May 24
when he took 3 days off. (10) Leford Shaw, a welder, worked
21 consecutive days from May 5 to 26 when he took 1 day off.
(11) Phillip Swanson, also a welder, also worked 21 consecu-
tive days from May 5 until May 26 when he took 1 day off.
(12) Robert Vallee, also a welder, also worked 21 consecutive
days from May 5 to 26 when he took 1 day off. (13) Thaddeus
Williams, also a welder, worked 26 consecutive days from May
11 until June 5 when he took 3 days off. (14) John Worsham, a
tool room employee, worked 26 consecutive days from April 7
until May 3 when he took 2 days off. (15) Robert Dawson, a
ship fitter, worked 26 consecutive days from May 5 to 31 when
he took 2 days off. The Respondent represented at trial that it
keeps no records that would indicate whether these 15 employ-
ees took any of the indicated days off as a result of the days-off
policy. None of the 15 employees testified, nor did any of their
supervisors. Parker, who was the supervisor of Engin and Mott,
testified, but none of the supervisors of the other 13 employees
listed in this paragraph did.16
e. The June 20, 1997 selection of Davenport for layoff
At the time of the June 20 layoff, the Respondent employed
three employees who were classified as riggers: Joseph Seither
(who was hired on July 26, 1996), Davenport (who was hired
on December 23, 1996), and David Anderson (who was hired
on May 22, 1997). One J. B. Bland was an employee of the
outside machinery department who had been “loaned” to the
operations department during the first part of 1997; during that
time, and up to June 20 when he also was laid off, Bland
worked as a rigger.
According to Davenport, on June 20:

That morning, Tyrone had talked with me, saying that
they were going to have to lay off two people in the Op-
erators Department, because work was kind of slow. And
that I was the low man on the totem pole, being the newest
man in the Operator’s Department, that I was going to
have to be laid off because I hadn’t been in there but for a
short time period.

Further according to Davenport, Pollack told him later in the
morning that he was being laid off because he was “the newest
guy into the department.”
Davenport testified that at the end of the day Pollack handed
him the layoff notice that Pollack had signed, as mentioned
above. Davenport testified:

After I had received my paycheck and was explained
that that was a layoff slip, and Johnny then made the
statement to Tyrone Parker, “See, Tyrone, I told you I’d
get rid of these Union guys. I’m laying one off right now.”

16 I find it unnecessary to consider records introduced by the General
Counsel that indicate that three supervisors also worked for periods in
excess of 21 days without taking a day off. (Those supervisors were
Mark Branson and Ray Overstreet of the welding department and John
Davidson of the boilermakers department.)
And Tyrone, his reply was, “I have no comment for
that. Johnny, you need to watch your mouth on what
you’re saying.”

Based on this testimony by Davenport, the complaint, at para-
graph 13, alleges that by Pollack’s conduct the Respondent
threatened its employees with discharge in violation of Section
8(a)(1). During the presentation of the Respondent’s case, Pol-
lack denied making such a threat and Parker denied ever hear-
ing Pollack make such a threat.
The General Counsel admits that about 50 employees were
laid off on June 20, but he contends that Davenport was dis-
criminatorily, and unlawfully, selected for the layoff because he
was not the least-senior employee in the operations department.
As mentioned, Davenport was last rehired on December 23,
1996; records in evidence show that the following day-shift
employees17 were hired into the operations department after
Davenport: (1) William Hart, a crane operator, on January 15;
(2) Carlos Ordonez, a forklift operator, on May 19, and, as
mentioned above, (3) Anderson, a rigger, on May 26. Ordonez,
as well as Davenport, was laid off on June 20; Hart and Ander-
son were not. The General Counsel contends that the retention
of Anderson shows disparate treatment against Davenport.
(Parker testified that Hart was not laid off because crane opera-
tors are too hard to replace; the General Counsel does not con-
test that testimony and does not contend that the retention of
Hart is evidence of discrimination against Davenport.)
Parker was first called as an adverse witness by the General
Counsel. Parker was asked and he testified:

Q. [By Mr. Manuel]: What were the determining fac-
tors that you relied upon when making your decision of
which two employees would be laid off on June 20, 1997?
A. I don’t recall two employees. I recall Art Daven-
port. I remember that. I laid off two employees?
Q. What is your recollection? When I asked you previ-
ously, your recollection was—
A. One. Well, I was thinking at the time that you was
talking about Bland. I’m not sure if he got laid off or not.

(Bland, again, was a machinist who had been on “loan” to the
operations department to work as a rigger. At this point in the
hearing, however, Bland had not been mentioned.) Later in his
testimony Parker testified that it was McMillan told who him
about the June 20 layoff, and Parker further testified: “I was
told I had to get rid of two of my riggers.”
As discussed infra, Parker’s testimony is rife with inconsis-
tencies. Just who Parker counted as “two of my riggers” is
somewhat hard to discern. The two employees who had regu-
larly worked as riggers who were laid off on June 20 were
Davenport and Bland. As Parker himself testified, however,
Bland was a member of the machinery department. That is,
Bland was not a member of the operations department and he
was not classified as a rigger. Again, only Davenport, Seither,
and Anderson were formally classified as riggers, but neither
Seither nor Anderson was laid off on June 20. Therefore, in
responding to the General Counsel’s questions, Parker was
necessarily counting Bland as one of “two of my riggers”
whom he had laid off on June 20.
17 As will be seen, the Respondent conducted the layoff by shifts.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 221
After Parker gave that testimony the General Counsel re-
minded him that forklift operator Ordonez had also been laid
off from the operations department on June 20; this, of course,
meant that Parker had laid off three employees (Ordonez,
Bland, and Davenport), but Parker had testified only that he had
been told to lay off “two of my riggers.” After being reminded
about Ordonez, Parker testified that he had laid off Ordonez:
“Because I had to lay off in that department also.” When asked
if Davenport and Ordonez were not both in the same “depart-
ment,” Parker replied: “No. No, the forklift operator would
probably be working with Jimmy Hayes in the yard support
area, clean-up and this and that.” Hays, however, was the lead-
man in charge of yard cleanup; yard cleanup was part of the
operations department under Parker.
The General Counsel further contends that the evidence
separately shows that, as well as Davenport’s layoff being
unlawful, he was unlawfully denied recall from the June 20
layoff. According to Nancy DeVega, assistant to the Respon-
dent’s personnel manager, the Respondent began recalling em-
ployees within 1 or 2 weeks of June 20. Davenport has never
been recalled from the June 20 layoff as a rigger; the Respon-
dent did, however, once give Davenport a notice of recall as a
welder.
Nathan Zeringue is the manager of the Respondent’s person-
nel department. On October 15, Zeringue called Davenport at
home. At that time, Zeringue offered Davenport recall as a
welder. Davenport testified that he told Zeringue that he could
report within a week, and Zeringue replied that that would be
acceptable.18 On October 17, however, Zeringue called Daven-
port again. According to Davenport:

He had informed me that there was a discrepancy in
material being expedited to the yard. They were having a
hard time getting material, and that they were going to
have a layoff in two to three days, and they didn’t want me
to quit my job and come back to work, and then have to
get laid off two days later.
[Zeringue told me to] try to hold on to that job, and
that they’d call me back when they got the problem of get-
ting the material back to the yard straightened out.

Zeringue did not call Davenport again. The General Counsel
contends that the Respondent’s offering of recall to Davenport,
then withdrawing the offer immediately after Davenport ac-
cepted it, is further evidence of a discriminatory motive in the
Respondent’s actions toward him.
The General Counsel further contends that the evidence
shows that, as well as unlawfully refusing to recall Davenport
as a welder, the Respondent unlawfully refused to recall Dav-
enport as a rigger. The Respondent began recalling some of the
laid-off employees almost immediately. Bland was recalled on
July 9, but, according to Parker’s testimony, Bland did not
thereafter work as a rigger (even on “loan” from the outside
machinery department). After the layoff, Pollack did some of
the rigging, as both Pollack and Parker testified. Crane operator
William Hart, who was called as a witness by the Respondent,
testified that after the layoff the Respondent hired one Frances
Holland as a rigger; Parker corroborated this testimony during
his cross-examination. Hart further testified that the Respon-
dent also used employees of subcontractors as well as employ-
ees “loaned” from other departments to do the rigging. On
cross-examination, Hart at first admitted that crane operations
needed two “people,” a crane operator and a rigger. Hart later
tried to retreat from this admission, but it is clear that, except in
extraordinary circumstances, a crane operator needs a rigger to
function. Anderson quit on July 11; Pollack quit on September
26. According to Hart, Seither also quit in the fall of 1997.
When specifically asked which employees served as riggers
after Seither quit, Hart answered: “Every once in a while, we’d
borrow them from machinists, whatever.”

18 Zeringue testified that Davenport asked for 2 weeks to report; I
credit Davenport, but ultimately this makes no difference.
The Charging Party called as its witness Elizabeth Rebman
who, from October 9 through November 3, substituted for De-
Vega as the assistant to Zeringue in the personnel department.
Rebman testified that during the first 2 weeks of that period, the
Respondent was hiring many welders and ship fitters. During
the last week, however, something happened to cause the Re-
spondent to stop hiring new employees and to terminate the
work of some subcontractors. (Rebman suspected that that
“something” was loss of a contract by the Respondent, but no
supervisor so testified.)
2. The Respondent’s evidence and contentions about Davenport
a. Background and notice of union activities
The Respondent argues that its supervisors did not have
knowledge of the organizational attempt until May 20, which
date would have been at least 2 days after Davenport was first
assigned to work on the barge crane. The Respondent did not
produce the original of Connatser’s letter that Lorton received.
Rather, the Respondent produced a copy of Connatser’s letter
that had been faxed to the Respondent’s counsel from the Re-
spondent’s plant office at 8:56 a.m. on May 21. Lorton did not
testify. Russell testified that either Lorton gave him the origi-
nal of Connatser’s letter, or someone else did. Counsel for the
Respondent referred Russell to the “May 21” fax date that was
on the copy that was received in evidence and asked:

Q. [U]sing the May 21, 1997, date as a reference point,
do you have any personal knowledge as to when you be-
lieve that you received the document at International Ship?
A. I would imagine I received it the day before.
Q. Why would you imagine that?
A. Our mail doesn’t come in until ten or 11:00 o’clock
in the morning and inasmuch as this was faxed to your of-
fices at 8:56 a.m., that would be before the mail had ar-
rived that particular day so it would have probably been
received the day before.

Implicit in these answers, of course, is the assumption that
Connatser’s letter was received in the Respondent’s plant office
by regular mail, as opposed to having been received by facsim-
ile transmission. Russell did not mention receiving from Lorton
(or anyone else) a letter that had been faxed from Connatser.
Russell testified that he discussed Connatser’s letter (however it
was received) with Lorton and Vice Presidents McMillan and
Sessums, but he did not discuss it with any other supervisors.
On cross-examination, Russell testified that he did not know
whether his first knowledge of the organizational attempt was
receipt of Connatser’s letter or receipt of the petition that was
filed on May 19. Russell admitted that he did not know who
handled Connatser’s letter before he did, and he did not know
whether copies were made before he saw the letter.
Neither Russell nor any other witness who was called by the
Respondent denied that, beginning on May 16, Davenport be-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
gan wearing as many as three prounion buttons (or stickers) at a
time, as Davenport testified. No witness called by the Respon-
dent testified that any other employee ever wore so many pro-
union insignia.
b. The May 18, et seq., alleged onerous assignments
to Davenport
As noted, Davenport testified that after he was transferred to
the operations department he was assigned to work on the barge
crane “about 70 percent” of the time; the remainder of his time
was spent on decks of ships or on the ground. When Pollack
was called by the Respondent, Pollack testified that as a rigger
Davenport spent “probably seventy percent” of his time on the
decks of ships. When asked if Davenport ever worked on the
barge crane, Pollack replied, “I would have to [say] yes, he
probably did.” Pollack testified that, both before and after Dav-
enport was transferred to the operations department, the deck
hands of the tugboats “generally” did the rigging that was re-
quired on the barge crane. When asked when Davenport’s day
“generally” began, Pollack testified, “Our standard start time
was 7:30.” When asked if there were “variations” for Daven-
port, Pollack replied that there were, but he was not asked to
elaborate. Similar questions and answers were elicited regard-
ing Davenport’s quitting times as a rigger. Pollack was shown
Davenport’s employee calendar and asked if the gross hours-
per-day that it reflected refreshed his recollection. Pollack an-
swered that it did not, and he further acknowledged that Dav-
enport could have been required to report earlier, and leave
earlier, than the other employees. As noted, the Respondent
keeps computerized records of employees’ punch-in and punch-
out times; the Respondent produced such records for other em-
ployees concerning other issues, but it produced none for Dav-
enport’s tenure in the operations department.
Parker testified that Davenport was assigned to the barge
crane only for a few days, at most. Parker testified that he
would have assigned Davenport to the barge crane only if the
line-handler of a tug was absent or if there was an especially
large or dangerous load to be rigged and a second rigger was
needed.
When crane operator Hart was called by the Respondent, he
testified that when Davenport worked as his rigger, Davenport
usually worked on the decks of ships or at the dry dock where
he would have had opportunities for contact with other employ-
ees. Just how much Hart worked with Davenport was not estab-
lished on direct examination. On cross-examination, Hart testi-
fied that Davenport worked with him, on ships or the dry dock,
“well, not every day, but I mean most of the days, say for a
month.”
c. The June 14, 1997 suspension of Davenport
An issue in this case is whether, before it decided to suspend
Davenport, the Respondent had actually adopted the days-off
policy that Parker described to Davenport. Martin (again, the
Respondent’s safety director at the time of the events in ques-
tion) testified that the Respondent has a management safety
committee which meets on the second and fourth Tuesdays of
each month. In 1996, one Richard Murdock, a business con-
sultant, attended these meetings. According to Martin, Murdock
suggested a possible relationship between industrial accidents
and overtime. Murdock did not testify, but the Respondent
introduced minutes from its April 23, 1996 management safety
meeting which, after listing three items of old business and five
items of new business stated:

6. Murdock’s analysis of overtime hours and the result
in work and safety efficiency: General work force averag-
ing 50–60 hrs. per wk; machinists averaging 60–65 hrs.
per wk., with some supervisors averaging up to 70 hrs. per
week. Suggested a cut-off point of hours worked [per]
week to assist with better productivity, safety & run-away
job costs.

Martin further testified that after the April 23, 1996 meeting,
the Respondent’s safety committee discussed the overtime and
safety issues “many, many weeks and many times.” Martin
testified that during the following year he regularly reviewed
departmental lists to note how many hours per day, and hours
per week, employees were working. During some weeks, some
employees worked as many as 80 hours. Martin testified that he
pointed this out to other management members and: “I sug-
gested mandating, very quickly, that these individuals that had
excess overtime hours be given time off to take them out of that
loop of high opportunity for accident and injury.” Martin fur-
ther testified that, at some point (and, again, the date of that
point is in issue) the management safety committee decided:
“[I]f an individual had worked twenty-one days, then it was a
matter of management having to take a look at that issue and
make sure they had some time off to reduce the likelihood of
them becoming injured.”
Martin testified that the management safety committee did
not decide on an absolute rule regarding when an employee was
required to take time off after having worked 21 consecutive
days; rather, according to Martin, an employee’s having
worked 21 consecutive days was to be viewed as a “bench-
mark.” Whether an employee was required to take off was a
decision to be left to the production departments. Martin further
testified that the adoption of the “benchmark” days-off policy
was informal; it was never reduced to writing. Martin testified
that it was “commonplace” for employees to be required to take
days off pursuant to the days-off policy, but he could name no
employee other than Davenport upon whom the policy was
imposed.19 Martin testified that the days-off policy was adopted
“within 30 days” of April 2, the date he created a certain
memorandum that listed the overtime hours of several unit
employees during the first quarter of the year.
During his cross-examination, Martin was asked to be spe-
cific about when the days-off policy was adopted. Martin re-
plied that the days-off policy was adopted at the management
safety committee meeting of April 24. At another point, how-
ever, Martin acknowledged that some of the documentation that
he had identified as being relied upon in the April 24 manage-
ment safety committee meeting included dates in May; in fact,
the documentation includes three footnote notations that certain
accident information was: “Not available as of 5/15/97.” When
confronted with the apparent discrepancy, Martin testified: “My
recollection was that it was done before that [May 15]. I know
it was—we endeavored to do it as quickly as possible after the
second meeting [in April].” Martin admitted that none of the
Respondent’s agenda minutes, before or after April 24 (includ-
ing the minutes of the April 24 meeting itself), reflected that the
days-off policy had ever been adopted. Finally Martin was
asked and he testified:

19 Martin did name two supervisors who were required to take time
off under the days-off policy, Overstreet and Bransom, but even that
testimony was hearsay because Martin also testified that he had no part
in implementing the policy.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 223

Q. So the only thing we have is your testimony today as to
the approximate date that this policy was adopted?
A. I would imagine that that is a fact.

McMillan testified, but not about the days-off policy. Parker
testified McMillan told him that Davenport had been “working
too many days in a row,” although Parker did not recall how
many days that was. According to Parker: “We talked about
whether to not ask him to come in on a weekend and give him a
couple days rest. Mr. McMillan talked to me about my schedule
for the weekend and how many riggers I would need. I had
enough to cover the job, so I told him it would be all right. So, I
didn’t ask him [Davenport] to come in that weekend.” Parker
testified that the days-off policy had been in existence before
McMillan spoke to him about Davenport, but he did not know
for how long. Parker testified that he once announced the days-
off policy to the employees in his department, but it was before
Davenport had transferred there on May 17 or 18. (Neither
Pollack nor Hart was asked to corroborate this testimony.)
Parker did not dispute Davenport’s testimony that he had told
Davenport that “Jim Martin’s got the safety deal now that if
you work over twenty-one days straight, you have to have two
days off.”
On cross-examination, Parker was asked why Mott and En-
gin were allowed to work more than 21 days without being
required to take any time off. Parker testified:

They’re [crane] operators. I talked to them about how
many hours they’d worked and if they’re tired. [I asked
them if] they could work without any problems. At the
time we were very busy. I didn’t have a lot of operators
and I needed them to work if they could.
So, I discussed it with Jim Martin and I felt that it
wasn’t a hard, strenuous job. They sit in the crane and pull
the levers, you know. I didn’t feel there was any problem.

Parker acknowledged that he did not ask Davenport if he was
tired before requiring him to take off on the weekend of June
14–15. Parker further acknowledged that Davenport was the
only employee of whom he knew that was required to take time
off under the days-off policy.
d. The June 20, 1997 selection of Davenport for layoff
McMillan testified that the Respondent announced a layoff
of 50 employees on June 20 because a business projection
mandated a layoff for the week beginning June 23. The copy of
the projection upon which McMillan relied listed the Respon-
dent’s various departments and the total numbers of employees
in each department who were available for work, by shifts, and
it listed the numbers of employees in each department that were
actually needed, again by shifts. The difference in each depart-
ment was an excess that needed to be reduced in each depart-
ment for each of the Respondent’s two shifts. Specifically for
the operations department, the projection upon which McMillan
relied showed that for the week of June 23, the operations de-
partment had a total of nine employees available on the first
shift, but only two were actually needed; five employees were
available for the second shift, but only two were needed there
also. McMillan testified that he ordered fewer layoffs than the
projections called for because of the nearness of the June 30
Board election and the fear of unfair labor practice charges.
Although the projections that McMillan utilized in ordering
layoffs stated the numbers of employees in each department
that were needed, or not needed, they did not list the classifica-
tions in each department. Indeed, there is no evidence that, at
the time that he ordered layoffs, McMillan knew how many
employees there were in the different classifications of the dif-
ferent departments. McMillan testified that, for each production
department, he told the department head the total numbers of
employees who had to be laid off in that department, by shifts.
McMillan testified that Parker was one such department head,
and he did not testify that he told Parker anything else; specifi-
cally, McMillan did not testify that he told Parker to lay off two
riggers (as Parker had testified).
As noted, Parker testified when called by the General Coun-
sel that he was told to lay off “two of my riggers.” When Parker
was called by the Respondent, he flatly denied that he consid-
ered seniority when he chose employees for layoff. Parker testi-
fied that he selected Davenport over Seither for layoff because
Seither was a better rigger and not because Seither was a senior
employee. As noted, Anderson was hired by the Respondent on
May 22, and he was also classified as a rigger. During that
month before the June 20 layoff, Anderson was usually as-
signed to be the deck hand on a tug boat. The Respondent asked
Parker why he selected Davenport for layoff rather than Ander-
son:

Q. Is there a reason why you did not lay off Mr. An-
derson on June 20, 1997?
A. There’s a couple of reasons why. He’s multi-
talented, plus I wasn’t told to lay off anyone in that de-
partment.
Q. Is that the tugboat department?
A. I’m sorry, yes.

When asked what he meant by testifying that Anderson was
“multi-talented,” Parker testified:

He handles the lines on a tow, so the tugboats [can
move] around different areas, different barges moving
stuff, he attaches the lines, hooks them up. He does main-
tenance on the tugboats.
He has to know virtually as much as the captain does
in just the fact that they’re out to sea sometimes, and if
anything happens to the captain, he’s the next one—he’s
got to take control of the boat. So he can drive the boat,
he’s been taught how to do this. Plus he does help the
barge crane. When the barge crane is moving around mak-
ing different lifts, he’s rigging for the operator sometimes.

. . . .

We had to teach him rigging, yes, at first. He knows
now, but his main duty is to work with the tugboats. We
have two tugs there now, and he’ll swap over and work ei-
ther tug. But his main function is line handler on the tug-
boats, not rigger. But he knows rigging and he knows the
line handling aspect of it also.

When asked if Davenport had the same skills as Anderson,
Parker replied, “I don’t know, I never used him in that capacity,
so I don’t know.”
According to the Respondent’s records, Anderson was in the
Respondent’s paygrade “R6.” When asked what that designa-
tion meant, the Respondent’s personnel assistant (and witness)
Nancy DeVega testified: “R means rigger, six is, Class six is a
learner; so that means that he is a rigger, a learner-rigger
learner.” There is only one pay-grade lower.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
I have previously concluded that Parker counted Bland (who,
again, had been on loan from the machinery department) as one
of “two of my riggers” that he laid off on June 20. When Parker
was called by the Respondent, he was not asked why (or
whether) he selected Bland for layoff.
When Pollack was called by the Respondent, he was asked
nothing about how the June 20 layoff selections were made. On
cross-examination Pollack testified that he was involved in
about six layoffs when he worked for the Respondent, and:
“Usually, when they [upper management] would give us a set
amount, they would say this amount on days and this amount
on nights.” Pollack was asked about the June 20 day-shift selec-
tions for layoff, and he testified:

Q. Who were the two employees that Mr. Parker, as
you’ve stated—Mr. Parker decided would be laid off?
A. Carlos Ordonez and Art Davenport.
Q. And, in fact, Mr. Ordonez was not a rigger, isn’t
that true?
A. No, he was a forklift operator.
Q. Now, it was also your understanding—regarding
the June 20th layoff, it was your understanding that the
department had to lay off two riggers, isn’t that true?
A. It was my understanding that we had to lay off two
people from my department, not necessarily.
Q. So those two people could—I’m sorry, I’m sorry, I
cut you off, what was your—
A. Not necessarily two riggers.
Q. And you had that understanding based on what?
A. What I was told by Tyrone. . . . He said [that] we
had to lay off two people.
And basically I told him, you know, the last two that
we hired in, that we brought in our department, Carlos and
Art. It would be unfair to go to someone higher than those
two, you know, someone that had been there longer and
lay them off.
Q. So your recommendation was that based on the sen-
iority of the people in the department . . . the last two who
were brought in, should be the ones who . . . were the ones
who were laid off?
A. Right.
Q. And Mr. Parker accepted your recommendation,
isn’t that true?
A. He agreed, yes.

Pollack further testified that during the previous layoffs in
which he had been involved, he recommended laying off em-
ployees in terms of departmental seniority, and “usually”
Parker accepted his recommendations. On cross-examination,
Pollack was asked how long Anderson had worked as a rigger;
Pollack replied: “I don’t recall. Not very long. If I recall, if this
is the one I’m thinking of, we moved him out to deck hand on a
tugboat as a rigger and a deck hand on the tugboat and barge
crane. And if I recall, he had a probationary problem and was
called—taken to jail over a probation violation, if I remember
correctly.”
DeVega testified that she handled the recalls of employees
from the June 20 layoff. Recalls were done on a departmental
basis, and she would start calling employees when the depart-
ment heads told her to do so. No riggers were recalled between
June 20 and mid-October, but she did begin recalling welders
during the first or second week of July. DeVega testified that
she did not then recall Davenport from layoff: “Because he was
a rigger.”
Personnel Manager Zeringue testified that the Respondent
recalled no riggers from June 20 through October 15. Zeringue
testified, however, that although Davenport had been a member
of the operations department, the Respondent’s president, Rus-
sell, told him to recall Davenport as a welder. According to
Zeringue:

He said that the NLRB had told him that Mr. Daven-
port was upset that we hadn’t called him back to work as a
welder. . . . And that it might behoove us to call him back.

Zeringue thereafter called Overstreet who confirmed that he
could use another welder. Then, on October 15, Zeringue called
Davenport and offered him a job as a welder. (Again, Zeringue
did not dispute in any significant respect Davenport’s account
of that call.) Zeringue further testified:

A couple of days later, Mr. Russell informed me that
there was a possibility there would be a layoff, and that it
might be in Mr. Davenport’s best interest if we informed
him of that, so that he could make a decision as to whether
he wanted to accept the job or not.

Zeringue then called Davenport again. Zeringue did not dispute
Davenport’s testimony of what was said in that second call.
Neither DeVega nor Zeringue disputed the testimony of
crane operator Hart that, after the recalls began, the Respondent
hired Holland as a rigger and it used employees of subcontrac-
tors, as well as employees of other departments, to perform the
rigging work. The Respondent called Russell as its witness, but
Russell was not asked anything about a recall of Davenport or
whether the Respondent had actually come to anticipate another
layoff shortly after October 15.
3. Davenport’s case—credibility resolutions and conclusions
The complaint alleges that the Respondent discriminated
against Davenport in violation of Section 8(a)(3) by three ac-
tions: (1) beginning on or about May 18, imposing on Daven-
port more onerous working conditions by (a) assigning Daven-
port to an isolated job and (b) assigning Davenport working
hours that inhibited his contacts with other employees; (2) sus-
pending Davenport for 2 days, June 14 and 15; and (3) laying
him off on June 20 and thereafter refusing to recall him. The
Respondent admits suspending Davenport, laying him off, and
thereafter refusing to recall him, but it denies subjecting him to
more onerous working conditions. Therefore, the first factual
issue to be addressed is whether the Respondent subjected Dav-
enport to more onerous working conditions beginning on or
about May 18.
The Respondent assigned Davenport to onerous working
conditions. Davenport testified that beginning about May 18 he
was assigned to be a rigger on the barge crane and that thereaf-
ter he was assigned to that job “about 70 percent” of the time.
Davenport further testified that being on the barge isolated him
from all other work crews who were either on ships or land.
Davenport, Parker and Pollack each testified that before May
18 the deck hand of the tug did the rigging that the barge crane
required. Davenport further testified that after May 18 he did
the rigging on the barge crane while the deck hand did nothing
but sit and watch. Further, Davenport testified that, also begin-
ning about May 18, he was ordered to take starting and quitting
times that were different from the rest of the employees, mak-

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 225
ing it more difficult to have contact with other employees at
shift changes.
It was Pollack who gave daily assignments to Davenport. Af-
ter Davenport had testified that he had spent “about 70 percent”
of his time working on the barge crane, Pollack was called by
the Respondent and asked how much of Davenport’s time was
spent on the decks of ships, as opposed to the barge crane or
elsewhere. Pollack testified, “Probably seventy percent.” I do
not believe that Pollack’s venturing the same percentage was a
mere coincident. Although witnesses were sequestered, it ap-
pears to me that Pollack tailored his testimony just to meet
Davenport’s testimony with the exact converse: Davenport
spent 70 percent of his time on ship decks, not on the barge
crane.20 I credit Davenport over Pollack on this point; as well, I
discredit Hart’s testimony that Davenport worked as his rigger
on land “most of the days, say for a month.”
The Respondent offered no evidence to dispute Davenport’s
testimony that he was isolated from other employees by consis-
tently being told to report to work earlier than other employees,
or leave work later than other employees, or both. The Respon-
dent argues that certain testimony by Davenport on cross-
examination shows that, at least during the last week of his
employment, Davenport was not required to report to work
earlier than other employees. Davenport did testify that he was
present to distribute handbills during the morning shift starts on
June 16 through 20. That testimony, however, in no way de-
tracts from Davenport’s testimony that on all other days after
May 18 he was required to start earlier or work later than other
employees. As well as offering no parol evidence, the Respon-
dent did not offer any of its records which would have shown
just what Davenport’s hours were after he was transferred to
the operations department. I draw an adverse inference against
the Respondent for its failure to present such documents, and I
credit Davenport. That is, I find that, beginning on or about
May 18, the Respondent subjected Davenport to more onerous
working conditions by isolating him from other employees by
assigning him to the barge crane and by assigning him to begin
work earlier, or quit work later, than other employees. The
analysis of Davenport’s case therefore turns to the issue of
whether the Respondent knew of Davenport’s 1997 prounion
sympathies before it began subjecting Davenport to these con-
ditions.
Knowledge of Davenport’s 1997 protected activities. The
Respondent admits that it knew of Davenport’s historic mem-
bership in the Boilermakers Union, but it denies that its super-
visors had knowledge of his involvement with the Union’s
1997 organizational attempt at any time before Davenport was
assigned to the barge crane. Davenport and Union Representa-
tive Meredith testified that Davenport was elected chairman of
the in-plant organizing committee on May 15. Meredith further
testified that he was present on May 16 when Connatser faxed a
letter to Lorton stating that 22 named employees were members
of an in-plant organizing committee. I believe that testimony.
Connatser’s letter was addressed to the Respondent’s owner
George Lorton, and Lorton was presumably the first manager to
see it. The Respondent, however, did not call Lorton to testify
on the matter. Instead, the Respondent called only Russell who
did not testify when it was that he first saw Connatser’s letter;
instead, Russell only offered that he “would imagine” that he
received Connatser’s letter on May 20. Even for this specula-
tion Russell relied on the usual delivery time for the Respon-
dent’s regular mail. Of course, Connatser’s letter was sent to
Lorton by fax, not by regular mail. Moreover, the Respondent
did not offer a copy of what Lorton received from Connatser;
again, it offered only what counsel received from Russell. The
copy that counsel received from Russell bore a fax date stamp
that indicated when it had been sent (May 21); presumably the
copy of the letter that Lorton received from Connatser bore a
date stamp also. The Respondent, however, did not offer that
copy. Instead, it withheld that copy, just as it withheld the tes-
timony of the designated recipient of Connatser’s letter, Lorton.
I draw adverse inferences against the Respondent for its failure
to produce Lorton and its failure to produce the original of the
letter that it received from Connatser, and I find that the Re-
spondent received Connatser’s faxed letter on May 16.

20 On brief, the Respondent states that Pollack “testified that Daven-
port spent 60–70 percent of his time on the deck of a ship and most of
the rest of this time on the dock.” This statement is disappointing; at no
point did Pollack suggest a percentage of “60” for anything; Pollack
testified to no percentage other than 70, exactly the percentage to which
Davenport had testified.
Connatser’s letter did not name Davenport as the chairman
of the organizing committee, but the list of organizing commit-
tee members was not in alphabetical order and there was no
other plausible reason for Connatser’s having listed Daven-
port’s name first. Upon receipt of Connatser’s letter, therefore,
the Respondent’s supervision knew that Davenport was most
actively involved in the 1997 organizational attempt, even if it
did not know that Davenport had been elected “chairman” of
the organizing committee. Finally on the point of just when the
Respondent’s supervisors became aware that Davenport was
involved in the 1997 organizational attempt, it is to be noted
that, even if the Respondent did not receive Connatser’s letter
by May 16, and even if it was not obvious to the Respondent
why Davenport was listed first among the organizing commit-
tee members, Davenport credibly testified that on that date he
began wearing three prounion buttons or stickers. Before May
16 Davenport wore only one Boilermakers Union sticker on his
hardhat. Moreover, no other employee wore as many as three
prounion insignia at once. I find that by virtue of Davenport’s
display of such insignia, as well as by the receipt of Con-
natser’s letter, the Respondent had knowledge of Davenport’s
leading role in the organizational attempt as of May 16. The
issue therefore becomes whether the Respondent bore animus
against Davenport’s 1997 protected activities.
The Respondent harbored animus against Davenport’s pro-
tected activities. The Respondent relies on its having previously
allowed Davenport to come and go from its employ when he
got a job through the Boilermakers Union as a negation of any
contention of animus in this case. It is true that the Respondent
had allowed Davenport to come and go from its employ when-
ever jobs through the Boilermakers Union came available to
him. Before 1997, however, Davenport had not participated in
an organizational attempt while working for the Respondent.
More importantly, Davenport’s testimony about the threats that
were allegedly made to him was impressive. Without any trace
of memorization, Davenport gave clear and convincing recita-
tions of what had been said, and he was not swayed or shaken
by a rigorous cross-examination. The Respondent’s witnesses,
on the other hand, were quite unimpressive. Essentially, they
did no more than respond negatively to generalized leading
questions. (Most unimpressive was Martin who, as noted
above, was willing to testify that the Respondent’s days-off
policy was adopted in April partially on the basis of a memo-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
randum that was not created until at least some time in May.)
For these reasons, and the better demeanor of Davenport, I find
and conclude that, in violation of Section 8(a)(1): (1) Martin
and Branson threatened Davenport with plant closure or plant
removal; (2) Suchier threatened Davenport with unspecified
reprisals; (3) Parker threatened Davenport with discharge; (4)
Parker also threatened Davenport with a futility of collective-
bargaining efforts; and (5) Pollack stated in Davenport’s pres-
ence that Davenport was being laid off because of his union
activities. All of these threats prove that the Respondent har-
bored animus against Davenport’s support of the Union.
Acts of alleged discrimination, relevant knowledge and ani-
mus having been established, it must be concluded that the
General Counsel has presented a prima facie case that the Re-
spondent unlawfully discriminated against Davenport by as-
signing him more onerous working conditions, by suspending
him, by laying him off and by refusing to recall him, as alleged
in the complaint. Under Wright Line,21 once General Counsel
has presented such a prima facie case the burden shifts to Re-
spondent to show that it would have taken adverse actions
against the employee even absent his protected activities.
Therefore, the Board must examine the defenses that the Re-
spondent has presented.
The Respondent unlawfully imposed more onerous working
conditions on Davenport by isolating him from other employees
in two different ways: (1) The Respondent has presented no
factual defense to the allegation that Davenport was unlawfully
assigned more onerous working conditions by being required to
report earlier or work later than other employees. The Respon-
dent argues that Davenport’s employee calendar shows that he
worked long hours on many days while he was working in the
welding department. This is true, but the issue is whether, after
he transferred to the operations department, and after the Re-
spondent found out about his leadership role in the Union’s
1997 organizational drive, Davenport was required to work
hours that other employees were not. Again, the Respondent
possessed the records, which would have defeated Davenport’s
testimony on this point, if it had not been true. The Respondent,
however, chose not to present that evidence. Under Wright
Line, therefore, the Respondent has not shown that it would
have required Davenport to work hours different from other
employees even if he had not engaged in protected activities. I
therefore find and conclude that, in violation of Section 8(a)(3),
the Respondent imposed more onerous working conditions on
Davenport by assigning him work hours that isolated him from
other employees. (2) I have already rejected the Respondent’s
contention that Davenport was not further isolated by consis-
tently assigning him to work on the barge crane. Accordingly, I
must conclude that the Respondent has failed to show that, even
absent his prounion sympathies, Davenport would have been so
assigned to the barge crane. I therefore find and conclude that,
in violation of Section 8(a)(3), the Respondent also imposed
more onerous working conditions on Davenport by assigning
him to work areas that isolated him from other employees.
The Respondent unlawfully suspended Davenport. It is un-
disputed that when Parker told Davenport that he must not
come to work on June 14 and 15 he told Davenport that the
reason was: “Jim Martin’s got the safety deal now that if you
work over twenty-one days straight, you have to have two days
off.” An issue in this case is whether such a days-off policy as
Parker described to Davenport actually existed.

21 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
As demonstrated above, both before and after Davenport was
suspended, 15 employees other than Davenport, on 21 occa-
sions,22 worked more than 21 days without taking 1 day off,
much less two.23 The Respondent offers no explanation of why
13 of those 15 other employees were allowed to work more
than 21 consecutive days without taking a day off. The two
employees for whom the Respondent did offer explanations
were operations department crane operators, Mott and Erbil.
Mott worked series of 28 and 32 consecutive days with only
one day off in between; Erbil worked two series of working 27
days each with only 1 day off in between; then Erbil worked 26
consecutive days after taking only 1 more day off. Parker testi-
fied that he did not require Mott and Erbil to take days off after
once24 asking them if they were too tired to continue. Assuming
that this was an explanation for one of Mott’s two, and one of
Erbil’s three, series of working in excess of 21 consecutive
days without a day off, it certainly is not an explanation for all
five of those series. Assuming, however, that Parker asked Mott
twice and Erbil three times if they were too tired to continue, he
certainly did not testify that he asked Mott and Erbil each con-
secutive day past day 21 if they were too tired to continue
working without a day (or two) off. (That is, Parker did not
testify that he asked Mott after the twenty-first day of his first
series if he was too tired, or after the twenty-second day of
Mott’s first series, or after the twenty-first and twenty-second
days of Erbil’s second series, and so on.) Finally on this point,
Parker admitted that, at least at some point, he gave Mott and
Erbil opportunities to argue that they were not too tired to work
safely after their series of working consecutive days; Parker,
however, afforded Davenport no such opportunity.
Therefore, the Respondent has offered only incompetent tes-
timony to meet the General Counsel’s contentions that Mott’s
and Erbil’s cases show disparate treatment against Davenport.
The Respondent has further offered no testimony to meet the
General Counsel’s contentions that the cases of the 13 other
employees also show disparate treatment against Davenport. To
use the extreme example, the Respondent offered no evidence
of why employee Guido was allowed to work periods of 75 and
91 consecutive days (with only a 1-day separation between
those periods), but Davenport was suspended because he had
worked in excess of 21 consecutive days. This is the essence of
discrimination.
It must further be found that, even when the 15 employees
other than Davenport ultimately did take a day off, they did not
do so because a days-off policy was being enforced. If any of
those 15 employees had been required to take any time off be-
cause of a days-off policy, the Respondent assuredly would
22 It must be noted that, although there were 15 other employees
whom the Respondent did not treat as it did Davenport, there were
actually 21 instances of employees working more than 21 days without
taking time off; 11 of the previously named employees had only one
series of working in excess of 21 days without taking time off, but
Engin and Guido each had three, and Mott and Jerome Parker each had
two.
23 Worsham and Johnson took off 2 days, but not until after they had
worked 26 consecutive days. Mott took 2 days off, but only after work-
ing series of 28 and 32 consecutive days with no more than 1 day off.
24 Mott explained, “At the time we were very busy.” The reference to
“the time” necessarily means that Mott was referring to one occasion.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 227
have produced their supervisors to so testify. The Respondent
contends that it kept no records of when employees were re-
quired to take time off under the days-off policy, but nothing
prevented the Respondents from producing the foremen of the
15 other employees to testify that, when those other employees
finally did take a day off, they did so because they were ordered
to under the days-off policy. Specifically, not even Parker of-
fered such testimony regarding Erbil and Mott. As noted, Erbil
took one day off after his first series of working 27 consecutive
days, 1 day off after his second series of working 27 consecu-
tive days, and 1 day off after his series of working 26 consecu-
tive days; also Mott took 1 day off after his series of working
28 consecutive days and 1 day off after his series of working 32
consecutive days. Parker however, did not testify that he or-
dered either Mott or Erbil to take any of those days off pursuant
to the days-off policy. Obviously, the Respondent did not pre-
sent such testimony because it could not.
I do not believe that the days-off policy ever existed. As well
as a total lack enforcement of the purported rule against any
employee except Davenport, the Respondent could not docu-
ment the adoption of any such policy. The Respondent offered
management safety meeting minutes from April 23, 1996, that
indicate that its business consultant Murdock may have pro-
posed some sort of days-off policy, and Martin testified that he
agreed with that proposal. The minutes of Respondent’s man-
agement safety meetings after that month occasionally mention
problems with excessive overtime; however they do not suggest
that a days-off policy was ever adopted because of excessive
overtime or consecutive days worked. As noted, at one point
Martin posited that the rule had been adopted on April 24, but
he could not explain why documentation that he supposedly
had gathered before that date referred to dates in May.
Parker also testified that the 21-day days-off policy was es-
tablished before it was imposed on Davenport, and he testified
that he had previously announced it to the employees under his
supervision. Hart and Pollack were under Parker’s supervision,
and they testified for the Respondent, but neither was asked to
corroborate Parker on this point. Also, Overstreet testified for
the Respondent, but he also failed to corroborate Parker by
testifying that he told his employees in the welding department
about the days-off policy. I therefore discredit Parker, as well
as Martin, and I find that the 21-day days-off policy never ex-
isted, except as a putative reason for suspending Davenport.
Finally, on brief the Respondent argues that after Davenport
was suspended no other employee worked 40 days without at
taking least 1 day off. This appears to be true, but neither
Parker nor McMillan testified that Davenport was suspended
because he had worked 40 consecutive days, and the argument
appears to be nothing but the lawyer’s creation. Moreover,
Parker told Davenport that he was suspended because the Re-
spondent had a policy against working over “21” consecutive
days without a 2-day break, something that was simply not true,
as the records and testimony (or lack of testimony) establish.
Accordingly, I find and conclude that the reason assigned for
the June 14 suspension of Davenport was a pretext, that the
Respondent has not shown that it would have suspended Dav-
enport even absent his protected activities, and that by that
suspension the Respondent violated Section 8(a)(3) of the Act.
The Respondent unlawfully laid off Davenport. The Respon-
dent’s position is that Foreman Parker selected Davenport for
layoff and that he did so for nonviolative reasons. Acceptance
of Parker’s testimony, therefore, is critical to the defense.
Parker’s testimony, however, was shown to be false on several
accounts:
(1) Parker testified that McMillan told him to lay off “two of
my riggers” from the operations department. This testimony by
Parker conflicts with that of Pollack who testified that: “Usu-
ally, when they [upper management] would give us a set
amount [of employees to layoff], they would say this amount
on days and this amount on nights.” Parker’s testimony further
conflicts with Pollack’s testimony that Parker told him on June
20 that: “[W]e had to lay off two people from my department,
not necessarily—not necessarily two riggers.” Parker’s testi-
mony on this point further conflicts with the testimony of
McMillan who testified that he only told department heads such
as Parker the numbers of employees to be laid off, not names or
classifications. I find that McMillan told Parker to lay off two
day-shift operations department employees, not two riggers; the
specific point here, however, is that Parker was not a truthful
witness.
(2) Parker further testified that Davenport was selected for
layoff strictly on the basis of merit, not seniority. Davenport,
however, testified without contradiction that Parker told him
that he was being laid off only because he was “the low man on
the totem pole.” Davenport’s testimony of what Parker told him
is further corroborated by the undisputed fact that Pollack also
told him that he was being laid off because he was “the newest
guy into the department.” Even further corroboration of Daven-
port’s testimony is found in Pollack’s testimony that in the past
the Respondent had conducted layoffs by seniority, and that on
June 20 he recommended to Parker that the layoff be conducted
according to seniority, and that Parker accepted that recom-
mendation. The substance of Parker’s trial-time contention that
Davenport was laid off on the basis of comparative merit will
be addressed below; but for now it must be noted that Parker’s
testimony on the point conflicted with not only the undisputed
fact of what he told Davenport, it conflicted with the testimony
of the Respondent’s witness Pollack.
(3) After Parker had testified that McMillan told him to lay
off two riggers, he was asked why he laid off forklift operator
Ordonez as well as Davenport and Bland. Parker replied: “Be-
cause I had to lay off in that department also.” According to
McMillan, according to the Respondent’s records, and accord-
ing to all other witnesses on the point, however, the forklift
operator’s job is also in the operations department; there is no
“forklift department.” Also, when asked why he had not con-
sidered tugboat deck hand Anderson for layoff, Parker testified,
inter alia, “I wasn’t told to lay off anyone in that department.”
Like the “forklift department,” there is no such thing as the
“tugboat department.” The Respondent’s records show, and all
other witnesses on the point testified, that the tugboat employ-
ees were part of the operations department. Indeed, Respon-
dent’s records listed Anderson as a member of the operations
department, and he was classified as a “rigger,” just as Daven-
port was.
The Respondent offers no suggestion on brief of how
Parker’s testimony can be reconciled with the testimony of its
other witnesses or the undisputed facts. It is apparent to me that
the reason that Parker’s testimony presents so many conflicts is
that Parker was not the supervisor who selected Davenport for
layoff. The supervisor who selected Davenport for layoff was
Pollack, as the status/payroll change report that was signed by
Pollack reflects. At best, Parker’s involvement was only to
receive McMillan’s order to lay off two day-shift employees

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
(not two riggers), to pass that order along to Pollack, and to
accept Pollack’s recommendation to lay off Davenport.
(Parker’s passive involvement in the selection of Davenport for
layoff explains his lapse of memory and his initial answer to the
General Counsel: “I laid off two employees?” That is, when
Parker took the witness stand, he had not remembered laying
off any employees except Davenport; when he was reminded
that he had laid off two employees, Parker concocted the lie
that he was told to lay off “two of my riggers”; then, when
Parker was reminded that he also had laid off forklift operator
Ordonez, he concocted the lie that he was also told to lay off an
employee in the “forklift department.”)
Parker attempted to justify the selection of Davenport for
layoff by claiming Anderson was “multi-talented” and that
Davenport was not. Davenport, however, had at least some
degree of multiple talents because Pollack had qualified Dav-
enport to operate the forklift, something for which Parker was
willing to give Davenport no credit. More importantly, Parker
was completely incredible in his listing of Anderson’s multiple
talents. Above, I have quoted at length Parker’s extensive reci-
tation of Anderson’s many alleged talents. The purpose of that
long quotation is to show the extent of Parker’s exaggeration
which falls of its own weight. Parker would have the Board
believe that Anderson could even operate the tugboat on his
own (something that would, of course, require a Coast Guard
license). Anderson, however, was classified merely as a “rig-
ger-learner,” and he was in the Respondent’s next-to-lowest
pay grade. The low pay grade to which the Respondent had
relegated Anderson hardly bespeaks of a consideration of
Anderson as “multi-talented,” or particularly valuable on any
account.25 Moreover, Anderson learned his line-handling skills
on the job (not the Coast Guard Academy or anywhere else).
When asked if Davenport did not have the same skills, Parker
admitted that he did not know because he had never given Dav-
enport a chance to perform the line-handling. Finally on this
point, Davenport was in the Respondent’s highest non-
supervisory pay grade, and General Superintendent Lackman
had described him as: “The type of person we need. Does not
miss work. A+ in all.” I therefore reject any contention that
Davenport was selected for layoff because he did not have, or
could not quickly learn, skills that were more valuable to the
Respondent than the skills that Anderson possessed. I therefore
find to be false Parker’s testimony that it was on the basis of
merit that he selected Davenport for layoff.
When Parker left it to Pollack to select the employees who
would be laid off, Pollack selected Davenport and Ordonez, and
Parker agreed. At trial, Pollack attempted to justify the selec-
tion by stating that the employees were selected according to
seniority; this answer was false because Davenport had more
seniority than either Ordonez or Anderson. (Again, Davenport
was last hired on June 23, 1996, and Ordonez and Anderson
were hired on May 19 and 22, 1997, respectively.)
All of which is to say that the witnesses whom the Respon-
dent presented to meet the General Counsel’s prima facie case
gave false testimony. When false reasons are given for an ac-
tion, logic compels the conclusion that the real reason lies
elsewhere. I find that the real reason that the Respondent se-
lected Davenport for layoff is found in what Pollack told Parker
in the presence of Davenport; to wit: a desire to rid the Re-
spondent of one of the “Union guys.” Indeed, Davenport was
the lead “Union guy,” as the Respondent knew. At minimum,
the Respondent has failed to show that it would have selected
Davenport for layoff even absent his known protected activi-
ties. Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(3) by laying off Davenport on June 20.

25 As well as Anderson’s being lowly paid, there is no accounting of
how he could have learned so much in the month that he was employed
by the Respondent before the June 20 layoff (especially since, accord-
ing to Pollack, Anderson lost some worktime due to his parole viola-
tion).
The Respondent has unlawfully refused to recall Davenport
from layoff. Assuming that the Respondent needed no more
riggers after June 20, it is undisputed the Respondent began
recalling welders almost immediately after that date, and the
Respondent’s witnesses on the point admitted that the Respon-
dent remained in constant need of welders thereafter.26 Before
Davenport was a rigger, he was, of course, a welder (and,
again, a highly paid welder). The Respondent argues that Dav-
enport was not recalled as a welder precisely because he had
been a rigger. In point of fact, however, Zeringue did recall
Davenport as a welder on October 15.27 Zeringue testified that
Russell ordered him to recall Davenport as a welder because
the NLRB had reported that Davenport was “upset” about not
being recalled. Even if Russell’s order originated in some de-
sire to avoid the processes of the NLRB, it belies any conten-
tion that Davenport’s having last worked as a rigger somehow
constituted an inflexible obstacle to the recall of Davenport as a
welder.28
The assumption of the preceding paragraph, however, is
false; the Respondent did need riggers after June 20. As the
Respondent’s witness Hart testified, the Respondent employed
subcontractors to do some of the rigging. The Respondent also
hired Holland as a rigger, and it used Pollack, crane operators
and employees of other crafts to do the rigging that Davenport
would have done, but for the unlawful discrimination against
him. Finally, Anderson quit on July 11, Pollack quit on Sep-
tember 26, and Seither (again, a rigger) also quit at some time
during the fall of 1997; nevertheless the Respondent did not
recall Davenport. As mentioned, each crane needs two employ-
ees to operate, one being a rigger. The Respondent has at least
four cranes operating most of the time (plus the barge crane),
and it is apparent that it did anything it could to avoid recalling
Davenport. It is further apparent that the Respondent refused to
recall Davenport, as a rigger or as a welder, because of the
unlawful animus found herein. I therefore find and conclude
that, as well as unlawfully laying off Davenport, the Respon-
dent refused to recall Davenport in violation of Section 8(a)(3).
26 On Br., p. 21, the Respondent states that the Charging Party’s wit-
ness Rebman testified that the Respondent laid off welders and ship
fitters in late October. This statement is false. Rebman testified only
that subcontractors’ employees were then laid off.
27 Indeed, the Respondent also relies on this recall as evidence that it
harbored no animus toward Davenport’s protected activities.
28 Of course, the Respondent withdrew the October 15 offer of recall
immediately after Davenport indicated that he would accept it. In order
to justify that withdrawal, Respondent was required to create the excuse
of another anticipated layoff. That excuse was a pretext, as demon-
strated by the fact that there was no subsequent layoff of welders (see
fn. 26) and by the fact that Russell, who made the decision to withdraw
the October 15 offer of recall, did not testify on the point. Indeed, the
Respondent’s withdrawal of the recall notice fortifies my conclusion
that the Respondent still did not want “Union guy” Davenport back at
the plant.

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 229
C. Alleged Unlawful Surveillance of Protected Activities
1. Watching and photographing handbilling at the
Respondent’s gate
17th Street in Tampa runs north-south. A portion of the Re-
spondent’s property faces east on 17th Street. That property is
bounded on 17th Street by a 5-foot-high chain-link fence that
has a 40-foot gate. Employees arriving by automobile park in
public spaces outside the gate. As one proceeds west through
the gate, there is a guard house immediately to the left. About
50 feet inside the gate, and to the right, is the Respondent’s
administration building. On the east side of the building (where
17th Street and the gate can be easily seen) is a covered area in
which automobiles can be parked (the covered parking area).
Beginning on June 16 and continuing until the day of the
June 30 Board election, the union representatives handbilled
before the first shift which started at 7:30 a.m., and they hand-
billed at the 4 p.m. shift change. Union Representative Mere-
dith testified that on June 16, during both rounds of handbilling
that occurred that day, he observed the Respondent’s president,
Russell, standing in the covered parking area, watching the
handbilling. Specifically, Meredith testified that between 7 and
7:10 a.m. on June 16 he saw Russell come to the covered park-
ing area and watch the handbilling. Russell remained at the
covered parking area, according to Meredith, until shortly after
the 7:30 a.m. starting time. At the afternoon shift change, Rus-
sell returned to the covered parking area and watched the hand-
billing for 15 or 20 minutes.
Meredith further testified that on June 18 Russell again stood
in the covered parking area and watched the handbilling “for
probably 20 minutes.” During most of that time McMillan
stood with Russell and also watched the handbilling. Meredith
testified that McMillan left the area before Russell, but Russell
stayed in the area and finished a cigarette; then, according to
Meredith, Russell went into the administration building.
Meredith further testified that on June 20, at the start of the
first shift, he saw Russell stand in the covered parking area
watching both the handbilling at the gate and activities in the
public parking area along 17th Street. In the public parking area
the Union had stationed a van which carried supplies and re-
freshments for those performing the handbilling. Russell stood
at the covered parking area that morning, and smoked ciga-
rettes, for about 20 minutes. Russell did the same thing during
the shift change, but for only about 10 minutes. Meredith did
not testify that any employees were in the immediate vicinity of
the van on either occasion of Russell’s being in the covered
parking area on June 20.
Meredith further testified that on June 23 and 25 he again
saw Russell in the covered parking area watching the handbill-
ing and activity around the van in public parking area. Meredith
further testified that on June 26 he again saw Russell and
McMillan who were observing the handbilling from the cov-
ered parking area. At some point, Russell left the covered park-
ing area and walked to the chain-link fence that runs along 17th
Street. Once there, according to Meredith, Russell “had a cam-
era and took a picture of the gate where the employees walk
through, and also the [public] area where the van was parked
at.” At the time, Meredith was at the van; Meredith also had a
camera, and he took a picture of Russell as Russell took a pic-
ture of the area of the van. (The photograph that Meredith took
of Russell was received in evidence; in that picture Russell is
seen holding a camera above the chain-link fence along 17th
Street and apparently taking a photograph.) On cross-
examination, Meredith admitted that on most, “if not all,” of the
occasions that he saw Russell in the covered parking area Rus-
sell was smoking a cigarette. Union Representative Michael
Jeske testified that he participated in much of the handbilling
that Meredith did. Jeske testified consistently with Meredith
about seeing Russell watching the employees as they entered
the gate during the handbilling.
Based on this testimony by Meredith and Jeske, the com-
plaint, at paragraphs 6, 15(a), and 16, alleges that, by Russell
and McMillan, the Respondent unlawfully conducted surveil-
lance of employees who were engaged in union activities.
Paragraph 15(b) of the complaint alleges that Russell unlaw-
fully “engaged in surveillance by taking photographs of em-
ployees engaged in union activities.”
Russell, however, credibly testified that he stood at the cov-
ered parking area only to smoke (something that he, a very
heavy smoker, could not do inside the administration building).
Russell further testified that he took photographs only after an
employee complained to him that the Union was taking photo-
graphs. As will be discussed below, Wanda Dozier is a viru-
lently antiunion employee, and she regularly handbilled against
the Union at some of the same times that the Union conducted
handbilling. Joanne Shoffstall is an office employee. Shoffstall
testified that on the day that Russell took photographs, union
representatives had first taken photographs of her accepting a
handbill from Dozier. Shoffstall, being upset, went into the
administration building and complained to Russell. This testi-
mony by Shoffstall was credible. Russell then secured an office
camera and took photographs of union representatives who
were in the area, both at the gate and at the public parking area.
The photographs that Russell took are in evidence. Dozier is the
only employee who appears in the photographs that Russell
took. There was no testimony by any witness that any other
employees were in the gate area (or the public parking area) at
the time that Russell was taking photographs.
The General Counsel heavily relies on F. W. Woolworth Co.,
310 NLRB 1197 (1993), for the proposition that an employer’s
photographing of employees who are engaged in protected
activities violates Section 8(a)(1). In Woolworth, the employer
conducted himself in such a fashion that employees knew that
they were being photographed. The Board held that photo-
graphing employees violated Section 8(a)(1), “because such
pictorial record-keeping tends to create fear among employees
of future reprisals.” In this case, as opposed to the facts of
Woolworth, the only employee who could have known that
Russell was taking photographs was Dozier, again a virulently
anti-union employee who could have possessed no fear that the
Respondent would take reprisals against her because of her
protected activities. There is, therefore, no argument that Doz-
ier could have been coerced by Russell’s conduct. Woolworth
further repeats the well established principle that, “an em-
ployer’s mere observation of open, public union activity on or
near its property does not constitute unlawful surveillance.”
Therefore, even if Russell had stationed himself in the covered
parking area to observe the handbilling (rather than just to
smoke), no violation of the Act was committed. Nor was any
such violation committed by McMillan who did no more than
join Russell in the covered parking area on two occasions and
also observe the open and obvious handbilling activities. Ac-
cordingly, I shall recommend dismissal of paragraphs 6, 15(a)
and (b), and 16 of the complaint. To the extent that these
allegations are also objections, I shall also recommend that they

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
gations are also objections, I shall also recommend that they be
overruled.
2. Watching employees approach the polling area
As one leaves the area of the administration building and
gate, walking or driving west, one approaches the Respondent’s
main production building. The production building is irregu-
larly shaped, but it suffices to say that it is a structure that is
about 230 feet by 82 feet, the longer sides facing east and west,
roughly parallel to 17th Street. (The east side of the building
therefore faces 17th Street, and the west side of the building
faces the Ybor Channel of Tampa Bay). Employees usually
enter the production building on its west side where there are
two entrances, an 18-foot-wide service door and an ordinary
door to the lunchroom. The service door is located about the
middle of the west side of the building; the lunchroom door is
almost immediately next to it (to the north). On the west side of
the production building, and running north and south of it, and
extending west to the Ybor Channel, is a large production yard.
On the far north side of the production yard is a 6-foot chain-
link fence that has strands of barbed wire running above it.
The June 30 Board election was conducted from 3 to 5 p.m.
in the employees’ lunchroom. As is the usual procedure, the
Board agent who was assigned to conduct the election also
conducted a preelection conference of the parties and their ob-
servers. The preelection conference was also conducted in the
lunchroom. Attending the preelection conference for the Union
were Union Representatives Meredith, Jeske, Connatser, and
Gordon Baxter; attending for the Respondent were McMillan,
Russell, George Lorton, and Attorney Peter Zinober. Meredith
testified that at the conclusion of the preelection conference he
and the other union representatives left the area of the lunch-
room and walked toward, and around, the northwest corner of
the building and began walking east toward the gate. As he
looked back, however, he saw that, although Zinober, Lorton,
McMillan, and Russell were taking the same path as the union
representatives, McMillan had stopped near the northwest cor-
ner of the building, about 70 feet from the lunch room door and
had begun talking to two other men. Meredith testified that he
and Jeske went to a point outside the chain-link fence that bor-
ders the north side of Respondent’s property. Meredith testified
that he noted to Jeske that it was then “twelve minutes after
three” according to his watch, but McMillan was still standing
outside the lunchroom, still talking to the other men. By that
point, Zinober and Russell had walked close to the administra-
tion building (and out of sight of the lunchroom door). Mere-
dith began taking pictures. Meredith testified that at one point
he saw Zinober looking at him. Although he was too far away
to hear what was being said, he saw Zinober point to McMillan
and the men with him; then Russell left Zinober and ap-
proached McMillan and the men to whom he was talking. Then
McMillan, Russell and one of the men walked toward Zinober
(and out of sight of the lunchroom door). Meredith testified that
it took him (and Jeske) about 7 minutes to reach their vantage
point where they began taking pictures; and Meredith testified
it was about 10 minutes thereafter that McMillan re-joined
Zinober and Russell. Meredith testified that during the period
that he observed McMillan near the production building, some
employees in the production yard were walking toward the
lunchroom door, within sight of McMillan; furthermore,
McMillan waived two of those employees over to talk to him
(and the men who were with him) before they went on to the
lunchroom. Meredith used an ordinary 35 millimeter camera to
take his pictures; he admitted on cross-examination that he was
about 500 feet from McMillan when he did take them.
Jeske testified consistently with Meredith about leaving the
employees’ lunchroom on June 30 with Meredith and seeing
McMillan talking to other persons; Jeske identified one of the
persons with whom McMillan stood near the northwest corner
of the production building as the Respondent’s general man-
ager, Wayne Reed. (Jeske further testified that Reed had been
with Zinober and other management members at the pre-
election conference.) Jeske further testified that, until McMillan
was approached by Russell, McMillan stood where he would
have a clear view of the door to the lunchroom. Jeske estimated
the amount of time that McMillan’s group stood in that position
to be from 10 to 15 minutes. Jeske estimated that during that
period four or five employees passed McMillan’s group on
their way to the area of the lunchroom; some of the employees
stopped and spoke “a few minutes” with McMillan’s group.
Jeske concluded that when McMillan’s group was standing
near the northwest corner of the production building: “There
was no way that anybody could have entered the polling area
without being seen from where they were standing.” On cross-
examination, Jeske admitted that the employees whom he saw
walking by McMillan’s group could have been supervisors or
employees of subcontractors, although all of them did start
walking toward the lunchroom area after they spoke to
McMillan’s group.
Until he was laid off on June 20, Matthew Wilson was a
welder under Foreman Overstreet; one Dale England is a lead-
man of the welding department. Wilson testified that about 4
p.m. on June 30 he returned to the plant to vote in the Board
election. As he walked toward the polling area he saw
Overstreet and England standing in the production yard, “talk-
ing to each other.” Wilson testified that Overstreet and England
were about 75 feet from the lunchroom door; Wilson passed
within 10 feet of them. Wilson proceeded into the lunchroom to
vote; when he came out, Overstreet and England were in the
same place, still talking. Wilson estimated the elapsed time that
Overstreet and England would have been standing and talking
in the production yard as “about 10 minutes.”
Based on this testimony by Wilson, Meredith and Jeske, the
complaint, at paragraphs 17 and 18, alleges that by McMillan’s
and Overstreet’s conduct the Respondent conducted unlawful
surveillance of the employees as they engaged in the protected
activity of voting in the Board election of June 30.
On the day of the Board election there was in the production
yard, several feet west of the door to the lunchroom, a contain-
erized-freight container (a trailer without undercarriage), which
was called the “Conex Trailer” at the hearing. The Conex
Trailer is 40 feet long, 8 feet deep, and 8 feet high. Just west of
the Conex Trailer was a large crane.
McMillan testified that when he left the preelection confer-
ence he was accompanied by Reed. McMillan and Reed walked
west into the production yard and turned north around the Co-
nex Trailer and crane where they met Overstreet. Overstreet
stopped McMillan (and Reed) and asked a question about pro-
duction. When the conversation with Overstreet had lasted from
“three to five minutes,” Russell approached the three men and
told them that someone (Meredith) was taking their picture. At
that point McMillan and Reed (and Russell) walked east, di-
rectly toward the administration building. Overstreet either
stayed in that working area or went to his office, which was in
the immediate vicinity. McMillan estimated that he stopped the

INTERNATIONAL SHIP REPAIR & MARINE SERVICES 231
conversation with Overstreet by 3:08 p.m. McMillan testified
that during the conversation with Overstreet, the Conex Trailer
and the crane were between him and the lunchroom door which
was 125 feet away. McMillan acknowledged that he could see
many employees working, but he flatly denied that he could see
the lunchroom door.
I credit Meredith’s testimony that he observed McMillan’s
group until about 3:20 p.m., but I credit all other testimony by
McMillan. That is, at the time that he was observed by Mere-
dith and Jeske, McMillan was doing nothing more than discuss-
ing a production matter with a supervisor whom he met in the
working area as he left the polling area. Moreover, I find that
McMillan could not see the lunchroom door at the time. The
Conex Trailer and crane are clearly seen in some of the photo-
graphs that Meredith took.29 Although Meredith and Jeske
possibly could not tell it from 500 feet away, it is apparent that
the trailer and crane would have presented formidable obstacles
to anyone who wanted to view the lunchroom door when stand-
ing anywhere near where McMillan was. McMillan did speak
to some individuals as they walked in the area, but there is no
probative evidence that those individuals were employees of
the Respondent (as opposed to employees of subcontractors or
supervisors); assuming that they were the Respondent’s em-
ployees, and assuming that they were on their way to vote (as
opposed to being on their way to the service door to the west
side of the building), there is no evidence McMillan engaged in
any electioneering. Finally, Overstreet credibly testified that his
activities that Wilson witnessed about 4 p.m. on June 30 were
nothing more than an instance of normal shift-change ex-
changes of information.
Under these circumstances I find that the Respondent did not
conduct surveillance of the polling area, and I further find that
no employee who saw the supervisors in question would have
reasonably believe that the Respondent was conducting such
surveillance.30 I shall therefore recommend dismissal of para-
graphs 17 and 18 of the complaint. To the extent that these
allegations are also objections, I shall also recommend that they
be overruled.
D. Other Conduct Alleged to Have Been Objectionable
The Union has filed objections over each of the unfair labor
practices that I have found above; I recommend that the Board
sustain those objections. The Union has also filed objections
over each of the unfair labor practice allegations that I have
dismissed above; I recommend dismissal of those objections.
Additional objections that were filed by the Union are:

1. Employees prepared and distributed anti-union lit-
erature while paid and on the clock.
2. The Employer supplied materials, supplies, and
equipment, free of charge, for employees to produce and
distribute anti-union literature.
3. The Employer aided, assisted, and discriminated in
favor of employee groups which opposed the Union, and
did not give similar aid, assistance or benefits to Union
supporters who sought to persuade employees to vote for
the Union.

29 McMillan’s group, and the northeast corner of the Conex Trailer,
show in Meredith’s photographs that were reproduced on the R. Exh.
6(a). A full view of the trailer, and its relationship to the production
building are shown in R. Exh. 6(g).
30 All of the cases cited by the General Counsel involve systematic
employer conduct from which employees could not have escaped im-
pressions of surveillance.
. . . .

9. The Employer distributed “Employee Fact Sheets”
during the election campaign which threatened employees
with job loss, replacement in the event of a strike, closure
of the Company if the Union won the election, loss of
wages, benefits, and erosion of working conditions if the
Union won the election, improved working conditions if
the Union was defeated, and suggested that it was futile to
vote for union representation.
. . . .

12. At various dates . . . the Employer . . . interrogated
employees concerning their union activities.
13. During the election campaign, the Employer prom-
ised improvements in terms and conditions of employment
if the Union was defeated.
14. The day after the election, the Employer followed
through on its promise to reward employees if the Union
was defeated by granting employees eight hours of paid
leave.

(Again, none of these quoted objections was alleged by the
complaint as a separate unfair labor practice.)
Interrogating employees. Davenport testified that Martin
demanded to know about the Union’s organizational attempt
and Davenport’s role in it. I found that testimony credible, and I
sustain the Union’s objection in this regard.
Assisting employees who opposed the Union. At the hearing
the Union contended that the Employer allowed antiunion em-
ployees Dozier and Keith Parker to print antiunion literature on
working time and allowed them to use the Employer’s facilities
and supplies to do so; the Union further contended that the
Employer allowed Dozier and Parker to use working time to
distribute such literature. There is a timeclock at the gate;
Meredith testified that other representatives of the Union, but
not he,31 saw Dozier punch out, pass out handbills during what
would be working time, and then punch back in. Dozier was
called by the Respondent; she testified that supervisors warned
her against using the Employer’s facilities for production of
handbills, and she testified that she did not do so. Dozier further
testified that supervisors warned her against conducting distri-
butions on working time, and she testified that she did not do
so. Parker did not testify.
The Union adduced no evidence that any supervisor ever
permitted (or even knew of) either: (1) productions of antiunion
literature on working time, (2) productions that were accom-
plished with the use of the Employer’s supplies or facilities, or
(3) employee distributions of anti-union handbills during work-
ing time. I find Meredith’s hearsay observations, and his many
assumptions, are not overcome by Dozier’s testimony. In this
posture of the case, I necessarily find that the objections in this
regard are not supported by probative evidence. I shall there-
fore recommend their dismissal.
Other objections. The “Fact Sheets” to which the Union re-
fers in its objections are in evidence, but they contain none of
the coercive statements that the Union alleges. Moreover, the
Union offered no evidence of any unlawful promises made by
the Employer, and the grant of 8 hours’ leave was announced
31 As Meredith admitted: “I, myself, did not witness her. Other mem-
bers of the Metal Trades Council did.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
after the election was completed and therefore not within the
“critical period” for objections.32
CONCLUSIONS OF LAW
1. By the following acts and conduct Respondent has vio-
lated Section 8(a)(1) of the Act:
(a) On or about May 17 or 18, Martin threatened the Re-
spondent’s employees with plant closure and relocation if they
chose to be represented by the Union.
(b) On or about May 17 or 18, Branson threatened the Re-
spondent’s employees with plant closure and relocation if they
chose to be represented by the Union.
(c) On or about May 20, Sucher threatened the Respondent’s
employees with unspecified reprisals because they engaged in
union activities.
(d) On or about May 20, Parker threatened the Respondent’s
employees with discharge because they engaged in union ac-
tivities.
(e) On or about May 20, Parker warned the Respondent’s
employees that it would be futile for them to choose to be rep-
resented by the Union.
(f) On or about June 20, Pollack threatened the Respondent’s
employees with discharge because they had engaged in union
activities.
2. By the following acts and conduct Respondent has vio-
lated Section 8(a)(3) and (1) of the Act:
(a) On or about May 18, assigning to employee Arthur Dav-
enport more onerous working conditions because he had be-
come or remained a member of the Union or had given assis-
tance or support to it.

32 See Ideal Electric Co., 134 NLRB 1275 (1961).
(b) On or about June 14, suspending employee Arthur Dav-
enport because he had become or remained a member of the
Union or had given assistance or support to it.
(c) On or about June 23, laying off employee Arthur Daven-
port because he had become or remained a member of the Un-
ion or had given assistance or support to it.
(d) Since on or about June 23, refusing to recall from layoff
employee Arthur Davenport because he had become or re-
mained a member of the Union or had given assistance or sup-
port to it.
THE REMEDY
The Respondent having discriminatorily laid off and refused
to recall employee Arthur Davenport, must offer him reinstate-
ment and make him whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of his
layoff to the 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). The Respondent
shall similarly make Davenport whole for the loss of pay or
other benefits that he suffered as a result of its unlawfully sus-
pending him. Respondent shall also be ordered to expunge from
its files all records of the violative discriminatory treatment of
Davenport. Sterling Sugars, Inc., 261 NLRB 472 (1982). Fi-
nally, Respondent shall be required to post a notice that assures
the employees that it will respect their rights under the Act.
[Recommended Order omitted from publication.]