Levingston Shipbuilding Co.

National Labor Relations Board - Board Decisions

Apr 25, 1980

249 N.L.R.B. 1 (N.L.R.B. 1980)

LEVINGSTON SHIPBUILDING COMPANY I
Levingston Shipbuilding Company and United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO-CLC. Case 23-CA-7189
April 25, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On December 10, 1979, Administrative Law
Judge Joan Wieder issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge.
ORDER3
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' Respondent's motion for oral argument is hereby denied. In our judg-
ment, the record, including exhibits and briefs, adequately presents the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
The Administrative Law Judge found that Respondent violated Sec.
8(a)(1) by interrogating employees without adhering to the safeguards set
forth in Johnnie's Poultry Co., 146 NLRB 770 (1964). We find that in the
circumstances of this case Alton Box Board Company, Container Division,
155 NLRB 1025 (1965), also cited by the Administrative Law Judge, is
more to the point. Additionally, in finding Allen's discharge unlawful we
do not rely on the fact that it occurred a month before the election, nor
do we adopt the inference that, because the plant is small, management
was aware of previous threats by other employees. Respondent also al-
leges, contrary to the finding of the Administrative Law Judge, that Ash-
worth has been rehired. The record is ambiguous, but in any event we do
not rely on Ashworth's current employment status. Also in sec. III, A. 4.
second paragraph, last two sentences, of the Administrative Law Judge's
Decision, "Sanderson" should be "Ashworth."
We dismiss the 8(a)() violation predicated on Allen's request for rep-
resentation during an investigatory interview. It is clear from the tran-
script and the tape recording that Allen's statements regarding represen-
tation went to legal representation in a court of law (and, as Respondent
contends, he was told he needed representation) and not a request for any
type of representation at the interview itself. Consequently, the holding
in N.L.R.B. v. J. Weingarten. Inc., 420 U.S. 251 (1975), does not apply.
We also note that Certified Grocers of California,. Ltd., 227 NLRB 1211
(1977), enforcement denied 587 F.2d 499 (9th Cir. 1979), relied on by the
Administrative Law Judge, has been overruled by Baton Rouge Water
Works Company, 246 NLRB No. 161 (1979) (Member Murphy concur-
ring; Chairman Fanning and Member Penello dissenting separately.)
3 The Order has been modified to conform to the Decision.
249 NLRB No. I
lations Board hereby orders that the Respondent,
Levingston Shipbuilding Company, Woodville,
Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their own and
other employees' union activities.
(b) Reprimanding, disciplining, or otherwise dis-
criminating against any employees because of their
interest in or activity on behalf of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO-CLC, or any other labor organization.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Robert Allen immediate and full rein-
statement to his former position or, if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings in accordance
with the formula set out in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), with interest thereon as
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). 4
(b) Expunge from Respondent's personnel rec-
ords any and all references to the discriminatory
termination of employment of Robert Allen.
(c) Post at its Woodville, Texas, facility copies of
the attached notice marked "Appendix. " s Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing at
Order of the National Labor Relations Board."
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency cf the United States Government
After a hearing at which all parties had an oppor-
tunity to present their evidence, the National
Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered
us to post this notice.
The Act gives all employees the following
rights:
To act together for collective bargaining
or mutual aid of protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through repre-
sentatives of their own choosing
To refrain from any or all of these things.
WE WILL NOT interrogate employees about
their own or other employees' union activities.
WE WILL NOT reprimand, discipline, or oth-
erwise discriminate against our employees be-
cause of their interest in or activity on behalf
of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO-CLC, or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.
WE WILL make whole Robert Allen for any
loss he may have suffered as a result of our
unlawful discrimination against him, with in-
terest, and WE WILL offer him immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or any other rights or privileges previously en-
joyed.
All our employees are free to engage in concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection. Our employ-
ees are also free to refrain from any or all such ac-
tivities.
LEVINGSTON SHIPBUILDING COMPA-
NY
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge: This case
was heard at Levingston, Texas, on February 21 and 22,
1979, pursuant to a complaint' issued by the Regional
Director for the National Labor Relations Board for
Region 23 on October 3, 1978,2 and which is based upon
a charge filed by the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO-CLC, herein called
the Union, on July 31. The complaint alleges that Lev-
ingston Shipbuilding Company, herein called the compa-
ny or Respondent, has engaged in certain violations of
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act.
Issues
The principal issues are:
1. Whether Respondent engaged in unlawful interroga-
tions of employees in violation of Section 8(a)(1) of the
Act by:
(a) Asking Craig Sanderson, an employee, whether he
held a union meeting at his house.
(b) Questioning two employees, Gene (Butch) Alegre
and Harry Hughes, about conversations they might have
overheard at union meetings or might have had with
union representatives, without observing the requisite
safeguards.
2. Whether Respondent threatened to close down the
plant if the Union succeeded in its organizing efforts, in
violation of Section 8(a)(l) of the Act.
3. Whether Respondent wrongfully denied a request
by Robert Allen for representation at a disciplinary inter-
view they conducted, in violation of Section 8(aX1) of
the Act.
4. Whether Respondent discharged Robert Allen be-
cause he engaged in protected concerted activity within
the meaning of Section 7 of the Act, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record of the case, from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a Delaware corporation
with its principal office in Orange, Texas, engaged in the
business of metal fabrication at Woodville, Texas. It fur-
ther admits that during the past year, in the course and
conduct of its business, it had purchased goods and mate-
rials valued in excess of $50,000 from points and places
located outside the State of Texas. Accordingly, it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I The complaint was amended at the hearing. Respondent's objection
to the proposed amendment was overruled inasmuch as the proposal was
found neither to broaden the complaint nor to alter scope of the defend-
ant's obligation. This ruling is hereby affirmed after reconsideration.
2 All dates herein refer to 1978 unless otherwise indicated.
LEVINGSTON SHIPBUILDING COMPANY 3
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a subsidiary of Ashland Oil, Inc., which
has a number of divisions,3 one being the Orange ship-
yard and another the Levingston Industrial Products Di-
vision in Woodville, Texas, hereinafter referred to as the
Woodville plant. The Woodville plant was established in
February, primarily to produce a variety of fabricated
metal products used in oil refineries as pipe. Additional-
ly, the plant manufactures a Levco crane and might do
any specialized metal fabrication requiring the cutting
and welding of steel. The plant employs approximately
34 persons, of which approximately 4 are supervisory
personnel and 3 are office personnel.
Respondent stated that when it initially decided to es-
tablish the Woodville plant, the decision included the de-
termination that none of the craft unions that represented
any of Levingston's other employees would be invited to
represent the Woodville employees.4 It was also decided
that Respondent would attempt, within legal means, to
maintain an unrepresented labor force at Woodville.5
1. Events occurring in May
In May the Union filed a petition with the National
Labor Relations Board seeking to represent the mainte-
nance and production employees at the Company's
Woodville, Texas, plant, and commenced organizing ac-
tivities. An election was held in August 1978.6
Almost immediately after the Union commenced orga-
nizing the Woodville plant, employees Craig Sanderson,
Harry Hughes, and Robert Allen signed union cards
during a meeting at Allen's house on May 24.
The following day, May 25, Allen met with Hardin,
the plant manager.7 According to Allen, he had occasion
to go into Hardin's office to check on a job. As Allen
was leaving, Hardin asked what the Union could do for
the Company or the employees. Allen replied that he did
not know if the Union could do anything, but he felt that
a union could give them job security and perhaps better
benefits. Allen claims that later in the day he was in-
formed through the "plant grapevine" that he was con-
sidered the main in-plant organizer. Allen then went to
Hardin's office to verify the rumor, and Hardin was
averred to have said "that was the information he had
3 The divisions are not separate corporations.
4 The majority, around 90 to 95 percent, of Levingston's 2,500 hourly
paid employees are represented by labor unions.
a The exact basis for this decision was not fully explained, but it was
noted in this proceeding that Respondent's Gulfport facility had been
closed for a year due to an economic strike lasting from February 1977 to
February 1978, and its plant in Orange, Texas, was shut down from Feb-
ruary to May 1977 due to a strike.
6 See Case 23-RC-4669, wherein the Union was duly certified as the
exclusive collective-bargaining representative of Respondent's employees.
Cf. Woodville Plant. Industrial Products Division of Levingston Shipbuilding
Company a Delaware Corporation, 244 NLRB No. 18 (1979)
' It is admitted that Hardin is a supervisor
gotten from his people in Orange." Hardin refused to
identify with greater specificity the source of his infor-
mation. Sanderson, a coworker, was in the office during
this conversation and allegedly broke into the discussion
by saying "that's right, I was one of them."
Hardin recalled the two meetings with Allen on May
25 and described them as "voluntary conversations."
Hardin specifically recalled the afternoon meeting which
included Sanderson. Sanderson and Hardin were con-
versing, Sanderson indicating he was confused and did
not understand unions and the organizing activities.
Allen then entered the office and stated that he wanted
to set the record straight, that he had a meeting with
Harry Hughes,8 the union organizer, and Craig Sander-
son, and that he had not been the instigator of that meet-
ing, that the others sought his (Allen's) advice. Allen
was then alleged to have said he was going to wash his
hands of the entire affair and have nothing more to do
with the Union; that he, Allen, told the organizer he was
going to turn the cards in and after that he was through.
Allen then left the office.
Sanderson was very vague in his recollection of the
meeting. He did not recall Hardin threatening or coerc-
ing Allen or trying to obtain information about the union
or the membership meetings. However, Sanderson did
recall Allen saying that he came to the plant wanting to
go into supervision, that "none of this would have hap-
pened if I had just let it (his interest in supervision) out,
I'm going to wash my hands of it." These conversations
with Allen were not alleged to be violative of the Act,
but were presented as background and to show knowl-
edge of Allen's union activities.
Sanderson admitted that he does not consider Allen a
friend of his. Based on his admitted lack of clear recol-
lection of the May 25 meeting, the fact that his unclear
recollection included the fact that Allen was known to
be active on behalf of the Union, which was not denied
by Hardin, and in fact explicitly admitted through Har-
din's testimony, it is found that Respondent did know
very shortly after Allen began his union organizing ac-
tivities that he was so engaged.
Tudor, the union organizer, testified that Sanderson in-
formed him that Hardin called him into his office on
May 26 and discussed the union campaign, inquired
about Sanderson's gripes and promised to take care of
the problem Sanderson raised. Sanderson admitted that
on May 26, HIardin called him "into his [Hardin's] office
and asked me [Sanderson] whether I had held a union
meeting the day before at my house." On that day San-
derson asked for his authorization card to be returned.
Sanderson's authorization card was returned. Hardin did
not deny making the inquiry and did not clearly expli-
cate the context in which the inquiry was made. It is
contended by the General Counsel that the inquiry vio-
lated Section 8(a)(1) of the Act.
Respondent argues that the allegation that Hardin in-
terrogated an employee on or about May 26, 1978,
should be stricken as not arising out of the charge, for it
is not "closely related" to the charge inasmuch as the in-
cident did not arise after the charge was filed, and the
' Hughes was a coworker
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged incidents were not of a continuing nature, citing
N.L.R.B. v. Anchor Rome Mills, 228 F.2d 775 at 778 (5th
Cir. 1956). This decision does not support the motion to
strike. The Anchor Rome Mills decision does permit con-
sideration and decision on issues raised in the complaint
but not specified in the charge, citing Cathey Lumber
Company, 86 NLRB 157 (1949), affirmed per curiam 185
F.2d 1021, wherein the Board found at 162-163:
As there is no requirement [in Section 10(b) of the
Act] that the charge set forth each unfair labor
practice allegation to be litigated, the practice of en-
larging upon the charge to include in the complaint
allegations of unfair labor practices uncovered
during the investigation likewise continues un-
changed under the amended Act-but with this im-
portant exception made necessary by the purpose of
the limitation period imposed by the proviso: that
the complaint shall not include allegations of any
unfair labor practices occurring more than 6 months
prior to the filing and service of the charge initiat-
ing the case. It follows that we must reject the con-
struction of the proviso to Section 10(b) advocated
by the Respondent and the General Counsel to the
extent that it would also proscribe inclusion in the
complaint of allegations of unfair labor practices not
specifically mentioned in a charge, although the
charge was filed with the Board and served upon
the party charged within 6 months after the com-
mission of the particular alleged unfair labor prac-
tices.
Upon the basis of the foregoing, we conclude
that the proviso to Section 10(b) merely extin-
guishes liability for those unfair labor practices
which were committed more than 6 months prior to
the filing and service of the charge initiating the
case, and that a complant may lawfully enlarge
upon a charge if such additional unfair labor prac-
tices were committed no longer than 6 months prior
to the filing and service of such charge.
This conclusion is consonant with the proclaimed
public policy of the Act. Were we to require that
each unfair labor practice to be litigated be made
the subject matter of a charge, which may be filed
only by a private party, we would be leaving to pri-
vate parties the complete responsibility for ferreting
out violations of the Act, and determining what
conduct constitutes violations. Such a course of
action would emasculate the Board's long recog-
nized investigatory power and would put the onus
of investigation on private parties, a situation hardly
consistent with the public nature of the Act and the
agency created to administer it. [Cf. N.L.R.B. v. In-
diana & Michigan Electric Company, 318 U.S. 9, 18
(1943), and N.L.R.B. v. Fant Milling Company, 360
U.S. 301 (1959).]
The Anchor Rome Mills case, supra, does not require
that the incidents alleged to be of a continuing nature oc-
curring after the charge was filed.
This alleged violation was uncovered during the
course of the General Counsel's investigation of the
charge, which claimed that Allen was terminated be-
cause he engaged in protected activity. The conduct of
the Employer during Allen's organizing acitivity is a
necessary area of investigation and, thereby, is found to
be "closely related" to the charge. To find otherwise
would "confine the Board in its inquiry and in framing
the complaint to the specific matters alleged in the
charge [and] would reduce the statutory machinery to a
vehicle for the vindication of private rights. This would
be alien to the basic purposes of the Act...." N.L.R.B.
v. Fant Milling Company, supra. Furthermore, the Com-
pany responded to the complant and cross-examined the
relevant witness after direct examination was concluded
without objection to the introduction of the specific evi-
dence. Accordingly, the motion is denied.
Respondent also contends that Hardin's inquiry was
made during a "complex" conversation wherein Sander-
son sought Hardin's advice regarding the Union. This
contention overlooks the fact that Sanderson did not
seek Hardin out, but rather was called to Hardin's office.
Sanderson never testified he was confused; Hardin made
that claim and, based on demeanor, probabilities, and the
established pattern, discussed below, of a continuing
course of inquiry into employees' union activities, Har-
din's testimony is not credited.
Another factor considered in crediting Sanderson's
statement is the fact that, after he talked with Hardin, he
asked Tudor to return his authorization card, mentioning
to coworker Hughes that he talked with Hardin and he
was going to leave the Union, that he did not want to be
involved with the Union anymore. According to Tudor,
when he returned the card, Sanderson said he decided he
was a company man and wanted out of the campaign.
This testimony is unrefuted. Sanderson, however, during
his testimony as a company man failed to support Har-
din's version of the incident.
At the time Sanderson met with Tudor and Hughes to
get his authorization card he also stated that his uncle
told him telephonically that "if the Woodville plant went
union, they would close it down."9 Sanderson's uncle,
Joe Barrios, was the vice president of the Levingston
Shipbuilding Company in Orange, Texas.
Sanderson denied that Barrios ever told him that the
plant would be closed if the Union got in, but later ad-
mitted his uncle talked to his grandmother about the
union campaign and the discussion upset her. He dis-
claimed that any plant closure threat was related to him
as a result of the conversation with his grandmother. On
cross-examination Sanderson admitted, reticently, that in
his statement to a Board agent he indicated that his
grandmother told him that his uncle said if the Wood-
ville plant went union, the plant would be closed. The
witness' demeanor, his unrefuted statement that he was
becoming a "company man," and the conflicts in his tes-
timony greatly discredit much of Sanderson's testimony
and lends insight into the atmosphere existent at the
plant during organizing activity. I find that Sanderson
9 The General Counsel affirmatively disclaimed any intent to urge that
the plant closure threat was a violation. Accordingly, the possibility of a
violation due to the threat is not considered herein Albertson's Inc., 243
NL.RB No. bO (1979)
LEVINGSTON SHIPBUILDING COMPANY 5
was informed by his grandmother of the plant closure
threat and that he told Tudor and Hughes of the threat.
2. Other events as background
There were two other events that were the subject of
evidence involving Harris and another employee, Hen-
sarling. Counsel for the General Counsel affirmatively
disclaimed intent to urge the finding of a violation re-
garding these events. Accordingly, the question of
whether violations were committed during these events
will not be considered herein;' ° these events will only be
considered as background.
On July 28, during a preemployment interview, Hen-
sarling states that Hardin asked him if he had known
anything about a petition circulating in the shop regard-
ing union membership. Hardin also questioned him about
his attitude towards unions, asked him to keep his eyes
open in this shop to ascertain who tried to persuade him
into the Union and to try to stay clear of them. Hardin
then said "he knew of the head person in the shop that
was trying to organize the union, and they would take
care of him later."" Hardin denied much of the conver-
sation but admitted discussing the union organizing cam-
paign with Hensarling to inform him of matters occur-
ring in the plant. Based on demeanor, Hensarling's pos-
tion as am employee, and considering inherent probabil-
ities and the criteria of N.L.R.B. v. Walton Manufactur-
ing Company, et al., 369 U.S. 404, 408 (1962), I credit
Hensarling's testimony.
Harris testified that on August 2 he was asked by
Hardin to talk with him in Hardin's office. Hardin was
said to have solicited complaints and "He [Hardin] told
me [Harris] that he was pretty sure I had been attending
union meetings, and that he wanted to give me a full
range picture of both sides." Harris remembered clearly
that the interview occurred on August 2 because there
was a union meeting the previous evening.12 Hardin ad-
mitted Harris' comments were not incorrect, 1 3 they
merely failed to reflect the fact that the conversation was
part of a trainee interview, and that Hardin interviews all
the trainees.' 4 Harris' testimony, therefore, supports a
finding that the Company knew of the union meetings
and had some knowledge of which employees attended
the meetings.
3. Other alleged indicia of animus
It appears that prior to the commencement of union
organizing activity and Allen's involvement on the orga-
I' Albertson's Inc., supra.
" Tr. p. 48.
'2 The record clearly establishes, and it is unrefuted, that the union
meetings occurred on Tuesday evenings on a regular basis, and only on
Tuesdays.
" Hardin denied that he interrogated Harris about union meetings, but
Harris did not claim there was such an interrogation; he stated that
Hardin commented about Harris' probable attendance at the meetings.
" Respondent employed approximately 14 or 15 trainees.
's Harris' testimony is credited based on demeanor, probabilities, in-
cluding his continued employment with Respondent, and the fact that
Hardin initially characterized Harris' short testimony as "not incorrect,"
and only after being asked specifically about a possible "interrogation"
regarding union meetings was the alleged statement about attending
union metings denied.
nizing committee, Allen asked Hardin if he could put a
rig welding machine' s on a truck and go out for Re-
spondent as a contract welder. Hardin replied that he
needed the advice of the attorney for Ashland Oil, Inc.
The attorney was John Durkay who Respondent ad-
mitted was a supervisor. Durkay advised the Company
concerning labor relations techniques throughout the
course of establishing the plant and the subsequent union
organizing campaign.
On or about July 20, Allen inquired whether Hardin
had received any information from the lawyer. Hardin
admits that in his reply he said he was told that he could
make no changes in employment practices that could be
considered favored treatment, because of the Union's or-
ganizing campaign.
According to Allen, several days later he again initiat-
ed an inquiry as to the potential of becoming a contract
welder and also asked who the lawyer was. Hardin was
said to have replied that the identity of the lawyer was
none of his business. Allen then grinned at Hardin.
Hardin allegedly then commented "Just keep it up,
you're grinning because you know the Union got the
election." Allen replied that he had not known but was
happy about the news. Hardin then allegedly said "just
keep it up Bob." Allen inquired what Hardin was talking
about, Hardin turned around and walked off without a
reply.
While Hardin remembered the conversation different-
ly, he recalled that he said something like "Well, keep it
up, Bob," and admitted that he felt some animosity
toward Allen. Hardin remembered the comment as aris-
ing out of the conversation regarding the first inquiry as
to the lawyer's answer. Hardin stated after he explained
that permitting Allen to become a rig welder was denied
due to the Union's organizing campaign, Allen "kind of
barked 'that's why the company needs a union;"' to
which Hardin gave the possibly threatening rejoinder of
"Well, keep it up, Bob." It was this rejoinder that was
explained as resulting from the animosity. While Hardin
tried to explain the rejoinder as an attempt to reassert au-
thority because Allen's comment was "kind of barked" at
him, the fact it was made in response to an asserted need
for union representation, an exigency the Company ad-
mittedly was trying to avoid, I find that the conversation
demonstrates antiunion animus.
4. Events of July 28
On July 28, Respondent, through Supervisors Durkay,
Hardin, and Russell,t 7 interviewed separately three em-
ployees, Gene (Butch) Alegre, Harry Hughes, and Allen,
regarding an alleged threats made by Allen. After these
interviews Allen was discharged.
Respondent alleges that the interviews and the dis-
charge were based on substantial and legitimate business
"6 A type of welding machinery.
'" Marvin Russell is the director of industrial relations for Levingston
Shipbuilding Company at Orange, Texas, and it is admitted that he is a
supervisor.
Is There is uncontroverted testimony that Respondent promulgated a
rule prohibiting employees from threatening one another for any reason.
It is not alleged that the promulgation of this rule was a violation of the
Act, and I find there was no violation arising from its establishment.
I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations and were lawful. The facts leading to the
admittedly investigatory interviews and discharges in-
volve an employee named Karl Ashworth.9 Allen de-
scribed the incident as follows: The Wednesday morning
after the meeting of July I1, Bob Furstenberg's son Mike
(Bob Furstenberg was the shop foreman) came over to
Allen and asked what the meeting the preceding evening
was about. Allen asked what meeting and Mike Fursten-
berg said the union meeting. Mike also said "Dad and all
the rest of us know about it." Since Mike had entered
the workplace with Ashworth, who attended the meet-
ing despite the statements that he would not vote for the
Union, Allen assumed the source of the information was
Sanderson. Allen discussed this situation with two other
union organizers and it was decided that it would be best
to ask Sanderson not to attend anymore meetings due to
his attitude toward the Union.
After his conversation with the other organizers, at
breaktime later that day, Allen went over to Ashworth
"and at that time I told him that there was [sic] people in
the Union that was [sic] attending these meetings that
didn't want the Company to know who they were; that
we didn't appreciate them coming in there and coming
back and telling everybody in the office who these
people were," Ashworth replied that he did not know
the meetings were private. Allen told him "they were,
and due to his attitude, that what he had told other
people about not voting for the Union in any way or
anything we felt like-the organizing committee felt like
it would be beter that he did not attend any more meet-
ings." Allen denies threatening Ashworth at any time.
It is undisputed that the following Friday, July 14,
Ashworth left for lunch and did not return. Hardin then
testified that the first time he learned that Ashworth had
left the employ of the Company was when his secretary
informed him that Ashworth's wife telephoned,2 0 stating
that she wanted to come to the office and pick up her
husband's paycheck. Mrs Ashworth indicated that her
husband had been threatened by a group of employees
and had quit his employment the previous Friday. There
was no indication of which employees were involved or
whether the union or organizing campaign figured in the
incident. Later in his testimony Hardin said that he did
not know that Ashworth had left that Friday until his
secretary came in and said that Mrs. Dooley 2 t had tele-
phoned and said she had seen Ashworth and he had
taken his wife to the hospital and Ashworth would not
be back that day. Durkay also admitted that he was
aware of this message. This disparity in the reasons for
Ashworth's departure that Friday was never the subject
of inquiry by the Company when they talked to Mrs.
Ashworth and later when they talked to Ashworth.
After learning of the alleged threat, Hardin called Rus-
sell to advise him of the situation. Russell advised Hardin
to ask Mrs. Ashworth, when she came in for the check,
to have her husband get in touch with Hardin. Hardin
did as advised, Mrs. Ashworth said she would and left.
Hardin then contacted the Department of Public Safety
to ascertain if they would use their resources to locate
"' Ashworth did not testify.
2" The date of the telephone call was not placed in evidence.
21 Mrs. Dooley was unidentified.
Ashworth. The time frames between the request to Mrs.
Ashworth and the Department of Public Safety is not a
matter of record, nor is the reason why the request to
Mrs. Ashworth was not honored. The Department of
Public Safety did attempt to locate Ashworth and gave
Hardin a telephone number where he might contact Ash-
worth. Hardin tried unsuccessfully to reach Ashworth at
that number.
Respondent, after the expenditure of great effort, final-
ly found Ashworth, who was working on a fishing
vessel. Arrangements were made to meet with Ashworth
and, on July 27, Durkay and Hardin met with him in
Woodville, Texas. At that time Ashworth was requested
to give an affidavit. The affidavit states, in part, as fol-
lows:
. . On Friday, July 14, 1978 at about 10:00 A.M. I
was walking from the toolroom back to the rolls I
was operating that day. Bob Allen stopped me in
front of the 0. D. welder. He walked up to me
from a group of people standing at the end of the
O. D. welder. He said, "Us guys would rather you
not come to the meetings anymore because you're
telling Bob [Furstenberg] and Dave [Hardin] about
them." I told him I wasn't the one who was telling
them. He said they had been having meetings quite
often and nothing had been said about them until I
started coming. He then said, "It might be quite
harmful if you keep running back and telling Dave
everything that goes on." Then I just walked off. In
my mind he was clearly telling me that he would
beat me up if I kept attending the meetings. Bob
Allen is a tall, husky man. I then went back to the
rolls. At noon I leave to go to eat in town and this
noon I did leave the plant.... [T]hen I returned
to my home. I told my wife what happened then I
took her to my father's home in Starks, Louisiana
then drove to Galveston Sunday night to work on a
snapper boat. I figured there was trouble for me so
I had to leave the Company.
At the time Ashworth gave Respondent his statement
he was to be a material witness in a murder trial, which
Durkay knew, and Durkay said he realized Ashworth's
role in the forthcoming trial may have been a reason for
him to leave town. 22 Ashworth did not inform the au-
thorities of his new residence when he left town. This
behavior was not the subject of inquiry by Durkay and
Hardin. Durkay further admitted that Ashworth had a
previous experience at Levingston of just leaving and
coming back; however, Durkay failed to indicate if this
experience was included in his assessment of the threat
allegation.
Another puzzling fact is that Durkay, at the time he
met with Ashworth, informed him that if his statement
did not check out, he would be lying under oath, which
would be grounds for termination, and, if he was telling
22 Durkay also admitted it was possible that Ashworth was intimidated
and scared of being a witness in the murder trial against his former room-
mate and thought that perhaps the community had driven him out since
it was "a pretty gory murder and caused a great sensation in the commu-
nity."
h 0
LEVINGSTON SHIPBUILDING COMPANY
the truth, his job was open and he was entitled to have it
back; yet, Durkay claims he later decided that Ashworth
was telling the truth, but there is no indication Ashworth
was informed of this decision and Ashworth has not
been reemployed by Respondent.
At the time Ashworth gave his affidavit to Respond-
ent, he stated that prior to the threat Allen had been
conversing with several coworkers, only two of whom
he identified, Alegre and Hughes. After meeting with
Ashworth, it was decided to corroborate his statement as
quickly as possible. The following day, Hardin, Russell,
and Durkay met at the Woodville plant and resolved to
interview the three employees.
5. Investigatory interviews
Alegre was the first employee interviewed. 2 3 Durkay
conducted the interview after Hardin advised the em-
ployee that he was to report to the office. Durkay first
explained the purpose, to verify that Bob Allen threat-
ened Ashworth, and to ascertain what happened "that
afternoon." 2 4 Durkay emphasized the seriousness of the
charge, stating that Respondent already discussed the
matter with the District Attorney and the Texas Depart-
ment of Public Safety and said "the people who help us,
who gave us information are the people that are not in-
volved." Most of the interview was devoted to discuss-
ing Allen's and other employees' attitudes toward Ash-
worth's prior reemployment with what they believed
was the reinstitution of all benefits and seniority rights.25
Durkay also inquired whether Alegre heard at the
plant or at union meetings a discussion about employees
attending union meetings and then reporting to the com-
pany officers what occurred during the meeting. Alegre
responded that he had heard that Karl Ashworth and an
employee named Archie (not identified further) were en-
gaging in that activity. Durkay later inquired if the
Union indicated it was going to take some kind of action
about employees reporting to company officers and did
they know who was reporting. At the very end of the
interview Hardin told Alegre, "You, you're not, you're
not in any trouble. I want to say that right now."
Durkay added "Not even a little bit." After reviewing
the tape recording of the interview, it is concluded that
Alegre was very nervous.
After interviewing Alegre, Hardin went into the shop
and told Hughes he would like to speak to him in Har-
din's office. Hughes immediately followed Hardin into
his office. Once in the office Hardin informed Hughes
that the Company was looking into a "pretty serious
23 Unknown to the interviewees, their interviews were tape recorded
and both the recording and a transcript prepared therefrom were placed
into evidence. It is noted that the recording is not extremely clear and,
although the parties stipulated as to the accuracy of the transcript, there
are some inaccuracies, though not sufficient in number or quality as to
warrant rejection of the exhibit.
A4 Ashworth claimed that the threat was made around 10:30 a.m. the
Friday he left his employment, and Allen claimed the conversation oc-
curred during the first break the preceding Wednesday morning.
:B As previously indicated, Ashworth had a history of leaving and re-
turning to the Company. When he returned, the employees believed he
received his prior seniority rights, which was the No. I position. Allen
was admittedly upset about the matter. Allen inquired of Hardin about
seniority rights. Allen was informed that it was not a seniority shop.
matter" and then turned the interview over to Durkay.
As with Alegre, Durkay described the subject of the in-
te,rview. Hughes said he did not remember a group of
employees discussing Ashworth attending union meetings
and then reporting to company officers. He does recall
the discussion which involved Ashworth's reemployment
and his "standing" after his return. Hughes also indicated
that he knew Allen had discussed some of the employ-
ees' concerns over Ashworth's return with all benefits
with Hardin, and indicated that Ashworth had bragged
about getting the same badge number, coming back to
the same position, etc. The employees were upset about
it because he bragged about his reinstatement. Ashworth
was said to have claimed he returned with "seniority and
everything." Hughes said he did not know of any em-
ployee who said "they wanted to get Karl Ashworth for
any reason." At the end of the interview Durkay told
Hughes "we don't have anything against you."
Hardin then went and got Allen. Durkay conducted
the interview. After a short exchange of pleasantries,
Durkay informed Allen that there were serious charges
leveled against him, asked for Allen's side of the story,
and detailed the nature of the allegation. Allen described
the allegation as a lie. Allen described the Ashworth in-
cident as follows:
. . .[H]ere's what happened, he comes to a union
meeting and he comes right back the next day and
he told a bunch of people that he wasn't going to
vote for it either way. And, he-he didn't have
nothing to say about it or do with it. And I told
him if he had that attitude that there was no eason
for him to come to any more union meetings. That
we talked it over and we didn't see any reason that
he needed to come to any more union meetings. I
didn't say a damn thing about threatening him or
nothing else. Which if he had decided to come after
that there wouldn't have been nothing I could have
said about it. I'm not that big of an idiot.
The interview then turned to discussing Ashworth's
prior departure and return, to which Allen said, "you
would have to know Karl Ashworth. I don't know if
you know him but you better watch what he says be-
cause every other word he tells is a damn lie and every-
body at the shop . . . know fact [sic]."
The conversation again reverted to discussing Ash-
worth's earlier rehiring and the lack of seniority in the
plant. During this discussion, after listening to the tape
recording, it appears that Durkay became very hostile
and defensive regarding Allen's questions on the lack of
seniority. Allen explained why he inquired about Ash-
worth's return, and Durkay said, "I think you are fabri-
cating." Allen did not appear angry from his tone of
voice, but, when the subject of his feelings about Ash-
worth's reinstatement was broached, Allen replied:
Well, I feel like that under the circumstances
whatever Dave decides on 26 something like that is
Dave's business. And I will tell you something else
26 Reference is made to Hardin's pror decision to rehire Ashworth
with full benefits and his old badge which was numbered I.
7
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right now, I am not a lawyer and I don't appreciate
being brought in here and questioned like this. If
you got something you want to charge me with,
[or] 27 if you got something you want to accuse me
of, you go ahead and do it, and I will get a lawyer
and we will sit down and talk it out; but you are
not going to get me in here and rabble-rouse me
and pick over me without any kind of representa-
tion. That's the way it stands now; if you got some-
thing you want to accuse me of, if you want to send
me to the house or do whatever you want to, you
go ahead and do it and then we will go to court
and I will have somebody there representing me
that got the education you've got. I haven't got it;
all I've got is the education I got out in the shop
just like this one here, and I don't appreciate being
picked over by a man that's got an education to do
it, and I am not going to sit up here and let you jew
me into something that ain't right, and that's the
way it stands.
This was the first exhibition of ire by Allen discernable
on the tape recording.
Durkay attempted to proceed with the interview, and
Allen again requested representation. Durkay ignored
these requests and continued the interview. Allen again
denied threatening Ashworth, again alleging Ashworth
was a liar and informed Respondent that this allegation
can be confirmed in the shop, and again indicated he ob-
jected to the interview. Durkay then stated: "Well, you
do not need to obtain representation. It is our opinion
that you did threaten Karl Ashworth . . . and you are
as of this moment terminated." The use of "we" in Dur-
kay's statement is confusing inasmuch as there was no
discussion or caucus among Respondent's representatives
prior to this statement and on the tape the dismissal an-
nouncement flowed consecutively, without interruption,
after Allen's last indication that he did not want to con-
tinue the interview without representation. Accordingly,
Hardin and Russell's statements as to what factors led
them to terminate Allen are not credited.
Durkay, Hardin, and Russell then went out into the
shop and informed the employees that Allen was fired
for threatening Karl Ashworth.
B. Analysis and Conclusions
It is alleged that when Alegre and Hughes were indi-
vidually and successively interrogated about union meet-
ings or statements about union representatives, Respond-
ent violated Section 8(aX)(1) of the Act. Respondent con-
tends that there were no interrogations about union ac-
tivities, but rather, these employees were asked about
possible misconduct, with specific limitation to the issue
of such misconduct. Accordingly, it is argued that the
requirements of Johnnie's Poultry Co., 146 NLRB 770
(1964), do not pertain. Furthermore, Respondent argues
that the involved employes were informed of the reason
for the interview, citing National Water Lift Company, a
27 The Company's transcript left out the word "or"; in fact, as dis-
cussed previously, the tape recording of the interviews was of poor qual-
ity and the transcript made therefrom was not entirely accurate.
Division of Pneumo Dynamics Corporation, 179 NLRB 926
(1969).
Respondent's argument that the decision in Johnnie's
Poultry Co., supra, is inappliciable is found to be without
merit, for, as stated in that decision at 775:
In allowing an employer the privilege of ascer-
taining the necessary facts from employees . . . the
Board and courts have established specific safe-
guards designed to minimize the coercive impact of
such employer interrogation. Thus, the employer
must communicate to the employee the purpose of
the questioning, assure him that no reprisal will take
place, and obtain his participation on a voluntary
basis; the questioning must occur in a context free
from employer hostility to union organization and
must not be itself coercive in nature; and the ques-
tions must not exceed the necessities of the legiti-
mate purpose by prying into other union matters,
eliciting information concerning an employee's sub-
jective state of mind, or otherwise interfering with
the statutory rights of employees. When an employ-
er transgresses the boundaries of these safeguards,
he loses the benefits of the privilege.
Investigation into possible violations of plant rules is a
permissible subject for interrogation of employees. How-
ever, such interrogation cannot be conducted without
employing the appropriate safeguards as detailed in John-
nie's Poultry Co., supra.28 Additionally, it is undisputed
that the alleged threat arose out of circumstances sur-
rounding the Union's organizing campaign, a concerted
activity albeit a threat is not a protected activity. There
is no question that inquiry into the alleged threat, since
making threats is contrary to plant rules, was entirely
proper. As the alleged threat was made in reference to
the Union's organizing claim, inquiry of the basis for the
alleged threat regarding said campaign is also found to
be proper. It is also found that the purpose of the ques-
tioning was adequately communicated to the involved
employees. But the privilege of employer inquiry is not
unqualified and must be accompanied with the obser-
vance of proper safeguards.2 9
It was not until the end of the investigatory interviews
that Alegre and Hughes were assured that no reprisals
were forthcoming. Additionally, Respondent admitted
that it was conducting an antiunion campaign and there
were no efforts made to insure that the questioning oc-
curred in an atmosphere free of this antiunion campaign.
Finally, there was no showing that Alegre and Hughes
submitted to the interviews on a voluntary basis; rather,
they were called into the plant manager's office and in-
terrogated in the presence of three company officials. In
fact, after emphasizing the seriousness of the matter,
Durkay told Alegre: "And as far as we're concerned, the
people who help us, who gave us information are the
people that are not involved." This statement was made
in the absence of any indication or allegation that Re-
spondent was not contemplating discipline of either
28 See Alton Box Board Company, Container Division, 155 NLRB 1025
(1965).
9 Id. at 1040.
LEVINGSTON SHIPBUILDING COMPANY 9
Alegre or Hughes. Yet, in the above-quoted comment
and subsequent statements prior to the conclusion of the
interview Respondent failed to dispel the implications
that failure to give information would result in a finding
of involvement, nor were any fears raised by the state-
ment allayed. It was in this atmosphere that Alegre was
asked about conversations at union meetings or what the
Union might have said about employees reporting to
company officials regarding the union meetings.
In balancing the conflicting legitimate interests of man-
agement and labor, the safeguards to be afforded em-
ployees under the facts and circumstances of this case
were not unduly inhibitory and did not deny the Em-
ployer a reasonable opportuntiy to pursue legitimate in-
terests in investigating particular misconduct. According-
ly, based on Respondent's failure to observe the neces-
sary safeguards and the behavior of management's repre-
sentatives, including the lack of assurance that participa-
tion was on a voluntary basis without the prospect of re-
prisal, the Company's acknowledged desire to keep the
plant nonunion, the manner in which the interviews of
Hughes and Alegre were conducted, it is found that Re-
spondent did transgress permissible limits in violation of
Section 8(a)(1) of the Act.30
2. Inquiry of Sanderson
It is alleged that Hardin's questioning of Sanderson as
to whether he held a union meeting at his home violated
Section 8(a)(1) of the Act. 3
While such interrogation is not a per se violation of the
Act, such questioning can "be a very subtle weapon for
interfering with employee rights." Ridgewood Manage-
ment Company, Inc. v. N.L.R.B., 410 F.2d 738, 740 (5th
Cir. 1969), cert. denied 396 U.S. 832 (1969). "Any inter-
rogation by the employer relating to union matters pre-
sents an ever present danger of coercing employees in
violation of their § 7 rights." Texas Industries, Inc., e al.
v. N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). The
reason for the questioning was not given, nor were assur-
ances against reprisals offered. Futhermore, Sanderson
was not advised that he had a right to refuse to answer
Hardin's question. See N.L.R.B. v. Cement Transport,
Inc., 490 F.2d 1024, 1028 (6th Cir. 1974), cert. denied 419
U.S. 828 (1974). Furthermore, the interrogation occurred
in the context of the Company's admitted opposition to
the Union's organizing efforts. In view of these consider-
ations, I find that this questioning of Sanderson did tend
to interfere with, restrain, and coerce employees with re-
spect to their free exercise of Section 7 rights in violation
of Section 8(a)(Xl1) of the Act.
3. Allen's request for representation
It is uncontroverted that Allen's interview was disci-
plinary in nature. It is also uncontroverted that Allen re-
quested, three separate times, legal representation. The
requests were not honored and the interview proceeded.
In Certified Grocers of California, Ltd., 227 NLRB 1211,
30 Summa Corporation. d/b/a Desert Inn & Country Club, 220 NLRB
877, 880 (1975).
3' Respondent's motion to strike this allegation is fully discussed
above. The motion was denied
1212-13 (1977), the Board summed up the holding of
N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975) as
follows:
The Supreme Court Weingarten cited with ap-
proved the Board's discussion in Quality Manufac-
turing Company and Mobil Oil Corporation3 2 indicat-
ing that the Board had set forth in those cases the
basis of the statutory right of an employee to refuse
to submit without union representation to an inter-
view which he reasonably fears may result in his
being disciplined. The Supreme Court, citing rele-
vant language in Mobil and Quality, found that (I)
the right inheres in the Section 7 guarantee of the
right of employees to act in concert for mutual aid
and protection; (2) the right aises only in situations
where the employee requests representation, i.e., the
employee may forgo his guaranteed right and, if he
prefers, participate in an interview unaccompanied
by his union representative; (3) the employee's right
to request representation as a condition of participa-
tion in an interview is limited to situations where
the employee reasonably believes the investigation
will result in disciplinary action; (4) exercise of the
right may not interfere with legitimate employer
prerogatives and the employer need not justify his
refusal and may leave to the employee the choice
between having an interview unaccompanied by his
representative, or having no interview and forego-
ing any benefits that might be derived from such in-
terview; and (5) the employer has no duty to bar-
gain with any union representative who may be per-
mitted to attend the investigatory interview.
The interview was clearly investigatory in nature, as
Durkay represented to Allen at the beginning of the in-
terview. The disciplinary aspect of the interview was
clearly demonstrated by Allen's discharge at the conclu-
sion of the interview. Allen's requests for representation
included allusions to discipline demonstrating that he did,
in fact, fear that the interview may result in discipline.
The tape recording and transcription thereof clearly
show that Allen was not given the opportunity to termi-
nate the interview and assume the risk of not deriving
any benefit therefrom.
That the union organizing campaign had not, at the
time of the interview, resulted in the certification of a
bargaining representative does not abrogate an employ-
ee's right to representation during an investigatory inter-
view. In Weingarten, supra, the court recognized that the
request for representation is a right protected under Sec-
tion 7 of the Act, for it is the seeking of "aid or protec-
tion" against a perceived threat to employee job security.
That one employee is involved does not obviate the con-
certed nature of the activity for the representative will
exercise "vigilance to make certain that the employer
does not initiate or continue a practice of imposing pun-
ishment unjustly," thereby insuring to fellow employees
the entitlement to the same aid and protection. The pri-
mary concern is to afford the employees the measure of
protection provided by a representative in confrontations
32 195 NLRB 197 (1972) and 196 NLRB 1052 (1972), respectively.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with an employer which might result in disciplinary
action.3 3 Accordingly, it is concluded that an employee,
unrepresented by a union, has the right, under Section 7
of the Act, to request the presence of a representative
during an investigatory interview which the employee
fears may lead to adverse action. As the Board stated in
Certified Grocers of California, Ltd., supra at 1213: "Re-
quiring a lone employee to attend an investigatory inter-
view which he reasonably believes may result in the im-
position of discipline perpetuates the inequality the Act
was designed to eliminate and bars recourse to the safe-
guards provided by the Act." Respondent's failure to
accede to the employee's request and continuation of the
interview is, accordingly, found to be conduct in viola-
tion of Section 8(a)(l) of the Act.
4. Allen's discharge
Respondent argues that Allen's discharge was not arbi-
trary; rather, it was motivated by the belief, after exten-
sive investigation, that Allen did threaten a coworker in
violation of plant rules. Respondent also contends that
the General Counsel failed to prove antiunion motivation
in the discharge or demonstrate that the Employer's con-
duct is inherently destructive of "important employee
rights."
In determining whether a discharge was unlawfully
motivated, several general principles must be considered.
First, in evaluating allegations of discriminatory conduct,
"the pivotal factor is motive." N.L.R.B. v. Lipman
Brothers, Inc., et al., 355 F.2d 15, 20 (Ist Cir. 1966). "The
determination which the Board must make is one of
fact-what was the actual motive of the discharge?"
Santa Fe Drilling Company v. N.L.R.B., 416 F.2d 725,
729 (9th Cir. 1969). This being the case, a determination
of the employer's "actual motive" can only be based
upon facts known to the employer at the time that the
decision was made and not upon facts which were later
brought to the employer's attention, but had not been
taken into consideration in arriving at that decision. See,
e.g., Amoco Electric, 152 NLRB 781, 784 (1965), enforce-
ment denied on other grounds, 358 F.2d 370 (9th Cir.
1966). Accordingly, Sanderson's representation to Re-
spondent after Allen's discharge, that he was also threat-
ened by Allen, is deemed irrelevant, for it was in allega-
tion unknown by Durkay or any other management rep-
resentative at the time the decision to discharge was
made and implemented. Consequently, Sanderson's alle-
gation could not have been considered in the initial deci-
sion but merely resulted from Respondent's solicitation
of additional information subsequent to the discharge.
The addition of Sanderson's allegation, without any in-
vestigation, to Allen's termination notice which used the
term "employees," without investigation and subsequent
to the actual dishcarge, raises the inference that the ter-
mination was pretextual.
Second, "[t]he Act . . . recognizes the employer's
right to terminate employment for normal reasons."
N.L.R.B. v. Waterman Steamship Corporation, 309 U.S.
206, 218-219 (1940). "The only restriction that the Na-
:: Anchorrank. Inc., 239 NLRB 430 (1978), and Glomac Plaslics. Inc.,
234 NLRB 1309 (1978).
tional Labor Relations Act places upon any employer's
right to discharge employees is that it not be because of
union activity or affiliation." N.L.R.B. v. Challenge-Cook
Brothers of Ohio, Inc., 374 F.2d 147, 151 (6th Cir. 1967).
While "Board law does not permit the trier of fact to
substitute his own subjective impression of what he
would have done were he in Respondent's position,"
Grand Auto, Inc., d/b/a Super Tire Stores, 236 NLRB
877, fn. 1 (1978), "where it is alleged that the reason as-
signed for the discipline is pretextual, our attention must
necessarily turn to the reaction of the employer...."
American Thread Company, Sevier Plant, 242 NLRB No.
10 (1979).
As found above, Hardin's comments to Allen during
the "rig welding" conversation demonstrated antiunion
animus. It is also uncontroverted that when Ashworth
left Respondent's employ, Hardin was informed by his
secretary that Ashworth had taken his wife to the hospi-
tal. Durkay admitted that he was aware of this message.
The Company never claimed to have made an attempt to
reconcile this representation with the latter allegations
that Ashworth left his job because he was threatened.
Furthermore, this was not the first time Ashworth just
left his employment with Respondent. Additionally,
Durkay knew Ashworth was a material witness in a cap-
ital case in Woodville yet left town without notifying the
authorities. Durkay also recognized that Ashworth may
have been intimidated by his role as a material witness in
a gory murder trial and that the community may have
driven him out. Allen's allegation, with this background,
that Ashworth was a known liar, was apparently not
even considered. Also, with this background, Durkay
claimed to credit Ashworth's affidavit. This claim is not
credited 34 based on the above inconsistencies in evi-
dence, plus the admitted fact that Ashworth was prom-
ised reemployment if his statement were found to be
true; yet, there is no evidence that any offer of reem-
ployment was ever made to Ashworth after Durkay al-
legedly credited his statement. The failure of Respondent
to investigate these evidentiary anomalies and the allega-
tion that Ashworth was a known liar leads to the conclu-
sion that Durkay's action was in fact a reaction to
Allen's active role in the union organizing campaign. Ad
Art, Incorporated, 238 NLRB 1124 (1978).
Alegre and Hughes did not corroborate Ashworth's
statement. Rather, these employees, whose testimonies
have been credited for the reasons stated above, indicat-
ed that Ashworth made untruthful statements to his co-
workers to the effect that he was rehired with full se-
niority when Respondent knew the shop did not have a
seniority system.
Respondent argues that the discharge was based on
valid reasons. That valid grounds may exist for terminat-
ing an employee is not dispositive of whether that termi-
nation was unlawful. N.L.R.B. v. Texas Independent Oil
Company, Inc., 232 F.2d 447, 450 (9th Cir. 1956). For,
"where a respondent's motivations are mixed, the Board
34 Nor is Durkay's claim, that the district attorney's office represented
that Ashworth was truthful, credited inasmuch as no substantiating evi-
dence was adduced, nor were the above-described inconsistencies recon-
ciled. The apparent selectivity of action further brings credibility into
question.
- - -
LEVINGSTON SHIPBUILDING COMPANY I I
has held that the legal effect of the conduct is the same
as though illegal reason for its action was the only opera-
tive reason." Construction, Production & Maintenance La-
borers' Union Local No. 383, etc. (William Pulice Concrete
Construction), 236 NLRB 125 (1978). Accord: N.L.R.B.
v. Jamestown Sterling Corp., 211 F.2d 725, 726 (2d Cir.
1954); see, also, N.L.R.B. v. Ayer Lar Sanitarium, 436
F.2d 45, 50 (9th Cir. 1970), and cases cited therein. Con-
sequently, a violation of the Act is established where, de-
spite the existence of a valid reason for discharge, the
evidence shows that the employer has resorted to that
reason as a basis for building a case against an employee
due to his union activities. United Aircraft Corporation v.
N.L.R.B., 440 F.2d 85, 92 (2d Cir. 1971), or as a result of
a campaign of "watchfully waiting for . . . union enthu-
siasts to give the . . . sightest reason or pretext to get rid
of them because of their union acitivities." Lipman Broth-
ers, Inc., supra, 355 F.2d at 21.
In the instant case, Hardin warned Allen to watch his
step after Allen indicated he favored the Union and rep-
resented to Hensarling that the main in-plant organizer
was known to management and that that individual
"would be taken care of later." Such statements are not
only evidence of hostility toward Allen because he en-
gaged in protected activity, but are also clear declara-
tions of Respondent's intention to retaliate against Allen
because he was a principal supporter of the Union. See,
e.g., N.L.R.B. v. L.C. Ferguson and E. F. Von Seggern d/
b/a Shovel Supply Company, 257 F.2d 88, 92 (5th Cir.
1958), and N.L.R.B. v. John Langenbacher Co., Inc., 398
F.2d 459, 453 (2d Cir. 1968), cert. denied 393 U.S. 1049
(1969). "The Courts pay special attention to such state-
ments against interest when in the unusual case it occurs
that a party admits that his conduct, otherwise ambigu-
ous, is for improper purpose or objective." Brown Trans-
port Corp. v. N.L.R.B., 334 F.2d 30, 38 (5th Cir. 1964).
Another interesting aspect of this proceeding is that,
after Allen asked for representation, he was assured by
Durkay that the management was "just trying to find out
what happened." When Allen pursued the matter of rep-
resentation, without further eliciting of statements rela-
tive to the alleged threat, Durkay stated, without a
caucus or discussion with the other management repre-
sentatives present, that "you do not need representation.
It is our opinion that you did threaten Karl Ashworth
. . . and you are as of this moment terminated." The ap-
parent inconsistency of the prior reassurance that the in-
terview was to ascertain the truth, cojoined with the pre-
cipitious decision to terminate Allen after representation
was sought was not reconciled by Respondent and pro-
vides a further basis for discrediting Durkay's testimony,
particularly regarding motivation.
There is no question that two other incidents involving
threats occurred wherein the parties making the threats
were not discharged or even subjected to discipline.
Alegre was merely called into the foreman's office, the
foreman being Bob Furstenberg. The threat of Bob and
his son, Mike Furstenberg,3 5 against Ashworth shortly
before Ashworth left the employ of the Company was
36 Sanderson's claim that he did not recall these threats is not credited
based on his demonstrated company bias which led to the impeachment
of his direct testimony relating to his uncle's plant closure threat.
also unpunished. Respondent claims lack of knowledge
of these incidents. The General Counsel contends that
Respondent's failure to call either of the Furstenbergs as
witness requires an adverse inference that their testimony
would be adverse to Respondent's position. Citing Pacific
Grinding Wheel Co., Inc., 220 NLRB 1389 (1975), and
Bechtel Corporation, 141 NLRB 844 (1963). The Fursten-
bergs were no longer in the employ of Respondent at the
time of the instant hearing and therefore were neutral
nonparties. Adverse inferences are not warranted where
the individual who was not called in is a neutral non-
party.3 6 However, the fact that threats are apparently
not uncommon at the Woodville plant, and when threats
had been made, the guilty party was not subject to
severe discipline, discrediting Respondent's allegation
that when the plant was open such discipline was re-
quired, and that the policy was reasserted after the union
organizing campaign commenced, showing disparate
treatment and overreaction probative of discriminatory
motive.
When considering disparate treatment, based on plant
policy enforcement, the actions of each supervisor are at-
tributable to Respondent. Accordingly, Furstenberg's ac-
tions in making threats, as well as dealing with Alegre'!
threat, which was done during and within the scope of
his employment, are directly attributable to Respondent
since there was no showing warranting abrogation of
such attribution. See J. S. Abercrombie Company, 83
NLRB 524 (1949), enfd. 180 F.2d 578 (5th Cir. 1950).
Durkay was also a supervisor for Respondent who en-
forced the plant rule much more rigorously against the
known principal in-plant union organizer, an action that
deviated from what had been established as the proce-
dure for other employees, raising another inference of
discriminatory motive. See Keller Manufacturing Compa-
ny, Inc., 237 NLRB 712 (1978), and Upland Freight Lines,
Inc., 209 NLRB 165 (1974), enfd. 527 F.2d 766 (9th Cir.
1976). Other factors indicative of discriminatory motive
are: (1) Respondent's knowledge that Allen was a princi-
pal in-plant organizer for the Union; (2) the timing of the
discharge, which was less than a month before the Board
election;37 (3) Respondent's admitted antiunion cam-
paign; (4) the abruptness of the discharge immediately
after Durkay assured Allen the interview was to ascer-
tain the facts, and the Company's failure to investigate
the matters allegedly by the employees in the investiga-
tory interviews or the inconsistencies of Ashworth's rea-
sons for leaving; (5) the small number of employees
raises the inference that Respondent knew of prior
threats by other individuals which did not result in dis-
charge; (6) the supervisors' method of disciplining the
employees who made these threats; and (7) the demon-
strated antiunion animus, for example, Hardin's threats to
Hensarling and Allen. 38
3a N.L.R.B. v. Local 259. United Automobile. Aerospace, and Agricultur-
al Implement Workers of America, 95 LRRM 3011 (2d Cir. 1977).
a3 Durkay's claim that he believed Allen's discharge would increase
support for the Union is found to be self-serving; additionally, for the
reasons stated hereinbefore, Durkay's testimony is not credited.
'a See, generally, Wiese Plow Welding Co.. Inc., 123 NLRB 616 (1959).
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In conclusion, the Company's reason for the discharge
is found not to withstand scrutiny, to be pretextual and
the credited testimony, as well as the facts of record, re-
quires the finding that the real reason for the discharge
was Allen's protected concerted activity. Hagerty Cater-
ing Company, 236 NLRB 1553 (1978). I therefore find
that Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Allen.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffice, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees about union
activities, Respondent has violated Section 8(a)(1) of the
Act.
4. By requiring that an employee participate in investi-
gatory interviews without representation, where such
representation was denied by Respondent, where the em-
ployee had reasonable grounds to believe that the mat-
ters to be discussed may result in his being subject to dis-
ciplinary action, and such disciplinary action was actual-
ly imposed by Respondent, Respondent has violated Sec-
tion 8(a)(1) of the Act.
5. By discharging Robert Allen, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
6. The aforesaid improper and unlawful acts and con-
duct affect commerce within the meaning of the Act.
THE REMEDY
The recommended Order will contain the convention-
al provisions requiring Respondent to cease and desist
from engaging in the unfair labor practices found, and to
take certain affirmative action to effectuate the policies
of the Act. Respondent shall be ordered to immediately
reinstate Robert Allen to his former job or, if that job no
longer exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and privileges,
and to make him whole for any loss of earnings and
compensation he may have suffered because of the illegal
discrimination against him in his employment as herein-
found. Backpay shall be computed with the formula and
method prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and the remedial interest
rate shall be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).39
[Recommended Order omitted from publication.]
aa See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).