Newport News Shipbuilding & Dry Dock Co.

National Labor Relations Board - Board Decisions

Dec 27, 1977

233 N.L.R.B. 1443 (N.L.R.B. 1977)

NEWPORT NEWS SHIPBUILDING
Newport News Shipbuilding and Dry Dock Company
and Herman T. Rosser, Sr., James E. Smith, and
John R. Long.
Peninsula Shipbuilders' Association (Newport News
Shipbuilding and Drydock Compay) and James E.
Smith and John R. Long. Cases 5-CA-8249, 5-
CA-8358, 5-CA-8359, 5-CB-2160, and 5-CB-
2161
December 27, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On August 17, 1977, Administrative Law Judge
Walther H. Maloney, Jr., issued the attached Deci-
sion in this proceeding. Thereafter, both Respon-
dents filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Newport News
Shipbuilding and Dry Dock Company, Newport
News, Virginia, its officers, directors, supervisors,
agents, successors, and assigns, and Respondent
Peninsula Shipbuilders' Association, and its officers,
business agents, and representatives, shall take the
action set forth in the said recommended Order,
except that the attached Appendixes A and B are
substituted for those of the Administrative Law
Judge.
I Both Respondents have 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (196%2).
233 NLRB No. 207
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or enforce any no-
solicitation rule which fails to provide, by its clear
terms, that employees may solicit for union or
antiunion purposes on company property during
nonworking time.
WE WILL NOT maintain or enforce any no-
distribution rule which fails to provide, by its
clear terms, that employees may distribute union
or antiunion literature on company property
during nonworking time in nonworking areas.
Rules 30 and 31 of the current yard regulations
are hereby rescinded.
WE WILL NOT create in the minds of employees
the impression that their union or antiunion
activities are under company surveillance.
WE WILL NOT discharge or otherwise discrimi-
nate against employees in their hire or tenure
because they are members of, or have given
support to, Marine Industrial Transportation
Union of America, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act. Those rights in-
clude the right to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted protected activities for
their mutual aid and protection.
WE WILL offer to James E. Smith and to John
R. Long full and immediate reinstatement to their
former or substantially equivalent positions.
WE WILL make whole James E. Smith and the
widow of Herman T. Rosser, Sr., and, jointly and
severally with Peninsula Shipbuilders' Associa-
tion, WE WILL make whole John R. Long, for any
loss of pay or other benefits which they have
suffered by reason of the discriminations found in
this case, plus interest.
All of our employees are free to become or remain
members of that organization or any other labor
organization.
NEWPORT NEWS
SHIPBUILDING AND DRY
DOCK COMPANY
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assault employees of the New-
port News Shipbuilding and Dry Dock Company
because they criticize our delegates for not filing
grievances on their behalf.
WE WILL NOT threaten to refrain from process-
ing grievances because employees have attended
meetings conducted by another labor organiza-
tion.
WE WILL NOT threaten to refrain from giving
employees full, fair, and equal representation
because they are not members of the Peninsula
Shipbuilders' Association.
WE WILL NOT fail, refuse, or refrain from giving
employees in the production and maintenance
bargaining unit full, fair, and equal representa-
tion, even though they are not members of the
Peninsula Shipbuilders' Association.
WE WILL NOT in any other manner restrain or
coerce employees of the Newport News Ship-
building and Dry Dock Company in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL, jointly and severally with the New-
port News Shipbuilding and Dry Dock Company,
make whole John R. Long for any loss of pay or
benefits which he suffered by reason of the
discrimination found in this case, plus interest.
PENINSULA SHIPBUILDERS'
ASSOCIATION
DECISION
FINDINGS OF FACT
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law Judge:
These consolidated cases came on to be heard before me in
Norfolk and Newsport News, Virginia, upon several
complaints which were consolidated for hearing and'
which were issued by the Regional Director or the Acting
Regional Director for Region 5 and amended at the
hearing. The complaints allege that Respondent Employer
unlawfully maintained no-solicitation and no-distribution
rules which unduly restricted the union activities and
concerted activities of its employees, unlawfully created in
the minds of employees the impression that their union
activities were under surveillance, unlawfully interrogated
employees concerning their protected, concerted activities,
and discriminatorily discharged Herman T. Rosser, James
E. Smith, and John R. Long. Respondent denies the
allegations of independent 8(a)( 1) violations, maintains
that its no-solicitation and no-distribution rules are valid,
and asserts that all three individuals were discharged for
just cause. It further argues that Rosser was discharged for
violating a valid no-distribution rule, that Smith was
discharged for loafing and that Long was discharged for
provoking a fist fight in the company yard.
The complaints outstanding against Respondent Union
allege that it stated in its monthly newspaper that nonmem-
bers of the Union would be denied equal representation
when it acted as bargaining agent, that it unlawfully
created in the minds of employees the impression that their
union activities were under surveillance, that it threatened
an employee with reprisal for attending a meeting of a rival
union, that it failed to process a grievance on Smith's
behalf because he was antiunion, that a union steward
physically assaulted Long because he expressed dissatisfac-
tion about the refusal of the steward to process a grievance,
and that it failed to process Long's discharge grievance
beyond the second step of the grievance procedure.
Respondent denies these allegations. Upon the contentions
as noted above, the issues herein were joined. 2
The principal docket entries in this case are as follows: Charge filed by
Herman T. Rosser, an individual, against Respondent Employer in Case 5-
CA-8249, on November 3, 1976; complaint issued against Respondent
Employer by the Regional Director for Region 5, on December 17, 1976;
charge filed by James E. Smith, an individual, against Respondent
Employer in Case 5-CA-8358 and against Respondent Union in Case 5-
CB-2160, on January 12, 1977; complaint issued against Respondent
Employer in Case 5-CA-8358, on February 28, 1977, and against Respon-
dent Union in Case 5-CB-2160, on March I, 1977; charge filed against
Respondent Employer by John R. Long, an individual, in Case 5-CA-8358
and against Respondent Union in Case 5-CB-2161, on January 12, 1977;
amended charge filed in Case 5-CB-2161, on February 14, 1977; complaint
issued in Case 5-CA-8359, on February 28, 1977; complaint issued in Case
5-CB-2161, on March 1, 1977; all outstanding complaints consolidated by
Order, dated March 1, 1977; Respondent Employer filed answers to
complaint in Case 5-CA-8249 on December 27, 1976, to complaint in Case
5-CA-8358 on March 4, 1977, and to complaint in Case 5-CA-8359 on
March 4, 1977; Respondent Union filed answers to the complaint in Cases
5-CB-2160 and 5-CB-2161 on March 4, 1977; hearing held in Norfolk,
Virginia, on April II1, 12, and 13, 1977, and in Newport News, Virginia, on
April 26, 1977; briefs filed by the General Counsel and both Respondents
on or before July 15, 1977.
2 Certain errors in the transcript have been noted and are hereby
corrected.
1444
NEWPORT NEWS SHIPBUILDING
B. The Unfair Labor Practices Alleged
I. Background
For many years, the Newport News Shipbuilding and
Dry Dock Company3 has operated a large ship construc-
tion and repair facility on the banks of the James River in
Newport News, Virginia. Its yard extends for several miles
along the riverfront and has numerous gates and entrances
leading to the city. Respondent employs about 25,000
people, of whom about 16,000 production and mainte-
nance employees are in a bargaining unit represented by
the PSA. As Virginia is a right-to-work state, neither of
Respondents may require union membership of any ship-
yard employee as a condition of employment, and it is
quite obvious from the evidence in this case that a number
of shipyard employees have taken advantage of this
privilege. Just how many unit employees are not members
of PSA is a sensitive matter which the PSA is highly
reluctant to disclose. In any event, the open shop character
of the shipyard is a significant background factor which
bears heavily upon the proceedings herein.
PSA has a contract with the Company which extends
from February 1975 to 1977. The contract provides, among
other things, for a three-step grievance machinery which
can lead to outside arbitration. During the summer of 1976,
PSA raised its membership dues from 50 cents a week to $2
a week, effective August 18, and through its monthly
newspaper and its highly organized cadre of shop dele-
gates, began a campaign to obtain signed checkoff designa-
tion cards authorizing dues deductions by the Company in
the enlarged amount. This effort set off an adverse reaction
among certain employees who took a dim view of the dues
increase. Two early opponents of the dues increase,
Herman T. Rosser and James E. Smith, are discriminatees
named in the complaints herein.
One protest effort which arose following the announce-
ment of the PSA dues increase was the formation of a rival
organization which had, and presumably still has, ambi-
tions of supplanting the PSA as a bargaining agent in the
production and maintenance unit. In the latter part of
August 1976, a group of shipyard workers calling them-
selves the Marine Industrial Transportation Union of
America (MITUA) began holding frequent meetings at a
meeting room located in a shopping center in nearby
Hampton, Virginia. 4 The president of MITUA, Robert
Curling, was a shipyard employee until October 1976. The
meetings in question were open to all comers and the
record discloses that various shipyard employees, including
some unnamed PSA delegates, attended from time to time.
3 Respondents admit, and I find, that Newport News Shipbuilding and
Dry Dock Company (herein sometimes called the Company) is a Virginia
corporation which maintains its pnncipal place of business in Newport
News, Virginia. where it is engaged in the construction and repair of
oceangoing vessels. During the preceding 12 months, a representative
period, it purchased and received matenals and supplies valued in excess of
$50,000 from points and places located outside the Commonwealth of
Virginia. Accordingly, it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Peninsula Shiphuilders'
Association (PSA) is a labor organization within the meaning of Sec. 2(5) of
the Act.
4 While MITUA is a recently formed organization which has no
Another protest effort which took place at or about this
same interval was the preparation and circulation at the
shipyard of a letter, dated August 3 and addressed to PSA
Business Manager Robert M. Bryant, Jr., which chided the
PSA about the proposed dues increase in quite sarcastic
terms. Addressed to Bryant as "Lord and Master" of the
"PSA (Poor Suckers Association)," the letter read:
Dear Lord & Master,
For $1.50 more per week it seems to me that you
could offer better benefits than what you come out
with.
What benefit is 4 weeks of S & A when you don't
spell it out.
I consider the following far greater benefits than
what you have to offer:
(a) Transportation to and from work in the
Continentals, Cadillacs and Mark IV's of your
superior staff each day.
(b) One bucket of golf balls to hit at your golf
driving range at least once each week.
(c) A swim in your swimming pool at least
three times each week to get the shipyard dirt off
me.
The above I could consider for $2.00 per week but I
can not go along with what you are trying to cram
down everyone's throat.
Therefore, as of August 19th I will no longer be in
the ranks of the imbecils who fall for your propaganda
and false promises and I trust that those with a little
intelligence will also drop by the wayside and leave you
hanging along with the rest of your cronies.
Sincerely.
I. M. Intelligent
Wiser Than You Think
The PSA was not bashful about replying in kind. In an
issue of its paper, the "Shipbuilder" for August 1976,5 it
printed an article written by R. L. Daniel, national labor
representative, which was headlined "Let's Unload Free-
loaders," and read in pertinent part:
Now is the time to unload the freeloaders we have in
our union. For years I have heard from a lot of non-
members, "Why join the union when I get the same
thing the members get?" Well, for the non-members,
that is a thing of the past. Now, the PSA has special
collective-bargaining agreements with anyone, it has circulated authoriza-
tion cards to shipyard employees asking them to designate it as their
representative for the purpose of negotiating contracts covering wages,
hours, and terms and conditions of employment. Its announced purpose in
holding meetings and soliciting support was, and is, to enable it to fulfill this
function. Accordingly. MITUA is a labor organization within the meaning
of Sec. 2(5) of the Act.
I Before September 1976, PSA delegates distributed the monthly "Ship-
builder" to all employees by handing it out at the plant gates at the changes
of shift. It now disseminates the "Shipbuilder" through the mail on a
members-only basis.
1445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits for its members, and there will be a lot more if
the members will only wake up and look around.
Let's talk about the non-members. The law says we
have to represent them, but the law doesn't say how we
have to represent them. There are a lot of ways to
represent someone.6 For me, personally, I will not
waste a lot of time with a non-member. The way I see
it, the members of the PSA have put too much work
into the union to worry about a scab or a freeloader. So
let's get together and do something about these people.
After discussing another matter, the writer concluded:
How about you non-members? If you want the bene-
fits, you are going to be required to join. You will not
receive any PSA benefits if you are not a member. So
look at what your buddy who is a PSA member has
gotten and what he will get in the future. Don't wait
until its too late.
The September 1976 issue of the "Shipbuilder" carried a
front-page article signed by E. L. Back, PSA President, in
which he took issue with critics of the dues increase:
There is no way we can be silenced. We speak for you,
the MEMBER, in a powerful and demanding voice. We
bow to no group. We are obligated to no special
interest. We, the elected spokesmen, selected by you
and your representative, take a back seat to no one and
to no other union. Your support and your strength have
made this possible for YOU, the MEMBER.
The dues increase had and will open many doors that
are beneficial to the member, and I emphasize the word
MEMBER. There are those who are near retirement
who say, "I am too close to retirement to need the
PSA." My friend, YOU, above all others need the PSA
in your declining years. Think about this. There are
those who are blinded in their belief that another union
could do a better job. NOT SO!! Other unions have
made the attempt to represent you and have been
soundly defeated. When they left town, many of you
who supported them were left in a straight 'lose'
position. There are those who take the union to church
instead of the Bible. There are those who are vocal in
their criticism of PSA. There are those who say, "I
don't need the PSA, I can make it on my own." How
misinformed you are. Tenneco could care less about
you as an individual. The PSA is your protector. In
unity there is strength. Stand alone and you fall alone.
[Emphasis in original]
The same issue contained an article, signed by D. V.
Linhart, Jr., a Delegate from Department X-12, which was
headlined "Scabs are Leeches," and which read:
6 Herbert Clifton, a clerk in the 053 department, testified credibly and
without contradiction to a heated discussion with PSA Delegate Bruce
Bates, in which Bates expressed the same sentiment. The discussion took
place in the office where Clifton worked, and was occasioned by a visit by
Bates who was soliciting employees to sign checkoff agreements for the
increased amount of the PSA dues. Bates told Clifton and others who were
I would like to dedicate this article to the scabs of the
Shipyard who do not belong to our fine organization.
You people think you are really slick by not having to
pay union dues but you're not. Put yourself in the
union member's position and maybe you will see what I
am talking about. In the first place, the union member
is paying for this paper, so you don't have any business
reading it in the first place. Secondly, the union
member is paying a staff of people to negotiate your
contract with your raises and your benefits and your
paid holidays and vacations. In effect, you are actually
stealing from the people who belong to the union. Now,
Mr. or Mrs. Scab, what do you do if someone is
constantly taking things that you are paying for? Pretty
soon you start to resent that person and eventually you
get even with them. See what I mean? Let's see who
really is the slick one.
A third article, appearing in the same issue, is signed by W.
D. London, Jr., of the PSA Staff. Headlined "Parasites
Cautioned Again," it goes on to say:
It seems a while back when we were having a sitdown
that a certain fellow who is not a union member walked
by and hollowed [sic] "The PSA s-." Well, he used to
do that. I wonder if he still does? There are some more
people who did not sign the new cards that were put out
by the PSA. I will be the first to congratulate us on
doing so because if you have a bad attendance record
or low production, hold on to the seat of your pants
because I may try to take a chunk out of them. Know
what I mean, scabs?
2. Herman T. Rosser
Herman T. Rosser began his employment at the shipyard
on April 19, 1961. As discussed hereinafter, he was
discharged on August 9, 1976, from a position as materials
supply clerk in the on board repair parts section (depart-
ment 053). Rosser died on January 24, 1977, while this case
was awaiting hearing. His widow attended the hearing in
April but did not testify. When the letter of August 3 from
"I. M. Intelligent" to PSA Manager Bryant was first being
circulated, Bryant made a phone call to Victor Vogel,
director of labor relations for the entire production and
maintenance unit, and lodged a complaint about the
distribution of the letter. Following Bryant's call, Vogel
phoned his immediate subordinate, William H. Teufel,
supervisor of personnel in the 050 division (which included
the 053 department), and asked Teufel to investigate the
matter.
While Teufel's investigation was in progress, on Thurs-
day, August 5, Larry Poole, a supply clerk in the 053
department, who had heard about the controversial letter
from some PSA delegates who were talking about it, asked
one of them if he could read it. He read the letter and
returned it. Later that day, an employee in another part of
listening that if dues were not sent in on time, employees would no longer be
in the Union and would not be represented by the Union. When Bates' flat
assertion was challenged, he retreated slightly to say that the PSA would
represent members first and nonmembers second, if at all, and that, in the
event of a reduction in force, PSA would look out for union members and
nonmembers would be out on a limb.
1446
NEWPORT NEWS SHIPBUILDING
the shipyard by the name of John Hopkins phoned Poole,
using the assumed name of Harold Hunt. Hopkins is
employed by the Company as a radiographic operator.
Hopkins, alias Hunt, told Poole that he had been talking
with Rosser (whom Poole also did not know) and told
Poole that he understood that he had copies of the letter.
"Hunt" asked Poole if he could get him some. Poole told
the caller that someone had put a copy in his in-basket. He
told the caller that if he wanted copies, he would have to
come to his department since he would not deliver any.
Poole then phoned Rosser and asked him if he knew Hunt.
Rosser said he did not know Hunt but that he had a friend
who did.
After Poole had checked out the name of Hunt with
Rosser, "Hunt" called back and said he wotlld come by the
parts department if Poole would have copies of the letter
available at the gate. At 2:50 p.m.7 "Hunt" appeared at the
outside of the company premises on Warwick Boulevard
and Poole slipped him a copy or copies through the fence.
The next morning, Poole was called into Teufel's office, 8
was confronted by a statement signed by "Hunt" relating
to this event, and was questioned about the letter and the
whole sequence of events in giving it to "Hunt." Poole was
then discharged for violating the Company's no-distribu-
tion rule. Poole, a PSA member, filed a grievance and was
ultimately reinstated on September 7.
On August 6, the day on which Poole was discharged,
Teufel directed his investigation to the on-board parts
section. He questioned Rosser, supply clerk Gary Bruce,
and others. Teufel asked Rosser what he knew about the
origin of the letter. Rosser said he knew nothing about it.
He said he found a copy on his desk, read it, and threw it
away. He denied seeing anyone distribute it in the
warehouse where he worked. In the course of his interviews
with Bruce, Bruce told Teufel that he did not know
anything about the origin of the letter. He said he had seen
it, laughed at it, and threw it away.
Teufel informed Bruce on this occasion that Poole had
been fired for violating a no-distribution rule.
Teufel then pursued his investigation by interviewing
Sandy Davis and Debbie Boswell, two other employees
who worked in department 053. They both told Teufel that
it was Bruce who had given Miss Davis a copy of the letter
on Tuesday or Wednesday of that week. Miss Davis also
told Teufel that she had seen Poole reproduce copies of the
letter on the Company's copying machine.
Although the record is a bit unclear as to the precise
point in time when it occurred, it appears that early the
following Monday morning, Teufel again called Bruce into
his office. He told Bruce that he now had a witness who
saw Bruce distribute the letter on company time in
violation of the Company's no-distribution rule. Teufel
7 Second-hand evidence places the time of the meeting between "Hunt"
and Poole at 3:15 p.m., but I credit Poole's first-hand testimony.
I According to Teufel's testimony. Hopkins, alias Hunt, told him that he
had phoned Rosser to get a copy of the letter and that Rosser told him he
could get a copy from Poole.
9 Bruce testified that he also told Teufel on this occasion that he saw
Rosser compose and type the letter on a company typewriter. Teufel stated
that Bruce first told him about Rosser typing the letter at the plant some
time after the September 28 Virginia Employment Commission heanng, at
which Bruce testified as a company witness.
'O Bruce was ultimately, restored to duty along with Poole early in
then fired him. Bruce made no immediate response. Then
Teufel questioned him as to who else was involved in the
distribution of the letter and specifically pressed Bruce for
any information he might have relating to Rosser's role in
this matter. It was at this point that Bruce changed his
previous story and informed Teufel that it was Rosser who
had placed a copy of the letter on his desk.9 He also
admitted making copies, giving them to Misses Davis and
Boswell, and placing other copies in the interoffice mail
distribution system.' 0
A few minutes later, Rosser was summoned to Teufel's
office. Teufel told Rosser that he had a witness to the fact
that Rosser had distributed the letter on company time in
violation of the no-distribution rule. He read him a copy of
the rule and then fired him. In the course of the terminal
interview, Teufel attempted to question Rosser, but Rosser
became incensed, got up out of his chair, and told Teufel
he would see him in court. Teufel followed Rosser back to
his place of duty to secure Rosser's plant badge. When
Rosser gave him the badge, he told Teufel what he could
do with it.
In the case of each discharge, the Company prepares
what is called an employee review and correction report.
The report which Teufel prepared for Rosser contained the
following entry:
Violation of Yard Rule #31 [the no-distribution rule].
Distribution of written or printed material, notices,
petitions, or letters of any description on company time
or when the employees should be working. Mr. Rosser
was observed putting a non-business related letter on
the desk of another while on company time when he
should have been working. Mr. Rosser was informed he
was discharged at which time he left the office. I asked
him twice to remain in the office while I wrote up the
disciplinary report. He refused. I went to his work area
and requested his badge, at which time he said, "You
know what you can do with the badge." a
3. James E. Smith
James E. Smith was a third-class specialist who, at the
time of his discharge on October 18, 1976, had worked for
Respondent Employer for a period of nearly 23 years. At
the time of his discharge, he was employed doing sound
dampening on number 6 shipway. Part of his job included
climbing inside ballast tanks aboard a submarine then
under construction, laying out cardboard templates, chalk-
ing the areas on the bulkhead where the sould-dampening
material was to be placed, and returning the templates to a
shop where they would be used as models for cutting out
the dampening material. His job included crawling into
September and is currently employed at the plant. The reinstatement was
accomplished by D. Thomas Savanss, vice president for corporate relations,
who is the Company's representative at the third step of the grievance
procedure. Savass did not testify. Teufel, his immediate subordinate, stated
he did not know why Savass had reinstated Poole and Bruce.
ii As noted before, Rosser was dead at the time of the hearing in this
case. As a consequence, the facts surrounding his discharge must, in large
part, be derived from adverse witnesses. This category includes Bruce, who
testified twice as a company witness against Rosser's application for
unemployment compensation at heanngs before the Virginia Employment
Commission.
1447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different places and kneeling or laying on staging boards, a
temporary wooden framework constructed inside the bal-
last tanks to permit workmen to complete their tasks in
remote parts of the tanks. Until August 1976, Smith had
worked on the night shift under Supervisor Henry Lowery.
At the time of his discharge, he was working on the day
shift under Supervisor W. C. "Red" Smith.
Smith was at one time a PSA member and held the
position of PSA delegate. However, he had become
increasingly disenchanted with the PSA and his feelings in
this regard did not escape company notice. Some time in
August, Night Shift Foreman Lowery told him that it had
"come down from the office" that Smith was having too
much to say against the PSA. Smith's reply to Lowery was
that he wasn't saying anything more than anyone else.' 2 In
July, when Smith was solicited to sign a checkoff authori-
zation in the amount of $2, he declined, telling the solicitor
that for what he had received for 50 cents he could not
afford $2. During this same period of time, Smith was
periodically attending meetings held at the Open Air
Shopping Center in Hampton under the auspices of the
MITUA as part of its organizing effort. On one morning in
August, shortly before the 7 a.m. shift began, Smith was
talking with a number of his fellow employees in the
number 6 shipway about the MITUA meeting he had
attended on the previous evening. One employee, Wolford,
asked Smith for some additional information. Smith gave
Wolford an information card which he had obtained at the
MITUA meeting. The card bore no designation as to its
authorship or purpose but contained spaces on which a
person could enter his name, address, and other pertinent
information relating to his employment. It was described in
the record by an MITUA spokesman as a contact card.
On Tuesday, October 12, Smith was observed by his
foreman, "Red" Smith, speaking to two night-shift men at
the bottom on the steps of H-04. The event took place
about 4:15 p.m., shortly after the conclusion of Smith's
shift. "Red" Smith made a written report, dated October
13, to his superior, in which he stated that he saw J. Smith
talking with these individuals at the bottom of the steps of
H-604. "Red" Smith reported that he overheard one of the
men tell J. Smith that he "wanted to know more." J. Smith
replied that he would give him some literature on Thursday
evening and that he would "give them the time of the get-
together." According to "Red" Smith's report, J. Smith also
told them that he would meet them at the head of the ship
near the tool boxes. "Red" Smith's report found its way to
the personnel office on or before Monday, October 18, and
into the hands of John Helfridge, who was at that time
director of labor relations for the waterfront. Helfridge,
who had not known J. Smith until this time, had him
summoned to Helfridge's office. While J. Smith was
waiting to see Helfridge, "Red" Smith came in and spoke
privately with Helfridge. Thereupon, a conference took
place between Helfridge, J. Smith, "Red" Smith, Lewis
Gray, a personnel supervisor who was called in by
Helfridge to be a witness, and PSA Delegate R. S. White.
Helfridge told J. Smith that he had been off the job without
permission and in an area where he should not have been
12 Lowery did not testify, nor did an, others who might have given the
record first-hand enlightenment of the defaults which led to Smith's
dismissal.
and asked him "to explain the circumstances surrounding
that week," meaning the week preceding October 18. J.
Smith was unsure of what Helfridge was referring to and
asked him several times for specifics concerning the charge
of being off the job. At first Helfridge merely gave no
answer. He merely stated that he possessed information to
the effect that J. Smith had been off the job and was pulling
others off the job. He told J. Smith that he had a witness.
When J. Smith asked who the witness was, Helfridge
replied that if Smith wanted to find out who the witness
was, he should file a grievance. J. Smith then asked
Helfridge if he was referring to a discussion he had about
unions. Helfridge replied that he had no direct information
on that event.
Helfridge asked "Red" Smith if he had something to say.
"Red" Smith said that, in the course of making the rounds
of his men on the preceding Thursday afternoon, he
climbed up inside the ballast tank where J. Smith was
working with a helper and saw J. Smith and a helper sitting
down, apparently on the staging board. J. Smith said he
was giving his helper, who was brand new on the job, some
pointers on what needed to be done.
Helfridge told J. Smith that he had no alternative but to
discharge him for being off the job and for being evasive in
not furnishing definite answers to the questions which were
being asked. Helfridge testified that he discharged J. Smith
for "being off the job, loafing," and specifically for loafing
in and around the glue pit area when J. Smith should have
been elsewhere. Later, Helfridge obtained a statement for
his files from Frieda Clayton to the effect that J. Smith was
in the glue pit area. However, neither the statement nor
Miss Clayton was produced to provide the record in this
case any specifics as to when J. Smith was in the glue pit
area or what he was doing there. Helfridge himself did not
know specifically where the glue pits were located or how
far they were from the ballast tanks where Smith was
cutting out templates.
A few minutes later, J. Smith's union representative
asked him to fill out a form to initiate a grievance. Smith
wadded up the form and threw it away, telling him, "You
got this one. I'll get another job."
About 2 weeks later Smith had a change of mind. On
November 4, he went to the PSA hall for the purpose of
filing a grievance relating to his discharge. At this time, it
was admittedly too late for the PSA to take any action on
his behalf because of a 3-day limitation on the filing of
grievances which is contained in the contract. Smith spoke
with the PSA General Manager's secretary who referred
him to Delegate W. D. London, Jr., the representative in
charge of processing grievances arising in Smith's depart-
ment.
On the following day, Smith met with London and filled
out a grievance form. London told Smith on this occasion
that "You brought this on yourself. You should have
stayed away from them union meetings." He also told
1448
NEWPORT NEWS SHIPBUILDING
Smith that he had better stay away from the MITUA
meetings if he expected London to do anything for him.'3
No action was ever taken on this grievance, so Smith filed a
charge with the Board.
4. John R. Long
At or about this same point in time, discriminatee John
R. Long was having difficulty with both Respondents.
Long started working at the shipyard in June 1975. At the
time of his discharge on November 9, 1976, he was a first-
class helper in department X-l I on the night shift, having
progressed from the position of third-class helper. Contrary
to the testimony of certain witnesses, Long's personnel
record contains several written evaluation reports on which
are noted flattering references to his job performance in all
major areas of employer concern except one-atten-
dance-where Long was noticeably deficient. Over a
period of 18 months, two different supervisors reported
that Long was above average in job knowledge, quantity of
work, and quality of work, and made various favorable
comments concerning his progress as an employee.
In the summer of 1976, Long sought the assistance of his
PSA Delegate Lindsey in getting a merit increase. Accord-
ing to Long, Lindsey made inquiry at the personnel office
and was told that Long was deficient from the standpoint
of regular attendance. Lindsey reportedly told Long that if
he could work 30 days without missing any time he would
get a raise. On August 3, Long's foreman, M. D. McDuffie,
recommended him for a merit increase but it was denied
because of poor attendance. Late in October, Long decided
once again to seek the assistance of PSA.
In accordance with normal procedure in the shipyard,
Long requested McDuffie to ask a delegate to come to see
him for the purpose of initiating a grievance. On Thursday,
October 29, the PSA delegate in Long's area for the night
shift, Lee V. Washington, came to see him. Long recited
the past history of his efforts to get a raise and then
launched into a bitter complaint against the PSA for failing
to do anything for him. He told Washington he was not
going to continue to pay $2 a week in union dues if the
PSA did not do something for him. He acknowledged that
he had a poor attendance record. He also asked Washing-
ton to get him transferred to another department if he
could not get a raise in his present position. Washington
said he would check with the personnel department and get
back to him.
On the following day, Washington went to the personnel
department and checked Long's record. He spoke with
Personnel Supervisor L. A. Freda and with Edmonston, an
employee in the personnel office. After examining Long's
record, Freda and Edmonston came to the conclusion that
he was ineligible for a merit increase because of his poor
attendance and said so to Washington. Washington went
to Long's place of duty, reported the opinion from the
personnel office, and told Long that nothing could be done
for him. Long became irritated and started arguing with
Washington. He repeated Lindsey's statement of an earlier
time about his eligibility to get a raise, argued that
13 London did not testify at the hearing. His only appearance in the
record is in the form of an article in the "Shipbuilder," entitled "Parasites
Cautioned Again," which is quoted above.
employees in other parts of the shipyard got raises although
their attendance records were similar to his, and claimed he
had doctor's excuses for all of his absences. He made
specific reference to his brother-in-law in department 32
who, he said, had gotten a raise despite a similar atten-
dance record. Washington told Long that perhaps he
should try to get transferred to department 32 and began to
walk away. Long followed him, became belligerent, and
asked him why Washington could not file a grievance for
him. Washington replied that he would not and Long
asked him "what the -good" was Washington if he would
not even listen to him. Washington turned and told Long
not to curse him anymore. Long made a remark to the
effect that "Let's just say I did." Washington put his books
down, paced back and forth, made a statement to the effect
that he might lose his job for this, and then hit Long on the
right jaw. The effect of the blow knocked Long over
backwards and into a bandsaw. 4 Long picked himself up
and came back at Washington. By this time, other
employees had grabbed both of the antagonists but not
before Long was able to land a blow on Washington's face.
The fight was then broken up and Washington went back
to his normal place of duty in another part of the shipyard.
Long went to the shipyard clinic and sought medical
attention. Later on the same evening, plant protection
personnel picked up both of them, took them to a security
office, and took written statements from them. A lieutenant
on the guard force reported the incident to higher manage-
ment and then escorted both individuals from the plant,
telling them not to report back to work until the following
Wednesday morning. Shortly thereafter, Washington wrote
out a second report of the incident and turned it over to his
PSA representative, J. E. Kelly. The statement found its
way into the employer's grievance file, along with state-
ments from three witnesses concerning the event which had
transpired.
On Wednesday morning, November 3, Long and Wash-
ington reported to the personnel office pursuant to their
earlier instructions. Both were informed that the Company
had determined to give each of them a 2-week (10 working
days) suspension as a result of the incident the previous
Friday evening. Long spoke with Freda, a company
representative, in the presence of Kelly, his PSA delegate.
Freda told Long that he was being suspended. Long said he
felt he had the right to complain to Washington if he felt
Washington was not doing his job. Freda suggested that
Long should keep his opinions to himself. Kelly then told
Long that he thought he was in the wrong and that
Washington could have gotten him fired just for cursing
instead of merely giving him a 2-week suspension. Kelly
argued that there was just so much a man could take and
asked Long what he would do if another man came up to
him and asked him "what the -good" are you. Long was
angry at Kelly for siding with the Company against him,
left the shipyard premises, and went directly to PSA
headquarters where he submitted a written resignation
from the Union. Within a matter of hours thereafter,
14 It was later determined that Long suffered a chipped molar because of
the blow.
1449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Long's 2-week suspension was transformed by the Compa-
ny into the discharge which is the subject of this litigation.
Kelly appealed both suspensions to the second step of
the grievance procedure, where the matter was considered
by Helfridge, as Waterfront director of labor relations, and
Pat Stepp, national labor representative for PSA. Long had
made no request that his case be appealed beyond the first
step nor had he authorized the PSA to take such action.
Helfridge and Stepp discussed the cases briefly on the
afternoon of November 3. Neither grievant was present.
Helfridge determined on behalf of the Company to sustain
the initial punishment for both men. Stepp then appealed
the grievance to the third step.'5 A discussion at this level
took place within 2 hours between PSA Business Manager
Bryant and Company Vice President Savass.
Neither grievant was present at the third-step discussion.
Long was unaware that it was taking place. Long had not
authorized the filing of any grievance or the appeal of any
grievance on his behalf. The discussion at the third step
was based on a file of statements which had been compiled
by the Company in the course of its investigation of the
incident. The file contained no statement from Long.
Bryant, the PSA spokesman, made no independent investi-
gation of the case in the hour or two which elapsed
between the second-step and third-step determinations of
these cases, and was admittedly unfamiliar with the details
of both cases. He attempted to present both Washington's
grievance and Long's grievance to Savass at the same time.
The discussion at the third step involved who, as between
Washington and Long, was the aggressor in the incident
and who had the better and more productive work record.
Helfridge, who had made the second-step determination,
was called into the discussion and was asked for his
recommendation as to a third-step disposition. He recom-
mended a reversal of his second-step determination and
stated that, in his opinion, Long should be discharged and
that Washington's initial suspension should be retained.
Savass decided that Washington should be restored to duty
immediately, so Washington was informed that afternoon
to return to work for the night shift. Savass then deter-
mined that Long should be discharged. Long received a
letter the following Saturday instructing him to report to
the shipyard. He went to the shipyard on November 9 and
spoke with PSA Delegate Kelly and a company representa-
tive. Kelly told him that there had been a lot of discussion
about his case and that the Company had decided to
discharge him for misconduct. Kelly asked Long to sign a
blank sheet of paper, the purpose of which is unclear from
the record. He also asked Long if he wanted to file a
grievance, although by this time the grievance procedure
had already been exhausted. Long said he did not want to
do so "at this time." Long sought independent legal advice
and then called Kelly at the PSA office and asked him to
file a grievance. Kelly said he had already done so. Long
15 Helfridge initially testified that, by denying the grievance at the
second step, his action automatically put the cases into the third step of the
grievance procedure. He later retreated from this position, acknowledging
that if the Union had not filed an appeal, the ultimate disposition of both
cases would have been a 10 working-day suspension for both Long and
Washington. However, he ventured the comment that he never heard of a
situation where the Union had failed to appeal an adverse ruling affecting
one of "its employees."
asked him what the outcome was and Kelly gave him no
reply. Long ultimately filed a charge with the Board.
C. Analysis and Discussion
I. The no-solicitation and no-distribution rules
and Rosser's discharge
The General Counsel seeks a determination that Yard
Rules 30 and 31, which forbid certain soliciting and
distributing of materials by employees, are invalid both in
their original and amended forms. At one time Respondent
maintained yard rules respecting these matters which
subjected employees to discharge or other discipline for:
30. Collecting contributions, or distributing any
printed or written materials, or soliciting for any
purpose whatsoever and for
31. Distribution of written or printed material,
notices, petitions, or letters of any description on
Company premises.
At a point in time which is sharply disputed, the Company
amended former Rule 30 by adding at the end the phrase
"on Company time or when the employee should be
working." It also amended former Rule 31 to delete the
phrase "on Company premises" and to substitute in lieu
thereof the same concluding phrase which was added to
former Rule 30. The amended rules are part of a series of
33 yard rules which are contained in a four-page booklet of
regulations which are given to all new employees and are
otherwise disseminated.
The legality of no-solicitation and no-distribution rules
has been a subject of extensive Board and court litigation
since the Supreme Court's landmark decision in N.L.R.B.
v. Republic Aviation Corporation, 324 U.S. 793 (1945), and
possibly before that time. The most often-cited Board case
in this area of the law is Stoddard-Quirk Manufacturing
Company, 138 NLRB 615 (1962), which enuciates a rule
respecting oral solicitation that an employee has the right
to solicit on plant premises, subject to the restriction that
his solicitation may be restricted to nonworking periods.
As for distribution of literature, the same restriction
applies, with the further proviso that distribution of
literature may be lawfully limited to nonworking areas of
the plant. This policy is invoked as to distribution in order
to prevent littering of the plant. Any plant rule which
further limits or proscribes solicitation or distribution is
presumptively invalid. The Board's efforts in balancing the
right of employees to organize against the property rights
of employers and the right of employers to obtain produc-
tive work in exchange for compensation have repeatedly
been upheld by the courts, including the court of appeals
for the circuit in which this case arose.'6
The Company makes no defense of its original Rules 30
and 31, since those rules make no allowance for solicitation
I6 Electro Plastic Fabrics, Inc. v. N.LRB., 381 F.2d 374 (C.A. 4, 1967);
N.LR.B. v. Lexington Chair Company, 361 F.2d 283 (C.A. 4, 1966); Korn
Industries, Inc. v. N.L R.B. 389 F.2d 117 (C.A. 4, 1967); Winchester Spinning
Corporation v. N.L. R B., 402 F.2d 299 (C.A. 4, 1968); Foaco Industries, Inc. v.
N.L.R.B., 412 F.2d 589 (C.A. 4 1969); N.LR.B. v. Sewetl Plastics, Inc., 526
F.2d 589(C.A. 4, 1975).
1450
NEWPORT NEWS SHIPBUILDING
or distribution by employees during any nonworking time.
Moreover, the original Rule 31 is bad because it forbids
distribution anywhere on company premises, both in
working areas and in nonworking areas. The Company
argues that the defects found in the original rules have been
cured by a deletion of the blanket prohibition against
distribution anywhere on company premises and by the
addition to each of the original rules of the phrase "on
Company time or when the employee should be working."
Its reliance on the validity of the new rules is misplaced.
Unless there is some situation not apparent from the record
when an employee is required to donate his services to the
Company, there does not exist any occasion "when the
employee should be working" that is not also "company
time," and within the ambit of the newly established
prohibitions against soliciting or distributing on "company
time." Hence, the latter part of the newly inserted phrase
"when an employee should be working" is, as the Compa-
ny suggests in its brief, a redundancy which has no
substance, describes but a portion of an employee's
workday, and is embraced by the larger span of hours
known as " 'company time.' " In essence, the new rules
simply prohibit solicitation or distribution of literature by
an employee at any time which is "company time." This
phrase has been repeatedly construed by the Board to
include both the time the employee is actually working and
the time when he is on company premises but is not
required to be working, such as lunch hour and breaktime.
The Singer Company, 220 NLRB 1179 (1975); Campbell
Soup Company, 225 NLRB 222 (1976). It extends beyond
limitations which are permissible under the Act. The new
rules are presumptively unlawful and nothing advanced
herein by the Company has, in any way, overcome this
presumption. Indeed, there is evidence in the record which
I credit to the effect that the Company has disparately
applied and enforced its presumptively bad rules, a factor
which compounds rather than mitigates their facial invalid-
ity.1 7 Montgomery Ward & Company, Incorporated, 224
NLRB 104 (1976); Maremonth Corporation, 229 NLRB 746
(1977). Having concluded that the maintenance of both the
old and amended yard rules violates Section 8(aXI) of the
Act, it is unnecessary to determine when, if ever, Respon-
dent Company changed the text of the rules and effectively
promulgated the provisions of the revised texts throughout
i? I find, based on record testimony, that during working hours and not
merely on "company time," the Company itself actively solicited or
passively tolerated and acceded to solicitations by employees for the United
Fund, for contributions to luncheons which were informally held to
commemorate employee birthdays, contributions for flowers for ailing and
deceased employees, and solicitations by PSA delegates for union purposes.
It was also a tolerated practice for employees occasionally to use the
interoffice distribution system to circulate cartoons and other humorous
items designed to beguile the tedium of a workday.
is The only hard evidence in the Company's possession on August 9,
when it discharged Rosser for a violation of a no-distribution rule, was
Rosser's action, reported to it on that occasion by Bruce, that Rosser had
laid the letter critical of the PSA on Bruce's desk during working time. Some
of the Company's management thought that Rosser must have been the
author of the document because its tone and contents smacked of his
literary style. However, the Company did not discharge him for authorship
of the document but for distribution, as its employee review and correction
report reflects. At the first VEC hearing on Rosser's claim for unemploy-
ment compensation, Bruce, the sole witness to the act in question, testified
that Rosser had merely laid the paper on his desk. At a later VEC hearing,
Bruce came forward with additional testimony, namely that he had also
its shipyard, because it is not necessary to determine which
phase of a continuing violation was in effect on August 9,
when Rosser was fired. In discharging Rosser for violating
the provisions of Rule 31, Respondent discharged him for
distribution of literature in violation of the provisions of an
invalid rule. In the absence of a valid prohibition on
employee solicitation or distribution, an employer is guilty
of unlawful interference with the rights of employees
guaranteed by Section 7 of the Act when it discharges an
employee for such reason, unless it can affirmatively show
that the employee's act amounted to an actual impairment
of production or a littering of the plant. Custom Recovery,
Division of Keystone Resources, Inc., 230 NLRB 247 (1977).
The act for which Rosser was discharged was a trivial and
momentary action, namely placing a piece of paper on
Bruce's desk, and could not have constituted an impair-
ment of production or a littering of the plant. Indeed, the
Company makes no contention to this effect. 18 According-
ly, I conclude that when Respondent Company herein
discharged Herman T. Rosser on August 9, 1976, for
placing a letter critical of the PSA as bargaining agent on
the desk of Gary Bruce, it violated Section 8(aXl) and (3)
of the Act.
2. The threat to deny equal representation to
nonmembers of PSA
It is established beyond controversy that the Act imposes
on any labor organization which is recognized as the
exclusive bargaining agent in an appropriate unit the duty
of representing all persons employed in the bargaining unit
equally and fairly without regard to whether they are or are
not members of the labor organization. Miranda Fuel
Company, Inc., 140 NLRB 181 (1962), reversed 326 F.2d
172 (C.A. 2, 1963); Truck Drivers, Oil Drivers and Filling
Station and Platform Workers Local No. 705, etc. (Associ-
ated Transport, Inc.), 209 NLRB 292 (1974); Port Drum
Company 170 NLRB 555 (1968); Local 485, International
Union of Electrical, Radio & Machine Workers, AFL-CIO,
170 NLRB 1234 (1968). A threat to withhold representa-
tion from bargaining unit members because they are not
also union members violates Section 8(bXIXA) of the Act.
In this case, Respondent Union's official house organ,
the "Shipbuilder," carried in a prominent position in its
observed Rosser actually type the letter at his desk on a company
typewriter. He recited this latter evidence at the hearing in this case,
although it conflicted with Teufel's testimony that Bruce first told him about
Rosser's authorship of the August 3 letter after the September 28 VEC
hearing.
Bruce originally lied to Respondent in the course of its initial investiga-
tion and admitted his own activity only after being confronted by witnesses
who had seen him duplicate the letter on a company copying machine.
Having been told he was discharged, Bruce then volunteered his original
story implicating Roaser, and it was upon this evidence that Rosser was
fired. Later, after Bruce was reinstated, he further elaborated on Rosser's
role in formulating the letter. Rosser was not present to testify at the hearing
in this case, either to bear out or to contradict Bruce's story. Whether Roaser
authored the letter or merely circulated it would not affect my decision in
this case, but I feel constrained to say that I place little faith in Bruce's
evolved story, which was the product of company pressure in discharging
and later reinstating him. The revised version followed the telling of another
tale which entirely omitted Rosser's typing of the document. In determining
this case, it is sufficient to judge Respondent Company and its motives as of
August 9 on the basis of the information it had on hand on August 9, and
for the action it took.
1451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1976 issue an article signed by R. L. Daniel, one of
its national representatives, in which Daniel stated, inter
alia, that while the law requires equal representation of
members and nonmembers alike, there were different ways
of representing employees and he was not going to waste
much time on nonmembers. This article was not alone in
expressing the antipathy of Respondent Union toward
nonmembers. Other examples of PSA hostility to "scabs,"
"parasites," and "free-loaders" are contained in other
"Shipbuilder" articles which are quoted above. I conclude
that the statements made by Daniel in the August "Ship-
builder" are properly attributable to the Respondent
Union and that the statements constitute a threat on behalf
of that Union to deny to nonmembers the representation
owed to them under the Act in violation of Section
8(b)( 1 )(A).
3. The discharge of James E. Smith and the
Union's response thereto
All of the discharges involved in these consolidated cases
must be evaluated in the light of a company attitude
toward dissident unionists which has surfaced repeatedly
throughout this record. In the routine discharge case which
is brought before the Board, the General Counsel proceeds
on the theory that a respondent employer is hostile toward
the efforts of his employees in seeking representation or in
supporting a labor organization, and that discharges which
occur in the course of an organizing campaign are the
product of an effort to discourage union activities. The Act,
however, prohibits employer discriminations which encour-
age as well as discourage membership in labor organiza-
tions. It also forbids employer restraint and coercion which
interferes with an employee's right not to join a union as
well as his right to seek such representation. The attitude
and disposition of the employer in this case involve these
latter motivations. They disclose a desire on its part to
shore up the fortunes of a labor organization with whom it
has achieved a comfortable relationship and whose status
was being challenged by a potential rival in the form of the
MITUA.
Thus, company animus, when understood in the above-
noted terms, is an important factor herein. Company
response to a complaint by PSA Business Manager Bryant
about the distribution of the August 3 letter was not only
prompt but displayed a fervor and diligence uniquely
reserved for anti-PSA dissidents. Its discharge of three
individuals for circulating a letter critical of the PSA, while
permitting the PSA to conduct union business including
the solicitation of signatures for an increased checkoff on
working time and company premises, evidences its lack of
even-handedness vis-a-vis the PSA and the opponents of
PSA. Its enforcement of both its rule against distribution
and its rule against fighting on company premises, at issue
in the Long case, somehow seems to have worked out so
that unrepentant critics of the PSA or PSA personnel
suffered permanent discharge, while others guilty of indis-
tinguishable infractions are able to find their way back to
the company payroll. The fact that a trivial incident
involving the organizational effort of the MITUA was the
subject of company investigation and report in the Smith
case is another example demonstrating a high degree of
company sensitivity and concern, lest the status of the PSA
be in any way diminished or undermined.
In the case of Smith, the record is uncontradicted that his
foreman Lowery warned him back in July or August that
"it had come down from the office" that Smith was doing
too much talking against the PSA. Such a statement
constitutes not only animus on the part of the Company
but let Smith understand that his activities in opposition to
the PSA were the subject of company notice and critical
concern. As such, the statement is an interference by
Respondent Company with the protected concerted activi-
ties of its employees and amounts to an independent
violation of Section 8(aX 1) of the Act.
Smith, a veteran of 23 years of service with the Company,
was discharged within 5 days from the date that a
foreman's report was made indicating that he had been
attempting to interest other employees in joining the
MITUA. The basis of the discharge was a vague and yet
unsubstantiated allegation that Smith had been loafing on
the job. The specific reason assigned by the Company to
justify the discharge on October 18 was a report coming to
the attention of Helfridge some time after October 18 from
Freida Clayton that Smith was seen loitering near the glue
pots, presumably at a time when he should have been
working somewhere else. At the time his status was under
discussion on October 18, Smith was told neither when nor
where he was seen loafing. He was left to guess about what
he had done wrong. Indeed, the only adverse matter then
brought to his attention relating to his job activities was an
entirely different occasion when "Red" Smith visited him
during the course of his rounds and found him and his
working partner sitting on a wooden frame inside a ballast
tank. Apparently, Respondent did not, and does not, rely
on this incident, if indeed it merits the title of incident, in
formulating its decision to discharge Smith. Accordingly,
Smith was called upon at his terminal interview to explain
and to defend himself against a charge which, to this time,
has not been specified as to date and time, much less
established by probative evidence as having actually
occurred. Since the Company's witness to Smith's asserted
loafing was never summoned by Respondent to testify in
this case, there is no primary evidence in this record that
Smith was ever loafing at or in the vicinity of the glue pots
on any occasion. As Respondent's failure to summon Miss
Clayton to substantiate this key feature of its defense was
never explained in the record or in its brief, I conclude,
under well-established rules of evidence and Board and
court precedent, that her testimony, if produced, would
tend to disprove the Company's defense in this case.
In summary, the Smith case involves the discharge of a
longtime employee who had recently become active and
vocal in opposing the PSA and in supporting a rival union.
It contains the factors of animus, company knowledge of
Smith's protected and union activities, and suspicious
timing, namely a dismissal accomplished within a few days
after Smith was found discussing the MITUA with fellow
employees and telling them he would provide them with
union cards at an agreed-upon rendezvous point. The
specifics of the reason advanced at the hearing herein for
the discharge were not brought to Smith's attention at the
time of the discharge and are still vague and unsupported
1452
NEWPORT NEWS SHIPBUILDING
in this record. Indeed, Helfridge refused Smith's repeated
requests for information as to what he was being accused
of doing and who was accusing him. Helfridge admitted on
the stand that he refused to give Smith the requested
information for tactical reasons, stating that in handling
industrial grievances, when an employee is evasive with
him, he responds by being evasive with the employee.
It should also be noted that, at a later point in time, when
the reason for Smith's discharge was being litigated by
Respondent before the Virginia Employment Commission,
the Company's VEC representative, James C. Cole, told the
VEC, upon information he had obtained from Personnel
Supervisor Gray, that Smith was discharged not only for
loafing but for expressing his dissatisfaction with the PSA
to other employees, and for doing so in violation of a
company rule which I have found herein to be an illegal
interference with Section 7 rights. In other words, the
shifting nature of Respondent's defense, the fact that its
underlying factual premise was never established, and the
fact that, in part, it involved a discharge of an employee for
engaging in protected activities, conclusively establishes
that one of the asserted reasons for Smith's dismissal was
pretextual and that the discharge was effectuated in order
to eliminate from the shipyard an opponent of a favored
bargaining agent. As such, the discharge of James E. Smith
violated Section 8(a)( ) and (3) of the Act.
When Smith belatedly sought union help to redress his
grievance, he was told, among other things, by Union
Representative London that London was aware of Smith's
attendance at MITUA meetings. The General Counsel
alleges that such a statement amounts to the creation of an
impression of surveillance which violates the Act. MITUA
meetings were open affairs to which any employee of the
shipyard was invited. This invitation included PSA mem-
bers and PSA delegates. Smith testified that a number of
PSA representatives attended from time to time. Neither
Smith nor the General Counsel can object to the presence
of PSA personnel at the meetings in question, since these
individuals were entitled to be present, and the General
Counsel can hardly object to what the PSA representatives
observed when they were in attendance. Accordingly,
London's statement to Smith that he was known by PSA to
have attended MITUA meetings was hardly news to Smith
and could not, under these circumstances, amount to
surveillance of Smith's activities. Therefore, I would dis-
miss this portion of the consolidated complaints. The
Cheese Barn, Inc., d/b/a Hickorv Farms, 209 NLRB 502
(1974); Thermo Electric Co., Inc., 222 NLRB 358 (1976).
London's other remarks to Smith on this occasion are of
another character. London is the same individual whose
article had recently appeared in the "Shipbuilder" de-
nouncing nonmembers of PSA as "parasites." He did not
appear either to deny or explain the contents of his article
nor to contradict Smith's version of what occurred during
their conversation. London told Smith that he had better
stay away from MITUA meetings in the future if he
expected London to do anything for him, told Smith that
he had brought his discharge upon himself, and ventured
the further opinion that Smith should have stayed away
from MITUA meetings in the past. These remarks consti-
19 While obscene language also violates Yard Regulations, there is no
tute a threat to deny Smith fair and equal union representa-
tion in filing a grievance because of Smith's union
sentiments or activities and, as such, violate Section
8(b)(I)(A) of the Act. I so find and conclude.
3. The discharge of John R. Long and the
Union's response thereto
At the time Long got into a fight with PSA Delegate
Washington, he was involved in the pressing of a grievance
concerning the denial of a merit increase, and the Compa-
ny knew it. The question here is whether Long was pressing
his gnevance in a proper manner, and whether the
Company's response to the situation which ultimately
arose was unsullied by discriminatory intent. Long had
been seeking a merit increase for a period of months.
Indeed, his Foreman McDuffie had recommended him for
a raise 2 months before the October 29 incident. The
recommendation had been turned down because of Long's
attendance record. Washington had come to Long's place
of work at McDuffie's invitation to discuss Long's com-
plaint. On the day of the fight and not many minutes
before it occurred, Respondent's Personnel Supervisor L.
A. Freda had discussed Long's complaint with Washington
and the Company's reason for turning down Long's
request. The Company's incident file, compiled in the
course of the investigation of the fight, contained Washing-
ton's statement outlining Long's complaint, his threat to
resign from the PSA if he did not get some results, and
Washington's conversation with Personnel Department
officials in which they denied Long's request because of his
attendance record. Any contention that the Company did
not know, at the time of Long's discharge on November 3,
that Long was engaged in pressing a grievance when the
fight broke out is flatly contradicted both by undisputed
record testimony, documentary evidence, and Helfridge's
admission on the stand.
At the time of the fight, Washington was at Long's
workplace on official PSA business. He was on company
time, engaging in contract administration as a PSA
representative, and was present at the express invitation
and request of a company foreman. While company
witnesses advanced various considerations in addition to
the fight in explaining their determination to discharge
Long, it is quite clear that the fist fight and not simply the
use of obscene language was the incident which placed
Long's job in jeopardy, and Helfridge acknowledges this
fact. Initially, the fight placed Washington's job in jeop-
ardy as well.
There was also no doubt, both from the record and from
the Company's own admissions, that it was Washington
who precipitated the fight. Freda's investigation and the
statements of neutral witnesses, as well as Long's own
account, substantiate the fact that, had Washington not hit
Long in the jaw, there would have been no fight. What
would have occurred was merely a yelling incident in the
course of which Long used obscene language in speaking to
Washington.i 9 Washington stated just before he hit Long
that he might lose his job because of what he was about to
do, but he did it anyway. Instead of behaving in a manner
evidence in the record that anyone has ever been discharged from the
(Contintmud)
1453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incumbent upon one who was engaged in an official errand
concerning contract administration, Washington calculat-
ed the risks of replying to Long not in kind but with force.
Long's language was socially indefensible, but Washing-
ton's response to Long's words was and is legally indefensi-
ble. By assaulting Long rather than continuing to walk
away from him, Washington caused the Union herein to
violate Section 8(b)(1)(A) of the Act.
Respondent argues that the Board may not question the
manner in which it metes out punishment and may not
substitute its own notions of equity and propriety for the
judgments of an employer who seeks to maintain plant
discipline. The problem with applying that premise to this
case is that this employer exercised two different notions of
equity and propriety in resolving the Long-Washington
incident, one before the Union initiated a grievance and
another after the Union had taken the matter, with little
preparation but remarkable haste, to the third step of the
grievance machinery. The shifting of reasons for disciplin-
ary action has long been held to be an indicia of
discriminatory intent. The shifting of disciplinary action in
the face of the union pressure and Long's resignation from
the PSA should be regarded by the Board in the same vein.
The Company's official response to the Long-Washing-
ton incident, on two separate occasions and by two
different officials, was that both participants should be
treated equally. At the first and second steps of the
grievance procedure, the Company determined that both
Long and Washington should be given a 10-working-day
(2-week) suspension. Had the matter rested there, this case
would in all probability not be before the Board. However,
the vice president of the Company for corporate relations,
D. Thomas Savass, decided at the third step that Long
should be discharged and that Washington should be
immediately reinstated. Savass did not testify to explain
why his determination differed from that of his subordi-
nates and left it to his subordinates to explain his action.
The difference between Savass' decision and the preceding
company decisions did not arise because of the addition of
new matter to the Company's grievance file or a last-
minute discovery of new facts bearing on the fight which
could have thrown a different light on the entire matter.
The only thing which occurred between the first and third
steps of the grievance procedure was that Long did, on the
morning of November 3, what he had threatened to do the
previous week, and resigned from PSA.
In this case, the inference is clear that the Savass was
confronted by an indignant Union whose delegate had
been given identical punishment for engaging in a fight
with an dissident member who had just tendered his
resignation. Respondent had, as discussed above, given
ample evidence in other situations of its pro-PSA animus
and its displeasure with employees who harbored anti-PSA
sentiments. Despite its pretense of representing both
antagonists during the grievance discussion with Savass,
the fact is that the Union obtained from Savass a reduction
in Washington's punishment while Long's punishment was
drastically increased. In short, the Union traded off
dissident Long for Delegate Washington, and the Compa-
shipyard for obscenity or profanity, and ample evidence that the use of
obscene and profane language is commonplace at the shipyard, as it is in
almost any industnal setting.
ny, speaking through Savass, went along with the barter.
There is little doubt that the ultimate resolution of this
question by the Company was prompted by union-related
considerations, and that the discharge of Long thereby
violated Section 8(aXI) and (3) of the Act. I so find and
conclude.
5. The Union's complicity in' Long's discharge
In arriving at this conclusion, I also conclude that the
Union violated a duty of fair and equal representation it
owed to Long, a violation it had threatened publicly to
commit upon nonmembers who failed to pay the dues
increase which had just been imposed. Of critical signifi-
cance here is that, if the Union had not appealed Long's
discharge beyond the second step, the final disposition of
company discipline would have been a 2-week suspension
of Long for fighting, not discharge from employment. On
November 3, Long never asked the Union to file or appeal
any grievance on his behalf. He was not present when the
grievance was presented by the Union at any step. No
investigation of the case from his point of view was
undertaken by the Union in preparation for presenting his
side of the story. All of the facts presented during the
grievance procedure came from the company file and from
the Company's investigation. Washington's statement
found its way into this file but no filed statement was
solicited or taken from Long, either by the Union or the
Company. Kelly told Long on the morning of November 3
when he informed him of the suspension that he thought
Long was in the wrong. The union representatives who
processed the case further along the line knew no more
about the case than Kelly did, and it is quite clear that
Bryant, who assertedly represented Long in the discussion
with Savass, knew even less.
Only about an hour or two elapsed between the second
and third step of the grievance procedures. The Union
advances no shadow of a reason why it had to proceed with
such haste. Bryant had no chance to become acquainted
with the details of the case before discussing the case at the
third step and admitted as much on the stand. The
argument at the third step took on an "either-or" posture,
a question of who instigated the fight and who was the
more valuable employee of the two.
The disposition of the cases at earlier stages sought to
impose discipline on both participants in the fight. The new
turn of events meant that Bryant, who was supposed to
represent both grievants, found himself in a position at the
third step discussion amounting to a conflict of interest,
since he was representing both antagonists to a fight in a
situation where one was being preferred by the Company
over the other. As Washington was a union delegate and
Long had just resigned from the PSA, it takes little
imagination to conclude whom the Union preferred. The
outcome at the third step dispels any doubt as to whether
the Union put forth the same effort for Long that it did for
Washington, the man whose physical assault upon Long
was clearly the first blow struck. Finally, having concluded
on its own that the Long case merited third-step grievance
1454
NEWPORT NEWS SHIPBUILDING
consideration, the Union, whose unauthorized and unre-
quested representation turned a 2-week suspension into a
discharge, then failed to go to arbitration because it did not
think the Long case warranted arbitration.
It is clear that, in order to salvage Washington's case and
get him back to work in a hurry, the Union herein
participated in a sha - grievance procedure. Its representa-
tion of Long was not merely negligent, bumbling, and
inept. Its effort was nothing short of cynical connivance
with the employer to rid the Company of one more PSA
dissident. As such, its processing of the grievance in the
Long case violated 8(b)(l)(A) of the Act.20
Upon the above-recited findings of fact, and upon the
entire record in this case considered as a whole, I make the
following:
CONCLUSIONS OF LAW
1. Respondent Newport News Shipbuilding and Dry
Dock Company is and at all times material herein has been
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Peninsula Shipbuilders' Association is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily discharging Herman T. Rosser,
James E. Smith, and John R. Long, Respondent Company
violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3; by maintaining and enforcing an invalid no-
solicitation and no-distribution rule; and by creating in the
minds of employees the impression that their antiunion
activities were under surveillance, Respondent Company
violated Section 8(a)(1) of the Act.
5. By threatening to deny nonmember employees equal
representation with union members who are employed in
the bargaining unit; by assaulting an employee because he
had spoken critically of the Union's refusal to process his
grievance; by threatening an employee not to process a
grievance if he continued to attend meetings conducted by
a rival union; and by processing the grievance of a
nonmember employee in a disparate manner with the
processing of the grievance of a union delegate so as to
cause the discharge of a nonmember, Respondent Union
herein violated Section 8(a)( 1X)(A) of the Act.
6. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act.
20 The language of the complaint in the Long case states the charge that
the Union violated the Act by failing to process Long's case beyond the
second step of the grievance procedure. This allegation relates to the
Union's action the following week after the gnevance procedure had been
exhausted and Long had been discharged. At that point in time, there was
nothing the Union could do for Long, even if it were so disposed. The
Union's misdeed in this case occurred when it did process his grievance
beyond the second step, an event not specifically mentioned in the
complaint but one well-known in advance of the hearing to both Respon-
dents, fully litigated at the hearing, and well deserving of a remedial order.
REMEDY
Having found that both Respondents have engaged in
unfair labor practices, I will recommend that they be
required to refrain therefrom and that they be required to
take certain affirmative actions designed to effectuate the
purposes and policies of the Act. As the actions of both
Respondents include either discriminatory discharges or
the cooperation and connivance in a discriminatory dis-
charge, their activities are violations which go to the heart
of the Act, so I will recommend broad orders designed to
suppress any and all violations of both Section 8(a)(l) and
8(b)(IXA). J. C. Penney Co., Inc., 172 NLRB 1279, fn. 1
(1968); Adam & Eve Cosmetics, Inc., 218 NLRB 1317
(1975).
I will recommend that Respondent Company be required
to reinstate employees Long and Smith to their former or
substantially equivalent employment and make them whole
for any loss of pay they have suffered by reason of the
discrimination practiced against them, in accordance with
the Woolworth formula,21 with interest on backpay com-
puted at 6 percent per annum. 22 The make-whole order
respecting Rosser will run to his widow and will include
backpay from the date of his discharge until the date of his
death, computed as per the Woolworth formula, together
with any insurance, death, or pension benefits she would
have been entitled to receive had Rosser been employed on
the date of his death, with interest at 6 percent on any and
all unpaid amounts now due and owing. I will also require
the Company to post the usual notice, informing employees
of their rights and of the results of this case.
I will require Respondent Union to post similar notices
at its office and to forward signed copies of said notice to
the Company for posting on company bulletin boards. The
General Counsel has requested certain extraordinary
remedies applicable to the Union in the Smith case which I
will not recommend, because the Union's misdeeds in the
Smith case did not contribute to Smith's discharge or to the
failure of any contract remedy following the discharge. In
the Long case, the Union and the Company were in pari
delicto in bringing about Long's discharge, so the make-
whole remedy recommended therein will impose joint and
several liability on both Respondents. I will deny the
General Counsel's request for any other extraordinary
remedies as to the Union in Long's case, since the elements
of the recommended order outlined above obviate any
need on Long's part to resort to contract remedies and are
sufficient to place him in status quo ante.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole, I
make the following recommended:
21 F. W Woolworth Company, 90 NLRB 289 (1950).
22 The General Counsel filed in this case, as he has in many other current
cases, a brief requesting that interest on backpay be computed at 9 percent
rather than at 6 percent, as required by the Board's decision in Isis Plumbing
& Hearing Company, 138 NLRB 716 (1962). This issue is now before the
Board in a host of discharge cases and nothing I have to say on the point
will add anything to law or literature. Accordingly, I will follow the Board's
announced precedent of 6 percent interest on backpay unless and until the
Board raises the prime rate on discharges.
1455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 2 3
A. The Respondent, Newport News Shipbuilding and
Dry Dock Company, Newport News, Virginia, its officers,
directors, supervisors, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Enforcing and maintaining current or previous Yard
Regulations 30 and 31.
(b) Enforcing and maintaining any other no-solicitation
rule which, by its clear terms, fails to permit employees to
engage in union activity or antiunion activity (other than
the distribution of literature) on company property during
nonworking time.
(c) Enforcing and maintaining any other no-distribution
rule, which by its clear terms, fails to permit employees to
distribute union or antiunion literature on company prop-
erty during nonworking time in nonworking areas.
(d) Creating in the minds of employees the impression
that their union or antiunion activities are under company
surveillance.
(e) Discouraging membership in, or activities on behalf
of the Marine Industrial Transportation Union of America,
or any other labor organization, by discharging employees
or otherwise discriminating against them in their hire or
tenure.
(f) In any other manner interfering with, coercing, or
restraining employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer to James E. Smith and to John R. Long full and
immediate reinstatement to their former positions, or, in
the event that their former positions no longer exist, to
substantially equivalent employment, without prejudice to
their seniority or to other rights which they formerly
enjoyed.
(b) Make whole James E. Smith and the widow of
Herman T. Rosser, and, jointly and severally with Respon-
dent Union, make whole John R. Long, for any loss of pay
or other benefits which they have suffered by reason of the
discriminations found herein, in the manner described
above in the section entitled "Remedy."
(c) Post at its Newport News, Virginia, shipyard copies of
the attached notice marked "Appendix A," and signed
copies of the attached notice, marked "Appendix B."2 4
Copies of Appendix A, to be furnished by the Regional
Director for Region 5 and duly signed by a representative
of Respondent, and signed copies of Appendix B, to be
furnished Respondent by Respondent Union, shall be
posted by Respondent immediately upon receipt thereof,
and shall be maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze the amount of
backpay and other benefits due under the terms of this
Order.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order what steps it has
taken to comply herewith.
B. The Respondent, Peninsula Shipbuilders' Associa-
tion, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening employees of the Newport News Ship-
building and Dry Dock Company that it will refrain from
giving said employees full, fair, and equal representation as
their collective-bargaining representative because said em-
ployees are not members of the Peninsula Shipbuilders'
Association.
(b) Failing, refusing, or refraining from giving to all
employees of the Newport News Shipbuilding and Dry
Dock Company who are employed in the bargaining unit
for which it is the recognized bargaining agent full, fair,
and equal representation as their collective-bargaining
representative, even though said employees are not mem-
bers of the Peninsula Shipbuilders' Association.
(c) Assaulting employees because they have spoken
critically of the Union or its delegates for refusing to
process grievances;
(d) Threatening to refrain from processing a grievance
because an employee has attended meetings conducted by
another labor organization;
(e) In any other manner restraining or coercing employ-
ees of the Newport News Shipbuilding and Dry Dock
Company in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Jointly and severally with Respondent Company,
make whole John R. Long for any loss of pay or other
benefits which he has suffered by reason of the discrimina-
tion found herein, in the manner described above in the
section entitled "Remedy."
(b) Post at its Newport News, Virginia, office signed
copies of the attached notice marked "Appendix B."25
Copies of Appendix B, after being signed by a representa-
tive of Respondent, shall be posted by Respondent imme-
diately upon receipt thereof and maintained by it for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered
by any other material. Copies of said notice shall also be
signed by a representative of Respondent and shall be
forwarded for posting to Newport News Shipbuilding and
Dry Dock Company, immediately upon receipt thereof
from the Regional Director.
24 In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
25 See fn. 24, supra.
1456
NEWPORT NEWS SHIPBUILDING
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order what steps it has
taken to comply herewith.
Insofar as the consolidated complaints here allege mat-
ters which have not been found to be violations of the Act,
said complaints are hereby dismissed.
1457