Alaska Ship & Drydock

National Labor Relations Board - Board DecisionsSep 30, 2003

340 N.L.R.B. 874 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874 Alaska Ship and Drydock, Inc. and Piledrivers, Bridge, Dock Builders, and Divers Local Union 2520, affiliated with United Brotherhood of Carpenters and Joiners of America. Cases 19– CA–27490, 19–CA–27627, and 19–CA–27700 September 30, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On March 14, 2003, Administrative Law Judge Wil- liam L. Schmidt issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 1 There are no exceptions to the judge’s recommended dismissal of the allegation that the Respondent discharged David Harvey in viola- tion of Sec. 8(a)(3) and (1) of the Act. The Respondent has excepted to some of the judge’s credibility findings. The Board’s established pol- icy is not to overrule an administrative law judge’s credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care- fully examined the record and find no basis for reversing the findings. In adopting the judge’s finding that the Respondent’s no-distribution policy violated Sec. 8(a)(1) of the Act, we note that the General Coun- sel did not challenge the lawfulness of the policy that prohibits the posting of unauthorized written materials on the Respondent’s premises at any time. In adopting the judge’s finding that the maintenance of the Respon- dent’s wage discussion policy violated Sec. 8(a)(1) of the Act, we find, contrary to the judge, that the Respondent did in fact proffer a business justification for its wage discussion policy. The Respondent asserted that, because the employees are not aware that the hourly wage rates are based on different skill levels, the wage discussion policy is de- signed to prevent “hurt feelings” that would result should the employ- ees become aware that they are being paid different hourly wage rates. We conclude, however, that the proffered business justification is insuf- ficient to warrant reversal of the judge’s finding of a violation. 2 In adopting the judge’s conclusion that the Respondent’s wage dis- cussion policy violated Sec. 8(a)(1) of the Act, Chairman Battista and Member Schaumber note that the wage discussion policy is not simply a confidentiality policy, but expressly bans the discussion of wages. Cf. Lafayette Park Hotel, 326 NLRB 824, 826 (1998). They also note that, from late 2000 to 2001, the Respondent’s work force swelled from no more than 50 to more than 200 employees, and thus a significant number of employees were brought under the provisions in the hand- book for the first time during the period covered by the complaint. They further note that, although the employee handbook did not specify a form of discipline for failure to adhere to the wage discussion policy, the Respondent violated Sec. 8(a)(1) when Supervisor Carney told employee Mike Hamilton that he would be in “big trouble” if he talked about wages. and to adopt the recommended Order as modified3 and set forth in full below. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below, and orders that the Respondent, Alaska Ship and Drydock, Inc., Ketchikan, Alaska, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified and set forth in full below. 1. Cease and desist from (a) Maintaining an employee handbook provision that interferes with employee discussion of their pay rates or salaries. (b) Maintaining an employee handbook provision that requires employees to obtain management authorization to distribute literature on its premises at any time. Threatening to discharge employees who possess or sign union authorization cards. (c) Threatening employees for discussing their wages among themselves. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Expunge from its employee handbook those provi- sions that interfere with employee discussion of their pay rates or salaries and that require employees to obtain management authorization to distribute literature on its premises at any time. (b) Within 14 days after service by the Region, post at its shipyard and drydock in Ketchikan, Alaska, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respon- dent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in 3 We have modified the recommended Order and notice to accu- rately reflect the violations found. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 340 NLRB No. 95 ALASKA SHIP & DRYDOCK 875 these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since April 13, 2001. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT maintain an employee handbook pro- vision that interferes with employee discussion of their pay rates or salaries. WE WILL NOT maintain an employee handbook pro- vision that requires employees to obtain management authorization to distribute literature on its premises at any time. WE WILL NOT threaten to discharge employees who possess or sign union authorization cards. WE WILL NOT threaten employees for discussing their wages amongst themselves. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed them by Section 7 of the Act. WE WILL expunge those provisions from our em- ployee handbook that interferes with employees discuss- ing their pay rates or salaries, and that requires employ- ees to obtain management authorization to distribute lit- erature on our premises at any time. ALASKA SHIP AND DRYDOCK, INC. Irene Botero, Esq. (brief by John H. Fawley, Atty.), for the General Counsel. Bruce Bishoff, Esq., of Bend, Oregon, for the Respondent. Daniel Boone, Esq., of Oakland, California, for the Charging Party. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. In this consolidated proceeding, the General Counsel alleges that Alaska Ship and Drydock, Inc. (Respondent, Company, or ASD) violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act). Piledrivers, Bridge, Dock Builders, and Divers Local Union 2520, affiliated with United Brotherhood of Carpenters and Joiners of America (Charging Party or Local 2520) initiated this proceeding by filing unfair labor practice charges on April 13 Case 19–CA–27490, July 12 Case 19–CA– 27627, and August 28, 2001, Case 19–CA–27700.1 The com- plaint issued by the Regional Director on September 30, 2002, alleges that ASD violated Section 8(a)(1) of the Act: (1) by maintaining employee handbook rules barring employee dis- cussions about their pay rates and requiring management ap- proval for the distribution of written materials on Respondent’s premises; (2) by a supervisor’s threats concerning employee solicitation of union authorization cards and employee wage rate discussions. Additionally, the complaint alleges that Re- spondent violated Section 8(a)(1) and (3) by permanently lay- ing off employee David Harvey. Respondent filed a timely answer denying that it engaged in the unfair labor practices alleged.2 I heard this case at Ketchikan, Alaska, on November 5 and 6, 2002. Having now carefully considered the entire record, the demeanor of the witnesses,3 and the briefs filed by the General Counsel, Charging Party, and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, an Alaska corporation engaged in the marine and vessel repair business on a nonretail basis, maintains an office and place of business in Ketchikan, Alaska. In the 12- month period preceding the issuance of the complaint, Respon- dent’s inflow of goods and services, either directly or indi- rectly, exceeded $50,000. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that it would effectuate the purposes of the Act for the Board to exercise its statutory jurisdiction to resolve this labor dispute. 1 Most of the relevant events occurred in 2001. Unless shown oth- erwise, all further dates refer to that year. 2 Respondent does not challenge that Regional Director’s action in setting aside a prior settlement agreement in this matter. 3 The findings reflect my credibility resolutions based on various factors summarized by Judge Medina in U.S. v. Foster, 9 F.R.D. 367, 388–390 (1949). I do not credit testimony inconsistent with my find- ings. Additional discussion of some credibility issues appears below. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876 II. ALLEGED UNFAIR LABOR PRACTICES A. Facts Randy Johnson owns ASD and serves as the corporate presi- dent. He also owns three other related enterprises, Tyler Rental, an equipment rental company; Ty-Matt, Inc., a com- mercial construction firm; and Alaska Personnel Incorporated (API). API provides personnel services for the Johnson-owned firms. This dispute only involves ASD. ASD employs approximately 35 to 50 employees to perform the routine marine and vessel repair work ordinarily on hand. However, in the period from late 2000 through most of 200l, ASD started work on its contracts to refurbish the MV Colum- bia and the MV Matanuska, two large ferries in the Alaska Marine Highway System (AMHS) fleet, and to build a local passenger ferry, the Oral Freeman, the smallest of the three projects.4 This shipyard work caused ASD’s work force to swell to more than 200 employees at times. Respondent pre- ferred to employ workers from the Ketchikan area in order to avoid the higher labor costs associated with out-of-town work- ers who received per diem and lodging reimbursements. Throughout the relevant period, Respondent maintained and distributed a handbook to all employees that details various company policies. Its policy concerning pay and pay periods includes the following provision: “An employee’s pay rate or salary is confidential and should only be discussed with their immediate supervisor.” (GC Exh. 17 p. 4.) The handbook con- tains no explicit language describing any form of discipline for failing to adhere to the pay confidentiality rule. The handbook also contains certain “Rules of Conduct.” Failure to adhere to these rules subjects an employee to discipline up to and includ- ing discharge. One part of rule 17 bars the “[u]nauthorized dis- tribution or posting of written material on the premises at any time.” (GC Exh. 17 p. 31, No. 17.) Because the Columbia and the Matanuska are a part of the State-owned AMHS fleet and because the State and Federal government funded a substantial portion of the Oral Freeman project, the Alaska Department of Transportation (ADOT) required ASD to file periodic reports reflecting the wage rates paid various worker classifications used on these projects. ADOT, in turn, provides public access to these wage reports. Of further significance here, the U.S. Coast Guard maintains and enforces rules requiring the testing and certification of skilled workers performing certain tasks on passenger vessels such as these three. David Harvey, an experienced millwright who is the alleged discriminatee, obtained employment with Ty-Matt in August 2000, following an interview by Lloyd Gossman, API’s human resources director.5 Gossman entered a “COIW” classification 4 Ferries in the AMHS fleet transport passengers and vehicles among various Alaska ports and south to Bellingham, Washington. The Oral Freeman, owned by the Ketchikan Gateway Borough, transports pas- sengers and motor vehicles back and forth from the city of Ketchikan, located on the west edge of Revillagigelo Island, and the Ketchikan International Airport located across the Tongass Narrows on the eastern edge of Gravina Island. 5 Harvey previously worked for Ty-Matt in the period from 1994 into 1996 as a millwright. on Ty-Matt’s records to signify his skills as a carpenter, an operator, an ironworker, and a welder. While at Ty-Matt, Har- vey worked on a veneer plant-remodeling project performed jointly by Ty-Matt and another contractor. In early November, Harvey received a transfer to a steel crew at ASD where he began working on the Matanuska.6 The steel crew consisted of employees classified as welders, pipefitters, and firewatch per- sonnel. ASD records classified Harvey as a welder, a designa- tion most likely made by Carl Smith, ASD’s production man- ager, with input from his subordinates. As work on the Mata- nuska began to wind down in January, ASD transferred Harvey to the Columbia project. During his ASD tenure, Harvey came to be well liked and regarded as a good worker by the ASD management. Regardless of classification, ASD managers and supervisors frequently assign employees to jobs requiring the use of other skills. Plainly, Harvey performed very little welding while he worked at ASD. By his own account, Harvey’s work at ASD consisted mostly of installing insulation, cutting holes for elec- trical wires, and “tacking” inserts. At the time of his layoff, Harvey was doing installation work in the women’s restrooms. Harvey estimated that after his transfer to the Columbia in January, he spent about 3 days engaged in welding work of all kinds, including tack-up and actual welding, during his remain- ing tenure at ASD.7 Harvey’s lack of the required USCG-recognized welding certi- fication unquestionably explains the overwhelming predomi- nance of his nonwelding work assignments. Harvey acknowl- edged that he had never before received a formal welding certifi- cation on any of the jobs where he worked and that ASD supervi- sors told him he would have to be certified in order to weld on the ships. In June, Larry Jones, ASD’s welding inspector and a temporary supervisor through the relevant period, provided Har- vey with an opportunity to become a certified welder but he felt Harvey’s test sample turned out so substandard that he did not bother to send it to ASD’s independent testing laboratory for certification.8 According to Jones, USCG regulations require that certified welders must perform all welding on marine ves- sels. He claimed that ASD adhered strictly to this requirement during the Matanuska, Columbia, and Oral Freeman projects. In January 2001, Piledrivers Local 2520 undertook to organ- ize the ASD workers. Mike Harvey, a supervisor, admitted that union talk was commonplace around the shipyard through the spring and summer. Union handbills appeared throughout the shipyard and even on the ships under construction. Harvey became an ardent supporter of union representation and played 6 Ty-Matt and ASD regularly interchange employees. The practice is so common that the Johnson-owned companies require employees sign a written acknowledgement of the interchange practice and the practice of coordinating employee benefits to avoid any misunderstand- ing about benefit duplication. 7 The term “tack-up” refers to temporary spot welds holding two or more pieces of steel in place before the permanent weld occurs. Usu- ally a tack-up work involves only rudimentary welding skills. 8 As to Harvey’s welding test, I credit Jones’ testimony over Har- vey’s. Jones impressed me generally with his straightforward de- meanor and I found his to be the more convincing account concerning Harvey’s welding test. ALASKA SHIP & DRYDOCK 877 an active and open part in the organizing effort. He attended virtually all of the Union’s meetings and assisted Jim Strass- burg, Local 2520’s organizer, to distribute union campaign literature before and after work as employees entered and left the parking lot. On one occasion while attending a union meet- ing, Harvey stood in a window at the union hall and observed Larry Jones, an ASD welding inspector drive by and look to- ward him. Harvey and other employees, including Mike Ham- ilton, solicited employees to sign union cards in and around the employee parking lot. Harvey estimated that he successfully solicited at least four authorization cards. Using reports that Strassburg obtained from ADOT and provided to him, Hamil- ton spoke to a number of employees in an effort to confirm the ADOT wage reports ASD had filed. In certain instances, Ham- ilton learned of variances between the reports and the actual wages paid, and presumably sought to make the most of that for organizing purposes. One union supporter recalled that Harvey and about a dozen or so other employees wore union insignia on their hardhats around the shipyard. The organizing drive generated considerable controversy among the employees and sparked considerable opposition from ASD. Randy Johnson conducted two captive audience meetings with the employees in late March and early April. At the first meeting, Johnson spoke for about 40 minutes to ex- press ASD’s desire to remain unorganized, to caution employ- ees against signing union cards lest they forfeit their right to negotiate with the company, and to suggest that the Company’s bidding flexibility would be hampered by union representation. Gossman also conducted a meeting with some ASD employees in May or June to address complaints the employees registered about the wage rates of the temporary employees from outside the Ketchikan area. At the start of this meeting, Gossman con- fronted Harvey with an angry tone by asking if he had a prob- lem with the out-of-state workers. Another welder, Bill Saun- ders, joined the issue and engaged Gossman in a heated dia- logue over the out-of-staters. Toward the end of the meeting, Gossman again repeated Johnson’s assertion that signing a union card could result in the loss of the individual’s right to negotiate with management. ASD’s campaign against union representation also included a series of bulletin board postings containing messages opposing unionization. One very bold “Notice to Employees” warned em- ployees that they risked forfeiting to union agents, some who might be “total strangers,” the right to act on their behalf on all job-related matters. It also argued that signing an authorization card “may mean a pledge to pay dues, fines, initiation fees and to participate in picketing and strikes.” This notice concluded by urging employees to refrain from signing an authorization card so that ASD would remain an “open shop.” Todd Chapin worked as a laborer at ASD from December 2000 until May 2001, when he quit his employment there. On the morning of April 12, Chapin went to the toolroom to obtain a tool that he needed. A couple of days before, Chapin unsuc- cessfully solicited the toolroom custodian, Cheryl Elfstrom, to sign a Local 2520 authorization card. When Chapin entered the toolroom on April 12, Mike Carney, the machinist supervisor who oversaw the toolroom operations, happened to be working behind the counter carrying on a conversation with Elfstrom. A welder named Gypsy stood behind Chapin filling out a tool requisition form. After making eye contact with Chapin, Car- ney stated in a loud voice “if anybody was caught signing . . . having these authorization cards [they] would be immediately . . . fired.”9 Mike Hamilton worked at ASD as a laborer for about 2-1/2 years preceding his layoff in May 2001. In April 2001, Carney confronted Hamilton in ASD’s central yard about discussing wages with other employees. At the time, Hamilton was re- turning to work from a break in the lunchroom located on the floor above the machine shop. During that break, Hamilton had spoken to an unidentified new employee concerning his wage rate. That employee left the lunchroom just ahead of Hamilton. Hamilton went to the locker room to collect some supplies and the employee entered the toolroom. As Hamilton started out across the central yard toward his work location on the Columbia, Carney called out to him. When Hamilton stopped and turned, Carney said to him, “What’s this I hear about you talking about wages?” Hamilton shrugged but did not respond. Carney repeated the same ques- tion and Hamilton nodded affirmatively. Carney then chastised Hamilton by telling him sternly, “You’re going to be in big trouble.” Carney next told Hamilton that there was to be abso- lutely no discussion of wages and repeated the “big trouble” threat.10 On June 20, Local 2520 filed an election petition. Subse- quently, ASD and Local 2520 entered into a consent election agreement that provided for a Board-conducted representation election on July 26. The election was blocked by the charge in this case. Around the same time, ASD’s work force started to contract significantly primarily because work on the Columbia was nearly completed. Planning for the work force that would re- main after the completion of the Columbia project began in early June. (See R. Exh. 1.)11 Of the 81 employees ASD hired in the period from April through August, 69 no longer worked there at the time of Harvey’s layoff of July 12. Of the remain- ing 12, 4 left or were terminated within a week after Harvey’s layoff. It hired 5 of the 12 following Harvey’s layoff but all those left the Company by the end of August. Only three con- 9 Carney denied that he ever made such a remark or that this incident ever occurred. I do not credit Carney on this point. 10 Carney admits that he confronted Hamilton after a toolroom em- ployee made repeated claims that Hamilton bothered her by “talking to her about wages and how much more money she could make if the union came into the shipyard.” Carney asserted that he made reports about Hamilton to his boss and the shipyard general manager before confronting Hamilton personally. This happened after Hamilton pur- portedly bothered the toolroom employee again that morning. Carney asserts that he told Hamilton: “[D]o not talk to my employees about union wages or anything but work because I have a certain employee that has complained about you and I don’t want you harassing her.” Because Respondent failed to corroborate the harassment claim sug- gested by Carney’s account, I do not credit his story. 11 This exhibit reflects that planning. Obviously, this planning document did not turn out to be a precise reduction-in-force timetable as ASD retained some individuals, including Harvey, beyond July 2. However, the exhibit shows the crew selected for the Oral Freeman project. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878 tinued to work for ASD. Altogether, 51 employees left ASD or were terminated in June and 43 more left or were terminated in July. In the week before Harvey’s layoff, three others classed as welders left Respondent’s employ. Two others classed as welders were let go the same day as Harvey and two more welders were let go within the next 2 days. (See GC Exh. 3.)12 On July 12, Harvey and a pipefitter were working on the women’s showers aboard the Columbia. Harvey estimated that about 2 more days remained on that assignment. Steve Dunham, a leadman, approached about 9 a.m. and told the two men to “get a pallet and get your tools gathered up . . . you need to get them off the boat,” words that amounted to their layoff notice. Dunham completed the shower work himself. After gathering their tools, the two men again spoke with Dunham on the Co- lumbia’s car deck. At this time, Dunham told Harvey that he tried without success to keep him on to work on the “camp barge” then in the drydock. Later, at Supervisor Jones’ office, Harvey asked what was going on. Jones told Harvey that there was a reduction in force and that he should see Gossman after turning in his tools. Gossman asked Harvey for his address and told to keep in touch, as he was one of his key people. As he left, Harvey asked Gossman what he thought about the Union. Gossman replied that not many wanted a union. Gossman then pointed at the Oral Freeman project visible out his window and said “the only ones who wanted a union were the steel workers in there, right there.” Harvey has never been recalled to work at a Johnson-owned company. Respondent’s records reflect that it hired eight employees in June. That group of hires included two laborers, four painters, a sandblaster/painter, and a welder. (See GC Exh. 3.) The welder hired in June, Cecil Smith, left the day before Harvey’s layoff. The same record also reflects that Respondent hired two other welders, Steve Hinson and Dean Griffith II, in July after Harvey’s layoff. In fact, both of these welders previously worked on the Columbia. ASD hired Hinson on March 29, 2001. He worked until June 28 when he, in effect, obtained a leave of absence to return home in the contiguous States be- cause he needed to attend to some personal problems. Hinson returned to ASD on July 12, but was let go on July 23 because he failed to show up for work after July 19. ASD originally hired Griffith on April 19, 2001, and let him go on June 30. Griffith returned on July 18 and worked until August 31 when he voluntarily left to return to his home in Oregon. Both Hinson and Griffith were certified welders and pipefitters. Gossman credibly denied that either Hinson or Griffith returned to ASD to replace Harvey. B. Further Findings and Conclusions Section 8(a)(1) prohibits employers from interfering with, restraining, or coercing employees for exercising their Section 7 rights. Section 7, in effect, gives employees the right to en- gage in union or other concerted activities “for the purpose of collective bargaining or other mutual aid or protection.” Sec- tion 8(a)(3) prohibits employers from discriminating in regard 12 This exhibit shows all ASD employees from March through Au- gust together with their hire and employment termination dates. For purposes of this exhibit, employment termination may refer to a volun- tary quit, a layoff, or a discharge. to an employee’s “tenure of employment . . . to encourage or discourage membership in any labor organization.” The Wage Discussion Rule In the absence of a business justification, an employer vio- lates the Act by the maintenance of a rule that merely requests employees to refrain from discussing their wages with other employees. Radisson Plaza Minneapolis, 307 NLRB 94 (1992). Such rules, the Board asserts, “constitutes a clear restraint on the employees’ Section 7 right to engage in concerted activities for mutual aid and protection concerning an undeniably signifi- cant term of employment.” Id. citing Heck’s, Inc., 293 NLRB 1111, 1119 (1989). Respondent claims only that its handbook rule contains no enforcement mechanism. It advanced no busi- ness justification for the rule. Even so, the Act’s protection of employee wage discussions presumably would be subordinate to any alleged business justification only rarely where, as here, a public wage-disclosure requirement exists. Accordingly, I conclude that Respondent’s wage discussion rule violates Sec- tion 8(a)(1), as alleged. The Distribution Rule A rule requiring employees to secure their employer’s per- mission or authorization to engage in protected solicitation or distribution activity at the employer’s premises on the employ- ees’ own time and in nonwork areas is unlawful. Brunswick Corp., 282 NLRB 794 (1987), and cases cited therein. More- over, the mere existence of such a rule tends to interfere with and restrain employees in the exercise of their statutory rights even in the absence of employer enforcement. Id. at 795, citing Schnadig Corp., 265 NLRB 147, 157 (1982). Here, ASD’s handbook rule barred the distribution at anytime without man- agement’s prior authorization. For this reason, I conclude that Respondent’s distribution rule violates Section 8(a)(1) as al- leged. The Conduct of Supervisor Carney Having rejected Carney’s account of his discussion with Hamilton about speaking to a toolroom custodian regarding her wages, I find that his remark that Hamilton would be in “big trouble” for discussing wages with another employee would have a strong tendency to coerce Hamilton’s exercise of Sec- tion 7 rights. Waco, Inc., 273 NLRB 746 (1984). Similarly, Carney’s loud claim in the toolroom with employees present about discharging anyone caught possessing or signing a union authorization card would also have a strong tendency to coerce the employees’ exercise of Section 7 rights. Baron Honda- Pontiac, 316 NLRB 611, 619 (1995). Both remarks amount to nothing more than ham-handed threats that interfere with pro- tected employee activity. Accordingly, I conclude this conduct by Carney violated Section 8(a)(1) as alleged. Harvey’s Layoff In mixed motive discrimination cases, the Board applies a causation test first adopted in Wright Line, 251 NLRB 1083 (1980), and approved by the Supreme Court in NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983). Following the Supreme Court’s clarification in Office of Workers’ Com- pensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Board, in Manno Electric, 321 NLRB at 280 fn. 12, ALASKA SHIP & DRYDOCK 879 explained that its Wright Line causation test requires the Gen- eral Counsel to first “persuade that antiunion sentiment was a substantial or motivating factor in the challenged employer decision.” Typically, the elements of the General Counsel’s case include: 1) showing that the discharged employee engaged in some protected activity; (2) proving that the employer knew about the employee’s protected activity; and (3) establishing the employer’s hostility toward the employee’s activity. Best Plumbing Supply, 310 NLRB 143 (1993). Although not con- clusive, the timing of an adverse action may be significant in discrimination cases. Equitable Resources, 307 NLRB 730, 731 (1992). If the General Counsel establishes a prima facie case, the burden of persuasion shifts to the employer to show that the same adverse action would have been taken even in the absence of the employee’s protected activity. Best Plumbing Supply, supra. To meet this burden “an employer cannot simply present a legitimate reason for its action but must persuade by a pre- ponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984). I have concluded that the General Counsel’s case concerning Harvey lacks a persuasive quality. Even assuming the presence of a prima facie case, I conclude that a preponderance of the credible evidence fails to establish a causal connection between Harvey’s union activity and his layoff. Harvey’s layoff oc- curred in the midst of a general reduction in force near the time when ASD completed a major project and well after Harvey began to openly engage in union solicitation around the ASD facility. As his layoff lacked any extraordinary characteristics (it was neither among the first nor among the last), I find Gen- eral Counsel failed to prove ASD acted with an unlawful moti- vation. Even though work remained on the Oral Freeman at the time of Harvey’s layoff, the overwhelming evidence establishes that the size of Respondent’s total work force shrank considerably in June and July at the conclusion of the Columbia project. I reject the General Counsel’s argument that the timing of Har- vey’s layoff close to the filing of the petition supports an infer- ence of unlawful motivation. Respondent likely knew about Harvey’s strong union sympathies months before the filing of the petition and did little, if anything, to signify its displeasure with his activities.13 Because ASD simultaneously laid off numerous other workers and did not replace others who left voluntarily around that same time, the General Counsel’s effort to link Harvey’s layoff to the filing of the petition amounts to a flawed construct that ignores too many other events at the ship- yard during that period. The magnitude of Respondent’s down- sizing strongly favors an inference that economic considera- tions motivated Harvey’s layoff. The perception that welders Hinson and Griffith replaced Harvey lacks solid foundation. Both worked on the Columbia 13 Gossman’s assertion that he knew nothing of Harvey’s union ac- tivities until he read about it in the local newspaper lacks credibility particularly where other supervisors testified about the pervasiveness of the union literature around the premises and continuous employee discussions of unionization. and took brief leaves to attend to personal matters. As certified welders, these two workers would have had greater assignment flexibility than Harvey. Absent more, no basis exists to con- clude that ASD designed their return to replace Harvey or any of the four or five other welders (whose union sympathies are not known) laid off with Harvey. Even if it might be possible to view these two as replacements, it would be virtually impos- sible to determine whether they replaced Harvey as opposed to any of the other welders laid off with him. Put simply, no basis exists to establish or even infer that ASD pegged the return of Hinson or Griffith specifically to take Harvey’s place or that Respondent shortchanged its skill pool by Harvey’s layoff. Harvey’s layoff occurred in close conjunction with the depar- ture of more than 20 other workers following a steady stream of layoffs from mid-June onward. Nothing indicates a subsequent increase in the amount of available work ever occurred; on the contrary, the amount of work available and the size of Respon- dent’s crew continued to diminish periodically following Har- vey’s layoff. In addition, the General Counsel’s case lacks the type of supporting statements before, at the time of, or afterward be- traying a discriminatory motive for Harvey’s layoff. Although Respondent plainly and emphatically opposed unionization, it quickly agreed to an election after the Union filed a representa- tion petition. Moreover, the unlawful conduct noted above occurred substantially before Harvey’s layoff and cannot be correlated with any of Harvey’s protected activities. Hence, Respondent’s 8(a)(1) conduct adds very little support for a conclusion that it acted with a discriminatory motive when laying off Harvey. Both the General Counsel and the Charging Party accuse the Respondent of offering “shifting and unreliable reasons” for Harvey’s layoff. They argue that Gossman’s assertion that Harvey’s layoff resulted from his lack of an appropriate weld- ing certificate contradicts Jones’ that it resulted from a lack of fitting work. I do not view these assertions at all contradictory. Instead, they would appear generally compatible in that a weld- ing certificate may well have enhanced Harvey’s retention chances. The General Counsel charges that Supervisor Jones treated Harvey in a disparate manner by not scheduling him for another welding test after 30 days as was typical. However, because Harvey’s first test opportunity did not occur until June, I find this claim without merit. At best, Harvey’s next opportunity for testing would have occurred virtually at the time as his lay- off.14 In fact, by providing Harvey with an opportunity to en- hance his credentials when employment opportunities at ASD began to shrink, it is possible to infer that Jones, at least, did what he could to improve Harvey’s chances to continue with the company. 14 The General Counsel also seems suspicious of the fact that Jones failed to submit Harvey’s test welds to the certification laboratory. The General Counsel’s argument confuses Jones’ supervisory judgment with his technical qualifications at the time. Jones acknowledged that he had no authority to certify a test at that time but, clearly, as an ex- perienced welder serving in a supervisory role he knew what would and what would not pass a certification test. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880 As I am unable to conclude that a preponderance of the evi- dence establishes that Harvey’s union activity constituted a substantial or motivating factor for his layoff, I recommend dismissal of the 8(a)(3) allegation pertaining to him. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 2520 is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining handbook rules designed to bar employees from discussing their pay rate or salary with anyone other than their immediate supervisor, and to bar the unauthorized distri- bution of written material on ASD’s premises at any time; by supervisor Carney’s remark that an employee would be in “big trouble” for discussing wages with another employee; and by supervisor Carney’s threat to employees about discharging anyone caught possessing or signing a union authorization card, the Respondent engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, my recommended order will require it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. My recommended order requires Respondent to forthwith expunge the provisions in its handbook that I have found unlawful and to post the notice attached hereto as the Appendix so employees will know the outcome of this matter. [Recommended Order omitted from publication.]